of Clanrickard with whom Yelverton was of Councel it was resolved that if the Issue be upon the custome of Tithing and that it be found against the Defendant he shall pay the value expressed by the Plaintiff in his Declaration for because by the collateral matter pleaded in Barr the Declaration is in whole confessed SMith versus Smith Trin. 6 Jacobi one Bisse made K. his Wife and John his Sonne being one year old Executors and K. solely proved the Will and afterwards married the Plaintiff and they two brought an Action of Debt as Executors against the Defendant and the Defendant pleads in abatement of the Bill that John was made Executor with K. and is yet in life and not named the Plaintiffes reply that John was but of the age of one year and that K. proved the Will and had Administration committed to her during the minority and that John is and was at the time of the Writ purchased within the age of seventeen years and upon that Yelverton demurred and adjudged for the Defendant that the Bill should abate for both of them in truth were Executors and ought to be named in the Action and although by the Administration granted during the minority K. had the full power yet the Infant ought to be named he being Executor GOmersall versus Ask Trin. 6. Iacobi The Defendant brought an Action of Debt against the Defendant as Administrator of her Husband upon two former Judgements given in two Actions of Debt against the intestate and shews the recoveries the Defendant pleads that the intestate entred into a recognisance 35 El. in Chancery to Sir Henry Bechel and shows that after the Judgements had by the Plaintiff Sir H. obtained a Judgement against the intestate upon the Recognisance and that she hath not assets to satisfie the Plaintiff of the intestates Goods beyond Goods that are chargeable and liable to the Judgement upon the Recognisance to which Plea the Plaintiff demurres and by Fennor and Williams justifies the Plea in Barr was good for although the Plaintiffes Judgements mentioned in his Actions are before Sir H. Judgement yet because the Plaintiff by his Action doth not demand Execution of the Judgements but onely his Debt recovered for this Action brought it as an originall and in the same Court as if he did demand the Debt upon the first Obligation and therefore because the Plaintiff had not sued out a Scire facias to execute the first Judgements but had prosecuted a new originall the Plea is good and allowable as it had been upon the said Obligation but Yeluerton and Fleming were of a contrary opinion for the Plea had not been good against the intestate himself and the Executor or Administrator represents his person and therefore the Plea is not good but onely in excuse of a Devastavit and they were of opinion that the Action brought by the Plaintiff was in nature of a Scire facias for he demanded the Debt in another course then it was at first for that Debt which was but matter of escript is now become by the Judgement to be Debt upon Record and of so high a nature that the Judgement being in Force he can never have an Action upon the Obligation which is adjuged in Higgins Case Co. 6 Rep. but Cook doubted and the Plaintiff dying the Court did not resolve APleton versus Baily Mich. 6. Jacobi Apleton as Executor of Apleton brought an Action of Debt against Baily for the Arrerages of diverse Rents as well Copy-hold Rents as Free-hold Rents pertaining to a Mannor whereof the Testator was seised and thereof died seised and the Rents were not paid to him in his life time by reason whereof they belonged to the Plaintiff as Executor And the Defendant though he was requested had not paid against the form of the Statute of the 32 H. 8. And the Court that the Action did not ly for the Arrerages of Copy-hold Land for the Statute of the 32 H. 8. doth not extend to them but only to Rents out of Free Land Secondly It lies not for the Rent of free Land because the Plaintiff hath not shewed in his Declaration that the Defendant had attorned to the Testator in his life And although in pleading it is good to alledge a Feoffment of a Mannor without pleading any Livery or of any Attornment of Tenements but when the Rent of any Free-hold Land comes in Debate it behoves both the Owner of the Mannor and and his Executor that demands it to convey the privity between the Tenant and the Lord which ought to be by attornment for Rents and Services rest not without Attornment which mark PEirson versus Ponuteis Mich. 6. Jacobi The Plaintiff as Executor of Peirson brought an Action of Debt against Jo. Ponuties of London Merchant that he should render to him three and thirty pounds twelve shillings in that the Defendant 5. Oct. 1598. at London c. By his Bill obligatory hath acknowledged himself to owe to the Testator 1518. Florens Polish which then amounted to thirty three pounds twelve shillings to be paid to the Testator Ad solucionem festi purificat c. Called Candlemas day next insuing and to that payment had obliged himself by the same Bill And the Plaintiff avers that Predicti soluciones dicti festi purificat c. Next after the making the Bill were according to the use of Merchants the twentieth of February 1598. Yet the Defendant had not paid the 1518. Florence Polish or the thirty three pounds twelve s. to the Testator nor to the Plaintiff The Defendant pleads Non est factum and found against him and moved in arrest of Judgment that the Declaration was not good because first the payment of Candlemas is not known in our Law but that was not allowed for that which is unknown in ordinary intendment is made manifest and helped by the Averment in the declaration because that payment among Merchants is known to be upon the twentieth of February and the Judges ought to take notice of those things that are used amongst Merchants for the maintenance of traffick and the rather because the Defendant doth not deny it but pleads non factum by which he confesses the Declaration to be true in that averment Secondly it was objected that as the Case is the use of Merchants is not materiall because the Testator by any thing that appears was not a Merchant but it was not allowed because the defendant that bound himself to pay was a Merchant and the Testator ought to take the Bill as the defendant would make it and he chose to make the payment according to the use of Merchants and not according to the Ordinary intercourse between party and party which mark this by the whole Court TAlbot versus Godbold Mich. 6. Jac. Godbold 28 Eliz. sealed a Bill to the Plaintiff made in this manner memorandum that I have received of Edw. Talbot who was the Plaintiffes Testator to the
that it was collaterall warrantry where in truth it was a lineall warranty and it was held naught because the warranty was in Law a lineall warranty the Case was that Land was givenby Feoffment made to the use of the Feoffer for life remainder in Tail Tenant for life dies Tenant in Tail had Issue a Son and two Daughters and the Father and Son joyn in a Feoffment with warranty and after the Father and Son die without issue and the Daughters bring a Formedon and this is a lineall warranty PIt versus Staple Trin 14 Jac. rotulo 112. Formedon in le discender against three which plead non-Tenure and issue thereupon joyned and found specially that two of them were Lessees for life the remainder to the third person and whether the three were Tenants as is supposed by the writ was the question and the better opinion was that it was found for the Demandant for the Tenants should have pleaded severall Tenancy and then the Demandant might maintain his writ but by this generall non-Tenure if any be Tenant it is sufficient but in some Cases the Precipe may be brought against one who is not Tenant as a morgagor or morgagee COmes Leicester versus Comit. Clanriccard In Formedon upon a Judgement given in part for the Demandant and part for the Tenant the Tenant brought a writ of Error and had a Supersedeas upon it and afterwards the Demandant prosecuted a writ of Seisin and delivered it to the Sheriff and he executed the writ and immediately afterwards the Tenant delivered the Supersedeas to the Sheriff and the Tenant moved the Court and prayed a writ of restitution and it was granted him because the Tenant had done his indeavour and had not delayed the prosecuting the writ of Error COmes Clanriccard Francisca uxor Ejus Demandants versus R. S. milit vicecomit Lyple for three messuages c. which R. late Earl of Essex and Frances late wife of the said Earl by Fine in the Court of the Lady Elizabeth late Queen of England before her then Justices at Westminster levied and gave to William Gerrard Esquire and F. Mills Gentleman and the Heires of the said W. for ever to the use of Elizabeth Sydney Daughter and Heir of P. S. Milir and the Heirs of the Body of the said E. comming and for default of such issue to the use of the said F. then wife of the said Earl and the heirs of the said Fr. and which after the death of the said Eliz. ought to revert to the said Fr. by form of the gift aforesaid and by force of the Statute in such case provided because the said Eliz. died without Heir of her Body The Tenant pleaded in abatement of the writ because the writ ought to revert to the woman alone and it should have been to the Husband and wife and upon a demurrer Judgement was that he should answer over the writ may be either to revert to the Husband and wife or to the wife alone and herein the Tenant vouch two vouches and one is Essoined and an idem dies given to the other and Serjeant Harris demanded of the Court if he should Fourcher by Essoin because the Statute of Westminster the first is that Tenants Parceners or Joint Tenants shall not fourcher in Essoin therefore they two should not fourcher by Essoin but the Court held that before appearance it could not appear to the Court whether they were Tenants or not and therefore before appearance they shall have severall Essoins and Westminster the first is expounded by Gloucester the tenth which is that two Tenants shall not fourcher after appearance and at the day of the adjournment of the last Essoin the Tenant was Essoined and such Essoin was allowed and adjudged by the whole Court and the reason hereof seemed to some to be because the Tenant might be informed of the Vouchee that he vouched was the same person or no for he might be onother person for if he should be an estranger and demand the place and the Demandant could not hold him to the warranty the Demandant should loose his Land and they held that upon severall Processe to wit upon the view and upon the summons to warranty which are divers Processes the Tenant ought to be Essoined and the Court held that this Essoin was at the Common Law if the Tenant and the vouchee at the day given to the Tenant and the vouchee make default Judgement shall be given against the Tenant to wit a petty Cape and nothing against the vouchee SHotwell versus Corderoy In Formedon the Tenant prayes in aid â—nd the prayee in aid and Tenant vouch and the Vouchee was essoined and adjourned and at that Day the Attorney of the Tenant without the Prayer in aid cast an Essoin and an Idem dies given the Prayee in aid and it was quashed for they shall not have severall Essoines but joynt Essoines A Formedon brought of Lands in A. B. C. The Tenant pleads a Fine of all by the name of the Mannour and Tenements in A. B. And it was objected that he said nothing to the Land in C. but the Courtheld that by the name of the Mannor the Land in all the Villages would pass and the Demandant may if he will plead as to the Land in C. that it was not comprised in the Fine Hill 7. Jacobi rotulo 76. vel 69. Formedon in the Discender the Writ was general that J. L. gave to T. L. and the Heirs Males of his Body upon the Body of D. V. Widow lawfully to be begotten which D. the said T. afterwards took to Wife and which after the Death of the said T. c. Son and Heir Male of the Body of the said T. upon the Body of the said D. lawfully begotten to the said J. L. younger Son and Heir of the said J. L. Son of the said T. ought to descend by form of the Gift aforesaid c. and whereof he saith that the said T. was seised c. and 2 Eliz. of the said Tenements did infeoff the Plaintiff in Fee to the use of the said T. L. and his Heirs c. and note in the Count no mention made of the Marriage If a Gift be made in tail to D. and his Heirs Males the Remainder to A. in tail D. discontinues in the Life of A. and D. dies without Issue and the Heir of A. brought his Writ as the immediate Gift to A. his Ancestor who never was seised in his Life and for that cause the Writ was naught but if A. had been seised of the Land then it had not been necessary to have shewed the first Gift to D. by the opinion of the whole Court Actions upon the Statute of Hue and Cry NEedham versus Inhabitant Hundredi de Stoak Trin. 8. Jac. rotulo 534. Action brought upon the Statute of Hue and Cry by the Servant who was robbed in his own name and part of the Goods
by the whole Court held to be a condition but Judgment was given for the Plaintiff for doublenesse in the plea. BRown versus Dunri Hill 15. Iac. rotulo 1819. The Defendant made cognizance c. as Bailiff M. Walker Widow Administrator c. R. W. for one rent charge of 6 l. granted by one Warner to the said R. and M. his wife for life of the VVife And the said R. by the said writing granted c. That if it should happen the said yearly Rent to be behind and not paid in part or in all by the space of ten dayes next after any Feast c. being lawfully demanded that then c. the said Warner c. ten shillings nomine paene for every default and that then it should be lawfull to the said W. and M. and their Assigns to enter into the premises and distrain as well for the rent as for the nomine paene and shews that the rent was behind in the life of the Husband and that he dyed intestate and that administration was committed to the woman and made cognisance for the rent due at such a Feast in the life of the Husband and being then behind and the issue was that the Grantor was not seised and after a tryall diverse exceptions were taken one was for that a demand was not alledged another was that the cognisance was made as Bailifle to the Administrator when as the woman by the survivorship should have the rent Another was that it is not alledged that the rent was behind by ten dayes next after the Feast and the exceptions upon debate at diverse dayes were over-ruled First the demand is not necessary for the Distress is a sufficient demand as it was adjudged in Iaces case The second was because the cognisance as Administrator are void idle and superfluous and for the ten dayes it was good because that predicto tempore quo c. It was behind and adjudged by the whole Court for the Advowant SLoper versus Alen Trin. 15. Jac. rotulo 3002. Replevin upon the taking of 40. Sheep the issue was that the Sheep were not levant and couchant and found by a speciall verdit that twenty Sheep were levant and couchant and that twenty Sheep were not levant and couchant and it was held upon the reading of the Record that the Plaintiff should have his Judgment BVrton versus Cony Hill 16. Iac. rotulo 2044. The Defendant avows for a rent charge granted to him for life by his Father issuing out of all his Lands in such a Town to have and to hold to levy and yearly to take the said annuity or annuall rent of c. during the naturall life of the said P. at two Feasts in the year to wit c. by equall portions the first payment to be made at the first and next Feast of the said Feasts which should next happen after the term of 8. years ended and determined specified and declared in the said will And if it should happen c. And averres in the avowry that there is not any term of years specified and declared in the said Testament before recited And note that in the premises of the Deed it is recited thus in fulfilling the Will or Testament of me the said T. bearing date such a date I have given c. And the Court held that the grant was present if no term was contained in the will and Judgment was given for the Advowant But after Judgment was entred upon Record an exception was taken because it was not averred that the Grantor was dead and it was allowed for a good exception but it came to late judgment being entred HEyden versus Godsulm Judgment for the Defendant who avowed for rent reserved upon a Lease for years and it was moved that the Plaintiff who brought the writ of Errour upon that Judgment ought to find bayle upon the writ of Errour by the Statute of 3. Iacobi and it was held by the greater number of the Judges that the Plaintiffe should not find bayle for Replevins are not within the Statute TVrny versus Darnes Trin. 17. Iac. rotulo 2887. Demurrer in a replevin upon a traverse of Lands when as the parties have not agreed of the quantity of Land The Avowry was that C. was seised of one Messuage two Barns one Mill c. and 100. acres of Land with the appurtenances in W. and held them of c. by fealty rent c. and suit of Court c. And the Plaintiff prayed in aide and he joyned and alledges that he was seised of 70. acres of Land with the appurtenances in his demesne as of Fee and held them of G. by fealty and rent c. and suit of Court and traverses that he held the Tenements of the said G. as if his Mannor of W. in manner and form as c. and a speciall demurrer and one cause was because he denies not the seisin of the said services but only denies and traverses the tenure and therefore they pretended that the plea contained double matter and was a negative pregnant and secondly whether the Seisin or Tenure be traversable and the Plea was held good by Hubberd and Warburton RIchards versus Young Trin. 16 Jacobi rotulo 104. vel 1700. A Replevin brought for taking of Cattel at Aller in a certain place called Land Mead the Defendant avows as Bailiff of Sir John Davies the Kings Serjeant containing four Acres for damage fesant the Plaintiff pleads in Barr that Henry Tearl of Hunt was seised of the Mannor of Aller whereof one Messuage c. was parcell and customary Land and devisable by Copy of Court Roll and that within the said Mannor there was a Custome that every customary Tenant of the said Messuage hath been used to have Common of Pasture in the said place called Land Mead rhe Issue was without that that within the said Mannour with the appurtenances whereof c. is and time out of mind was a custome that every customary Tenant of the laid Messuage c. had Common of pasture in manner and form c. and Serjeant Harris moved in Arrest of Judgment that there was no custome alledged because it did not appear in the pleading that the place where the taking was supposed to be was within the said Mannor and no custome of the Mannor could extend forth of the Mannor but he ought to prescribe in the Mannor and note he ought to have pleaded that the place in which c. was parcell of the Mannor and then the Plea had been good In a Replevin upon an Avowry for Rent the Plaintiff for part pleadeth payment for the other part an Accord the one Issue is found for the Paintiff and the other for the Defendant the Plaintiff shallrecover his costs and damages and the Defend shall have Judgement of Return habend and no costs and damages I think otherwise it is if the Avowries be severall then on both
to have distrayned the Cattell of the Lord damage fesant and observe his BRaxall versus Thorold Trin. 8. Jac. In Replevin for the taking of 4 Oxen at Coringham in the County of Lincoln in a place called Dowgate leys Sept. 6. Jac. The Defendant says the place contained four acres in Coringham magna which was his Free-hold and justifies the taking damage fesant The Plaintiff in his bar to the Avowry that the place where c. lies in a place called Harrerart quarter parcell of a great Common Field called E. in Coringham aforesaid and that the Plaintiff the said time and long before was seized of one Messuage and of 14. acres of Land Medow and Pasture with the appurtenances to the said Messuage belonging and that the Plaintiff and all they whose estate the Plaintiff had in the Tenements ought to have common and so prescribed to have common for him his Farmers Tenants c. for all comunable cattell levant couchant upon the Tenements c. And upon issue taken upon the Common it was found for the Plaintif and alledged in arrest of Judgment that it did not appear by the Barre to the Avowry in what place the Messuage and Land to which the Common did appertain did lie to wit whether it did lie in Coringham or in any other place or County and thisof necessity ought to have been shewed in certain because the tenure ought to be both of the place where the House and Land did lye and of the place where the Land did lye in which the Common was claimed and therefore of necessity ought to have been shewed incertain and shall not of necessity be intended to be in Coringham where the Common is For a Common may be appendant or appurtenant to Land in another County And the trvall shall be of both Counties and Judgement was arrested by the whole Court TRuelock versus Riggsby Mich. 8. Jacobi In Replevin for the taking of six Kine in a place called Brisley hill in Radley in the County of Berks the Defendant as Bailiff of one Read makes Conisance that the place where c. contains fifty acres and is parcell of the Mannor of Barton whereof the place where c. is parcell and showes that E. 6. was seised of the Mannor of Barton whereof the place where is parcell and granted it by Letters Patents to R. Leigh and divers other Lands by the name of the Coxleyes c. and amongst other particulars in the Patent the King granted Brisley hill in Barton and deduces the Free-hold of the Mannor of which the place In which c. is parcell to Read and he as Bailiff to him took the Kine damage Fesant the Plaintiff replies and shows that one Hide was seised of a Messuage and divers Acres of Land in Radley and that he and those whose estate he hath for himself his Farmers and Tenants used to have Common in the said place called Brisley hill in Radley when the said Feild called Brisley hill in Radley was fresh and not sowed all that yeare with their Cattell Levant and Couchant and when the Field was sowne with Corne and when the Corne was carried away untill it was referred and so justifie the putting in of six Kine using his Common because the Feild was not sown with Corne at the time to which the Defendant pleads and saies that part of the Feild called Brisley Hill in the Avowry named was at that time sown with Corn c. and the Plaintiff demurres and adjudged for the Plaintiff for two reasons The first was because the Defendant in his Avowry referres the taking of the Cattell to another place then that set forth in the Avowry which is not in question and in which the Plaintiff claims no Common for the Plaintiff may claim Common in Brisley hill in Radley and the place named in the Defendants Avowry to which he referres his Plea is Brisley hill in Barton for Brisley hill in Radley is not named in the Avowry by any speciall name but onely by implication by this name the place in which c. and for that reason the rejoinder doth not answer the matter in the replication The second cause was because the Plaintiff claims Common when Brisley hill in Radley was unsown with Corn and the Defendant to that although his Plea should referre to the same Brisley yet hath he given no full answer for he saith that parcell of the said Feild was sowed with Corn and the Court held that sowing of parcell of the Feild shall not hinder the Plaintif from using his Common in the residue for that may be done by covin to deceive the Plaintiff of his Common for the Plaintif claiming his Common when the Field that is the whole Feild is sown shall be barred of his common by sowing of parcell of it notwithstanding that parcell be sowed the Plaintif shall have his common by the opinion of the whole court GOdfrey versus Bullein Mich. 8 Jacobi Bullein brought a Reple vin against Godfrey for the taking of six Beasts in such a place in Bale in the County of Norfolk the Defendant as Bailif of R. Godfrey makes conisance because before the time and at the time in which c. the said R. Geffrey was seised of a Court Leet in Baile of all the inhabitants and râ—â—dent within the Precinct of the Mannor of Baile to be holden within the Precinct of the Mannor as appertaining to his Mannor and shews how that he had used to have a Fine of ten shillings called a Leet Fine of all the cheif pledges of his Leet and if they failed to pay the Steward had used to amerce them that made default in payment shewed how that at a Court holden within the Mannor such a day it was presented that the Plaintif in the Replevin being an inhabitant in B. and resident within the Precinct of the Mannor made default in payment of the said Fine of ten shillings being then one of the cheif pledges of the Court by reason whereof he was amerced at five pounds which being not paid the Defendant took the Beasts and the Issue was whether Bullein at that court was a chief Pledge or no and the Venire to try his Issue was onely of the Mannor and found for the Plaintif and damages and costs to thirty pounds given against Geffrey upon which he brought a Writ of Error in the late Kings Bench and adjudged Error and the Judgement reversed for the Venire facias should have been both of Bail which was the Village as of the Mannor for although the Court be held within the Mannor yet the Leet it self is within the village of Baile and the Plaintiff was an inhabitant and resident within the village which village is within the Precinct of the Mannor and though Fleming cheif Justice held that nothing was in question but whether the Plaintiff was cheif pledge at the Court held within the Mannor or no and so nothing within the
or Geldings and no more and because the Beasts aforesaid in the narration aforesaid specified over and above the aforesaid other three Mares or Geldings the aforesayd time in which c. were in the aforesayd place in which c the Grasse then growing there eating and the Common of pasture of the sayd Robert Pargiter overcharging and doing damage to the sayd Robert there the sayd Robert Pargiter in his owne right doth wel avow and the aforesayd John Phillips as Bayliff of the aforesayd Pargiter doe well acknowledge the taking of the Beasts aforesayd in the aforesayd place in which c. and justly c. they then doing damage there c. And the aforesayd Robert Kenrick saith That neither the sayd Robert Pargiter for the reason before alleadged the taking of the aforesayd Beasts in the aforesayd place in which c. can justly avow nor the aforesayd John Phillips as Bayliff of the aforesayd Pargiter for the same reason the taking of the Beasts aforesayd in the aforesayd place in which c. justly can acknowledge Because by protestation that he the sayd Robert Kenrick and all those whose estate the sayd Robert Kenrick now hath and at the aforesayd time of the taking c. had in the sayd Messuage and foure Virges of Land with the appurtenances whereof c. time out of minde had not nor used to have or were accustomed every yeare at the first day of August called Lammas day and from thence to the next Feast of the Parification then next following Common of pasture in the aforesayd place in which c. onely for three Horses Mares or Geldings and not more in manner and forme as the aforesayd Robert Pargiter and John Phillips above have alleadged for Plea the sayd Robert Kenrick sayth That he long before the time of the taking of the Beasts aforesayd and also at the same time of the taking c. was seised of the Mannor of Kings Sutton with the appurtenances in Kings Sutton and Astrop in the County aforesayd whereof the aforesayd Messuage and four Virges of Land with the appurtenances whereof c. are and at the aforesayd time of the taking c. and also time out of mind c. were parcell in his Demesne as of Fee and the aforesayd House and foure Virges of Land with the appurtenances thereof c. and of the taking and likewise time out of mind were parcell of the Demesne Lands of the Mannor of Kings Sutton aforesayd And the sayd Robert Kenrick so of the Mannor aforesayd with the appurtenances in manner aforesayd appearing seised the sayd Robert before the sayd time in which c. put his Beasts aforesayd which then were the proper Beasts of the sayd Robert Kenrick upon the aforesayd House and four Virges of Land with the appurtenances lying and rising in the aforesayd place in which c. to eate the Grafs there growing in the sayd place in which c. called Great Greens parcell c. the Grass in the same then growing feeding and the aforesayd Beasts were in the place aforesayd untill the aforesayd Robert Pargiter and John Phillips the aforesayd fourth day of August the seventh yeare aforesayd at Kings Sutton aforesayd in the County aforesayd at Great Greene parcell c. took the sayd Beasts of the sayd Robert Kenrick and those unjustly detained against Sureties and Pledges untill c. as he above against those complaines and this he is ready to verifie whereof and from which the aforesayd Robert Pargiter and John Phillips the taking of the aforesayd Beasts in the aforesayd place c. further acknowledge the sayd Robert Kenrick demands Judgment and his damages by reason of the taking and unjust detaining of those beasts to be adjudged unto him c. And the aforesaid Robert Pargiter and John Phillips say that the aforesaid Plea of the said Robert Kenrick above in the Bar avowed pleaded and matter therein contained is very insufficient in Law justly to avoid the said Robert Pargiter and the said John from just acknowledging the taking of the Beasts aforesaid to have and shut up and that he to the said plea in manner and forme aforesaid pleaded hath no need not by the Law of the Land shall be held to answer and this they are ready to averr whereof for default of a sufficient plea of the aforesaid Robert Kenrick in this part the said Robert and John as before demand Judgement and Returne of the Beasts aforesaid together with their Damages c. To them to be adjudged c. And the aforesaid Robert Kenrick in respect he hath sufficient matter in Law justly to avoid the said Robert Pargiter and the aforesaid John from justly acknowledging the taking of the said Beasts to be shut out as above alledged which he is reaoy to verify which truly matter of the aforesaid Robert Pargiter and John do not answer according to their verifying they altogether refuse to admit as before and demand Judgment and their Damages occasioned by the taking and unjust detaining of the said Beasts to be adjudged to them c. And because c. Upon the pleadings the Case was thus a Freeholder prescribs to have common in parcell of the Demesnes of the Mannor for six Horses and other Cattel in certain Land from Lammas to Candlemas that the Lord of the Mannor hath used to have the said Parcell of Land in severall to his owne use from Candlemas to Lammas and in consideration of that the said Lord hath used to have Common in the said parcell of Land for Horses only and not more and the Lord unjustly puts in other Beasts then the said three Horses in the said parcel of Land and surcharged the Common and the Free-holder distrayned them doing Damage and the Lord brings a Replevin and it was argued that prescription was not good for that that Free-holder claimes that as Common without number in his severall Soyle the Grantee cannot exclude the owner of the Soile 12 H. 8. Brooke so of him which hath Common Fishing in the severall of another he cannot exclude him which hath the severall 18 H. 6. 16. And it is not like to the Case of the time of Edward the first prescription the 55. Where is Prescription that the Owner of the Soile shall be excluded from his Common for part of the yeare for there the other claimes all the Vesture of the Land and so may well exclude the Lord but not when he claimes it but as Common but it was agreed that by Lawes by the Commoners consent they may order that their great Cattell shall be put in in such Feild only untill such a Feast and after that for sheep and swine and this is good as it appears by 46 Ed. 3. 25. And Coke cheife Justice said that such prescription to have Common and to exclude the Owner of the Soyle is not good and he saith that so it hath been adjudged between Whyte of Shirland 31 Eliz. And in
condition to re-enfeoff and she with her Husband makes the re-enfeoffment it is good so a Woman being Lessee for Life and with her Husband attorn upon a Grant of Reversion is good and shall binde the Wife after the Death of the Husband 3 Ed. 3. 42. 4 Ed. 3. Attornment 12. 15 Ed. 3. Attornment also this Estate was made to the Wife when she was sole and for that it shall be accounted her folly that she would take such a Husband that would forfeit her Estate but with that agreed the reason of the Booke of 20 H. 6. 28. Where a woman Tenant was bound by the ceasing of her Husband and so he concluded and prayed Judgment for the Plaintiff and so it was adjourned see another argument of this case in Michaelmas Tearm 9. Jacobi 1611. by Haughton and Nicholls Serjeants Pasch 9. Jacobi 1611. In the Common Bench. Pitts against Dowse IN an Ejectione firme upon not guilty pleaded The Case was this A man makes his Will by these words I bequeath all my Lands to my Son Richard except my Chauntery Lands And I devise all my Chauntery Lands to be devided amongst all my Children men and women alike except my Son Richard And if Richard die without Issue the remainder to A. My second Son the remainder to B. My third Son the remainder to C. My fourth Son the remainder to my next of blood and so from Heire to Heire And so likewise I would to be done upon my Chauntery Lands and Tenements in case all my aforesaid Children die without Issue Then I would the one halfe of my Chauntery Lands to remaine to the next of kin and the other half to the Hospitall of M. And the question was what estate the Heire of the eldest Son shall have in the Chauntery Lands and it was argued by Dodridge the Kings Serjeant that the Heire of the eldest Son shall have estate tayl in the Chauntery Lands the Devisor devises no estate to Richard his eldest Son in the Chauntery Lands nor limitts any estate of that in certaine and for that he seemed that the youngest Sons and Daughters shall be Tenants in Common for life and by this manner of Interpretation every part of the Will shall be for first he excludes Richard himselfe so that he shall have nothing in that and then by the Limitation to the younger Children to be equally divided between them makes them Tenants in Common see 28. H. 8. 25. Dyer 155. And he cited Lewin and Coxes Case to be adjudged Michaelmasse 41. and 42. of Eliz. Pasche 42. Eliz. Rot. 207. Where a man devises Lands to his two Sons to be equally divided and adjudged that they are Tenants in Common so devise to two part and part like and equally divided and equally to be divided is all one and for that there is no other words to make an estate of Inheritance it shall be an estate for life and the remainder shall be directed according to the estates limited of the other Land And he seemed that the words in the last sentence all my aforesaid Children shall extend to Richard his eldest Son as well as to the others and so all the Will shall stand in his force which may be Objected that Richard the eldest Son shall be excluded out of the Possession and for that see 6. Eliz. Dyer 333. 29. Chapmans Case and also he cited one case to be adjudged Trinity 37. Eliz. Rot. 632. betweene Bedford and Vernam where a man deviseth all his lands in Alworth and afterwards purchaseth other Lands in the same Town and afterwards one comes to him to take a Lease of this Land newly purchased which the Testator refused to Let. And said that these Lands newly purchased should goe as his other Lands And upon his Death bed adds a Codycell to his Will but saith nothing of his purchased Lands and adjudged that the purchased Lands shall passe and so concluded and praied Judgement Harris Serjeant that it is a new Sentence and Richard is excluded and it shall be a good Estate tayl to the youngest Children and foresayd Children shall be intended them to which the Chauntery Lands are limited see Ratcliffes case 3. of Coke adjudged that they shall be Tenants in Common by the devise to he equally divided and thall not be surviving but every youngest Children shall have his part in tayl though that the first words do not containe words of Inheritance yet the last words in case all my Children die without Issue declares his intent that they should have an estate tayl see the 16. of Eliz. Dyer 339. 20. Claches Case that when he hath disposed of part devised to Richard then disposeth of the residue and the sentence begins with And so likewise and that shall be intended in the same manner as he had disposed of the Lands devised to Richard for he hath devised the remainder otherwise that is to an Hospitall and so concludes and praies Judgement accordingly Coke cheife Justice saith that it was adjudged between Coke and Petwiches 29. Eliz. that if a man devise a house to his eldest Son in tayl and another house to his second Son in tayl and the third house to the third Son in tayl and if any of them die without Issue the remainder to the other two equally this shall be but for life for this enures to the quantity of the Land and not to the quality of the Estate And he said that Richard is excepted without question for it is but a Will and every of the youngest Sons therein shall have the Chauntery Land one after another and Richard shall have no part and the Chauntery shall have nothing till they all are dead and he likened that to Frenchams Case where Lands were given to one and to his Heires Males and if he died without Issue the remainder over the Issues Females shall not take though that it be if they die without Issue for expresse it makes to cease only and so it was adjourned Petoes Case PEto suffers a common Recovery to the use of himselfe for life the remainder to his eldest Son in tayl with diverse remainders over to the intent that such Annuities should be paid as he by his last Will or by grant declares so that they did not exceed the summ of sixty pound and if any of the said Rents be behind then to the use of him to whom the Rent shall be behind till the Rent be satisfied with clause of distresse Rent of twenty pound was granted to his youngest Son for his life the grantee distraines for the Rent and in Replevin avowes the Plaintiffe replâ—es that by the non-paiment the use riseth to the youngest Son by which it was objected that the Rent shall be suspended Quere if without demand or if the distresse shall be demanded or that the use shall not rise till after the distresse and to the distresse well taken and agreed by all that the Plaintiff shall take nothing by
not to the age of the Daughter for the age of the Daughter shall be intended to be set down for the receit of her legacy of forty pounds and for no other purpose and the Defendant within the time in which the Rent demanded is supposed to be due had not determined his Will as appears by the Verdict but Fennor and W. said that by the Verdict that the Defendant entred by force of the lease and occupied the land at the time comprised in the Declaration and more and that the Tenant at will cannot determine his will within a little time before the year end for that would prove very mischeivous to the lessor that his Tenant at will should determine his will within the year and refuse to occupy the land twenty dayes before the year end and in 21 H. 7. Crooks Reports it appears that a Lessee at will cannot determine his will within the year to the prejudice of the Lessor but that he shall answer the whole Rent to the Lessor but note it appeared that the Lessee at will was expulsed by the Plaintif that was Lessor and no other thing although done by his agreement can determine the Lease against the Lessor for it is Covin if the Lessee be not privy and acquainted with it which was granted by the whole Court and all of them agreed in the Title against the Plaintif but as the Reporter affirmed Popham was absent and hearing the Case was of opinion that the Plaintif had an interest by the words of the will JEffry versus Guy Mich. 3. Jacobi An Action of Debt brought upon an Obligation with Condition that if Jeffry the Defendant perform all Covenants in such an Indenture that then c. and one Covenant was that he should permit Guy the Plaintiffe from time to time to come and see if the House Leased by Guy and K. his Wife were in repair the Case was thus J. Bill and K. his Wife were Tenants in Tail of a house and had Issue J. B. dies K. marries Guy the Plaintiffe and they two make a Lease by Indenture to Jeffry for twenty years yeelding and paying to them and their Heirs three pounds Rent by the year with the Covenant as aforesaid Jeffry pleads in Barr the former intail and the death of R. and that VV. the Issue in Tail such a day entred before which Entry the Condition was not broken Guy replies that William came with him upon the Land to see if reparations c. and traverses the Entry of William in manner and form prout c. and Issue joyned upon the traverse and found for the Plaintiffe and Judgement given in the common Pleas upon which Judgement Jeffry brought Writ of Error in the Kings Bench and Judgement affirmed there but it was assigned for Error the Jury had not assigned any breach of Covenant in Jeffry and so had showed no cause of action but the Court held he need not in this Case for by the speciall Issue tendred by Jeffry the Plaintiffe was inforced one speciall replication to that point tendred and the Plaintiffe could not proceed error and it is not like the Case of an arbitrement wherein Debt upon an Obligation to perform the award the Defendant pleads nullum fecer arbitrium then the Defenâ—… in his replication ought to set forth the award and assign his breach because the Defendants Plea is generall but if in such Case the Defendant should plead a release of all demands after the Arbi-Arbitrement by which he offers a special point in Issue there it suffices if the Plaintiff answers to the Release or other special matter alleadged by the Defendant without assigning any Breach so in this Case the special Plea of the Defendant had disabled the Plaintiff that he could not assign any Breach of Covenants but of necessity ought to answer to the special matter alleadged RAstell versus Draper Mich. 3. Jacobi An Action of Debt brought for nine and thirty pounds the Plaintiff declares that the first of May primo Iacobi sold to the Defendant twenty Northern Clothes for sixty pounds Flemish Money to be paid upon Request which sixty pounds Flemish Money amount to nine and thirty pounds English Money and that the Defendant though often requested had not paid the nine and thirty pounds to his Damages of c. The Defendant pleads Nil debet per patriam and found for the Plaintiff and moved in Arrest of Judgement that the Plaintiff should have demanded the summ according to the Contract which was for sixty pounds Flemish and to have shewed that it amounts to nine and thirty pounds English but the whole Court against it for the Debt ought to be demanded by a name known and the Judges are not skilled in Flemish Money and also when the Plaintiff hath his Judgement he could not have his Execution by that name for the Sheriff cannot tell how to levy the Money in Flemish and also it is made good by the Verdict for the Jury have found the Debt demanded to wit nine and thirty pounds But if the Contract had been for so many Ounces of Flemish Money or a Barr of Silver and Gold now it cannot be demanded by the name of twenty pounds or such a summ which is not Coin nor used in Trade or Merchandise but in such Case must have a Writ of Detinue and in that recover the thing or the value and so in the Book of Entries fol. 157. is the President where Debt was brought upon two severall Obligations and demands eight and twenty pounds and declares severally that by one Obligation he owed eight and twenty pounds of Flemish Money and 34 H. 6. 12. 9 E. 4. 46. But note in that Case the Plaintiff if he would might have declared in the Detinet and it had been good ROlles versus Osborn Mich. 3. Jac. The Plaintiff brought an Action of Debt against the Defendant upon a Bond of a thousand pounds and Serjeant Nichols moved the Court for the Defendant and shewed that the Plaintiff and Defendant were obliged each to other in a thousand pounds a peice that they should intermarry before such a Day and both their Obligations were forfeited and each of them sued the other and the Defendant prayed that common Bail might be accepted of her and she would accept of common Bail of the Plaintiff and the Court held it reasonable but said if they would marry both their Bonds might be saved BArneshurst versus Yelverton Hill 3. Jacobi The Plaintiff as Administrator of I. S. brought an Action of Debt against the Defendant upon a Bond and obtained a Judgement and afterwards the Administration is revoked yet notwithstanding the Plaintiff proceeded and took the Defendant in Execution and upon a Motion in the Court the Court held the Execution void and that the Defendant ought to be discharged because it issued out erroneously for the Letters of Administration being revoked the power of the Plaintiff is gone
forth divers payments by him made and amongst other payments shews that he had payed to M. Fawn named in the Condition sixty pounds for a Legacy due by the Will of the said Ed. A. the payment of which sixty pounds was disallowed by that Court and by the Order of the Chancery sixty five pounds paid for not allowing the first sixty pounds to Ed. A. the Son which sixty and five pounds the Defendant had not repaid though thereunto requested and so he was damnified to which Replication the Defendant demurrs and the opinion of the whole Court after a great Debate was against the Plaintiff for the Plaintiff in his Replication had alleadged two Causes to inforce his Damage the first was that the Plaintiff in his Answer in the Chancery had alleadged the payment of sixty pounds to M. F. for a Legacy due to her by the Will and that such Allegation was rejected by the Court of Chancery and neither of those matters are certainly alleadged but by way of Implication and not expresly for he ought to have shewn that a Legacy of sixty pounds was given to M. F. by the Will of E. A. for although the Will of E. A. is recited in the Condition in the Date against which Recitall the Defendant may not be admitted to say that he made no such Will yet the Legacy given to M. F. is not recited in the Condition if not in the General against which the Defendant may take a Traverse that Eáw. A. did not bequeath such a Legacy of sixty pounds and upon that a good Issue may be taken And secondly the Plaintiff sayes that the payment of the said sixty pounds was disallowed by the Court of Chancery and doth not appear in the Replication where the Chancery was at that time to wit whether at Westminster or at any other place and it is issuable and triable by a Jury whether any such Order of Chancery were made or not for the Orders there are but in Paper and are not upon Record to be tried by Record but by a Jury and the Plaintiff perceiving the opinion of the Court against him prayed that he might discontinue his Suit which was granted by the whole Court but Quaere of this it being after a Demurrer WEaver versus Clifford Pasch 44. Eliz. rotulo 453. The Plaintiff brought an Action of Debt upon an Escape against Clifford and declares that one A. was bound to the Plaintiff in one Recognisance of a hundred pounds to be paid at a Day at which Day A. made Default of Payment and the Plaintiff sued out two Scire fac and upon the second Scire fac a Nihil was returned and the Plaintiff had Judgement to recover and afterwards he sued out a Levari fac and a Nihil being returned the Plaintiff prosecuted a Capias ad satisfaciend by vertue of which Writ the Defendant being then Sheriff took the said A. and afterwards at D. in the County of S. permitted him to go at large to which the Declaration the Defendant demurred Damport for the Defendant and he shewed the cause of the Demurrer to be because a Capias upon the Recognisance did not lie and he divided the Case into two parts first whether a Capias would lie in the Case and secondly whether the Sheriff would take the Advantage of such a naughty Processe and as to the first it seemed to him that a Capias would not lie because it appeared by Herberts 5. Repub. fol. 12. And Garnons Case 5. Rep. fol. 88. that the Body of the Defendant was not liable to Execution for Debt by the Common Law but onely in Trespasse where a Fine was due to the King or that he was accountant to the King and the Plaintiff could have no other Processe but a Fieri facias within the year and if the year were passed then he might have a new Original in Debt But now by the Statute of Marlbrig cap. 23. And Westm. 2. cap. 11. a Capias is given in Account and by the 25 E. 3. c. 17. Capias is given in Debt and Detinue and by the 19 H. 7. c. 9. the like Processe is given in Case as in Debt and Trespasse and the 23 H. 8. c. 14. a Capias is given in a Writ of Annuity and Covenant but Statute gives a Capias in this Case and therefore it remaines as it was at Common and by that it would not lie which is also apparent by the Recognisance for that is that if the Debt shall be levied of the Goods and Chattels Lands and Tenements c. and doth not meddle with the Body and by an expresse Authority 13 14 Eliz. Dier 306. Puttenhams Case it is held that the Chancery hath no Authority to commit the Defendant to the Fleet upon a Recovery in a Scire facias upon a Recognisance because the Body is not liable And for the second point it seemed to him that the Sheriff should take Advantage of this which should be as void and as null whereof a stranger may take benefit and to prove this he took this Difference when a Processe will not lie and where it is disorderly awarded as if an Exigent be sued out before a Capias or an Execution before Judgement for if that Processe be originally supposed there the Processe is but erroneous in Druries Case 8. Rep. 142. 34 H. 6. 2. b. But if the Action it self will not maintain the Processe as a Capias in Formedon there that Processe is as void and null and he took another Diversity when the Capias is taken by the Award of the Court when Judgement is given that he shall recover for in that Case it shall remain good untill it be reversed because it is the Act of the Court and so is Druries Case to be intended but if the party himself take it it is at his own peril as here it is for the Plaintiff hath onely pleaded that he prosecuted c. which is as void to the party who sued it out and he shall have no benefit of it but the Sheriff shall not be punished for false Imprisonment because he is not to examine the illegality or validity of the Processe for the 11 H. 4. 36. If a Capias issue out without any Original and the party be taken the Sheriff shall not be punished and for these Reasons he prayed Judgement for the Defendant Noy was for the Plaintiff and he agreed that at the Common Law no Action did lie in this Case as it hath been said but he was of opinion that this Case is within 25 E. 3. cap. 17. for the intention and drift of the Statute was to give speedy remedy to recover Debts and the Action is all one in the eye of the Law as if it had been done by Original which in the equity of the Statute And a Capias lies upon a Recognisance against a Surety for the Peace and upon a Scire facias against the Bail in the Upper Bench. As to
Carr. The Tenant in Dower before the value inquired of and Damages found brought a Writ of Error and by the opinion of the whole Court a Writ of Error would not lie for the Judgement is not perfect untill the value be inquired upon The Demand in Dower was of the third part of two Messuages in three parts to be divided and the Judgement was to recover Seisin of the third part of the Tenements aforesaid with the Appurtenances to hold to him in severally by Meets and Bounds and adjudged naught because they are Tenants in common and the Judgement ought to be to hold to him together and in common but if it had been in three parts divided it had been good Actions in Ejectment ALlen versus Nash Hill 5. Jacobi rotulo 719. The Plaintiff brought an Ejectione firme and a special Verdict upon a Surrender of Copy-hold Land which was to the use of the second Son for Life after the Death of the Tenant and his Heirs and it was adjudged not to be good in a Surrender for though it be good in a Will yet Implication is not good in a Surrender and in Copy-hold Cases a Surrender to the use c. this no use but an Explanation how the Land shall go if the Lord grant the Land in other manner then I appoint it is void if there be found Joynt-tenants and one Surrender to the use of his Will it was a Breach of the Joinder and the Will good EYer versus Bannaster Trîn 16. Jacobi rotulo 719. The Plaintiff brought an Ejectione firme and declared upon a Lease made by Ed. Kynaston to which the Defendant pleads not guilty and the Plaintiff alleadges a Challenge that the Wife of the Sheriff is Cosin to the Plaintiff and desires a Venire facias to the Coroners and the Defendant denied it and so a Venire was made to the Sheriff and at the Assises the Defendant challenges the Array because the Pannell was arrayed by the Sheriff who married the Daughter of the Wife of the Lessor and note the first Challenge was made after the Issue joyned and at the Assises the Defendant challenged as above and a demurrer to it and Hutton held that a Challenge could not be after a challenge except it were for some cause that did arise after the challenge made and that the party ought to rely upon one cause of challenge though he had many causes observe the Defendant could not challenge the Array untill the Assises but Husband held that a Challenge might be upon a Challenge but this challenge was adjudged naught by all the Judges HIll versus Scale Trin. 16 Jacobi rotulo 5. 18. the Plaintiff brought an Ejectione firmae and declares upon a Demise made to the Plaintiff by J. C. bearing date the first of January anno 15. and sealed and delivered the twelfth of January following to hold from Christmasse then last past for two years the Jury found a speciall Verdict and found the Lease and a Letter of Atturney to execute the Lease in this manner that the Lessor was seised of the Land in Fee and being so seised he made signed and sealed an Indenture of a Demise of the said Tenements and found it in haec verba this Indenture c. and they further found that the Lessor the said fifth day of January did not deliver the said Indenture of Demise to the Plaintiff as his Deed but that the Lessor the said fifth day of January by his writing bearing Date the same Day gave full power and authority to one C. to enter into all the premises and to take possession thereof in the name of the Lessor and after possession so taken to deliver the said Indenture of Demise to the Plaintiff upon any part of the premises in the name of the Lessor and find the Letter of Atturney in haec verba To all c. whereas I the said J. C. by my Indenture of Lease bearing date with these Presents have demised granted and to Farm let c. for and during the Term of two years c. and they further find that the said C. such a day as Atturney to the Lessor by vertue of that writing did enter into the Tenements aforesaid and took possession thereof to the use of the Lessor and immediately after possession so taken the said C. did deliver the said Indenture of Demise upon the Tenements as the Lessors Deed to the Plaintiff to have c. and the doubt was because the Lessor in the Letter of Attorney and said that whereas he had demised and if it were a Demise then the Letter of Attorney was idle but notwithstanding the Court gave Judgement for the Plaintiff WEeks versus Mesey An Ejectione firmae brought against two and one of them was an estranger and was in the house and the principall would not appear and the other appeared and pleaded non informat and the Court was acquainted with the proceedings and the Plaintiff prayed an habere facias possessionem and the Court told the Plaintiff that by that Writ and recovery he could not remove him that had Right when a Lease is made to bring an Ejectment of Land in divers mens hands then they must enter into one of the parcells and leave one in that place and then must he go unto another and leave one there and so of the rest and then after he hath made the last Entry there he sealeth and delivereth the Lease and then those men that were left there must come out of the Land and this is a good executing of the Lease and Pasch the ninth of James the Court held that an Ejectment would not ly of Common pasture or of Sheep-gate BEamont versus Cook Trin. 13 Jacobi An exception taken in Ejectment because the Originall was teste the very same day that the Ejectment was made and adjudged good by the whole Court and one Goodhall brought an originall in Ejectment against Hill and three others and the Plaintiff counts against three of the Defendants and no simulcum against the fourth and this matter was moved in arrest of Judgement And the Judgement was stayed by the whole Court COronder versus Clerk Hill 10 Jacobi rotulo 3315. Action upon an Ejectment brought the Jury found it specially upon a Devise the words of the Will were to my right Heires Males and posterity of my name part and part like the question was who should have the Land and the Court held the Land must go to the Heire at the Common Law and not according to the words of the Will because they cannot consist with the grounds of Law a Will must be construed in all parts the brother cannot have it by the Devise because he is not Heir and the Daughters cannot for they are not Heirs and posterity and therefore neither of them could have it because they are not Heirs and posterity because they that take it must be Heir and posterity
31 H. 8. of Monasteries which gives the Houses dissolved to the King but in the same degree and qualitie as the Abbot had them And the Abbot was charged with the power given by himself and so was the King Which mark VVAnto versus Willingsby Pasch 5. Jacobi The Bishop of Exceter in the time of H. 8. by his Deed gives Land c. to Nicho Turner and by Bill his Cousin in consideration of service done by Turner and for other considerations him moving to them and the Heirs of their bodies and dyes They have Issue Jo. and William N. T. dies and Sybill marries Clap. and they alien the Land to Iohn in Fee Sybill and Iohn leavie a Fine to Walther in Fee of the Land And afterwards Sybill infeoffes William her younger Son who infeoffes Willinghby Io enters and leaseth to Walther and Willingby for the tryall of his title seals a Lease to ward who declares of so many Acres in Sutton Cofeild And the Jury upon a not guilty pleaded foundby the Verdict that the Bishop gave the Tenements aforesaid by his Deed the tenor of which Deed follows c. And by the Deed it appeared that the Lands did lye in Little Sutton within the Lordship of Sutton Cofeild And notwithstanding the Plaintiffe shall recover For first it was held not to be any Joynture within the Statute of 11 H. 7. for it is not any such gift as is intended by the Statute for the Bishop was not any Ancestor of the Husband and the Husband took nothing by that but it was a voluntary recompence given by the Bishop in reward of the service passed And the Statute intended a valuable confideration And also the Bishop might well intend it for the Advancement of the woman who appeared to be Cozen to the Bishop And Tanfeild held if the woman were a Doneâ— within the Statute of 11 H. 7 she could be but for a moyetie for the gift was before the marriage and then they took by moyeties And the Baron dying first the woman came not to any part by the husband but by the course of Law as survivour But quaere of this conceit for the other Judges did not allow it And secondly they held that the Fine of Io. the elder Son of Sybill levied to Walther destroyed the entry of Io. and of Walther For although in truth the Fine passed nothing but by conclusion yet Io. the Son and Walther his Conusee shall be estopped to claim any thing by way of forfeiture against that Fine on the womans part then any title accruing after the Fine For they shall not have any new right but Io the Son upon whom the Land was intayled is barred by the Fine Thirdly although upon view of the Deed made by the Bishop the Land which by the Declaration is layed to be in Sutton Cofeild by the Deed appears to be in Little Sutton yet this is helped by the Verdict by which it is found expresly that the Bishop gave the Lands within written and therefore being so precisely found the Deed is not materiall Which mark KNap versus Peir Iewelch Pasc 5. Jacobi An Ejectment brought for Lands in Wiccombe which were the Deans and Chapters of Chichester And in this case it was agreed by the whole Court that if it be a Corporation by prescription it is sufficient to name them by that name they are called And the Court held that if a man demands Rent upon the Land to avoid a Lease upon a condition the Demand ought to be made in the most open place upon the Land The Dean and Chapter of Chichester made a Lease to one Raunce the Lessee of the Defendant of Lands in Wiccombe rendring Rent payable at the Cathedrall Church of Chichester upon such a condition it was agreed by the whole Court that the Demand ought to be made in the Cathedrall Church of Chichester although it was of the Land Leased And the Demand ought to be made at the setting of the Sun the last instant of that day and when he made his Demand he ought to stand still and not walk up and down for the Law did not allow of walking Demands As Pipham said and he ought to make a formall demand And because those whom the Dean and Chapter did send to make the demand of Rent said bear witnesse we are come hither to demand and receive such Rent it was held by the Court that such a demand was not good And they held the demand ought to be made at that part of the Church where the greatest and most common going in is And in this case it was said by Popham that if a man make a Lease to one for yeers to commence at a day to come and then he lease to another for yeers rendring Rent upon a condition to commence presently And he enter And the first Lease commence and he enter the Rent and Condition reserved upon the second Lease is suspended A man leases for years rendring Rent after he leaseth to another to commence at a day to come and the first Lessee attorns the second shall not have the Rent reserved upon the first Lease by Popham but he doubted of it And Popham and Tanfeild held none contradicting that the Letter of Attorney made by the Dean and Chapter to demand their Rent was not good because the Letter of Attorney was to make a general demand on any part of the Land which the Dean and Chapter had leased And that ought to have been speciall onely for that Land And secondly it was to demand Rent of any person to whom they had made a Lease And the Letter of Attorney ought to be particular and not generall of any person TOmpson versus Collier Mich. 5. Jacobi The Plaintiffe declares upon a Lease of Ejectment made by Robinson and Stone of one Messuage and fourty Acres of Land in the Parish of Stone in the Countie of Stafford The Defendant imparled tryall another Terme and then pleads that within the Parish of Stone there were three Villages A. B. and C. And because the Plaintiffe hath not shewed in which of the Villages the Land he demanded Judgement of the Bill c. And the Plaintiffe demurred upon this Plea And adjudged for the Plaintiffe For first after an Imparlance the Defendant cannot plead in abatement of the Bill for he hath admitted of it to be good by his entring into defence and by his Imparlance And secondly the matter of his Plea is not good because the Defendant hath not shewed in which of the Villages the House and fourty Acres of Land did lye And that he ought to have done For where a man pleads in abatement he alwayes ought to give to the Plaintiffe a letter writ with mark And the whole Court held that this Plea was not in barr but that he should answer over And Williams Justice took this difference that when a man demurrs upon a Plea in abatement And when he
matter of form For if the Jury finde a prior grant of the Queen to the Plaintiffs Lessor although it be at another Court it is sufficient and so by consequence the day is not materiall in substance which mark But Williams Justice and the rest held the traverse to be naught for by that the Jury should be bound to finde the Copy such a day by such a Steward which ought not to be and that it was matter of substance not helped by the Statute of 18 Eliz. DArby versus Bois Hill 5. Jacobi An Ejectment brought for an House in London and upon not guilty pleaded The Jury found a speciall Verdict And the case was Tenant in tail of divers Messuages in London 7 January 44 Eliz bargains and sels the said Houses to J. S. and delivers the Deed from off the Land the 8. of January the same yeer Indentures of Covenants were made to the intent to have a perfect recovery suffered of those houses and the ninth of January after a Writ of right is sued in London for those Messuages returnable at a day to come And the tenth of January the same yeer the Tenant in tail makes livery and seisin to J. S. of one of those Houses in the name of all And the other Messuages were in Lease for yeers and the Lessees did not atturn And the question was if the Messuages passed by the bargain and sale or by the livery And it was adjudged that they passed by the bargain and sale And Yelverton took a difference between severall Conveyances both of them Executory and where one of them is executed presently as in Sir Rowland Heywoods Case where divers Lands were given granted leased bargained and sold to divers for yeers the Lessees were at election whether they would take by the bargain and sale upon the Statute of 27 H 8. or by the demise at the Common Law But otherwise it is if one be executed at first for then the other comes too late as it is in this Case for by the very delivery of the bargains and sale the Land by the custome of London passes without inrollment for London is excepted and this custome was found by the Verdict And therefore it being executed and the Conveyance being made perfect by the delivery of the Deed without any other circumstances the livery of sesin comes too late for it is made to him that had the Inheritance of the Messuage at that time And the possession executed hinders the possession executory for if a bargain and sale be made of Land and before inrollment the bargain takes a deed of the said Land this hinders the inrollment because the taking of the livery did destroy the use which passed by the bargain and sale which was granted by the Court. And another reason was given because it appeared that the intent of the parties was to have the Land passe by the bargain and sale because it was to make a perfect Tenant to the Precipe as appears by the subsequent acts as the Indentures Covenant and the bringing the Writ of Right c. All which will be made frustrate if the livery of seisin shall be effectuall and when an Act is indifferent it shall be taken most neer to the parties intents that may be if a man hath a Mannor to which an advowson is appendant and makes a Deed of the Mannor with the appurtenances And delivers the Deed but doth not make livery of seisin yet now although the Deed in it self was sufficient to passe the Advowson yet because the party did not intend to passe it in Posse but as appurtenant if the Mannor will not passe no more shall the Advowson passe alone as it was agreed 14 Eliz in Andrews Case Which mark And the whole Court gave Judgment accordingly that the Defendant who claimed under the bargain sale should enjoy the Land CHalloner versus Thomas Mich. 6. Jacobi A Writ of Error was brought upon a Judgement given in Ejectment in the Courâ— of Carmarthen and Yelverton assigned the Error because the Ejectment was brought de aquae cursu called Lothar in L. and declares upon a Lease made by D. de quidam rivulo aquae cursu And by the opinion of the whole Court the Judgement was reversed for rivulut seâ— aque cursus lye not in demand nor doth a precipe lye of it nor can livery and seisin be made of it for it cannot be given in possession but as it appears by 12 H. 7. 4. the Action ought to be of so many Acres of Land covered with water but an Ejectment will well lye by if a stang for a precipe lies of them and a woman shall be indowed of the third part of them as it is 11. E. 3. But if the Land under the water or River do not pertain to the Plaintiffe but the River onely then upon a disturbance his remedy is onely by Action upon the Case upon any diversion of it and not otherwise Which observe VVIlson versus Woddell Mich. 6. Jacobi The Grand-father of the Plaintiffe in an Ejectment being a Copy holder in fee made a surrender thereof to L Woddell in fee who surrendred it to the use of Margery I. for life who is admitted c. But L Woddell himself never was admitted The Grandfather and Father dye the Son who is Plaintiffe was admitted and enters upon the Land Margery being then in possession and the Defendant then living with her as a servant in those Tenements and this was the speciall verdict And Judgment was given for the Plaintiffe And the Court was of an opinion that the Defendant was found to be a sufficient Trespassor and Ejector though he be but a Servant to the pretended owner of the Land because the Verdict found that the Defendant did there dwell with Margery And in such case he had the true title and had made his entry might well bring his Action against Master or Servant at his election And perhaps the Master might withdraw himself that he could not be arrested And secondly it was adjudged that the surrender of J. S. of a Copy-hold is not of any effect untill J. S. be admitted Tenant And if I. S. before admittance surrender to a stranger who is admitted that that admittance is nothing worth to the estranger For J. S. had nothing himself and so he would passe nothing and the Admittance of his grantee shall not by implication be taken to be the admittance of himself for the admittance ought to be of a Tenant certainly known to the Steward and entred in a Roll by him and it was held that the right and possession remained still in him that made the surrender and that is descended to his Heir who was the Plaintiffe And they took a difference between an Heir to whom the Copy descended for he may surrender before admittance and it shall be good because he is by course of the Law foe the custome that makes him Heir
first had the Free hold granted to him by the Lord of the Mannor And then he leavied a Fine and five years passe whether he in the Remainder be Barred or no those whose estates are turned to rights either present or future are meant by the Statute to be barred of a Copy-hold for years be put out of possession and a Fine Leavied and no entry by him he is barred by the Statute by the Bargain and Sale he in the Remainder is not put out of possession if a man make a Lease to begin at Easter next and before Easter a Fine is leavied and five years passe this Fine will not barr because at the Leavying of the Fine he could not enter for then his right was future if the Lease had been in possession and the Lessee had never entered he had been barred A Lease for years Remainder for years if the first man taketh for life the first estate is not so determined but that the Remainder standeth if a Copy-hold surrender for life there passeth no more from him then so much as maketh the estate and no more and the rest remaineth in him CRantley versus Kingswel Pacsb 15 Jacobi rotulo 710. The Defendant makes cognisance as Bailiff of Kingswell his Father for Rent service due to his Father at such a Feast And shews that Cramley holds of him by fealty and rent paiable at such a Feast and for Rent due at such a Feast made Cognisance the Plaintiffe in Barr saies that he at the said Feast offered the Rent upon the Land and that no body was there to receive it And the Plaintiffe saith that afterwards he demanded the Rent upon the Land and the Plaintffe made a Replevin pretending the Lord should make a personall demand but the whole Court was against him And Warburton took acception against the pleading the Tender because he saith that he offered the Rent to pay when as he was not present And the question was whether the Lord for a Rent service did not demand it at that day whether he can distrain without a demand of the person and held he might for the Tenant is yet bound to tender and the Land is debter and the Lord may resort thither when he pleases to demand the Rent upon the Land but if he tender his Homage and the Lord refuses it he cannot distrain without a demand of the Person and Judgment for the Defendant STokes versus Winter Trin. 15. Jacobi rotulo 2242. In Replevin the Defendant makes cognisance as Bayliff to Tenant for life to whom the Annuity was granted for life to begin by will after the death of the devisor And alledges the death of the devisor but not the day of the death after whose death the said H. was seised of the yeerly rent aforesaid in his demesn as of his Free-hold for terme of his life by vertue of the devise aforesaid And because seven pounds of the Rent aforesaid for one yeer ended at the Feast c. and by the space of 14. dayes then next following were behinde to the said T. the said time with c. the said T. as Bayliffe of the said H. doth make cognisance of the taking of the cattell aforesaid in the said place in which c. for the said 7 li. for the yeerly Rent aforesaid being so behind c. and issue was taken whether the said I. at the time of his death was seised of the said six Acres of Land in his demesne as of Fee as c. And after tryall exception was taken to the Advowry because it was not alledged that the annuity at such a Feast after the death of the devisor was behinde but it was over-ruled because there is so much expressed and Judgment given for the Defendant HVmfrey versus Powell Trin. 12. Jacobi rotulo 2791. Replevin wherein the Defendant avows for one Annuity granted to the Defendant to whom the office of Catorship of the Church of Roffen in Kent was granted by the Dâ—an and Chapter of that Church for life with an Annuity of 6. pounds for the exercising of that Office with a clause of distresse by vertue of which grant he was possessed and avowes for the Annuity and avers that it was an ancient Office pertaining to the Dean and Chapter of Roffen and doth not aver that the Annuity was an ancient Annuity The Defendant pleads the Statute of the 13 Eliz that all Devises Donations Grants c. made by any Master and Fellows of any Colledge Dean and Chapter c. other then for the terme of twenty and one yeers or three lives from the time of this Devise c. should be totally void And shews that the old Dean died and another was elected And a Demurrer thereupon And Judgement that the Grant was void HYen versus Gerrard Mich. 13. Jacobi rotulo 752. The Defendant in Replevin avows that one being seised in Fee made a Lease to him and avows for Damage feasant The Plaintiffe in Barr pleads and maintains his Declaration and traverses the Lease upon the Avowant demurrs and adjudged a goodtraverse IEnyx versus Applefourth Trin. 17. Eliz rotulo 543. The Defendant avows for a Rent charge the Plaintiffe in Barr pleads that the Defendant had presented a Writ of Annuity And that he had an Imparlance thereunto And demands Judgement if the Defendant did well make cognisance to the taking of the cattell in the said place in which c. in name of a distresse for the rent aforesaid by vertue of the said writing as Bayliffe of the said R. the said Writ of Annuity being prosecuted c. upon the said writing in form aforesaid c. And a Demurrer thereupon and Judgement by the whole Court for the Plaintiffe it is not needfull to lay a prescription to distrain for an Amerciament in a Court Leet but it is otherwise for an Amerciament in a Court Baron by the whole Court DArcy versus Langton The Defendant avows for a Rent charge and for a Nomine penae and no mention made in the Avowry of the Rent charge and the Plaintiffe was non-suit and afterwards in Arrest of Judgement this matter was alledged and at first held to be a good exception but afterwards Judgement was entred an Advowry is in the nature of a Declaration if that be vitious no Judgement can be given for the Advowant TRin. 9. Jacobi Regis rotulo 2033. Replevin for the taking of Cattell at Andover in a certain place there called R The Defendant makes cognisance for damage feasant the Plaintiffe saies that he was seised of the Messuage c. in C. in the Parish of A to which he claimed Common of Pasture And issue taken upon the prescription and a Venire Facias of A. and exception taken because it was not tryed of C. and A. or of the Parish of A. but it was adjudged to be good TRinbone versus Smith Trin. 12. Jacobi rotulo 626. In Replevin foure and twenty were returned upon the
GOodwin against Welsh and Over Pasch 7. Jacobi The Plaintiff brought an Action of Trespass for severall things against the two Defendants and declares to his damage c. The Attorney for the Defendants pleads non sum informat and thereupon Judgment was given severally for the Plaintiff and Writs to inquire of the damages issued out and were returned and it was moved that the Writs should not be filed because the Plaintiff at the time of the inquiry did not prove that the goods did appertain to him but only proved the value of the goods for Serjeant Nichols took a difference between an Action confessed and non sum informat for in the first case the property of the goods is also confessed to be in the Plaintiff but it is not so in the other case for here Judgment passes without the privity of the Defendant and only for want of pleading as in the case of a nil dicit but by the whole Court it was all one And the Plaintiff is not bound to prove the property in any of the Cases and the reason is because the Writ commands only the value to be inquired of and no more and that only is the charge of the Jury And the whole Court were of opinion that they themselves as Judges if they would in such Case might assesse Damages without any Writ if they would trouble themselves for the Writ goes onely because it is known what Damages are but it is otherwise when not guilty is pleaded for then the Trespasse is denyed which must be proved and tryed by the Jury and there both the value and property come in proof and observe the Judgement is that he should recover and if upon a Writ of inquiry he should be bound to prove the property and fail thereof it would be in destruction of the first Judgement which cannot b. observe this TAilor against Markham Trin. 7 Jacobi An Action of Trespass and Battery brought for c. The Defendant pleads that he at the time of c. was seised of the Rectory of c. where the Battery was supposed in Fee and that at the time in which c. Corn was severed from the nine parts at the place aforesaid and because the Plaintiff came to carry away his corn and the Defendant stood there in defence of his corn and keeping the Plaintiff from taking it away and the hurt that the Plaintiff had was of his own wrong c. the Plaintiff replies that it was of his own wrong with the such cause alledge c. and the Defendant demurred in Law and adjudged for the Plaintiff for that generall replication is good and doth not behove the Plaintiff to answer the Defendants Title because the Plaintiff by his Action doth not claim any thing in the Soil or corn but only damage for the Battery which is altogether collaterall to the Title but when the Plaintiff makes a Title by his Declaration to any thing and the Defendant shall plead another thing in destruction thereof or if the cause of Action in such Cases the Plaintiff must reply specially and not say without such cause as it is in 14 H. 4. Trespasse brought for taking a servant the Defendant shews that the Father of him that the Plaintiff supposes to be the servant held of him in Knights Service c. and died seised his Heire the Servant being within age by reason whereof he seised as his Ward as it was lawfull for him to do and there the Plaintiff replied that he did it of his own wrong and without such cause and disallowed by the Court because he did not answer to the Seigniory to wit that he did that of his own wrong without it that the Father of him that is supposed to be the Servant held of him in Chivalry and the reason was because the plaintiff by his Action made Title to the Servant according to 16 E. 4. and Judgement given accordingly ALlbon against Dremsall Mich. 7 Jacobi The plaintiff declares in an Action of Trespasse that the Defendint the twentieth day of February 5 Jac. did break the plaintiffs Close at c. called Sandy Heath and entered it and spoiled his grasse and kiiled took and carried away a hundred Conies and also that the Defendant the same day the free Warren of the plaintiff at Sandy aforesaid did enter and chase without license and killed fifty Conies and took carried them away to his damage of c. the Defendant to the whole Trespasse except the entring and breaking of the Close called Sandy Heath not guilty and in Issue joyned upon that and as to the breaking the Close the plaintiff ought not to have his Action for he said that William Lord Russell and Elizabeth his Wife were and yet are seised in Fee in the Right of his Wife in a certain peice of Heath containing ten acres in Sandy close adjoining on every side separated from the place called Sandy Heath that they and all those whose Estate they have in part in that peice of Heath have used to have for themselves and Farmers of the said peice of Heath and for their Servants a passage unto the said peice of Heath and from the said peice in by and through the said Close called Sandy Heath in which c. the whole year at their pleasure to take and receive the profits of the said peice of Heath and the Defendant further sayes that long before the Trespass supposed to be committed very many Conies were wandering in the said peice of Heath and divers Cony holes were there made in which the said Conies did delight to live in and at the time in which c. they were in the said peice of Heath eating the grasse growing there and the Defendant as Servant to the Lord Russell and by his command the time in which c. in by and through the said Close in which c. towards and unto the said peice of Heath did walk over to hunt and take the said Conies in the said peice of Heath then being and feeding as it was lawfull for him to do which walking in by and through the said Close in which c. for the cause aforesaid is the same breaking the Close and entring thereof whereof the Plaintiff complains and averres that the place by which the Defendant walked for the cause aforesaid to Sandy Heath in which c. was the next passage by which he could go to the said peice of Heath to which the Plaintiff demurres and adjudged for the Plaintiff for a passage is properly a passage over the water and not over Land and the Defendant ought to have prescribed for the way and not for the passage for he ought to have observed the usuall words and such as are known in the Law for a prescription and usage is for a way and not for a passage and see 32 Assis 58. and 11 H. 4. 82. b. Secondly the prescription is not good
his house which he could not do for the entring is one act done and ended at the going out again And therefore if he re-enter it is a new Trespass and the continuando is only alledged for the aggravation of damages 2 R. 3. 15. 10. E. 3. 10. 16. E. 3. 24. That a continuando cannot be for breaking the House but Doddridge and Haughton Justices the rest being silent were of opinion that it might be alledged that a continuando for although it might be that if hee went forth and re-entred it should be a new Trespass but if upon his first Entry he continued divers dayes it might be alledged with a continuando And see for that Mich. 38. El. in the Common Pleas fol. 118. If a Disseisee re-enter he shall have an Action of Trespass against the Disseisor with a continuando And so is Fitzherberts Nabrevium 91. L. that a continuando may be laid as well for breaking a House as eating the Grass and so is 10. E. 3. 10. and 20. H. 7. 30. by the opinion of Gapley GEush against Mynne Pach. 11. Jacobi An Action of Trespass brought wherefore by Force and Armes the Close of the Plaintiff did break c. The Defendant justified by reason there was a report that a Vermine called a Badger was found there to the great damage of the Inhabitants by reason whereof he uncoupled his Beagles in the place where c. and hunted there and found the Badger and pursued him untill he Earthed in the place where c. by reason whereof he digged the ground and took the Badger and killed him and afterwards hee stopped up the Earth again which is the same Trespass and demands Judgment whereupon the Plaintiff demurs And upon reading the Record Scamber of the Inner Temple was for the Demurrer and that the Defendant could not justifie as this case was And first he was of opinion that the Common Law warrants hunting such noysome Beasts although it be in the Lands of another because it is good and profitable to the Common-wealth that such hurtfull Beasts should be extirpated according to the 8. E. 4. 15. And Fishermen may justifie their Nets upon anothers Land 13. H. 8. 16. 22. H. 6. 49. A man may justifie entring into a house to serve a Subpaena 3. H. 6. 336. A man may justifie the entring into anothers Land with the Sheriff to help him to distrain but otherwise it is for things of pleasure as 38. E. 3. 10. B. You cannot justifie the Entry when your Hawk hath killed a Pheasant in anothers Land and so for hunting of Hares or Conies in the Free-hold of another but although the Law allows and permits such Entries as aforesaid yet the Law requires that such things shall be done in an ordinary and usuall manner as 12. H. 8. 2. A Commoner cannot digge the Land to make Trenches although it be for the benefit of another and this is confirmed and explained by the Statute of 8. Eliz. cap. 15. For although that Statute gives reward for the killing of Vermins yet the Statute further saies that it must be with consent and with reasonable Engines and Devices 2. R. 2. Barr. 237. Grant of Fish in the Pond one cannot dig the Land and make a Sluce but must take with them Nets And so if a man grant to me all his Trees in such a place I I cannot grub up the roots out of the earth if there be any other way to take them but if there be no other way then it is otherwise as 9 Ed. 4. 35. a. A grant to put a Pipe in my Land and afterward it is stopped I may dig to mend it by the opinion of the Court and therefore there being an Ordinary course to wit hunting to kill the Badger the digging for that is unlawfull and the Action will well ly Mich. 36. and 37 Eliz. 60. Nicholas Case expressely for a Fox and Fenner held it was not lawfull to break a Hedge in the pursuit MIles against Jones Pasch 11 Jac. Miles brought an Action of Trespasse against Jones wherefore by force and Arms his goods c. The Defendant pleads that the Plaintiff 5 Jacobi acknowledged a Recognisance of 100. l. at Mich. at which day he did not pay it and that two years after the Recognisance was extended upon his goods because the monies were not satisfied at the day nor at any time after the Plaintiff replies that they were paid in the sixth year of James and desires this that it may be inquired onely by the Countrey and the Defendant likewise and upon the Triall it was found for the Plaintiff and it was new moved in arrest of Judgement by Goldsmith that there was no Issue joyned for an Issue ought to be joyned upon a thing alledged by the party DOyly against White and Webb Trin. 11 Jacobi Doyly brought an Action of Assault Battery and imprisonment of his wife against White and Webb The Defendant pleads a speciall Justification to wit that in November 2 Jacobi an Action of Trespass was brought in the Common pleas by one A. against Julian Goddard and upon the generall Issue it was found for J. G. and Judgement given for her and afterwards and before Execution J. G. takes to Husband the now plaintiff and afterwards brings a Writ of Error in the Kings Bench and upon a Scire Facias against the said Julian the Judgement in the Common pleas was reversed and costs given to A. the plaintif in the Writ of Error and aftewards a Capias ad satisfaciend was directed to the now Defendants to take the said I. G. by Force of which the said Defendants took the woman of the now plaintif with an averment that the said I. G. and the Wife of the now Plaintif were one and the same person and the plaintif demurres upon this plea and Yelverton moved that this justification was not good for divers causes first when the Sherif is to execute a process he is to do it duly and upon the right person at his perill and for that see 11 H. 4. 90. b. If the Sherif take the goods of another in Execution he is a trespassor 5 E. 4. 50. a. If a Capias be to take I. S. and there be two of the same name he ought to look to take the right man at his perill and as he ought to take notice so he must pursue his authority and for this see 10. E. 4. 12. b. if a Capias issue out against I. S. the Son of A. and he take I. S. the Son of B. false imprisonment lies against him and in a Case when his Warrant is against I. G. there is no such J. G. for by her marriage with the Plaintiff she had another name and he is therefore a Trespassor for the taking of J. Doyly and his averment cannot help him because it agrees not with his Warrant and so cannot be intended to be the same person but if the variance was
Disseisin and Doddridge sayd It would be mischeivous if it should Hill 6. Iac. In the Common Pleas that if in the Common Barre in Trespass the place in the Common Barre is alledged to be Blackacre the Plaintiff may plead that it is his Free-hold and then it was held by the whole Court that an abuttall of one side is sufficient without alledging it of every side SWaine against Becket An Action of Trespass brought for cutting down of Trees And upon a speciall verdict the question was that whereas there is a Mannor wherein are Copi-holders for life which have used to lopp Trees growing upon the Copy-holds for their necessary fire and repairing of their customary Tenements the Lord of the Mannor maketh a Lease of the Mannor for yeares excepting the Trees the Lessee of the Mannor granteth a copy for life the Copy-holder loppeth the Trees growing on his Copy-hold whether by law he might do it or no was the doubt of the Jury And it was held by all the Court that the Copy-holder might lopp the Trees because he is in by the custome which is above the Lords Estate after he is admitted and that the copy-hold doth not depend upon the Lords interest And that the Trees excepted and the Soil remained parcell of the Mannor because the Lease was but for years but if the Lease had been for life it had been otherwise because it had been severed from the Mannor And whereas it was objected that the Tenant should not be in a better condition then his Author it was answered that a Lord of a Mannor at will may grant a copy for life or in fee and it is good If the Lord cut down all the Trees so that the Copy-holder can have no lopping he may have his Action upon the Case against the Lord as it was adjudged in Gosnolds case If the Lord sell away his waste and the Copy-holder dye and the Lord grant a new copy he shall have his Common If the Lord sell away the Trees so that the Copy-holder cannot have Estovers because the Bargainee felleth down the Trees the Copy-holder shall have his Action against the Bargainee Common and lopping are incident to the copy-hold Judgment for the Defendant HArris against Ap-John An Action of Trespasse brought the Defendant pleads not guilty and verdict found for the Plaintif And in Arrest of Judgment it was alledged that the venire facias was de placito debiti and so also was the habeas corpus and it should have been de placito transgressionis And it was amended by the whole Court MYnwinnock against Bligh Trin. 16. Jacob. rotulo 1697. An action of Trespasse brought for breaking the Plaintiffs Close done Septemb. in the 13. year of King James The Defendant pleads as to part of the Trespasse in award and that the Defendant submits himself to the award the 15. yeare and that the Arbitrators in the 13. yeare which was before the submission made the Award and traverses that he was guilty of the Trespasse after the award made And the Plaintiff replies that the Arbitrators the said day in the 13. year made not any award c. And after Tryall exception was taken that the issue was ill joyned being of a thing that was void yet notwithstanding Judgment was given for the Plaintiff and they resembled to a payment upon a single Bond and conditions performed at a Feast not contained in an Obligation Trin. 15. Jac. rotulo 3044. An Action of Trespass brought wherfore by force and armes his Goods and Chattels to wit a thousand posts and forty railes took and caryed away and damages given intire and after a verdict exception taken because Rales was pretended to be no Latine word nor to have any exception but Judgment was given for the Plaintiff DVncomb against Randoll Hil. 9. Jac. rotulo 2267. Three issues in Trespasse One issue was upon a prescription to wit that they had accustomed to have for himselfe his Farme and Tenants of the same Mannor common of pasture in the said c. for all his Sheep which are levant and couchant in and upon the Demesne Lands of W. which lye and are in A. aforesaid every yeare And exception was taken for the uncertainty because it did not appear that those were demesne Lands which lye in A. for it was ill pleaded and ought to be averred but notwithstanding it was held good after a tryal and Judgment was given for the Plaintiff and in this case an exception was taken to the venire facias because it was of A. and of the Mannor of C. and because it was made in this manner to wit de visu de A. and de visu manerij de C. but it was disallowed because against the form used in the Common Pleas. DOwnes against Skrymsher Trin. 9. Iac. rotulo 334. An Action of Assault and Battery brought and there was a Demurrer upon the Evidence And the case was that the Defendant the day specified in the Declaration said that the Plaintiff assaulted the Defenant and in defence of himselfe justifies the beating the Plaintiff replies that he did it of his own wrong without any such cause and in the Evidence the Defendant maintained that the Plaintiff beate him the day mentioned in the Declaration and in the same place And the Plaintiff perceiving that gave in evidence that the Battery was made another day and place to wit c. which was the cause of the speciall verdict for if there be two Batteries made between the Plaintiff and Defendant at divers times the Plaintiff is bound to prove the Battery made the same day in his Declaration and shall not be admitted to give another day in evidence by the opinion of the whole Court HEydon against Mich. 8. Jac. rotulo 839. An Action of Battery brought against three two of them pleaded not guilty and Judgment by non sum informat against the third and the two were found guilty for all And the Jury gave damages severally against one a 100 l. and against the other a 100 s. and what Judgement should be given was the question and at first the Court was of opinion that the Plaintiff should not have Judgment at all for where the Defendants are found guilty of all the Trespass in this case the damages shall be intire but if one shall be found guilty of part or at another time in this case the damages shall be severall otherwise not And they thought a Venire de novo ought to issue out because the Jury had mis-behaved themselves in severing the damages but afterwards it was resolved that the damages that were given by the first Jury to wit one 100 l. should be recovered against all the Defendants in that Writ named and that in Trespass the first Jury taxes the damages for the whole Trespass and that shall bind all the Defendants and therefore execution was given against all the Defendants for the hundred pounds Trin. 9. Jam. rotulo 1835.
a Fee simple conditionall and not an Estate tayl and he said that the sole question was if the Statute of Westminster 2. conevrted and changed Fee simple conditionall of copy-hold into an Estate tayl for if it be not an Estate tayl within this Statute it shall not be an Estate tayl at all for Littleton saith before the making of the said Statute these Estates were Fee simple conditionall and for that cannot be by prescription also he said that copy-hold Estate was so base an Estate that at the Common Law a copy holder had no remedy but only in the Court of the Lord But as to Littleton who sayth that he may have a Formedon in discender to that he saith that the Heire which hath Fee simple conditionall may have it by the Common Law for this was at the Common Law before the making of that Statute of Westminster 2. As it appears by 4. Ed. 2. Formedon 50. 10. Ed. 2. Formedon 55. And by Bendlowes in the Lord Barkleys case in the Commentaries 239. b. by Benlose where it is said by him that a Formedon in discender was not at the Common Law but in a speciall case where an Assise of Mortdancester would not serve the Issue that is if a man had Issue a Sonn and his Wife died and after that he takes another Wife and Land was given to him and to his second Wife and to the Heires of their two Bodyes begoten and they have another Sonn and the Wife dies and after the Father dies and a stranger abates there he sayth that before the Statute the youngest Soon could not have an Assise of Mortdancester and for that he shall have a Formedon in discender which was no other but a writ founded upon his Case see 10 of Ed. 2. Formedon 55. And for that when Littleton speakes of an Estate tayl of copy-hold that ought to be understood of Fee taile which may be Fee simple conditionall and so Littleton may be reconciled 〈◊〉 will well agree with himself also it seems that Copy-hold is ouâ—â—f the intent and meaning of the Statute of Westminster 2. For at the common Law in ancient times this was base Estate and not more in reputation then villinage and also if such an Estate then might be created of that which shall be perpetuall and no means to barr it for surrender of that doth not make any discontinuance and Recovery was not known till 12. Ed. 4. and he saith that in ancient time the name of Copy-holder was not well known for in ancient time they were called Tenants in Villinage and Tenants by copy is but a new terme see Fitzherberts Natura Brevium 12. b. and the old Tenures fol. 2. and Bracton lib. 2. charter 8. In gifts made to servants calleth them Villaines and Sokemen and in the old Tenures it is said that the Lords may expell them and upon this he inferred that if it be so baseâ— Tenure though it be of Lands and Tenements yet they shall not be intended to be within the intent of the makers of the Statute of Westminster 2. and also by a second reason that is that it was not the intent of the makers of the Statute that this should extend to any Lands but only to those which are free Lands for the parties are called Donees and Feoffees and the will of the Giver should be observed according to the forme in the Charter of his gift manifestly expressed by which it appears that it ought to be of such Land of which a gift may be made and also the Statute provides that if the Donee levy a fine that in right it should be nothing by which also it appears as to him it seemed that it ought to be of such Land of which a fine may be levied And also for a third reason which was the great Inconvenience which would ensue upon it for then the Donees have no meanes to dispose of that nor give that for the advancement of his Wife nor her Issues and also the Lord shall loose his signiory for the Donee shall hold of him in Reversion and not of the Lord and it is resolved in Heydens Case 3 Coke 8. a. That when an act of Parliament alters the service Tenure Interest of the Land or other thing in prejudice of the Lord or of the custome of the Mannor or in prejudice of the Tenant there the generall words of such act shall not extend to Copy-holders see the opinion of Manwaod cheife Baron there and he agreed that admitting it shall be an Estate taile that then Surrender shall not make discontinuance and so he concluded and prayed Judgment for the Plaintiffe his Clyent see Hill and Vpchars Case which was adjudged in the Kings Bench and the principall case was adjourned untill the first Saturday of the next Tearme See Hillari 7. Jacobi in this Book in Replevin the Plaintiff was non-suited between the same parties See also Pasche 9. Jacobi 149. Hillary 1610. 8. Jacobi in the Common Bench. Wallop against the Bishop of Exeter and Murray Clark IN a Quare impedit the case was Doctor Playford being Chaplaine of the King accepted a Benefice of presentation of a common person and after he accepted another of presentation of the King without any dispension both being above the value of eight pound per annum if the first Benefice was void by the Statute of 21 H. 8. chapter 13. or not was the question for if that were void by the acceptance of the second Benefice without dispensation then this remaines a long time voide so that the King was intituled to present by Laps and presented the Plaintiff the Statute of 21 H. 8. provides that he which is Chaplain to an Earle Bishop c. may purchase license or dispensation to receive have and keep two Benefices with cure provided that it shall be lawfull to the Kings Chaplaines to whom it shall please the King to give any benefices or promotions spirituall to what number soever it be to accept and receive the same without incurring the danger penalty and forfeiture in this Statute comprised upon which the question was if by this last Proviso Chaplaine of the King having a Benefice with cure above the value of eight pound per annum of the presentation of a common person might accept another Benefice with cure over the value of eight pound also of the presentation of the King without dispensation the words of the Statute by which the first Church is made void are and be it enacted that if any parson or parsons having one Benefice withcure of Soules being of the yearly value of eight pound or above accept and take any other with cure of Soules and be instituted and inducted in possession of the same that then and immediately after such possession had thereof the first Benefice shall be adjudged in the law to be void See Hollands case 4. Cooke 75. a. This case was not argued but the point only opened by Dodridge Serjeant
But in this case before Attornement the Grantee hath nothing and after Attornement the particuler Estate being granted it shall be drownd in the reversion Harris Serjeant the words of the devise are that his Feoffees and all other Persons which after his Death shall be seised shall be seised to the same uses before declared and of one Acre he hath not any Feoffees for of that the Feoffment was voyd and yet it was agreed that the devise was good as Lyngies Case was in 35. H. 8 cited by Anderson in Welden and Elkintons Case Commentaries 523 b. And he argued that though that when a conveyance may enure in severall courses yet it cannot enure for part in one course and part in another course and for that this devise enures as a devise of Land for one Acre and declaration of the use of the Feoffment foâ—…her Acre for it is agreed in Sir Rowland Haywards Case 2. 〈…〉 a. 6. Coke 18. a. Sir Edward Cleeres Case and also in this 〈◊〉 the devisor hath made expresse declaration that the Land shall passe by the Feoffment and that the Will shall be but a declaration of the use of the Feoffment and for that nothing shall passe by the devise with which the Justices seemed to accord and cited a case to be adjudged in the Kings Bench 40. Eliz. where the Father gives and grants Lands to his Son his heires with warranty and makes a Letter of Attorney within the deed to make Livery and adjudged that that shall not enure as a Covenant to raise a use for that that it appeares by the Letter of Attorney that his intent was that that should enure as a Feoffment and not as any other manner of conveyance see 14 Eliz. Dyer 311. 83. Master Cromwells Case and so it was adjudged accordingly Hillary 8. Jacobi 1610. in the Common Bench Gargrave against Gargrave Katherine Gargrave was Plaintiff in a Replevin against Sir Richard Gargrave Knight and the case was this The Father of Sir Richard Gargrave was seised of divers Tenements called Lyngell Hall in Lyngell Hall and of a Moore called Kingstey Moore in another Town and the Tenants of the said Father of Sir Richard have used to have Common in the said Moore and the said Father so being of that seised demised the said Tenements to the said Katherine Gargrave for her Joynture by these words by the name of Hingell Hall and certaine Land Meadow and Pasture in certainty and with all â—ands Tenements and Hereditaments to that belonging or with that occupied and enjoyed now or late in the Tenure of one Nevill and Nevill was Tenant of the said premises and had Common in Kingsley Moore upon which the question was if the said Katherine by this demise shal have Common in the said Moore or not And Hutton Serjeant argued that the said Katherine shall have Common in the said Moore for he said that the said demise shall be expounded according to the intent of the partie 〈◊〉 as it is agreed in Hill and Granges Case Commentaries 270. b. Where a man makes a Lease for yeares of a house and all the Lands to that belonging and though it is there agreed that Land cannot be appurtenant to a house yet this word appurtenant shall be taken in the effect and sense of usually occupied with the Messuage or lying to the house by which it appeares that the words are transferred from the proper signification to another to satisfie the intent of the parties for it is the office of the Judges to take and expound the words which the common People use to expresse their intent according to their intent and for that shall be taken not according to the very definition insomuch that it doth not stand with the matter but in such manner as the party used them And for that this grant shall amount to a new grant of Common in the said Moor for as it seems common or feeding for Cattell may be granted and passe by the name of Tenements Hereditaments or at least shall be included and comprised within the words Tenements and Hereditaments and so shall be construed as a thing occupied and injoyed with the said Messuages see Hen. Finches Case 39. Coke And it was an expresse endorsment upon the demise that the said Katherine should not have Common in the said Moore but it was agreed by all that this was vaine and idle and nothing worth but he urged that this shall have a favorable construction for that it was for Joynture which shall have as favorable construction as Dower And so he prayed Judgement for the Plaintiff and of the other part Nicholls Serjeant argued that this shall not amount to a new grant for he said that they are not apt words to receive such construction for he said that this is no Tenement or Hereditament no Common but only a Feeding for the Cattell of the Lessee in the wast of the Lessor see 20. Edw. 2. Fitzherbert admeasurement and it cannot passe as a thing used with the said house for that was not in Esse at the time of the grant and there is not any apt word to make a new grant â—nd he cited 〈◊〉 Iudgement in Action of wast between Arden and Darcy where Ardon was seised of the Mannor of Curball and also of Parkhall and makes a conveyance of the Mannor of Curball to divers uses and at this time parcell of the Mannor of Curball was occupied with Parkhall as parcell of that and after made another conveyance of all his Lands in England except the Mannor of Curball And adjudged that the Parke which is used with Parkhall shall not be within the exception Coke saith that it was only feeding and not Hereditament for the Inheritance of both was in the Lessor but if it be granted of feeding it shall be intended the same like feeding that the Tenant hath as if the King grant such Liberties as the City of London hath and that shall be good and so it was adjourned Hillary 8. Jacobi 1610. In the Common Bench. Cannige against Doctor Newman IN an Information upon the Statute of 21 H. 8. chapter 13. Of non-residency it was found by speciall Verdict that Doctor Newman was Incumbent invested in the Rectory of Staplehurst in the County of Kent and that hee was also seised of a house in Staplehurst aforesaid scituate within twenty yards of the said Rectory and that the mansion house of the said Rectory was in good repaire and that Doctor Newman held that in his hands and occupation with his one proper goods and did not let it to any other and that he inhabited in the said Messuage and not in the Parsonage the Statute of 21 H. 8 chapter 13. Provides that every Parson promoted to any Parsonage shall be personally resident and abiding in at and upon his said Benefice and in case any such spirituall Parson keep not residence at his Benefice as aforesaid but absent himself willfully by the space
others which were present at the said marriage or Actors in that And upon Evidence it appeared that Doctor Hussey was not present nor Actor in it and for that the Jury found him not guilty but they found all the other Defendants guilty of the said Ravishment for upon the Evidence it appeares that the Wife of Doctor Hussey procured and provided the Minister which married them and in the last Michaelmas Terme this was tried here at the Barr and the Jury assessed Dammages to ten pound and the value of the Ward to eighty pound for so much Moore proved that he could have sold him for and also the Jury found that the Ward doth appeare married being of the Age of 16. yeares at the time of his marriage and exceptions were taken to that for that it was not found of what age the Ward was at the time of the verdict and it was urged by Dodridge that by the Statute of Westminster 2. chapt 39. The precise age ought to be found at the time of the verdict Secondly it was found that the Ward did appeare married and doth not say without License of the Guardian and the Guardian may give his consent where the Ward marries himselfe and then there is no cause of action The third and other exception was taken in the behalfe of the Wife of Doctor Hussey for that shee being a married Wife was found guilty of Ravishment of Ward against the Statute of Westminster the 2. chap. 39. And it was urged that it was not the intent of the Statute that provides that he which did Ravish not having right in the marriage though he should restore the Boy naked and not married or should satisfie for the marriage he shall be punished for the transgression by Imprisonment for two yeares and if he shall not restore him or shall marry the Heire after the marrying yeares and cannot satisfie for the marriage he shall abjure the Realme or shall have perpetuall Imprisonment And it was objected that a married woman was not intended to be within this Statute for it is apparent that a married woman hath not wherewith to make satisfaction and it shall not be intended that she shall have perpetuall Imprisonment or make abjuration for this was to make separation betweene the Husband and his Wife and so it was adjourned And the Judges moved the parties to compound amongst themselves see Michaelmas 8. Jacobi Trinity 9 Jacobi Pasch 9. Jacobi 1611. in the Common Bench. Kenricke against Pargiter and Phillipps RObert Pargiter Gentleman and John Phillipps were summoned to answer to Robert Kenricke Gentleman of a Plea why they tooke the Beasts of the said Robert Kenricke and those unjustly detained against Suerties and Pledges c. And thereupon the said Robert Kenricke by Thomas Pilkington his Attorney doth complaine that the said Robert and John the fourth day of August the yeare of the Reigne of our now King seventh at Kings Sutton in a certaine place called Great Greenes took Beasts that is to say one Gelding one Mare and one Colt of the said Robert Kenrickes and do unjustly detaine them against Suerties and Pledges untill c. By which meanes he saith he is the worse and hath losse to the value of twenty pound and therefore bringeth this suit c. And the aforesaid Robert Pargiter and John Phillipps by John Barton their Attorney do come and defend the force and Injury when c. And the said Robert Pargiter in his owne right doth well avow and the aforesaid John Phillipps as Bailiff of the said Robert Pargiter doth well acknowledge the taking of the said Beasts in the aforefaid place in which c. and justly c. Because he saith that the said place in which it is supposed the taking of the said Beasts to be made did containe and at the aforesaid time in which it is supposed the taking of the aforesaid Beasts to be made did containe in it foure Acres of Meadow in Kings Sutton aforesaid which the said Robert Pargiter long before the aforesaid time in which c. and also at the same time in which c. was and as yet appeareth seised of one Messuage and one virge of land with the appurtenances in Kings Sutton in his Demesne as of Fee and that the aforesaid Robert Kenrick the aforesaid time when c. and long before was seised of a Messuage and foure Virges of land with the appurtenances in Kings Sutton aforesaid whereof the aforesaid place in which c. Is and at the aforesaid time when c. and also at the time to the contrary doth not appeare in the memory of man was parcell in his Demesne as of Fee And the said Robert Pargiter and John Phillipps further say that the said Robert Pargiter and all those whose Estate the said Robert Pargiter now hath and at the aforesaid time when c. had in the aforesaid Messuage and one Virge of Land with the Appurtenances of the said Robert Pargiter from time the contrary whereof doth not appeare in the memory of man had and have used to have and were accustomed to have Common of Pasture in the aforesaid place c. For six Horses Geldings or Mares two Colts six young Beasts called Steeres or young Beasts called Heifers and two Mares called breeders in and upon the said Messuage and one Virge of Land with the Appurtenances lying and rising in manner and forme following that is to say every year in and from the first day of August called Lammas day untill the feast of the purification of the blessed Mary the Virgin then next following as to the said Messuage and one Virge of Land with the Appurtenances belonging and the said Robert Pargiter and John Phillipps further say that the aforesaid Robert Kenricke of the aforesaid Messuage and foure Virges of Land with the Appurtenances whereof c. In the forme aforesaid appearing seised the said Robert and all those whose Estate the said Robert Kenricke now hath and at the aforesaid time in which c. had in the aforesaid Messuage and foure Virges of Land with the Appurtenances whereof c. time out of mind had and were used and accustomed to have the aforesaid place in which c. To their proper use in severalty every year in and from the feast of the purification of the blessed Virgin Mary untill the first day of August called Lammas day then next comming that by reason and in consideration therof he the aforesaid Robert Kenrick and all those whose Estate the said Robert Kenrick now hath and at the time in which c. had in the aforesaid Messuage and foure Virges of Land with the Appurtnances whereof c. time out of minde have had and were accustomed to have every yeare from the aforesaid first day of August called Lammas day and from thence untill the aforesaid purification then next following Common of pasture in the aforesaid place in which c. Only for three Mares
shall be said conclusion and agreement within the said Provision and for that as it seemes it is so uncertain as going about but admitting that it is good yet it shall be good but to some purpose but not to restraine the Daughter which was Tenant in taile to do lawfull Acts as to suffer a Recovery or to levy a Fine as it is resolved in Mildmayes case 6 Coke 40. By which it appears that she hath as well power to dispose that by Recovery as of Fee simple notwithstanding that the Reversion remaines in the Giver as it appears by 12 Ed. 4. 3. For all lawfull Acts made by Tenant in taile shall binde the Issue as 44 Ed. 3. Octavian Lumbards Case Grant of Rent for Release of right is good and shall binde the Issue for there are foure incidents to an Estate tayle First That he shall not be punished for Waste Secondly That his Wife shall be indowed Thirdly That the Husband of the Wife Tenant in Tayle shall be Tenant by the Courtisie Fourthly That Tenant in Tayle may suffer common recovery So that a Condition which restraines him so that he cannot suffer a common Recovery is void for it is incident to his act and it is a lawful Act and for the benefit of the Issue as it is intended in respect of the intended recompence and he said that a Feoffment to a woman covert or infant shall be conditionall that they shall not make a Feoffment during their disability is good for that the Law hath then made them disable to make a Feoffment so a Lease for life or years upon condition that he shall not alien is good in respect of the confidence that was reposed in them by the Lessor and so concluded that the Condition in this Case which restraines Tenant in Taile generally from alienation First was uncertain in respect of the words conclude and agree Secondly for that it was against Law so void and for that prayed Judgment for the Defendant Hutton Serjeant for the Plaintiff he argued that the verball agreement of the Wife shall bind her notwithstanding the Coverture for that that this is for her benefit for in performance of the said agreement she suffers a recovery to the use of her selfe and her Heires and so Dockes the remainder and he agreed the cases put by the other part which concerne free-hold but he said in cases of Limitation of Estates as if Limitation be if a Ring be tendred by a woman that the Land shall remaine to her and she takes a Husband and after that she and the Husband tender the Ring this shall be sufficient tender and it shall be intended the Act of the wife and 10. H 7. 20. a. A man devises his Lands to a married woman to be sold she may sell them to her Husband And though that it be not any agreement of the Husband only yet here is an act done in a Precipe brought against the Wife and she vouches over for that is not only an agreement but an Act executed upon which the Estate Limited to the eldest Sister shall take effect and the 2. Coke the 27. a. Beckwiths Case If the Husband and the Wife joyne in a Fine of Land of the Wife the Wife only without the Husband may declare the use of that And he intended it was a Limitation and not a condition and so it might be well at this day in case of devise and then the Act shall be that the Estate is Limited to have beginning being made the Estate of the youngest Daughter which made the Act shall be destroyed and determined for if it be a condition then all the Daughters shall take advantage of that and this was not the intent of the Devisor for they are the parties which should be restrained by the devise from Alienation And also he cited Wenlocke and Hamonds Case cited in Bractons Case 3. Coke 20. b. Where a Copy-holder in fee of Lands devisable in Burrough English having three Sons and a Daughter deviseth his Lands to his eldest Son paying to his Daughter and to his other Sons forty shillings within two yeares after his death the Devisor maketh surrender according to the use of his Will and dieth the eldest Son admitted and doth not pay the money within the two yeares and adjudged that though the word paiment makes a condition yet in this case of devise the Law construes that to a Limitation and the reason is there given to be for that that is it shall be a condition then that shall discend upon the eldest Son and then it stands at his pleasure if the Brothers or Sister shall be paid or not and 29. Assis 17. cytes in Nourse and Scholasticas Case Commentaries 412. b. where a man seised of Lands in Fee devisable deviseth them to one for life and that he should be Chapleine and single for his Soule all his life so that after his decease the sayd tenements should remaine to the Commonalty of the same Towne to finde a Chapleine perpetuall for the same Tenements and dyed and adjudged that this shall not be a condition of which the heir shal take advantage but limitation upon which the remainder shall take effect and also he cyted S. E. Clâ—ers Case 6 Coke 18. a. b. 11 H. 7. 17. Pennants Case 3 Coke 65. a. That if a man makes a Lease for years upon a condition to cease that after the condition is broken grantee of reversion may take advantage of that so he said in the case at the Bar when the first Estate is determined and destroyed by the limitation then he to whom the Remainder is limited shall take advantage of that and not the Heire for as he intended an Estate of Inheritance may as well cease by limitation of devise as tearme as in 15 Ed. 4. Lands are given to one so long as he hath heires of his body the remainder over and if he dye without heires of his body the remainder over shall vest without entry and the Free-hold shall vest in him and 2 and 3. Phil. and Mary Dyer 127. and 56. Fisher and Warrens Case If a man devise Lands to one for life the remainder over upon condition that if he do such an act that his estate shal cease and he in remainder may immediately enter there he in remainder shall take advantage though he be a stranger for that that the Estate determines there without re-entry And he saith that the Case of Wellock and Hamond cyted in Barastons Case was a stronger Case then this for there the limitation was upon Fee-simple and here it is upon an Estate tayle and the Law hath favourable respect to devises as in Barastones Case is alteration of words for the better exposition of that for Shall is altered to Should and also see 16 Eliz. Dyer 335. 29. for the marshalling of absurd words in a Will for the expounding of that and 18 Eliz. Cheekes Case he cyted to be adjudged that
cannot a Copy-holder which hath so base an estate And if this shall be so these mischeifes will insue That is that this base estate should be of better security then any estate at the Common Law for Fine shall not be a Barr of that for it cannot be levied of that also Recovery cannot be suffered of that for there cannot be a Recovery in value neither of Lands at the Common Law neither of Customary Lands for they cannot be transferred but by the hands of the Lord. And to Littleton he agreed and also 4 Ed. 2. which agrees with this where it is said that at Stebenâ—eath a Surrender was of Copy-hold Lands to one and the Heires of his Body but he said that that shall not be an Estate taile for then the Estate hath such operation that this setles a Reversion and Tenure betwixt the Giver and him to whom it is given but this cannot be of Copy-hold Land for this cannot be held of any but only of the Lord and to the others this Estate doth not lye in Tenure and yet he agreed that of some things which did not lye in Tenure Estate Tail may be but Land may be intailed but Copy-hold Estate is so base that an Estate tail cannot be derived out of it so that though that custome may make an Estate to one and the Heires of his Body yet this cannot be an Estate taile but Fee-simple conditionall and also he agreed that they might have Formedon in Discender but it is the same Formedon which was before the Statute as if Tenant in Fee-simple conditionall before the Statute would alien before issue but it was no Estate taile with the priviledges of an Estate taile before the Statute and to the other matter of Surrender that is the admittance of the parties which is an Estate taile that doth not conclude the Court as it appears by the Lord Barkleys Case in the Commentaries where the Estate pleaded severally by the parties is not traversed by any of them and so concludes and prayes Judgment c. And this case was argued again in Trinity Tearme next ensuing by Montague the Kings Serjeant for the Defendant and he said that there are three questions in the case First If Copy-hold land may be intailed Secondly Admitting that it may be intailed if Surrender makes discontinuance Thirdly If it shall be Remitter and to the first he seemed that it might be intailed and that it shall be within the Statute of Westminster 2. And first for the Antiquity of that he said that Littleton placed that amongst his Estates of Free-hold and hath been time out of minde and is a primitive Estate and not derived out of the Estate of the Lord and the Lord is not the Creator of that but the means to convey that after that it is cerated and what is created then shall have all the priviledges and Benefits which are incident to it and shall be nursed by the custome and is time out of minde and the Law alwaies takes notice of it and he cited 24 H. 4. 323. by Hankf Bracton Fitz. Na. Bre. 12 C. and Brownes Case 4. Coke which is not simply an Estate at the will of the Lord but at the VVill of the Lord according to the custome of the Mannor and when it hath gained the reputation of Free-hold then it shall be dircted according to the rules of the Common Law and 2. and 3. P. and Ma. Dier 114. 60. allow Copy-hold Estate to be intailed and he saith That no Statute hath more liberall exposition then the Statute of Westminster 2. 45. Ed. 3. Incumbrance shall not charge the Issue intaile also a Copy-holder shall have a Cui in vita also a Copy-hold is within the Statute of Limitation and so upon the Statute of buying of pretenced rights And it is alway intended when a Statute speakes of Lands and Tenements that Copy-hold Lands shall be within that And he saith That all the Objections which have been made of the contrary part are answered in Heydons Case but he relyed upon that that every reall Inheritance is within the Statute of Westminster 2. 4 Ed. 2. Formedon lyeth of Copy-hold Land 25 Ed. 3. 46. Estate tayle is of a Corrody and office which proves that Copy-hold is a reall Inheritance and for that shall be within the Statute 46 Ed. 3. 21. Gavelkinde Land may be intailed 6 Rich. 2. Avowry 2. 8. Rich. 2. 26. Copy-holder shall be charged with Fees of a Knight at Parliament 22 and 23. Eliz. Dier 373. 13. Lands in ancient Demesne were intayled and he said that the reason is that for that it is Inheritance and time hath applyed them to an Estate and so concluded and prayed Judgment for the Defendant Hutton Serjeant argued for the Plaintiff that Copy-hold Lands cannot be intailed for that is but a customary Estate and the Law doth not take any notice of it but onely according to Custome for there were no Estates tayle before the Statute for then all were Fee simple absolute or conditionall that is either implyed or by limitation which cannot be of an Estate tayle which is not within the Statute of Westminster 2. for no Actions are maintainable by that but those which are by the Custome and a Writ of false Judgment See Fitzherberts Natura brevium 12. 13 Ed. 3. F. Prescription 29. that it hath no Incidents which are incident to Estates at the Common Law without Custome as Dower See Revetts Case and so is Tenancy by the Curtesie and there shall be no discent of that to take away Entry and so of other derivatives And he seemed that it is not within the Statute for three reasons apparent within the Statute First That it is hard that Givers shall be barred of their reversions but in case of Copy-holds the Giver hath no remedy to compell the Lord to admit him after the Estate tayle spent but onely Subpena and in this Case the Lord may releive himselfe for the losse of his services for that the Statute provides no remedy for him Secondly That the Statute doth not intend any Lands but those of which there is actuall reversion or remainder and those which passe by Deed so that the will of the Giver expressed in the Charter may be observed and of which there may be a subdivision as Lord Mesne and Tenant for there shall be alwayes a reversion of the Estate tayle and the Donee shall hold of the Donor and not of the Lord. Also it seems that the Statute doth not intend to provide for any but those for whom the VVrit in the Formedon ordained by the Statute lyes and agreed that for Offices and such like Formedon lyeth if the party will admit Estate tayle to be discontinued Also the Statute intends those things of which a Fine may be levyed for the Statute provides that the Fine in his owne right should be nothing but by Copy-holder Fine cannot be levied and for that he shall not be within the
Mannor held in cheife and of other Mannors and Lands held of a Common person in socage and had Issue foure Sonns Thomas William Humphrey Richard And by his Deed 12 Eliz. covenants to convey these Mannors and Lands to the use of himself for his life without impeachment of wast and after his desease to the use of such Farmors and Tenants and for such Estates as shall be contained in such Grants as he shall make them and after that to the use of his last will and after that to the use of VVilliam his second sonn in tayle the Remainder to Humphrey his third Son in tayle the Remainder to Richard the fourth Sonn in tayle the Remainder to his own right Heires with power of Revocation and after makes a Feoflment according to the covenant and after that purchases eight other acres held of another common person in socage and after makes revocation of the said Estates of some of the Mannors and Lands which were not held by Knights service and after that makes his Will and devises the Land that he had purchased as before and all the other Land whereof he had made the Revocation to Thomas his eldest son the Heirs Males of his body for 500. years provided that if he alien and dye without Issue that then it shall remaine to William his second sonne in tayle with the like proviso as before and after dyed and the Jury found that the Lands whereof no revocation is made exceeds two parts of all his Lands Thomas the eldest sonne enters the 8. Acres purchased as before and dyes without Issue male having Issue a Daughter of whom this Defendant claimes these eight Acres and the Plaintiff claims them by William the second Son And Dodridge the Kings Serjeant argued for the Plaintiff intending that the sole question is for the 8. acres purchased and if the devise of that be good or not by the Statute of 34. H. 8. And to that the point is only a man which hath Lands held in cheife by Knights service and other Lands held of a common person in Socage conveys by act executed in his life time more then two parts and after purchases other Lands and devises those if the devise be good or not And it seems to him that the devise is good and he saith that it hath been adjudged in the selfe same case and between the same parties And this Judgment hath been affirmed by writ of Error and the devise to Thomas and the Heirs males of his body for 500. years was a good estate tayle and for that he would not dispute it against these two Judgments But to the other question hee intended that the devise was good and that the Devisor was not well able to doe it by the Statute of 34. H. 8. And hee intended that the statute authoriseth two things 1. To execute estates in the life time of the party for advancement of his Wife or Children or payment of his debts and for that see 14. Eliz. Dyer and that may be done also by the common Law before the making of this statute But this statute restrains to two parts and for the third part makes the Conveyance voyd as touching the Lord But the statute enables to dispose by Will a parts where he cannot dispose any part by the Common Law if it be not by special Custome but the use only was deviseable by the common Law this was altered into possession by the statute of 27 H. 8. and then cometh the statute of 32. and 34. H. 8. and enables to devise the Land which he had at the time of the devise or which he purchased afterwards for a third part of this Land should remain which hee had at the time of the devise made and if a third part of the Land did not remain at the time of the devise made sufficient should be taken out of that but if the Devisor purchase other Lands after hee may those wholly dispose And for that it was adjudged Trin. 26. Eliz. between Ive and Stacye That a man cannot convey two parts of his Lands by act executed in his life time and devise the third part or any part so held by Knights service and also he relyed upon the words of the statute that is having Lands held by Knights service that this shall be intended at the time of the devise as it was resolved in Butler Bakers Case That is that the statute implies two things that is property and time of property which ought to be at the time of the devise But here at the time of the devise the Devisor was not having of Lands held by Knights service for of those he was only Tenant for life and the having intended by the statute ought to be reall enjoying and perfect having by taking and not by retaining though that in Carrs Case cited in Butler and Bakers Case rent extinct be sufficient to make Wardship yet this is no sufficient having to make a devise void for any part Also if the Statute extend to all Lands to be after purchased the party shall never be in quiet and for that the Statute doth not intend Lands which shall be purchased afterwards for the Statute is having which is in the Present tence and not which he shall have which is in the Future tence and 4. and 5 P. and M. 158. Dyer 35. A man seised of Socage Lands assures that to his Wife in joynture and 8. years after purchases Lands held in cheife by Knights service and devises two parts of that and agreed that the Queen shall not have any part of the land conveyed for Joynture for this was conveyed before the purchase of the other which agrees with the principall case and though to the Question what had the Devisor It was having of Lands held in Capite insomuch that he had Fee-simple expectant upon all the estates tayl he intended that this is no having within the Statute but that the Statute intend such having of which profit ariseth and out of which the K. or other Lord may be answered by the receipt of the profits which cannot be by him which hath fee-simple expectant upon an estate tayle of which no Rent is reserved and also the estate tayle by intendment shall have continuance till the end of the world and 40. Edw 3. 37. b. in rationabili parte bonorum it was pleaded that the Plaintiff had reversion discended from his Father and so hath received advancement And it seems that was no plea in so much that the reversion depends upon an estate tayle and upon which no Rent was reserved and so no advancement So of a conveyance within this Statute ought such advancement to the youngest sonne which continues as it is agreed in Binghams Case 2 Coke that if a man convey lands to his youngest sonne and he convey that over to a stranger in the life time of his father for good consideration and after the Father dies this
Port-reeve Jurates and Inhabitants of Gravesend brought Debt against one Edmonds a Water man which plyed the Ferry betwixt Gravesend and London and counts that Gravesend and Milton are ancient Townes and next adjoyning to the River of Thames and that the Inhabitants of these Townes have had time out of minde c. ancient passage from thence to London and have used to make By-Lawes and constitutions for the Government of that passage and have provided Water-men Steer-men and Rowers for the said Passage the which used time out of minde to take of every Passenger and his Fardell two pence and that for their maintenance and ought to hold the Passage if their benefit at this rate amounted to foure shillings or more and that the Queen Elizabeth by her Letters Patents under the great Seale of England incorporated the said Inhabitants by the name of Port-reevs Jurats and Inhabitants of Milton and Gravesend and this was in the tenth yeare of her Raigne and also that they injoyed the said Ferry without any Interruption and that they held the tide and Ferry and that the Port-Reeve Jurat and twelve of the Inhabitants had power to make By-Laws and Coustitutions for the government of the sayd Ferry and that every Water-man should observe his turn and also to impose Fines for the not observing of them and that in the thirty seventh yeare of the said Queene Elizabeth a Constitution was made by the then Port-reeve Jurats and twelve of the Inhabitants of the said Towns insomuch that many Water-men ply poore Passengers before that the Barge was furnished and so that many other Passengers were inforced to loose their passage by the Barge insomuch that the passage did not amount to four shillings so that they did not hold their tyde so that the Barge which had such preheminence that is that no Water-men shall ply any Faire or passenger till the Barge had received so many of their passengers by which they might receive four shillings at the Rate aforesaid and be removed from the Bridg at Gravesend unto the Land marke and that if the Tiltboate or any other Water-man received any passenger before that the Barge be so furnished that he should pay the sayd Port-reeve Jurats and Inhabitants for the maintainance of the said Barge for every passenger so received two pence and so assigned breach of the By-Law in the Defendants and that he had received so many of the passengers before the Barge was furnished which amounted to as much as is demanded by which Action accrued to the Plaintiff to demand it to which the Defendant pleads that he oweth nothing to the Plaintiffs in manner and forme as they have demanded it and by the Jury at the Barr it was found for the Plaintiffs and after that upon motion in the behalfe of the Defendant the Judgment was arrested and now at this day Judgement was prayed for the Plaintiffs By Dodridge Serjeant of the King and he conceived that the custome was good notwithstanding that it was alledged in the Inhabitants and he sayd it was no prescription but Custome and it is declared to be a good and laudable custome and usage by the Statute of 6 H. 8. Chapter 7. Rastall Passage 8. and he agreed that Inhabitants cannot prescribe to have matter of benefit but to have matter of Ease he conceived they might very well as it is 15 Ed. 4. 29. 22 H. 6. Prescription 46. 18 Ed. 4. 2. 18 H. 8. 1. Secondly As to the Objection that the living of the other Watermen which are not imployed in the Barge is by that abridged and that when the Water-man is willing to carry and the Passenger to be carried by him it is no reason that a By-Law should abridge this voluntary act of a man upon which his lively-hood depends he sayd that so it is not for nothing is challenged by the By-Law but only preheminence and that provision be made for the Poore which is for the publick good for every one may go with any that he will paying two pence to the Barge or after the Barge is furnished paying nothing and he conceived that the Liberty of the subject ought to be so abridged but not alltogether abolished as it is agreed in the Arch-Bishop of Yorkes Case in the Register in the Writ of Trespasse fol. 105. b. c. 8 Coke 125. a. Wagoners Case 8 Ed. 3. 37. a. 3 Ed. 3. 3. Where the Bishop of York claimes in the Mannor of Ripon such liberty that is that he and all his Predecessors time out of mind c. have had a custome that none in the said Town ought or had accustomed to use the office or mistry of a Dyer without Licence of the said Arch-Bishop or his Bayliff of the said Town And also he cited a case in the Register where the Abbot of Westminster prescribed to have a faire in Westminster upon Saint Edwards day and for ten daies after And that no Citizen nor other in London during that time should sell any thing in London but in this faire and after the Abbot remitted this priviledg and had of the Citizens of London for that one thousand five hundred pound And so it was adjudged in Sir George Farmers Case for a bake-house in Tossiter and that none shall bake any Bread to sell but in his bake-house and good And so he conceived that Custome may be restrained all passengers till the Bardge be furnished as in 2. Ed. 3. 7. Granâ— that all Ships laded and unladed in such a Haven shall be laded and unladed in such a place and a good grant notwithstanding that it restraines all people to a certaine and if this be good by grant then a Fortiore shall be good by custome and to the other objection that this custome shall only bind the Inhabitance and not strangers he conceived that custome might tye strangers that came into the said Town very well as it is agreed in 22. H. 7. 40. So the By-Law shall bind strangers when it is only for Acts to be made within the Town and for the publike good as it is agreed in the 44. Ed. 3. 13. and 8. Ed. 2. assis 413. ordinance against him which estops passage by water and good and so he agreed in the Chamberlaine of Londons Case that By-Law made in London shall bind all as well strangers as Citizens which sell any Drapery in the Hall there though that they Inhabit in any place out of the City And also he said that the Bardge-men which have the losse shall have the benefit for they shall have the two pence for every one that passes otherwise before that they are furnished and this is recompence for them which are tyed to perpetuall attendance and he conceiveth that the demand is very well made notwithstanding that the duty accrues from many times for he hath carried so many men at one time and so many at another the which in all amonnts to the sum demanded And so he
this common being annexed to the Land though that the Estate be increased yet the common remaines his second reason was of the manner of conveiance and that was by confirmation and if that conveiance had been by Feoffment peradventure the common had been gone But a confirmation enures allwaies upon an Estate precedent and though that this somtimes inlargeth the Estate yet this doth not alter the Estate as to any priviledges annexed to it his third reason was of the matter of the confirmation and that is that he hath confirmed it with the appurtenances and this seemes to him admitting that the common had been extinct yet these words with the appurtenances amount to a new grant of a common as in the case of Corody in 22 Ed. 4. 17. and 18. If the King grant to one such a Corody as I. S. had he shall have so much bread and beere as I. S. had so here when he grants and confirmes that with the appurtenances this is with all such priviledges as I. S. had so here when he confirmes with the appurtenances this is with all the priviledges that the old Estate had and so this should be a grant of such common as was annexed to that and so it seemed to him for these reasons that the common remaines to which it was said by Davies of the other part that he agreed al the manners of Prescriptions but he denied that it was a locall Prescription that is to Land but only to an Estate and this proves well the words of the Prescription for the Copy-holder ought to prescribe that is that every customary Tenant within the Mannor c. So he hath his common in respect that he is customary Tenant and this is in respect of the Estate which he hath by the Custome and not in respect of the Land and that this shall not enure as a new Grant he cited a case to be adjudged Michaelmasse 43. and 44. Eliz. in the Kings Bench Rot. 367 Where in Trespasse the Defendant justifies the lopping of Trees in the wast of the Lord where the custome was that every Copy-holder might shride the Trees in the wast of the Lord and that he was a Copy-holder there and the Lord granted to him the Inheritance of his Copy-hold with all such Lands Tenements and Commons of Estovers pertaining to the Copy-hold and adjudged that insomuch that the Customary Estate was distroied this custome was not now annexed to the Land but being determined with the Estate cannot be said appertaining to it and for that the Justification ill and it seemed to him to be all one with the principall case and it was adjourned and after in Michaelmasse Tearme 8. Jacobi It was adjudged that the Common was extinct and not revived Hillary 7. Jacobi 1609. In the Kings Bench Proctor against Johnson THE Case hath depended seven yeares in this Court upon a Writ of Error was this Two Joynt Tenants for yeares of a Mill one grants his Estate severally to another and dies the Grantee doth not enter yet The other reciting the Lease to him made and to his companion joyntly and that his companion died so that all belonged to him as Survivor as he intended grants all the Mill to Johnson and all his Estate Right and Interest in that And covenants that the Grantee there shall continue discharged and aquitted of all Charges and Incumbrances or other Act or Acts done by him and after binds himselfe in a Bond to performe all Grants Covenants and Agreements contained in the Indentures according to the intent and meaning of the parties and after the Grantee of his companion entered into the halfe and the question was If the Bond were forfeit or not and it was adjudged in the Common Bench that the Obligation was forfeited And the matter was argued this Tearm in this Court by Yelverton of Grayes Inne that the Bond shall not be forfeited for the Bond was with Condition to performe all Grants c. According to the true intent and meaning of the parties and then let us see what was the intent of the parties and suerly this appeares by the recitall in the Indenture and for that he said that all appeares to him as survivor as he conceived so that he was doubtfull of that and for that his meaning was that if he had all then to grant all and if he had but a moity then to grant but the moity and this proves well the words subsequent where he saith that he granted the Mill and all his Estate Right and Interest in that so that he did not intend to grant more then his Estate and these words subsequent qualifie the generall words precedent and so it seemes to him that the Obligation shall not be forfeited And Sir Robert Hitcham the Queens Attorney to the contrary and that the Bond was forfeited for he hath bound himself to perform all grants and he hath not performed his Grant for he granted all the Mill and then though but a moity passeth yet he shall forfeit his Bond if the moity be evicted and for that if a man which hath nothing in the Mannor of D. makes a Lease by Deed indented to J. S. and binds himself to performe all Grants though that nothing passes yet if he enter and be ejected he shall have Debt upon his Obligation and he cited one Yelvertons Case to be adjudged but did not tell when where a man which hath nothing in the Mannor of Dale covenants with J. S. to stand seised to the use of him and his Heirs at Michaelmas and before Michaelmas he purchases the Mannor of Dale and it was resolved that no use shall be raised at Michaelmas for he had not the Mannor at the time of the Covenant and also it was resolved that no Action of Covenant lies upon the Covenant but he sayd that it is a cleer Case that if he had entred into a Bond to perform all Covenants in the Indenture that the Bond shall be forfeited though that he could not have action of Covenant upon the Covenant and also he sayd that he well agreed the Case of the Lady Russell which was adjudged also but Nescio quando where a man made a Lease for years of the Mannor of Dale except one Acre the Lessee binds himself to perform all agreements and after the Lessee enters into the Acre this shall be no breach of the condition for this exception is no agreement for nothing shall be sayd an agreement in an Indenture but that which passeth in Interest and so he sayd that though that the Lessee cannot have an Action of Covenant in the principall Case insomuch that this is so speciall yet the Bond shall be forfeited upon these Words grants and agreements and the Covenant special doth not qualify the generall express grant and after four Justices that is Flemming the cheife Justice Willams Yelverton and Crooke were of opinion that the Bond is forfeited and this for the generalty of the
charge to the King and to the Common Wealth and the execution of Writs may be prejudicall and penall to the Sheriff himselfe And for that he may well provide that he shall have notice of every execution which are most Penall And also in all the Indenture now made he doth not constitute him to be his under Sheriff but only for to execute the Office and for these reasons he seemed the Obligation is good and demands Judgement for the Plaintiff But it seemes to all the Court that the Covenant is void and so by consequence the Obligation as to the performance of that void but good to the performance of all other Covenants And Coke cheif Justice said that the Sheriff at the Common Law was elligible as the Coronor is and then by the death of the King his Office was not determined and also it is an intire Office and though the King may countermand his Grant of that intirely yet he cannot that countermand by parcells and also that the under Sheriff hath Office which is intire and cannot be granted by parcells and this Covenant will be a meanes to nourish bribery and extortion for the Sheriff himselfe shall have all the benefit and the under Sheriff all the payn for he is visible the under Sheriff and all the Subjects of the King will repaire to him and the private contracts between the Sheriff and him are invisible of which none can have knowledge but themselves And Warburton sayd that in debt upon escape c. are against the Sheriff of Notingham he pleaded Nihil debet and gives in evidence that the Bayliff which made the Arrest was made upon condition that he should not meddle with such executions without speciall warrant of the Sheriff himselfe and his consent but it was resolved this notwithstanding that the Sheriff shall be charged in and in the principall case Judgement was given accordingly that is that the Covenant is void Note that the Sheriff of the County of Barkes was commited to the Fleete for taking twenty shillings for making of a warrant upon a generall Capias utlagatum for all the Justices were of opinion that the Sheriff shall not take any Fees for making of a warrant or execution of that Writ but only twenty shillings and foure pence the which is given by the Statute of 23. H. 6. for it is at the Suit of the King But upon Capias utlagatum unde convictus est which is after Judgement it seemes it is otherwise A man grants a Rent to one for his life and halfe a yeare after to be paid at the Feasts of the Anunciation of our Lady and Michaell the Archangell by equall portions and Covenants with the Grantee for the payment of that accordingly the Grantee dies 2. Februarâ—… and for twenty pound which was a moyity of the Rent and to be payd at the anunciation after the Executors of the Grantee brings an Action of Covenant and it seems it is well maintainable And Coke cheife Justice sayd That if a man grants Rent for anothers life the Remainder to the Executors of the Grantee and Covenant to pay the Rent during the Tearm aforesayd this is good Collective and shall serve for both the Estates and if the Grantee of the Rent grant to the Tenant of the Land the Rent and that he should distrain for the sayd Rent this shall not be intended the same rent which is extinct but so much in quantity and agreed that when a Rent is granted and by the same Deed the Grantor covenants to pay that the Grantee may have annuity or Writ of Covenant at his Election Michaelmas 7. Jacobi 1610. In the Common Bench. Waggoner against Fish Chamberlain of London JAMES Waggoner was arrested in London upon a Plaint entered in the Court of the Maior in Debt at the suit of Cornelius Fish Chamberlain of the sayd City and the Defendant brought a Writ of Priviledge returnable here in the Common Pleas and upon the return it appears that in the City of London there is a custome that no forrainer shal keep any shop nor use any Trade in London and also there is another Custome that the Maior Aldermen and Commonalty if any custome be defective may supply remidy for that and if any new thing happen that they may provide apt remedy for that so if it be congruae bonâ— fidei consuetudo rationi consentiae pro communi utilitate Regis civium omnium aliorum ibidem confluentium and by Act of Parliament made 7 R. 2. All their customes were confirmed and 8 Ed. 3. The King by his Letters Patents granted that they might make By-Laws and that these Letters Patents were also confirmed by Act of Parliament and for the usage certified that in 3 Ed. 4. and 17. H. 8. were severall acts of Common Councell made for inhibiting Forrayners to hold any open shop or shops or Lettice and penalty imposed for that and that after and shewed the day in certain was an Act of Common counsell made by the Mayor Aldermen and Commonalty And for that it was enacted that no Forrayner should use any Trade Mistery or occupation within the said City nor keep any Shop there for retayling upon payn of five pound and gives power to the Chamberlain of London for the time being to sue for that by Action c. in the Court of the Mayor in which no Essoyn nor wager of Law shall be allowed and the said penalty shall be the one halfe to the use of the said Chamberlain and the other half to the poor of Saint Bartholomewes Hospitall And that the Defendant held a shop and used the Mistery of making of candles the seventh day of October last and for that the Plaintiff the ninth day of the same month then next insuing levied the said plaint And upon this the Defendant was Arrested and this was the cause of the taking and detaining c. And upon argument at the Bar by Serjeant Harris the younger for the Defendant and Hutton for the Plaintiff and upon sollemne arguments by all the Justices Coke Walmesley Warburton Danyell and Foster it was agreed That the Defendant shall be delivered and not remanded And the case was devided in to five parts The first the custome Secondly the confirmation of that by Act of Parliament Thirdly the grant of the King and the confirmation of that by Act of Parliament Fourthly the usage and making of Acts of common councell according to this Fiftly the Act of common councell upon which the Action is brought and upon which the Defendant was Arrested And to the first which is the custome it was also said that this consists upon three parts That is first if any custome be difficult Secondly if it be defective Thirdly if Aliquid de novo emergit The Mayor Aldermen and Commonalty Possunt opponere remedium and that there are foure incidents to that remedy First it ought to be Congruum Retione
he had notice of the words which his Brother spoke but that this ought to be specially averred and the Count contained that the Defendant justified the aforesayd scandalous words to be true as in these English words following That which my Brother c. and it seemes that this was not sufficient Michaelmas 1611. 9. Jacobi In the Common Bench. Sir Richard Buckley against Owen Wood. NOte It was sayd to be adjudged between these parties that if a man exhibits a Bill in the Srarr Chamber which containes diverse slanderous matters whereof the Court hath no Jurisdiction that an Action upon the Case lyeth so if the Plaintiff affirme his Bill to be true action upon the Case lyeth upon that as it was adjudged upon that as it was adjudged in the same Case Michaelmas 9. Jacobi 1611 in the Common Bench. Patrick against Lowre IN Trespasse the Defendant justifies for that that he was seised of a House with the Appurtenances and prescribes to have Common in the place c. for all manner of Beasts Levant Couchant upon the sayd House and good prescription notwithstanding it doth not containe certaine number and it shall be intended for so many of the Beasts which may be rising and lying down upon the said House and if he put in more they may be distrayned doing Damage and so is the usage and prescription in all Burroughs that is to prescribe to have the Common by reason of the House but the matter upon which Nicholls the Serjeant which moved it insists was the uncertainty that is what shall be sayd rising and lying down upon a House for he thought beasts could not be rising and lying down upon a House unlesse that they are upon the top of the House but to that it was resolved that infomuch that here the common was claymed to the House it shall be intended that it was a curtillage belonging to the House and if it be not that ought to be averred of the other party and then the Beasts shall be intended to be rising and lying upon the Curtladge and if it had been alledged yet it shall be intended so many of the Beasts which may be tyed and are usually to be maintained and remaining within the House for it was agreed that rising and lying down shall be intended those Beasts which are nourished and fed upon the Land and may there live in summer and winter and also Beasts cannot be distrained if they be not rising and lying down upon the Land and receiving food there for some reasonable time but some thought that beasts could not be rising and lying down upon a house without a Curtilage Note that it was agreed that all proceedings in inferiour Court after a Writ of Priviledge delivered out of this Court are void and before no Judge and if they award Execution this Court will discharge the party of Execution Note that a Fine was levyed between Charles Lynne and VValter Long and the Foote of the Fine was Longle and it was amended Michaelmas 9. Jacobi 1611. In the Common Bench. Hamond Strangis Case THe Father for a valuable consideration infeoffs his eldest son and Heir and adjudged that this was not within the statute of those who infeoff their eldest Sons nor a valuable consideration In Avowry the Defendant avowes upon the person of the Plaintiff in a Replevin and the Plaintiff traverses the Tenure upon which they are at issue and at the Nisi prius it is found for the Plaintiff and agreed that this was aided by the Statute of Ieofailes for this is out of the statute of 21 H. 8. and as it was at the common Law or if the Defendant avow upon the person of a stranger the stranger hath no plea but out of his fee which was mischeivous the which was aided by the statute of 11 H. 8. 19. for he thought he would have traversed the Seisin The Teste of a Venire facias was the twelfth of June returnable tres Trinitatis which was the same day that the Teste was and after Verdict it was moved to be amended and to be made according to the Roll the which was done accordingly see 7 Ed. 4. for returning of Distring as which was amended after Verdict and Crompton one of the Prothonotaries sayd that a Venire facias bare date in the vacation after the Tearm returnable in the Tearme before and it was amended according to the Roll and the principall case was the Roll was upon the entering of the issue therefore you shall cause to come here twelve good and lawfull men who neither c. within three weeks of Michaelmas and the return of the Venire facias was made accordingly Michaelmas 9. Jacobi 1611. in the Common Bench. John Weekes Plaintiff Edward Bathurst Defendant ALSO in Ejectione Firme upon the Joyning of the Issue the Defendant pleads not Guilty and it was entred and the aforesaid Lessor likewise where it should have been and the aforesaid Plaintiff likewise and it was amended See this Case afterwards here the Case was the Defendant pleads that he is not guilty as the aforesaid Weekes which was the Lessor above against him hath declared and upon this he puts himself upon the Countrey and the aforesaid Weekes likewise where it should be the aforesaid John likewise and after verdict upon solemne argument this was amended by Coke Warburton and Foster and Foster cited 11. H. 7. 2. 26. H. 6. to be directly in the point and 14. Ed. 3. Amendment 46. Ed. 3. Amendment 53. and Warburton seemed that first that is Wekes for the aforesaid Wekes c. Is not materiall and the last shall be amended insomuch that this doth not alter any matter of substance Coke seemed that this was amendable the same Tearme by the Common Law if it were before Issue see 5 Ed. 3. 7 H. 6. Which was immediately before the statute of 22 Ed. 4. but in another tearme it was not amendable by the Common Law nor the statute of 14 Ed. 3. doth not extend to that for this doth not extend to a Plea Roll 46 Ed. 3. 13. accordingly but the statute of 8 H. 6. extends to any misprision in the Plea Roll or in the Record and makes that amendable 26 H. 6. Amendment 32. 9 and 10. Eliz. Dyer 260 261. And the difference is where there there is an Issue that gives power to the Justices of Nisi prius to try that then another Misprision shall be afterwards amended and he said that it was adjudged between Sir William Read Lezure in the Exchequer that a Commission of these words and the aforesayd Plaintiff likewise shall not be amended but in the principall case here they all agreed that it shall be amended and it was amended accordingly Michaelmas 1611. 9. Jacobi in the Common Bench. Prowse against Worthinge Leonard Loves Case IN an Ejectione firme speciall Verdict the case was this Leonard Loves the Grand-Father was seised of a