as other Writs and Praecipes are returnable in any Court but the Queen her self from whom originally it came shall receive it and also the Message upon it and she her self in such case is Iudge of the contempt and no Record of that Privy Seal doth remain in any Court but the Queen her self shall keep it and then when the Queen is informed of the contempt she makes a Warrant somtimes to the Chancellor to award a Commission somtimes to the Treasurer and Barons of the Exchequer to the same purpose to seize the Lands and that Warrant is signed with the Seal manual of the Queen and the Queen may certifie and set down the cause of such seizure in such Warrant and no other Certificate is made by the Queen and the Queen may certify the same Commission by word of mouth and if the other party will say that the Queen hath not certified it he shall be concluded by the commission which is under the great Seal and diverse Prsidents were shewed openly in Court to that effect And all the matter aforesaid was agreed by the Chancellor Treasurer and the said Iustices and no certificate at all needs to be in the Case and then a superfluous Certificate being nought shall not hurt for Nugation is surplusage Another matter was to consider what interest the Queen hath in the Lands of Fugitives by the common Law And as to that they were all clear of opinion Fugitives that the Queen in such case as aforesaid may seize and assign her interest over And that such Assignees may grant Copy-holds parcel of the Manor assigned which grants shall bind him who cometh in after cum manus Domini regis amoventur and also when the Statutes of 13 and 14 Eliz. come Dy. 375 b. the Statutes do not amend the estate of the Queen but the estate of the Queen doth continue as before and all the Estates under it And there was shewed unto the Court divers Presidents of seizures in such Cases 18 E 2. Edmond de Woodstock Earl of Kent went beyond Sea without Licence of the King and he went with Robert de Mortimer and the King did certifie the same into the Chancery reciting that he had sent his Privy Seal c. but that the said Edmond spretis mandatis nostris redire recusavit upon which issued a commission to seize c. And it was holden that the Queen having seised hy force of the common Law and making a grant of a Copy-hold out of it now when the Statutes of 13 14 Eliz. are made she hath not any estate thereby for she had such interest before and this new seisure after the Statutes works nothing and nothing accrues to her thereby whereof she can make a seisure For she hath departed with the whole before See 23 Eliz. Dyer 376. And note that the grant of the Queen in the case at Bar was quamdiu in manibus nostris fore contigerit And afterwards Iudgment was given that judicium praedictum in omnibus affirmetur XIII Sutton and Dowses Case Ter. Mich. 25 26 Eliz. in the Common Pleas. SUtton Vicar of Longstoke Libelled against Dowse in the spiritual Court Tithes and shewed in his Libel that upon the Erection and Endowment of his Vicaridge four quarters of Corn were assigned to the Vicar out of the Granary of the Prior of B. of the Tithes of the Parson of Longstoke and that the Parson or Fermor of the said Rectory of Longstoke had always paid the said four Quarters of Corn to the said Vicar and all his Predecessors and alledged further that the Lord Sands was seised of the said Rectory and leased the Barn and Tithe-Corn parcel of the said Rectory to the said Dowse his Wife and Son Habendum to Dowse for Term of his life the Remainder to the Wife for Term of her life the Remainder to the Son for life And shewed further that the said Dowse had covenanted with the said Lord Sands to render the said four Quarters of Wheat to the Vicar and his Successors upon which Dowse procured a Prohibition and Sutton prayed a Consultation and it was moved in stay of the Consultation that the Vicar had Libelled upon a Covenant wherein Dowse is taxed to pay the said Corn and that is a lay Title and determinable by the Law of the Land and not in the Ecclesiastical Court But as to that the opinion of the Court was that the Libel is not grounded upon the covenant as the sole Title to the said Corn against Dowse but upon the Endowment of the Vicaridge and the Lease by which Dowse is become Fermor of the Rectory Another matter was moved because that upon the Libel it appeareth that the Lease aforesaid made by the Lord Sands was made to Dowse his Wife and his Son joyntly in the Premisses Habendum ut supra in which case it was objected that Dowse his Wife and his Son are all three Fermors of the said Barn and Tithes joyntly in possession against all whom Sutton ought to have Libelled c. and not against Dowse only for the Habendum hath not severed their estates which were joynt before Co. 1 Iust 783 l. qund tota curia negavit for the Habendum hath severed the joynt estates limited by the Premisses and hath distinguished it into Remainders but if the Habendum had been Habendum successive the estate had remained joynt Another matter was moved because it appeareth upon the Libel that the Parson or Fermor of the said Rectory ought to pay to the Vicar the said Corn and also it appeareth upon the matter that Dowse is not Parson nor Fermor of the said Rectory for the Lord Sands had leased to Dowse and his Son only the Barn and the Tith-Corn parcel of the said Rectory so as Dowse is Fermor but of parcel of the Rectory and the residue of the Rectory doth remain in the Lord Sands in which the said Sut. ought to have Libelled against the Lord Sands and Dowse and not against Dowse only And for that cause the Consultation was denyed And in this case it was further agreed by the Court that if upon a Libel in the spiritual Court the Defendant makes a surmise in Banco to have a Prohibition if such surmise be insufficient the other party needeth not to demur upon it and to have it entred upon Record but as amicus Curiae he shall shew the same to the Court and the Court shall discharge him XIV Punsany and Leaders Case Mich. 25 26 Eliz. In the Kings Bench. OSmond Punsany brought an Action upon the case against Leader and declared Prescription of Foldage that one Bedingfield was seised of the Manor of D. and that he and all those whose estate he hath in the said Manor time out of mind have had Libertatem Faldagij cursum Ovium in the Town of D. pro meliori pasturatione omnium Ovium suorum the Inhabitants of the said Town having any
extend ad veritatem facti which is set forth in the Avowry but only to reputation and so both stand together well enough Rent charge parcel of a Mannoâ— And that a Rent charge may be parcel of a Manor see 22 E 3. 13. 31. E 3. 23. in the Lord Tiptofts Case where it is ruled that title made to a Rent charge as parcel of a Manor is a good title and the Assize awarded upon it and in our Case the Reputation is enforced by the sute at the Court which was also reserved upon the said Feoffment together with the said Rent so as the intent of the parties to the Feoffment was that this Rent so reserved and accompanyed with the said sute shall be esteemed a Rent service and so parcel of the Manor and as to the continuance of Reputation it sufficeth if at the time of the bargain and sale aforesaid which was 26 H 8. it was by many reputed parcel of the Manor and he cited the Case of the Marquess of Winchester The King gave to his Ancestor the Manor of Dale and all lands then antea reputed parcel of the said Manor and in a Bill of Intrusion against the said Marquess he pleaded the grant with averment that the Land then antea reputed parcel Manerii praedict And because he did not shew certainly at what time the Land was reputed parcel of the Manor Iudgment was given for the Queen for it might be for any thing in his Plea that the said Land was reputed parcel of the said Manor before time of memory which Reputation would not serve but such Reputation ought to be within time of memory and understanding He cited also the Case of the Earl of Leicester King Edward the sixth seised of the Manor of Clibery of which a Wood was parcel granted the said Wood in Fee which afterwards escheated to the King for Treason Queen Mary granted the said Wood to another in Fee who granted it to the now Queen who granted the said Manor omnes boscos modo vel ante hac cognit vel reputat ut pars membr vel parcel Maner praedict to the Earl of Leicester and it was resolved in the Exchequer that by that grant the said Wood did pass to the Earl and Iudgment was given against the Queen Dy. 362 â— for it was part of the Manor in the time of E 6. at which time an t ' hac without the word unquam shall be extended ad quoddamcunque tempus praeteritum And Reputation needs not so ancient a Pedigree for to establish it for general acceptance will produce reputation As the house of the Lord Treasurer now called Tibould was of late a private Manor but now hath a new name by which it is known and that within these twenty years which is not so long a time as we have alleged for our Reputation and would pass in a conveyance by such name so None-such But as to Reputation I conceive that Reputation is not what this or what that man thinketh Reputation quid but that which many men have said or thought who have more reason to know it quaenam est inter illos reputatio There was a Case ruled in the Exchequer 13 Eliz. in a Bill of intrusion the Case was that King Hen. 6. was seised of a Manor to which a Neif was regardant who purchased Lands which the King seised and let by Copy as parcel of the said Manor and so continued until the time of E 6. who granted the same to Allice Hardwick and all Lands Tenements reputed parcel of the said Manor And it was adjudged that the said Land so purchased by the said Neif and demised by Copy did pass by the said grant to Hardwick And afterwards the same Term the Iustices without any solemn Argument shewed their opinions in the principal Case viz. That this Rent did not pass by the bargain and sale made as above by Anthony Wingfield to Bohan father of the Avowant for here in the premisses of the Avowry is not any matter set forth importing Reputation or by which it may appear that the Rent in question was ever reputed parcel of the said Manor but rather to the contrary and the bare averment of Reputation in the conclusion of the Avowry is not sufficient to induce Reputation But if the Avowant had set forth in his Avowry any special matter to induce the Court to conceive a Reputation upon the matter of the Avowry as to shew that the Bayliffs of the said Manor had always received the said Rent as parcel of said Manor and as Bayliffs of the said Manor had accounted for it as parcel of the Manor and that the Lessees of the said Manor had enjoyed the said Rent as parcel of the said Manor the same had been good matter to induce a Reputation to have incorporated the said Rent with the said Manor and so judgment was given against the Avowant and of such opinion as was affirmed by Wray was Anderson chief Iustice of the Common Pleas and Manwood chief Baron of the Exchequer XIX Cham and Dovers Case Pasch 26 Eliz. in the Kings Bench. Ejectione firmae IN an Ejectione firmae the Case was that one Michel was seised of the Manor of D. within which diverse parcels of Land part of the said Manor where customary Tenements demised and demisable by copy c. according to the Custom of the said Manor for one two or three lives within which Manor there was a Custom scil that the Lord of the Manor for the time being might grant Copy-hold estates for life in Reversion The Lord granted such Lands for life by copy in possession took a wife and granted the same Copy-hold to a stranger in Reversion for life and died the Copy-holder in possession died the Land demised by copy is inter alia assigned to the Wife for her Dower who had Iudgment to recover in a Writ of Dower who entred and made a Lease thereof to the Defendant who entred against whom the Lessee of the Copy-holder brought Ejectione firmae Custom ad pasturandum non ad colendum and all this matter was found by Verdict and further found that every Copy-holder of the said Manor might Lease his Copy-hold for a year ad pasturandum sed non ad colendum and that the Lease made to the Plaintiff was for a year ad pasturandum 1. Cro. 469. Wells versus Partridge Post 100. Popham Attorny General of Council with the Defendant took exception to the Declaration because the Plaintiff had declared a Lease at the common Law and the Iury have found a Lease by the custom which cannot stand together And such a Verdict doth not maintain the Declaration as if the Plaintiff had declared upon a Lease for years of Lands and the Iury found a devise for years c. but the exception was disallowed by the Court. As to the matter in Law he argued that the Tenant in Dower should
did not lie in the said Court. 18 Eliz. Dyer 250. F. B. 22. That upon Erronious Iudgment given in the Kings Bench in Ireland Error shall be brought in the Kings Bench in England 15 E. 3. Error 72. Fenner who was of Council with the Archbishop demanded of the Court how and in what manner the Record shall be remanded to the Iustices of Assize so as the Archbishop might have execution To which the Court said that the surest way is to have a Certiorare out of the Chancery into the Common Pleas directed to the Iudges there and then out of the Chancery by Mittimus to the Iustices of Assize But Fenner made a difficulty of it to take such course for the remanding of it for doubt they would not allow it to be a Record where it is not a Record for upon the matter the Record is not removed but remains with the Iustices of Assize Then Anderson said Sue Excution out of the said Record but because the Record came before us by Writ of Error it shall be also removed and remanded by Writ and so it was LXX Kempe and Carters Case Pasch 29 Eliz. In the Common Pleas. THomas Kempe brought Trespass Copyhold for breaking of his Close against Carter and upon pleading they were at issue if the Lord of the Manor aforesaid granted the said Lands per copiam rotulorum curiae manerii praedict secundum consuetudinem manerii praedict and it was given in Evidence that within the said Manor were divers customary Lands and that the Lord now of late at his Court of the said Manor granted the Land c. per copiam rotulorum curiae where it was never granted by copy before It was now holden by the whole Court that the Iury are bound to find Dominus non concessit for notwithstanding that de facto Dominus concessit per copiam rotulorum curiae yet non concessit secundum consuetudinem manerii praedict for the said Land was not customary nor was it demisable for the custom had not taken hold of it In the same Case it was also shewed that within the said Manor some customary Lands are demiseable for life only Evidence of customs and some in Fee and it was said by the Lord Anderson that he who will give in Evidence these several customs ought to shew the several limits in which the several customs are severally running as that the Manor extends into two Towns and that the Lands in one of the said Towns are grantable for lives only and the Lands in the other in Fee and he ought not to shew the several customs promiscuè valere through the whole Manor And he remembred a Case of his own experience scil The Manor of Wadhurst in the County of Sussex consisted of two sorts of Copy-hold scil sook-Sook-land and bond-Bond-land and by several customs disseverable in several manners As if a man be first admitted to sook-Sook-land and afterwards to bond-Bond-land and dieth seised of both his Heir shall inherit both but if he be first admitted to bond-Bond-land and afterward to sook-Sook-land and of them dieth seised his youngest Son shall inherit and if of both simul semel his eldest Son shall inherit But if he dieth seised of Bond-land only it shall descend to the youngest and if customary Land hath been of ancient time grantable in Fee and now of late time for the space of forty years hath granted the same for life only yet the Lord may if he please resort to his ancient custom and grant it in Fee. It was also moved in this case If customary Land within a Manor hath been grantable in Fee if now the same Escheat to the Lord and he grant the same to another for life the same was holden a good grant and warrantable by the custom and should bind the Lord for the custom which enables him to grant in Fee shall enable him to grant for life and after the death of the Tenant for life the Lord may grant the same again in Fee for the grant for life was not any interruption of the custom c. which was granted by the whole Court. LXXI Walker and Nevils Case Pasch 29. Eliz. In the Common Pleas. Dower WAlker and his Wife brought a Writ of Dower against Jervice Nevil and judgment was given upon Nihil dicit and because the first Husband of the Wife died seised a Writ of Enquiry of Damages was awarded by which it was found that the Land which she ought to have in Dower the third part was of the value of eight pound per annum and that eight years elapserunt a die mortis viri sui proximè ante inquisitionem assident damna to eight pounds and it appeared upon the Record that after Iudgment in the Writ of Dower aforesaid the Demandants had execution upon habere facias seisinam Damages so as it appeareth upon the whole Record put together that damages are assessed for eight years where the Demandants have been seised for part of the said eight years upon which the Tenant brought a Writ of Error and assigned for Error because damages are assessed untill the time of the Inquisition where they ought to be but to to the time of the Iudgment but the Exception was not allowed Another Error was assigned because that where it is found that the Land was of the value of eight pounds per annum they have assessed damages for eight years to eighty pounds beyond the Revenue for according to the rate and value found by verdict it did amount but to sixty four pounds but that Error was not also allowed for it may be that by the long detaining of the Dower the Demandants have sustained more damages than the bare Revenue c. Another Error was assigned because Damages are assessed for the whole eight years after the death of the Husband where it appeareth that for part of the said years the Demandants were seised of the Lands by force of the Iudgment and execution in the Writ of Dower and upon that matter the writ of Error was allowed LXXII Archpool against the Inhabitants of Everingham Pasch 29 Eliz. In the Common Pleas. IN an Action upon the Statute of Winchester of Huy and Cry by Archoopl against the Inhabitants of the Hundred of Everingham the Iury found that the Plaintiff was robbed 2 Januarii post occasum solis sed per lucem diurnam and that after the Robbery committed the Plaintiff went to the Town of Andover and advertised the Baylies of the said Town of the said Robbery and further found that the said Town of Andover is not within the said Hundred of Everingham and that there is another Town nearer to the place where c. the Robbery was done than the said Town of Andover within the said Hundred but the said Town of Andover was the nearest place where c. by the Kings high-way It was moved that upon this matter the Plaintiff should not have judgment
day the same had bin good for such By-law doth not take away but order the Inheritance For the nature of a By-law is to put Order betwixt the Tenants concerning their affayrs within the Manor which by law they are not compellable to do And by Periam The Avowant ought to have averred That this By-law was for the Common profit of the Tenants See the Lord Cromwells Case 15 Eliz. Dyer 322. and afterwards in the Principal Case Iudgment was given against the Avowant CCLXXI. Wicks and Dennis Case Mich. 31 32 Eliz. In the Common Pleas. Replevin WIcks brought a Replevin of Dennis who avowed That one Dennis his Father was seised of the Manor c. and granted out of it to the avowant a Rent of twenty pounds per annum and further granted That if the said Rent be arrear unpaid six days after the feasts c. wherein it ought to be paid si licite petatur That then it should be lawful to distrein The grantor afterward by Indenture Covenanted with the Lord Treasurer and others to stand seised of the same Manor unto the use of himself and his heirs until he or his heirs have made default in they payment of one hundred pounds per annum until three thousand pounds be paid and after default of payment to the use of the Queen and her heirs until the sum of three thousand pounds should be paid and levied The grantor afterwards levied a fine to the said Lord Treasurer and others to the uses aforesaid the Rent is arrear default of the payment of the hundred pounds in made Office is found The Queen seised the land the Avowant during the possession of the Q. demanded the Rent the arrearages thereof The Queen granted over the Manor to W. B. D. the grantee did distrain for the rent arrearages demanded ut supra It was moved by H. Serjeant That this demand of several sums payable at several days before is not good for every sum ought to be severally demanded when it was first due scil si licite petatur scil within the six days for otherwise without such demand distress is not lawful and he resembled it to the case of Sir Thomas Gresham 23. Elizabeth Dyer 372 of several Tenders Periam conceived that the demand ought to be several Anderson That the demand is good enough And as to the demand made during the possession of the Queen It was holden by the whole Court to be good enough for although the possession of the Queen be priviledged as to the distress yet the demand is good Demand of Rent charge during the possession of the King good without any wrong to her prerogative for the Rent in right is due and the possession of the Queen is in right charged with it and the Rent is only recoverable by Petition as it was by way of distress and if the partie sueth to the Queen by Petition for the said Rent he ought to shew in his Petition that he hath demanded the Rent for if the possession had bin in a common person he could not distreyn before demand nor by consequence have Assise And the Rent notwithstanding the possession of the Queen is demandable and payable for to entitle the party unto Petition against the Queen and to distress against the subject when the possession of the Queen is removed And see 7 H. 6. 40. disseisee may make continual claym although the possession of the Land of which he is disseised be in the King. And 34 H. Br. seisin 48. If the heir at full Age intrude upon the possession of the King and pays Rent to the Lord of his Land holden of a subject the same is a good seisin and shall bind the heir after he hath sued his livery 5 E. 4. 4. and see 13 H. 7. 15. That distress taken upon the possession of the King is not lawful but seisin obtained during it is good So in 21 H. 7. 2. CCLXXII Ashegells and Dennis Case Mich. 31 32 Eliz. In the Com. Pleas. Int. M. 30 31. Rot. 458. AShegel brought a Quare Impedit against Dennis Quare Impedit 1 Cro. 163. Hob. 304. and the Plaintiff Counted that the Defendant had disturbed him to present ad vicariam de D. and shewed that the Queen was seised of the Rectory of D. and of the Advowson of the vicaridge of D. and by her letters Patents gave unto the Plaintiff Rectoriam praedictam cum pertinentiis etiam vicariam Ecclesiae praedict And it was holden by the whole Court That the Advowson of the vicaridge by these words doth not pass nor so in the Case of a common person much less in the Case of the King But if the Queen had granted Ecclesiam suam of D. then by Walmesley Iustice the Advowson of the vicaridge had passed CCLXXIII Collman and Sir Hugh Portmans Case Mich. 31 32 Eliz. In the Common Pleas. IN Ejectione firmae by Collman against Sir Hugh Portman it was found by special verdict Ejectione firmae That the lands where were holden by Copy of the Manor of D. whereof Sir H. Portman was seised and that the Plaintiff was Copyholder in Fee and further found That the said Sir H. pretending the said Copy-hold lands to be forfeited Surrender of Copy-holder entred into Communication with Collman touching the same upon which Communication it was agreed betwixt them That the said Collman should pay to the said Sir Hugh five pounds which was paid accordingly that in consideration thereof Collman should enjoy the said Customary lands except one Wood called Combwood for his life and also of Alice his wife durante sua viduitate and that Collman should have Election whether the said lands should be assured unto him and his said wife by Copy or by Bill c. he chose by Bill which was made accordingly and further found That the said Sir H. held and enjoyed in his possession the said Wood c. upon this matter The Court was clear in opinion That here is a good surrender of the said lands and that for life only and that the said Sir Hugh had the Wood discharged of the customary interest CCLXXIV Thetford and Thetfords Case Mich. 31 32 Eliz. In the Common Pleas. Debt IN an Action of Debt for Rent the Plaintiff declared That Land was given to him and to T. his wife and to the heirs of their bodies and that his wife leased the Lands to the Defendant and that the Donees were dead and that the Plaintiff as heir c. for rent arrear c. and upon Non demiserunt the Iury found that the Husband and Wife demiserunt by Indenture and afterwards the husband died and the wife entred and within the term died Now upon the matter it seemed clear to Anderson that the Iury have found for the Defendant scil Non demiserunt for it is now no lease ab initio because the Plaintiff hath not declared
the Right of the Complainants come ceo c. with warranty of the said Husband and Wife for which the Complainants did render a Rent of fifty pounds per annum with clause of distress in dictis Manerijs to the said John Amy the Heirs of Amy and also rendred the Tenements aforesaid with the Appurtenances to the said John and Amy for their lives the Remainder to the said Francis their Son in tail the Remainder to the said Amy and her Heirs and that John and Amy dyed by force whereof the said Rent descendeth to the said Plaintiff as Son and Heir of the said Amy and that the said Francis entred into the said Mannors as in his Remainder and was seised in tail and was seised of the said Rent by the Hands of the said Francis and afterwards thereof did enfeoff the said Garmons the Defendant c. The Tenant pleaded That the Plaintiff was never seised so as he could be disseised and if c. Nul tor nul disseisin which was found for the Plaintiff who had Iudgment and Execution upon which the Tenant brought a Writ of Error Stephens assigned Error First the Fine is levyed of two Manors inter alia so as no other Lands passed by the Fine besides the Manors and so the Rent is granted out of the said Lands and Manors and no other Lands which passed by the Fine and then upon the Plaintiffs own shewing it appears that all the Tenants of the Lands charged with the Rent in demand are not named in the Assize Second Error This Rent is granted only out of the Estate tail for Amy hath Fee in both as well the Rent as the Land and then when the Estate tail is determined the Rent is also determined and he hath not averred the life of the Tenant in tail or any of his Issue wherefore it shall be intended that he is dead without issue and then the Rent is gone and then he hath not any cause to have Assise Bourchier As to the first conceived and argued that it is not Error for although these words inter alia c. yet it shall not be intended that the Conusor had any other Lands or that the Rent is issuing out of other Lands than those two Manors which are expressed not inter alia As to the second the continuance of the tail needs not to be averred for the Tenant in tail hath enfeoffed the Tenant of the Land by which the estate tail is discontinued And although the Tenant in tail be dead without issue yet the Rent doth remain until Recovery of the Land by Formedon in the Remainder Fenner Iustice was of opinion Vaugh. Reâ— 175. That the Per nomen should go unto the Mannors only and should not extend to the inter alia For if a man in pleading saith that J.S. was seised of twenty acres of Land and thereof inter alia did enfeoff him per nomen of Green-wead the same shall not have reference to the inter alia but only to the twenty acres And the averment of the continuance of the Tail needs not for the Estate-tail is discontinued Gawdy Iustice was of opinion That the per nomen should go as well to the inter alia as to the two Manors and then all the Ter-tenants are not named in the Assise and the same not to be pleaded for it appears of the Plaintiffs own shewing and there needs no averment of the continuance of the Tail for the cause aforesaid Clench Iustice The per nomen doth refer to all which see by the Fine which shews that other Lands passed by the Fine than the said two Manors And as to the second point he said There needed no averment Gawdy As to the first Error the same cannot be saved by any way but to say That the Conusor was not seised of any other Lands than the said two Manors and then the Fine doth not extend unto it and then no Rent is granted out of it Fenner In the Common Pleas in the great case of Fines it was holden that in pleading of a Fine it needs not to say That the Conusor was seised for if the Conusor or Conusee were seised it is sufficient for such pleading is contrary in it self for a Fine sur conusance de droit come ceo c. doth suppose a precedent Gift It was also objected That here is a confusion in this Fine for the Rent is rendred to the Husband and Wife and to the Heirs of the Wife and the Land is rendred to the Husband and Wife for their lives the Remainder to Francis in Tail the remainder to the Wife and her Heirs And these matters cannot stand together in a Fine but the one will confound the other But as to that it was said that the Law shall Marshall these two renders so as they both shall stand And it is not like unto a Rent-service for a Rent-service issueth out of the whole Estate And therefore if a Remainder upon an Estate for life Eschears the Seigniory is gone even during the life of the Tenant for life which see 3 H. 6. 1. contrary of a Rent-charge For if the Grantee of a Rent in Fee purchaseth the remainder of the Land out of which it is depending out of an Estate for life he shall have the Rent during the life of the Tenant for life And of that opinion were all the three Iustices for the Conusors took by several Acts and the Estate is charged for it cometh under the Grant. Fenner Iustice There is a difference betwixt a Rent service and a Rent-charge or Common for that shall charge only the Possession but a Rent-charge shall charge the whole Estate And therefore if he who hath a Rent-service releaseth to him in the Remainder upon an Estate-tail or for life the Rent is extinct which Gawdy denied And this Case was put The Disseisee doth release to the Lessee for years of his Disseisor nihil operatur But if the Disseisor and Disseisee joyn in a Release to such Lessee the same is good for first it shall enure as the Release of the Disseisor and then of the Disseisee c. CCCXLIV Tedcastle and Hallywels Case Mich. 32 33 Eliz. In the Kings Bench. Debt 2 Roll. 594. 1 Cro. 234 235. IN Debt upon a Bond the Defendant pleaded That the Condition was That whereas John Hallywel had put himself to be an Apprentice to the Plaintiff if the Defendant John Hallywel during his Apprenticeship or any other for him by his consent or agreement take or riotously spend any of the Goods of his said Master the Plaintiff If then the Defendant within one month after notice thereof given to him do pay and satisfie the Plaintiff for all such sums of Monies Wares c. so taken or riotously spent by the Defendant or by any other by his procurement or consent the same being sufficiently proved that then c. The Defendant by protestation Quod nec
afterwards that this murder is dispunishable notwithstanding the Statute of 2 Ed. 6. CCCLXIV The Queen and Braybrooks Case Pasch 25 Eliz. In the Kings Bench. 3 Co. 1 2 c. THe Queen brought a Writ of Error against Braybrook The Case was this That King Ed. 4. was seised of the Manor of Marston and gave the same to Lionel Lord Norris and A.M. and the Heirs of the body of the Lord the Remainder to H. Norris in Tail L and A. entermarry L. suffered a common Recovery against himself only without naming the said A. Hen. Norris is attainted of high Treason by Act of Parliament and by the same Act all his Lands Tenements Hereditaments Rights Conditions c. the day of the Treason committed or ever after c. Hen. Norris is executed Lionel dieth without issue the Queen falsified the said Recovery for one moiety by Scire facias because Anne who was joint-tenant with Lionel was not named party to the said Recovery and afterwards the Queen granted to the Lord Norris Son of the said Hen. Norris Manerium suum de Merston omnia jura in eodem and now upon the said Recovery the Queen brought a Writ of Error and it was argued by Egerton the Queens Sollicitor that this right to a Writ of Error is such a right as is transferred to the Queen by the Act of Parliament for the words are omnia jura sua quaecunque and here is a right although not a present right yet a right although in futuro so it is a right of some quality as A. Tenant in Tail the Remainder in Tail to B.A. makes a Feoffment in Fee B. is attainted of high Treason and by such Act all his Lands c. given to the King. A. dieth without issue the Queen shall have a Formedon in the Remainder and although the Queen hath granted to the Lord Norris Manerium suum de Merston omnia jura in eodem yet by such general words a Writ of Error doth not pass which See 32 H. 8. Br. Patents 98. And also this Action rests in privity of record and cannot be displaced from thence but by Act of Parliament see Br. Chose in Action 14. 33 H. 8. for when the King will grant a thing in Action he ought in his Patent to recite all the circumstances of the matter as the Right and how it became a Right and because the Queen here doth not make mention of this Right as of the Entail the Recovery and the Attainder for that cause the Right doth not pass The Case betwixt Cromer and Cranmer 8 Eliz the Disseisee was attainted of Treason the Queen granted to the Heir of the Disseisee all the Right which came unto her by the Attainder of his Ancestor nothing passed Causa qua supra And always where the King grants any thing which he cannot grant but as King that such a grant without special words is to no purpose Coke contrary he agreed the Case put by Egerton for at the time of the Attainder B. had a Right of Remainder but in our Case Hen. Norris had not any Right but a possibility of a Right of Action i.e. a Writ of Error And he said that this Writ of Error is not forfeitable for it is an Action which rests in privity no more than a condition in gross as a Feoffment in Fee is made upon condition of the party of the Feoffor who is attainted ut supra This word Right in the Act of Attainder shall not transfer this Condition to the Queen and of the Act of Attainder to Hen. Norris it is to be conceived That the makers of the Act did not intend that by the word Right every right of any manner or quality whatsoever should pass to carry a Condition to the Queen and therefore we ought to conceive that the makers of the Act did not intend to touch Rights which rested in privity And as to the Grant of the Queen to the Lord Norris of the Mannor of Merston Et omnia jura sua in eodem he conceived that thereby the Right of the Writ of Error did pass for it is not like Cranmers Case but if in the said Case the Land it self had been set down in the Grant it had been good enough as that Cranmer being seised in Fee of the Manor of D. was there of disseised and so being disseised was attainted of high Treason now the Queen grants to his Heirs totum jus suum in his Manor of D c. and so in our Case the Queen hath granted to the Lord Norris Manerium suum de Merston omnia jura sua in eodem c. at another day it was moved by Plowden that this Right of Writ of Error was not transferred to the Queen by the Act but such Right might be saved to a stranger c. the words of the Act are omnia jura sua and this word sua is Pronomen possessionis by which it is to be conceived that no Right should pass but that which was a present Right as a Right in possession but this Right to a Writ of Error was not in Hen. Norris at the time of his Attainder but it was wholly in him against whom the erroneous Iudgment was had and therefore if in a Praecipe quod reddat the Tenant vouch and loseth and Iudgment is given and before Execution the Tenant is attainted by Act of Parliament by words ut supra and afterwards he is pardoned the Demandant sueth for Execution against the Tenant now notwithstanding this Attainder the Tenant may sue Execution against the Vouchee and afterwards Wray chief Iustice openly declared in Court the opinion of himself and all his companions Iustices and also of all the other Iustices to be That by this Act of Parliament by which all Lands Tenements Hereditaments and all Rights of any manner and quality whatsoever Henry Norris had the day of his Attainder or ever after Lionel then being alive and over-living the said Hen. Norris that this Writ of Error was not transferred to the Queen And that the said Act by the words aforesaid could not convey to the King this possibility of right for at the time of the Attainder the Right of the Writ of Error was in Lyonel and Hen. during the estate tail limited to Lyonell had not to do with the Land nor any matter concerning it And Iudgment was given accordingly And it was holden That he in the Reversion or Remainder upon an Estate tail might have a Writ of Error by the common Law upon a Recovery had against Tenant in tail in Reversion CCCLXV Mich. 25 26. Eliz. In the common Pleas. Copy-holder IN Trespass brought by a Copy-holder against the Lord for cutting down and carrying away his Trees c. It was found by special Verdict That the place where c. was Customary lands of the Plaintiffs holden of the Defendant and that the Trees whereof c. were Chery Trees de
formally expressed in the usual Terms As to the second payment Where a man bargains and sells his Lands by Deed indented to be enroled and before enrolment he makes Livery to the Bargainee and afterwards the Indentur is enroled the Court discharged Beamount from the arguing of that Point Liveâ—y where it prevents operation of an Enrolment for by Wray the Livery doth prevent the operation of the Enrolment and Sir George shall be accounted in by the Livery and not by the bargain and sale for Livery is of more worth and more worthy ceremony to pass estates and therefore shall be preferred and then the Livery being made in such part of the Mannor which was in the possession of the Feoffor in the name of the whole Mannor no more of the Mannor passeth but that which was then in the possession of the Feoffor And the Reversion of such part of the Mannor which was in Lease shall not pass without Attornment but when the Enrolment cometh now the whole passeth and then the Reversion being setled by the Enrolment the Attornment coming afterwards hath no relation See 48 E. 3. 15 16. The Iury here have found the default of payment whereby the conditional use which passed by the bargain and sale upon the condition broken shall be reduced to the Bargainor without any Entry 1. Cro. 382. and then the uses limited after are void for an use limited upon an use cannot rise quod fuit concessum per totam curiam Then Bracebridge the Father having the Inheritance of the said Mannor in his own right and the interest de futuro for years in the right of his Wife joyntly with the said A. when he sells the said Mannor by Deed indented and enroled now thereby the interest for years which he hath in the Right of his Wife doth not pass for a bargain and sale is not so strong a conveyance as a Livery As if I have a Rent-charge in the right of my Wife out of the Manor of D. which Manor afterwards I purchase and afterwards by Deed indented and enroled I bargain and sell the said Manor c. the Rent shall not pass Then the said Thomas Bracebridge the Father having the said Right of an entail to him and to the Heirs Males of his body and being Tenant for life by his own conveyance the Remainder in tail to his Son and Heir apparent the now Defendant when he levyeth a Fine and the Son enters for forfeiture before Proclamations pass and his Father dyeth in that case the Defendant is not remitted unto the first entail although after Proclamations pass in the life of the Father and so he shall not avoid the Leases for notwithstanding that the Issue in tail by that Entry hath defeated the possession which passed by the Fine yet as to the right of the old entail the Fine doth retain its force and so he entred quodam modo in assurance of the Fine As if Tenant in tail doth discontinue and disseiseth the Discontinuee and levieth a Fine with Proclamations and the Discontinuee enters within the five years now although the Fine as to the Discontinuee be avoided so as the possession which passed by the Fine is defeated yet the right of the entail doth continue bound Egerton Solicitor contrary and he conceived that all the Mannor doth pass by the Livery to Sir George and nothing of it by the Enrolment and that the meaning of the parties was that all should pass by the Livery for if the assurance should enure by the bargain and sale then the second uses limited upon default of payment should never rise for an use upon an use cannot rise and then the said uses limited for the payment of the debts of the Feoffor c. should be defeated and also where at the begining of the assurance the condition was entire the warranty entire c. and if such construction should be allowed here shall be a divided condition a divided warranty And also the meaning of the parties that the whole Mannor should pass by such construction should be dismembred and part pass by the Livery and part by the bargain and sale and we ought to make such constructions of Deeds that things may pass by them according to the meanings of the parties as if I be seised of a Mannor to which and Advowson is appendant and I make a Deed of Feoffment of the same Mannor cum pertinencijs and deliver the Deed to the party but no Livery of seisin is had the Advowson shall not pass for then it should be in gross whereas the meaning of the parties was that it should pass as appendant and that in such case cannot be for there is no Livery therefore it shall not pass at all and so it hath been adjudged So if I bargain and sell my Mannor of D. and all the Trees in the same and I deliver the Deed but it is not enrolled the Trees shall not pass for the intent of the parties was that the Trees should pass as parcel of the Free-hold and not as Chattels And as to the remitter I conceive that the Heir entring as Heir by the Law is remitted but where the Entry is given by a special Statute there the Entry shall not enure further than the words of the Statute As Land is given to the Husband and Wife and to the Heirs of the body of the Husband the Husband levieth a Fine and dieth the wife entreth this Entry shall not avail to the issue in tail for the Entry is given to the Wife by a special Law And he cited Sir Richard Haddons Case the Husband aliened the Lands of his Wife they are divorced the Husband dieth the Wife shall not enter by 32. H. 8. but is put to her Writ of Cui in vita ante divor And afterwards the same Term the Iustices having considered of the Case delivered their opinions upon the matters by Wray chief Iustice viz. That the one moyety of the Lease was extinct by the Livery viz. the moyety of Ioyce the Wife of the Lessor and as to the other moyety it is in being for here is no remitter for if any remitter had been in the Case it should be after the use raised which is not as yet raised for the Land ought to remain in Sir George until the said five hundred pounds be levyed and that is not found by the Verdict and therefore for the said moyety the Plaintiff had Iudgment XI Treshams Case Mich 25 26 Eliz. in the Exchequer SIR John Tresham seised of the Manor of D. holden of the King in Capite by Knights service 4 H. 7. enfeoffed Edmund Earl of Wilts and N. Vaux Knight who gave the said Manor to the said Sir John in tail upon condition that he should not alien c. quo minus c. John Tresham dyed seised by whose decease the Manor descended to Tho. Tresham who entred 2 Len. 55 56. and 18 H. 8. aliened with
the remainder to the use of John Father of the Plaintiff in tail the Grandfather died the Father entred Feoffments and by Indenture by words of bargain and sale without any words of Dedi concessi conveyed the Lands to the use of A. in Fee and in the same Indenture was a Letter of Attorney to make Livery which was made accordingly and the said A. by the said Indenture covenanted that if the said John should pay before such a day to the said A. forty shillings that then the said A. and his Heirs would stand seised c. to the use of the said John and his Heirs and if the said John did not pay c. then if the said A. did not pay to the said John within four days after ten pounds that then the said A. and his Heirs from thenceforth shall be seised to the use of the said John and his Heirs c. and the said John covenanted further by the said Indenture to make such further assurance as the Council of the said John should advise Each party failed of payment John levied a Fine to A. without any consideration it was adjudged upon this matter a good Feoffment well executed by the Livery Hob. 151. Dyer 361. a More 194. Post 195 196 197. More 35. b. notwithstanding that the words of the conveyance are only by bargain and sale and that the Covenant to be seised to the new uses upon payment and not payment being in one and the same deed should raise the use upon the contingency according to the limitation of it and Iudgment was given for the Plaintiff accordingly XXXII Bedows Case Trin. 26 Eliz. In the Kings Bench. IN an Action of Debt upon a Bill sealed against one Bedow he demanded Dyer of the Bill which was Memorandum that I John Bedow have agreed to pay to R. S. the Plaintiff twenty pounds and thereupon there was a Demurrer first that the Deed wanted the words In cujus rei testimonium c. but notwithstanding that the Court held the Deed good and said so it was lately adjudged Another matter was because the words of the contract are in the preter Tense I have agreed but notwithstanding that exception the Plaintiff had Iudgment to recover as by Wray these words dedi concessi according to the Grammatical sence imply a gift precedent but yet they are used as words of a present conveyance Iudgment was given for the Plaintiff XXXIII Marsh and Smiths Case Pasch 27. Eliz. In the Common Pleas. 1 Cro. 38. 39. GEorge Marsh brought a Replevin against Smith and Paget who make Conusans as Baylies to Ralph Bard and upon the pleading the Case was That Sir Francis Askew was seised of the Mannor of Castord in his Demesne as of Fee which Mannor did extend unto Daston North-kelsey Grants Mannor 2 Len. 41 42. South-kelsey D. and C. and had demesnes and services parcel of the said Mannor in each of the said Towns and so seised granted totum manerium suum de North-kelsey in North-kelsey to the said Bard and his Heirs and granted further all his Lands Tenements and Hereditaments in North-kelsey and to that grant the Tenants in North-kelsey did attorn And the Land in which the said Distress was taken is in North-kelsey the only question in the case was if by this grant to Ralph Bard a Mannor passed or not And the case was argued by the Iustices And Periam Iustice argued That upon this grant no Mannor passed for before the grant there was no Mannor of North-kelsey or in North-kelsey therefore no Mannor can pass but the Lands and services in North-kelsey shall pass as in gross for they were not known by a Mannor but for parcel of a Mannor And a Mannor is a thing which cannot be so easily created Mannor what it is for it is an Hereditament which doth consist of many real things and incorporated together before time of memory common reputation cannot be intended of an opinion conceived within three or four years but of long time And appendancy cannot be made presently but by a long tract of time As an Advowson in gross cannot be made by an Act appendant and the Queen her self by her Letters Patents cannot make a Mannor at this day à multo fortiori a subject cannot and the Queen cannot by her Letters Patents without an Act of Parliament annex a Mannor to the Dutchy of Lancaster which see 1 Ma. Dyer 95. And where it is usual that the Queen doth grant Lands Reputation tenendum de manerio suo de East Greenwich in communi soccagio if upon the death of such a Grantee without heir the said Land doth revert unto the Queen in point of Escheat the said Land shall not be parcel of the said Mannor for the Land was not parcel of the Mannor in truth but in reputation And he cited a case that the Lord Sturton was seised of the Mannor of Quincamore and was also seised of the Mannor of Charleton which was holden of the said Mannor of Quincamore The Lord Sturton was attainted of Felony and afterwards Queen Mary gave the said Mannor of Quincamore to Sir Walter Mildmay cum omnibus suis juribus parcellis it was adjudged that the Mannor of Charleton did pass for it is now become parcel of the Mannor of Quincamore and I grant that things which go with the Land shall pass well enough As if the Queen grant to three Coparceners of three Mannors 1 Inst 122. a 32 â—â— 6 11. the liberty of Warren in all the said three Mannors they afterwards make partition so as each Coparcener hath a Mannor and the one of them grants her Mannor the Grantee shall have Warren Grants of the King. But if the Queen grant a Leet ut supra and the Coparceners make Partition and each of them hath a Mannor she shall not have also a Leet but the Leet which was grantted doth remain in common and there shall not be there upon such partition several Leets And also I grant that in the case of two Coparceners of a Mannor if to each of them upon partition be allotted demeans and services each of them hath a Mannor for they were compellable to make partition by the common Law being in by descent See 26 H. 8. 4. 9 E. 4. 5. contrary of Ioynt-tenants for they are in by purchase and were not compellable by the common Law to make partition and therefore upon partition betwixt them a Rent cannot be reserved for the equality of the partition And in every Manor a Court is requisite for a Court Baron is incident to a Manor Court Baron but a Court cannot at this day be founded or erected but it ought to be of long time And in our Case no Court hath ever been holden in North-kelsey And if I be seised of the Manor of B. which extends into C. and B. and I grant my Manor of B. in D. now a Manor
Language may easily be learned in a short time by converse with Welsh-men And the Statute of 1 Eliz. which establisheth the Book of Common Prayer ordaineth that the said Book of Common Prayer shall be put in use in all the Parish Churches of Eng. and Wa. without any provision there for the translation of the said Book into the Welsh Language But afterwards by a private Act it was done by which it is enacted That the Bishop of Wales should procure the Epistles and Gospels to be translated and read in the Welsh Language which matter our Presentee might do by a Curate well enough And he conceived that by divers Statutes Aliens by the Common Law were capable of Benefices See the Statute of 7 H 2. Cap. 12. 1 H 5 Cap. 7. 14 H 6. Cap. 6. and before the said last Statute Irish-men were capable of Benefices Gawdy Serjeant contrary and he confessed that at the Common Law the defects aforesaid were not any causes of refusal but now by reason of a private Act made 5 Eliz. Entituled An Act made for the translating of the Bible and of the Divine Service into the Welsh tongue the same defect is become a good cause of refusal in which Act the mischief is recited viz. That the Inhabitants of Wales did not understand the Language of England therefore it was Enacted That the Bishops of Wales should procure so many of the Bibles and Books of Common Prayer to be imprinted in the Welsh Language as there are Parishes and Cathedral Churches in Wales and so upon this Statute this imperfection is become a good cause of refusal And he likened it to the Case of Coparceners and Ioynt-tenants Ante 28. who now because that by the Statute of 32 H 8. Ioynt-tenants are equally capable to make partition as Coparceners were by the Common Law Now Partition betwixt Ioynt-tenants within age is as strong as betwixt Parceners within age But as to that point it was said by the Lord Anderson that it is very true that upon the said Statute the want of the Welsh Language in the Presentee is now become a good cause of refusal but because the said Act being a private Act hath not been pleaded by the Defendant we ought not to give our Iudgment according to that Act but according to the Common Law. Another matter was moved because here appeareth no sufficient notice given to the Patron after the said Refusal for the Plaintiff did present the thirtenth of August the Church voyding the fourteenth of March before the nine and twentieth of August the six months expired the fourth of September the Defendant gave notice to the Patron of the refusal and the fourteenth of September was the Collation and it was said by the Lord Anderson that it appeareth here that there are two and twenty days between the Presentment and the Notice which is too large a delay And the Defendant hath not shewed in his Plea any cause for the justifying or excuse of it and therefore upon his own shewing we adjudge him to be a disturber See 14 H. 7. 22. 15 H. 7. 6. and note by Periam it was adjudged in the Case of Mollineux if the Patron present and the Ordinary doth refuse he ought to give notice to the person of the Patron thereof if he be resident within the County and if not at the Church it self which is void XL. Mich. 27 28 Eliz. At Serjeants Inn. THis Case was referred by the Lords of Council to the Iustices for their opinions I.S. by Indenture between the Queen of the one part and himself of the other part reciting that where he is indebted to the Queen in eight hundred pounds to be paid in form following twenty pounds at every Feast of St. Michael until the whole sum aforesaid be paid covenanted and granted with the said Queen to convey unto the Lord Treasurer and Barons of the Exchequer and to their Heirs certain Lands to the uses following viz. to the use of the said I.S. and his Heirs until such time as the said I. S. his Heirs Executors or Administrators shall make default in payment of any of the said sums and after such default to the use of the said Queen her Heirs and Successors until her Heirs and Successors shall have received of the issues and profits thereof such sums of money parcel of the said debt as shall be then behind and upaid and after the said debt so paid and received then to the use of the said I.S. and his Heirs for ever I.S. levyeth a Fine of the said Land to the said Lord Treasurer and the Barons to the uses aforesaid and afterwards being seised accordingly by deed indented and enrolled bargains and sels the said Land to a stranger default of payment is made the Queen seizeth and granteth it over to one and his Heirs quousque the money be paid and after the money is paid And upon conference of the Iudges amongst themselves at Serjeants Inn they were of opinion that now I.S. against his Indenture of bargain and sale should have his Lands again for at the time of the bargain and sale he had an estate in Fee determinable upon a default of payment ut supra Post 93. 3 Len. 43. Owen Rep. 6. 1 Inst 49. 2 which accrued to him by the first Indenture and the Fine which estate only passed by the said Indenture of bargain and sale and not the new estate which is accrued to him by the latter limitation after the debt paid for that was not in esse at the time of the bargain and sale but if the conveyance by bargain and sale had been by Feoffment or Fine then it had been otherwise for by such conveyance all uses and possibilities had been carried by reason of the forcible operation of it XLI Taylor and Moores Case Hill. 28 Eliz. In the Kings Bench. TAylor brought Debt upon an Obligation against Moore Debt Error who pleaded in Bar upon which the Plaintiff did demurre and the Court awarded the Plea in Bar good upon which Iudgment the Plaintiff brought a Writ of Error and assigned Error in this that the Bar upon which he had demurred as insufficient was adjudged good Vpon which now in this Writ of Error the Bar was awarded insufficient and therefore the Iudgment reversed But the Court was in a doubt what Iudgment shall be given in the Case viz. whether the Plaintiff shall recover his debt and damages as if he had recovered in the first Action or that he shall be restored to his Action only c. And Wray cited the Case in 8 E. 4. 8. and the Case of Attaint 18 E. 4. 9. And at last it was awarded that the Plaintiff should recover his debt and damages See to that purpose 33 H 6. 31. H 7. 12 20. 7. Eliz. Dyer 235. XLII Higham and Harewoods Case Hill. 28. Eliz. In the Kings Bench. More Rep. 221. 3 Len. 132. IN an Ejectione firmae the Case was
within the said Close the Beans were growing and were parcel of his endowment and that at the time of the taking they were severed from the nine parts whereupon he took them And it was holden by Ashton and Danby because it is confessed on both sides that the Beans whereof c. were Tithes the Right of which would come in debate betwixt the Parson and the Vicar and both are spiritual persons that the tryal thereof doth belong to the Spiritual Court. See 6 E. 4. 3. 22 E. 4. 23. 24. in such a matter betwixt the Parson and Vicar there the Temporal Court was ousted of the Iurisdiction See also 31 H. 6. 11. betwixt the Parson and the Servant of another Parson 7 H. 4. 102. In Trespass by a Parson against a Lay-man who said that one A. is Parson of a Church in a Town adjoyning to a Town where the Plaintiff is Parson and that A. let to him the Tithe and demanded Iudgment c. and pleaded to the Iurisdiction and by Gascoigne the Plaintiff may recover his Tithes in the Spiritual Court. LXXVII Bunny against Wright and Stafford Pasch 29 Eliz. In the Kings Bench. IN Trespass the Case was this Leases within 1 Eliz. and 32. 7 8. made by Bishops Grindal Bishop of Lond. leased parcel of the possessions of his Bishoprick for one and twenty years and afterwards ousted the Lessee and leased unto another for three lives rendring the antient and accustomed Rent which was confirmed by the Dean and Chapter And afterwards Grindal is translated Cook argued That the Lease is warranted by the Statute of 1 Eliz. At the Common Law a Bishop might make an Alienation in Fee-simple being confirmed by the Dean and Chapter But by 32 H. 8. cap. 28. Bishops without Dean and Chapter or their confirmation may make a Lease for one and twenty years but with the confirmation of the Dean and Chapter may make a Lease for one thousand years Co. 1. Inst 45. 2. More 107. 1 Anderson 65. But by the Statute of 1 Eliz. the power of Bishops in that right is much abridged for now with confirmation or without confirmation they cannot dispose of their possessions but for one and twenty years or three lives and this Lease is in all points according to the Statute of 1 Eliz. for first it begins presently upon the making of it Secondly the antient rent is reserved payable yearly during the term for although here be an old Lease in esse yet the Rent reserved upon the second Lease is payable during the second term for payable is a word of power and not of action as 1 H. 4. 1. 2. 3. Lord Mesne and Tenant the Mesne gives the Mesnalty in tail rendring Rent it is a good Rent and well reserved although here be not a present distress yet it may be the Tenancy will escheat and then the Donor shall distrein for all the Arrearages And so the Rent is payable by possibility And 10 E. 4. 4. A. leaseth for years and afterwards grants the Reversion to a stranger if the Beasts of the stranger come upon the Lands during the term A. may distreâ—â— for the Arrearages incurred and if he happen seisin he shall have aâ—â— Assise during the continuance of the first term And he cited a Case lately adjudged in the Exchequer A Lessor entred upon Lessee for years and made a Feoffment rendring Rent with clause of Re-entry the Lessee re-entred claiming his Term and afterwards during the said Term for years the Rent reserved upon the Feoffment upon demand of it is behind Now hath the Lessor regained the Reversion And so a Rent may be demanded although not distreinable And all that was affirmed by Egerton Solicitor General And see the words of the Statute of 32 H. 8. cap. 28. Rent reserved yearly during the said Lease due and payable to the Lessor c. such Rent c. and yet by the said Statute such Leases may be good although there be a former interest for years in being if the same shall be expired surrendred or ended within one year after the making such new lease and so not expresly payable in rei veritate annually during the Term. LXXVIII Bonefant and Sir Rich. Greenfields Case Pasch 29 Eliz. In the Kings Bench. Sale of Lands by the Executors of the Devisor BOnefant brought Trespass against Sir Rich. Greenfield and upon the general issue this special matter was found Tremagrie was seised of a Manor whereof the place where c. was parcel in his Demesne as of Fee and by his Will devised the same to his four Executors and further willed Post 260. that his said Executors should sell the same to Sir John Saintleger for the payment of his debts if the said Sir John would pay for it one thousand one hundred pounds at such a day and died Sir John did not pay the mony at the day One of the Executors refused Administration of the Will the other three entred into the Land and sold it to the Defendant for so much as it could be sold and in convenient time It was moved that the sale was not good for they have not their authority as Executors but as Devisees and then when one refuseth the other cannot sell by 21 H. 3. Cestuy que use Wills that is Executors shall alien his Land and dieth although the Executors refuse the Administration yet they may alien the Land. 19 H. 8. 11. 15 H. 7. 12 Egerton Solicitor argued that the sale is good by the Common Law and also by the Statute 49 E. 3. 16 17. Devise that his Executors shall sell his Land and dieth and one of the Executors dieth another refuseth the third may sell well enough 1 And. 145. and the sale is good See Br. Devise 31. 30 H. 8. 39 E. 3. Br. Assise 356. And he put a difference where an Authority is given to many by one deed there all ought to joyn contrary where the Authority is given by Will And if all the Executors severally sell the Lands to several persons such sale which is most beneficial for the Testator shall stand and take effect And here it is found by verdict that one of the Executors recusavitonus Testamenti Ergo he refused to take by the Devise for it was devised unto him to the intent to sell therefore if he refuseth to sell he doth refuse to take and so it is not necessary that he who refuseth joyn in the sale and although we are not within the express words of the Statute yet we are within the sense and meaning of it And afterwards it was adjudged that the Condition for the manner of it was good LXXIX Gamock and Cliffs Case Pasch 29 Eliz. In the Common Pleas. Ejectione firmae EJectione firmae was brought by Gamock against Cliff of the Manor of Hockly in the County of Essex and upon the evidence the case was That the King and Queen Philip and Mary seised
as in case where the Husband died seised Dy. 370. the which dying seised is not found by the Verdict In which Case it was said by the Court the Demandant might pray Iudgment of the Lands and release damages or the Demandant may aver that the Husband died seised and have a Writ to enquire of the damages quod omnes Pregnotarii concesserunt CXIX Michel and Hydes Case Mich. 29 30 Eliz. In the Common Pleas. Dower DOwer by Michel and his Wife against Lawrence Hyde who appeared upon the grand Cape And it was because that the said Hyde in truth was but Lessee for years of the Land of which c. in which case he might plead non-tenure if now he might wage his Law of non-summons so as the Writ be abated for by the wager of Law he hath taken upon him the Tenancy and affirmed himself to be Tenant 33 H. 6. 2. by Prisoit to which it was said by Rhodes and Windham Iustices that here the Tenant being but Lessee for years is not at any mischief for if Iudgment and Execution be had against him he notwithstanding might afterwards enter upon the Demandant Another matter was moved That where the Writ of Dower was de tertia parte Rectoriae de D. and upon that the grand Cape issued Cape in manum nostram tertiam partem Rectoriae and the Sheriff by colour of this Writ took the Tythes severed from the nine parts and carried them away with him And it was agreed by the said Iustices that the same is not such a seisure as is intended by the said Writ but the Sheriff by virtue of such Writ ought generally to seize but leave them there where he found them And the Court was of opinion to commit the Sheriff to Prison for such his misdemeanor CXX Hamington and Ryders Case Mich. 29 30 Eliz. In the Common Pleas. RIchard Haming Executor of Isabel Haming brought Debt upon an Obligation against Ryder Debt Savil Rep. 74. Owen Rep. 6. 1 Co. 52. 1 Andâ— 162. the Case was that Kidwelly was seised leased for years to John Hamington Husband of Isabel and afterwards John Hamington being so possessed by his will devised that the said Isabel should have the use and occupation of the said Land for all the years of the said Term as she should live and remain sole and if she died or married that then his Son should have the residue of the said Term not expired John died Isabel entred Devises to whom the said Lawr. coveyed by Feoffment the said Land in Fee and in the Indenture of the said Conveyance Lawr. covenanted that the said Land from thence should be clearly exouerated de omnibus prioribus barganijs titulis juribus omnibus alijs oneribus quibuscunque Isabel took to Husband the Son entreth If now the Covenant be broken was the question It seemed to Anderson at the first motion that this possibility which was in the Son at the time of the Feoffment was not any of the things mentioned in the Covenant scil former bargain title right or charge But yet it was conceived by him that the word bargain did extend to it for every Lease for years is a contract and although that the Land at the time of the Feoffment was not charged yet it was not discharged of the former contract And by Windham if I be bounden in a Statute-staple and afterwards I bargain and sell my Lands and covenant ut supra here the Land is not charged but if after the condition contained in the defeazance be broken so as the Conusee extends now the Covenant is broken And by him the word charge doth extend to a possibility and this possibility might be extinct by Livery as all agreed but not translated by grant Ante 33. 3 Len. 43. Covenant or extinguished by release as it was lately adjudged in the Case of one Carter At another day it was argued by Walmesley and he much relied upon the words clearly exonerated utterly discharged or altogether exonerated and without doubt it is a charge which may happen and if it may happen then the Land is not clare exonerated And also former bargains do extend to it and the Term is not extinct by the acceptance of the Feoffment aforesaid of Kidwelly and although that at the time of the Feoffment it was but a possibility and no certain interest yet now upon the marriage of Isabel it is become an actual burthen and charge upon the Land and he cited a Case adjudged 8 Eliz. A man seised of Lands grants a Rent-charge to begin at a day to come before which day he bargains and sells the Lands and covenants that the said Lands are discharged of all charges in that case when the day when the Rent ought to begin is incurred the Covenant is clearly broken for the Lands were not clearly exonerated c. At another day the Case was moved at the Bar. And Anderson openly in Court declared that he and all his companions were agreed that the Land at the time of the Feoffment was not discharged of all former Rights Titles and charges and therefore commanded that Iudgment should be entred for the Plaintiff CXXI Howel and Trivanians Case Hill. 30 Eliz. In the Kings Bench. HOwel brought an Action upon the Case against Trivanian in the Common Pleas and declared Assumpsit that he delivered certain goods to the brother of the Defendant who made the Defendant his Executor and died after which the Plaintiff came to the Defendant and spake with him concerning the said goods upon which communication and speech the Defendant promised the Plaintiff that if the Plaintiff could prove that the said goods were delivered to the Testator 2 Roll. 594. that he would pay the value of them to the Plaintiff And the Declaration was in consideration that the said goods came to the hands of the Testator and also afterwards the goods came to the Defendants hands and upon non Assumpsit pleaded It was found for the Plaintiff and Iudgment given And afterwards Error was brought in the Kings Bench and Error assigned because that the Plaintiff had not averred in his Declaration that he had proved the delivery of the said goods to the said Testator 1 Cro. 105. for the words of the promise are si probare potuisset And also it was assigned for Error that here is not any consideration upon which this promise could receive any strength for the Defendant hath not any profit or advantage thereby scil by the bailment of the said goods to the Brother of the Defendant And also it is a thing before executed and not depending upon the promise nor the promise upon it As the Case reported by the Lord Dyer 10 Eliz. 272. The Servant is arrested in London and two men to whom the Master is well known bail the said Servant and after the Master promiseth to them for their friend-ship to save them harmless from all costs
which process issued out of the Exchequer to take and seize all the goods and two parts as well of all the Lands Tenements and Hereditaments Leases and Farms of such Offender as of all other the Lands Tenements and Hereditaments liable to such seisure or to the penalties aforesaid by the true meaning of this Act leaving the third part c. And Popham Attorney General moved If a Recusant hath more than a third part of his Lands in Copy-hold land if this Copy-hold as to the surplusage shall be liable to the penalty Manwood chief Baron conceived that the Copy-hold is liable in this Case by the Statute although not directly by express words yet within the intent of it and that by reason of these words all other the lands c. liable to such seisure c. Walmes Serjeant Copy-hold is not liable to a Statute Merchant or Staple also if the Queen hath the Copy-hold how shall the Lord have the services which the Queen cannot do Also a Copy-hold is not an Hereditament within this Statute which extends only to Hereditaments at the common Law and not by custom Also in Acts of Parliaments which are enacted for forfeiture of Lands Tenements and Hereditaments by those words they shall not forfeit Copy-holds Clark Baron this Statute was made to restrain Recusants from taking the benefit of their Livings and Copy-holds are their Livings as well as Free-holds and by this Statute the Queen shall not have every estate in the Copy-hold Land but only the taking of the profits but the scope of the Statute was to impair the Livings of Recusants and that by driving of them for want of maintenance to repair to the Church Walmesley If the Statute had given to the Queen to seise two parts of their livings then the Statute had extended to Copy-holds Manwood when a Statute is made to transfer an estate by name of Lands Tenements and Hereditaments the Copy-hold is not within such Statute but if the Lords Signiory his Customs and Services are not to be impeached or taken away by such Statute then it is otherwise for such Statute doth not make another Tenant to the Lord And by him Copy-holder shall pay Subsidies and he shall be assessed according to the value of his Copy-hold as well as of his Freehold and in this Case the Queen is to have the profits of the Lands only but no estate At another day the case was argued for the Recusants by Snag Serjeant and he said that these words Lands Tenements and Hereditaments are to be construed which are such at the Common Law not by Custom If I give to one all my Lands Tenements and Hereditaments in D. my Copy-holds do not pass and Statutes which are made to take away Possessions and Hereditaments out of persons ought to be strictly taken and not by Equity The Statute of 13 Eliz. of Bankrupts enacts that the Commissioners may sell the Lands and Tenements of the Bankrupts if the Statute had not made a further provision the Commissioners could not sell Copy-hold Lands but there are express words in the Statute for that purpose i.e. as well copy as fee Also the Staute of 13 Eliz. cap. 4. of Auditors and Receivers of the Queen doth not extend to Copy-holds And it should be a great prejudice to the Lords of such Copy-holds that the Queen should have the Land. Popham the intention of the Law somtimes causes a liberal construction of a Statute in the letter of it What Statutes extend to Copy-holds somtimes a strict and precise exposition and here it appeareth that the intention of the Statute was that the Queen should have all the goods of the offender and two parts of the Lands c. Leases and Farms and the Recusant but the third part of all his Lands only And therefore the Recusant is not to have any other thing but only that which is allotted to him by the Statute and that is the third part which is all the maintenance which the Law allows him and then if Copy-holds be not within this Statute a Recusant who hath great possessions in Copy-holds and hath no Free-hold should be dispunishable and hath his full maintenance against the meaning of the Statute And he said that many things are within the meaning of a Statute â—y 5. 6. Co. 3. Inst 109 Yel 60. 12 Co. 12. which are not within the words as Bonds Obligations and Specialties made to Recusants shall pass to the Queen by this Statute by force of the word goods according to the meaning of the Statute and all personal things are within the Statute c. profits of the Lands Advowsons and the like and the very scope of the Statute was to take away from Recusants all personal things whatsoever and two parts of real things as Leases Farms Lands Tenements c. with the intent that with the superfluity of their goods and possessions she should not maintain Iesuits and Seminary Priests people more dangerous than the Recusants And by him Lands in ancient demesne are liable to the penalties by the Statute although not by express words So if a Recusant hath Lands extended by him upon a Statute acknowledged unto him that Interest is not properly a Lease or Farm yet it is Land within this Statute liable c. And if I be Tenant by Elegit or Statute c. of Lands in D. not having other Lands in the said Town and I grant all my Lands in D. my Interest ut supra shall pass contrary If I have other Lands there And I grant that if I have Copy-hold Lands in D. and none other and I grant all my Lands in D. Copy-hold Land shall not pass by such assurance because that Copy-hold cannot pass but by surrender If I put out a Copy-holder out of his Lands the same is a Disseisin to the Lord of whom the Copy-hold is holden And if I levy a Fine of such Lands and five years pass not only the Lord is bounden as to his Free-hold and Inheritance but also the Copy-holder for his possession for the intent of the Statute of 4 H. 7. was to take away controversies litibus finem imponere 5 Co. 124. and contention may be as well for Copy-hold as for Land at the common Law. One hath a Lease for years to begin at a day to come he who hath the Free-hold thereof is disseised the Disseisor levieth a Fine five years pass he who hath the Free-hold is bound by it but not he who hath the Interest for years in futuro as it hath been lately adjudged But he said That if that point were to be handled again the Law would be taken to the contrary but it is clear that a Lease in possession shall be bound by such Fine And as unto any prejudice to the Lord it is clear that notwithstanding that the Queen hath the Copy-hold Land yet the Lord shall have the Rent during the possession of the Queen which is the
plead it specially but as our case is here is no Act to be done but a permittance as abovesaid and it is in the Negative not a disturbance in which case permisit is a good plea and then it shall come on the other side on the Plaintiffs part to shew in what Lands the Defendant non permisit Which difference see agreed 17 E. 4. 26. by the whole Court. And such was the opinion of the whole Court in the principal case 1 Co. 127. Another Exception was taken to it that the Defendant had covenanted that his brother Edward should pay to the Plaintiff the said Rent To which the Defendant pleaded that his said brother had payed to the Platntiff before the said Feast of Michaelmas in full satisfaction of the said Rent three shillings and that was holden a good plea and upon the matter the Covenant well performed for there is not any Rent in this Case for here is not any Lease and therefore not any Rent For if A. covenant with B. that C. shall have his Land for so many years rendring such a Rent 1 Roll. 847. 1 Cro. 173. Owen 97. here is not any Lease and therefore neither Rent But if A. had covenanted with C. himself it had been otherwise because it is betwixt the same parties And if the Lessee covenant to pay his Rent to the Lessor and he payeth it before the day the same is not any performance of the Covenant causa patet contrary of a sum in gross Another Covenant was that the said Humphry solveret ex parte dicti Edwardi 20 l. to which the Defendant pleaded that he had paid ex parte dicti Humfridi 20 l. and that defect was holden incureable and therefore the Plaintiff had Iudgment to recover CLXXXVII Geslin and Warburtons Case Mich. 30 Eliz. In the Common Pleas. 1 Cro. 128. IN an Ejectione firmae by Joan Geslin against Hen. Warburton and Sebastian Crispe of Lands in Dickilborough in the County of Norf. Mich. 30. 31 Eliz. rot 333. upon the general Issue the Iury found a special verdict that before the Trespass supposed one Martin Frenze was seised of the Lands of which the Action was brought in tail to him and his Heirs males of his body so seised suffered a common Recovery to his own use Devises and afterwards devised the same in this manner I give my said Land to Margaret my Wife until such time as Prudence my Daughter shall accomplish the age of nineteen years the Reversion to the said Prudence my Daughter and to the Heirs of her body Lawfully begotten upon condition that she the said Prudence shall pay unto my said Wife yearly during her life in recompence of her Dower of and in all my Lands 12 pounds and if default of payment be made then I will that my said Wife shall enter and have all my Lands during her life c. the Remainder ut supra the Remainder to John Frenze in tail c. Martin Frenze died Margaret entred the said Prudence being within the age of fourteen years Margaret took to Husband one of the Defendants John Frenze being Heir male to the former tail brought a Writ of Error upon the said Recovery and assigned Error because the Writ of Entry upon which the Recovery was had was Praecipe quod reddat unum Messuag and twenty acras prati in Dickelborough Linford Hamblets without naming any Town And thereupon the Iudgment was reversed And it was further found that in the said Writ of Error and the process upon it Hutt 106. 2 Cro. 574. 3 Cro. 196. no Writ of Scire facias issued to warn dictam Prudentiam ten existentem liberi ten praemissorum ad ostendendam quid haberet vel dicere sciret quare Judicium praedict non reversaretur The Iury further found that the said Margaret depending the said Writ of Error was possessed virtute Testamenti ultimae voluntatis dict Martini reversione inde expectant dictae Prudentiae pro ut lex postulat And they further found Error that six pound of the said tewlve pounds were unpaid to the said Margaret at the Feast c. and they found that the said John Frenze praetextu Judicii sic reversat entred into the premisses as Heir male ut supra And so seised a Fine was levyed betwixt John Frenze Plaintiff and one Edward Tindal Owen 157. Dyer 321. 1 Cro. 471. 739. and the said Prudence his Wife Deforceants and that was to the use of the said John Frenze And that afterwards Humphry Warburton and the said Margaret his Wife brought a Writ of Dower against the said John Frenze Edw. Tindal and Prudence his Wife of the said Lands The said Edward and Prudence made default and the Demandants counted against the said Frenze and demanded against him the moity of the third part of the said Lands To which the said Frenze pleaded that the default of the said Edward and Prudence idem John Frenze nomine non debet quia he said that he the said John was sole seised of the Lands aforesaid at the time of the Writ brought c. and pleaded in Bar and it was found against the said John and Iudgment given for the Demandants of the third part of the whole Land and seisin accordingly And that afterwards 17 Eliz. the said Frenze levyed the Fine to the said Tindal to the use of the said Tindal and his Heirs And they found that after the said Feast the said Henry Warburton and Margaret his Wife came to the Messuage aforesaid half an hour before Sun-set of the said day and there did demand the Debt of the said twelve pounds Dower to the said Margaret by the said Martin Frenze devised to be paid unto them and there remained till after Sun-set of the said day demanding the Rent aforesaid and that neither the said Tindal nor any other was there ready to pay the same And first it was moved if the said yearly sum of twelve pounds appointed to be paid to the said Margaret were a Rent or but a sum in gross And the opinion of the Court was that it was a Rent and so it might be fitly collected out of the whole Will where it is said that Prudence his Daughter should have the Land and that she should pay yearly to Margaret twelve pounds in recompence of her Dower c. But if it be not a Rent but a sum in gross it is not much material to the end of the case For put case it be a Rent the same not being pleaded in Bar the Dower is well recovered and then when default of payment is made if the Wife of the Devisor shall have the whole was the Question And the Court was clear of opinion that by the suit and Iudgment in the Writ of Dower the Wife of the Devisor had lost all the benefit which was to come to her by the devise For the said Rent was devised to her in recompence of
CCLXXVIII Arrundel and the Bishop of Gloucesters and Chaffins Case Mich. 31 32 Eliz. In the Common Pleas. Quare Impedit SIir John Arrundel brought a Quare Impedit against the Bishop of Gloucester and Chaffin and counted upon a disturbance to present 1 Novembris Chaffin as incumbent pleaded That 1 Maii next after the said 1 Novemb. he himself was presented to the Church by the Queen the presentment to the said Church being devolved unto her by Lapse Vpon which the Plaintiff did demur in Law And the plea was holden insufficient for the Plaintiff counted upon a Disturbance to him 1 Novem. and the Defendant entitleth himself to an incumbency 1 May after in which case the disturbance set forth in the Count is not answered by traverse nor confessed nor avoided And of that opinion was the whole Court For the disturbance of which the Plaintiff hath declared is confessed And afterwards It was moved by the Queens Serjeants That the Queen might have a Writ to the Bishop Writ to the Bishop for the title of the Queen appeareth to be by Lapse which is confessed But the whole Court were clear of opinion against it For although it appeareth that he was lawfully presented to the said Church and so once lawfull Incumbent yet it appeareth also That the title of the Queen is once executed and so gon and nothing remains in the Queen and now when the Defendant hath lost his incumbency by ill pleading as he may as well as by Resignation or Deprivation yet the same shall not turn to the advantage of the Queen for where the Queen presents for laps and her Clark is instituted and inducted the Queen hath no more to do but the Incumbent must shift as well as he can for the holding of it for by what manner so ever he loseth his incumbency the Queen shall not present again otherwise it had been if the Queen be Patron and afterwards the Plaintiff had a Writ to the Bishop CCLXXIX The Lord Pagets Case in a Monstrans de Droit The Case was Mich. 31 32 Eliz. In the Exchequer Chamber More 193 194 1 Co. 154. 1 And. 259. THomas Lord Paget Father of William Paget was seised of the Mannor of Burston and divers other Mannors in three several Counties in his demesne as of fee and so seised by Indenture between the said Lord of the one part and Trentham and others on the other part and in consideration that the said Trentham and others with the profits of the said Mannors should pay his debts and such sums of money which were contained in such a Schedule and which he should appoint by his last Will covenanted to stand seised of the said Mannors to the use of the said Trentham of one Eusal c. for the term of four and twenty years and after the Expiration or end of the said Term of twenty four years unto the use of the said William Paget his Son in tail with diverse Remainders over And afterwards the said Lord Paget was attainted of high Treason It was here holden and agreed by all the Iustices and by the Council of both sides That the uses limited to Trentham and others are void for here is not any consideration sufficient to raise an use for the mony which is appointed for the payment of his debts is to be raised of the profits of the Lands of the said Lord Declaration of uses which is not any consideration on the part of Trentham and others But if the consideration had been That they with the Profits of their own Lands should pay the debts c. It had been a good Consideration It was agreed also That the term for twenty four years to Eusal is void for want of sufficient consideration And then it was moved If this Lease being void The use limited to the said William Paget Son of the said Lord Paget should being presently upon the death of the Lord Paget or should expect until the twenty four years were encurred after the death of the Lord Paget or not at all And it was argued That an use to be raised upon an impossibility should never rise as if I covenant to stand seised to the use of B. and his Heirs after the end of the term for years which I.S. hath in the Mannor of D. whereas in truth I. S. hath not any term in it the said use shall never rise so here Use cannot rise out of a possibility No use to the Son can rise for the lease for twenty four years shall never end for it never can begin for want of sufficient consideration as is aforesaid and if the said use in tail should at all rise it should not rise before the expiration of the said twenty four years As if I covenant to stand seised of certain Lands to your use when my Son and Heir shall come to the age of one and twenty years now if my Son dieth before such age The use shall not begin before the time in which my Son if he shall live should attain unto his said age Egerton the Queens Solicitor Vses may be limited to begin at times certain before which they shall not begin and so in our case the use in tail in limited to begin when the term of twenty four years is ended and therefore until the Term be ended no use shall rise and the use is limited to rise upon the end of the time or term of four twenty years and not upon the end of the estate and so William Paget hath begun his Monstrans de Droit before his time The Lord Paget had but an estate for life and if so Then the Remainders are not continggent uses but vest presently as if a man covenant That after his death his Son and Heir shall have his Lands now the Father hath but an estate for life and the inheritance is vested in the Son. Cook I covenant That after twenty four years ended I and my Heirs will stand seised to the use of my Son c. there the use in Fee doth vest in my Son presently So I covenant That after my death I and every one who shall be seised c. shall be seised of the said Land to the use of my Brother the said use shall rise to my Brother presently I devise That after the death of such a Monk I.S. shall have the Land nothing passeth to I.S. till the death of the Monk but if Land be devised to a Monk for life and afterwrds to another in Fee the Devisee in Fee shall have the Land presently Manwood A devise or use limited to one for life the Remainder in tail the first devisee doth disagree Cook the Remainder doth vest presently Manwood I devise lands unto one until my Son comes of full age Cook The remainder doth vest presently Manw. A use limited to one to begin at Mich. next the remainder over if in the mean time the Lessee obtain the
33 Eliz. In the Common Bench. IT was found by special Verdict that Berwich and Tesdel seised of certain Lands conveyed the same to Sir Thomas Cotton for life Fines levied to use Co. 2 Inst 519. 1 Cro. 219. the Remainder to VVil. Cotton primogenito filio suo haeredi masculo sic de primogenito ad primogenitum dict VVilliam the Remainder to the right Heirs of the body of Sir Tho. Cotton and VVil. Cotton lawfully issuing the Remainder to the right Heirs of Sir Tho. Cotton VVil. had Issue a Son born here in Eng. and went beyond Sea to Antwerp and there continuing and his Son being within age in England Sir Thomas Cotton levied a Fine of all the Land sur conusans de droit come ceo c. And afterwards by Indenture convenanted to stand seised to the use of himself for life and afterwards to the use of Rober Cotton his Son in Fee William died at Antwerp his said Son being within age in England Sir Tho. Cotton died Robert entred and leased the Lands for years to Sary and the Infant Son and Heir of William leased the Land to one Chewn at Will who entred and ousted Sary who thereupon brought Ejectione firmae It was here holden by the Court that Sir Tho. Cotton was Tenant for life the Estates Remainder to William for term of his life the Remainder to the Heirs of both their bodies issuing So as unto one Moyety Sir Thomas Cotton had an Estate tail dependant upon the said Estates for life and so the Fine levied by him was a Bar to the Issue of William for a Moyety And as to the other Moyety they held that the said Fine was not any Bar but that the party interessed at the same time might avoid the Fine at any time during his Nonage five years after for Wil. his Father was not bound by the Statute of 4 H. 7. because at the time of the Fine levied he was beyond the Seas and although he never returned but died there yet by the equity of the Statute his Issue shall have five years after his death to avoid the Fine if he were of full age and if he were within age then during his Nonage and five years after At another day the Case was argued and put in this manner viz. Lands were given to Sir Thomas Cotton for life without Impeachment of Wast the Remainder over to Cheny Cotton his eldest Son primogenito filio haeredi Masculo of the said Cheny sic de primogenito filio in primogenitum filium the Remainder to the Heirs Males of the body of the said Cheny for want of such Issue the Remainder to Wil. Cotton his second Son primogenito filio in primogenitum filium the Remainder over to the said Sir Thomas and the said William and the Heirs Males of their bodies lawfully begotten Cheny Cotton died without Issue William having Issue went beyond the Sea Sir Thomas Cotton 19 Eliz. levied a Fine with Proclamation and afterwards William the Father died in Antwerp his Son being within age Sir Thomas by Indenture limited the use of the Fine to himself for life the Remainder over to Robert Cotton his third Son in Tail Sir Thomas died but it doth not appear at what time William the Son being yet within age entred but non constat quando and 31 Eliz. leased the Lands to the Defendant at Will. Drue Serjeant argued for William Cotton And he conceived that William the Father had an Estate-tail and then the entry of William the Son was congeable for the whole But admitting that it is not an Estate-tail in VVilliam the Father for the whole yet he hath by the second Remainder an Estate-tail in the Moyety and then his Entry good as to one Moyety and then Robert being Tenant in Common of the other Moyety Tails his Lessee without an actual Ouster cannot maintain an Ejectionae firmae against the Lessee of his Companion And he conceived here is a good Estate-tail in VVilliam Cotton by virtue of the Limitation to William primogenito filio haeredi Masculo ipsius Guliel sic de primogenito filio in primogenitum filium c. for according to the Statute of VVest 2. the will of the Donor ought to be observed and here it appeareth that the intent of the Donor was to create an Estate-tail although the words of the Limitation do not amount to so much And the Estates mentioned in the Statute aforesaid are not Rules for Entails but only Examples as it is said by Trew 33 E. 3 F. Tail 5. see Robeiges Case 2 E. 2. 1 Fitz. Tail and 5 H. 5. 6. Land given to A. and B. uxori ejus haeredibus eorum aliis haeredibus dicti A. si dict haeredes de dictis A. B. exeuntes obierint sine haeredibus de se c. and that was holden a good Entail so a gift to one and his Heirs si haeredes de carne sua habuerit si nullos de carne sua habuerit revertatur terra and adjudged a good tail So 39 E. 3. 20. Land given to Husband and Wife uni haeredi de corpore suo ligitime procreat uni haeredi ipsius haeredis tantum And that was holden a good Tail and so he conceived in this Case that although the words of the Limitation are not apt to create an Estate-tail according to the phrase and stile of the said Statute of VVest 2. yet here the intent of the Donor appears to continue the Land in his Name and Blood for VVilliam the Son could not take with his Father by his Limitation for he was not in rerum natura and therefore all shall vest in VVilliam the Father which see 18 E. 3 Fitz. Feoffments Fait 60. Now it is to see if upon the Limitation to Sir Thomas Cotton and VVilliam his Son by which the Remainder is limited to Sir Thomas Cotton and VVilliam and the Heirs Males of their bodies issuing the said Sir Thomas Cotton Wil. have a joynt Estate-tail in respect that the Issue of the body of the Son may be Heir of the Body of the Father and so because they might have one Heir which shall be inheritable to his Land it shall be one entire Estate-tail in them But he conceived that they are several Estates-tail and that they are Tenants in Common of an Estate tail 3 4 Phil. Mar. Dyer 145. Land given to the Father and Son and to the Heirs of their two Bodies begotten the Remainder over in Fee the Father dieth without other Issue than the Son only and afterwards the Son dieth withou Issue a stranger abates Or if the Son hath made a Discontinuance if he in the Remainder shall have but one or two several Formedons was the Question And by Saunders Brook and Brown but one Formedon and Quaere left of it yet admitting that yet notwithstanding that it might be
Entry so where an use is often executed by the Statute Cestuy que use without any Entry hath an actual possession i. As to the uses contingent nothing remains in the Feoffees for the setling of them when they happen but the whole estate is setled in Cestuy que use yet subject to such use and he shall render the same upon contingency And if any estate should remain in the Feoffees it could be but an estate for life for the Fee simple is executed in Cestuy que use with an estate in possession and then the Feoffees should be seised to another use than was given them by the Livery Also if a Feoffment be made unto the use of the Feoffor and his heirs until J.S. hath paid unto the Feoffor 100 l. from thenceforth the Feoffor and his heirs shall be seised to the use of the said J.S. and his heirs if upon such Feoffment any thing should remain in the Feoffees before the payment by I.S. the same should be a Fee-simple and then there should be two Fee-simples of one and the same Lands one in the Feoffor and the other in the Feoffees which should be absurd and therefore the best way to avoid such inconveniences is to continue the Statute that it draws the whole estate of the Land and also the confidence out of the Feoffees and reposeth it upon the Lands the which by the operation of the Statute shall render the use to every person in his time according to the limitation of the parties And also if any Interest doth remain in the Feoffees Then if they convey to any person upon consideration who hath not notice of the use then the said use shall never rise which is utterly against the meaning of the said Statute and the meaning of the parties and therefore to construe the Statute to leave nothing in the Feoffees will prevent all such mischief And if a Feoffment in fee be made to the use of the Feoffor for life and afterwards to the use of his wife which shall be for life and afterwards to the use of the right Heirs of the Feoffor The Feoffor enfeoffeth a stranger taketh a wife now cannot the Feoffees enter during the life of the Feoffor and after his death they cannot enter because they could not enter when the use to the wife was to begin upon the intermarriage and then if the Entry of the Feoffees in such case should be requisite the use limited to the wife by the Act of the Feoffor should be destroyed against his own limitation which is strong against the meaning of the Act aforesaid for by the said act the Land is credited with the said use which shall never fail in the performance of it And such contingent estates in Remainder may be limited in possession a Fortiori in use which see 4. E. 6. Coithirsts case 23. And Plesingtons case 6 R. 2. And it is true at the common Law the Entry of the Feoffees was requisite because the wrong was done unto them by reason of the possession which they then had but now by the Statute all is drawn out of them and then there is no reason that they medle with the Lands wherein they have now nothing to do and the scope of the Statute is utterly to disable the Feoffees to do any thing in prejudice of the uses limited so as the Feoffees are not to any purpose but as a Pipe to convey the Lands to others So as they cannot by their Release or confirmation c. bind the uses which are to grow and arise by the limitation knit unto the Feoffment made unto them which see Br. 30. 30 H. 8. Feoffments to uses 50 A. covenants with B. That when A. shall be enfeoffed by B. of three Acres of Lands in D. that then the said A. and his Heirs shall be seised of Land of the said A. in S. to the use of B. and his Heirs and afterwards A. enfeoffeth a stranger of his Lands in S. And afterwards B. enfeoffeth A. of his Lands in D. now the Feoffee of A. shall be seised to the use of B. notwithstanding that the said Feoffee had not notice of the use for Land is bound with the use in whose hands soever it come And see the like case ibid. 1. Ma. 59. Vpon the reason of which cases many assurances have been made for it is the common manner of Mortgage i. e. If the Mortgag or pay such a sum c. that then the Mortgagee and his Heirs shall be seised after such payment to the use of the Mortgagor and his Heirs In that case although that the Mortgagee alien yet upon the payment the use shall rise well enough out of the possession of the Alienee and the Lands shall be in the Mortgagor without any Entry For the Mortgages could not enter against his own alienation to revive the use which is to rise upon the payment and therefore without any assistance of such Entry it shall arise As at the Common Law Land is given to A. in tail the Remainder to the right heirs of B. A. levies a Fine makes a Feoffment suffers a Recovery c. although the same shall bind the Issues yet if B. dyeth and afterwards A. dyeth without issue now notwithstanding this Fine c. The right Heir of B. may enter And always a use shall spring out of the Land at his due opportunity and it is a collateral charge which binds the Lands by the first Liberty and cannot be discharged vi 49. Ass 8. 49 E. 3. 16. Isabell Goodcheapes case A man deviseth that his Executors shall sell his Lands and afterwards dyeth without heir so as the Land escheats to the King yet the authority given to the Executors shall bind the Lands in whose hands soever it comes c. And so a title of Entry continues notwithstanding twenty alienations But an use is a less thing than a Title of Entry especially an use in contingency and an use as long as it is in contingency cannot be forfeited As if the Mortgagor be attainted and pardoned mean betwixt the Mortgage and the day of Redemption c. Then when Thomas levies a Fine Francis may well enter And Thomas before the Fine had an estate tail executed to his Free-hold and therefore by the Fine he gave an estate of Inheritance to the Conusee and then no right of entail remained in Francis but he took an estate for life only and that as a Purchasor by the limitation of the Will and then when Francis levied a Fine his estate was gone which was but for life and then the right of the entail and all the other estates which are especially limited are also gone and so Percival Hart to whom no estate was specially limited hath not any cause to enter c. And it was further said by Wray Husband and Wife Tenants in special tail the Husband levies a Fine with Proclamations and dieth the Wife enters the issue in tail is
Nonage of every Heir but admitting that the Custom were void yet this Action doth not lye for the Defendant hath not entred and taken the profits as Prochein amy in which Case although he was not Prochein amy c. he is chargeable Oâ—â—â—â— Rep. 36 â—3 84. as Prochein amy according to his Claim but here he claimeth by the Custom and Grant of the Lord and not in the right of the Heir and therefore it was adjudged in this time of this Quaere that if one entreth into Lands claiming by Devise where in truth the Land devised is entailed he should not be charged in accompt c. CCCLVIII 20 Eliz. In the Common Pleas. NOte It was holden by the whole Court Exposition of the Statute of 32 and 34. Of Wills. That the Statute of 32 34 H. 8. of Wills did not extend to Lands in London but that the devise of the whole is good And if Houses in London parcel of the possessions of Abbies came to the Crown by Dissolution and he grants them over to hold in chief by Knights service these Lands are devisable But it was holden That the said Statutes as Acts executed extended to Lands in London and shall be good but for two parts And if a man hath Lands in tail and in Fee-simple which are of double the value of the Lands in tail and deviseth all his Lands all the Land in Fee-simple shall pass Dyer One seised of three Manors the one in Capite in Fee and two in Socage in tail and deviseth all his Land in Capite it is good against the King for all Capite Land and he shall be tied to have the Lands in Socage but it shall not bind the Heir And a devise of the third part where all is devised is void as well against the Heir as against the King. And he said That if a man be seised of twenty Acres in Socage and ten Acres in Capite and deviseth two parts of his Lands it is reasonable to say That all the Socage Lands shall pass but if the devise was of two parts of all his Lands it is otherwise for this word All implies that the two parts shall be per my per tout as well Capite as Socage i. e. It was argued by Fenner That the Lands in London are now devisable as they were before the Statute for if the Devisee of Lands in London be disturbed he shall have Ex gravi Querela otherwise it is of Lands at the Common Law and if an Assize of Mortdancester be brought of Lands in London it is a good Plea to say That the Lands are devisable But in an Assise of Mortdancestor of Lands at the Common Law it is not any Plea And if a man gives Lands at the Common Law i. e. not devisable by the Common Law he cannot devise the Reversion for the Statute shall not do wrong to the person i.e. to the Donee who there shall lose his Acquittal But of Lands devisable by custom it is otherwise And if Land in a Burrough was devisable for life by the Custom and afterwards came the Statute of 23 H. 8. which made all Lands devisable now that Land is devisable for life by the Custom and the Reversion by the Statute CCCLIX 20 Eliz. In the Common Pleas. IN an Action of Wast of Wast assigned in a Wood Wast the Iury viewed the Wood only without entring into it And it was holden that the same was sufficient for otherwise it should be tedious for the Iury to have had the view of every stub of a Tree which had been felled Yet Meade Iustice said That if Wast be assigned in several corners of the Wood then the Iury is to have the view of every corner but contrary where Wast is assigned in the whole Wood Vieâ— And if Wast be assigned in every Room of a House the view of the House generally is sufficient And Dyer Iustice said That if Wast be assigned in several places and of some of them the Iury had not the view of that they may find no Wast done CCCLX Sir Thomas Lees Case 20 Eliz. In the Common Pleas. IT was holden per Curiam That whereas Sir Thomae Lee was seised of a Manor Election and aliened the Manor except one Close parcel of the said Manor called Newdick and there were two Closes parcel of the said Manor called Newdick the one containing nine Acres and the other containing three Acres That the Alienee should not chuse which of the said Closes he would have but the Alienor or Feoffor should have the Election which of the said Closes should pass CCCLXI. 20 Eliz. In the Common Pleas. TEnant in tail the Remainder in tail c. Tenant in tail in possession Fines levied by Tenant in tail in Remainder 3 Cro. 211. makes a Lease for three lives according to the Statute of 32 H. 8. and afterwards dieth without issue he in the Remainder before any Entry levieth a Fine the same is good for by the death of Tenant in tail without issue the Free-hold is vested in him in the Remainder in tail And of that opinion was the whole Court. CCCLXII Ferrand and Ramseys Case 20 Eliz. In the Common Pleas. IN an Ejectione firmae brought of a House in London the Defendant pleaded That long time before the Lessor of the Plaintiff had any thing c. One Ann Ramsey was seised in Fee and died seised and that the same descended to William Ramsey as Son and Heir to the said Ann who was disseised by Israel Owen who leased to the Plaintiff upon whom the said William Ramsey did re-enter The Plaintiff Replicando That the said Ann did not die seised said That before the Ejectment one Robert Owen was seised and died seised and from him descended the said House to Israel Owen as Son and Heir of the said Robert absque hoc that the said Israel did disseise the said Ann upon which they were at issue and at Nisi prius in London it was given in Evidence of the Defendants part That Crofton and Langhton were seised in Fee of the said Messuage and by Deed indented conveyed it to one John Ramsey Robert Dakins and four others and their Heirs upon condition that the said Feoffees their Heirs or Assigns should pay to the said Ann and her Heirs six pounds thirteen shillings and four pence And also should enfeoff the said Ann if to the same they were required by the said Ann in her life or within four days next following such Request in Fee unto the use of the said Ann and her Heirs cum quando ad hoc per eandem Annam requisit fuerint and if the said Ann died before such Request that then the said Feoffees or their Heirs should enfeoff such issues of the said Ann or such other persons which the said Ann should name cum quando ad hoc per eandem Annam requisit fuerint or within four days after such
good as a new devise in Reversion upon the precedent Condition and not as a Remainder quod Windham concessit but Periam was very strong of opinion That it is a Limitation Two Ioyntenants of a Term A. and B. A. grants his part to B. nothing passeth by it for as a Grant it cannot be good Owen 102. 1 Cro. 314. 1 Inst 186. for as one Ioyntenant cannot enfeost his Companion no more can he vest any thing in him by grant for he cannot grant to him a thing which he hath before for Ioyntenants are seised and possessed of the whole all which was granted per Curiam and Anderson said That if Lands be granted to A. and B. and the Heirs of A. B. cannot surrender to A. for a Surrender is as it were a grant And as a Release it cannot enure for a Release of a Right in Chattels cannot be without a Deed. CCCLXXXIV Hollingshed and Kings Case Hill. 29 Eliz. In the Common Pleas. Debt HOllingshed brought Debt against King and declared That King was bounden to him in a Recognizance of two hundred pounds before the Mayor and Aldermen of London in interiori Camera de Guildhall London upon which Recognizance the said Hollingshed heretofore brought a Scire facias before the said Mayor c. in exteriori Camera and there had Iudgment to recover upon which Recovery he hath brought this Action and upon this Declaration the Defendant did demur in Law because that in setting forth of the Recognizance he hath not alledged That the Mayor of London hath Authority by Prescription or Grant to take Recognizances and if he hath not then is the Recognizance taken Coram non Judice and so void And as to the Statute of West 2. cap. 45. It cannot be taken to extend to Recognizances taken in London which see by the words De his quae recordat sunt coram Cancellario Domini Regis ejus Justiciariis qui Recordum habent in Rotulis eorum Irrotulatur c. And also at the time of the making of that Statute 1 Cro. 186 187. London had not any Sheriffs but Bayliffs and the said Statute ordains that Process shall go to Sheriffs c. But the whole Court was clear of a contrary opinion for they said We will know that those of London have a Court of Record and every Court of Record hath an Authority incident to it to take Recognizances for all things which concern the Iurisdiction of the said Court and which arise by reason of matters there depending Another matter was objected for that the Recognizance was taken in interiori Camera but the Court was holden in exteriori Camera and therefore not pursuant But as to that it was said by the Lord Anderson That admit that the Recognizance was not well taken yet because that in the Scire facias upon it the Defendant did not take advantage then thereof he shall be bounden by his said admittance of it as if one sue forth a Scire facias as upon a Recognizance whereas in truth there is not any Recognizance and the party pleads admitting such Record and thereupon Iudgment is given against him it is nor void but voidable Fleetwood Recorder of London alledged many Cases to prove that the Courts of the King are bounden to take notice Priviledges of London That they of London have a Court of Record for if a Quo warranto issueth to Iustices in Eyre it behoves not them of London to claim their Liberties for all Courts of the King are to take notice of them And at last after many motions the opinion of the Court was for the Plaintiff And it was said by Anderson and in manner agreed by the whole Court That if depending this Demurrer here the Iudgment in London upon the Scire facias be reversed yet the Court here must proceed and not take notice of the said Reversal CCCLXXXV Bedingfeild and Bedingfeilds Case Hill. 29 Eliz. In the Common Pleas. Dower DOwer was brought by Anne Bedingfeild against Thomas Bedingfeild The Tenant out of the Chancery purchased a Writ De circumspecte agatis setting forth this matter That it was found by Office in the County of Norfolk that the Husband oâ— the Demandant was seised of the Manor of N. in the said County and held the same of the Queen by Knights Service in chief and thereof dyed seised the Tenant being his Son and Heir of full age by reason whereof the Queen seised as well the said Manor as other Manors and because the Queen was to restore the Tenements tam integre Primer seisin c. as they came to her hands it was commanded the Iudges to surcease Domina regina inconsulta It was resolved per Curiam That although the Queen be entituled to have Primer seisin of all the Lands whereof the Husband of the Demandant dyed seised yet this Writ did not extend unto any Manors not found in the Office for by the Law the Queen cannot seise more Lands than those which are contained in the Office And therefore as to the Land not found by the Office the Court gave day to the Tenant to plead in chief And it was argued by Serjeant Gawdy for the Tenant That the Demandant ought to sue in the Chancery because that the Queen is entituled to have her Primer Seisin and cited the case of 11 R. 2. and 11 H. 4. 193. And after many motions It was clearly agreed by the Court That the Tenant ought to answer over for the Statute De Bigamis Cap. 3. provides that in such case The Iustices shall proceed notwithstanding such seisin of the King and where the King grants the custody of the Tenant himself 1 H. 7. 18 19. 4 H. 7. 1. A Multo fortiori against the Heir himself where he is of full age notwithstanding the possession of the King for his Primer seisin By the Statute of Bigamis after the Heir was of full age the Wife could not be endowed in the Chancery But now by the Prerogative of the King such wives may be endowed there Si viduae illae voluerint and after many motions The Court awarded That the Tenant should plead in chief at his peril for the Demandant might sue at the common Law if she pleased CCCLXXXVI Hill. 28 Eliz. In the Common Pleas. THe Case was Exchange The Husband was seised of Lands in the right of his Wif the Husband and his Wife both joyned in exchange of the Lands with a stranger for other Lands which exchange was executed the Husband and the Wife seised of the Lands taken in exchange aliened the same by Fine It was holden by Rhodes and Windham Iustices That the Wife after the death of her Husband might enter into her own Lands notwithstanding that Fine And Rhodes resembled it to the case reported by my Lord Dyer 19 Eliz. 358. The Husband after marriage assured to his Wife a Ioynture they both levy a Fine 1 Inst 36.
licence by recovery c. N. Vaux the surviving Feoffee died having issue W. Lord Vaux the purchasor died seised his Son and Heir 14 Eliz. levied a Fine Sur Conusans de droit c. and that Fine was levied to the use of the Conusee c. and that without licence The Lord Vaux within five years after the Fine levied entred for the condition broken and now issued forth a Scire facias against the Conusee for that alienation without licence who made default whereupon issued process to seize the Lands whereupon came Sir Tho. Tresham Fine for Alienation without Licence and shewed the whole matter aforesaid and prayed to be discharged It was said that this Prerogative to have a Fine for alienation without licence had lately beginning upon the original creation of Seignories so as this prerogative is as it were paramount the Seignory and shall go paramount the Condition as well as the Condition is paramount the Alienation but if the disseisor of the Tenant of the King maketh a Feoffment in Fee now upon the entry of the disseisee the person of the Feoffee shall be charged with a Fine but the Land by the re-entry of the disseisee is discharged and such is the opinion of the Lord Frowick in his Reading upon the Statute of Prerogativa Regis and the reason is because the disseisor is not Tenant to the King and so when he aliens it cannot be said an Alienation by the Kings Tenant See 45 E. 3. 6. If the Tenant of the King in chief seaseth for life with licence and afterwards grants the Reversion over without licence Entry for Condition what acts it shall defeat the Tenant for life is not bound to atturn in a Quid juris clamat wherfore it seems that if such Tenant doth attorn the King shall seize presently This Entry for the Condition broken is not to have so violent a retrospect to the first livery to which the Condition was annexed that it shall defeat all things mean between the Creation and the breach of the Condition but it shall defeat all mean things which rise upon the act of the party as Rent Dower c. But charges which accrue by reason of Tenure do remain notwithstanding the Entry for the Condition broken As if such a Tenant of the King maketh a Feoffment in Fee upon condition which is broken the Feoffee dieth seised his Heir of full age the Feoffor re-entereth this re-entry by force of the condition broken hath not so avoided the descent but the King shall have Relief upon the said descent for the Relief is paramount the Livery and the condition So if a Feoffee upon condition disclaim in Avowry Condition shall not avoid an Interest vested by which the Lord brings a Writ of Right Sur Disclaimer and hath Iudgment the Feoffee entreth for the condition broken the said re-entry shall not avoid the interest of the Lord by the Iudgment on the Writ of Disclaimer but he may enter at his pleasure and it was moved by Plowden who argued for Tresham that if the Tenant of the King being Non Compos mentis makes a Feoffment in Fee and dieth his Heir entring upon the Feoffee shall not pay a Fine for the Alienation of his Father but the person of the Father shall be charged with it And at the end of this Term after many Arguments and Motions Iudgment was given for the Queen that she should seize the Land and hold the same for the Fine and that she should not be driven to sue the person of the Feoffee or Conusee And by Manwood chief Baron at the Commom Law in many Manors Tenant in soccage upon every alienation shall pay a Fine nomine relevii a fortiori in the Kings case and therefore he was of opinion That this Prerogative to have a Fine for alienation without licence is by the common Law and not by any Statute XII Caters Case Mich. 25 and 26 Eliz. in the Exchequer Chamber A Bill of Intrusion was in the Exchequer against Cater Intrusion 7 Co. 12. 1 Anders 95. who pleaded the Grant of the Queen the Plaintiff replicando said that before the Queen had any thing c. Sir Francis Englefield was seised of the Manor of which c. and he being beyond the Seas the Queen sent her Letters under the Privy Seal Quod ipse in fide legeantiâ quâ dictae Reginae tenebatur indirecte rediret in Angliam praedict tamen Franciscus spretis mandatis dict Reginae venire recusavit for which a Certificate was by the said Queen into the Chancery Quod dictus Franciscus in portibus transmarinis sine licentia dict Reginae remansit And thereupon a Commission was awarded to seize the Lands of the said Sir Francis which was entred in the Replication in haec verba reciting also the Queens Privy Seal and that the said Sir Francis did stay there spretis mandatis c. for which the Queen seised and granted to the Plaintiff And afterwards the Statutes of 13 and 14. Eliz. were made after which the said grant was made to the Defendant upon which matter there was a Demurrer and Iudgment given for the Plaintiff Error And now Cater brought a Writ of Error in the Exchequer Chamber and it was first assigned for Error because that the Record is entred Inter Johannem Cater present hic in Curia by I.S. Attornatum suum and that cannot be for it is oppositum in objecto that one can be present in Court and also by Attorney simul semel for the Attorney is to supply the default of the personal presence To which it was said by Wray Anderson and Periam that the matter assigned was no Error for there are many Presidents in the Exchequer of such Entries which were openly shewed in Court. 48 E 3. 10. R 2. 20 H 7. 20 H 8. And by Manwood chief Baron it is not so absurd an Entry as it hath been objected for if one hath an Attorney of Record in the Kings Bench and he himself is in the Marshalsey there is an Action against him he is present as Prisoner and also by Attorney and by them notwithstanding that here appeareth a contrariety for such Entry properly is presentem hic in Curia in propriâ persona sua yet because many proceedings are according it is the more safe course to follow them for if this Iudgment be reversed for this cause many Records should be also reversed which should be very perillous An other Error was assigned because it is not alledged in the Replication of what date the Privy Seal was nor that any notice of the said Privy Seal was given to Sir Francis to which it was said that the Privy Seal need not any date especially in this case for the matters which are under the Privy Seal are not issuable See 2 Eliz. Dyer 177. Privy Seal nor any traverse can be taken to it and this Privy Seal is not
Lands within the said Town every second year left their Lands to lye fresh and untilled and prescribed further that the Tenants of the Lands within the said Town might erect Herdals in in their Lands with the Licence of the Lord of the said Manor and not otherwise and further declared that the said Bedingfield had let to him the said Manor and that the Defendant had erected Herdals upon his Lands without Licence so as the profit of his Foldage is impaired by it And all this matter was found by Verdict And it was objected in stay of Iudgment that the prescription is not good for it is against Law and common right to abridge the Subject of the profits of his Lands But the whole Court was clear of opinion that the prescription is good enough as 15 E 2. Prescription 51. Prescription to have common appendant in other Land afte that the Hay is cut and v E. 1. Prescription 55. A. seised of Lands may Plow it and Sow it and cut and carry away the Corn and afterwards when the Corn is carried B. by prescription may have the said Land as his several and the other who sowed it cannot meddle with that land but to plow and sow it in season c. And the Cattel cannot eat and pasture in the Land when they come to plow or sow it or to carry it away nor have any profit but the Corn and yet the Free-hold of the Land is in such person c. and that was holden a good Prescription and a difference was taken by the Court where one doth prescribe to take away the whole interest of the Owner of the Land and where a particular profit is restrained And here this prescription doth not extend but to restrain the Ter-tenant to erect Herdals which is a reasonable prescription See 1 H 7 24. The Lord of the Town doth prescribe to have free Foldage of the Beasts of his Tenants in D. and see there that libera Falda is not any other but to hav the Beasts of the Tenants to manure the lands of the Lord c. And afterwards Punsany the Plaintiff had Iudgment to recover XVI Mich. 25 26 Eliz. at Serjeants Inn. IN the Dutchy Chamber the case was that King E 6. leased for years certain lands parcel of his Dutchy of Lancaster rendring rent with clause of re-entry and that a lease was made to one Bunny It was found by Office that the Rent was arrear and by another Office that the Servant of the said Lessee had tendred the rent in his absence and by the commandment of his Master and that afterwards one I. S. Receiver General of the Dutchy received the said Rent and had accounted for it and upon his account it was allowed And this matter was opened at Serjeants Inn in Fleet-street before Wray Anderson Manwood Clench Rhodes Plowden and Stanhop and it was argued by Shuttleworth that in this case of rent reserved upon a Lease for years made by the King of dutchy-Dutchy-Land The King not bound to demand Rent the King is not bound to demand it but he may for default of payment of it re-enter without demand and that the Lessee is tied to tender it at his peril as well as if the Queen had been seised of the said land in the right of her Crown and as to that payment the Statute of 1 H 4. is to be considered by which it is enacted that the possessions of the said Dutchy Taliter tali modo per tales officiarios ministros in omnibus remaneant deducantur gubernentur sicut remanere deduci gubernari debuissent si ad culmen Regis Dignitatis assumpti non fuissemus and these words ought to be intended of things which concern the Lands themselves but this Act of demand is a personal thing and concerns the person of the King and toucheth the Majesty and dignity of the King and in all cases of the Dutchy the person of the King shall hold his priviledge notwithstanding that the possession of the Land be carried in the course of a private person And therefore if the Queen will alien Lands parcel of her Dutchy she ought to make Livery for now she meddles with the possession it self but if the Queen will sue for parcel of her Dutchy non omittas shall be in the Writ for she cannot sue but as Queen and the Queen hath such Prerogative that none shall execute her Writs at her own sute but the Officer of the Crown 21 E 4. 60. for Livery if it be not Land within the County Palatine and for the residue See 10 H. 4. 7. 3. Eliz. 216 217. Plowden Lessee for years of Lands of the Dutchy shall have aid of the King before Issue joyned c. And if the King make a Feoffment of Lands of his Dutchy out of the County Palatine to hold of him in Capite the Feoffee shall hold it so and a Feoffment of such Lands upon condition that the Feoffee shall not alien is a good condition and Lapses shall not bind the Queen in case of an Advowson which the Queen hath in the right of the Dutchy and if the Villain of the Queen in the right of the Dutchy purchaseth Lands in Fee and aliens yet the Queen shall seise and that hath been adjudged in the Exchequer Chamber and if the Queen make a Lease of such Land and afterwards makes another Lease of the same Land without recital of the first Lease it hath been adjudged that the second Lease is void It was argued contrary by Beamount the younger that this condition which goeth to the realty to reduce the Land again ought to be ordered and governed by the Queen as it ought to be by a Subject and therefore if the Queen will take advantage of this condition she ought to make a Letter of Attorney under the Dutchy Seal to her own Officer authorizing him thereby to make demand of the said Rent c. And by Shuttleworth here be two Offices the one contrary to the other the best shall be taken for the Queen 14 E 4. 5. in Skreens Case in the end of it And if the Rent of the Kings Farmor be behind now although that after the Receivor of the Dutchy doth receive it yet the same doth not purge the forfeiture as if the Bayliffs of a Manor receive rent of a new Feoffee the same will not change the Avowry of the Lord without notice given to him 41 E 3. 26. And if a Copy-hold escheat the Steward without a special Warrant cannot grant it over de novo XVI Rearsbie and Rearsbies Case Intrat Trinit 25 Eliz. rot 746. Mich. 25 and 26 Eliz. in the Kings Bench. REplevin by W. Rearsbie against A. Rearsbie and L. Rearsbie who avow the distress because that one W. Vavasour was seised of the Manor of Deniby whereof the place where c. is parcel in his Demesne as of Fee and so seised gave the said Manor to
passeth and doth extend into D. and the residue which is in C. shall remain in me in gross v. 9 E. 4. 17. Catesby And if I be seised of a Manor which doth consist of services and of twenty Free-holders and one hundred Acres of Demesnes and I grant the services of my twenty Free-holders and forty or twenty Acres of the said one hundred Acres a Manor shall pass although it was not granted by the name of a Manor but if I grant the services of three four or five of my Free-holders and forty or twenty of the said one hundred Acres upon such a grant no Manor shall pass Windham Iustice contrary We are not here to speak of the creation of a Manor that is a forraign matter but we are here to consider upon the division and apportionment of a Manor They that have argued in this case at the Bar have stood much upon the words of the Conveyance manerium suum de North-kelsey and that Sir Fr. Askew at the time of that assurance had not any Manor of North-kelsey or in North-kelsey but that is not any reason for if Cestuy que use mean between the Statute of 1 E. 3. 27 H. 8. will make a Feoffment of the Manor which was in use by these words manerium suum the same had been good and yet it is not manerium suum but the Manor of the Feoffees but it may be said suum by receiving of the profits according to the trust and confidence reposed in the Feoffees so in our case in as much as Sir Fr. Askew had before this grant aswell demesnes as services in North-kelsey it may collaterally be said a Manor there and notwithstanding that tempore concessionis proprie loquendo no Manor was in North-kelsey yet now upon operation of the Law upon this grant a new Manor shall rise for in divers cases where a thing which was not in esse before upon a grant may rise As if I grant unto you out of my Land a Rent de novo And also a thing which was not in esse before may upon a grant take upon it a new nature As if I. seised of a great Wood grant to you Estovers out of it they were not before in me but as Woods and Trees now by this grant they are become Estovers in the Grantee so as they are in the Grantee in another nature than they were in me So in our case although North-kelsey was not a Manor in Sir Fr. Askew yet now upon the grant it is a Manor in Bard 9 E. 4. 17. And as to the matter which hath been objected because a Court cannot now begin the same is not any reason for the Court Baron is incident to the Manor and also to every part of the Manor and transitory through the whole Manor and if Sir Fr. Askew had sold all the demsnes of the Manor in Castord where the Court Baron for the said Manor had always been held and not else-where yet such a Court might be holden in any part of the Demeans in any other of the said Towns The Lord Anderson to the same purpose It hath been argued of the other side that the Manor doth not pass because the grant is in these words manerium de North-kelsey in North-kelsey I conceive that these words de North-kelsey are void as matter of surplusage and the grant shall be construed as if the words had been manerium suum in North-kelsey And a Manor is such a thing as may be determined divided and suspended As if the Lord of a Manor leaseth for years all the Demeans of the Manor the Manor is suspended during the term for years as lately it hath been adjudged And a warranty may be divided as if a Feoffment in Fee be made to two with warranty and the one of them releaseth the warranty vide L. 5. E. 4. 103. A. seised of a Manor which extendeth in four Towns B. C. D. and E. and he gives his Manor in B. C. and D. by this gift the Manor and all that is in the said four Towns passeth And he cited also a Case 21 E. 4. 3. The Lord of a Manor erected a Chapel within his said Manor as a Chapel of Case c. and afterwards it is a Parish-Church now it is become presentable an Advowson appendant as the soil upon the which the Church is built is parcel of the Manor See 32 H. 6. 9. One Manor may be parcel of another Manor as A. holdeth of B. twenty acres of Land as of his Manor of C. which Manor B. holdeth of D. as of his Manor of E. B. dieth without Heir so as his Manor of C. is escheated unto D. now the twenty acres are holden of the Manor of C. as they were before and the Manor of C. is by the Escheat become parcel of the Manor of E. and by Lease of the Manor of E. it shall pass Post 32. And I do not know any difference between the Case of Parceners and the Case of Ioynt-tenants for now they are both equally compellable to make partition And he cited the Case of one Estopp lately adjudged viz. the Queen was seised of the Rectory of D. which extended into the Counties of Lincoln and York and the Queen granted her Rectory of D. in Lincoln these are several grants and now upon the matter they are become several Rectories And as to that which hath been objected concerning a Court Baron which ought to belong to this new Manor and that such a Court cannot now at this day be erected and therfore here cannot be a Manor here needs not the erection of any new Court but forasmuch as the Court Baron before this grant might be by Law holden in any place within the Manor therefore every part of the Demeans of the Manor is capable of a Court to be holden there As where one is seised of a Manor to which an Advowson is appendant now is the Advowson appendant not only to the said Manor but to every part of it for if he alien an acre parcel of the Manor with the Advowson the Advowson is now appendant to the said acre See 43 E. 3. 26. So in the Case at Bar because this liberty and franchise of a Manor is throughout the whole Manor and in every part of the Services and Demesnes upon this grant of the Services and Demesnes in North-kelsey and of his Manor in North-kelsey a Manor passeth which Windham also granted and agreed unto Note at this time there were but three Iudges in this Court And afterwards Iudgment was given for the Defendant XXXIV Alington and Bales Case Pasch 27 Eliz. In the Kings Bench Rot. 584. 1 Cro. 660. 661. ALington and others Executors of Sir W. Cordel late Master of the Ross brought an Action Debt against Bales The Case was this One Bream being seised of certain Lands by Indenture bargained and sold the same to one Platt by these words give grant bargain sell and by
the said Indenture covenanted with Platt that the said Platt and his Heirs should quietly enjoy the said Lands without interruption of any person or persons And afterwards certain controversies rising betwixt them concerning the said Lands Arbitrament the said Bream and Platt submitted themselves to the award and arbitrament of Sir W. Cordel to whom they were bounden severally for the performance of such award the which Sir W. amongst other things awarded that the said Platt and his Heirs should enjoy quietly the said Lands in tam amplo modo forma as the said Land is conveyed and assured by the coveyance and assurance aforesaid And the truth was that the said Bream at the time of the said Assurance was bounden in a Recognizance of six hundred pounds to one More 15. Eliz. and afterwards More 16 Eliz. sued a Sci. fac upon the said Recognizance and 18 Eliz. the bargain and sale aforesaid was made and afterwards 19 Eliz. More sued forth Excution by Elegit and the moyety of the said Land assured to Platt was delivered in Execution to More And if upon the whole matter the Arbitrament was broken was the question It was argued by Godfrey that the Plaintiff ought to be barred and first 1 Hob. 35. Mor. 175. 3 Len. 43. Post 93. Post 179 279. 1 Inst 366. a. b. 388. Dy 42. he conceived that these words in the Indenture give and grant did not help the Action for the Lands passed with a charge and the general words Dedi concessi do not extend to this collateral charge but to the direct right of the Land only but if a stranger had put out the bargainee there upon such general words an Action would lie but as the Case is they do not give any cause of Action for the Recognizance was a thing in charge at the time of the Assurance and yet see 31 E 3. Br. Warr. Chartae 33. A. enfeoffeth B. with warranty who brings a Warrantia Chartae and recovers pro loco tempore and afterwards a stranger doth recover against him a Rent charge out of the said Land and it was holden that upon the matter B. should have execution the special words of the Aribitrament upon which the Action is brought are that the said Platt and his Heirs should enjoy the said Lands in tam amplo modo forma as it was assured and conveyed to the said Platt ergo not in more ample manner 1 Cro. 660. 661. Owen Rep. 65. 2 Cro. 571. 1 Roll. 425. and the said Land was conveyed to Platt chargeable to the said Recognizance therefore if Platt enjoy it charged there is no cause of Action And as to the Covenant in the Indenture that Platt and his Heirs should enjoy quietly the said Lands without interruption of any person the same is a Collateral surety and the words of the Award are that Platt shall enjoy it in tam amplo modo forma as it is conveyed and assured by the assurance aforesaid without interruption these are not words of assurance for the assurance doth consist in the legal words of passing the estate scil bargain sale Dedi concessi and in the limitation of the estate and not in the words of the Convenant And therefore it hath been adjudged that if I. be bounden to A. in an Obligation to assure to him the Mannor of D c. if A. tender to me an Indenture of bargain and sale in which are many Covenants I am not bound upon the peril of my Bond to seal and deliver it Also here doth not appear any interruption against the Covenant in the Indenture for here is not any lawful Execution for it appeareth here that More hath sued Execution by Elegit 4 years after the Iudgment in the Scire facias in which case he shall be put to a new Scire facias for the Sheriff in this Case ought to have returned that the Conusor after the Recognizance had enfeoffed divers persons and shewed who and upon that matter returned the Conusee should have a Sci. facias against the Feoffees vide F. N. B. 266. And the Court was clear of opinion against the Plaintiff XXXV Floud and Sir John Perrotts Case Trin. 27 Eliz. In the Kings Bench. FLoud recovered against Sir John Perrot 1 Cro. 63. Post 264. 3 Len. 240. in an Action upon the Case upon a promise eighty six pounds against which Floud and Barlow affirmed a Plaint of Debt in London and attached the said moeny in the hands of the said Sir John and had execution according to the custom of London And now the said Floud sued a Scire facias against the said Sir John who appeared and pleaded the said Execution by attachment upon which Floud the Plaintiff did demur in Law And it was adjudged no plea for a duty which accrueth by matter of Record cannot be attached by the custom of London And notwithstanding that the custom of London be layed generally in aliquo debito and damages recovered are quoddam debitum as it was urged by the Council of the Defendant Yet the Law is clear that Iudgments given in the Courts of the King ought not Judgments in the Kings Courts not to be defeated by particular custom of places nor cannot by such particular customs be defeated and avoided as it was lately adjudged in a Western Case Damages were recovered the Sheriff by virtue of a Fieri facias levyed the money which one to whom the Plaintiff was endebted did attach by the custom in the hands of the Sheriff but it was adjudged the attachment was not good for the custom of attachment cannot reach upon a thing of so high a nature as a Record is the same Law of Debt upon a Recognizance and Statute c. and it was affirmed by Wray chief Iustice that upon great deliberation it was agreed by Bromley Lord Chancellor himself the Lord Anderson Mead and Periam Iustices that where a Merchant having in an Action recovered certain damages became Bankrupt upon which issued an Commission upon the Statute of 13 Eliz. of Bankrupts that such Commissioners could not entermeddle with such damages to dispose of them to the Creditors according to the said Statute But now see the Statute of 1 Jacobi The Commissioners have power to dispose of such debts c. XXXVI Sir Walter Hungerfords Case Trin. 27 Eliz. In the Kings Bench. Grants of the King. IN a Replevin by Sir Walter Hungerford the Case was this the Queen being seised of a great Waste called Ruddesdown in the Parish of Chipnam granted to the Mayor and Burgesses of Chipnam the moyety of a Yard-land in the said Waste without certainty in what part of the Waste they should have the same or the special name of the Land or how it was bounded and without any certain description of it And afterwards the Queen granted to the said Sir Walter the said Waste and afterwards the said Mayor and Burgesses by warrant of Attorney
under the Common Seal authorized one A. to enter in the said Waste and in the behalf of the said Mayor and Burgesses to make election of the said moyety Election c. who did so accordingly And upon this matter gives in evidence the parties did demur in Law and the Iury were discharged 12 Co. 86. 87. Dy. 372. b. 281. Noy 29. And it was holden and resolved by the whole Court that the grant to the Mayor c. was utterly void for the incertainty of the thing granted And if a common person do make such a grant it is good enough and there the Grantee may make his choice where c. and by such choice executed the thing shall be reduced into certainty which choice the Grantee cannot have against the Queen which difference was agreed by the whole Court And it was further holden that this grant was not only void against the Queen her self but also against Sir Walter Hungerford her Patentee It was further holden by the Court that if a common person had made such a grant which ought to be reduced to certainty by Election and the Corporation to whom the grant was made ut supra should not make their election by Attorney but after that they were resolved upon the Land they should make a special warrant of Attorney reciting the grant to them in whih part of the said Waste their grant should take effect East West c. or by buttals c. according to which direction the Attorney is to enter c. XXXVII Watts and Jordens Case Trin. 27. Eliz. In the Common Pleas. IN Debt by Watts against Jorden process continued until the Defendant was Out-lawed and upon the Capias utlagatum he appeared and pleaded to issue which was found for the Plaintiff and Iudgment given accordingly And now came Jourden and cast in a Writ of Error Error and assigned for Error that he appeared upon the Capias utlagatum and pleaded to issue the Original being determined and not revived by Scire facias upon his Charter of pardon Anderson Iustice was of opinion that it was not Error for the Statute of 18 Eliz. had dispensed with it being after verdict for the words of the Statute are For want of any Writ Original or Iudicial Windham Iustice contrary for the Statute doth not extend but where the Original is imbeselled but in this Case it is not imbeselled but in Law determined and at last the Writ of Error was allowed XXXVIII Trin. 23 Eliz. In the Common Pleas. THe Case was A. seised of Lands by his Will devised 3 Len 119. that his Excutors should sell his Lands and died the Executors levy a Fine thereof to one F. taking mony for the same of F. If in title made by the Conusee to the Land by the Fine It be a good plea against the Fine to say Quod partes ad finem nihil habuerunt was the question Fines levyed Anderson conceived that it was But by Windham and Periam upon Not-guilty The Conusee might help himself by giving the special matter in evidence in which Case the Conusee shall be adjudged in not by the Fine but by the Devise As by Windham A. deviseth Devise Co. 1 Inst 113. a. that his Executors shall sell a Reversion of certain Lands of which he dieth seised they sell the same without deed and good for the Vendee is in by the Devise and not by the conveyance of the Executors See 19 H. 6. 23. And by Periam the Conusee may help himself by pleading as he who is in by the Feoffment or grant of Cestuy que use by the Statute of 1 R. 3. XXXIX Albany and the Bishop of St. Asaphs Case Trin. 27 Eliz. In the Common Pleas. ALbany brought a Quare impedit against the Bishop of St. Asaph 1 Cro. 119. who justified for Lapse The Plaintiff by Replication said that before the six months expired he presented to the said Bishop one Bagshaw Quare impedit a Master of Arts and Preacher allowed c. The Defendant by way of Rejoynder said that the Church upon the presentment to which the Action is brought is a Church with Cure of Souls and that the Parishioners there are homines Wallici Wallicam loquentes linguam non aliam And that the said Bagshaw could not speak or understand the Welch Language for which cause he refused him and gave notice to the Plaintiff of such refusal and of the cause of it c. upon which the Plaintiff did demur in Law. And first it was agreed and resolved by the whole Court that in the computation of the six months in such Cases the Reckoning ought not to be according to the Kalender January February c. but Secundum numerum singulorum dierum Co. 2 Inst 361. Co. 6. 61. b. Yel 100. 2 Cro. 141. Departure allowing eight and twenty days to every month Walmesley Serjeant argued for the Plaintiff and he took exception to the Rejoynder for in that the Defendant had departed from his Bar for in the Bar the Defendant intitles himself to the presentment by reason of Lapse and in the Rejoynder he confesseth the presentment of the Plaintff and pleads his refusal of his Clark and shewes the cause of it sc the want of the Welsh Language which is a Departure And he cited divers Cases to the same purpose 27 H 8. 3. In forfeiture of Marriage the Defendant pleaded the Feoffment of the Ancestor of the Heir to divers persons absque hoc that he died in the homage of the Plaintiff the Plaintiff by Replication said that the said Feoffment was made to the use of the said Ancestor and his Heirs The Defendant by Rejoynder saith that the said Ancestor did declare his Will of the said Lands the same was holden a Departure for he might have pleaded the same in Bar and 21 H. 7. 17 18. 37 H 6. 5. in Trespass the Defendant pleaded that I. S. was seised of the Land where c. being Land devisable and devised the same to him and his Heirs the Plaintiff by Replication said that I. S. at the time of the devise was within age c. The Defendant by Rejoynder said that the custom there is that every one of the age of fifteen years might devise his Lands c. the same was holden a departure But to this Exception the Court took not much regard But as to the matter in Law it was argued by Walmesley that the defect of the Welsh Language assigned by the Defendant in the presence of the Plaintiff is not a sufficient Cause of refusal for notwithstanding that it be convenient that such a Presentee have the knowledge of such Language yet by the Law of the Land ignorance of such Language where the party hath more excellent Languages is not any disability and therefore we see that many Bishops in Wales who have the principal Cure of Souls are English-men and the Welsh
that one Butty was seised of the Land where c. and also of a Messuage with which Messuage the said Land had been usually occupied time out of mind c. and being seised and lying sick commanded a Scridener to be brought to him and the said Scrivener being brought to him he gave him Instructions to make his Will and amongst other things declared unto him that his meaning was that the said Messuage and all his Lands in Westerfield should be sold by his Executors and the Scrivener in making of the Will penned the matter in this manner I will that my house with all the appurtenances shall be sold by my Executors Butty died the Executors sell forty acres of the said Land to the Def. and all this matter was found by special verdict and it was moved by the Plaintiffs Counsel that the sale of this Land by the Executors is not warranted by the Will Another matter was moved scil admitting that the Executors have authority by the Will to sell the Land if the sale of parcel of the Land be good and warrantable As if I make a Charter of Feoffment of ten acres and a Letter of Attorney to make livery of them to the Feoffee if the Attorney makes several liveries of the several acres the same is void But by Cook the Cases are not like for in the Case put he hath a special Commission in which the party to whom and all the other circumstances are set down certainly contrary in the Case at the Bar there the Commission is general c. and peradventure the Executors shall never find a Chapman who will contract with them for the whole More Rep. 222. Co. Inst 113. a. And afterwards upon conference amongst the Iudges Clench Gawdy and Wray it was resolved that by this devise the Lands do pass by the sale of the Executors to the Defendant which sale also by process is warranted by the Will for by Wray these words with all the appurtenances are effectual and emphatical words to enforce the devise and that doth extend to all the Lands especially because it is found that the Testator gave to the Scrivener his Instructions accordingly And afterwards Iudgment was given against the Plaintiff See 3 Eliz. Plowd 210. Betwixt Sanders and Freeman there the Devise is pleaded in this manner Messuagium cum pertinentiis ad illud spectantibus in perpetuum in villa de Arthingworth XLIII Watkins and Astwicks Case Trin. 28 Eliz. In the Kings Bench. 1 Cro. 132. IN an Ejectione firmae it was found by special verdict that one Maynard was seised and made a Feoffment in Fee upon condition of payment of mony on the part of the Feoffor by way of Mortgage at a certain day before which day the said Maynard dyed his Son and Heir being within age Tender to redeem a Mortgage afterwards at the day of payment limited by the Mortgage a stranger at the instance and request of the Mother of the Heir tendred the money to the Mortgagee in the name of the Heir being within age who refused it And it was resolved by the whole Court that the same is not a sufficient tender to redeem the Land according to the Mortgage for it is found by the Iury that the Heir at the time of the tender was within age 2 Len. 213. generally not particularly of six or ten years c. then it might well stand with the verdict that the Heir at such time was of the age of 18 or 19 years at which age he is by the Law out of the Ward of his Mother or any other prochein amy in which Case it is presumed in Law that he hath discretion to govern his own affairs and in this Case the Mother is but a stranger for the Law hath estranged the Mother from the government of the Heir but if the Iury had found that the Heir at the time of the tender was of tender age viz. within the age of fourteen years in which Case by Law he ought to be in Ward in such Case the tender had been good XLIV Leput and Wroths Case Trin. 28. Eliz. In the Kings Bench. A Replevin by Lepur against Wroth 6 Co. 33. Replevin 3 Len. 132. and declared upon a tortious taking in Burnham in the County of Essex the Case upon the pleading was that Robert Earl of Sussex was seised of the Manor of Burnham in Fee and leased the same to the King for one and twenty years and afterwards the said Earl died by which the said Manor descended to Thomas late Earl of Sussex and he being seised 4 and 5 Phil. and Mary it was Enacted by Parliament That the Lady Frances Wife of the said Earl by virtue of the said Act of Parliament should have hold and enjoy c. during the widowhood of the said Frances for and in consideration of the Ioynture of the said Frances the said Manor Provided always and it is further enacted Construction of Statutes That it should be lawful for the said Earl by his writing indented dimissionem vel dimissiones facere pro termino 21. annorum vel infra de eodem Manerio pro aliquo redditu annuali ita quod super omnes singulos hujusmodi dimissionem dimissiones antiquus redditus consuetus vel eo major amplior reservaretur and that every such demise should be of force and effectual in Law against the said Frances for term of her life if the said term should so long continue And further the said Act gave to the said Frances Distress Avowry Covenant c. against such Lessee and for the said Lessee against the said Dame And afterwards the said Thomas the said former Lease not expired leased the said Manor to Wroth the Defendant for one and twenty years to begin at the Feast of Saint Michael next following and note the Lease was made the third of April before rendring three hundred and forty pounds per annum which was redditus amplior antiquo usuali Popham Attorney general argued that the said Lease did not bind the said Lady Frances and that for two Causes 1. because it is to begin at a day to come 2. because it was made a former Lease being in esse and he argued much upon construction of Statutes to be made not according to the letter but according to the meaning of them And he cited a Case upon the Statute of 2 H 5. 3. by which it is Enacted that in no Action in which the damages do amount to forty marks any person should be admitted to pass in trayl of it who had not Lands or Tenements of the clear yearly value of forty shillings yet the said Statute shall not be by construction extended where in an Action between an English-man and an Alien the Alien prayeth medietatem linguae and yet the Statute is general So in our Case although this private Act doth not seem to provide expresly but for two
things 1. Leases the number of the years 21 non ultra 2. antiquus redditus vel eo amplior yet in reason and good understanding we ought to think that the intent of the Act was that the said Manor should now come to the said Lady Frances surcharged with Leases in Reversion or to begin at a day to come for if by this Act the said Earl might make a Lease to begin three months after by the same reason he might make a Lease to begin twenty years after and also to begin after his death It hath been objected that the Lord Treasurer had a Commission to make Leases of the Queens Lands and that by virtue thereof he made Leases in Reversion I know the contrary to that for every such Lease is allowed by a Bill assigned and not by the ordinary Commission aforesaid the words of our Act are Dimissiones facere pro termino 21. annorum that shall be meant to begin presently As if I lease to you my Lands for one and twenty years it shall be intended to begin presently and he cited the Case betwixt Fox and Collier upon the Statute of 1 Eliz. cencerning Leases made by Bishops That four years of a former Lease being in being the Bishop leased for one and twenty years the same was a good lease notwithstanding the former lease for the lease began presently betwixt the parties And it hath been adjudged that a lease for years by a Bishop to begin at a day to come is utterly void And he cited the Case of the late Marquess of Northampton who by such an Act of Parliament as ours was enabled to make leases of the Lands of his Wife for one and twenty years and of the said Lands an ancient lease was made before the said Act which was in esse and before the expiration thereof he made a lease by virtue of the said Act to commence after the expiration of the former lease and that lease was allowed to be a good lease warranted by the said Statute because that the first lease which was in esse was not made by force of the said Act but if the said former lease had been made by virtue of the said Statute the second lease had been utterly void XLV Trin. 28 Eliz. In the Kings Bench. Copy-hold Surrender by Attorney not good A Copy-holder of the Manor of the Earl of Arrundel did surrender his customary Lands to the use of his last Will and thereby devised the Lands to his youngest Son and his Heirs and died the youngest Son being in prison makes a Letter of Attorney to one to be admitted to the Land in the Lords Court in his room and also after admittance to surrender the same to the use of B. and his Heirs to whom he had sold it for the payment of his debts And Wray was of opinion that it was a good surrender by Attorney but Gawdy and Clench contrary 3 Cro. 218. 9 Co. 75. and by Gawdy If he who ought to surrender cannot come in Court to surrender in person the Lord of the Manor may appoint a special Steward to go to the prison and take the surrender c. and by Clench Lessee for years cannot surrender by Attorney but he may make a deed purporting a surrender and a letter of Attorney to another to deliver it XLVI Troublefield and Troublefields Case Trin. 28 Eliz. In the Kings Bench. Dy. 337. b. Co. 1 Inst 15. 2. b. 52. 245. b. 252. 6. Post 51. Entry THe Case was that a Copy-holder did surrender to the use of his Will and thereby devised the Land to his Wife for life the remainder over to his son in tail and died the Wife entred and died a stranger did intrude upon the Lands and thereof made three several Feoffments to three several persons he in the Remainder entred upon one of the said three Feoffees in the name of all the Lands so devised and made a lease of the whole Land And by Clench and Wray it was a good Entry for the whole and by consequence a good lease of the whole Gawdy contrary Note all the Lands were in one County See 16 Eliz. Dyer 337. 9 H. 7. 25. XLVII Parmort and Griffina's Case Trin. 28 Eliz. In the Kings Bench. IN Debt upon an Obligation by Parmort against Griffina a Merchant-stranger the Defendant pleaded Debt that the Obligation was made upon condition for the performance of certain Covenants contained within certain Indentures and shewed what c. and alledged further that in the said Indenture there is a proviso that if aliqua lis vel controversia oriatur imposterum by reason of any clause article or other agreement in the said Indenture contained that then before any sute thereupon attempted the parties shall choose four indifferent persons for the ending thereof which being done the Indenture and Obligation shall be void And in fact saith that Lis controversia upon which the Action is brought groweth upon the said Indenture upon which there was a demurrer in Law. And because the Defendant hath not shewed specially upon what controversie or strife and upon what article certain The Court was clear of opinion that the Bat was not good And also the Court was of opinion Proviso taken strictly that the said Proviso did not extend to subject and submit the breach of every Covenant or Article within the said Indenture to the Arbitrament of the said four persons but only where strife and controversie doth arise upon the construction of any Covenant c. within the said Indenture so as the Defendant ought to have shewed such matter which fell within the Arbitrament by the meaning of the said Indenture and Iudgment was given against the Defendant XLVIII Partridge and Partridges Case Mich. 28 29. Eliz. In the Common Pleas. IN Dower by Partridge against Partridge the Case was Dower that Land was given to the Father for life the reversion to his Son and Heir for life the remainder to the right Heirs of the body of the Father The Father and Son joyn in a Feoffment to the Vncle in Fee scil to the Brother of the Father The Vncle takes a Wife the Father dieth the Son being his Heir in tail the Vncle dieth without issue so as the Land descendeth to the Son as Heir to his Vncle against whom the Wife of the Vncle brought Dower It was moved if the Son being Herein can to his Father and Heir also to his Vncle for the Fee descended be now remitted for then no Dower accrueth to the Wife of the Vncle for the estate of which she demands Dower is gone but if the livery in which the Son joyned with his Father be the livery of the Son Remittâ— the same lies in his way in the impediment and preventing of the Remitter so as during his life he shall be adjudged seised of the Lands in Feesimple by descent from his Vncle Then Dower lyeth for the same
the of Inner Temple being at the Bar when this Case was moved said unto Serjeant Shuttleworth that the Case had been adjudged against the Demandant and Scot Prothonotary did affirm that the Lord Dyer was of opinion that the Woman ought to be endowed according to the Custom and not otherwise And Sayer one of the Clarks of Nelson chief Prothonotary said that it was adjudged accordingly 16. Eliz. and that the Case was betwixt Gelbrand Demandant and Hunt Tenant LXXXIV Beverlie and Cornwals Case Mich. 29 Eliz. In the Common Pleas. BEverlie brought a Quare Impedit against Cornwal Quare Imped 2 Roll. 805. Out-lawry pleaded and had Iudgment to recover upon a Demurrer in Law Which see Mich. 28 29 Eliz. And now the Queen brought a Scire facias upon the matter That the said Beverly after the said Iudgment was out-lawed in an Action of Trespass at the sute of I. S. and upon that a Scire facias issued ad respondendum Quare dicta Domina Regina should not have execution of the Iudgment aforesaid by reason of the Out-lawry aforesaid and declared in all as aforesaid And further that the said Cornwal had resigned Vpon which Beverlie did demur in Law. And this Term it was argued by Puckering Serjeant for the Queen that by that Out-lawry the Interest to present is tranferred to the Queen Which see 5 H. 5. 3. Tenant at will of a Manor to which an Advowson is appendant is out-lawed in an Action of Trespass the Church voided by award of the Court it belongs to the King to present And see 8 R. 2. scil Quare Imped 200 A. seised of an Advowson the Church becomes void A. is Out-lawed in a personal Action the King shall have a Quare Impedit in that Case And as to the Exception taken because the Out-lawry is not sufficiently layed in the Writ but only generally viz. utlagatus in Com. Lincoln ad sectam J.S. in placito transgressionis without shewing the Out-lawry at large There is a difference where an Out-lawry is pleaded by way of â—â—r and disability of the person c. and where it is set down in a Writ for a Writ ought shortly and compendiously to comprehend the cause of the Action especially judicial Writs which are not tied to any form certain especially because that the Out-lawry set forth in the Writ is a Record of the same Court For the perclose of the Scire facias is prout per recordum hic in curia plenius apparet And that Record being in the Court the party cannot plead Nul tiel record as if the Record had been in any other Court But he ought to demand Dyer of the Record Which vide 5 H. 7. 24. Walmesley Serjeant contrary By Out-lawry in an Action personal the King cannot seise Land but only take the profits of it 9. H. 6. 20. 21 H. 7. 7. And as our case is nothing doth accrew to the Queen by this Out-lawry for the Queen her self is seised of the Advowson because she usurpando presentavit and her Clerk admitted and although Beverlie hath recovered in a Quare Impedit against the Presentee of the Queen yet because he is not removed by a Writ to the Bishop the Queen continues Patron and nothing remains in Beverlie that may be forfeited But Rhodes and Periam contrary for by Periam if after such Recovery the Incumbent dieth the Patron shall present for by the Iudgment in the Quare Impedit for Beverlie the Patronage is revâ—â—ted in him without any other execution And by Rhodes If after such Iudgment the Patron dieth his Executors shall have a Writ to the Bishop And by Walmesley the Scire facias doth not lie for the Queen for that Writ always runs in privity of the Record upon which it is grounded to which Record the Queen is a stranger and by Out-lawry in an Action personal no Action real shall escheat and therefore this Scire facias being in the nature of a Quare Impedit upon which it is grounded which is a real Action or at least a mixt shall not be forfeited and also it shall be absurd to grant now a Writ to the Bishop for the Queen whereas Iudgment was given against the Queen as in our case it hath been And in no Case the Iudges shall respect the title of the Queen being a stranger to the Writ But where a title for the Queen doth appear upon the pleading or otherwise within the Record 11 H. 4. 224. by Hankford If a clear title for the King be confessed by the parties upon pleading a Writ to the Bishop shall issue for the King so if such matter appear in Evidence 3 Cro. 427. c. the Land in question is seisable into the Kings hands See 9 H. 7. 9. 16 H. 7. 12. so 21 E. 4. 3. by Choke and F.N.B. 38. e. In a Quare Impedit betwixt two strangers if title doth appear to the Court for the King a Writ to the Bishop shall issue forth for the King but in our Case nothing is within the Record to intitle the Queen but all the matter upon which a Writ to the Bishop is prayed for the Queen is out of the Record and a foreign thing And as to the Out-lawry he conceived it is not sufficiently alledged for he ought to have made mention of the Exigent and of all the proceeding upon it and the Iudgment of the Coroners and for defect of that no title is given to the Queen and of that opinion was the Lord Anderson and that it ought to be set forth in the Writ in what Term the said Beverly was out-lawed and the Number Roll also so that if Beverly had demanded Dyer of the Record the Court might know it And by Nelson chief Prothonotary the Term in which the Out-lawry was ought to be comprised in the Scire facias Vide Book of Entries 485. where in a Quare Impedit for the King upon such a title the King shewed in his Count that A. was seised of such an Advowson and granted the next Avoidance to B. and that afterwards one C. impleaded the said B. in a Writ of Account in such a Court where Nihil was returned upon the summons upon which issued forth a Capias upon which is returned Non est inventus c. upon which an Exigent upon which the Sheriff did return quod ad com tent c. ad v. comitat tunc prox praecedent the said B. exactus fuit non comparuit quia ad nullum eorundem comitat apparuit utlagatus fuit and after the the Church voided and that by reason thereof it did belong to the King to present vide ibid. 196. accordingly And as to the Scire facias all the Iudges agreed that upon the matter the Writ lay well enough And it is good discretion in the Court to grant such a Writ And by Rhodes If two Coparceners of an Advowson make composition to present by turns and afterwards
one of them dieth her Heir within age and in Ward to the King The Church voideth and the King is disturbed in his presentment he shall have a Scire facias upon such composition notwithstanding that he be a stranger to it See F.N.B. 34 H. And by all the Iustices if one recover in Debt upon a simple contract and before execution the Plaintiff is out-lawed in an Action personal the King shall sue execution And see 37 H. 6. 26. Where in Debt upon an Obligation it was surmised to the Court that the Plaintiff was out-lawed And the Kings Attorney prayed delivery of the Obligation c. LXXXV Moile and the Earl of Warwicks Case Mich. 29 30 Eliz. In Communi Banco Quare Impedit A Quare Impedit was brought by Walter Moile against Ambrose Earl of Warwick and the Archbishop of Canterbury And now came the Serjeanes of the Queen and shewed an Office to entitle the Queen to have a Writ to the Bishop containing such matter viz. That one Guilford was seised of the Manor of D. to which the Advowson of the Church was appendant and that Manor was holden in chief by Knights service and that Guilford and his Wife levied a Fine thereof to the use of themselves for their lives the remainder over in tail to their eldest Son and that Guilford is dead but who is his next Heir ignorant And it was shewed by the Council of the other side that the truth of the Case was that the said Guilford was seised of the said Manor in the right of his Wife and so levied the Fine in which Case the said coveyance is not within the Statute of 32 H. 8. for it was for the advancement of the Husband not of the Wife which Anderson granted Vide Dyer 19 Eliz. 354. Caverlies Case but that is not in the Office And it was moved at the Bar that the Office is imperfect because no Heir is found But Anderson the Office is sufficient for the King to seise although it be insufficient for the Heir c. And it was agreed by the whole Court Office trove that the Court ought not to receive the Office although one would affirm upon oath that it is the very Office but it ought to be brought in under the Great Seal of England and also the Court shall not receive it without a Writ and yet Nelson Prothonotary said that the Statute of Huy and Cry of Winchester was brought into the Court without a Writ under the great Seal A Record not to be brought into Court without a Writ 63. and that was out of the Tower And in that Case also the Iustices held that if a Record be pleaded in the same Court where it abides the other party against whom it is pleaded may plead Nul tiel Record as if the said Record had bin remaining in another Court which all the Prothonotaries denied that always it had been used to the contrary At another day the Case was moved again The Plaintiff in the Quare Impedit counted that Richard Guilford was seised of the said Manor c. in the right of Bennet his Wife and so seised they both levied a Fine thereof to a stranger Sur Conusans de droit come ceo who rendred it to the Husband and Wife for their lives the remainder to the Heirs of the body of the Husband the remainder to the right Heirs of the Husband and they so being seised the Husband alone levied a Fine to a stranger Sur Conusans de droit come ceo c. and by the same Fine the Conusee rendred to the Husband and Wife in tail the remainder to the Heirs of the body of the Husband the remainder to the right Heirs of the Husband the Husband died seised the Wife entred and leased the said Manor to the Plaintiff and then the Church did become void And now the Queens Serjeants came and shewed unto the Court an Office which came in by Mittimus In which Writ the perclose is Mandamus vobis quod inspectis c. pro nobis fieri faciatis quod secundum leges consuetudinem Regni nostri Angliae faciend Statuetis And the Office did purport that the said Richard was seised of the said Manor and held the same of the Queen as of her Castle of Dover by Knights service in chief and levied the Fine ut supra and that the said Richard died sed quis sit propinquior haeres dict Ric. penitus ignorant and upon that Office prayed a Writ to the Bishop for the Queen And two Exceptions were taken to the Office First because it is not found by the said Office that the said Richard died seised 1 Cro. 895. in which Case it may be for any thing that appeareth in the Office that the said Richard after the said Fine had conveyed his estate in the said Lands unto others or that he was disseised c. See 3 H. 6. 5. If it be not found of what estate the Tenant of the King died seised the Office is insufficient But see there by Martin that such an Office is good enough for the King but not for the Heir to sue his Livery upon it And by Anderson Periam and Rhodes that defect in the Office is supplyed by the Count for there it is expressly alledged that the said Richard died seised Secondly because no Heir is found by the said Office. To which it was said by the Lord Anderson that peradventure at the Common Law the same had been a material Exception But we ought to respect the Statutes of 32 and 34 H. 8. of Wills. And therefore as to the Wife the Queen is entitled to Primer seisin because the conveyance was made for her advancement And by Windham the Queen in this Cale shall not have Primer seisin for by the Statute the Queen shall not have Primer seisin but in such Case where if no conveyance had been made the Queen should have had Primer seisin but in this Case for any thing that appears before us if this conveyance had not been made the Queen should not have had Primer seisin forasmuch as no Heir is found and if he died without Heir there is no Primer seisin because there is not any in rerum natura to sue livery Rhodes Periam and Anderson contrary Admitting that Richard died withou Heir the Queen shall have Primer seisin against the Wife of Richard notwithstanding the escheat Walmesley Serjeant If the Tenant of the King by Knights service in chief dieth seised of other Lands holden of a common person by Knights service without Heirs the King shall not have Primer seisin of such Lands holden of a Subject which Windham granted But by Anderson the Lord is put to sue an Ouster le mayne of the Land holden of him And afterward Exception was taken to the Count because the Plaintiff hath not averred the life of the Tenant in tail that is of Bennet the Wife of Richard to whom
the Land was entailed by the second Fine But that Exception was disallowed by the whole Court and a difference put by Anderson Where a man pleads the grant of an Advowson in gross by Tenant in tail in such case the life of the Tenant in tail ought to be averred for by his death the grant ceaseth But where a man pleads the Lease of Tenant in tail of a Manor with an Advowson appendant in such case such averment is not necessary So accordingly Smith Stapletons Case 15 Eliz. 431. And here it was moved if in as much as by the first Fine an estate for life was rendred to the Wife and by the second Fine in which she did not joyn an estate tail was limited unto her and now when the Husband dieth if he shall be remitted to her estate for life Co. 1 Inst 357. 2 Cro. 489. which Windham granted for that was her lawful estate and the second estate tortious But by Rhodes Periam and Anderson the Wife is at liberty to make her election which of the two estates she will have And as to the Writ to the Bishop for the Queen the Court was clear of opinion that it ought not to be granted upon this matter But all the question was if Regina inconsulta the Court would or ought to proceed And it was holden clearly by the whole Court that the tenure alledged modo forma could not be a tenure in chief for it is said that the Land was holden of the King as of the Castle of Dover in Capite LXXXVI Mich. 29 30 Eliz. In Communi Banco Intr. Pasc 28 Eliz. Rot. 602. Wast â— Cro. 40. 4â— WAst was brought by F. and his Wife agaist Pepy and counted that the said Pepy was seised and enfeoffed certain persons to the use of himself for life and afterwards to the use of the Wife of the Plaintiff and her Heirs The Defendant pleaded that the said Feoffment was unto the use of himself and his Heirs in Fee c. without that that it was to the uses in the Count Vpon which they were at issue And it was found by verdict that the said Feoffment was unto the uses contained in the Count But the Iury further found that the estate of the Defendant by the limitation of the use was priviledged with the impunity for Wast that is to say without impeachment of Wast And it was moved if upon this verdict the Plaintiff shall have Iudgment And Anderson and Rhodes Iustices he shall for the matter in issue is found for the Plaintiff and that is the Feoffment to the uses contained in the Count and this impunity of Wast is a forrein matter not within the charge of the Iury and therefore the traverse of it but matter of surplusage As if I plead the Feoffment of I. S. To which the other pleads that he did not enfeoff and the Iury find a conditional Feoffment the Court shall not respect the finding of the condition for it was not in issue and no advantage shall ever be had of such a liberty if it be not pleaded 30 H. 8. Dyer 41. In Dower the Tenant pleaded Ne unques seisi que Dower the Tenant pleaded that before the coverture of the Demandant one A. was seised of the Lands of which Dower is demanded in tail who made a Feoffment to a stranger and took the Demandant to Wife and took back an estate in Fee and died seised having issue inheritable Now although upon the truth of the matter she is not dowable de jure yet when the parties are at issue upon a point certain Hob. 53. Owen 91. no foreign or strange matter not in question betwixt the parties shall be respected in the point of the Iudgment But if the Defendant had pleaded it in bar he might have foreclosed the Demandant of her Dower Vide 38 H. 6. 27. 47 E. 3. 19. In a Praecipe quod reddat in the default of the Tenant one cause and shewed how the Tenant who made default was but Tenant for life of the Lands in demand the reversion in Fee to himself and prayed to be received The Demandant did counter-plead the receit saying the Defendant had fee upon which issue was joyned And it was found that neither the tenant nor he which prayed to be received had any thing in the Land In that case the Court did not regard the matter which was superfluous in the verdict for they were at issue upon a point certain that is whether the Tenant was seised in Fee for it was confessed of both sides that he had an estate for life and with that matter the Iury was not charged and they are not to enquire of it and so it was found against the Demandant for which cause the Receit was granted 7 H 6. 20. The parties were at issue upon a dying seised which is found by verdict but the Iury further find that the other party made continual claim this continual claim shall not be regarded in the point of Iudgment because it was pleaded in avoidance of the descent Windh Iustice contrary Forasmuch as it appeareth unto us upon the verdict that the Plaintiff hath not cause of Action and therefore he shall not have Iudgment As in Detinue No advantage of impunity for Wast shall be taken where the same is not pleaded though found by verdict Judgment Hob. 53. Owen 91. The Plaintiff counteth of a bailment by his own hand the Defendant pleadeth that he doth not detain c. the Iury find the Detinue but upon a bailment by another hand In this case notwithstanding that the Detinue be found yet the Plaintiff shall not have Iudgment But Rhodes Periam and Anderson in the principal case were of opinion Iudgment should be given for the Plaintiff for in no case the party shall have advantage of such a Liberty of impunity of Wast if he do not plead it And the Iurors are not to meddle with any matter which is not in issue And if it be but matter of surplusage it is to no purpose And afterwards Iudgment was given for the Plaintiff LXXXVII Bracebridge and Baskerviles Case Mich. 29 30 Eliz. In Communi Banco AN Action of Debt is brought against three Executors Debt against Executors one of them pleads in Bar a Recovery against himself in the Kings Bench The other two plead plene administr Against the first plea the Plaintiff did aver covin and upon the second plea they are at issue The first issue is found for the Plaintiff and as to the other plea it was found that the Defendants have in their hands thirty pounds of the goods of their Testator not administred Note the debt in demand was one hundred pounds upon which the Plaintiff had Iudgment to recover the goods of the Testator and thereupon had execution Now the Plaintiff brought a Scire facias against the said Executors supposing that many other goods of the Testator have come unto their
petit quod inquiratur per patriam praedict Brett similiter It was moved that the parties should replead for this matter upon which they are at Issue scil the appearance is not triable by Iury but by the Record And the Court was clear of opinion that the parties should replead for the cause aforesaid And it was moved by the Lord Anderson that if A. be bound to appear in the Kings Bench at such a day and A. at the said days goe to the Court but there no process is returned then the party may go to one of the chief Clerks of the Court and pray him to take a Note of his appearance And by Nelson we have an acient form of entry of such Appearance in such Cases Ad hunc diem venit I. S. propter indemnitatem suam Manucaptorum suorum petit quod comparentia sua in Curia hic recordetur And see for the same 38 H. 6. 17. And afterwards the Lord Anderson inspecto Rotulo ex assensu sociorum awarded a Repleader And so by Nelson it hath been done oftentimes here before and put in ure The same Law is where at the day of appearance no Court is holden or the Iustices do not come c. he who was bound to appear ought to have an Appearance recorded in such manner as it may be and if the other party pleadeth Nul tiel Record it behoveth that the Defendant have the Record ready at his peril for this Court cannot write to the Iustices of the Kings Bench for to certifie a Record hither CXV Baxter and Bales Case Mich. 29 30 Eliz. In the Common Pleas. Debt not extinct by administration BAxter brought Debt upon a Bond as Executor of I. against Bale who pleaded that the Plaintiff after the death of the Testator was cited to appear before the Ordinary or his Commissary to prove the Will of the said I. and at the day of his appearance he made default upon which the Ordinary committed Letters of Administration to the Defendant by force of which he did administer so the debt is extinct c. but the whole Court was clear of opinion that the debt was not extinct for now by the probate of the Will the administration is defeated and although the Executor made default at the day which he had by the Citation before the Ordinary yet thereby he is not absolutely debarred but that he may resort to the proving of the Will whensoever he pleaseth But if he had appeared and renounced the Executorship it had been otherwise and the debt is not extinct by the Administration in the mean time CXVI Mich. 29 30 Eliz. In the Common Pleas. IN a Franchise the parties are at Issue upon a matter triable out of the Franchise And it was moved if now the Record should be sent into the Common Pleas and there tryed and after trial sent back into the Franchise Which Periam and Anderson utterly denied and by Periam there is no reason that we should be their Ministers to try Issues joyned before them And it is not like 2 Len. 37. where in a Liberty or Franchise a Forrein Voucher is to warrant Lands in such cases we shall determine the Warranty but that is by a special Statute of Glocester cap. 12. And Nelson Prothonotary said that such an Issue was tryed here of late Quod nota CXVII The Earl of Arundel and the Lord Dacres Case Mich. 29 30 Eliz. At Serjeants Inne PHilip Earl of Arundel and the Lord William Howard his Brother marryed the Daughters and Co-heirs of the late Lord Dacres And now came Francis Lord Dacres as heir male of the said Family and claimed the Inheritance c. And after long sute betwixt both parties they submitted themselves to the award of Gilbert Lord Talbot and of Arthur Lord Grey of Wilton and Windham and Periam Iustices And before them at Serjeants Inne the matter was well debated by the Council learned on both sides and as unto Greistock Lands parcel of the Lands in question the Case was That Tenant in tail makes a Feoffment in fee unto the use of himself for his life the Remainder in tail to his eldest Son with divers Remainders over with a Proviso that if any of the Entailees do any act to interrupt the course of any entail limited by the said Conveyance that then the use limited to such person should cease and go to him who is next inheritable And afterwards Tenant in tail dieth his eldest Son to whom the use in tail was first limited entreth and doth an Act against the said Proviso and yet held himself in and made Leases the Lessees enter the Lessor dieth seised his Heir being within age and in ward to the Queen It was holden by Shutleworth Serjeant Yelverton Godfrey Owen and Coke who were of Council with the Heirs general of the Lord Dacres that here is a Remitter for by this Act against the Proviso the use Remitter and so the possession doth accrue to the enfant Son of him to whom the use in tail was limited by the Tenant in tail Then when the Tenant in tail after his said Feoffment holds himself in this is a disseissin for a Tenancy by sufferance cannot be after the cesser of an estate of Inheritance But admit that he be but a Tenant at sufferance Hâ—b 255. Dy. 54. yet when he makes Leases for years the same is clearly a disseisin and then upon the whole matter a Remitter and although the Enfant taketh by the Statute yet the right of the tail descending to him afterwards by the death of his Father doth remit him as if Tenant in tail maketh a Feoffment in fee to the use of himself for life the Remainder in tail to his eldest Son inheritable to the first intail notwithstanding that the eldest Son takes his Remainder by the Statute and so be in â—â— force thereof yet when by the death of his Father the right of the Entail descends to him he is remitted CXVIII Butler and Ayres Case Mich. 29 30 Eliz. In the Common Pleas. Dower BUtler and his Wife brought a Writ of Dower against Thomas Ayre Son and Heir of Bartholmew Ayre first Husband of the said Margaret Wife of the Plaintiff and demanded Dower of Lands in A. and B the Tenant pleaded never seised que Dower and the Iury found that the said Bartholmew was seised during the Coverture de omnibus tenementis infra script preterquam the Tenements in sic ut dicta Margareta dotari potuit Exception was taken to this Verdict because that this preterquam c. doth confound the Verdict To which it was said by the Court that the preterquam is idle and surplusage for it is of another thing than that which is in demand and the seisin of the first Husband of Lands in A. and B. is confessed and the preterquam works nothing Another matter was objected because here the Iury have assessed damages
and damages and in an Action upon the Case brought upon that promise the Plaintiff was barred for here is not any consideration for they bailed the Servant of their own head without the request of the Master and the matter which is alledgged for consideration is executed before the Assumpsit and the promise was not before the enlargment and the said bailment was not at the instance Claytons Rep. 45. 1 Cro. 756. or request of the Master And the Case of one Hudson was cited adjudged in the Kings Bench The Defendant in consideration that he was Administrator and natural Son of the Intestate and that the goods of his Father have come to his hands promiseth to pay the debt to the Plaintiff And in an Action upon the Case upon that promise the Defendant pleaded he made no such promise and it was found that no goods came to the hands of the Defendant And it was holden that the consideration that he was Administrator and Son to the Testator was not of any force to maintain the Action and afterwards in the principal Case the Iudgment was affirmed And it was moved by Coke that Iudgment should not be given against the Executor of his own goods if he had not goods of the Testator for the charge doth not extend beyond the consideration i. e. That the goods of the Testator came to the hands of the Defendant But Wray Iustice was of opinion that Iudgment shall be of his proper goods as in Case of confession Kemp Secondary if the Action be brought upon Assumpsit of the Testator Iudgment shall be of the goods of the Testator but of the promise of the Executor of his own goods but the Original Iudgment which is now affirmed was general CXXII Savel and Woods Case Hill. 30 Eliz. In the Kings Bench. 1 Cro. 71. 3 Len. 203. 265. Post 128. THe Case was That a Parson did Libel in the spiritual Court against a Parishoner for Tythes of such Lands within his Parish the Defendant came into the Kings Bench and surmised and that he and all those whose estate he hath in the Lands out of which the Tythes are demanded have used to pay every year five shillings to the Parish Clark of the same Parish for all the Tythes out of the same place And it was argued by Coke that that could not be for a Parish Clark is not a person corporate nor hath succession But if he had prescribed that they had used to pay it to the Parish Clark to the use of the Parson it had been good Also he ought to shew that the Parson ought of right to find the Parish Clark c. And he cited the Case of Bushie the Parson of Pancras who libelled in the Spiritual Court for Tithes The Defendant to have a prohibition did prescribe that he and all those c. had time out of mind c. used to pay to the Vicar c. and at last a Consultation was awarded because it was triable in the Ecclesiastical Court for both parties as well Vicar as Parson are spiritual persons and the modus decimandi is not in question but cui solvend And at another day it was agreed by the Iustices that of common right the Parson is not tied to find the Parish Clark for then he should be said the Parsons Clark and not the Parish Clark But if the Parson be tied to find such a Clark Challenge and such a sum hath been used to be paid to the Parish Clark in discharge of the Person the same had been a good prescription and so by way of composition and by Clench Tythes are to be paid to spiritual Persons but a Parish-Clark is a Lay-person And afterwards the Court granted a Consultation CXXIII Higham and Reynolds Case Hill. 30 Eliz. In the Kings Bench. IN an Action of Trespass the Plaintiff declared that the Defendant 1 Maii 28 Eliz. cut down six posts of the house of the Plaintiff at D. The Defendant doth justifie because that the Free-hold of the house 10 Aprilis 27 Eliz. was to I. S. and that he by his commandment the same day and year did the Trespass c. upon which the Plaintiff did demur in Law because the Defendant did not traverse without that that he was guilty before or after And the opinion of Wray was that the traverse taken was well enough because the Free-hold shall be intended to continue c. Vide 7. H. 7. 3. But all the other three Iustices were of a contrary opinion to Wray But they all agreed that where the Defendant doth justifie by reason of his Free-hold at the day supposed in the Declaration there the traverse before is good enough And afterwards Iudgment was given against the Defendant CXXIV Knight and Footmans Case Hill. 30 Eliz. In the Kings Bench. IN Trespass by Knight against Footman the Case upon the pleading was that one Margaret had issue two Sons Richard and Thomas Surrender of Copy-hold Land. and surrendred to the use of Richard for life and afterwards to the use of Thomas in Fee they both Thomas being within age surrender to the use of one Robert â—ap John in Fee who is admitted Richard dieth Co 1 Inst 248. Thomas dieth having issue A. who is also admitted and enters into the Land and if his entry be lawful or that he be put to his plaint in the nature of a Dum fuit infra aetatem was the Question And Wray was clear of opinion that it was And if a man seised of Copy-hold Land in the right of his Wife or Tenant in tail of a Copy-hold doth surrender to the use of another in Fee the same doth not make any discontinuance but that the issue in tail and the Wife may respectively enter 1 Cro. 372. 380. 391. 483. 717. More 596. and so was it holden in the Serjeants Case when Audley who afterwards was made Chancellor of England was made Serjeant and afterwards it was adjudged that the entry of the Enfant was lawful CXXV Sir Wollaston Dixies Case Mich. 29 Eliz. In the Exchequer AN Information was in the Exchequer against Sir Wollaston Dixie upon the Statute of Vsury upon not guilty pleaded Information upon the Statute of 13. Eliz of Usury The Informeâ— gave in evidence an usurious Contract upon a bargain of Wares The opinion of the Court was that the Information being exhibited for the loan of money that the Evidence was not pursuing nor leading to the Issue And yet the Iury against the opinion of the Court upon that evidence found the Defendant guilty And it was moved in arrest of Iudgment that the Evidence did not maintain the Information nor prove the Issue ex parte Querentis and it was said there are three things within the Statute i. three words i. bargain loan and cheivizance and these three are several things and therefore if the Information be conceived upon loan and the Informer giveth in Evidence a corrupt
the custom might be known Also it appeareth here upon the Declaration that Trespass vi armis should lye and be brought for the Declaration is that the Defendant did break and pull down the Herdels which cannot be without express force as 42 E. 3. 24. Trespass upon the case against a Miller and declared that the Plaintiff used to grind at the said Mill without Toll and that he sent his corn to the said Mill to be ground and there the Defendant came and took two Bushels of his said corn And the Writ was upon the prescription to grind sine multura and that the Defendant praedict querent sine multura molire impedivit and by Award of the Court the Plaintiff took nothing by his Writ for he hath declared that the Defendant hath taken Toll and therefore he ought to have a general Writ of Trespass Beaumont to the contrary A Market is as well for the common Wealth as a Fishing Also he is at the costs for providing of Herdels and the erecting of them so as he hath declared he hath taken divers sums of mony for it and as to any sum not certain it is well enough for peradventure sometimes he hath taken a penny sometimes two pence as the parties could agree And as to the exception of vi armis the same is not material for the Plaintiff doth not rely upon the pulling down of the Herdels only but upon the loss of the mony also which he should have had if the Defendant had not broken his Herdels And afterwards Iudgment was given for the Plaintiff CXLVIII Beverly and Bawdes Case Pasch 30 Eliz. In the Kings Bench. BEverly brought a Writ of Error to reverse an Out-lawry pronounced against him at the suit of one Bawdes and shewed Error that he was outlawed by the name John Beverly of Humby in the County of Lincoln Gent. And that within the said County there are two Humbyes scil Magna Humby Parva Humby and none without addition To which it was said of the other side that the truth is that there are two such Towns and that Humby Magna is known as well by the name of Humby only as taken for the name of Humby Magna And upon that they are at Issue And it was moved Tryal by Inquest of what County or place if the Inquest to try this Issue shall come de corpore comitatus or from Humby Magna And by Cooke it shall be tryed by an Inquest of Humby Magna and he confessed that if the Issue had been No such Town then the Inquest ought to be of the body of the County but here is another Issue to be tryed 22 E. 4. 4. In Trespass done in Fulborn and Hinton in the County of C. The Defendant said that there is no such Town nor Hamlet of Hinton within the same County Iudgment of the Writ See there by Briggs the tryal shall be de corpore comitatus See 14 H. 6. 8. Over-dale and Nether-dale and none without addition and so at Issue tryed by them of the body of the County 35 H. 6. 12. And by him wheresoever an Issue may be tryed by an Inquest out of a special Visne there it shall never be tryed by the body of the County As the case before 22 E. 4. Trespass in two Towns A. and B. The Def. as to A. pleads there was no such Town and as to B. pleaded another plea. Now the whole Inquest shall come out of B. for the Inquest in one Town may try any thing within the same County which see Fitz. Visne 27. 22 E. 4. 4. And here in our case the Issue is if Humby Magna be as well known by the name of Humby only as by the name of Humby Magna And therefore the same may well be tryed by Inquest out of the Town of Humby Magna But by Wray Iustice this Issue doth amount to no such Town for the perclose of the plea is and no Humby without addition and the book cited out of 22 E. 4. is not ruled but is only the opinion of Brian and afterwards it was awarded that the tryal was well Another matter was objected because it is not shewed in the Writ of Error betwixt what parties the first Writ did depend for otherwise how can the Plaintiff in the Writ of Error have a Scire facias ad audiendum Errores if none be named in the Writ of Error against whom it shall issue And Godfrey affirmed that upon search of Presidents it was both ways so as it is at the pleasure of the Plaintiff to do it or not And Kemp Secondary shewed divers Presidents to that purpose And afterwards the Out-lawry was reversed CXLIX Cibel and Hills Case Pasch 30 Eliz. In the Common Pleas. Debt for a Nemine pene A Lease was made of a certain House and Land rendring Rent and another sum Nomine poenae and for the Nominae poenae the Lessor brought an Action of Debt The Lessee pleaded that the Lessor had entred into parcel of the Land demised Roll. Tit. Extinguishment upon which they were at Issue and found for the Plaintiff and now the Lessor brought Debt for the Rent reserved upon the same Lease to which the Defendant pleaded ut supra scil an Entry into parcel of the Land demised And issue was joyned upon it And one of the Iury was challenged and withdrawn because he was one of the former Iury And the Issue now was whether the said Cibel the Lessor expulit amovit adhuc extra tenet the said Hills And to prove the same it was given in Evidence on the Defendants part that upon the Land demised there was a Brick-kill and and thereupon a little small cottage and that the Lessor entred and went to the said cottage and took some of the Bricks and untiled the said cottage Suspension of Rent by entry upon part of the Land. But of the other side it was said that the Lessor had reserved to himself the Bricks and Tiles aforesaid which in truth were there ready made at the time of the Lease made and that he did not untile the Brick-kill house but that it fell by tempest and so the Plaintiff did nothing but came upon the Land to carry away his own goods And also he had used the said Bricks and Tiles upon the reparation of the house And as to the Extra tenet which is parcel of the Issue the Lessor did not continue upon the Land Hob. 326. Rolls ubi supra Post 172. but went off it and relinquished the possession But as to this last point it seemed to the Court that it is not material if the Plaintiff continued his possession there or not for if he once doth any thing which amounts to an Entry although that he depart presently yet the possession is in him sufficient to suspend the Rent and he shall be said extra tanere the Defendant the Lessee until he hath done an Act which doth
amount to a Re-entry And afterwards to prove a Re-entry it was given in Evidence on the Plaintiffs part that the Defendant put in his Cattel in the Field where the Brick-kill was and that the Cattel did estray into the place where the Defendant had supposed that the Plaintiff had entred And by Anderson Iustice the same is not any Re-entry to revive the Rent because they were not put into the same place by the Lessee himself but went there of their own accord And such also was the opinion of Iustice Periam CL. Pasch 30 Eliz. In the Common Pleas. TEnant in tail covenanted with his Son to stand seised to the use of himself for life and afterwards to the use of his Son in tail the Remainder to the right Heirs of the Father The Father levyed a Fine with proclamation and died It was moved by Fenner if any estate passed to the Son by the Covenant for it is not a discontinuance and so nothing passed but during his life and all the estates which are to begin after his death are void Anderson The estate passeth until c. and he cited the case of one Pitts where it was adjudged that if Tenant in tail of an Advowson in gross grant the same in Fee and an Ancestor collateral releaseth with warranty and dieth That the same is a good Bar for ever CLI Staffords Case Pasch 30 Eliz. In the Common Pleas. THe case was Attachment upon a Prohibition More 599. that the Parson of the Church of B. did libel in the Ecclesiastical Court for Ttithe-milk of eight Kine depasturing within such a Field within his Parish The Defendant said that he and all those c. had used time out of mind c. to pay every year a certain sum of mony to the Parson c. for the Tithes of the same Field which plea the Iudges of the Ecclesiastical Court would not allow and therefore the party had now a Prohibition and an Injunction against the Iudges Doctors Proctors c. And afterwards the same Parson libelled again for the same Tithes against the same Parishioner and in both libels there was no difference but that in the later libel it was for a less number of Kine and now the Parishioner upon this matter prayed an Attachment upon the Prohibition which was granted unto him by the Court for otherwise a Prohibition should be granted to no purpose CLII. Samford and Wards Case Pasch 30 Eliz. In the Common Pleas. SAmford brought a Ravishment of Ward against Ward Ravishment of Ward and counted hat one A. Ancestor of the Infant whose Heir he is was seised of certain Lands in Fee and held the same of the Bishop of Winchester in Socage and died his Heir within the age of 14 years and that the custody of the Infant did belong unto him as his prochein Amy by force of which he seised him and was possessed c. The Defendant saith that the Land was holden of him by Knights service absque hoc that it is holden of the Bishop of Winchester as the Plaintiff hath counted And upon the Issue was joyned And it was moved by Serjant Puckering on the Plaintiffs part that the truth of the Case was that all the Land descended is holden in Socage and no part in Knights service but that part of it is holden of another in Socage And prayed the opinion of the Court if that matter shall trench to the Issue as the same is joyned And the Court was of opinion that it did not for if all be holden in Socage it is not material if part of it be holden of another so as it be holden in Socage CLIII Stamp and Hutchins Case Pasch 30 Eliz. In the Common Pleas. THe Case was the Obligor makes his Executors and dieth 1 Cro. 120. the Executors become bounden to the Obligee for the payment of the said Debt and the Obligee doth deliver back the Obligation of the Testator to them and afterwards another Creditor of the Testator sues the Executors who pleaded that they have fully administred upon which they are at issue and the said especial matter was found by verdict And by Shuttleworth and Walmesley The Iury have found for the Plaintiff and that the Defendants have not fully administred And yet they agreed the case of 20 H. 7. 2. The Executors paying to the Creditors of the Testator a Debt with their own goods they may retain so much of the goods of the Testator but that case is not like to this for here the Executors have not made any payment or satisfaction of the Debt nor disbursed any mony c. nor other things but only have made an Obligation to pay a sum of mony at a day to come before which day it may happen that the Obligation be cancelled or released but it may more fitly be compared to the case of 27 H. 8. 6. where an Executor had compounded with a Creditor of the Testator for the payment of 20 l. for a debt of 40 l. and had an Acquitance testifying the payment of the 40 l. where it was holden that the other 20 l. is Assets And by Rhodes this making of an Obligation by Executors Administration Assets although the Obligation in which the Testator was bounden be delivered to the Executors and cancelled is not any administration nor payment of the said debt due So if the Executors pledge the goods for the payment of such a debt yet they shall be accounted Assets until payment be made which Periam denied And Periam and all the other Iustices held clearly Retainer by administrations that if in such case the Executors make a sufficient Obligation to the Creditor of the Testator and sufficiently discharge the Testator without fraud or covin that they may retain the goods of the Testator for so much and the goods retained shall not be said Assets And this case is all one with the case of 20 H. 7. for here they have discharged the Testator and the Executors do remain charged with the same to the Creditor and it is so fully administred as if the Executors had expresly paid the debt And it is not like to the case of 27 H. 8. cited before for there although they have discharged the Testator yet they have not charged themselves otherwise it is in the principal case and although they have appointed ulteriorem diem for the payment of the said debt yet the same is not material But the Lord Anderson conceived that if the Creditor doth deliver unto the Executors the Obligation as an Accquittance or discharge and in consideration thereof they promise to pay the debt the same is not any administration as to the said debt And by some of the Serjants If the plea stand good to prove fully administred then Executors in such case may make an Obligation to pay the debt 40 years after and so defraud the other Creditors which is not reasonable If a Feoffment in Fee
made upon condition to pay certain mony at such a day and at the day the Feoffees make an Obligation to the Feoffor for the payment of it the same is no performance of the condition And by Periam If the Executor be taken in Execution for the debt of the Testator he may retain so much of the goods of the Testator amounting to the sum for which he is in Execution and it shall be accounted Assets in his hands Anderson If he to whom the Testator was endebted in 20 l. be endebted to the Executors in so much and the Executor in satisfaction of the debt of the Testator releaseth his debt the property shall be altered presently of the whole goods in the hands of the Executors so where the Debtor makes the Creditor his Executor And Iudgment was given for the Executors CLIV. Bears Case Pasch 30 Eliz. In the Common Pleas. Formedon A Formedon in the Discender was brought by Samuel Bear James Bear and John Bear of Lands in Gavel-kind and the Warranty of their Ancestor was pleaded against them in Bar upon which they were at Issue If Assets by discent And it was found by special verdict that Thomas Father of the Demandants was seised in Fee of the Lands supposed to be descended to the Demandants being of the nature of Gavel-kind and devised the same to the Demandants being his Heirs by the custom and to their Heirs equally to be divided amongst them Devise of Lands in Gavel-kind Owen 65. Dy. 350. 1 Cro. 431. More 594. 558. Sty 434. 3 Cro. 330. 443. 695. 696. And if the Demandants shall be accounted to be in of the Lands by descent or devise was the question for if by devise then they shall not be Assets Anderson Let us consider the devise by it self without the words equally to be divided amongst them And I conceive that they shall be in by the devise for they are now Ioynt-tenants and the survivor shall have the whole whereas if the Lands shall be holden in Law to have descended they should be Parceners and so as it were Tenants in common And although the words subsequent equally amongst them to be divided makes them Tenants in common yet that doth not amend the matter and so also was the opinion of Windham and Rhodes Iustices CLV Nash and Edwards Case Pasch 30 Eliz. In the Kings Bench. IN an Ejectione firmae by Nash against Edwards 1 Cro. 100. it was found by special verdict that one Dover Ancestor of the Plaintiff whose Heir he is being seised of certain Lands holden in Socage devised the same by word to his three Sisters And a stranger being present recited to the Devisor the said words of his Will and he did affirm them 3 Len. 79. And afterwards the said stranger put the said words in writing for his own remembrance but did not read them to the Devisor who afterwards died And it was moved If this devise being reduced in writing modo forma be good or not Spurling conceived that not for the Statute intends a Will in writing Devises but not such writing as is here without privity or direction of the Devisor and it is not like to the case of Brown and Sackvil 6 E. 6. Dyer 72. For the Notes were written by the commandment of the Devisor but here it doth not appear that the meaning of the Devisor was that the devise should be put in writing And devises in Law are favoured as the case in the Chancery was that Sir Richard Pexhal devised certain Lands to his Wife and the Scrivener inserted of his own head a condition scil that she should be chast which was disallowed by the Devisor himself for which after his death the condition although it was put in writing was void And by the whole Court the devise is void And by Wray 2 Len. 35. if he appoint A. to write his Will and it is written by B. it is void but if after he had written the Will if he had read it to the Devisor and he had confirmed it it had been a good Will which Gawdy granted And afterwards Iudgment was given that the Plaintiff should recover Stone and Withypolls Case Trin. 30 Eliz. Rot. 771. In the Kings Bench. STone brought an Action upon the Case against Dorothy Withypol the Executrix of W. Withypol her Husband 1 Cro. 126. Owen 94. 9 Co. 94. declared that where hersaid Husband for certain yards of Velvet of the value of fourteen pounds pro diversis alijs mercimonijs was endebted to the Plaintiff in the sum of ninety two pounds and made the Defendant his Executrix died that after his death he came to the Defendant and demanded of her the said debt who gave to him such answer Forbear me until Michaelmas and then I will pay it you or put you in sufficient security for the true payment thereof And declared further that at Michaelmas aforesaid the Defendant did not pay nor hath found any security and shewed a request to which the Defendant said that the said Testator at the time of the said Contracts for the Velvets and other Wares was within age Assumpsit And upon that Bar the Plaintiff did demur in Law. Egerton Solicitor for the Plaintiff As I conceive these Contracts made by the Plaintiff are not meerly void so that if an Action of Debt or upon the Case had been brought against the Testator himself he could not have pleaded upon the matter Nihil debet or Non Assumpsit or Non est factum but he ought to avoid the matter by special pleading and therefore here it is a good consideration and I conceive that if the Testator at his full age had assumed to pay the debt that that promise would have bound him 9 Eliz. it was the Case of the Lord Grey his Father was endebted to diverse Merchants upon simple Contracts and died seised of diverse Lands which descended to his Son and Heir in Fee the Creditors demanded their debts of the Heir who answered unto them if my Father were endebted unto you I will pay it and upon that promise an Action was adjudged maintainable although the Heir by the Law was not chargeable and also here the Defendant is to have ease and shall avoid trouble of Suits for perhaps if she had not made such promise the Plaintiff would have sued her presently which should be a great trouble unto her and therefore it is a good consideration Cooke contrary No consideration can be good if not that it touch either the charge of the Plaintiff or the benefit of the Defendant and none of them is in our case for the Plaintiff is not at any charge for which the Defendant can have any benefit for it is but the forbearance of the payment of the debt which she was not compellable to pay and as to the suit of the Chancery the same cannot make any good consideration for there is not any matter
the limitation for the life of the Wife cannot extend to both And as to the Book of 24 H. 8. Br. Forfeiture 87. 3 Cro. 167 168. Tenant for life aliens in Fee to B. Habendum sibi haeredibus suis for Term of the life of the Tenant for life the same is not a forfeiture for the whole is but the limitation of the estate And afterwards it was adjudged that it was a forfeiture Gawdy continuing in his former opinion And VVray said that he had conferred with the other Iudges of their House and they all held clearly that it is a forfeiture CLXXII Toft and Tompkins Case Trin. 30 Eliz. In the Kings Bench. Rot. 528. UPon a special Verdict the case was that the Grand-father Tenant for life the Remainder to the Father in tail Discontinuance 1 Cro. 135. that the Grand-father made a Feoffment in fee to the use of himself for life the Remainder to the Father in Fee And afterwards they both came upon the Land and made a Feoffment to Tompkins the Defendant Coke There is not any discontinuance upon this matter for the Father might well wave the advantage of the forfeiture committed by the Grand-father then when the Father joyns with the Grand-father in a Feoffment the same declares that he came upon the Land without intent to enter for a forfeiture It was one Waynmans Case adjudged in the common Pleas where the Disseissee cometh upon the Land to deliver a Release to the Disseissor that the same is no Entry to revest the Land in the Disseissee Then here it is the Livery of the Tenant for life and the grant of him in the Remainder and he in the Remainder here was never seised by force of the tail and so no discontinuance Godfrey Here is a Remitter by the Entry and afterwards a discontinuance for by the Entry of both the Law shall adjudge the possession in him who hath right c. Gawdy This is a discontinuance for when the Father entreth ut supra he shall be adjudged in by the forfeiture and then he hath gained a possession and so a discontinuance for both cannot have the possession Clench The intent of him in the Remainder when he entred was to joyn with the Grand-father and when his intent appeareth that the estate of the Grand-father and his own also shall passe that doth declare that he would not enter for the forfeiture Shute agreed with Gawdy CLXXIII Broake and Doughties Case Hill. 31 Eliz. Rot. 798. Trin. 30. Eliz. In the Kings Bench. AN Action upon the Case for words Action upon the Case for words 1 Cro. 135. viz. Thou wast forsworn in the Court of Requests and I will make thee stand upon a Stage for it It was found for the Plaintiff It was moved in arrest of Iudgment that the Action will not lye for these words for he doth not say that he was there forsworn as Defendant or witness And Trin. 28 Eliz. betwixt Hern and Hex thou wast forsworn in the Court of Whitchurch And Iudgment given against the Plaintiff for the words are not Actionable and as to the residue of the words I will make thee stand upon the Stage for it they are not Actionable as it was adjudged between Rylie and Trowgood If thou hadst Iustice thou hadst stood on the Pillory and Iudgment was given against the Plaintiff Daniel contrary thou wast forsworn before my Lord chief Iustice in an Evidence these words are Actionable for that is perjury upon the matter and between Foster and Thorne T. 23 Eliz. Rot. 882. Thou wast falsly forsworn in the Star-Chamber the Plaintiff had Iudgment for it shall be intended that the Plaintiff was Defendant or a Deponent there And yet the words in the Declaration are not in the Court of Star-Chamber Wray Thou art worthy to stand upon the Pillory are not Actionable for it is but an implication but in the words in the Case at the Bar there is a vehement intendment that his Oath was in the quality of a Defendant or Deponent which Gawdy granted In the Case 28 Eliz. Thou wast forsworn in Whit-Church Court there the words are not actionable for that Court is not known to you as Iudges And it may be it is but a great House or Mansion house called Whit-church Court But here in the principal case it cannot be meant but a Court of Iustice and before the Iudges there juridice and the subsequent words sound so much I will make thee stand upon a Stage for it And afterwards Iudgment was given for the Plaintiff CLXXIV Gatefould and Penns Case Trin. 30 Eliz. In the Kings Bench. Prescription for tythes 1 Cro. 136. 3 Len. 203 265. Antea 94. GAtefould Parson of North-linne libelled against Penne in the spiritual Court for tythes in Kind of certain pastures The Defendant to have prohibition doth surmise that he is Inhabitant of South-linne and that time out of mind c. every Inhabitant of South-linne having pastures in North-linne hath paid tythes in Kind for them unto the Vicars of South-linne where he is not resident and the Vicar hath also time out of mind payed to the Parson of North-linne for the time being two pence for every acre Lewis This surmise is not sufficient to have a prohibition for upon that matter Modus Decimandi shall never come in question but only the right of tythes if they belong to the Parson of North-linne or to the Vicar of South-linne and he might have pleaded this matter in the spiritual Court because it toucheth the right of tythes as it was certified in the Case of Bashly by the Doctors of the Civil Law. Gawdy This prescription doth stand with reason for such benefit hath the Parson of North-linne if any Inhabitant there hath any Pastures in South-linne And afterwards the whole Court was against the prohibition for Modus Decimandi shall never come in debate upon this matter but who shall have the tythes the Vicar of South-linne or the Parson of North-linne and also the prescription is not reasonable CLXXV Gomersal and Bishops Case Hill. 31 Eliz. Rot. 175. Trin. 30 Eliz. In the Kings Bench. 1 Cro. 136. BIshop libelled in the Spiritual Court for tythe Hay the Plaintiff Gomersal made a surmise that there was an agreement betwixt the said parties and for the yearly sum of seven shillings to be paid by Gomersal unto Bishop Bishop faithfully promised to Gomersal that Gomersal should have the tythes of the said Land during his life And upon an Attachment upon a Prohibition Gomersal declared that for the said annual sum Bishop leased to the Plaintiff the said tythes for his life And upon the Declaration Bishop did demur in Law for the variance between the Surmise and the Declaration for in the Surmise a promise is supposed for which Gomersal might have an Action upon the Case and in the Declaration a Lease But note that the Surmise was not entred in the Roll but was recorded
until Michaelmas Term by the Plaintiff himself And Leonard custos Brevium said That the words of the Statute of Westminster 2 cap. 27. Postquam aliquis posuerit se in aliquem inquisitionem ad proximum diem allocet ei esson Imports That the Essoin shall not be taken at the return of the Process against the Iury although the Iury be ready at the Bar. Anderson was of opinion That the awarding of the Nisi Prius ut supra is but a misawarding of the Process and then relieved by the Statute And afterwards the case being moved at another day 1 Cro. 367. the Court was clear of opinion That no Nisi Prius ought to issue forth in this case because that the Plaintiff himself by the adjorning of the Essoin cast by the Defendant until Michaelmas Term had barred himself of all Proceedings in the mean time But afterwards it was surmised to the Court on the Plaintiffs part that he the Defendant was not essoined for the name of the Defendant is Edward Hazel and it appeared upon the tryal that Edward Russel was essoined Amendment but no Edward Hazel and then if no Essoin no adjornment and then the Plaintiff is at large c. and may proceed c. But the Remembrance of the Clark was Edward Hazel as it ought to be and yet it was holden of no effect being in another Term And afterwards the Counsel of the Defendant prayed that the Roll in hac parte be amended according to the Remembrance of the Clark But the Court utterly denied that for no Statute gives amendment but in the affirmance of Iudgments and Verdicts and not in defeazance of Iudgments or Verdicts and afterwards it was resolved by the whole Court That Iudgment be entred for the Plaintiff CLXXXV Sir Henry Goodiers Case Hill. 32 Eliz. Intratur M. 29 30. Eliz. Rot. 2116. IN an Ejectione firmae the Case was Sir Ralph Rowlet possessed of certain Lands for years made his Will and ordained Sir Nicholas Bacon Renouncing of an Executorship Owen 44. Office of Executors 54. 1 Cro. 92. 9 Co. 37. Keeper of the great Seal of England Sir Robert Catline Lord Chief Iustice of England Iustice Southcote and Gerrard Attorney General his Executors and died And afterwards the said persons named Executors sent their Letters to the Chief Officer of the Prerogative Court as followeth Whereas our Loving friend Sir Ralph Rowlet Knight lately deceased made and ordained us Executors of his last Will and whereas our business is so great that we cannot attend the execution of the said Will Therefore we have thought good to move the bearer hereof Mr. Henry Goodier one of the Co-heirs of the said Sir Ralph to take upon him the execution of the said Will. And therefore we pray you to grant Letters of Administration in as ample manner as the justice of the cause doth require and afterwards an Entry was made in this manner in the same Court Executores Testamenti praedict executionem inde super se assumere distulerant adhuc distarent And upon that the said Goodier obtained Letters of Administration and granted a Lease to A. for years of which the said Sir Ralph Rowlet died possessed And afterwards Sir Robert Catline claiming as Executor granted the same Term to another c. and all the matter of difficulty was If this Letter written by the Executors be a sufficient Renunciation of the Executorship in Law so as the Executors cannot afterwards claim or use the said authority c. 2. If the Entry of the said Renuntiation be sufficient and effectual And it was argued by Ford one of the Doctors of the Civil Law That as well the Renunciation as the Entry of it is good and sufficient in Law so that none of the Executors could not after entermeddle And he said That in their Law there is not any certain form of Renuntiation but if the meaning and intention of the Renouncer appeareth it is sufficient without any formal Terms of Renunciation And he put many rules and Maximes in their Law to the same purpose Ego dico me nolle esse haeredem are sufficient words to such intent Non vult haeres esse quin ad aliam transferre debet haereditatem Qui semel repudiavit haereditatem non potest eam repetere Quod semel placuit post displicere non potest Variatio non permittitur in contractibus So that after the Executors have signified to the Officer of their Court their pleasure to renounce the Execution of the Will they cannot afterwards entermeddle nam interest reipublicae ut dominia rerum sint in certo And as to the Entry of the said Renunciation inter acta Curiae distulerint et adhuc distarent that was the error of the Clark. And it is Rule in our Law veritas rerum gestarum non vitiatur Errore factorum And the Lord Anderson demanded of the said Doctor how far those words haeres et haereditas did extend in their Law who answered That haereditas comprehends all Chattels as well real as personal Inheritance as well as Chattels for by their Law Haereditas nihilaliud est quam successio in universum jus quod defunctus habuit tempore mortis suae And afterwards the Court gave day to the other party to hear an Argument of their side but the case was so clear That no Professor of the Civil Law would be retained to argue to the contrary And afterwards Iudgment was given That the said Renunciation and the entry of it was sufficient CLXXXVI Littleton and Pernes Case Mich. 30 Eliz. In the Common Pleas. Debt LIttleton brought Debt upon an Obligation against Humphry Pernes who pleaded that the said Obligation was endorced with this condition for the performance of certain Articles and Covenants contained in certain Indentures by which Indentures the Plaintiff first covenanted that Edward brother of Humphry should enjoy such Land until the Feast of Michaelmas next following rendring such Rent at the end of the said Term and the said Humphry covenanted that the said Edward at the Feast aforesaid should surrender quietly and peaceably the said Lands to the Plaintiff and that the said Plaintiff to such of the said Lands as by the Custom of the Country tunc jacebant frisca should have in the mean time free ingress egress c. at his will and pleasure with his servants ploughs c. And as to that Covenant the Defendant pleaded Quod permisit querentem habere intrationem exitum c. in tales terras quales tunc jacebant secundum consuetudinem patriae c. And Exception was taken to this plea because he hath not shewed in certain which Lands they were which then then did lie Frecy according to the custom of the Country which Anderson allowed of but Walmsly strongly insisted to the contrary And he confessed that where an Act is to be done according to a Covenant he who pleads the performance of it ought to
the Plaintiff and thereupon Iudgment was given for the Plaintiff CCV Read and Nashes Case Trin. 31. Eliz. In the Kings Bench. IN an action of Trespass by Read and his Wife against Nash for entring into a house called the Dayry-house upon Not guilty pleaded The Iury found this special matter Sir Richard Gresham Knight was seised in Fee of the Mannours of I. and S. and of diverse other Lands mentioned in his Will and 3 Edw. 6. devised the same to Sir Thomas Gresham his Son for life the Remainder to the first son of the said Sir Thomas Gresham in tail the Remainder to the second son c. the Remainder to the third son c. The Remainder to Sir John Gresham his brother Proviso That if his Son go about or made any Alienations or discontinuance c. whereby the premisses cannot remain descend and come in the form as was appointed by the said Will otherwise than for Ioyntures for any of their Wives for her life only or leases for 21. years whereupon the old and accustomed Rent shall be reserved That then such person shall forfeit his estate Sir John Gresham dyed Sir Thomas Gresham his son built a new House upon the Land and 4 Mariae leased to Bellingford for one and twenty years rendring the antient Rent And afterwards 2 Eliz. he levyed a fine of the said Manours and of all his Lands and 5 Eliz. he made a Iointure to his Wife in this manner sci He covenanted with certain persons to stand seised to the use of himself and his Wife for their lives and afterwards to the use of his Right Heirs and afterwards 18 Eliz. he leased unto Read and his wife for one and twenty years to begin presently which was a year before the expiration of the said Lease made unto Bellingford which Lease being expired Read entred It was argued by Cook That here upon the words contained in the Proviso Sir Thomas had power and authority not being but Tenant for life to make a Lease for years or Iointure and that upon implication of the Will which ought to be taken construed according to the intent of the parties for his meaning was to give a power as well as an estate otherwise the word otherwise should be void and it is to be observed That the parties interessed in the said conveyance were Knights and it is not very likely That the said Sir Richard Gresham did intend that they should keep the Lands in their own manurance as Husbandmen but set the same to Farm for Rent And it is great Reason although he willeâ— that the order of his Inheritance should be preserved yet to make a Provision for Iointure and it is great reason and cause to his family to enable and make them capable of great Matches which should be a strengthning to his posterity which could not be without great Iointures wherefore I conceive it reasonable to construe it so That here they have power to make Iointures for their Wives It hath been said That no grant can be taken by implication as 12 E. 3. Tit. Avow 77. Land was given to I. and A. his wife and to the heirs of the body of I. begotten and if I. A. dy without heir of their bodies betwixt them begotten that then it remain to the right heirs of I. and it was holden that the second clause did not give an estate tail to the wife by implication being in a grant but otherwise it is in Case of a devise as 13 H. 7. 17. and there is no difference as some conceive when the devise is to the heir and when to a stranger but these cases concern matter of Interest but our case concerns an Authority And admit that Sir Thomas hath power and authority to make this lease Then we are to consider if the Iointure be good for if it be Then being made before the Lease Use cannot rise out of a power it shall take effect before and the woman Iointress is found to be alive But I conceive That this Iointure is void and then the Lease shall stand for an use cannot rise out of a power but may rise out of an estate of the Testator and out of his Will 19 H. 6. A man deviseth That his Executors shall sell his reversion and they sell by Word it is a good Sale for now the Reversion passeth by the Will. But an use cannot be raised out of an use and a man cannot bargain and sell Land to another use than of the Bargainee And it is like unto the case of 10 E. 4 5. The disseisee doth release unto the disseisor rendring Rent the render is void for a rent cannot issue out of a right so an use cannot be out of a Release by the disseisee for such release to such purpose shall not enure as an Entry and Feoffment Also here after that conveyance Sir Thomas hath built and erected a New house and no new Rent is reserved upon it and therefore here it is not the ancient Rent for part of the sum is going out of the new house But as to that It was said by the Iustices do not speak to that for it appears that the Rent is well enough reserved Another matter was moved for that That a year before the Expiration of the Lease made to Billington this Lease was made to Reâ—d for 21 years to begin presently from the date of it although by the same authority he cannot make Leases in Reversion for then he might charge the Inheritance in infinitum But yet such a Lease as here is he might make well enough for this Lease is to begin presently and so no charge to him in the Reversion as in the Case betwixt Fox and Colliers upon the Statute of 1 Eliz. A Bishop makes a Lease for three years before the Expiration of a former Lease to begin presently It was holden a good Lease to bind the Successor for the Inheritance of the Bishop is not charged above one and twenty years in toto But if a Bishop make a Lease for years and afterwards makes a Lease for three lives the same is not good 8 Eliz. Dy. 246. Tenant in tail leaseth to begin at Michaelmas next ensuing for twenty years it is a good Lease by the Statute of 32 H. 8. so is a lease for 10 years and after for eleven years and yet the Statutes are in the Negative but this power in our Case is in the Affirmative and the Inheritance is not charged in the whole with more than one and twenty years CCVI. Kinnersly and Smarts Case Trin. 31 Eliz. In the Kings Bench. 〈◊〉 upon a usurious Contract 1 Cro 155. IN Debt upon a Bond The Plaintiff declared That the Bond was made in London The Defendant pleaded That an usurious Contract was made betwixt the parties at D. in Stafford-shire that the Obligation was made for the same contract The Plaintiff by Replication saith that the Bond was made bona
second Lessee and declared upon a Lease made for years without speaking of the Indenture And Gawdy Serjeant demanded the opinion of the Court if the Defendant might safely plead no Wast And they conceived that it should be dangerous so to do Then it was demanded if the Defendant plead that the Plaintiff had nothing tempore dimissionis whereof he had counted if the Plaintiff might estop the Defendant by the Indenture although he had not counted upon it and if such Replication be not a departure And it seemed to Periam and Leonard Custos brevium that it was not for it is not contrary to the Declaration but rather doth enforce the Declaration CCXXI Mich. 31 Eliz. In the Common Pleas. WAlmesley Serjeant demanded the opinion of the Court upon this matter Land is given to Husband and Wife in special tail during the Coverture they have issue the Husband is attainted of Treason and dieth the Wife continues in as Tenant in tail the issue is restored by Parliament and made inheritable to his Father saving unto the King all advantages which were devolded unto him by the Attainder of his Father the Wife dieth And he conceived that the issue was inheritable for the Attainder which disturbed the inheritance is removed and the blood is restored and nothing can accrue to the King for the Father had not any estate forfeitable but all the estate did survive to the Wife not impeachable by the said Attainder And when the Wife dieth then is the Issue capable to enherit the estate tail Windham and Rhodes prima facie thought the contrary yet they agreed that if the Wife had suffered a common Recovery the sâ—me had bound the King. CCXXII Mich. 31 Eliz. In the Common Pleas. IN an Action upon the Case the Plaintiff declared Assumpsit that he had delivered to the Defendant diversa bona ad valentiam 10 li. the Defendant in consideration thereof did promise to pay to the Plaintiff the Debt owing pro bonis praedictis and did not shew that the Defendant bought the said goods of the Plaintiff and so it doth not appear that there was any Debt and then a promise to pay it is meerly void which was agreed by the whole Court. CCXXIII. Seaman and Brownings Case Mich. 31 Eliz. In the Common Pleas. GEorge Seaman brought Debt upon a Bond against W. Browning and others Executors of one Marshal the condition was Debt that where the said Marshal had sold certain Lands to the Plaintiff if the said Plaintiff peaceably and quietly enjoy the said Lands against the said Marshal c. and assigned the breach in this that the said Marshal had entred upon him and cut down five Elms there upon which the parties were at issue And it was found that A. servant of the said Marshal by commandment of his said Master had entred and cut c. in the presence of his said Master and by his commandment for he is a principal Trespassor And it was so holden by the Court. CCXXIV. Mich. 31 Eliz. In the Common Pleas. IF the Kings Tenant by Knights service dieth his Heir within age 8 Co. 172. and upon Office found the King seiseth the Body and Land yet the Heir during the possession of the King may sell the Lands by Deed enrolled or make a Lease of such Land and the same shall bind the Heir notwithstanding the possession of the King but if he maketh a Feoffment in Fee it is utterly void for the same is an intrusion upon the possession of the King but where the King by Office found is entituled to the Inheritance as that his Tenant dieth without Heir whereas it is false for which the King seiseth in such case the Tenant of the King before his Ouster le mayne cannot make a Lease for years or sell the Land by Deed enrolled The Case depended in London before the Iudges of the Sheriffs Court. The King by colour of a false Office which doth falsly entitle him to the Inheritance is seised of certain Land he who hath right leased the same for years by Deed indented and then an Ouster le mayne was sued and he enfeoffed a stranger And it was holden that the Lease should not bind the Feoffee although it was by Deed indented for the Feoffee is a stranger to the Indenture and therefore shall not be estopped by it 18 H. 6. 22. A stranger shall not take advantage of an Estoppel and therefore shall not be bound by it As if one take a Lease for years by Indenture of his own Lands the same shall bind him but if he dieth without Heir it shall not bind the Lord in point of Escheat CCXXV. Gibbs Case Mich. 31 Eliz. In the Common Pleas. Trover and Conversion 1 Cro. 861. Owen 27. GIbbs brought an Action upon the Case upon Trover and Conversion of a Gelding and the Case was that one P. had stolen the said Horse and sold the same unto the Defendant in open Market by the name of Lister and the said false name was entred in the Toll-book And it was holden clear by the Court that by that sale the property was not altered CCXXVI Mich. 31 Eliz. In the Common Pleas. Owen 45. Hutton 105. 1 Cro. 734. Post 322. TEnant in Socage leased his Lands for four years and died his Heir within the age of eight years the Mother being Guardian in Socage leased the Land by Indenture to the same Lessee for fourteen years It was holden by the Court that in this Case the first lease is surrendred but otherwise upon a Lease made by Guardian by Nurture CCXXVII Kimpton and Dawbenets Case Mich. 31 Eliz. In the Common Pleas. IN Trespass the Defendant did justifie by a grant of the Land where c. by Copy The Plaintiff by Replication saith that the Land is customary Land ut supra and claimed the same by a former Copy The Defendant by Rejoynder saith that well and true it is that the Lord may grant Copies in possession at his pleasure and also estates by Copy in Reversion with the assent of the Copy-holder in possession but all estates granted by Copy in Reversion without such assent have been void It was argued that this custom is not good for it is not reason that the Lord in disposing of the customary possessions of his Manor should depend upon the will of his Tenant at will and the same is not like to the case of Attornment for there the Attendancy is to be respited which is not to be done here for the Copy-holder in possession shall continue attendant to his Lord notwithstanding such a grant in Reversion And see for the unreasonableness of the custom 19 Eliz. 357. in Dyer Sallfords Case It was moved on the other side that the Custom was good enough and 3 H. 6. 45. was vouched That every Freehold of a Manour upon alienation might surrender his Land c. It was adjourned CCXXVIII Marriot and Pascalls Case in a Writ of
Executor of an Administrator 1 Cro. 121. Yel 20. 9 Co. 87. Administratrix of Joan Webb and declared of a Contract without specialty The Defendant pleaded That she had fully administred and it was found against her And now it was moved for the Defendant That upon the matter an action of Debt doth not lye against the Executor or Administratrix which was granted by the Court. But the doubt was If now forasmuch as the Defendant by pleading the plea above hath admitted the action she shall now take advantage of the Law in that point For the reason why this action doth not lye against an Executor or Administrator is because the Testator himself might have waged his Law if he had been impleaded upon it and by intendment of Law the Executor or Administrator cannot have notice of such a Debt or of the discharge of it But now by answering to the Declaration as above the Defendant hath taken notice of the Debt and in manner confessed it And by Rhodes and Anderson Iudgment shall be given against the the Plaintiff because it is apparent to the Court that the action doth not lye And by Anderson If Iudgment be entred against the Administratrix in such an action upon Nihil dicit the Court ex officio shall give judgment against the Plaintiff Periam and Windham doubted at the first that the Defendant by her plea had admitted the whole matter upon the specially administred pleaded and had taken notice of the Debt 41 E. 3. 13. 46 E. 3. 10 11. 13 E. 4. 25. 13 H. 8. Fitz. Execut. 21. And afterwards Anderson ex assensu of the other Iudges caused to be entred Querens capiat nihil per breve CCXXX Hambleden and Hambledens Case Mich. 30 31 Eliz. In the Common Pleas. Intrat Mich. 29. 30 Eliz Devises 1 Cro. 163. 1 And. 381. THe case was William Hambleden the Father of the Plaintiff and the. Defendant was seised of the Lands c. And by his Will devised to his Eldest Son Black Acre to his second Son White Acre and to his third Green Acre in tail And by his said Will further willed That in Case any of my said Sons do dye without issue that then the Survivor be each others heir The Eldest son dieth without issue c It was moved by Gawdy Serjeant That the second Son shall have Black Acre in tail and he cited the Case 30 E. 3. 28. propinquioribus haeredibus de sanguine puerorum for the construction of such devises Walmesley argued That both the surviving Brothers should have the said Black Acre for the words of the devise are quilibet supervivens which amounts to uterque and the Court was in great doubt of this point And they conceived That the estate limited in Remainder to the Survivor c. is a fee-simple by reason of the words Each others heir And also they conceived That both the Survivors should not have the Land for the same is contrary to the express words of the devise The Survivor shall be each others heir in the singular number see 7 E. 6. Br. Devise 38. A man seised of Land hath issue three Sons and deviseth part of his Lands to his second Son in tail Heb. 75. and the residue to his third son in tail and willeth That none of them shall sell the Land but that each shall be heir to the other The second son dieth without issue the same Land shall not revert to the eldest Son but shall remain to the third son 1 Len. 261. notwithstanding the words each shall be heir to the other CCXXXI Slywright and Pages Case Mich. 30 31 Eliz. In the Common Pleas. Maintenance More 266. 1 And. 201. Golds 101 102. AN Information was in the Common Pleas by John Slywright against Page upon the Statute of 32 H. 8. of Maintenance and declared that the Defendant took a Lease of one Joan Wade of certain Lands whereas the said Joan was not seised nor possessed thereof according to the Statute and upon Not guilty the Iury found this special matter That Edmund Wade was seised and made a Feoffment in fee thereof unto the use of himself and of the said Joan who he then intended to marry and the heirs of the said Edmund The marriage took effect Edmund enfeoffed a Stranger who entred Edmund died Joan not having had possession of the said Land after the death of Ed. her husband nor bing now in possession by Indenture demised the said Land to the Defendant for years without any Entry or delivery of the Indenture upon the Land The said Defendant knowing the said Joan never had been in possession of the said Land and also the Defendant being Brother of the half blood to the said Joan. The first Question was If the Lease being made by one out of possession and not sealed or delivered upon the Land and so not good in Law as to pass any interest be within the Statute aforesaid And the whole Court was clear of opinion that it was for by colour of this pretended Lease such might be undertaken advanced to the trouble disquiet of the possession for amongst the vulgar people it is a Lease it is a Lease by Reputation Another matter was moved because that the entry of the wife is now made lawful by 32 H. 8. and then she might well dispose of the Land. But as to that It was said by the whole Court That the meaning of the Statute was to repress the practises of many That when they thought they had title or right unto any Land they for the furtherance of their pretended Right conveyed their interest in some part thereof to great persons and with their countenance did oppress the possessors And although here the Lease was made by the said Joan to her Brother of the half blood yet by the clear opinion of the Court the Lease is within the danger of the Statute and yet in some Case the Son may maintain his Father the Kinsman his Kinsman And note in this case it was holden by the Iustices That of necessity it ought to be found by verdict That the Defendant knowing that the Lessor never had been in possession And Iudgment was given for the Plaintiff CCXXXII Brokesby against Wickham and the Bishop of Lincoln Mich. 30 31 Eliz. In the Common Pleas. IN a Quare Impedit the Plaintiff counted Quare Impedit 3 Len. 256. 1 Cro. 173. Owen 85 86. Popham 189. That Robert Brokesby was seise of the Advowson and granted the next Avoidance to the Plaintiff and Humphrey Brokesby and that afterwards the Church became void and after during the avoidance Humphrey released to the Plaintiff and so it belongs to him to present And upon this count the Defendant did demar in Law. For it appeareth upon the Plaintiffs own shewing that Humphrey ought to have joined with the Plaintiff in the action for the Release being made after the Church became void
is not of any effect but utterly void So is the grant of the presentment to the Church where the Church is void for it is a thing in action See the Lord Dyer 28 H. 6. 26. 3 Ma. Dyer 129. 11 Eliz. Dyer 283 Walmsley Serjeant put this Case Two Ioint-tenants of a Rent the one may release to the other but if the Rent be behind now the one cannot Release his Interest in the Arrearages to the other And afterwards in the Principal case Iudgment was given that the Release was void CCXXXIII Sammes and Paynes Case Mich. 30 31 Eliz. In the Common Pleas. Intr. Trin. 29 Eliz. Rot. 721. IN an Ejectione firmae the case was That the Mother being seised of certain Lands had issue two Daughters Tenant by the curtesie 1 And. 184. Goldsb 81. 82. 8 Co. 34. and by Indenture covenanted with diverse persons to stand seised to the use of Eliz. her eldest Daughter in tail upon condition that the said Eliz. should pay to her other Daughter within a year after the death of the Mother or within a year after the said other Daughter should come to the age of eighteen years 300 l. And if the said E. should fall in the payment of the sum aforesaid or should dye without issue before such payment then to the use of the said second Daughter in tail The Mother dieth E. taketh Husband hath issue afterwards dieth without issue before the day of payment And if the Husband shall be tenant by the curtesie or not was the Question And by the Court cleerly he shall be For as to the condition of payment of the said Sum the same is not determined for she died without issue before the day of payment scil before the second Daughter came of the age of eighteen years as to that there is no condition broken as to the point of dying without issue The same is not a condition but rather a Limitation of the Estate and the same is no more than what the Law saith and the estate tail in Elizabeth is spent and determined by the dying without issue and doth not cease or is cut off by any Limitation and afterwards Iudgment was given for the Tenant by the curtesie And by Anderson If a Feoffment be made to the use of I. S. and his heirs until I. D. hath done such a thing and then unto the use of I. D. and his heirs the thing is done and I. S. dieth his wife shall be endowed CCXXXIV Bowry and Popes Case Mich. 30 31 Eliz. In the Common Pleas. 1 Roll. 676. Plow Queries vers finem BOwry brought an Action upon the Case against Pope and declared that in the time of E. 6. the Dean and Chapter of Westminster leased two houses in Saint Martins in London to Mason for sixty years The which Mason leased one of the said Houses to one A. and covenanted by the Indenture of Lease with the said A. that it should be lawful for the said A. his Executors and assigns to make a window in the shop of the house so to him assigned and afterwards in the time of Queen Mary a window was made accordingly where no window was there before And afterwards A. assigned the said house to the Plaintiff And now Pope having a house adjoining had erected a new building super solum ipsius Pope ex opposito the said new Window Nusance so as the New Window is thereby stopped The Defendant pleaded Not guilty and it was found for the Plaintiff and it was moved for the Defendant in arrest of Iudgment that here upon the Declaration appeareth no cause of action for the window in the stopping of which the wrong is assigned appears upon the Plaintiffs own shewing to be of late erected scil in the time of Queen Mary The stopping of which by any act upon my own Land was holden lawful and justifiable by the whole Court. But if it were an antient window time out of memory c. there the light or benefit of it ought not to be impaired by any Act whatsoever and such was the opinion of the whole Court. But if the case had been That the house soil upon which Pope had erected the said building had been under the estate of Mason who covenanted as abovesaid Then Pope could not have justified the nusance which was granted by the whole Court. CCXXXV Lee and Maddoxes Case Mich. 30 31 Eliz. In the Common Pleas. Intrat Mich. 29 30 Eliz. Rot. 1737. Covenant WIlliam Lee brought a Writ of Covenant against Richard Maddox Isabel his Wife and declared That one Errington the first husband of the said Isabel was endebted to the Plaintiff in 20 l. and that one Georgy Ashley was also endebted to the said Errington in the like sum of 20 l. And also that the said Errington made and constituted the said Isabel his Executrix and died and afterwards the said Isabel by Indenture dum ipsa sola fuit reciting that whereas her said late husband was endebted to the Plaintiff in the sum aforesaid and whereas the said George Ashley was also endebted unto her said late Husband in the like sum Now for the better satisfaction of the Plaintiff for his said Debt she appointed and constituted the Plaintiff atturnatum suum irrevocabilem ad petendum levandum recuperand recipiend ad usum suum proprium in nomine dict Isabellae de dicto Georgio the said twenty pounds And the said Isabel covenanted quod ipsa ad requis dict quer de tempore in tempus adjuvaret manu teneret quamlibet omnes sectam sectas quam vel quas dictus querens commensaret prosequeretur in nomine dictae Isabellae against the said George to the use of the Plaintiff Non existendo Non-suit voluntarie or making any Discontinuance Release Revocations Anglice Countermand without the assent of the Plaintiff And declared further that the Plaintiff had brought a Suit against the said George for the said Debt and shewed all in certain And that the said Isabel depending the said Suit Countermand had taken to Husband the Defendant without the assent of the Plaintiff And if by this Marriage the said Suit be countermanded was the Question And first it seemed to the Court that the Declaration was insufficient Request because there is not any request surmised in the Declaration for the words of the Covenant are Quod ipsa ad requisitionem c. So as it seemed to the Iustices that the Plaintiff ought to have notified to Isabel that he had commenced such Suit otherwise the Action will not lye And also the Court was of opinion that here is not any Countermand for by the taking of the Husband the Writ is not abated but only abateable and therefore the Plaintiff ought to have shewed 1 Roll. 781. that by the taking of the Husband the Writ by Iudgment was abated otherwise it is not any Countermand and
Godfrey in arrest of Iudgment That it is apparent upon the Declaration That the Trespass was done in the time of their Predecessors of which the Successor cannot have action and actio personalis moritur cum persona See 19 H. 6. 66. But the old Church-wardens shall have the action Cook contrary and that the present Church-wardens shall have the action and that in respect of their office which the Court granted And by Gawdy Church-wardens are a Corporation by the Common Law. See 12 H. 7. 28. by Frowick That the New Church-wardens shall not have an action upon such a Trespass done to their Predecessors contrary by Yaxley See by Newton and Paston That the Executors of the Guardian in whose time the Trespass was done shall have Trespass CCXLIX Hauxwood and Husbands Case Pasch 31 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared for disturbing of him to use his common c. and shewed that A. was seised of certain Lands to which this Common was appendant Prescription 1 Cro. 153. for the term of his Life the Remainder to B. in tail and that the said A. and B. did demise unto him the said Lands for years c. Pepper The Declaration is not good for it is not shewed how these particular estates did commence See 20 E. 4. 10. By Piggot Lessee for life and he in the Remainder cannot prescribe together and he in the Remainder cannot have common Also he declares That Tenant for life and he in Remainder demised to him whereas in truth it is the demise of Tenant for life and the Confirmation of him in the Remainder also he doth not aver the life of Tenant for life Popham He needs not to shew the commencement of the particular estates for we are a stranger to them the Prescription in them both is well enough for all is but one estate and the Lease of both See 27 H. 8. 13. The Lessee for life and he in the Reversion made a Lease for life and joyned in an action of wast and there needs no averment of the life of the Tenant for life for he in the Reversion hath joyned which Gawdy granted as to all And said the particular estates are but as conveyance unto the action Wray conceived the first Exception to be material c. CCL Sweeper and Randals Case Rot. 770. Trin. 31 Eliz. In the Kings Bench. IN an Action of Trespass for breaking of his Close and carrying away his goods by Sweeper against Randal upon Not guilty pleaded i Cro. 156. The Iury found That one John Gilbert was seised of the Land where c. and leased the same to the Plaintiff at Will who sowed the Land and afterwards the Plaintiff agreed with the said Gilbert to surrender to him the said Land and his interest in the same and the said Gilbert entred and leased to the Defendant who took the Corn. It was moved if these words I agree to surrender my Lands be a present and express surrender Gawdy It is not any surrender for Tenant at will cannot surrender but it is but a relinquishing of the estate if it be any thing Surrender but in truth it is not any thing in present but an act to be done in future Wray I agree A. demiseth the Manor of D. at will it is no Lease no more shall it be here any Surrender or any relinquishing of the estate Clench conceived That the intent of the Party was to leave his estate at the time of the speaking otherwise those words were void for he might leave it at any time without those words Gawdy If such was his intent the Iury ought to find it expressly and afterwards Iudgment was given for the Plaintiff CCLI Ward and Blunts Case Trin. 31. Eliz. In the Kings Bench. Trover and Conversion 1 Cro. 146. IN an Action upon the Case of Trover of certain Loads of Corn at Henden in Middlesex and the conversion of them The Defendant pleaded That before the conversion he was seised of certain Lands called Harminglow in the County of Stafford and that the Corn whereof c. was there growing and that he did sever it by force of which he was possessed and the same casually lost and that the same came to the hands of the Plaintiff and the Plaintiff casually lost the same and the same came to the hands of the Defendant at Henden aforesaid and he did convert the same to his own use as it was lawful for him to do upon which the Plaintiff did demur in Law. Atkinson The Plea is good for the conversion is the point of the action and the effect of it For if a man take the same and do not convert he is not guilty And here the Defendant doth justifie the conversion wherefore he cannot plead Not guilty The general issue is to be taken where a man hath not any colour but here the Defendant hath colour because the Corn whereof c. was growing upon his Land which might enveigle the Lay people and therefore it is safest to plead the special matter But admit that it doth amount but to the general issue yet there is not any cause of Demurrer but the Plaintiff ought to shew the same to the Court and pray that the general issue be entred and the Court ex officio ought to do it Egerton the Queens Solicitor contrary The Plea in Bar is not good The Plaintiff declares of a Trover of his goods ut de bonis suis propriis and the Defendant pleads That he took his own goods which is not any answer to the Plaintiff See 22 E. 3. 18. In Trespass of taking and carrying away his Trees The Defendant pleads That they were our Trees growing in our own soil and we cut them and carryed them away and the plea was challenged wherefore the Defendant pleaded over without that that he took the Trees of the Plaintiff So 26 Ass 22. and 30 E. 3. 22. Another matter was The Plea in Bar is That before the time of the Conversion the Defendant was seised of the Land and sowed it and that after the Corn was severed but he doth not say that he was seised at the time of the severance and then it might be that he had severed the Corn of the Plaintiff c. and that was holden by the Court to be a material exception wherefore Iudgment was given for the Plaintiff But as to the first Exception the same was disallowed For the Court ex Officio in such case ought to cause the general issue to be entred but the Plaintiff ought not to demur upon it CCLIV Cheiny and Langleys Case Hill. 31. Eliz. Rott 638. Trin. 31 Eliz. In the Kings Bench. THe case was That Tenant for life of certain Lands leased the same for years by Indenture with these words I give grant 1 Cro. 157. Leases bargain and sell my interest in such Lands for twenty years To have and to hold
Will he cited Chicks case 19 Eliz. 357 and 23 Eliz. 371. Dyer At another day it was argued by Cook That both the Houses pass and the words take the profit do not restrain the general words before viz. All my Lands and Tenements but rather expounds them sci such profits that they might take of a Reversion cum acciderit for it may be that the Brother shall die within ten years And he cited the case 34 H. 6. 6. A man seised of diverse Reversion upon estates for life devises them by the name of omnium terrarum tenementorum which were in his own hands and by those parols the Reversion did pass and yet the Reversion to speak properly was not in his hands and if the Brother had died in the life of the devisor they had clearly passed and then his death or life shall not alter the case And he resembled the case to the case in 39 E. 3. 21. The King grants to the Abbot of Redding That in time of vacation the Prior and Monks shall have the disposition of all the possessions of the said Abbey ad sustentationem Prioris Monachorum 3 Cro. 290. and if in the time of vacation they shall have the Advowsons was the question for it was said That advowsons could not be to their sustentation But yet by the better opinion the grant of the King did extend to Advowsons for it shall be intended such sustentation as Advowsons might give Godfrey Our Case is not like to the case of 34. H. 6. for there the Devisor had not any thing in possession and therefore if the Reversion did not pass the devise should be utterly void Gawdy conceived that the house in possession only passed for the devise extends to such things only whereof the Profits might be taken but here is not any profit of a Reversion Clench and Wray contrary The intent of the devise was to perform the Will of his Father and also of his own Will and in case the house in possession was not sufficient to perform both the Wills all shall pass and therefore the devise by favorable construction is to be taken largely so as the Wills might be throughly performed and also the devise is general and further all his Lands and Tenements which are not restrained by the Subsequent words to take the profits for to have and to hold and to have and to take the profits is all one CCLV. Slugge and the Bishop of Landaffs Case Trin. 31 Eliz. In the Kings Bench. SLugge libelled against the Bishop of Landaff in the Ecclesiastical Court because where he was presented by the Dean and Chapter of Gloucester to the Church of Penner the Bishop did refuse to admit him and now the Bishop sued a Prohibition and shewed Prohibition Quod non habetur talis Rectoria cum cura animarum in eadem diocesi sed perpetua vicaria And by Popham a Prohibition doth not lye but the matter ought to be determined in the Ecclesiastical Court and when he who is presented to the same Church whether it be a Church or not shall be tried in an action of trespass and the like matter was ruled Mich. 14. Eliz. betwixt Weston and Grendon who was presented by the Queen and it was holden that because institution and admission do belong to the Ecclesiastical Court and not to the Kings Court that no Prohibition should lye and therefore he prayed a Consultation And note That the Defendant in the Prohibition did not demur formally upon the suggestion for the Iudges use if the suggestion be not sufficient to maintain the Prohibition to grant a Consultation without any formal demurrer upon the Suggestion if the insufficiency of the Suggestion be manifest Trial. which was granted by the whole Court. Cook That a Consultation ought not to be granted for whether there be such a Rectory or not shall be tried here So 2 H. 4. 30. Prior or not Prior 49 E. 3. 17 18. Wife or not Wife but never accoupled in loyal matrimony by the Bishop Ante. 53. 54. 44 E. 3. So within or without the Parish 50 E. 3. 20. So 45 E. 3. Quare Impedit 138. In a Quare Impedit no such Church within the County Afterwards at another day Popham put the case Slugge was presented to the vicaridge of Penner the Bishop refused to admit him and admitted one Morgan Bletthen unto the Parsonage of Penner at the presentment of the Lord St. John Slugge sued the Bishop for contumacy per duplicem querelem The Bishop said Non habetur talis vicaria upon which matter he sued a Prohibition and he conceived That the Prohibition did not ly for a Vicar is but he that gerit vicem Personae to supply his place in his absence so as the same is a spiritual matter which ought not to be tried here Also the libel is to have Admission and Institution and the other matter ariseth by their Plea sci Quod Rectoria de Penner est Ecclesia cum cura animarum absque hoc quod habetur talis Vicaria and so it is but an incident to the principal matter wherefore it shall be tried there and he prayed a Consultation Cook We have shewed That in the time of E. 3. one L. was seised of the Manour of Penner to which the Church of Penner is appendant and we alledge presentments from the time and we convey it to the Lord St. John which now is and they would now defeat us by this surmise That there is no such Church with cure of Souls which is triable here Popham the libel doth contain nothing but contumacy in the Bishop in that he hath not admitted Slugge and the other matter comes in the Replication and afterwards by assent of the parties a Consultation was granted quoad institutionem of Slugge only but that they should not proceed further CCLVI. Fennick and Mitfords Case Pasch 31 Eliz. Rot. 154. In the Kings Bench. Moâ—e 284. 2 Co. 91. THe Case was A man seised of Lands in Fee levieth a Fine to the use of his wife for life the remainder to the use of his eldest son the heirs males of his body the Remainder to the use of the right heirs of the Conusor The Conusor makes a Lease for a thousand years to B. the eldest son dieth without issue male having issue a daughter the Conusor dieth the wife afterwards dieth the eldest son enters and leaseth the Lands to the Plaintiff Atkinson That upon this conveyance a Reversion was left in the Conusor although by the fine all is conveyed out of the Conusor and so as it hath been objected the use limited to the right heirs of the Conusor is a new thing For it is to be observed When a man is seised of Lands he hath two things the Land or the Estate and secondly the use which is the profits and if he make a Feoffment without consideration by that the estate and possession passeth
both not lye of a Tenement nor a forcible entry supposed in a Tenement 11 H. 7. 25. 38 H. 6. 1. Another error was because the Fine was levyed in the Court of the City of Exceter Which see 44 E. 3. 37 38. Those of Exceter can prescribe to have the Conusans but the same ought to be by special Charter of the King by express words Egerton the Queens Solicitor who sate under the Iustices and was not of Counsel in the case said 2 Inst 515. 1 Roll. 489. That he was of Counsel in a case betwixt Bunbery and Bird where such a Fine levyed in Chester by prescription was in question was by a Writ of Error reversed And afterwards in the principal case the Fine was reversed for the first Error CCLXVI. Trin. 31 Eliz. In the Kings Bench. 1 Cro. 96. 97. THe Case was this Grandfather Father and Son The Grandfather seised of a house called the Swan in Ipswich devised the same to his eldest Son for life the Remainder to A. Son of his eldest Son and the heirs males of his body Devises the Remainder to the right heirs of the Devisor and to the heirs males of his body and died The Father and Son died without issue male the Son having issue a Daughter who entred and assured the Land unto one Hawes and covenanted That she was seised of the said Messuage of a certain and sure estate in Fee-simple Godfrey That the Daughter shall take the last Remainder as right heir at the time that it ought to be executed to the heirs males of her body as if it had been devised to her by her proper Name so she hath but an estate tail and so the covenant is broken Cook contrary At the time that the devise took effect by the death of the Devisor the Father was his Right heir so as the Remainder vested in him immediately Antea 182. and shall not expect in abeyance until the Father and Son dye without heir male of the Son for the Father is a person able to take so that upon the death of the Devisor the Father is Tenant for life the Remainder to the Son and the heirs males of his body the Remainder to the Father in tail ut supra the Reversion to the Father in fee and the Daughter hath the same Reversion by discent after the Entayls spent all which Wray Iustice granted CCLXVII Galliard and Archers Case Mich. 31 32 Eliz. In the Common Pleas Intrat Trin. 31 Eliz. Rot. 1529. GAlliard brought an Action upon the Case against Archer Trover and Conversion The Plaintiff declared That he himself was possessed of certain goods which by trover came to the hands of the Defendant who hath converted them to his own use The Defendant pleaded Postea â—â—â— That before the Trover supposed one A. was possessed of the said goods as of his proper goods and sold them to the Defendant and that he had not any notice that the said goods were the goods of the Plaintiff upon which the Plaintiff did demur in Law. And by Anderson the plea is not good for the Plaintiff may chuse to have his Action against the first finder or against any other which gets the goods after by Sale Gift or Trover And by some Postea 253. The Defendant having the goods by Sale might traverse the finding See Contr. 27 H. 6. 13. a. And see by some In detinue where the Plaintiff declares of a Bailment The Defendant may say That he found them and traverse the Bailment 39 H. 6. 37. by Moile and by Windham Iustice The Defendant may traverse the property of the goods in the Plaintiff 12 E. 4. 11. CCLXVIII Edwards and Tedbuties Case Mich. 31 32 Eliz. In the Common Pleas. EDwards of London was endebted unto one A. of the same City Bailment of goods to a Carrier and Edwards delivered goods to one Tedbury Carrier of Exceter who went to him to carry for him certain Wares to be carried to Exceter to certain Tradesmen there the said goods to be delivered to them c. And so the said goods Wares and Merchandizes being in the possession of the Defendant Tedbury to be carried to Exceter the said A. caused them to be attached in the hands of the said Carrier for the Debt of the said Edwards The said Carrier being then priviledged in the Common Pleas by reason of an Action there depending And by the clear opinion of the whole Court the said Attachment ought to be dissolved Attachment of goods For the Carrier for the reason aforesaid is priviledged in his parson and his goods and not only in his own goods whereof the property belongs to him but also in such goods in his possession for which he is answerable to others c. And so it was adjudged CCLXIX Cockshal and the Mayor c. of Boaltons Case Mich. 31 32 Eliz. In the Common Pleas. HEnry Cockshal brought an Action upon the case against the Mayor Conâ—piâ—â—â—â— Town-Clark and Goal or of Boalton in the County of L. and declared That where he himself had affirmed a Plaint of Debt in the Court of the said Town before the said Mayor c. against I.S. and thereupon had caused the said I.S. to be arrested The said Defendants did conspire together to delay the Plaintiff of his said suit in peril of his Debt had let the said I. S. go at large without taking Bail. Periam Iustice conceived That upon that matter the Action doth not lye for the not taking of Bail is a judicial act for which he shall not be impeached But all the other Iustices were strongly of opinion against him for the not taking of Bail is not the cause of the Action but the Conspiracy CCLXX. Erbery and Lattons Case Mich. 31 32 Eliz. In the Common Pleas. 1 And. 234. IN a Replevin The Defendant doth avow because he is seised of such a Manor within which there is a Custom That the greater part of the Tenants at any Court within the said Manor holden appearing may make By-laws for the most profit and best government of the Tenants of the said Manor c. and that such By-laws should bind all Tenants c. and shewed further That at such a Court holden within the said Manor the Homage there being the greater part of Tenants of the Mannor aforesaid at the Court aforesaid appearing made this By-law scilicet That no Tenant of the said Manor should put into such a Common any Steer being a year old or more upon pain of six pence for every such Offence and that it should be lawful to distreyn for the same And the Court was Clear of opinion That the By-law was utterly void For it is against Common Right where a man hath Common for all his Cattel Commonable to restrain him to one kind of Cattel c. But if the By-law had bin That none should put in his Cattel before such a
should beget on the said woman should come unto the age of 21. years and then to the use of the woman during her widow-hood They are married the Husband dieth without issue the Wife shall hold the land But by him if this use had bin raised by way of Covenant it should be otherwise Coke Admit that all the uses be good yet his meaning was That the debts and legacies being paid W. Paget should have his land for it is provided by the Indenture That when the debts legacies are paid the estate for 24. years shall cease Manwood The payment of the debts cannot end that which never was and as to the two first estates they were never out of him therefore they came unto the Q. by his attainder Coke After debts and legacies paid all other estates but the estate of W. Paget cease therefore William Paget shall have the Land. And the rule of Shelly 35 H. 8. 56 is worthy to be received scil That learning is honest wished to be used that every man learned in the Law do construe Deeds according to the meanings of the makers Manwood A Feoffment to the use of Salisbury Plain for the life of I. S. the Remainder over the same use shall come into possession presently for there is not any person capable of the particular estate but where the first use is limited to a Bastard the remainder over there the Remainder shall not come into possession presently for the Bastard is a person capable but not by such form of conveyance in consideration of natural affection Popham In the case of Bastard there was an estate for life executed to the Father in possession then a Remainder to a Bastard the Remainder to the Sons lawfully begotten but here in our Case no estate is created to precede the estate of William Paget upon which the Remainder can depend At another day It was argued by Coke It is to be agreed on both sides That the estate for four and twenty years is meerly void and also the first use limited to Trentham and others and it is not reason that the use limited to William Paget should expect until the four and twenty years be expired by effluxion of time and to that purpose he cited Cranmers Case where an estate in use was limited to Cranmer for life the Remainder to his Executors for one and twenty years the Remainder over in tail to his Son and Heir c. Cranmer is attainted of Treason and Heresy so as he could not make a Will or Executors there it is holden That the term is void because no Executors and that the Remainder in use should vest presently and should not expect until the said number of years expire by effluxion of time And difference hath been put betwixt the case of Cranmer and the Case at Bar because in Cranmers Case there was a possibility at the beginning that the Term for years might be good for the term became void by matter ex post facto sci By the attainder of him which disabled him to make Executors but in the Case at Bar the term for twenty four years was expresly void ab initio But that difference is without reason for what reason is there That the Remainder should be father off the possession when the estate for years is originally void than when it becomes void by matter ex post facto Suppose that the Lord Paget had by Indenture covenanted as above for the two first uses being in truth void in Law and afterwards by another Indenture reciting That whereas he had covenanted That in consideration That A. with the profits of his Lands should pay his debts c. to stand seised of the said Lands for his own life Now he covenants to stand seised to the use of William Paget and his Heirs should not he presently be seised to the use of William Paget and his Heirs although the words be That then and from thenceforth For I hold it a clear case that his estate begins presently being limited to begin upon a void estate althouh the limitation be by words de futuro And to this purpose he cited the case 3 E. 6. Br. Lease 62. A man leaseth for years Habendum post dimissionem inde fact to J.S. finitam where no such demise is made the same Lease shall begin presently If an Indenture be made to a Monk and another Habend to the Monk for one and twenty years and after the end of that to the other for one and twenty years the other shall have it presently And he put a Case 7 E. 3. in the new Impression 19. and in the old Impression 317. Where one Maud brought a Formedon in the Remainder and counted that one Hamond was seised and gave the said Tenements to one Robert c. in tail and that for want of such issue that the Tenements should return to the said Hamond for life the Remainder to the Demandant in Fee and counted further That Robert is dead without issue and that Hamond is also dead c. It was holden although that the Remainder reserved to the Donor be void yet the Remainder over in Fee is good c. And in that case although that the Remainder in Fee was future sci After the death of Hamond the estate reserved to Hamond meerly void that originally not by matter ex post facto yet the Remainder in Fee was good and should begin presently upon the death of Robert without issue and should not expect the death of Hamond Mr. Attorney hath given a Rule That the intent of the parties is the Direction of uses as also of Wills and therefore I will put one Case of Wills 37 H. 6. 17. If a man devise Lands to a Monk for four and twenty years and after the same ended to another in Fee here the Monk being a dead person cannot take the estate limited to him therefore it is void but the Fee limited to the other is good and shall take effect presently If it be so in a Will why not so also in uses For the intents of the parties do direct the constructions of both And our case here is a stronger case than the case cited 37 H. 6. 36. for there where Land is devised to a Monk for life there may be colour of an Occupant during the life of the Monk who might take it although the Monk himself cannot take it and so the Remainder doth not take effect presently as to the possession but shall stay till after the death of the Monk But here is not any colour of an Occupancy for the estate here is a Lease for years which cannot admit an Occupant And see also 37 H. 6. 36. If a man devise that his Feoffees shall make an estate to I. S. for life the Remainder over to C. in Fee and I. S. will not take his estate C. shall have a Sub-poena against the Feoffees to make an estate to him
leaving out I. S. and see Amy Townsends Case in the Commentaries where the Husband seised in the Right of his Wife makes a Feoffment in Fee to the use of himself and his wife for their lives the Remainder over to another the husband dyeth the wife refuseth the estate limited to her by the Husband she brings Sur cui in vita not against the heir but against him in the Remainder to whom the Land doth accrue by the refusal of the wife not against the heir of the Feoffor and I grant That where an estate in use or otherwise is to begin upon a condition precedent which is impossible or against the Law the estate shall never rise or begin And here the Case of the Lord Borroughs 35 H. 8. Dy. 55. was cited Where the Father covenanted in consideration of marriage of his Son that immediately after his death his eldest Son shall have the possession or use of all his Lands according to the same course of inheritance as then they stood and that all persons now seised or to be seised should be seised to the said use and intent and it was holden That upon that matter no use is changed But if the Words had bin Immediately after his death they should remain then although the words of the Limitation be In futuro the use of the Fee shall rest in the Son presently and the words In futuro ought not to be interpreted but in benefit of him to whom the use and estate is limited 9 Eliz. Dyer 261. A. Leaseth for thirty years and four years after the beginning of the said term he makes another Lease for years by these words Noverint c. dictis 30 annis finitis completis demisisse omnia praemissa to the said c. Habendum tenendum a die confectionis praesentium termino praedict finito usque ad finem 30 annorum And by the opinion of all the Iustices This new Lease shall commence in possession at the end of the former term and not before and if it should not be expounded the second Lease should be in effect an estate but for ten years which was not the intent of the parties and every grant shall be expounded most strongly for the grantee and to his advantage to which purpose he said he had vouched this Case Also by him there is not any difference where the use is limited by way of covenant or upon a Feoffment And if a man enfeoffeth B. upon condition that he shall enfeoff C. now if he offer to enfeoff C. and he refuseth the Feoffor may re-enter But if the condition were to give to C. in tail then upon such refusal of C. the Feoffor shall not re-enter See 2 E. 4. 2. 19 H. 6. 34. E. si Equitas sit adhibenda in construction of conditions a multo fortiori in case of Vses A Feoffment in Fee upon condition that the Feoffee shall grant a Rent charge to J. S. who doth it but J. S. refuseth the Feoffor shall not re-enter for that was not the intent of the condition If in the principal case Post 266. the limitation of the use had been after the expiration of twenty four years then no use should rise before the twenty four years expire but where not the time but the estate is material there if the estate be void the use shall go to him in the Remainder presently and shall not stay the time 1 Co. 154. c. Egerton Solicitor first it is to see if the use limited to William Paget be good secondly if William Paget doth not come before his time to shew his Right If this use limited to William Paget be a Remainder or an estate to begin upon a contingent or a present estate the estates formerly limited being void and he conceived that it is not a Remainder for there is not any estate upon which it may depend And the words are after the estate for twenty four years ended or expired that then and from thenceforth to the use of William Paget c. so that no use is limited to him before the particular estate is ended therefore no Remainder for a Remainder ought to begin when the particular estate begins Without doubt that was not the intent that William Paget should have the Land during the life of his Father and yet the use limited during the life of his Father was void and if the Remainder should take effect during the said twenty four years against Eusall and his companions wherefore should it not also take effect against Trentham and the others to whose use it was limited during the life of the Lord Paget And here the use limited to William Paget is to begin upon a collateral contingent upon which if it cannot rise it shall not rise at all and I conceive that the use limited to William Paget shall never rise or begin for it is limited to begin when the term of twenty four years is ended and that is never for that which cannot begin cannot end and this Term is meerly void Ergo it cannot begin Ergo it cannot end then this thenceforth cannot be and so this contingent can never fall H. 6. 7. E. 6. A Lease was made for years upon condition that if the Lessee do not pay such a sum of money that he should lose his Indenture the meaning and sense of these words is not that he should lose the Indenture in parchment but that he should lose his Term The Iudgment in an Eectjone firmae is Quod querens recuperet terminum suum that is to be understood not the time but his Interest in the Land for the Term And Coke secretly said that in that case there is not any contingent for the estates precedent never began And as to the Case cited before by Coke Br. Leases 62. If the last Lease be made by Indenture reciting the former Lease certainly the second Lessee shall not be concluded to claim the Land demised presently but shall tarry until the years of the first Term be expired by effluction of time And as to Mawnds Case cited before there is an estate upon which a Remainder may depend scil the estate tail alledged to Robert c. If such as now is limited to William Paget had been limited at the Common Law to a younger Son the eldest Brother should have the Land in the Interim discharged of any use and now after the Statute no use limited to William Paget before the contingent where therefore is it in the mean time In the Lord Paget who being attainted it accrues to the Queen and out of the possession of the Queen this use shall never rise although that the contingent be performed for now the use is locked up A use doth consist in privity of the estate and confidence of the person if these be severed the use is gone And here if the possession be in the Queen she cannot be seised to another use Note by Godfrey that
Mich. 31. Eliz. In the Common Pleas. IN an Ejectione firmae by Richard Sutton against Robert Holloway and Thomas Dickons Sâ—vil 99. Owen 96. Co. 1 Inst 227. a 3 Cro. 77. upon not guilty pleaded the Iury found this special matter scil That the said Thomas Dickins had not any thing in the Lands in question at the time of the making of the Lease upon which the Action is brought scil Who leased by Indenture to the Plaintiff for certain years who entred and afterwards the said Thomas Dickins contra Indenturam suam praedictam intravit upon the Plaintiff and If the same should be a good Lease by Estoppel was the question the Iury having found the truth of the matter scil That the Lessor had not any thing at the time of the demise Walmesley objected That the Iury ought not to find the Indenture because it was not pleaded for the Plaintiff doth not declare upon any Indenture Hob. 227. but the Exception was not allowed but in old time the Law was such 22 E. 3. but at this day the Law is otherwise See Scholastica's Case 14. Eliz. Plowd 411. But where a Release or other writing ought to be pleaded there it ought to be shewed to the Court. VValmesley In rei veritate the Lease is void for a man cannot let Land in which he hath not any thing but in respect of the parties themselves the Lessors and Lessee both are concluded to say That is no Lease for none of them can say to the contrary But here the Iury which is a third person Estoppel is not estopped to say the truth but they may find the special matter and the truth of the Case and the Estoppel hath not place there but the truth of the matter appearing to the Iudges the Iudges ought to adjudge upon the same scil If a man may make an effectual lease of Lands in which he hath not any thing At another day it was moved by Shuâ—l Although that the Iury be not estopped yet the parties themselves are estopped for the Law makes the Estoppel betwixt the parties and the Law will not permit a man to say any thing against his own Deed being indented nor any matter contained in it Periam and Anderson clearly for the Plaintiff That it is a Lease by Estoppel and by Periam It hath been adjudged in the Kings Bench That the Iury in such case are compellable upon pain of Attaint to find the Estoppel VValmesley Here the Estoppel is out of Doors for the truth of the matter disclosed by the Verdict not by the parties only maketh the Estoppel he much replied upon the case of Littleton 149. a. A woman seised of Lands in Fee taketh a Husband who alieneth to another in Fee the Alienee leaseth to the Husband and Wife for their lives now the Wife is remitted and seised in Fee as before here if the Alienee i. e. the Lessor brings an Action of Wast against the Husband and Wife the Husband cannot bar the Plaintiff by the truth of the matter scil the Remitter of his Wife for he is estopped to say against his own Feoffment and his retaking of the particular estate to himself and his Wife But if in an Action of Wast the Husband make default at the Grand Distress and the Wife prayeth to the received she may well shew the whole matter So here the Iury VVindham The Plaintiff ought to have demurred upon the Evidence Periam What if the Defendant will not joyne with the Plaintiff in the Demurrer VVindham there the Court ought to over-rule them if the parties had demurred upon the Evidence we should have adjudged upon that Evidence that a man cannot lease lands in which he hath not any thing And here the Estoppel could not be pleaded for the Defendant hath pleaded the general Issue but if he had pleaded Non demisit then the Estoppel should have holden place CCLXXXVII Mills and Snowballs Case Pasch 31 Eliz. In the Common Pleas. A Iury did surmise at the Bar that he was a Tenant in Ancient demesne and had his Charter in his hand Priviledge of Exemption from Juries 1 Cro. 142. and prayed to be exempted from the Iury and discharged but the Court did not regard it but caused him to be sworn And Windham said that he might have his remedy against the Sheriff and Nelson Prothonotay said if he had made default and lost Issues he might shew his Charter in the Exchequer upon the Amercement estreated and there he should be discharged In that Case it was holden by the Court That if a Feoffment be made of a House and the Deed be delivered in the House without other circumstance the same doth not amount to a Livery of seisin but if he do any act by which the intent of the Feoffor appeareth that the Feoffee should have Livery and Seisin Livery of seisin as if the parties go of purpose to the place intended to pass to the intent that the Deed may be delivered in that kind the same doth amount to a Livery by Anderson and the whole Court. CCLXXXVIII Bradstocks Case Mich. 32 33 Eliz. In Communi Banco RObert Bradstock seised in Fee of certain Lands made a Feoffment in Fee to the use of himself in tail Estates and for want of such Issue to the use of John Bradstock his Brother in tail and for want of such Issue to the use of Henry Bradstock another Brother in tail Conditions Provided always That if the said John or Henry do go about to avoid any estate or demise by Copy made or to be made of the Premisses or any part thereof that then his estate should cease Robert died without Issue John entred and levyed a Fine Sur conusans de droit come ceo c. of the Land And the opinion of the whole Court was That this Fine was not any offence against the said Proviso for these words made or to be made do not extend to estates made or limited by the said Feoffment but only to estates before made and to be made afterwards CCLXXXIX Long and Hemmings Case Mich. 32 33 Eliz. In Communi Banco IN a Quare Impedit by Long against Hemming and the Bishop of Gloucester or the Church of Frombillet upon the pleading the Issue was Quare Impedit 1 Cro. 209. If Tho. Long Father of the Plaintiff did enfeoff the Plaintiff of the Manor of From. to which the Advowson of the said church was appendant before he granted the Advowson to one Strengtham who granted it to the Def. or not And the Iury gave a special Verdict scil That the Abbot of S. was seised of a capital Messuage in Frombillet of one hundred Acres of Land there And that there was a Tenancy holden of the said capital Messuage by such Services and that the said capital Messuage had been known time out of mind by the name of the Manor of Frombillet and that the Advowson was
appendant to it and conveyed the said capital Messuage and Advowson to the King by the dissolution and from the King to the said Thomas Long who so seised without any Deed did enfeoff the Plaintiff of the said Manor and made Livery and Seisin upon the Demesnes And that the said Thomas Long by his Deed made a grant of the said Advowson to the said Strengham and afterwards the Free-holder attorned to the Plaintiff And by the clear opinion of the whole Court here is a sufficient Manor to which an Advowson may be well appendant and that in Law the Advowson is appendant to all the Manor but most properly to the Demesnes out of which at the commencement it was derived and therefore by the attornment afterwards within construction of the Law shall have relation to the Livery the Advowson did pass included in the Livery And the grant of the advowson made mesne between the Livery and the attornment was void and afterwards Iudgment was given and a Writ to the Bishop granted for the Plaintiff CCXC. Mich. 32 33 Eliz. In Communi Banâ—o Debt A Made a Bill of Debt to B. for the payment of twenty pounds at four days scil five pounds at every of the said four days and in the end of the Deed covenanted and granted with B. his Executors and Administrators that if he make default in the payment of any of the said payments that then he will pay the residue that then shall be un-paid and afterwards A. fails in the first payment and before the second day B. brought an action of Debt for the whole twenty pounds It was moved by Puckering Serjeant Sâ—y 31. 32. 1 Cro. 797. That the Action of Debt did not lye before the last day encurred And also if B. will sue A. before the last day that it ought to be by way of covenant not by Debt But by the whole Court the action doth well lye for the manner for if one covenant to pay me one hundred pounds at such a day an action of Debt lyeth a fortiori Owen 42. 1. 2 Rol. 523. when the words of the Deed are covenant and grant for the word covenant sometimes sounds in covenant sometimes in contract secundum subjectum materiae CCXCI. Lancasters Case Mich. 32 33 Eliz. In Communi Banco Roll. Tit. Covenant pl. 72. AN Information was against Lancaster for buying of pretended Rights Titles upon the Statute of 32 H 8. And upon not guilty pleaded It was found for the Plaintiff it was moved in arrest of Iudgment because the Informer had not pursued the Statute in this that it is not set forth that the Defendant nor any of his Ancestors or any by whom he claimed have taken the profits c. and the same was holden a good and material Exception by the Court although it be layed in the Information that the Plaint himself hath been in possession of the Land by twenty years before the buying of the pretended Title for that is but matter of argument not any express allegation for in all penal Stat. the Plaintiff ought to pursue the very words of the Stat. and therefore by Anderson It hath been adjudged by the Iudges of both Benches that if an Information be exhibited upon the Stat. of Vsury by which the Defendant is charged for the taking of twenty pounds for the Loan and forbearing of one hundred pounds for a year there the Information is not good if it be not alledged in it that the said twenty pounds was received by any corrupt or deceitful way or means And in the principal Case for the Cause aforesaid Iudgment was arrested CCXCII Bagshaw and the Earl of Shrewsburies Case Mich. 32 33. Eliz. In the Common Bench. BAgshaw brought a Writ of Annuity against the Earl of Shrewsbury for the arrerages of an Annuity of twenty Marks per annum Annuity granted by the Defendant to the Plaintiff Pro Consilio impenso impendendo The Defendant pleaded that before any arrerages incurred he required the Plaintiff to do him Service and he refused The Plaintiff by replication said that before the refusal such a day and place the Defendant discharged the Plaintiff of his Service c. And the opinion of the Court was that the Plea in Bar was not good for he ought to have shewed for what manner of Service to do the Plaintiff was so retained and for what kind of Service the Annuity was granted and then to have shewed specially what Service he required of the Plaintiff and what Service the Plaintiff refused Another matter was moved If the discharge shall be peremptory and an absolute discharge of the Service of the Plaintiff and of his attendance so that as afterwards the Defendant cannot require Service of the Plaintiff And by Walmesly Iustice it is a peremptory discharge of the Sevice for otherwise how can he be retained with another Master and so he should be out of every Service VVindham contrary For here the Plaintiff hath an Annuity for his life and therefore it is reason that he continue his Service for his life as long as the Annuity doth continue if he requirreth But where one is retained but for one or two years then once discharged is peremptory and absolute CCXCIII Matheson and Trots Case Mich. 31 32. Eliz. In the Common Bench. BEtwixt Matheson and Trot the Case was Sir Anthony Denny seised of certain Lands in and about the Town of Hertford 2 Len. 190. holden in Socage and of divers Mannors Lands and Tenements in other places holden in chief by Knights-service and having Issue two Sons Henry and Edward by his last Will in writing devised the Lands holden in Hertford to Edward Denny his younger Son in Fee Devises and died seised of all the Premisses Henry being then within age After Office was found without any mention of the said Devise the Queen seised the Body of the Heir and the possession of all the Lands whereof the said Sir Anothony died seised and leased the same to a stranger during the Minority of the Heir by force and colour of which Lease the Lessee entred into all the Premisses and did enjoy them according to the Demise And the Heir at his full age sued Livery of the whole and before any entry of the said Edward in the Land to him devised or any entry made by the said Henry the said Henry at London leased the said Lands by Deed indented to I.S. for years rendring Rent by colour of which the said I.S. entred and paid the Rent divers years to the said Henry And afterwards by casualty the said Henry walked over the Grounds demised by him in the company of the said I. S. without any special entry or claim there made I.S. assigned his Interest to I.D. who entred in the Premisses and paid the Rent to the said Henry who died and afterwards the Rent was paid to the Son and Heir of Henry
And after four and twenty years after the death of the said Sir Anthony the said Edward entred into the Land to him devised by the said Devise and leased the same to the Plaintiff Descent where tokes away entire c. And it was moved here if this dying seised of Henry of the Lands in Hertford and descent to his Heir should take away the Entry of Edward the Devisee And by Anderson cleerly If here upon the whole matter be a descent in the Case then the Entry of Edward the Devisee is taken away although that the Devisee at the time of the descent had not any Action or other remedy for it shall be accounted his folly that he would not enter and prevent the descent But VVindham Periam and VValmesly Iustices 2 Len. 147. 1 Cro. 920. 3 Cro. 145. Owen 96. were of a contrary opinion For a Devisee by a Devise hath but a Title of Entry which shall not be bound by any Descent as Entry for Mortmain for Condition broken And after long deliberation they all agreed that there was not any Descent in the Case for by the Devise and death of the Devisor the Frank-tenement in Law and the Fee was vested in the Devisee Edward And then when the Queen seised and leased the same during the Nonage of Henry and the Lessee entred he did wrong to Edward and by his Entry had gained a tortions Estate in fee although he could not be said properly a Disseisor nor an Abator And afterwards when Henry after his full age when by his Indenture he leased without any special Entry ut supra and by colour thereof the Lessee entred now he is a wrong-doer to Edward the Devisee and by his Entry had gained a wrongful Possession in Fee and then the paying of the Rent to Henry nor the walking of Henry upon the Land without any special claim did not gain any Seisin to him and so he was never seised of the Land and could never dye seised and then no Descent and then the Entry of Edward was lawful and the Lease by him made to the Plaintiff was good And so Iudgment was given for the Plaintiff CCXCIV. Greenwood and Weldens Case Mich. 32 33 Eliz. In the Common Bench. Replevin IN a Replevin between Greenwood and VVelden The Defendant made Conusans as Bayliff to John Cornwallis shewed how that seven acres of Land called Pilles is locus in quo and at the time of the taking were holden of the said Cornwallis by certain Rent and other Services And for Rent arrear he made Conusans as Bayliff to Cornwallis The Plaintiff pleaded out of the Fee of Cornwallis upon which they were at Issue And it was found that the Plaintiff is seised of seven acres called Pilles hoden of Cornwallis ut supra But the Iury say That locus in quo doth contain two acres which is called Pilles and these two acres are and then were holden of Agmondesham of the Middle-Temple And if upon the whole matter videbitur Curiae c. And by the opinion of the whole Court out of his Fee upon that matter is not found for although it be found that the two acres be holden of Agmondesham yet it may be that they are within the Fee of Cornwallis for it may be that Cornwallis is Lord Paramount and Agmondesham Mesne and then within the Fee of Cornwallis And therefore for the incertainty of the Verdict a Venire facias de novo was awarded CCXCV. Bishop and Harecourts Case Mich. 32 33. Eliz. In the Common Bench. Assumpsit 1 Cro. 210. IN an Action upon the Case The Plaintiff declared that the 5 Junij 30 Eliz. the Defend in consideration that the Plaintiff the same day and year sold and delivered to the Defend a Horse did promise to pay the Plaintiff a hundred pounds in Trinity Term then next ensuing and shewed that the Term began 7 Junij after And upon Non assumpsit pleaded it was found for the Plaintiff And it was moved in arrest of Iudgment That it appeareth upon the Declaration that the Plaintiff hath not cause of Action for the Trinity Term intended is not yet come for the day of the Assumpsit is the fifth of June and the fourth day was the first day of the said Term scil the day of Essoins and the seventh day 4. die post and then the promise being made at the day aforesaid after the Commencement of the said Term the same is not the Term intended but the Plaintiff must expect the performance of the promise until a year after And of that opinion was Anderson but the three other Iustices were strongly against him to the contrary for by common intendment amongst the people the Term shall not begin until 4. die post and so it is set down usually in the Almanack And afterwards Iudgment was given for the Plaintiff CCICVI Mich. 32 33. Eliz. In the Common-Bench COoper Serjeant came to the Bar and shewed that A. Tenant in tail the Remainder over to B. in Fee. Co. 2 Inst 483. 484. 1 Cro. 323. 471. 567. Hob. 496. 3 Cro. 224. A. for a great sum of mony sold the Land to I. S. and his Heirs and for assurance made a Feoffment in Fee and levied a Fine to the said I. S. to the use of the said I. S. and his Heirs And note that by the Indenture of Bargain and Sale A. covenanted to make such further Assurance within seven days as the said I. S. or his Heirs or their Council should devise And shewed that before any further assurance was made the said I. S. died his Son and Heir being within age And now by advise of Council and of the Friends of the Infant it was devised that for such further assurance and cutting off the Remainder a common Recovery should be suffered in which the said Infant should be Tenant to the Praecipe and should vouch the Vendor Common Recovery suffered by an Infant by his Guardian and because that the said Term of seven years is almost expired and that the said Recovery is intended to be unto the use of the said Infant and his Heirs it was prayed that such a Recovery might be received and allowed And two Presidents in such Case were shewed in the time of this Queen one the Case of the Earl of Shrewsbury and the other one VVisemans Case But the Iustices were very doubtful what to do But at last upon good assurance of people of good Credit that it was unto the use of the Infant and upon the appearance of a good and sufficient Guardian for the Infant in the Recovery who was of ability to answer to the Infant if he should be deceived in the passing of that Recovery and upon consideration had of the two Presidents and upon Affidavit made by two Witnesses that the said intended Recovery was to the use of the Infant the Recovery was received and allowed CCICVII Cottons Case Mich. 32
shewed our matter scil That we have Letters Patents of the Queen and that we were sworn in the said Office and so we are King of Heralds by matter of Record against which is pleaded only matter in defect of ceremony and circumstance which is not material An Earl is created with the ceremonies of putting a Sword broad-wise about his Body and a Cap with a Coronet upon his Head. Yet the King may create an Earl without such ceremonies And may also create an Earl by word if the same be after Recorded when a Knight is made Spurs ought to be put upon his Heels yet without such ceremony such degree may be conferred to and upon another for such ceremonies are or may be used or not used at the Kings pleasure Afterwards it was objected that the same is but a name of Office but not a name of Dignity To which it was answered that this word Coronamus always imports Dignity and this is a Dignity and Office as Earl Marquess c. Fenner Iustice The Patent is Nomen tibi imponimus and therefore Garter is parcel of his Name And therefore he ought to be Indicted by such Name And it should be hard to tye Estate and Degrees to ceremonies Gawdy was of opinion That this is but a name of Office and therefore the Indictment good as 1 Mar. Writ of Summons of Parliament issueth without these words Supream Head and the Writ was holden good for it is not parcel of the Name but addition only So here Fenner and Wray contrary for the words are Creamus Coronamus Nomen imponimus Ergo part of his Name which Clench also granted and afterwards Dethick was discharged CCCXXXVIII Strait and Braggs Case Pasch 32 Eliz. Rot. 318. In the Kings Bench. IN an Action of Trespass 2 Len. 1â—9 for breaking his Close in H. the Defendant pleaded that long before the Trespass the Dean and Chapter of Pauls were seised of the Manor of C. in the said County of H. in Fee in the Right of their Church and so seised King Edward the Fourth by his Letters Patents Dat. An. 1. of his Reign granted to them all Fines pro licentia Concordandi of all their Homagers and Tenants Resiants and Non-resiants within their Fee and shewed that 29 Eliz. A Fine was levied in the Common Pleas betwixt the Plaintiff and one A. of eleven Acres of Lands whereof the place where is parcel and the Post-Fine was assessed to 15 s. and afterwards Scambler the Forain Opposer did allow to them the said 15 s. because the said Land was within their Fee And afterwards in behalf of the said Dean and Chapter he demanded of the Plaintiff the said fifteen shillings who refused to pay it wherefore he in the Right of the said Dean c. And by their commandment took the Distress as Baily c. for the said 15 s. and afterwards sold it upon which the Plaintiff did demur in Law. It was moved that it is not averred that the Land whereof the Fine was levied was within their Fee but they say that Scambler allowed it to be within their Fee and the same is not a sufficient Averment which the Court granted And it was the opinion of the Court that the Dean and Chapter cannot distrain for this matter but they ought to sue for it in the Exchequer as it appeareth 9 H. 6. 27. In the Dutchess of Somersets Case Gawdy This Grant doth not extend to the Post Fine for Fine pro licentia Concordandi is the Queens Silver and not the Post Fine Wray All shall pass by it for it is about one and the same matter and they were of opinion to give Iudgment for the Plaintiff CCCXXXIX Sherewood and Nonnes Case Trin. 32 Eliz. Rot. 451. In the Kings Bench. Covenant IN an Action of Covenant the Plaintiff declared that Charles Grice and Hester his Wife were seised of certain Tenements calle Withons with divers Lands to the same appertaining and of another parcel of Land called Dole containing eight Acres to them and the heirs of the body of the said Charks on the body of the said Hester his wife lawfully begotten and so seised 15 Eliz. leased the same to the Defendant by Indenture for years by which Indenture the Lessor covenanted that the Lessee should have sufficient House-boot Fencing-wood and Hoop-wood upon the Lands during the Term and that further the Lessee covenanted for him his Executors and Assigns with the Lessor c. That it should be lawful for them to enter upon the Lands during the said Term and to have egress and regress there and to cut down and dispose of all the Wood and Timber there growing leaving sufficient House-boot Fencing-wood and Hoop-wood to the Lessee upon the Lands called the Dole for his expences at Withons and further that he would not take any Wood or Timber upon the Premisses without the assent or assigment of the Lessor or his Assigns otherwise than according to the Indenture and true meaning thereof And further declared That the said Charles and his Wife so seised levied a Fine of part of the Land to R. S. and his heirs to whom the Defendant attorned and that the said R.S. afterwards devised the same to I. his Wife the now Plaintiff for years the Remainder over to another and died and that the Defendant had felled and carried out of the Lands called Withons twenty loads of Wood without the assent and assignment of the Lessor or his Assigns for which the Plaintiff as Assignee brought the Action The Defendant pleaded That after the Lease John Grice and others by assignment of Hester had cut down and carried away fifty loads of Wood in the said Lands called the Dole and so they had not left sufficient Woods for his expences at Withons according to the Indenture for which cause he took the said twenty loads of Wood upon Withons for his expences upon which the Plaintiff did demur in Law. Godfrey The Plea is not good This Plea is no more but that sufficient Wood was not left upon the Dole for his expences and although there be not yet the Defendant cannot cut Wood elsewhere for he hath restrained himself by the Covenant Also the Covenant of the Lessor is That the Lessee shall have sufficient Wood upon the Dole for his expences at Withons but in his satisfaction he doth not alledge that he had need of Wood for to spend at Withons nor doth aver that he hath spent it there for otherwise he hath not cause to take c. And the meaning was that the Lessee should have sufficient Wood when he had need of it Hobart for the Defendant He would not speak to the Plea in Bar but he conceived that the Declaration was not good for here no breach of Covenant is assigned for the Covenant is in the Disjunctive scil That the Defendant should not take Wood without the assent or assignment of the Lessor or his Assigns And the Plaintiff
chargeth the Defendant with cutting of Wood without the assent and assignment of the Lessor so he would compel us to prove more than we ought for if he did it with their assent only or by their assignment only it is sufficient but if the Covenant had been in the copulative both was necessary And for the nature of Copulatives he cited the Case where two Churchwardens bring an Action of Trespass the Defendant pleads That the Plaintiffs are not Churchwardens upon which they are at Issue The Iury find That the one was Church-warden and the other not and for that the Plaintiffs could not have Iudgment for if the one of them be not Churchwarden then the Plaintiffs are not Churchwardens for the copulatives ought not to be disjoyned And he cited the case lately ruled in the Common Pleas betwixt Ognel and Underwood concerning Crucifield Grange A. leased unto B. certain Lands for forty years B. leased part of the same to C. for ten years A. grants a Rent-charge out of the Lands in tenura occupatione B. It was resolved That the Lands leased to C. should not be charged with that Rent for although it was in tenura B. yet it was not in his occupation and both are exquisite because in the copulative So here the Lessee may cut Wood with the assent of the Lessor without any assignment Also here the substance of the covenant cannot charge the Defendant for although it be in the Negative yet it is not absolute in the Negative but doth refer unto the covenant precedent for the words are That the Lessee shall not cut Woods aliter quam according to the intent of the Indenture where the covenant precedent is not that the Lessee shall not cut Woods but in the Dole but that the Lessor might cut down any Trees in the Dole leaving sufficient for the Lessee which covenant in it self doth not restrain the Lessee to cut down any Trees in any part of the Lands demised nor abridgeth the power which the Law giveth to him by reason of the demise Then when this last covenant comes i. e. That the Lessee will not cut aliter then according to the meaning of the Indenture without the assent c. the same doth not restrain him from the power which the meaning of the Indenture gives and so no breach of covenant can be assigned in this For by virtue of the Lease the Lessee of common Right may take necessary Fuel upon any part of the Land leased Also this first covenant being in the Affirmative doth not abridge any Interest as 28 H. 8. 19. The Lessor covenants That the Lessee shall have sufficient Hedge-boot by assignment of the Baily It is holden by Baldwin and Shelley That the Lessee may take it without assignment because there are no Negative words non aliter So 8 E. 3. 10. A Rent of ten pounds was granted to Husband and Wife and if the Husband overlive his Wife that he shall have three pounds Rent and if the Wife do over-live the Husband she shall have forty shillings there it was holden that the Rent of ten pounds continued not restrained by the severance of any of them And although peradventure it appeareth here that the meaning of the parties was That the Lessee should not cut down any Wood but in the Dole yet forasmuch as such meaning doth not stand with the Law it shall be rejected as it was holden to be in the case betwixt Benet and French where a man seised of divers Lands devised parcel of it called Gages to the erecting of a School and another parcel unto B. in fee and all his other Lands unto one French in Fee The devise of Gages was holden void because too general for no person is named and it was further holden that it passed by the general devise to French and yet that was not the meaning of the Devisor Also the Plaintiff is not Assignee but of parcel of the Reversion for if the Reversion is granted to him for years Owen Rep. 152. 1 Co. 215. and such Assignee cannot have an Action of Covenant for a Covenant is a thing in Action and annexed to the Reversion so that if the Reversion doth not continue in its first course as it was at the time of the creation of the Covenant but be altered or divided the Covenant is destroyed and therefore it was holden 32 H. 8. betwixt Wiseman and Warringer where a Lease for years was made of one hundred Acres of Lands rendring ten pound Rent and afterwards the Lessor granted fifty Acres of it that the Grantee should not have any part of the Rent but all the Rent was destroyed So in our case here the Grantee hath but parcel of the estate a Term for years and so is not an Assignee intended as the case betwixt Randal and Brown in the Court of Wards â— Co 96â—â—â—â— Randal being seised of certain Lands covenanted with B. that if he pay unto him his Heirs and Assigns five hundred pounds that then he and his Heirs would stand seised to the use of the said B. and his Heirs Randal devised the Land to his Wife during the minority of his Son the Remainder to his Son in Fee and died having made his Wife his Executrix Brown at the day and place tendred the money generally the Wife having but an estate for years in the Land took the money It was holden that the same was not a sufficient tender for the Wife is not Assignee for she hath an Interest but for years and here the Son is to bear the loss for by a lawful Tender the Inheritance shall be devested out of him and therefore the Tender ought to be made to him and not to his Wife Also as the case is here he is no Assignee for although Charles Grice and his Wife hath the Reversion to them and the Heirs of the body of Charles and levy a Fine without Proclamations nothing passeth but his own estate and then the Conusee hath not any estate Raph. Rep. 91. â— Câ—o. 804. â—05 but during the life of Charles and then when a man is seised to him and his Heirs during the life of another he hath not such an estate as he can devise by the Statute and then when he deviseth it to his Wife for years it is void c. It was adjorned CCCXL Smith and Hitchcocks Case Trin. 33 Eliz. In the Kings Bench. Assumpsit â— Câ—o. 201. IN an Action upon the Case the Plaintiff declared that whereas the Defendant was indebted to him 19 Maii 30 Eliz. The Defendant in consideration that the Plaintiff would forbear to sue him until such a day after promised at the said day to pay the debt The Defendant pleaded how that 29 Maii 29 Eliz. he was indebted unto the Plaintiff in the said sum for assurance of which afterwards he acknowledged a Statute to the Plaintiff upon which he had Execution and had levied the money absque
hoc that he was indebted to the Plaintiff antea vel post the said day aliquo modo upon which the Plaintiff did demur It was argued that the Traverse was not good for the consideration in Assumpsit is not traversable because it is but conveyance and amounts to the general Issue as in debt upon the sale of a Horse it is no Plea for the Defendant to say that no such Horse was sold to him Patridge If the conveyance be the ground of the Suit it is traversable an Action upon the Case against an Hostler it is a good Plea that he is not an Hostler 2 H. 4 7. See 26 H. 8. Br. Traverse 341. In an Action upon the Case the Plaintiff declared that whereas the Defendant habuit ex deliberatione of the Plaintiff certain goods the said Defendant in consideration of ten shillings Assumpsit eidem querenti promisit salvo Custodire c. Non habuit ex deliberatione is a good Plea. Godfrey The Defendant doth not answer the point of our Action which is the Assumpsit but only by way of Argument 11 E. 4. 4. In Trespass upon the Statute of 5 R. 2. by the Master of a Colledge and his confreers the Defendant doth justifie by reason of a Lease made by a Predecessor of the Plaintiff and his Confreers by their Deed under their Common Seal the Plaintiff Replicando saith That at the time of the making of the Lease there was no such Colledge and it was holden no Plea for it is no answer but by Argument Gawdy Iustice In all cases where the Defendant may wage his Law there the conveyance is traversable Wray The cause of the Action is the Assumpsit therefore the consideration is not traversable for it is not the point with which the Plaintiff is charged And it is common here that the Declaration in such Action upon the Case Traverse in consideration of divers sums of money without any more certainty is good which should not be good if the consideration were traversable but the consideration is to be given in Evidence and it is also common that in an Action upon the Case in Trover and Conversion the Trover is not traversable for the Conversion is the point of the Action Fenner Iustice The debt here is no cause of the Action but only the Assumpsit In debt upon Arbitrament the Arbitrament is traversable So in debt for Rent upon a Demise the Demise is traversable Antea 189. for the Arbitrament and Demise is the cause and ground of the Action At another day it was moved again and Gawdy mutata opinione said that consideration Executory is traversable As where one in consideration that he may marry my Daughter or of service promiseth to pay the same consideration is traversable contrary of a Consideration executed And afterwards Iudgment was given for the Plaintiff CCCXLI Estons Case Trin. 33 Eliz. In the Court of Wards ESton was seised of Lands in Fee holden of the King in chief 1 Cro. 243. and took a Wife seised of other Lands holden in Socage they have Inne and the Husband dieth and afterwards the Wife dieth Owen Serjeant conceived That the Queen should not have the Wardship of the Land of the Wife or the primer seisin of it And if the Husband had survived his Wife being Tenant by the Curtesie the Queen should not have Primer seisin of it after his decease Wray If the Father be seised of Lands holden in Soccage and the Mother of Lands holded in Knights service and the Husband over-lives his Wife being Tenant by the Curtesie the King shall have all Anderson denied that and he conceived That the opinion of Stamford is not Law and yet see 13 H. 4. 278. Where the Father is seised of Lands in chief and the Mother of other and the Father dieth and afterwards the Mother dieth both shall be in ward And it was said That if there be Grandfather Father and Son and the Father dieth seised of Lands holden in Socage and afterwards the Grandfather dieth seised of Lands in Knights service the Lands in Socage shall not be in ward Anderson held strongly That the Queen should have Primer seisin of the Lands of the Mother Wray contrary Quaere CCCXLII Ellis Hartops Case Trin. 33 Eliz. In the Court of Wards ELlis Hartop was seised of divers Lands whereof part was holden of the King in Knights service and devised two parts thereof to W. Denham and his Heirs to the use of T. his brother and his wife and afterwards to the use of the said T. and his Heirs males T. died in the life of the Devisor and afterwards a Son is born First it was agreed that a Devise might be to the use of another Then when Cesty que use dyeth in the life of the Devisor the Devisee shall take it and when a Son is born it shall go to him But if the use be void then the Devisee shall have it to his own use for every devise doth imply a consideration Coke was of opinion That the Son takes by descent when Cestuy que use to whom Land is devised doth refuse the use the Devisee cannot take it for he shall not have it to his own use for if the use be void the devise is also void And the use is void for Cestuy que use died in the life of the Devisor which see Bret and Rygdens case A man seised of three Acres bargains and sells one of them without shewing which and that before the Statute of 27 H. 8. The Bargainee dyeth before Election no Election descends to the Heir for then he should be a Purchasor And by Wray and Anderson The devise is void and it is all one with Brett and Rigdens case And by Anderson a man deviseth Lands to the use of one which use by possibility is good and by possibility not good If afterwards Cestuy que use cannot take the Devise shall be to the use of the Devisor and his Heirs CCCLXIII Weston and Garmons Case Trin. 33. Eliz. In the Kings Bench. Assize 1 Cro. 226. ASsize was brought of a Rent of fifty pounds per annum and the Plaintiff made his plaint to be disseised of his Free-hold in H. E. and H. W And shewed that John Vaughan and Amy his Wife who before was the wife of one Weston and Mother of Sir Henry Weston the Plaintiff in the Assize was seised of the said Manors of H.W. and H.E. lying in Barton and Kinton in Fee. And 18 Eliz. a Fine was levied betwixt Robert Vaughan and Miles Whitney Complainants and the said John Vaughan and Amy his Wife and Francis their Son Deforceants of the said two Manors inter alia per nomen of the Manors of H.E. and H.W. and of fifty Messuages three hundred Acres of Lands two hundred Acres of Meadow cum pertinentiis in the said Towns by which Fine the said Deforceants did acknowledge the right of the said Manors and Tenements to be
ipse nor any other by his procurement or consent had taken or riotously spent the Goods of the Plaintiff for Plea saith That the Plaintiff before the Writ brought had not sufficiently proved that the said John Hallywel took or riotously spent any of the Plaintiffs Goods Vpon which the Plaintiff did demur in Law. It was argued by Daniel That the proof is sufficient and good for the time if it be tried in the Action upon this Obligation and the proof intended is proof by twelve men for it is not set down before what person it shall be proved nor any manner of proof appointed and therefore it shall be tried according the Law of the Land which see 10 E. 4. 11. 7 R. 2. Bar. 241. Godfrey contrary This case is not like to the cases before for here is a further matter First warning and a month after Notice pay c. And if the proof shall be made in this Action the Defendant shall lose the benefit of the Condition which gives time to pay it within a month after for in all such cases the precedent Act of the Obligee is traversable as 10 H. 7. 13. I am bound by Obligation to enfeoff such a person of such Lands as the Obligee shall appoint In an Action brought against me I shall say-that the Plaintiff hath not appointed c. And here ought to be Notice first and proof ought to precede the Notice by the meaning of the Condition and so this differs from the other cases put for here proof is not the substance of the whole Owen Serjeant It is the folly of the Defendant to put himself to such an inconvenience for now he ought to pay the mony without delay of any month And here the Defendant ought to plead That he hath not imbezelled any goods of the Plaintiff and the Plaintiff Replicando shall say and shew the Special matter that he hath given Notice to him thereof See 15 E. 4. 25. CCCXLV. Manning and Andrews Case 18 Eliz. In the Kings Bench. Devise 4 Len. 2. IN Ejectione firmae the Iury found by special Verdict That Richard Hart and Katharine his Wife and divers other persons 1 H. 8. were seised of the Lands in question to the use of Richard and his Heirs ad per implend ultimam volunt dict Rich. who the first of August 8 H. 8. by his Will in writing devised That his Feoffees should be from thenceforth seised to the use of his said Wife for her life and after to the use of W. H. his Son for his life without impeachment of Wast and after the death of the said Katharine his Wife William his Son and Joan Wife of the said William his Feoffees should be seised to the use of the next Heir of the Body of the said William and Joan lawfully begotten for the term of the life of the same Heir and after the decease of the same Heir to the use of the next heir of the same heir lawfully begotten and for default of such issue to the use of the heirs of the body of the said William and Joan lawfully begotten for the term of life or lives of every such heir or heirs More Rep. 368. and for default of such heirs to the use of the heirs of the body of the said William and for default c. to the right heirs of William And further he willed That if any of the said heirs shall set alien say to mortgage the right title and interest which they or any of them shall have in or out of the same Lands or by their consent or assent suffer any Recovery to be had against them c. or do any other Act whereby they or their heirs or any of them may or ought to be disinherited that then the use limited to such heir so doing shall be void and of no effect during his life And that his said Feoffees shall be thenceforth seised to the use of the heir apparent of such Offender as though he were dead Richard Hart died William had issue by the said Joan his wife a Son named Thomas and died and afterwards 31 H. 8. Joan died Katharine died Thomas entred and had issue Francis and Percival Thomas by Deed indented 1 August 4 Eliz. bargained and sold to Andrews and levied a Fine to him with warranty And afterwards 6 Eliz. Francis levied a Fine to the said Andrews Sur conusans de droit come ceo And further by the said Fine released to him with warranty at the time of which Fine levied Percival was heir apparent to the said Francis Francis after had issue I. and F. who are now living The heir of the Survivor of the Feoffees within five years after the age of Percival and seven years after the Fine levied enter to revive the use limited to Percival who entred and leased to the Plaintiff This case was argued by the Iustices of the Kings Bench c. First It was agreed by the whole Court That Richard Hart being seised with seven others unto the use of himself and his heirs might well devise all the use Use suspended yet the Land devised although his use was in part suspended because he was joyntly seised with seven others to his own use and so the use for the eighth part suspended for when this Devise is to take effect i. e. at the time of his death all the possession of the Land by the Survivor passeth from the use and then the use being withdrawn from the possession shall well pass And by Wray A use suspended may be devised As if Feoffees to use before the Statute of 27 H. 8. be disseised by which disseisin the use is suspended and afterwards during the disseisin Cestuy que use by his Will deviseth That his Feoffees shall re-enter and then make an estate to I. S. in Fee the same is a good devise for by that disseisin the trust and confidence reposed by Cestuy que use in the Feoffees is not suspended Secondly It was holden that here a use implied was limited to Joan the wife of William although there be not any express devise of it according to the Book of 13 H. 7. 17. Thirdly when a use is limited to the Heir of the body of William and Joan lawfully begotten for life and afterwards to the Heir of the body of the same heir for life c. Geofry Iustice was of opinion That here is in effect an estate tail for the estates limited are directed to go in course of an estate tail for he wills That every heir of the body of his Son shall have the Land and the special words shall not make another estate to pass but that which the Law wills As if Lands be given to one for life the Remainder after his death to the Heirs of his body lawfully begotten notwithstanding that the words of the limitation imply two several estates yet because the Law so wills it is but one estate Gawdy Iustice said That
every issue begotten betwixt William and Joan should have an estate for life successive and a Remainder in tail expectant as right heir of the body of William A Contingent shall hinder the execution of an estate in possession and this estate tail shall not be executed in possession by reason of the mesne Remainder for life limited to the heir of the body of William and Joan and although that these mesne Remainders are but upon a contingent and not in esse yet such regard shall be had to them that they shall hinder the execution of the estates for life and in tail in possession As if an estate be made to A. for life the Remainder to the right heirs of B. in tail the Remainder in Fee to A. although the estate tail be in abeyance and not in esse during the life of B. yet in respect thereof the Free-hold and Fee shall not be conjoyned Southcote Iustice To the same purpose And he put a case lately adjudged betwixt Vaughan and Alcock Vaughan and Alcocks case Land was devised to two men and if any of them dieth his heirs shall inherit these devisees are Tenants in common because in by devise but contrary if it were by way of Grant Lands are devised to A. and B. to be betwixt them divided they are Tenants in common Wray William and Thomas have but for life for they are purchasors by the name heir in the singular number but when he goes further and says for want of such issue to the heirs of the body of William in the plural number now Will. hath an Inheritance And if a devise be made to one for life and then to his heir for life and so from heir to heir in perpetuum for life here are two estates for life and the other Devisees have Fee for estates for life cannot be limited by general words from heir to heir but by special words they may And here Thomas being next heir of the body of William and Joan hath an estate for life and also being heir of the body of the said William hath a Remainder in tail to him limited the mesn remaineth limited to others i. e. to the next heir of the body of Thomas being in abeyance Co 11. Rep. 80. because limited by the name heir his Father being alive shall not hinder the execution of these estates but they shall remain in force according to the rules of the common Law Then Thomas so being seised levyeth a Fine against the Provision of the Will by which Thomas hath forfeited his estate for life and so his next heir shall have the Land during his life And a great reason wherefore the heirs ut supra after the two first limitations shall have tail is because that if every heir should have but for life they should never have any Interest in the Lands by these limitations for by the express words of the devise none shall take but the heir of the first heir for ever i. e. When Thomas aliens by which the use vests in Francis and when afterwards Francis levieth a Fine then the use vests in Percival Hâ—rt being next heir of the said Francis at the time of the Fine levyed notwithstanding that afterwards Francis had a Son which is his next heir and therefore the use in Percival by the birth of the said Son in Francis shall not be devested Estate vested shall not be devested because it was a thing vested in him before by purchase 9 H. 7. 25. A enfeoffs B. upon condition on the part of A. to be performed 1 Cro. 61. and dyeth having issue a Daughter the Daughter performs the condition and afterwards a Son is born the Daughter shall hold the Lands against the Son So 5. E. 4 6. A woman hath issue a Daughter and afterwards consents to a Ravisher the Daughter enters and afterwards a Son is born yet the Daughter shall hold the Lands for ever i. e. And Geofries Iustice said Francis being in by force of the Forfeiture shall not be subject to the limitation of the Will i. e. to any forfeiture if he alien for the estate which Francis hath for his life is but an estate gained by the offence of his Father and the use was limited to him upon the Will of Richard and then the said estate is not subject to the Proviso of the Will and then hath not Francis committed any forfeiture And admit Francis shall forfeit yet Percival shall get nothing thereby but the estate which Francis had at the time of the Fine levied scil the Free-hold only for no estate of Inheritance was in him living his Father As to the regress of the Feoffees Geofries was of opinion That where an use is limited to a person certain and thereupon vested in the person to whom it is limited That the Entry of the Feoffees in such case is not requisite notwithstanding that the first estates be discontinued but where the use as in our case is not limited to a person certain in esse but is in abeyance not vested in any person upon the limitation of it some estate ought to be left in the Feoffees to maintain that use and to render it according to the limitation and in our case these uses not in esse at the time of the making of the Statute of 27 H. 8. could not be executed by the said Statute but now at the appointed time by the limitation shall be raised and revived by the Entry of the Feoffees but here by the Fine and Non-claim the Feoffees are bound and their Entry taken away and so no use can accrue to Percival Hart by such Entry Southcote Iustice was of opinion that the Feoffees cannot enter at all because that by the Statute of 27 H. 8. nothing is left in them at the time of the making of the Statute which saves the right of every person c. other than the Feoffees so as no right is saved to them but all is drawn out of them by the operation of the Statute and the second saving of the Statute saves to the Feoffees all their former Right so as the Right which the Feoffees had by the Feoffment to the use is utterly gone But Percival Hart may well enter for he is not bound to the five years after the Fine levied for he had not right at the time of the Fine levied but his right came by the Fine Wray chief Iustice The Feoffees are not to enter for the Statute of 27 H. 8. hath two branches 1. gives the possession to Cestuy que use in such manner as he hath in the use 2. takes away all the right out of the Feoffees and gives it to Cestuy que use so as nothing at all remains in the Feoffees for if an Act of Parliament will give to me all the Lands whereof my brother Southcote is seised and that I shall be in the Seisin thereof now is the actual possession in me without my
Request the said Feoffees or their Heirs should be seised of the said House to the use of the said Ann and her Heirs Afterwards the seventh of April 16 Eliz. Ann demanded of William Ramsey Son and Heir of John Ramsey six pounds thirteen shillings and four pence being due to the said Ann ut supra the which sum the said William Ramsey did refuse to pay by force of which and by the Statute of 27 H. 8. the said Ann Ramsey was thereof seised and died seised and from her descended the said House to William Ramsey The Plaintiff confessed the Feoffment to Crofton and Langhton to John Ramsey and others and shewed further That the said Ann required the surviving Feoffees to enfeoff one Robert Owen of the said House who three days after made the Feoffment accordingly Robert Owen enfeoffed John Owen who died thereof seised and from him the said House descended to Israel Owen Crafton died Langhton having issue two Daughters died All the Feoffees but one died Ann the time aforesaid demanded the said six pounds thirteen shillings and four pence of the said William Ramsey in another House in London due at the Feast of St. Michael last before who denied to pay it the second Daughter of Langhton entred and thereof enfeoffed the said Israel Owen Rents 3 Cro. 210 211. who leased the same to the Plaintiff and upon that Evidence the Defendant did demur in Law And first it was resolved by the whole Court That the said sum to be paid to the said Ann was not a Rent but a sum in gross because reserved to a stranger c. which see Lit. 79. Reversion And by Munson Iustice If the words of the reservation had been twenty Nobles Rent yet it had been but a sum in gross but otherwise it had been by devise Also there is not any condition for the payment of it but only a Limitation for the word subsequent which limits the future use takes away all the force of the words of the Condition as 27 H. 8. 24. Land given in tail upon condition that the Donee and his Heirs shall carry the Standard of the Donor when he goes to battel and if he fail thereof then the same to remain to a stranger the limiting of the Remainder hath taken away the condition and hath controlled it and now the Condition is become a Limitation But where the words subsequent are against Law as if upon failer that then it shall be lawful for a stranger to enter Feoffments upon condition c. these words because they are against Law for a Rent cannot be reserved to a Stranger c. do not destroy the Condition by Mead contrary by Munson for the Condition is utterly gone And by Mead Feoffment in Fee upon condition That if the Feoffor shall do such a thing that he shall re-enter and retain the Land to the use of a stranger the use is void 1 Cro 401 402 and the Feoffor shall hold the Land to his own use A Feoffment in Fee upon condition That the Feoffee shall marry my Daughter and if he refuse to marry her that then he shall be seised to the use of I.S. the same is not a Condition but a Limitation and in all cases afterwards of a Condition where an Interest is limited to a stranger there it is not a Condition but a Limitation And Mead said That the said annual sum is not demandable but the party ought to pay it at his peril Lit. 80. But by Munson it ought to be demanded for so this word Refuse doth imply Regula And when at the Request of Ann the Feoffment is made by Munson Mead and Windham the Rent is gone but Dyer contrary unless the Feoffment be made to Ann her self And afterwards Iudgment was given for the Plaintiff Hil. 19 Eliz. Rot. 748. There was a Case betwixt Shaw and Norton Shaw and Nortons Case One Green devised his Lands to A. and devised also the said A. should pay a Rent to B. and that B. might distrain for it and if A. fail of the payment of it that the Heirs of the Devisor might enter the same is a good Distress and a good Condition And by Munson Demand ought to be made of the Rent for the words are Refuse which cannot be without Demand or Request And it was certified That such a Clerk refused to pay his Tenths and because it was expresly set down in the Certificate that he was requested c. for that cause he was discharged And it was also holden That if Request be necessary that in this case Request is to be made That it ought to be made to the surviving Feoffee or his heir and not to the heirs of any of the Feoffees who are dead CCCLXIII Lacyes Case Hill. 25. Eliz. In the Kings Bench. Indictments Co. 13. Rep. 53. LAcy was indicted of the death of a man upon Scarborough Sands in the County of York between the high water-mark and the low water-mark and the same Indictment was removed into the Kings Bench and being arraigned upon it he shewed that the said Indictment was sued by vertue of a Commission which issued the first day of May directed to the Iustices of Assize and other Iustices of Peace in the said County Commission repealed to enquire of all Murders Felonies c. and pleaded further That the second day of May aforesaid issued another Commission directed to the Lord Admiral and others upon the Statute of 28 H. 8. cap. 15. by force of which the said Lacy was indicted of the same murder whereof he was now arraigned and the said last Commission was ad inquirendum tam super altum mare quam super littus maris ubicunque locorum infra jurisdictionem nostram maritimam And that the said Indictment taken before the Admiral was taken before this upon which he was arraigned and upon the whole matter prayed to be dismissed And the opinion of all the Iustices was that the first Commission was repealed by the second and so the Indictment upon which he was arraigned taken coram non Judice 10 E. 4. 7. If a Commission for the Peace issueth into one County and afterwards another Commission issueth to a Town within the same County and parcel of it the first Commission is repealed which Gawdy granted if notice be given c. but Wray denied it but the whole Court by this last Commission to the Lord Admiral the first Commission as to the Iurisdiction in locis maritimis is determined and repealed for these two Commissions are in respect of two several Authorities the first Commission meerly by the Common Law the other by the Statute aforesaid and thereupon the party was discharged against the Queen as to that Indictment Note that in the Argument of this Case it was said by Coke and agreed by Wray That if a man be struck upon the high sea 2 Co. 93. whereof he dieth in another County
commanded a Court Baron to be holden there which was holden accordingly by the sufferance of the Executors and the said Executors were also present at which time the Executors in the presence of the said Lord said these words viz. We have nothing to do with this Manor Return of the Sheriff 4 Co. 67. And upon this Verdict two things were moved If because the Liberate was not returned the Execution was good And as to that divers Books were cited 21 H. 6. 8. 18 E. 3. 25. And it was said that there was a difference betwixt a Liberate and a Capias ad Satisfaciendum and a Fieri facias for these Writs are conditional Ita quod Habeas Corpus c. Ita quod habeas denarios hic in Curia 3 H. 7. 3. 16 H. 7. 14. But contrary in the Writ of Liberate Habere facias seisinam for in such Writs there is not such clause and therefore if such Writs be not returned the Execution done by virtue of them is good enough And see 11 H. 4. 121. If the Sheriff by force of an Elegit delivers to the party the moiety of the Land of the Defendant and doth not return the Writ if now the Plaintiff will bring an Action of Debt de Novo the Defendant may plead in Bar the Execution aforesaid although the Writ of Execution were not returned and yet the Execution is not upon the Record And see the case there put by Hankford And it is not like to the case of Partition made by the Sheriff the same ought to be returned because that after the return thereof a new and secondary Iudgment is to be given i. Quod partitio praedicta firma stabilis maneat in perpetuum firma stabilis in perpetuum teneatur see the Book of Entries 114. And Egerton Solicitor cited a case lately adjudged betwixt the Earl of Leicester and the Widow Tanfeild Earl of Leicester and Tanfeilds Case That such Execution without return was good enough Another matter was moved Admit that here be a good Execution if now the Executors being in possession of the said Manor by force of that Execution and permitting and suffering the Conusor to hold a Court there in the Manor-house and saying in his presence the words aforesaid if the same doth amount to a Surrender by the Executors to the said Conusor Surrender or not And Wray chief Iustice said That here upon this matter is not any Surrender for here the words are not addressed to the said Conusor who is capable of a Surrender nor to any person certain And it is not like to the case of 40 E. 3. 23 24. Chamberlains Assize where Tenant for life saith to him in the Reversion That his will is that he enter the same is a good Surrender for there is a person certain who can take it but contrary in this case for here it is but a general speech It was adjorned CCCLXXIX Baskervile and the Bishop of Herefords Case Pasch 28 Eliz. In the Common Pleas. Quare Impedit IN a Quare Impedit by Walter Baskervile against the Bishop of Hereford c. The Plaintiff counted That Sir Nicholas Arnold was seised of the Advowson as in gross and granted the same to the said Baskervile and others to the use of himself for life and afterwards to the use of Richard Arnold his Son in tail Proviso That if the said Nicholas die the said Richard being within age of twenty three years that then the Grantees and their Heirs shall be seised to them and their Heirs until the said Richard hath accomplished the said age Nicholas dieth Richard being of the age of fourteen years by force of which the Grantees were possessed of the said Advowson and afterwards the Church became void and so it belonged to them to present And Exception was taken to the Count because the Plaintiff had not averred the life of Richard upon whose life the Interest of the Plaintiffs doth depend Averment And Gawdy Serjeant likened it to the Case of the Parson which hath been adjudged That where the Lessee of a Parson brought an Ejectione firmae and it was found for him and in arrest of Iudgment exception was taken to the Declaration because that the life of the Parson was not averred and for that cause Iudgment was stayed Anderson chief Iustice Vpon the dying of Sir Nicholas Rich being but of the age of fourteen years an absolute Interest for nine years vests determinable upon the death of Richard or rather they are seised in fee determinable upon the coming of Richard to the age of twenty three years Rhodes and Windham contrary That here is an Interest in the Grantees determinable upon the death of Richard within the Term for if Richard dieth without issue within the Term the Remainder is limited over to a stranger And as to the Exception to the Count Dyer 304. â— 2 Cro. 622 637. 10 Co. 59. it was argued by Puckering Serjeant that the Count was good enough for although the life of Richard be not expresly averred yet such averment is strongly implied and so supplied For the Count is That dictus Nicholas obiit dicto Ric. being of the age of fourteen years non amplius by force of which the Plaintiff was possessed of the said Advowson quo quidem sic possessionato existente the Church became void and possessed he could not be if the said Richard had not been then alive and the same is as strong as an Averment See 10 E. 4. 18. In Trespass for breaking his Close the Defendant pleads That A. was seised and did enfeoff him to which the Plaintiff said That long time before A. had any thing B. was seised and leased to the said A. at will who enfeoffed the Defendant upon which B. did re-enter and leased to the Plaintiff at will by force of which he was possessed until the Defendant did the Trespass and the same was allowed to be a good Replication without averring the life of B. who leased to the Plaintiff at will for that is implied by the words i. Virtute cujus 1 Cro. 766. the Plaintiff was possessed until the Defendant did the Trespass And see also 10 H. 7. 12. in an Assize of Common The Plaintiff makes title that he was seised of a Messuage and of a Carve of Land to which he and all those whose estate c. have had Common appendant c. And doth not say that he is now seised of the Messuage But this Exception was disallowed by the Court for seisin shall be intended to continue until the contrary be shewed It was adjorned CCCLXXX Caries Case Pasch 28 Eliz. In the Exchequer IN an Information in the Exchequer by the Queen against Cary Tithes More Rep. 222. the Case was this A man grants situm Rectoriae cum decimis eidem pertinent Habend situm praedict cum suis pertinentiis for twenty years the first Grantee dieth within the Term.
the other side there the Descent is traversable and not the dying seised and that was the Case betwixt Vernon and Gray Vernon and Grays Case In an Avowry Vernon conveyed the Lands from the Lord Powes to him as next Heir to him because the Lord Powes died seised in his Demesn as of Fee without issue and the Plaintiff conveyed from the said Lord Powes by Devise and traversed the Descent to the Avowant for the dying seised was confessed and avoided by the Devise 22 Eliz. Dyer 366. See 21 H. 7. 31. In Trespass the Defendant saith That T. was seised and died seised and that the Lands descended to him as Son and Heir and that he entred the Plaintiff said That T. was seised and took to wife K. and they had issue the Plaintiff and died seised and the Land descended to him and teaversed the descent to the Defendant and see Sir William Merings Case 14 H. 8. 22 23. But if the parties do not claim by one and the same person or the dying seised be not confessed and avoided there the dying seised shall be traversed and not the descent Glanvil Serjeant Be the Bar insufficient or not if the Declaration be not sufficient the Plaintiff shall not have Iudgment and here is not any breach of Covenant viz. that the Plaintiff shall enjoy it without any lawful impediment of the Defendant his Heirs or Assigns or any claiming by Marland and then if the Heir of Marland cannot make any lawful claim then there is not any breach of Covenant assigned and he said because it is not shewed that the Land is not holden in Socage the Devise is not good for it may be that the Land is holden in Capite but admit the Devise good that when Andrews bargains and sells unto Marland and the Tenant never attorns then nothing passeth and then the Heir of Marland cannot make any lawful claim or lawful impediment Periam Iustice Here Marland was assignee of Andrews and if he or his heirs make claim although that the assignment be not sufficient in Law yet because he hath colour by this assignment his claim is lawful and so there is a breach of the Covenant and although it is not alledged that the Land devised is holden in Socage yet the Devise is good for two parts of the Land. Anderson Iustice If it be good but for two parts then is the Reversion apportioned and the Rent destroyed and so Marland hath not any Rent by his purchase of the Reversion and so he can't lawfully disturb the Plaintiff The Law doth create his apportionment which grows by the Devise and therefore the Rent shall not be destroyed but if it had been done by the Act of the party it had been otherwise and I would willingly hear if the Heir of Marland be assignee of Andrews for otherwise he is not within the words of the Covenant for Marland hath an estate to him and his heirs for the life of another Now after the death of Marland his heir is a special occupant and vide H. 26 Eliz. Rot. 560. in the Common Pleas such an Heir shall not have his age CCCCXXX Oglethorpe and Hides Case Pasch 33 liz In the Common Pleas. IN Debt upon a Bond for the performance of Covenants Debt it was holden by the whole Court That if the Defendant pleaded generally the performance of the Covenants and the Plaintiff doth demur generally upon it without shewing cause of Demurrer Iudgment shall be given according to the truth of the cause for that default in pleading is but matter of form and is aided by the Statute of 27 Eliz. But if any of the Covenants be in the disjunctive so as it is in the Election of the Covenantor to do the one or the other then it ought to be specially pleaded and the performance of it for otherwise the Court cannot know what part hath been performed CCCCXXXI Tracy and Ivies Case Mich. 32 Eliz. In the Common Pleas. IN Dower by Margaret Tracy against Ivie the Case was Dower That John Finch was seised and enfeoffed Shipton and others of two parts of the Lands to the use of himself and the Defendant his then wife and their heirs for ever with Condition That if his said wife did survive him Co. 4. Vernons Case she should pay such sums of mony not exceeding two hundred pounds to such persons which the Feoffor by his last Will should appoint and afterwards he declared his Will and thereby appointed certain sums of mony to be paid to divers persons amounting in the whole to the sum of one hundred and fifty one pounds and by his said Will devised the residue of his Lands to divers of his Kindred having no issue and died The wife married Tracy and they brought Dower against the Devisees who pleaded the Feoffment aforesaid and averred the same was made for the Ioynture of the Demandant And because that no other matter or circumstance was proved to verifie the Averment the Court incited the Iury to find for the Demandant which they did accordingly CCCCXXXII Bond and Richardsons Case Mich. 32 Eliz. In the Common Pleas. IN Debt upon a Bond Debt 1 Cro. 142. the Condition was to pay a lesser sum such a day and at such a place the Defendant pleaded payment according to the Condition upon which they were at issue And it was found by Verdict That the lesser sum was paid such a day before the day contained in the Condition of the Bond and then received and upon this Verdict Iudgment was given for the Plaintiff for the day is not material nor the place but the payment is the substance CCCCXXXIII Marshes Case Trin. 32 Eliz. In the Common Pleas. Trover had Conversion GOods came to a Feme covert by Trover and she and her Husband did convert them to their own use It was holden per Curiam That the Action upon the Case shall be brought against the Husband and Wife and not against the Husband only for the Action doth sound in Trespass and it is not like unto Detinue for upon a Detainer by the Wife the Action lieth against the Husband only CCCCXXXIV Corbets Case Trin. 32 Eliz. In the Common Pleas. Debt 2 Len. 60. AN Action of Debt was brought by Original Writ against an Administrator in another County than where the Administrator was commorant and before notice of the Suit he paid divers Debts of the Intestate due by specialty and so he had not Assets to pay the Debt in demand having Assets at the day of the Teste of the Original And now Plainment Administred 1 Cro. 793. the Defendant appearing pleaded this special matter and concluded so he had nothing remaining in his hands And it was holden per Curiam to be a good Plea. See 2 H. 4. 21 22. CCCCXXXV Gillam and Lovelaces Case Mich. 32 Eliz. In the Common Pleas. Administration KAtharine Gillam Administratrix of John Gillam brought Ejectione
firmae against Leonard Lovelace and upon not guilty pleaded it was found for the Plaintiff It was moved for the Defendant in arrest of Iudgment That the Declaration was not good because the granting of Letters of Administration is set forth in this manner viz. Administratio commissa fuit Querenti per Willielmum Lewen Vicarium generalem in spiritualibus Epi. Roff. without averring that at the time of the granting of the Letters of Administration the Bishop was in remotis agendis for a Bishop present in England cannot have Vicarium But as to that it was said by the whole Court That the Vicar general in Spiritualibus amounts to a Chancellor for in truth the Chancellor is Vicar general to the Bishop Another Exception was because the Declaration is not Epi. Roff. loci illius Ordinarii but that was not allowed for all the presidents and course of the Court is That by way of Declaration such allegation needs not but by way of Bar it is necessary Another Exception was taken because the Plaintiff hath declared of an Ejectment and also quod bona catalla ibidem invent cepit c. And here in the Verdict the damages as well for the Ejectment as for the Goods and Chattels are entirely taxed It was adjorned CCCCXXXVI Greeves Case Mich. 32 Eliz. In the Common Pleas. IN a Replevin Replevin the Defendant made Conusans as Bayliff to one Greeves and Rockwood c. and said That A. was seised of the Lands and 6 Eliz. enfeoffed certain persons in fee to the use of his last Will by which he willed that his Feoffees should stand seised of the said Lands Devises Poph. 188. until the said Greeves had levied of the profits of the said Lands the sum of one hundred pounds It was objected against this Conusans that here is no devise for A. at the time of the devise had not any Feoffees but the Exception was disallowed by the Court And they cited the case of 15 Eliz. Dyer 323. Lingens case A. made a Feoffment in fee to his use and afterwards devised that his Feoffees should be seised to the use of his Daughter that the same was a good devise of the Land. See 29 H. 8. Br. Devises 48. CCCCXXXVII Kempton and Coopers Case Mich. 31 32 Eliz. In the Common Pleas. IN Trespass for breaking of his Close the Defendant pleaded Bar. 3 Len. 194. that before this he had brought an Ejectione firmae against the now Plaintiff and recovered and had Execution c. Iudgment if Action c. And by Periam Windham and Anderson Iustices the same is a good Bar and the conclusion of the Plea is also good Iudgment if Action without relying upon the Estoppel CCCCXXXVIII Leigh and Okeley and Christmass Case Mich. 32 Eliz. In the Kings Bench. OLiphe Leigh Fermor of the Queen of a Wood called Meerherst Wood in Warplesden in the County of Surrey brought an Action of Trespass against Henry Okeley and Robert Christmass for breaking of the said Wood and therein entring and cutting down of two hundred loads of Wood and carrying away the same c. The Defendants pleaded That before the time in which the Trespass was supposed c. That King H. 8. was seised of the Manor of Warplesden Custom whereof the said Wood was parcel of which Manor a Close called Withybod containing eleven Acres eidem bosco adjacent was parcel and that the said Wood is and time out of mind c. was closed and separated with Hedges and Ditches from the said eleven Acres which said Hedges and Ditches per totum tempus praedict fuerunt adhuc sunt praedict bosco spectant pertinent And that the said eleven Acres are and time out of mind weâ—â— customary Lands parcel of the Manor aforesaid and demised and demisable in Fee-simple And that the said King H. 8. at a Court holden 38 H. 8. by his Steward demised the said eleven Acres by copy to John Goring and his Heirs and that within the said Manor there is this Custom That every Copyholder Tenant of the said eleven Acres c. hath used and accustomed per se vel servientes suos per eorum praecept succidere capere asportare subboscum in praedict bosco in quo c. pro reparatione praedictarum sepium defensionum inter praedict boscum in quo c. and the said eleven Acres c. quandocunque eaedem sepes defensiones in decasu extiterint and shewed further That at the time of the Trespass c. the said Hedges and Fences were in decay and so justified Vpon which the Plaintiff did demur in Law. It was argued by Godfrey That the Prescription is not good for it appeareth that this customary Land is contigue adjacens to the said Wood i. where the Trespass was done And of common Right the making of the Hedge doth appertain to the Owner of the Wood And the Prescription is no more but to take Wood in the Lands of another adjoyning to my Land to make the Hedges of the same Land in which the Wood groweth which cannot be a good Prescription for it sounds in charge and not to the profit of him who Prescribes Which see 22 E. 3. Prescription 40. Trespass against an Abbot because where the Plaintiff was Farmor of the King of his Hundred of D. and by reason thereof he might make Attachment and distrain for the Debts of the King within the said Hundred and where for a certain debt of the King he distrained the Beasts of one A. and the Abbot made Rescous to which the Abbot said That he was Lord of the Manor of D. within which Manor there was this custom c. That if any Distress be taken within the said Manor that the same should be put into the Pound of the said Abbot of the same Manor and not driven out of the Manor and there ought the Distress to remain three days so that if the party would agree within the three days that then he should have his Beasts and he said That the Plaintiff would have driven the said Beasts out of the said Manor and that he would not suffer him upon which there was a demurrer because it is not any profit to the Abbot but a charge to keep the Beasts of another Also he said That the King shall not be bound by such a custom as another person shall whereupon Iudgment was given for the Plaintiff So here in the principal case There shall be no damage to the Defendant if the Wood be not fenced for if his Cattel escape into the Wood he may justifie it because it is in default of the Plaintiffs inclosure And if the Beasts of the Plaintiff escape into the Lands of the Defendant he may take them Damage Feasant for the cause aforesaid 21 H. 7. 20. A Custom is pleaded That if any Tenants of the Manor shall take the Cattel of any one Damage Feasant and shall therefore distrain them that