himself in the sayd Will had declared or otherwise as by his Executors or the Survivor of them shall be prescribed And if the sayd Sir Edward and his Heirs shall make default in the assurance of the sayd Land by him to be assured as aforesayd then hee will that immediatly upon such default his Estate and the Estate of the sayd Frances shall cease in the sayd Lands in Croxton c. and then he devise the same Lands to his Executors and their Heirs for ever to the use of them and their heirs upon trust and confidence that they or the Survivor of them and their Heirs shall assure the same or otherwise yearly dispose the profits of them in finding the sayd Preacher and other charitable works as aforesayd and made Edward Peacock Father to the Lessor whose Heir the Lessor is and others his Executors and dyed 9. of the Queen after whose Death all the Executors refuse to be Executors The seven years passe without the establishing of the School and other things according to the Will for the first part of it whereby the Land in Thetford was forfeited to the heir for the Condition broken and within the ten years Sir Edward Cleer made a Feoffment of Land to the value of 35. l. a year to the surviving Executor for the use of the School but with acondition contrary to the Will and no Livery waâ— made upon the sayd Feoffment but it was inrolled of Record in the Chancery whereby the sayd Sir Edward had broken the Condition annexed to his Estate and also during all this time neither the Executors nor their Heirs had done any thing in finding the Preacher or the other works of charity with the profits of the sayd Lands in Croxton or in assuring of it according to the Will and yet the sayd Edward Peacock the Son in September 32. Eliz. being Heir to the surviving Executor entred into the Land in Croxton and demised it to the Plaintiff for seven years upon which the Defendant as Servant and by the commandement of Sir Edward Cleer and of Edmund the Son and Heir of the sayd Frances who was then dead entred upon which entry and Efectment the Action was brought and it was mooved by Godfrey and others that the entry of the Defendants was lawfull first in the right of the sayd Sir Edward because that his Estate by the Statute of 23. H. 8. cap. was without condition or determined because that by this Statute all the uses limited in such a manner are made void because they are in the nature of a Mortmain as may appear by a Proviso at the end of the same Statute for a certain person of Norwich who had Devised Lands for the case of the poor Inhabitants of the same Citty in Taxes and Tallages and for cleansing of streets there and for discharge of toll and Custome within the City all which were good uses and not tending to Superstition and yet if it had not been for the Proviso they had been gon by the body of the Statute And the Statute ordained also that every penalty and thing which shall be devised to defraud this Statute shall be void and if this do not help them yet the Entry made in the right of the sayd Heir of Sir Richard Fulmerston is good for the estates of the sayd Executors are also bound as with a tacite condition that these things shall be performed which are not done and therefore the entry in right of the heir is lawfull for the words Ad propositum ea intentione and the like in a Will are good Conditions which Gaudey agreed vouched the case 28. Sess Pl. but it was after often argument agreed by all the Court that the first exception was to no purpose for they conceived that this Statute was to be taken to extend only to the uses which tend to Superstition as might be collected as well by the words of it in the very body of the Act at the beginning as by the time in which it was made for at this time they began to have respect to the ruine of the authority of the Pope and to the dissolution of the Abbies Chantries and the like And by Popham the Proviso was put in the Statute but for satisfaction of the Burgesses of the same City at this time and not for any necessity as oftentimes it happens And for the other point he sayd that it appeareth fully by the Will that it was not the intent of the sayd Sir Richard to have the Land in Croxton bound with any condition in the possession of his Executors or with any other matter which determine their Estate for the Words that they shall have it upon trust and confidence exclude all constraint which is in every condition and the Will is that they shall have it to the use of themselves and their Heirs for ever which câ—nnot be if it shall be abridged by any Limitation or Determination And he sayd that the Lord Anderson demanded of him a Case which was adiudged in the Common Pleas 29. Eliz. Rot. 639. which was thus One Michel made a Lease for years rendring Rent and for default of payment a re-entry with Covenants on the part of the Lessee to repair the Messuages c. and the term continuing the sayd Michel by his Will in Writing devised the same Land to the sayd Lessee for more years then hee had to come in it rendring yearly the like Rent and under the same Covenants which he now holds it and dyed and afterwards the first term expired the Lessee does not repaire the Houses and the question was whether by this he hath forfeited his term and adjudged that as to this it was not any condition and a Covenant it could not be for a Covenant ought alwaies to come on the part of the Lessee himself which cannot be this case for he doth not speak any thing in the Will to bind him but they are all the words of the Devisor himself which comprised in a Will and it never was his intent to have it to be a condition and therefore void as to the Lessee to bind him either by way of Covenant or Condition so here c. And for the sayd Feoffment enrolled without Livery it was agreed by all that it was not of any force to make the Land to passe to the Executors but the enrolment conclude him to say not his Deed And also that the Executors refuse to be Executors this shall not hinder them to take by Devise as to the Inheritance whereupon it was adjudged that the Plaintiff shall recover as appears Thomson Versus Trafford Hillary Term 35 of Queen Eâ—izabeth IN an Ejectione firmae between John Thomson Plaintiff and Thomaâ— Trafford Defendant the case was thus The President and Schollers of Magdelen Colledge in Oxford 20 Decemb. 8. Eliz Did let a Messuage uâ— the Burrough of Southwark to which no Land appertained to William Staâ—dish for twenty years from the Feast of
question and his sayd wife entred into them for her life by virtue of the sayd Will in whose life time the sayd George dyed without Issue after which the sayd Thomas also to wit 9 Dec. 1576. made his Testament in writing and of this made Mary his wife his Executrix and dyed having Issue Martha by the sâ—yd Mary Afterwards the sayd Alice the wife of the Dâ—visor tâ—e lâ—st of March. â—2 Eliz. dyed and after her death to wit the first of May 32 Eliz. the sayd William entred into the sayd Tenements and was therof seised in his Demesne as of Fee-tail and the sayd Mary in the life-time of the sayd Alice proved the Testament of the sayd Thomas Brown and the sayd William did not pay the sayd 26 l 13 s. 4 d. to the sayd Mary nor any part therof according to the Will and the sayd Martha being Daughter and Heir of the said Thomas therupon entred into the sayd Tenements and did let the sayd Moyety of which the sayd Action was brought to the sayd Ward for two years upon which the sayd Downing in the right and by the commandment of the sayd William re-entred and expelled the sayd Plaintiff buâ— the conclusion of the Verdict was not upon the expulsion but only if the entry of the sayd Downing shall be adjudged lawfull then they find the Defendant not guilty and if it were not lawfull then they find him guilty Fennor the Estate of the sayd William is conditional by the Will to wit that he shall pay to Thomas the 40 Marks according to the Will because the Will is that the sayd money shall be payd as is aforesaid or before the sayd moneys which were to be payd was expresly limitted to be payd upon the forfeiture of his Estate And further if it shall not be taken for a Condition then Thomas hath no remedy for the money to be payd to him and although it be limitted to be payd but to Thomas who was dead before the day of payment of it yet it shall be taken as a duty limited to him which shall be paid to his Executors because that a time certain is limited for the payment of it to wit when the Land is come to the sayd William which is by the death of the sayd Alice but if no time had been limitted for the payment of it and they had died before the payment of it it had been otherwise And it being a condition in William albeit it descend upon him as well upon him as upon the Heir of the sayd Thomas yet it remains a good Condition for the part of the Heir of the sayd Thomas not determined by the descent of the other part upon the Heir of the sayd William And further he sayd that here the Condition shall not be sayd to be broken but upon refusall of payment by the sayd William as in the case of George to whom it refers by the words as is aforesaid which refusall is not found and therfore the Plaintiff shall be barred Clench The Executors of the said Thomas know not when nor at what place to demand it and therfore he thinks that the said William ought to have tendred the money to the said Executrix at his perill Popham The payment limited to be made by the said George is at his first entry after the death of Alice and then to pay 40 s. and so yearly untill 40 Marks are paid to the sayd William and therupon 40 s. yearly to the sayd Thomas untill other twenty Marks are paid to him so that this is the form of the payment to wit at his entry as well for the place as the time for it cannot be made at his entry unless upon the Land it self and therfore by the purport of the Wil the Land shall be taken for the place where the payment ought to be made for avoiding the inconvenience which otherwise will ensue As if I am bound to pay to you 20 l. upon your first coming to such a place this place shall be taken for the place where the payment shall be made And wheras it is said further in the Will and so to pay yearly 40 s. untill the twenty Marks are paid to William this payment also by the words and so to pay yearly c. shall be at the same place at the end of every year upon the next day after the end of it or otherwise there will be no certainty when it shall be paid and therfore the first day of every year shall be the very day of payment and this also by virtue of the said words and so yearly And at the last day of payment by George to William or Thomas there ought to be paid but 26 s. 8 d. because that then there remains no more to be paid of the summs limited to be paid to them And when the Will here hath finished with George for that which he is to pay it goes further and if he refuseth to pay the said summs to William and Thomas in manner and form aforesaid then he wils that all the said Lands shall remain to the said William and his Heirs for ever paying yearly c. and so there is an express penalty to George if he refuse to make payment to wit that he shall loose the Land for default of payment made by George by the word paying annexed to the Estate which is a Condition but he conceived that this last payment to be made to Thomas is not to be made upon any penalty nor that a Condition is to be implyed in it although Thomas hath no remedy for it but in conscience because it is a meer confidence put in William to pay it And he said that he was the rather moved to be of this opinion because every one of the precedent Limitations was with an expresse Condition annexed to them as to George if he refuse c. But when William is to have but an Estate-tail upon the determination of the Estate made to George for default of Issue there he saith nothing but that the said William shall pay to the said Thomas fortie Marks as is aforesaid which is but a declaration of his intent that he put confidence in him for the payment of it and did not bind himself upon condition as in the other cases which he might have done by expresse words of condition if his intent had been so as well as he did in the other cases if his purpose had been so and the words that he shall pay as is aforesaid is to be understood for the place and time when it shall be paid according as George ought to pay it And it doth not seem to stand with reason to expound it for a Condition to destroy the Remainder limited to the said Thomas but if it shall be a Condition upon a relation because of the words that he shall pay it as aforesaid mentioned that the payment ought to be paid to the Executor of the said Thomas
wit the 6th day of July in the same 6th year by his Deed of the same date the said Christopher enfeoffed the said Sir John Chichester and his Heirs of the said Mannor and by the same Deed warranted it for him and his Heirs to the said Sir John Chichester and his Heirs wherupon the said Sir John Chichester entred into the said Mannor after which to wit the first day of October 12 Eliz. the said Christopher died after which the 7th day of November 13 Eliz. the said Stretchley Chudleigh died without Issue of his body And after the death of the said Sir Richard Chudleigh to wit the 6th day of September 7 Eliz. the said Sir John Chichester enfeoffed one Philip Chichester and his Heirs of the said Mannor to the use of the said Philip and his Heirs And the said Close being Copyhold and Customary Land of the said Mannor demisable by the Lord of the same Mannor or his Steward for the time being for life or lives by Copy of Court-roll according to the custom of the said Mannor The said Philip at a Court holden at the said Mannor for the said Mannor the 8th day of December 15 Eliz. by Copy of Court-roll granted the said Close to the said John Frain for Term of his life according to the custom of the said Mannor after which to wit the 11th day of March 28 Eliz. the said John Chudleigh being now Heir to the said Christopher enfeoffed the said William Dillon of the said Mannor to have and to hold to him and his Heirs to the use of the said William and his Heirs for ever wherby he entred and was seised untill the said John Fraine entred into the said Close upon him the 8th day of February 30 Eliz. upon which entry of the said Fraine this Action is brought And for difficulty of the case it was adjourned into the Exchequer Chamber before all the Iustices and Barons of the Exchequer And there it was agreed by all that a Warranty descending upon an Infant shall not bind him in case that the entry of the Infant be lawfull into the Land to which the Warranty is united But the Infant ought in such a case to look well that he do not suffer a descent of the Land after his full age before he hath made his re-entry for then the Warranty when he is to have an Action for the Land shall bind him And they agreed also that a Copyhold granted by a Disseisor or any other who hath the Mannor of which it is parcel by wrong shall be avoided by the Disseisee or any other who hath right to the Mannor by his entry or recovery of the Mannor And so by Popham it was agreed by the Iustices in the case of the Manner of Hasselbury Brian in the County of Dorset between Henry late Earl of Arundell and Henry late Earl of Northumberland but then he said that it was agreed that admittance upon surrenders of Copyholders in Fee to the use of another or if an Heir in case of a Descent of a Copyhold were good being made by a Disseisor of a Mannor or any other who hath it by Tort because these are acts of necessity and for the benefit of a stranger to wit of him who is to have the Land by the surrender or of the Heir And also Grants made by Copy by the Feoffee upon condition of a Mannor before the Condition broken are good because he was lawfull Dominus pro tempore And for the matter upon the Statute of 27 H. 8. what shall become of this future use â—imited to the first second and other Issues Males not in Esse at the time of the Feoffment Ewens Owen Bateman and Fennor said That an Use at Common Law is Use what it is no other then a confidence which one person puts in another for a confidence cannot be in Land or other dead thing but ought alwaies to be in such a thing which hath understanding of the trust put in him which cannot be no other then such a one who hâ—th reason and understanding to perform what the other hath committed to him which confidence shall bind but in privity and yet the confidence is in respect of the Land but every one who hath the Land is not bound to the confidence but in privity shall be said to be in the Heir and the Feoffee who hath knowledge of the confidence and in him who cometh to the Land by Feoffâ—ent without consideration albeit he hath no knowledge therof and yet every Feoffee is not bound although he hath knowledge of the confidence as an Alien Person Attaint and the like not the King he shall not be seised to anothers use because he is not compellable to perform the confidence nor a Corporation because it is a dead body although it consist of naturall persons and in this dead body a confidence cannot be put but in bodies naturall And this was the Common Law before the Statute of 27 H. 8. Then the Letter of the Statute is not to execute any Vse before that it hapneth to be an Vse in Esse for the words are Where any person is seised to the use of any other person that in such a case he who hath the Vse shall have the same Estate in the Land which he had before in the Vse Ergo by the very letter of the Law he ought to have an Estate in the Vse and there ought to be a person to have the Vse before the Statute intends to execute any possession to the Vse for the words are expresse that in every such case he shall have it therfore not another And therfore the Statute had purpose to execute the Vses in possession Reversion or Remainder presently upon the conveyance made to the Vses But for the future Vses which were to be raised at a time to come upon any contingent as to the Infants here not being then born the Statute never intended to execute such Vses untill they happen to have their beeing and in the mean time to leave them as they were at Common Law without medling with or altering of them in any manner untill this time and if before this time the root out of which these contingent Vses ought to spring be defeated the Vse for this is utterly destroyed and shall never afterwards have his being as here by the Feoffment made by the said Sir John Saintleger and his Co-feoffees who then were but as Tenements pur auter vie to wit for the life of Christopher and which was a forfeiture of their Estate and for which Oliver Chudleigh might have entred it being before that the said Strechley or John Chudleigh were born the privity of them from Estate being the root out of which this future use ought to have risen is gone and destroyed and therfore the Contingent Vses utterly therby overthrown As if before the Statute of 27 H. 8. Tenant for life had been the remainder over in Fee to an Vse
by reason of the Waiver in the Devisor shall be sole seised ab initio for the said Elizabeth might have had Dower therof if she would as in the like case it is adjudged in 17 E. 3. 6. and therfore a sole Seisin in the Husband and the descent to the Heir in such a case upon the Waiver shall take away the entry of him who hath right to it And therfore the case now for the Mannor of Hinton is within the very letter of the Statute as well for the sole Seisin which was in the Devisor as for the immediate descent which was from the Devisor to his Heir and therfore remains to the Heir for a good third part of the Inheritance of the Devisor by the very letter of the Statute and if the Letter had not helped it yet it shall be helped by the purport and intent of the Statute which ought to be liberally and favourably construed for the benefit of the Subject who before the Statute of Vses might have disposed of his whole Land by reason of Vses by his Will and the Statute of 27 H. 8. excludes him therof and therfore the Statute of 32. 34 H. 8. are to be liberally expounded as to the Subject for the two parts and the rather because it appeareth by the preamble of the Statute of 32 H. 8. that it was made of the liberality of the King and because that by 34 H. 8. it appeareth that it was made to the intent that the Subject shall take the advantage and benefit purposed by the King in the former Statute by all which it appeareth as they said that the said Statutes shall be liberally expounded for the advantage of the Subject and for his benefit and not so strictly upon the letter of the Law as hath been moved and so they concluded that Iudgment ought to be given for the Plaintiff Popham and Anderson the two chief Iustices and all the other Iustices and Barons held the centrary and that Iudgment ought to be given against the Plaintiff and that by the very letter and purport of the Statutes of 32 34 H. 8. for they said they are to consider what Estate the Devisor hâ—d â—â— the Land at the time of his Devise made without regard to that which might happen by matter Ex post facto upon the Deed of another and if it had beâ—n demanded of any apprised in the Law at the time when the Will wâ—s made what Estate the Devisor then had in the Mannor of Hinton 〈◊〉 is so unlearned to say that he had other Estate in it then joyntly with his Wife And if so it follows that this Mannor was then out of the letter and intent of the Law for he was not then sole seised therof nor seised in coparcenary nor in common and by the words he should be sole seised in Fee-simple or seised in Fee-simple in coparcenary or in common It appeareth that the intent of the Statute was that he shall have full power of himself without the means or aid of another to dispose of the Land of which he is by the Statute to make disposition or to leave it to his Heir and this he hath not for the Mannor of Hinton here And further the words of 32 H. 8. are That the Devisor hath full power at his Will and pleasure to devise two parts of his Land so holden as here and this is to be intended of such Land of which he then had full power to make disposition â—nd this he could not then do for the Mannor of Hinton And further the words of 34 H. 8. are that the devision for the parts shall be made by the Devisor or Owner of the Land by his last Will in writing or otherwise in writing and in default therof by commission c. And can any say with reason that it was the intent of the Statute that he shall make the Devision of other Lands then of those of which he then had full power to devise or to leave to his heir without any future accident to help him or the mean of Anthony by matter Ex post facto It is cleer that reason cannot maintain it And the words following in the Act which are That the King shall take for his third part the Land which descended to the Heir of the â—state tail or of Fee-simple immediatly after the death of the Devisor much enforce the opinion on this side for it cannot be said upon the death before the Waiver that this Mannor of Hinton was immediatly descended ergo it ought not to be taken for the third part And further the words are If the Lands immediatly descended upon the death of the Devisor c. do not amount to a full third part that then the King make take into his hands so much of the other Lands of the Devisor as may make a full third part c. wherby it is cleer that in this case if the wife had not waived her Estate for ten years after the death of the Devisor that for all this time the Queen could not meddle with the Mannor of Hinton and therfore in the mean while she might well have so much of the Mannor of Thoby which might well have made a full third part to her and for so much which she took the Will was alwaies void which shall never be altered nor made good by any Waiver Ex post facto And although the Waiver of the Fame put the Inheritance entirely in the Devisor and in his Heir in relation to divers respects yet as to other respects he shâ—ll not be said in them with such relation and especially upon the Statute in which we now are to respect the power as it was in him at the time of his death before this future Contingent And by Popham If the exposition on the other side shall hold place upon the Statute perhaps a man shall not see by the space of six years or more after the death of a Devisor how his Devise shall work As a Feoffment in Fee is made to I. S. and a Feme Covert and their Heirs of 10 l. Land holden by Knights-service in Capite which I. S. hath 20 l. Land in fee so holden also I. S. makes a Devise of his 20 l. Land the Husband lives 60. years after none will or can deny but that for this time the Devise is not good for two parts now the Husband dies and the Wife waives the Estate made to her this puts the Inheritance therof in the Heir of I. S. with relation to divers respects but not to this respect to make the Will now good for the whole 20 l. Land which therfore was void for the third part therof for the Will which once was void by matter Ex post facto after the death of the Devisor cannot be made good And by him the descent in such a case is not such that it shall take away the entry of him who hath right because
but as referring to the provision subsequent in the Statute in which case this matter shall be used but as the Proviso it self shall be and according to this it hath been commonly put in practise by all the Iustices in all places after the Statute untill now And they agreed also that it need not be shewn whether he were made a Iesuit or Priest c. either beyond Sea or within the Realm because whersoever it was it is within the Law if he were made by the pretended authority of the See of Rome But they agreed that it ought to be comprised in the Indictment that he was born within this Realm or other Dominions of the Queen but need not to shew where but generally Et quod I. S. natus infra hoc Regnum Angliae c. And the Indictment ought to comprise that he was a Iesuite or Priest c. by authority challenged or pretended from to the See of Rome because that this is in the body of the Act without such reference as in the other point and according to this resolution the proceeding was against the said Southwell Easter Term 37 Eliz. Pigots Case 1. AFter the death of Valentine Pigot Esquire a Commission was awarded in nature of a Mandamus and after the death of Thomas Pigot Father of the said Valentine a Commission was awarded in nature of a Diem clausit extremum and the said Commissions were awarded to one and the same Commissioners who by one Inquest took but one Inquisition upon these severall Commissions in this form Inquisitio indentata captâ— apud c. virtute Commiss in natura brevis de diem clausit extremum eisdem Commiss direct c. ad inquirendum post mortem Thomae Pigot Ar. nuper defuncti patris predict Valentin per sacramentum c. Qui dâ—cunt c. After which all the points of the Câ—mmission after the death of the sâ—id Valentine are enquired of but for the Commissions after the death of the said Thomas Pigot it is imperfect in some points as who is his Heir c. is not found And by Popham and Anderson this Inquisition is void as to Valentine as well as for Thomas for their authorities which are the Commissions are by severall Warrants which cannot be simul semel by one and the same Inquisition executed and satisfied but ought to be divided and severall as the Warrant is severall and yet the same Inquest which found one Inquisition by one Warrant may also find another Inquisition by the other Warrant but divided and severall and not as one for as it is made it does not appear upon which of the Commissions the Inquisition as to Valentine is taken for as it is made it may be as well upon the one as upon the other for it is said to be by vertue of both the Commissions which cannot be and therfore is not good in any part and severall Warrants ought to be severally execused and therfore although the Escheator as appeareth by 9 H. 7. 8. may take â—â— Inquisition Virtue officii and at the same day another Inquisition Virtue brevis by one and the same Inquest yet this cannot be drawn into one Inquisition And that which is found Virtue officii contrary to that which before the same day Virtute libris as that it found more Land is good for the King And this their opinion was certified to the Court of Wards Sir Rowland Haywards Case 2. THis Case was also sent to the same chief Iustices out of the Court of See this case in Coke â— Report 35. Wards Sir Rowland Hayward being seised in his Demesne as of Fee of the Mannors of D. and A. in the County of Salop and of other Lands in the same County part wherof were in Lease for years by severall Indentures rendring certain rent part in the possessions of severall Copyholders and part in Demesne in possession out of Lease by Indenture dated 2. September 34. Eliz. made mention that this was for and in consideration of a certain sum of money to him paid by Richard Warren Esquire and others demised granted bargained and sold to the said Richard Warren and the others the said Mannors Lands and Tenements and the Reversion and Remainder of them and of every part of them and the Rents and Profits reserved upon any Demise therupon for 17. years next ensuing the death of the said Sir Rowland rendring a Rose at the Feast of S. John Baptist yearly if it be demanded which Deed was acknowledged to be enrolled and afterwards by another Indenture covenanted and granted for him and his Heirs hereafter to stand seised of the said Mannors Lands and Tenements to the use of the said Sir Rowland and of the Heirs Males of his body and afterwards and before any Attornment to the said Richard Warren and his Co-lessees or any of them the said Sir Rowland died seised of the said Mannors Lands and Tenements leaving a full third part of other Lands to descend to his Heir And it was moved on the Queens part that for part to wit for that which was in possession it past to the said Richard Warren and the other by way of Demise at Common Law and therfore it doth not passe afterwards by way of Bargain and Sale as to the Remainder and that therfore for the Services of the Mannors and for the Rents reserved upon the Demise these remain to the Heir who was in Ward to the Queen and within age and therfore to the Queen by reason of the Tenure which was in Capite by Knights-service But by Popham and Anderson it is at the Election of the said Richard Warren and his Co-lessees to take it by way of Demise or by way of Bargain and Sale untill that by some act done or other matter it may appear that their intent is to take it another way for the Vse in this case may well passe without the Inrolement of the Deed because the Statute of 27 H. 8. of Inrolements extends but to where a Free-hold is to passe and the Vse so passing this shall be executed by the Statute of 27 H. 8. of Vses and therfore if the said Richard Warren and his Co-lessees after the death of the said Sir Rowland Hayward would elect to take it by way of Bargain and Sale they shall have all the Reversions Remainders Rents and Services as well as the Land in possession executed to them by the Statute of Vses And of the same opinion were all the Iustices in Trinity Term following upon their meeting at Serjeants-Inne for another great cause Trinity Term 37 Eliz. 1. VPon an Assembly of all the Iustices and Barons of the Exchecquer at Where a Justâ—ce of Peace bails one who is not bailable he shall be sined and albeit he be committed but for sufficiâ—â—â— of Felony and haâ—h no notice of his offence Serjeants-Inne in Fleetstreet this Term it was resolved by them and so agreed to be hereafter put
Sheriff of another County then where the occasion brought or by Warrant of a Iustice of Peace of another County for matter of the Peace and the like which are not like to the case of Partridge who was beâ—ten in the County of Glocester by Sir Henry Pole for which he brought his Action in London And Sir Hen. Pole would have justified by Assault of the Plaintiff in the County of Glocester with a trâ—verse that he was not guilty in London But it was then ruled in this Court that he could not do it to oust the Plaintiff to sue in London but in such a case he might have alledged that the Assault was done in London because it was also a thing transitory of which they shall take notice there and so help himself if the matter had been true But in the case at the Bar if the speciall matter alledged in the forraign County be false as here the Plaintiff may maintain his Action and traverse the special matter alledged by the Defendant And so a traverse in such a case may be upon a Traverse when falsity is used to oust the Plaintiff of that benefit which the Law gives him Hillary Term 38 Eliz. Wood versus Matthews 1. IN a writ of Error brought by Owen Wood against Griffeth Matthews upon a judgment given in the common Pleas the case was briefly thus The Issue in the Common Pleas was whether one were taken by a Cap. ad satisfaciendum or not and upon the triall therof at the Nisi prius the Jury found for the Plaintiff in this Action to wit that the party was not taken by the said Capias and upon the back of the Pannell entred dicunt per Quer. but on the back of the Postea the Clark of the Assises certified the Pannell thus to wit That the Jury say that no Capias was awarded which was otherwise then was put in Issue or found by the Jury and the Roll of the Record was according to the Postea and upon this Judgment given for the said Matthew then Plaintiff upon which amongst other Errors this variance between the Issue and Verdict was assigned for Error and after deliberation had upon this point and this matter alledged by the Defendant in the Writ of Error and certified out of the Common Pleas the Court awarded as to this point that the Record sent up out of the Common Pleas by the Writ of Error shall be amended according to that which was endorsed on the back of the Pannell for the endorsement upon the Pannell is the Warrant for the certifying of the Postea aâ—d so this Warrant over to him that makes the Entry in the Roll And therfore wheras it was alledged that the Postea was amended in the Common Pleas aftâ—r the Record removed it was holden to be well done there for although the Record were removed by the Writ of Error yet the Nisi prius the Postea and the like remain still there as it is of the Warrant of Attorney and the like And if the Postea had not been amended there but sent up with that which was endorsed upon the Pannel all shal be amended here according to that which was indorsed upon the Pannel and according to this there was a Presidâ—nt shewn Tr. 35. H. 8. between Whitfeild and Wright where the Issue was whether a quantity of Grain were delivered between two Feasts and endorsed upon the Pannel Dicunt pro quaer and yet the Postea certified and the Rolls also made that the delivery was made ad festa and upon this matter alledged in Banco Regis and the Error in this point assigned and certified out of the Common Pleas the Record removed by the Writ of Error was by award of the Court amended and the word Ad razed out and the word Inter written in lieu of it according as it appeareth it ought to have been by the Note upon the back of the Pannel And the like amendment was made lately in the Checquer Chamber upon Error brought there upon a Iudgment given in Banco Regis where the Iudorsment upon the back of the Writ was pro Quer. and the Postea and Roll was that the Plaintiff was guilty and there amended the last Term. Slanings Case 2. NIcholas Slaning of Bickley was seised in his Demesn as of Fee of the Mannor of Bickley and of a Mill in Walkhampton in the County of Devon called a blowing Mill and of another Mill there called a knocking Mill and of an acre of Land there also and of divers other Mannors and Lands in the said County of Devon the said Mills and acres of Land in Walkhampton then being in the possession of one Peterfeild and Atwill of an Estate for divers years then to come and being so seised he with Margaret his Wife levied a Fine of the said Mannor of Bickley and of other Lands omitting the said Lands in Walkhampton to certain Câ—nuzees who rendred the same back again to the said Margaret Slaning for her life with the remainder over to the said Nicholas and his Heirs After which the said Nicholas by Indenture daied 30. Octob. 21 Eliz. gave and enfeoffed all the said Mannors and Premisses to John Fits and others and the Heirs of the said Fits to the Vses Provisoes and Limitations mentioned in the said Indenture which was to the use of himself and the Heirs Males of his body by any other Wife the remainder to Nicholas Slaning of Newton Ferries and the Heirs Males of his body with divers remainders over with this Proviso to wit Provided and it is the intent of these presents and of the parties therunto that the said John Slaning and the Heirs Males of his body or the said Nicholas Slaning of Newton-ferries and the Heirs Males of his body in whomsoever of them the Inheritance in tail of all the Premisses shall happen to be by force of these presents shall pay to Agnes the Daughter of the said Nicholas Slaning of Bickly 200 l. or so much therof as shall be unpaid at the time of the death of her said Father according to the intent of his last Will with a Letter of Attorney to it by which he ordains John Hart and Robert Fort joyntly and severally his Attorney to enter into the said Mannor of Bickley Walkhampton c. and all other the Lands Tenements and Hereditaments in the said Indenture mentioned and possession for him to take and after such possossion taken for him and in his name to deliver full possession and seisin of the Premisses to the said John Fits c. according to the form and effect of the said Indenture wherupon possession and seisin was given of all but that which was in possession of the said Peterfield and Atwill And the said Pererfield and Atwill nor either of them never attorned to the said Grant After which Nicholas Slaning of Bickly made his last Will by which devised to the said Agnes his Daughter 200 l. to be paid in form following
first Attainder by way of Plea but acknowledged the Deed in which case the Accessary may well be Arraigned But if the principall had pleaded his former Attainder whether now he shall be put to answer for the benefit of the Queen having regard to this Accessary who otherwise shall go quit because there was not any principall but he who was formerly attainted And it seemed to Popham and some others that it shall be in the same manner as if the same person so formerly attainted should be tried now for Treason made before his Attainder as appeareth by 1 H. 6. 5. because it is for the advantage of the King in his Escheat of the Land and notwithstanding that it is moved by Stamford in his Pleas of the Crown it seemed to Popham that there was no diversity where the Treason was made before the Felony of which he is attainted and where after and before the Attainder And by the same reason that he shall be again tried for the benefit of the King in this case because of the Escheat by the same reason in this case here because of the forfeiture which accrueth to the Queen by the Attainder of the accessary and for the Iustice which is to be done to a third person who otherwise by this means shall escape unpunished But he agreed that the party Attaint shall not be again Arraigned for any other Felony done before the Attainder in case where no Accessary was touched before the Statute of 8 Eliz. cap. 4. he who is convict of Felony and hath his Clergy after his purgation made shall be Arraigned for another Felony done before the conviction if it be such for which he cannot have his Clergy and was not convicted or acquitted of the same Felony before the Attainder But upon this Statute it appeareth that he who shall have his Clergy in such manner shall not be drawn in question for any other Felony done before his Attainder for which he might have his Clergy And of this opinion as Clark and others of the Iustices said were all the Iustices in the time of Wray And as to the Statute of 18 Eliz. cap 7. It is not to be understood but that he who hath his Clergy and delivered according to this Statute shall be yet arraigned for any other Felony done before his former Conviction or Attainder if it be such for which he cannot have his Clergy for the words are That he shall be put now to answer c. in the same manner as if he had been delivered to the Ordinary and had made his Purgation any thing in this act to the contrary notwithstanding Pollard versus Luttrell 2. IN an Ejectione firmae between Pollard and Luttrell for Lands in Hubury and Listock upon the Title between the Lord Audeley and Richard Audeley it was agreed by the chief Iustices that if the Disseisor levy a Fine with Proclamations according to the Statute of 4 H. 7. and a stranger within five years after the Proclamations enter in the right of the Disseisee without the privity or consent of the Disseisee that this shall not avoid the Bar of the Fine unlesse that he assent to it within the five years for the words of the Statute are so that they pursue their Title Claim or Interest by way of Action or lawfull Entry within five years c. and that which is done by another without their assent is not a pursuing by them according to the intent of the Statute for otherwise by such means against the will of the Disseisee every stranger may avoid such a Fine which was not the intent of the Statute Mountague versus Jeoffreys and others 3. IN Trespasse by Edward Mountague Plaintiff against Richard Jeoffreys and others Defendants for a Trespasse done in certain Lands called Graveland in Hailsham in the County of Sussex the Case upon a special Verdict was thus Sir John Jeoffreys late chief Baron bing seised in his Demesn as of Fee amongst others of the said Land called Graveland having Issue but one only Daughter by his Will in writing devised all his Land of which he was seised in fee except the said Graveland to his said Daughter for 21. years c. and the said Land called Graveland which was then in Lease for divers years to one Nicholas Cobb which years at the time of the death of the said Sir John Geoffreys continued he devised to the said Richard Jeoffreys his Brother and his Heirs and by the same Will he disposed divers Legacies of his Chattels and the Remainder he gave to his said Daughter and made her Executrix of his said Will after which the first Wife of the said Sir John Jeoffreys being dead he covenanted with Mr. George Goring to take the Daughter of the said George to Wife and covenanted with the said George amongst other Lands to assure the said Land called Graveland to the said George Goring and Richard Jeoffreys and their Heirs to the use of the said Sir John Jeoffreys and Mary Goring Daughter of the said George and the Heirs of the said Sir John Jeoffreys by a certain day before which day the marriage being had the said Sir Io Ieoffreys made a Deed and sealed it and delivered it containing a Feoffment of the said Land called Graveland amongst others to the said George Goring and Richard Ieoffreys and their Heirs to the Uses aforesaid in performance of the said Covenants with a Warrant of Attorney to make Livery accordingly and the Attorney made Livery in other parts of the Land and not in Graveland and this was in the name of all the Lands compriâ—â—d in the Deed and the said Nicholas Cobb never attorned to this Deed After which Sir Iohn Ieoffreys interlined in the said Will that the said Mary then his Wife should be joynt Executrix with his Daughter And in the Legacy of the rest of his Goods c. he interlin'd the said Mary his Wife to be Joynt-tenant with his said Daughter without other publication therof and afterward the saâ—d Sir Iohn died the said Daughter being his Heir who took to Husband the said Edward Mountague 4. IN Trespasse the Plaintiff supposeth the Trespasse to be done in the breaking of his House and Close in such a Town the Defendant justifies in a House and Close in the same Town and shews which to put the Plaintiff to his new Assignment to which the Plaintiff replied that the House and Close of which he complains is such a House and gives it a speciall name upon which the Defendant demurs and adjudged that the Plaintiff take nothing by his Writ for albeit a House may have a Curtilage which passeth by the name of a Messuage with the Appurtenances yet this shall not be in this case for by the Bar the Plaintiff is bound to make a speciall demonstration in what Messuage and what Close he supposeth the Trespasse to be done as to say that the House hath a Curtilage the which he broke and
Saint Michael next ensuing rendring the ancient Rent and 25. Octob. 21. Eliz they did let the same Messuage to the same Standish for twenty years from the Feast of Saint Michaeâ— then next ensuing rendring also the ancient Rent and 31 August 30. Eliz. The President and Schollers made a new Lease of the same Messuage to Sir George Carew Knight for twenty years from making of the Lease rendring the ancient Rent which Lease was conveyed by mean Assignments to the Plaintiff upon which the Action was brought against the sayd Trafford which had the Interest of the sayd Standish by mean Assignments Popham said that Ipso facto upon the last Lease made and annexed by Standish the first Leass was determined and gone for this last contract dissolves the first when the one and the other cannot stand together as they cannot here because the one intermix with the other and so was the opinion in the Common Bench about 1 Eliz. in the case of the Abby of Barking of which I have seen a Report And here Standish before Michaelmas next after the second Lease made to him could not grant over his first term to be good to the Grantee for if this should be the second term shall not be good to Standish but for the remnant of the years after the first term finished which cannot be because it standeth in the power of the Grantor with the assent and acceptance of the Grantee to make the second Grant good for the whole term to wit from Michaelmas and this cannot be but by a determination in Law of the first term immediatly which is made by his own acceptance and therefore a prejudice to none but himself and Volenti non fit injuria and the first Term cannot have his continuance untill Mich. but is gone presently by the acceptance of the second Lease in the whole for the first contract which was entyre cannot be so dissolved in part but in the whole as to that which the party hath and therefore the first Term as the case is here is gone in the whole to which Clench and Gaudy agreed And if so then this last Lease to Standish was but as a Lease made to begin at a time to come which is made good by the Stat. of 14 Eliz. if it do not exceed the time of 40 years from the making of the Lease for the purpose of this Act was that Colledges and the like shall not make Grants in Reversion albeit it be for a year and the reason was because that by such Grants in Reversion they shall be excluded to have their Rent of the particular Tenants for the time And therfore in the case of the Countesse of Sussex who had a Ioynture assured to her for her life by Act of Parliament with a Provise that the Earle her Husband might demise it for one and twenty yeares rendring the usuall Rent where the sayd Earle had made a Lease for one and twentie yeares according to the Statute within a yeare before the end of the same Lease the said Earle made a new Lease of the same Land to Wroth his Servant for one and twentie yeares to begin after the end of the former Lease rendring the usuall Rent and died the said Countesse avoided this last Lease by Iudgement given in this Court because it shall be intended to be a Lease in Possession which he ought to make by the Proviso from the time of the making of it otherwise by such perverse construction the true intent of the Statute shall be utterly defrauded But here to make a Lease for twentie yeares to one in Possession and to make another Lease to another for twentie yeares to begin after the end of the former Lease is good because that the one and the other do not exceed the fortie yeares comprised in the Statute And the Iustices of the Common Bench the same day at Sergeants Inn agreed to the opinion of Popham for the determination of the whole first Term by the taking of the second Term by Standish Ward versus Downing 2. IN an Ejectione firmae brought by Miles Word against Robert Downing the case was thus Oâ—e Robert Brown was seised of certain Lands in in the County of Norfolk in his Demesne as of Fee which were of the nature of Gavelkinâ— and had Issue George his eldest Son William his middlemost Son and Thomas his youngest Son and being so seised 6 Decem. 1559. made his Testament in writing by which he devised the sayd Tenements in these words Item I give unto Alice my wife the use and occupation of all my Houses and Lands as well free as copy-hold during her naturall life Item I will that George my Son shall have after the decease of his Mother all those my Houses and Lands wherof the use was given to his sayd Mother for the term of her life To have and to hold to him and his Heirs for ever and if the sayd George dye without Issue of his body lawfully begotten then I will my sayd Lands shall in like manner remain unto William my Son and his Heirs for ever And I will that all such money as shall be payd of any Legacy by the sayd George shall be allowed by the sayd William to whom the sayd George shall appoint Item I will that if the sayd George and William depart the world before they have Issue of their bodies lawfully Then I will that all my sayd Houses and Lands shall remain unto Thomas my Son and to his Heirs for ever Item That if the sayd George shall enjoy my sayd Houses and Lands then I will the sayd George shall pay out of the sayd Lands to William and Thomas his Brother 26 l. 13 s. 4 d. that is to say at his first entry into the sayd Lands to pay unto the sayd William his Brother 40 s. and so to pay yearly untill the summ of 13 l 6 s. 8 d. be fully answered and payd and then immediatly to pay unto Thomas his Brother 13 l 6 s. 8 d. to be payd unto the sayd Thomas when the sayd William shall be fully answered by 40 s. a year in like proportion as is aforesayd And if my sayd Son George shâ—ll refuse to pay unto William and Thomas his Brother the summs of 26 l 13 s. 4 d in manner and form as is before limitted Then I will that all my Houses Lands and Tenements with the Appurtenances remain to Willâ—am my Son and his Heirs for ever paying therfore 26 l. 13 s. 4 d. viz. 13 l. 6 s. 8 d. to George my Son and 13 l. 6 s. 8 d. to Thomas my Son in such manner and sort as the sayd George shall pay if he should enjoy the sayd Lands And if it fortune the sayd William to enjoy the sayd Lands then the sayd William shâ—ll pay unto Thomas his Brother the whole summ of 26 l. 13 s. 4 d. as is â—foresayd After which the sayd Robert dyed seised of the sâ—yd Tenements in
shall so descend or come to John without any act or thing done or to be done by him to the contrary wherby also it fully appeareth that the assurance of the said John shall stand for all this Land upon the Covenant and not upon any use which was to be altered or changed by it But if an Vse may change by the Mannor upon the consideration yet it shall not change to the said John or his Issues untill the death of the said Sir Francis without Issue Male because that untill that happen if the said John had been living he had not had any Vse because it is that he shall have the Land then if he be then living and if it shall not be in him untill this time it shall not be in his Son untill Sir Francis be dead without Issue for it is if the said John or any Issue Male of his body c. be then living then it shall descend come or remain c. so that it doth not come to them untill it may appear whether the said John or any Issue Male of his body upon the body of the said Margaret be in rerum natura when Sir Francis shall be dead without Issue Male and therfore it yet remains upon a contingent whether the use shall be to the Heirs Males of the body of the said John if it shall be said that it is an Vse and therfore in the mean time the entire Fee-simple remains in Sir Francis not yet changed but for the Estate tail it self in himself if any change shall be as appeareth before that it shall not be and therfore by the attainder of the said Sir Francis the whole Fee-simple is now all forfeited to the Queen before that the use may be to the Heirs Males of the body of the said John And the Queen shall not come to this Land in any privity by the said Sir Francis but in the Post by the Escheat and therfore the possession of the Queen now or of her Patentee shall never be changed with this Vse which shall never be carried out of any other possession but such which remaineth in privity untill the use is to come in Esse no more now then as it might at common Law before the Statute of Vses 27 H. 8. And this as to the future Vse was the opinion of Popham and some other of the Iustices And nota 21 H. 7. plito 30. If a man covenant in consideration of the Marriage of his Son that immediatly after his death his Land shall evert remain or descend to his Son to him and the Heirs of his body or to him and his Heirs for ever that this is but a bare Covenant and doth not change any Vse And what diversity then is there in the case of Sir Francis Englefield who covenants that it shall descend or remain in possession or revert And as it seems the great difficulty which was in the case of Sir Robert Constable which was put by Gerard Attorney-generall 6 Eliz. and it appeareth in Dyer 1. Mar. was because that the Covenant was that it shall be to the Son in possession or use which for the incertainty in as much as it was in them to leave the one or the other or perhaps the Estate of their Land was such that part was in possession and part in use and therfore according to the intent taken rather for a Covenant then for matter sufficient to change the use But it was so that it was never helped by any right which he had but by the grace of the Queen he enjoyed it Easter Term 35 Eliz. Crocker and York versus Dormer 1. UPon a Recovery had by John Crocker and George York against Geffrey Dormer in a Writ of Entry in the Post of the Mannor of Farningho with the Appurtenances and of 6 Messuages 6 Cottages c. in Farningho and of a yearly Rent or pension of 4 Marks issuing out of the Church or Rectory of Farningho and of the Advowson of the Church of Farningho in the County of Northampton William Dormer Son and Heir of the said Geffrey brought a Writ of Error and assigned diverse Errors 1. Because that â—uch a form of Writ doth not lye of an Advowson but only a Right of Advowson Darrein presentment and Quare impedit 2. Because he demands the Advowson of the Rectory and also a Rent issuing out of the same Rectory 3. Because the Demand for the Rent is in the Disjunctive to wit a Rent or a Pension 4. Because it is a pension wheras a Pension is not sutable in our Law but in the Spirituall Court To which Gawdy said that there is a great diversity between a common Recovery which is an assurance between parties and a Recovery which is upon Title for a common Recovery is to an Vse to wit to the use of him against whom it is had if no other use can be averred and therfore as to the Vse it is to be guided according to the intent of the parties and by a common Recovery had against Tenant for life he in the Reversion if he be not party or privy to it may enter for a forfeiture as it was adjudged very lately in the Exchequer by the advice of all the Iustices in the case of a Recovery had against Sir William Petham Knight and in all these things it is otherwise in case of a Recovery upon Title and therfore in as much as this common Recovery is but a common Assurance between parties and is alwaies by assent between parties to the end that they may make assurance from one to another there shall be and alwaies hath been a contrary exposition to a Recovery which is by pretence of Title and it hath been common to put in such Recoveries Advowsons Commons Warrens and the like and yet alwaies allowed And if this shall be now drawn in question infinite Assurances shall by this be indangered which the Law will not suffer and therfore the demand of an Advowson and Pension in the Writ of Entry makes not the Writ vitious as it shall do in another Writ of Entry founded upon a Title and not upon an Assurance And as to that that the Rent and the Advowson also is demanded this is good because the Advowson is another thing then the Rectory it self out of which the Rent is demanded to be issuing And for the disjunctive demand of the Rent or Pension it makes no matter in this case because it is a common Recovery in which such a precise form is not necessary to be used as in other Writs and also a Pension issuing out of a Rectory is the same with the rent To which Clench and Fennor agreed in all but Popham moved that the greatest difficulty in this case is the demand made to the disjunctive to wit of the annuall Rent or Pension for if a Pension issuing out of a Rectory shall be said to be a thing meerly spirituall and not to be demanded by our
Law or meerly of another nature then the Rent it self with which it is conjoyned by the word or then it is erroneous for albeit a common Recovery be now a common assurance of Land past by the assent of parties and therfore hath another conservation then that which passeth by pretence of Title yet we are not to omit grosse absurdities in such common Recoveries as to demand an acre of Land or Wood in the Mannor of Sale or Dale or black acre or white acre these are not good in common Recoveries because there is no certainty in the demand which of them the party is to recover which kind of absurdity is not to be admitted in these Recoveries for this is but a meer ignorance in the Law and the Ministers of it And to this Gawdy and the other Justices agreed but they sayd that a Pension issuing and a Rent shall be taken for all one for if a man grant a Pension of 20 s. a year issuing out of the Mannor of D. or of the Rectory of S these are Rents issuing out of them and if the demand had been of an annuall Rent or Annuity of 20 s. a year issuing out of the Rectory this had been good To which Popham agreed and yet sayd if it had been an annuall Rent of 20 s. c. or of an Annuity of 20 s. it had nof been good because that the word issuing is not referred to the Annuity but to the Rent only and therfore are meerly generall and not as the same but if the demand were of an annuity rent or payment of 20 s. issuing out of a Rectory it is good for this is but one and the same Then it was alledged that notwithstanding that which appears to the Court it cannot be taken that this was a common Recovery for upon the assignment of the Error it is not averred that it was a common Recovery to which Popham said that common Recoveries are such common Assurances to all persons that are well known to all and especially to us that they need not be averred for they are known by certain Marks to wit by the voluntary entry into the Warranty the common Voucher and the like And at last they all agreed that the Iudgment shall be affirmed 2. In Wast by Thomas Haydock against Richard Warnford the case was this One Michael Dennis was seised in his Demesne as of Fee of the third part of a Messuage and of certain Lands in Bury Blunsden in the County of Wilts and being so seised the last of April 9 â—liz demised them to Susan Warnford for 41. years from the Feast of S. Michael the Arch-angel then next ensuing who assigned this over to Richard Warnford after which the said Michael Dennis by bargain and sale enrolled according to the Statute conveyed the Reversion to John Simborn Esquire and his Heirs the said Iohn being then seised of another third part therof in his Demesne as of Fee after which to wit the first day of Iune 17 Eliz. the said Iohn Simborn demised the said third part which was his before his said purchase to the said Richard Warnford for 21 years then next ensuing and afterwards the said Iohn Simborn died seised of the Reversion of the said two parts and this descended to Barnaby Simborn his Son and next Heir who the 20 of Iune 28 Eliz. by bargain and sale enrolled according to the Statute conveyed be Reversion of the said two parts to the said Thomas Haydock and his Heirs after which the said Richard Warnford committed Wast in the said house wherupon the said Thomas Haydock brought an action of Wast against him according to the said two severall Leases and assigned the Wast in suffering the Hall of the price of 20 l. a Kitchin of the price of 20 l. and so of other things to be uncovered wherby the great Timber of them became rotten and so became ruinous to the disinherison of the Plaintiff and upon a Nihil dicit a Writ was awarded to enquire of Damages in which it was comprised that the Sheriff shall go to the place wasted and there enquire of the said Damages who returned an inquisition taken therof at Bury Blunsden without making mention that he went to the place wasted and that it was taken there wherupon Iudgment was given in the common Bench that the said Plaintiff shall recover his Seisin against the Defendant of the said places wasted with their Appurtenances Per visum Iurator Inquisitionis predict damna sua occasione vastâ— in eisdem locis in triplo secunâ—uÌ„ formam statuti c. And upon this a Writ of Error was brought in the Kings Bench and there by all the Iustices it was agreed that it was but Surplusage to comprehend in the Writ of enquiry of Damages that the Sheriff shall go to the place wasted and there enquire of the Damages in as much as by the not denying therof the Wast is acknowledged and therfore he need not go to the place wasted But where a Writ is awarded to enquire of the Wast upon default made at the grand Distresse there by the Statute of West 2. cap. 24. the Sheriff ought to go in person to the place Wasted and enquire of the Wast done and therfore in that case it is needfull to have the clause in it that the Sheriff shall go to the place wasted and there enquire of it for by the view the Wast may be the better known to them but where the Wast is acknowledged as here that clause need not and albeit it be comprehended in the Writ yet the Sheriff is not therby bound to go to the place wasted and to enquire there but he may do it at any place within his Bayliwick where he will and therfore it is no error in this point And they agreed also that the Wast is well assigned in the entire Hall c. although the Action were brought but upon the Demises of two third parts of it and it cannot be done in these parts but that it is done in the whole and also it cannot be done in the whole but that it is also done in the three parts but yet the doing therof is not to the disinheritance of the Plaintiff but in these two third parts and therfore no error in this manner of assigning of the Wast And they also agreed that the Action is well brought upon these severall Demises because neither the interest of the Term nor of the Inheritance was severed nor divided to severall persons at the time of the doing of the Wast but the two Terms in the one to wit in Warnford and the Inheritance of these immediatly in the other to wit in Haydock And by Popham also the thing in which the Wast is assigned is one and the same thing and not diverse to wit a Messuage and therfore by Brudnell and Pollard 14 H. 8. 10. if severall Demises are made of one and the same Messuage by one and the same person as
to the use of Dennis May his Son and Heir apparant and his Heirs upon condition that the said Dennis and his Heirs should pay to one Petronell Martin for his life an annuall Rent of 10 l. which the said Thomas had before granted to the said Petronell to begin upon the death of the said Thomas And upon condition also that the said Thomas upon the payment of 10 s. by him to the said Feoffees or any of them c. might re-enter After which the said Thomas May and Dennis by their Deed dated 30. May 19 Eliz. granted a Rent-charge out of the said Mannor of 20 l. a year to one Anne May for her life after which the said Thomas May paid the said 10 s. to the said Feoffees in performance of the Condition aforesaid and therupon re-entred into the Land and enfeoffed a stranger And whether by this the Rent were defeated was the question And it was mooved by Coke Attorney-generall that it was not but that in respect that he joyned in the part it shall enure against the said Thomas by way of confirmation which shall bind him as well against this matter of Condition as it shall do against any Right which the said Thomas otherwise had And therfoâ—e by Littleton If a Disseisor make a Lease for years or grant a Rent-charge and the Disseisor confirm them and afterwards re-enters albeit Lit. there makes a Quaere of it yet Cook said That the Disseisor should not avoid the Charge or Lease which was granted by the whole Court And by him the opinion is in P. 11. H. 7. 21. If Tenant in Tail makes a Feoffment to his own use upon Condition and afterwards is bound in a Statute upon which Execution is sued and afterwards he re-enter for the Condition broken he shall not avoid the Execution no more the Rent here Fennor agreed with Cook and said further That in as much as every one who hath Title and Interest have joyned in the Grant it remains perpetually good And therfore if a Parson at Common Law had granted a Rent-charge out of his Rectory being confirmed by the Patron and Ordinary it shall be good in perpetuity and yet the Parson alone could not have charged it and the Patron and Ordinary have no Interest to charge it but in as much as all who have to intermeddle therin are parties to it or have given their assent to it it sufficeth Gawdy was of the same opinion and said That there is no Land but by some means or other it might be charged and therfore if Tenant for life grant a Rent-charge in Fee and he in the Reversion confirm the Grant per Littleton the Grant is good in property so here To which Clench also assented but Popham said That by the entry for the Condition the Charge is defeated And therfore we are to consider upon the ground of Littleton in his Chapter of Confirmation to what effect a Confirmation shall enure and this is to bind the right of him who makes the Confirmation but not to alter the nature of the Estate of him to whom the Confirmation is made And therfore in the case of a grant of a Rent-charge by the Disseisor which is confirmed by the Demisee the reason why the Confirmation shall make this good is because that as the Disseisee hath right to defeat the right and the Estate of the Disseisor by his Regresse in the same manner hath he right therby to avoid a Charge or a Lease granted by the Disseisor which Right for the time may be bound by his confirmation But when a man hath an Estate upon condition although the Feoffor or his Heirs confirm this Estate yet by this the Estate is not altered as to the Condition but it alwaies remaineth and therfore Nihil operatur by such a confirmation to prejudice the Condition And so there is a great diversity when hewho confirmeth hath right to the Land and where but a Condition in the Land And by him if a Feoffee upon condition make a Feoffment over or a Lease for life or years every one of these have their Estates subject to the Condition and therfore by a Confirmation made to them none can be excluded from the Condition And the same reason is in case of a Rent granted by a Feoffor upon Condition it is also subject to the Condition and therfore not excluded from it by the Confirmation as it shall be in case of a Right And to prove this diversity suppose there be Grand-father Father and Son the Father disseise the Grand-father and makes a Feoffment upon Condition and dies after which the Grand-father dies now the Son confirms the Estate of the Feoffee by this he hath excluded himself from the Right which descended to him by his Grand-father but not to the Condition which descended to him from his Father And of this opinion were Anderson and other Iustices at Serjeants-Inn in Fleetstreet for the principall Case upon the Case moved there by Popham this Term And as the case is it would have made a good question upon the Statute of Fraudulent Conveyances if the Avowry had been made as by the grant of Thomas May in as much as the Estate made to the use of Dennis was defeasable at the pleasure of the said Thomas in as much as it was made by the Tenant of the Land as well as by him who made the Conveyance which is to be judged fraudulent upon the Statute But this as the pleading was cannot come in question in this case And afterwards by the opinion of other three Iudges Iudgment was given that the Grant should bind the said Thomas May and his Feoffees after him notwithstanding his regresse made by the Condition in as much as the Grant of the said Thomas shall enure to the Grantee by way of confirmation And by Gawdy If a Feoffee upon Condition make a Feoffment over and the first Feoffor confirm the Estate of the last Feoffee he shall hold the Land discharged of the Condition because his Feoffment was made absolutely without any Condition expressed in his Feoffment But Popham denied this as it appeareth by Littleton Tit. Descents because he hath his Estate subject to the same Condition and in the same manner as his Feoffor hath it into whomsoever hands it hapneth to come and therfore the Confirmation shall not discharge the Condition but is only to bind the right of him who made it in the possession of him to whom it is made but not upon Condition Morgans Case 7. RObert Morgan Esquire being seised in his Demesne as of Fee of certain Lands called Wanster Tenements in Socage having Issue John his eldest Son Christopher his second Son and William his youngest Son by his last Will in writing demised to the said Christopher and William thus viz. Ioyntly and severally for their lives so that neither of them stall alienate the Lands and if they do that they shall remain to his Heirs Robert the Father
dies and afterwards John his Son and Heir dies without Issue the reversion by this descends to the said Christopher who dies leaving Issue And upon this Case made in the Court of Wards the two chief Iustices Popham and Anderson agreed first That upon the devise and death of the Father the said Christopher and William were Joynt-tenants of the Land and not Tenants in Common notwithstanding the word severally because it is coupled with the said word joyntly But yet they agreed also that by the descent from John to Christopher the Fee-simple was executed in the said Christopher for the Moyety in the same Mannor as if he had purchased the Reversion of the whole or of this Moyety and that it is not like to the Case where Land is given and to the Heirs of one of them in which case for the benefit of the Survivorship it is not executed to divide the Ioynture because the Estates are made at one and the same time together and therfore not like to the case where the Inheritance cometh to the particular Estate by severall and divided means And a Decree was made accordingly Trin. 36. Eliz. In the Kings Bench. 1. IT was agreed by all the Iustices and Barons of the Exchequer upon an Assembly made at Serjeants-Inn after search made for the ancient Presidents and upon good deliberation taken If a man have two houses and inhabit somtimes in one and somtimes in the other if that House in which he doth not then inhabity be broken in the night to the intent to steal the Goods then being in his house that this is Burglary although no person bee then in the House and that now by the new Statute made such an Offender shall not have his Clergy for before the Statutes were made which take away Clergy in case of Burglary where any person was put in fear no mention was made in the Inditements of Burglary that any person was in the House But it was generall that the house of such a one Noctanter fregit and such Goods then there Felonice cepit And the breaking of a Church in the night to steal the Goods there is Burglary although no person be in it because this is the place to keep the Goods of the Parish And in the same manner the house of every one is the proper place to preserve his Goods although no person be there And that the Law was alwaies so it is to be collected by the course of the Statutes therof made for first the Statute of 23 H. 8. doth not take Clergy from any in case of Burglary unlesse some of the same Family be in the house and put in fear And in 5 Eliz. 6. The Offendor shall be ousted of his Clergy if any of the Family be in the house be they sleeping or waking And these Statutes were the cause that it was used of late time to put in the Inditements of Burglary that some person of the Family was then in the house to put them from their Clergy But this doth not prove that it shall not be Burglary but where some person was in the house and by 18 Eliz. Clergy is taken away in all cases of Burglary generally without making mention of any person to be there which enforce the resolution aforesaid and according to it they all agreed hereafter to put it in Execution Finch versus Riseley 2. IN this Term the case betweeen Finch and Riseley was in question before all the Iustices and Barons for this assembled at Serjeants-Inn in Fleetstreet where after Arguments heard by the Councell of the parties upon this point only If the Queen make a Lease for years rendring Rent with a Proviso that the Rent be not paid at the day limited that the Lease shall cease without making mention that it was to be paid at the receit whether the Lease shall cease upon the default of payment before Office found therof And by Periam and some of the Iustices the Lease stall not cease untill an Office be found of the default because it is a matter in Fait which determines it to wit the not-payment And by Gawdy it shall be taken as if it had been for the not-payment that the Proviso had been that the Lease shall be forfeited In which case it is not detennined untill Re-entry made for the forfeiture which in the Queens case ought alwaies to be by Office which countervails the re-entry of a common person As where the Queen makes a Lease rendring Rent and for default of payment a Re-entry albeit the Rent be not paid yet untill Office found therof the Rent continues Popham Anderson and the greater part of the Iustices and Barons resolved that it was cleer in this case that Ipso facto upon the default of payment the Lease was determined according to the very purport of the contract beyond which it cannot have any beeing and therfore there needs no Office in the case But where it is that it shall be forfeited or that he shall re-enter there untill advantage taken of the forfeiture in the one case or untill re-entry made in the other case the Term alwaies continues by the contract And where in the case of a common person there is need of a re-entry to undo the Estate there in the case of the King there needs an Office to determine the Estate for an Office in the Kings case countervails an entry for the King in person cannot make the entry And upon this resolution of the greater part of the Iustices in Mich. Term 31 32 Eliz. the same case was in question in the Office of Pleas in the Exchequer between the said Moil Finch Plaintiff and Thomas Throgmorton and others Defendants and there adjudged by Manwood late chief Baron and all the other Barons unanimously after long argument at the Bar and Bench that the Lease was void upon default of payment of the Rent according to the Proviso of the Lease and this immediatly without Office for the reasens before remembred upon which Iudgment was given a Writ of Error was brought before the Lord Keeper of the great Seal and the Lord Treasurer of England where it long depended and after many arguments the Iudgment given in the Exchequer by the advice of Popham and Anderson was affirmed and that upon this reason for the Proviso shall be taken to be a limitation to determine the Estate and not a Condition to undo the Estate which cannot be defeated in case of a Condition but by entry in case of a common person and but by Office which countervails an entry in the case of the Queen And this Iudgment was so affirmed in Mich. Term 36 37 Eliz. Smiths Case 3 IT was found by Diem clausit extremum after the death of Richard Smith that in consideration of a marriage to be had between Margaret Smith and William Littleton a younger Son to Sir John Littleton Knight and of 1300. marks paid by the said Sir John to the said
And if this doth not passe nothing can passe which was in the Tenure of the said Brown because he had nothing in the places comprised in the Patent But it was agreed by all the Court that it shall not passe by the said Patent in this case for the word illa is to be restraind by that which follows in the Patent where it depends upon a generality as here and that it refers but to that in Wells as the liberty of that which was parcell of the possessions of the said Hospitall and in the Tenure of the said John Brown And if it were not of these possessions or not in Wells c. or not in the Tenure of the said John Brown it shall not passe for the intent of the King in this case shall not be wrested according to the particular or the value which are things collaterall to the Patent but according to his intent comprised in or to be collected by the Patent it self And Popham said that by Grant of omnia terras Tenementa Hereditamenta sua in case of the Queen nothing passe if it be not restraind to a certainty as in such a Town or late parcell of the Possessions of such a one or of such an Abbey or the like in which cases it passeth as appeareth by 32 H. 8. in case of the King But if it be Omnia terras tenementa sua vocat D. in the Tenure of such a one and in such a Town and late parcell of the possessions of such a one there albeit the Town or the Tenant of the Land be utterly mistaken or that it be mistaken of what possessions it was it is good for it sufficeth that the thing be well and fully named and the other mistakes shall not hurt the Patent And the word of Ex certa scientia c. will nof help the Patent in the principall case And the case of 29 E. 3. is not to be compared to this case for it was thus The King granted the Advowson of the Priory of Mountague the Prior being an Alien to the Earl of Salisbury and his Heirs for ever And also the keeping and Farm with all the Appurtenances and Profits of the said Priory which he himself had curing the War with the keeping of certain Cellâ— belonging to the said Priory the said Earl died William Earl of Salisbury being his Son and Heir and within age wherupon the King reciting that he had seised the Earls Lands into his hands after his death for the Nonage of the Heir he granted to the said Earl all his Advowsons of all the Churches which were his Fathers and all the Advowsons of the Churches which belong to the Prior of Mountague to hold untill the full age of the said Heir quas nuper concessit prefat Comiti patri c. In which case although the King had not granted the Advowsons to the said Earl the Father aforesaid by the former Patent because no mention was of the Advowsons therof yet they passe by this Patent notwithstanding that which follows after to wit and which he granted to the Father of the Grantee But there it is by a Sentence distinct and not fully depending upon the former words as here to wit Omnia illa Messuagia c in Wells in the Tenure of the party parcell of the Possessions of such an Hospitall or Priory Quod nota and the difference And because the Defendant claimed under the first Patent and the Plaintiff by the latter Patent it was agreed that the Plaintiff should recover Which you may see in the Kings Bench. Harrey versus Farcy 7. IN an Ejectione firmae brought by Richard Harrey Plaintiff for the Moyety of certain Tenements in North-petherton in the County of Somerset upon a Lease made by Robert Bret against Humfrey Farcy Defendant upon not guilty and a speciall Verdict found the case appeared to be this to wit That Robert Mallet Esquire was seised of the said Tenements in his Demesne as of Fee and so seised demised them to John Clark and Elianor Middleton for term of their lives and of the longer liver of them after which the said Tenements amongst others were assured by Fine to certain persons and their Heirs to the use of the said Robert Mallet for term of his life and after his decease to the use of John Mallet his Son and Heir of his body and for default of such Issue to the use of the right Heirs of the aid Robert Mallet After which the said Robert Mallet having Issue the said John Mallet Christian and Elianor Mallet died the said John Mallet then being within age and upon Office found in the County of Devon for other Lands holden of the Queen in Capite by Knights Service was for it in Ward to the Queen Afterwards the said John Mallet died without Issue during his Nonage and the Lands aforesaid therby descended to his said two Sisters to whom also descended other Lands in the County of Devon holden of the Queen in Capite by Knights Service conveyed also by the same Fine in like manner as the Lands in North Petherton the said Christian then being of the age of 22. years and the said Elianor of the age of 15. yeares upon which the said Christian and Elianor 12. Novemb. 31 Eliz. tendred their Livery before the Master of the Wards and before the Livery sued the said Christian took the said Robert Bret to husband and the said Elianor took to husband one Arthur Ackland after which in the Utas of the Purification of our Lady 32 Eliz. the said Robert Bret and Christian his wife levied a Fine of the said Tenements in North-petherton amongst others to George Bret and John Pecksey Sur conusance de droit come ceo que ils ont de lour done by the name of the Moyety of the Mannor of North petherton c. with warranty against them and the Heirs of the said Christian against all men who tendred it by the same Fine to the said Robert Bret and Christian and the Heirs Males of their bodies the remainder to the Heirs Males of the body of the said Christian the remainder over to the right Heirs of the said Robert Bret which Fine was engrossed the same Term of S. Hillary and the first Proclamation was made the 12th day of February in the same Term the second the first day of June in Easter Term 32 Eliz. The third the 8th day of July in Trinity Term next And the fourth Proclamation was made the 4th day of October in Michaelmas Term next after And the said Christian died without Issue of her body The 9th day of February 32 Eliz. between the hours of 3. 7. in the afternoon of the same day And the 22. of March 32 Eliz. the said Robert Bret by his writing indented dated the same day and year for a certain summ of money to him paid by the Queen bargained and sold gave and granted the said Teuements to the
Grantor at his Election provided then afterwards that he shall charge his person is not good Causa patet And all agreed that upon a Rent granted upon equality of partition or for allowance of Dower or for recompence of a Title an Annuity doth not lye because it is in satisfaction of a thing reall and therfore shall not fall to a matter personall but alwaies remains of the same nature as the thing for which it is given And afterwards the same Term Iudgment was given in the Common Bench that the Plaintiff shall recover which is entred c. And in the same case Clark vouched that it was reported by Benloes in his Book of Reports where a Rent was granted out of a Rectory by the Parson who after wards resigned the Parsonage that it was agreed in the Common Pleas in his time that yet a Writ of Annuity lies against the Grantor upon the same Grant to which all who agreed on this part agreed that it was Law Butler versus Baker and Delves 3. IN Trespasse brought by John Butler against Thomas Baker and Thomas See this case in Cookes 3. Report foâ— 25 Delves for breaking his Close parcell of the Mannor of Thoby in the County of Essex upon a speciall Verdict the Case was thus William Barners the Father was seised in his Demesne as of fee of the Mannor of Hinton in the County of Glocester holden of the King by Knights-service in Capite and being so seised after the Marriage had between William his Son and heir apparant and Elizabeth the Daughter of Thomas Eden Esquire in consideration of the same Marriage and for the Joynture of the said Elizabeth assured the said Mannor of Hinton to the use of the said William the Son and Elizabeth his Wife and the Heirs of their two bodies lawfully begotten and died by whose death the Reversion also of the said Mannors descended to the said William the Son whâ—rby he was seised therof accordingly and being so seised and also seised of the Mannor of Thoby in his Demesne as of Fee holden also of the Queen by Knights-servivice in chief and of certain Lands in Fobbing in the said County of Essex which Land in Fobbing with the Mannor of Hinton were the full third part of the value of all the Land of the said William the Son and he made his Will in writing wherby he devised to his said Wife Elizabeth his said Mannor of Thoby for her life in satisfaction of all her Joynture and Dower upon condition that if she take to any other Joynture that then the Devise to her shall be void and after her decease he devised that the said Mannor shall remain to Thomas his Son and the Heirs Males of his body and for default of such Issue the remainder to Thomas brother of the said William for his life the remainder to hir first second and third Son and to the Heirs Males of their bodies and so to every other Issue Male of his body and for default of such Issue the remainder to Leonard Barners his brother and to the Heirs Males of his body the remainder to Richard Barners and the Heirs Males of his body the remainder to the right Heirs of the Devisor William the Son dies having Issue Thomas his Son and Grisell his Daughter Wife to the said Thomas Baker the said Elizabeth by Paroll in pais moved her Estate in the said Mannor of Hinton and after this entred into the said Mannor of Thoby after which the said Elizabeth died and Thomas the Son and Thomas the Uncle died also without Issue Male after which the said Leonard took one Mary to Wife and died having Issue Anthony Barners after which the said Mary took the said John Butler to Husband and after this the said Anthony assigned to the said Mary the said Mannors of Thoby in allowance for all her Dower wherby the said John Butler as in the right of his Wife entred into the said Mannor of Thoby wherby the said Thomas Delves by the commandment of the said Baker entred into the said Close of which the Action is brought as in right oâ— the said Grisell And whether this entry were lawful or not was the question which was argued in the Court in the time of the late Lord Wray and he and Gawdy held strongly that the entry of the said Delves was lawfull but Clench and Fennor held alwaies the contrary wherupon it was adjourned into the Exchequer Chamber But they all agreed that the Waiver made by the said Elizabeth by parole in pais was a sufficient Waiver of her Estate in Hinton and the rather because of the Statute of 27 H 8. cap. 10. the words of which are That if the Joynture be made after the Marriage that then the Wife surviving her Husband may after his death refuse to take such Joynture And now it was moved by Tanfield that Iudgment ought to be given for the Plaintiff for by the Waiver of the Wife the Inheritance of Hinton is now to be said wholly in the Husband ab initio and therfore that with Fobbing being a whole third part of the whole Land which now is to be said to be left to discend to the Heir of the Devisor as to Thoby is good for the whole and if so then no part therof descends to Grisell and therfore the entry of the said Delves in her right is wrongfull Coke Attorney-general to the contrary for he said That it is to no purpose to consider what Estate the Devisor had in the Mannor of Hinton by reason of this Waiver made by his Wife Ex post facto after his death But we are to see what Estate the Devisor had in it in the view of the Law at the time of his death before the Waiver and according to it the Law shall adjudge that he had power to make his Devise by means of the Statute and at this time none can adjudge another Estate in him but joyntly with his wife of which Estate he had no power to make any disposition or to devise it or to leave it for the third part to his Heir for the Statute which is an explanatory Law in this point saies that he ought to be sole seised in such a case And further the Statute of 34 H. 8. at the end is that the Land which descends immediatly from the Devisor shall be taken for the third part and this Land did not descend immediatly for it survived to the Wife untill she waived it and therfore this Land is not to be taken for any third part which the Statute purposed to have been left to the Heir and therfore so much shall be taken from Thoby as with Fobbin shall be a third part to descend wherbâ— Grisell the Heir hath good right yet to part of Thoby and therfore the entry of the said Delves in her right by commandment of her husband not wronfull Periam chief Baron Clench Clark Walmsley and Fennor That now
it was not an immediate descent in Deed but upon the operation of Law which gave Wardship and the like but not to prejudice any third person And he said that although the Queen or other Lord upon eviction of the Land descended or the determination of the Estate therof may resort to Lands devised or assured and take a third part therof yet therby the Devise or Assurance remains effectuall against the Heir but this is by a speciall clause in the Statute of 34 H. 8. which gives it to them but no such remedy is given to the Devisee to help him if his part be abridged or evicted And the words are precise to wit If the part left or assigned to the King or to any Lord at any time during their Interest therin be evicted c. that they shall have so much oâ— the two parts residue as shall make a full third part of the remainder not evicted c. Wherby it appeareth that this is given only for the benefit of the Lords and not of the Heir nor of the Devisee fâ—r if after the Interest of the Queen or other Lord be determined this which was left he evicted from the Heir it shall not be helped against the devise but the Devise remains good to the Devisee against the Heir for the whole Land devised wherby it appeareth that it was the very purport and intent of the Statute that the Devise remain as it was at the time of the death of the Devisor without having regard to that which hapneth Ex post facto unlesse for this point helped by this speciall clause of the Statute and this is for the Lord and his Interest only and for no other And by him also cleerly the Statute which is an explanatory Law shall never be taken by equity in the precise point explained to impugne the point of explanation as here the Statute wills that the Estate of Inheritance comprised in the former Statute shall be explained to be Fee-simple it cannot now by any equity be as to the power to make a Devise which is meerly given by the authority of the Statute said to be of any other Estate then Fee-simple of which a Devise may be made And therfore if Land be given to another and his Heirs for the term of another mans life a Devise cannot be made of this because it is not an Inheritance in Fee-simple but only the limitation of a Free-hold And where the Statute saith having a sole Estate we cannot by any equity that it shall be taken of any joynt Estate as to make any disposition of that which she had in Ioynture and therupon the greater part resolved that Iudgment shall be given against the Plaintiff for the Defendants Southwell versus Ward 4. IN a second deliverance between Richard Southwell Esquire Plaintiff and Miles Ward Avowant by Demurrer upon the Avowry the Case appeared to be this That Iohn Prior of the Church of Saint Faiths in Horsham in the County of Norfolk was seised in his Demesne as of fee in the right of his said Priory of 8. Messuages 300. acres of Land 30. acres of Meadow 60. acres of Pasture and 200. acres of Wood with their Appurtenances in Horsham aforesaid And so seised the said Prior with the assent of his Covent by their Deed indented shewn forth bearing date the first day of Ianuary 13 E. 4. and by licence of the King aforesaid granted to William then the Master of the Hospitall of St. Giles in Norwich and to the Brothers of the same Hospitall and to their Successors 200. Fagots and 200. Focalls called Astle-wood yearly to be taken of all the Lands and Tenements of the said Prior and Covent in Horsham aforesaid by the Servants of the said Prior and Covent and their Successors yearly to be carried to the said Hospitall at the costs and expences of the said Prior and Covent and their Successors at the Feast of St. Michael or 20 s. of lawfull money for them at the election of the said Master and Brethren and their Successors to take yearly in the same Lands and Tenements in Horsham to the use of the poor and infirm persons there being or coming So that if it happen the said Fagots and Focalls or the said 20 â— for them to the said Master and Freres in form aforesaid to be arrear in alâ—o part c. then they may distrain in the said Lands and Tenements and the Distresse detain until they be fully satisfied of the said Fagots and Focals or of the said 20 s. for them as is aforesaid with this Proviso further That if at any one or more times the said Master and Brethren have chosen to have the Fagots and Focals yet at any other time they make the 20 s. for them and although they have taken the 20 s. for them once or oftner yet at any other time they may take the Fagots and Focals themselves and that they may so vary tâ—ties quâ—ties and dâ—strain for them accordingly reasonable notice being given of their Election in form aforesaid And the said Master and Brethren granted by the same Deed to the said Prior and Covent and their Successors that they or others sufficiently warranted by them would give sufficient notice of their election yearly the first Sunday of April in the Church of the said Hospital to some Officer of the said Prior and Covent and their Successors if they send any thither for this cause By force of which Grant the said Master and Brethren were seised of the said yearly rent of the said 200. Fagots and 200. Facals called Astlewood accordingly and so being seised they by their sufficient Writing enrolled of Record in the Chancery in the first year of the late King Ed. 6. gave and granted to the same King the said Hospitall all the Lands Tenements and Hereditaments of the said Hospitall To have and to hold to him and his Heirs and Successors for ever wherby the said King was therof and of the said annuall Rent seised accordingly and so seised the 7. day of May in the same year the said King Edw. by his Letters Patents bearing date the same day and year granted the said Hospitall and the rent of the said Fagots and Focals and other the Premisses to the Major Sheriff Citizens and Commons of the City of Norwich and to their Successors for ever and for 1600. Fagots and 1600. Focals of the said annuall rent of 200. Fagots and 200. Focals being arrear at the Feast of S. Michael the Arch-angel 23 Eliz. the said Ward took the Distresse and made Conusance as Bailiff to the said Major Sheriff c. And it was moved that the Avowry was not good first because it being matter of Election which was granted to the Master and Brethren and their Successors to wit the Fuell or the 20 s. it doth not appear that they ever made any election of the one or the other and untill it appeareth that they have
and not otherwise to wit 100 l. therof in thâ—se words On that day twelvemonth next after the day of his death and the other 100 l. that day twelvemonth next after c. and made the said John Slaning his Executor and afterwards to wit the 8. day of April 25 Eliz died without Issue Male of his body the said Agnes took to Husband one Edmund Marley and upon the 8. day of April 26 Eliz. the said John Slaning paid the first 100 l. to Agnes then being living and upon the 8. and 9. daies of April 27 Eliz. Nicholas Slaning of Plumpton Son and Heir of the said John Slaning who died in the mean time an hour before the Sun set and untill the Sâ—n was set came to the House where the said Edmund and his Wife inhabited in London and tendred the last 100 l. and that neither the said Edmund nor Agnes his Wife were there to receive it but that the said Edmund voluntarily absented himself because he would not receivâ— the 100 l. and that therupon the Wife of the said Edmund died having Issuâ— two Daughters the Lands being holden by Knights-service in Capite and the said Daughters being yet within age and all this being found by Office by the opinions and resolutions of Popham and Anderson and the rest of thâ— Councel of the Court of Wards the said Heirs now in Ward shall have nothing but that which doth not passe by the conveyance to John Fits and his joynt Feoffees which was only that which was in the possessions of Peterfield and Atwill and that the Livery was good of the rest albeit the Attorny did nothing of that which was in Lease notwithstanding the words of the Warrant that they should enter into all and then shall make the Livery And they agreed that the Condition doth not â—ind neither the said John Slaning nor Nicholas his Son because they had not all the Land according to the purport of the Condition which was that he who had all therof should pay the 200 l. wheras here that which was in the possession of Peterfeild and Atwill did not passe to them for want of Attornment for a Condition ought to be taken strictly And further the payment was referred by the Indenture to be according to the Will or by the Will and the 200 l. was devised as a Legacy which ought to be paid but upon demand and not at the peril of the Executor and therfore the nature of the payment of it is altered by the intent of the Will and being not demanded there is no default in the said Nicholas Slaning of Plumpton to prejudice him of his Land if it had been a Condition for then it shall be but a Condition to be paid according to the nature of a Legacy upon demand and not at the peril of the party And whether the word twelve-month shall be taken for a year or twelve months according to 28. daies to the month as it shall be of eight or twelve months or the like And they agreed that in this case it shall be taken for the whole year according to the common and usuall speech amongst men in such a case and according to this opinion Wray who is dead Anderson and Gawdy made their Certificate to the late Chancellor Sir Christopher Hatton in the same case then being in the Chancery and a Decree was made accordingly And many were of opinion that by his absence by such fraud he shall not take advantage of the Condition being a thing done on purpose if it had been to be performed at his peril Kellies Case WIlliam Kelly and Thomasine his Wife were seised of certain Lands in S. Eth in the County of Cornwall called Karkian to them and to the Heirs of their two bodies between them lawfully begotten by the Gift of one William Dowmand Father of the said Thomasine 11 H. 8. a long time after which Gift to wit 25 H. 8. A Fine Sur conusance de droit come ceo que il ad per was levied by Peter Dowmand Son and Heir of the said William Dowmand to William Kelley of the Mannor of Dowmand and of a 100. acres of Land 300 acres of Meadow 300. acres of Pasture and a 1000. acres of Furzse and Heath in Dowmand S. Eth. Trevile and divers other Towns named in the Fine who rendred the same back again to the said Peter in tail with diverse Remainders over and this Fine was with proclamations according to the Statute after which the possession of Karkian continued with Kelly and his Heirs according to the first Intail and the Mannor of Dowmand and the Remainder of the Lands in these Towns which were to the said Peter Dowmand to him and his Heirs according to the render untill nine years past that by Nisi prius in the Country upon the opinion of Manwood late chief Baron the Land called Karkian was recovered against the Heir of the said William Kelly by virtue of the said Fine and Render because all the Land which the said Peter Dowmand and the said William Kelly also had in all these Towns named in the Fine were not sufficient to supply the Contents of acres comprised in the said Fine And what the Law was in this case was referred to the chief Iustices the Master of the Rolls Egerton and the now chief Baron â—ut of the Chancery who all agreed upon all this matter appearing that nothing shall be said to be rendred but that which indeed was given by the Fine and Karkian does not passe to the said William Kelly by the Fine for as to it the Fine is but as a release of Peter to him and therfore shall not be said to be rendred to the said Peter by the Fine where no matter appeareth wherby it may appear that it was the intent of the parties that this shall be rendred And therfore Popham said that by so many Fines which have been levied in such a manner and to such who have Land in the same Towns where the Conusance hath been considering that alwaies more Land is comprised in Fines by number of acres then men have or is intended to passe by them at some time or in some age it would have come in question if the Law had been taken as Manwood took it but in all such cases the Possession hath alwaies gone otherwise which shews how the Law hath been alwaies taken in such cases And therfore if a man be to passe his Mannor of D. to another by Fine Executory and he levy the Fine to him by the name of the Mannor of D. and of so many acres of Land in D. and S. being the Towns in which the Mannor lies after which the Conuzor purchaseth other Lands in these Towns the Fine before the Statute of Vses shall not be executed of these Lands purchased after the Conusance and the Fine shall work to these which he had power and intent to passe and no further And it seemed to them that an