him and his heirs for ever if B. shall have issue of his body and if he die without heirs of his body that the Land shall revert to the Donor and his heirs B. had issue which died without issue and it was adjudged that B. had but an Estate in tail and because he died without heirs of his body it was adjudged that the Donor should recover against the collaterall heire of B. And if the Law be so in Deeds or Grants executed in the life of the Donor a fortiori in a Devise which is to be taken more favourably then an estate made by Deed and therefore it is sufficient in a Devise to have the intention of the Devisor understood either to make an estate in fee or in tail although proper words to make such an estate be not used and the intent of the Devisor cannot be more manifest to have an estate in tail then in this case As to the second Point the question will be whether the younger Son hath an estate in Tail or in Fee determinable by this limitation and it seemed to them that he shall have but an Estate in tail In which the question is to which estate these words of limitation to wit living the elder Son shall be referred viz. Whether to the Estate made to the younger Son or to the Estate given to the elder for if they be referred to the Estate made to the younger there is no question but these words do abridge restrain the estate but if to the elder then they make no restraint or restriction as to the estate of the younger Son but onely limit the remainder to the elder Son on this contingency only viz. If he be alive at the time of the death of the youngest Son without issue And to prove that these words shall be referred to the estate devised to the elder brother They said That if the land had been devised to the younger Son and the heirs of his body and if he dyed without issue living the elder that the elder should have the estate to him and his heirs it is clear that the younger hath an absolute estate tail and that then the remainder to the elder shall be on this contingency viz. If he be living when the younger dies without issue And so is Frenchmans Case 1 2. Eliz. who demised land to his wife for life the remainder to Charles Frenchman and the heirs males of his body and if he died without heirs males of his body the remainder to Arthur Frenchman and the heires males of his body Charles had issue a Daughter and died without issue male and it was adjudged that the Daughter should not have the land for this contingency does not alter the Estatetail that was first limited to Charles and although the Devise in the case at Bar be to the youngest Son and his Heirs without any limitation of his body yet the limitation afterwards to wit if he die without issue does explain well enough that the heires of his body are intended and then the subsequent words living the Eldest Son cannot alter the estate first given to the younger Son And Hil. 40. Eliz. in the Kings Bench by Walmesly If one deviseth land to his Son and his heirs and further deviseth that if he die without issue that the land shall be sold yet the Son shall have an estate in fee and not in tail but otherwise if he devised that if he died without issue that the lands should remain over for in the first case he disposeth of no more of the estate by the last words then he did at the first but in the last case he disposeth of the estate it self in remainder And this was agreed by Owen 18 19. Eliz. Rot. 354. and 15. 16. Eliz. Rot. 330. where the case was That one Edward Clark being seised in fee of two houses had issue Henry and two Daughters Alice and Thomasin Henry dyed before the two daughters living the Father the Father devised one house to his daughter Alice and her heirs for ever and the other to Thomasin who was at that time but eight years of age and her heirs for ever and if she died before the age of sixteen years Alice then living Alice should have it to her and heirs and if Alice should die having no issue living Thomasin Thomasin should have the house of Alice to her and her heirs and if both of them died without issue he devised the two houses to the two Daughters of his Son Henry and their heirs and if they died without issue he devised the remainder to a stranger Proviso That if Alice should marry I. S. that Thomasin should have her part to her and her heirs and if Thomasin should dye having no Child that the daughters of Henry should have all and if they died having no Child the remainder to a stranger as aforesaid The Devisor dies then Alice marries N. but not I. S. and enters into her house Thomasin after sixteen years of age dies without issue And if Alice or the daughters of Henry should have the estate of Thomasin was the question And it was holden by three Iustices that the daughters of Henry should have it because that Thomasin did not die within the age of sixteen years and that it being objected that there was no estate tail to any of the daughters but a fee simple conditionall upon a contingent it was at last adjudged 14. Eliz. Rot. 340. that they were Tenants in tail by this Devise in Mich. 37 38. Eliz. 42. Mich. 14 15. Eliz. And Michaelmas 18. Jacobi Judgment This Case was argued by Montague cheif Iustice Doderidge Haughton and Chamberlain who all agreed that by this Devise the youngest Son had not an Estate-tail but a limited see so that by his dying without issue living the elder Son his estate was quite determined and all except Doderidge agreed that the Recovery could not hurt the future Devise But Doderidge was much against this opinion by reason of great mischeif that might ensue by making of Perpetuities in Devises and cited Archers Case and Capels Case but notwithstanding Iudgment was affirmed as aforesaid De Termin Trinitat 18 Jacob. Rot. 1198. Dawtree against Dee and others IN an Action on the Case wherein the Plaintiff Declared That he the fifth of July 16 Jacobi was and is seised in Fee of a Capital Messuage called Moor-place with the appurtenances and of 600 Acres of Land meadow and pasture in Petworth with the said Messuage used of the annual value of 100 l. which Messuage he and those whose Estate he hath in the said Messuage and Tenements therein Farmors and Tenants have time out of minde used to keep good hospitality for the relieving of the Poor in Petworth aforesaid and that in the Church of Petworth aforesaid on the said fifth of July and also time out of minde there hath been and is a little Chancel on the North part of
the day is excluded by this word Quousque Crook contra Who said that the Declaration was insufficient for it ought to have been Tam pro Domino Rege quam pro seipso because here is a contempt to the King But upon full debate of the Case and upon shewing a President to the Court which was Plt. Jacobi Rot. 308. in the Common Pleas between King and Monlenax where the Declaration was for the party onely and all the Prothonotaries did certifie the Court that the greater part of Presidents of such Actions brought in the Common Pleas were for the party only and not Tam pro Domino Rege quam seipso whereupon it was adjudged that it was good either way Judicium and Iudgment was given for the Plaintiff And note that in this case the Iudgment was Quod Defendans sit in misericordia and not Quod capiatur vide 27. Assise 11. 42. Assise 17. Dyer 238. 40 41. Eliz. New Book of Entries 44 45. Bassett against Jefiock and Johnson IN an Ejectione the Iury gave a speciall Verdict to this effect That Queen Elizabeth was seised in fee in Jure coronae of the Mannor of Watton in the County of York and that King James the 15. Martii 2. Jac. did grant the same to William Brown and Robert Knight and their Heirs who the twenty seventh of April 3. Jac. did bargaine and sell the same to Michael Feilding and his heirs who entred and died seised and after whose death the same descended to Basill Feilding as his Brother who made a Lease to the Plaintiff Bridgman It seemeth to me that the Plaintiff hath made a good Title But it was objected that there was no good Title for that it is not found that the Queen died seised or that the Lands descended to the King But it was answered that when the Queen was seised in Fee in Jure Coronae that shall be intended to continue untill the contrary be shewed for when an Estate of Inheritance is once alledged it shall be intended still to continue till the contrary be shewn Plow Com. 193. 43 1. and 202. Judicium And afterwards viz. 19. Jacobi Iudgment was given for the Plaintiff without any argument at the Bench. Trin. 19. Jac. Samborne against Harilo IN an Action of Trespasse for that the Defendant 10. Octob. 44. Eliz the Plaintiffs free Warren at Mouldford in certain places there called Harecombe Harcombe Coppice and the Down did break and enter and did therein hunt without the license of the Plaintiff and three Hares and three hundred Conies did take and carry away Continuando as to the said Hunting and taking and carrying away the said Hares and Conies from the said tenth day of October to the first of November And further declared that the tenth of April 1. Jac. the Defendant the said Warren in the said places did break and enter and therein without the license of the Plaintiff did hunt and twenty Hares did take and carry away continuing the said hunting untill the first of March next after c. And further declared that the tenth of April 2. Jac. the said Defendant the said Warren in the said places did break and enter and therein without the license of the Plaintiff did hunt and forty Hares and four hundred Conies did take and carry away continuing the said hunting untill the first of March following contra pacem c. ad damnum c. The Defendant as to the Vi armis and to the first Trespasse except the entring and hunting in the said place called the Down and the taking and carrying away the three hundred Conies pleaded not guilty And as to the entry hunting and carrying away the said Conies he saith that the said place called the Down is and hath been time out of mind Communis fundus containing by estimation two hundred acres of Land and Pasture and that before the said tenth day of September and before the said Trespasse and at the said time the Defendant was seised of a Messuage and six Yard Land containing a hundred and sixty acres called the Mannor of Southbery in Mulford aforesaid and that the Defendant and all those whose estate he hath in the premisses time out of mind have had Common of Pasture in the said Down for 200. and 40. Sheep Levant and Couchant upon the said Messuage and six Yard Land and that the Defendant and all those whose Estate c. have used for preservation of the said Common as often as the said Common hath been oppressed and troubled with Conies have used of custome to have liberty to hunt and to take the Conies wherefore the Defendant the aforesaid time of the aforesaid first Trespasse and for preservation of the said Common from such oppression and diminution aforesaid into the said Down did enter and there hunted and the said Conies did take and carry away according to the said custome and continuing the said hunting all the said time And as to the second Trespasse besides the entry and hunting in the said places called Harecombe Harecombe Coppice and the Down and the taking and carrying away two hundred Conies he pleaded not guilty And as to the entry and hunting in the said places c. he saith that the said places called Harecombe and Harecombe Coppice are Woodland containing by estimation ten acres and that he was seised in Fee of the said Messuage and six Yard Land and made the same prescription as aforesaid for all his Horses Cowes Heifers Bullocks and two hundred and forty Sheep levant and couchant upon the said Tenements viz. for the Horses Cowes c. at the Feast of S. George and from that time untill the Corne growing in the Feilds of Moulford were carried away and after the Corne carried away for the Sheep untill the fourth of March next after and made the former prescription for the Sheep in the Down And the same prescription also for hunting and taking away the Conies as abovesaid and so did justifie the taking of the said two hundred Conies And as to the third Trespasse besides the entry and hunting in the said places and the taking and carrying away of the said four hundred Conies he pleaded not guilty and as to this plea he made the same prescription as before upon which plea the Plaintiff demurred in Law And if this matter pleaded in Bar was sufficient to bar the plaintiff of his Action was the question And it seemeth to me that there is nothing in the Defendants plea to hinder the Plaintiff from having Iudgment And the better to argue upon this matter I will first endeavour to shew what interest a Commoner hath in the Soile and what things he may do upon the Soile for preservation of the said Common 2. Whether this be a good usage and custome to enable the Defendant to hunt and kill Conies in the Plaintiffs free Warren And as to the first I conceive that he that hath Common in
Also the Bar is not good because the Defendant says he was possessed of five Steers and doth not say of the aforesaid 9 H. 6. 16. In a Quare Impedit brought by the King of a Chantery in the Chappel of St. Thomas in D. and made title to it and the Defendant pleaded that there was a Chantery in the said Chappel and made title to it and traversed the title of the King and adjudged to be no plea because he did not answer to the Chantry whereof the King had declared And Pasch 14 Elizab. Downing against Hayward In a false imprisonment in Suffolk the Defendant did justifie as servant to A. to whom a Commission of Rebellion of Chancery was directed and the Plaintiff pleaded De son tort Demesne and found for the Plaintiff and reversed again by Error in the Star Chamber because that when the matter of justification is upon matter of Record and matter in fact or of matters done in two Counties that cannot joyn the Issue ought to be upon one only And Pasch 15 Jac. Iudgment was given against the Plaintiff by the opinion of Mountague Crook and Doderidge because that all that was done after Sir Thomas Buriets Warrant was illegall but they agreed that the Plaintiff might have an Action for the charging of Felony and for all that was done before the said Warrant But Haughton disagreed who conceived that Iudgment should be given for the Plaintiff because the Plea of the Defendant was no justification for what was done before the warrant but at last Iudgment was given for the Defendant Judgment Mills against Marshall IN a Writ of Error to reverse a Iudgment given for the now Defendâ—nt against the Plaintiff in the Common Pleas upon an Action of Debt on a Bond of twenty pounds Hil. 11 Jac. Ror 1109. And the Bond was made the twentieth of Jan. in the sixth year of King James and it was on Condition to stand to the Award of George Cockrell Edward Sureton and William Wasse to arbitrate of and concerning all matters then depending between â—hem so that the said Award be made and delivered to the parties under the hands and Seals of the said Arbitrators before the twenty ninth of January next The Defendant pleaded that the Arbitrators the twenty fourth of January in the sixth year of King James did make their Award of the Premisses by Indenture under their hands and Seals 1. That all Controversies and Suits between them unto the date of the written Arbitrement should cease and that the Plaintiff should have liberty to drive his Cattell to the River Eâ—ke c. and that the Plaintiff and Defendant should work and maintain at all times from thence forward a sufficient Hedge by the top of the Scar Sicut terrae praedicti Querentis Defendentis extendunt Anglice as their own Ground goes for security of the Cattell and Sheep which said Hill doth extend to the Land of Henry Facherly unto the Pale which then was between the Land of the Defendant and if any Trees or Woods growing in or neer the Woods of either party shall fall in controversie at any time that it shall be arbitrated by the said Arbitrators three or two of them which Arbitrement was delivered to the parties the same day and the Defendant pleaded that he had performed c. The Plaintiff replyed that the Defendant did not make a sufficient Hedge upon the top of the Scarr Prout terra sua extendit the Defendant said that before the Writ purchased viz. the fourth of April 12 Jacob. at Eshdayle in the County aforesaid he did make a sufficient Hedge upon the top of the Hill aforesaid prout terra sua extendit and so they were at Issue and found for the Plaintiff and Iudgment given and the Defendant brought this Writ of Error And I conceive Iudgment ought to be affirmed Coke 5 Rep. Slingsbles Case If one let white Acro to I.S. and B. Acre to I. D. and covenant with them Et quemlibet eorum that he is Owner each of them may have an Action and Coke 5. Rep. Hurgots Case Submission to an Award so as it be delivered to either of the parties ought to be delivered to each of them 39 H. 6. 7. And all the Court did agree that each of them ought to inclose against his own Land only and so the breach was well assigned wherefore the Iudgment was well assigned wherefore Iudgment was affirmed Hilar. 13 Jac. Crawley against Marrow IN an Ejectment upon a Lease by Robert Faldoc dated the one and thirtieth day of August the thirteenth year of King James of two Houses two Orchards forty acres of Land ten of Meadow and fifty of Pasture in Bridgenorth Habendum from the tenth day of the said month for three years whereupon the Plaintiff was possessed untill the Defendant the eighth of October in the same year did enter and eject him ad damnum c. Vpon not guilty pleaded The Iury found the Defendant not guilty for all except one House and five acres of Land and found further that before the said time the twentieth day of Decemb. 11 Eliz. Rowland Hayward Knight was seised in Fee of the said one house and five acres of Land and ten of Meadow and being so seised thereof did enfeoff John Day and Robert Marshall in Fee to the use of John Whitbrooke and Margaret his Wife in Taile the remainder to the right Heirs of John Whitbrooke and that the last of January 12 Eliz. John Whitbrooke did enter into a Recognizance of a thousand pounds in the Chancery to Richard Faldoe which money was not paid to Richard in his life time That John Whitbrooke and Margaret had issue John Whitbrooke Knight and after and before the fourteenth of January 8. Jacob. died and before the said day Richard Faldoe made his Will and did make Amphillis his Wife his Executor and died and Amphillis did make Robert Faldoe Esquire and Thomas Shepheard Knight her Executors and died who undertook the Executorship 14. Jan. 8. Jac. Robert Shepeard and Faldoe had a Scire facias to the Sheriff of Middlesex to have execution of the Recognizance whereupon John Whitbrook was returned dead whereupon they had a Scire facias against the Heir and the Ter-tenant whereupon John Whitbrook was returned Heir and Ter-tenant who pleaded that he had no Land that was the Conusors at the time of the Recognizance or ever since by hereditary descent from the Conuzor in Fee and said that he ought not to be charged as Ter-tenant because he hath no Freehold that was the Conusors The Plaintiff replyed that the said John Whitbrook had divers lands by descent from the said Conuzor viz. A house called the Hospitall thirty seven Tenements or Messuages five Cottages one Tost one Dove-house thirty nine Gardens six Barns fifty four acres of Land thirty nine of Meadow and thirty six of Pasture in Bridgnorth and that the said John Whitbrook was Tenant of the Premisses
a Lease for four years the Lessee entred and the Lessor did grant the Land habendum from Midsomer next for life the Lesses after Midsomer did attorn and adjudged that the Grant was void and in Barkwicks Case 5 Rep. the reason thereof is given because that if the Grant should be good the Grantor should have a particular Estate scil during the first day of the date or in the mean time untill the Grant did begin to take effect without any Donor or Lessor which is against the Rules of Law And although this Grant of the Reversion be but for years yet is it all one for the diversity is between a Lease for years made Tenant in Fee or for life to commence in future and a grant of a Reversion for in the first Case it is but a future Charge upon the Land so that the Lessor hath his former Estate untill the Lease doth begin and the Lessee hath no Term but only interesse termin and therefore Hil. 38. Eliz in the Common Pleas between Row and White it was agreed that if the Lessor be disseised before the Lease begins the Lessee after the day of the Commencement may grant the term otherwise where a Lessee for yeares in possession is outed by an estranger for there his Term is turned into a Right but in the first Case he hath not any Term in esse and therefore it cannot be turned into a Right nor any wrong done thereunto And for direct Authorities in this Case 29 Eliz. in the Common Pleas the Countesse of Kents Case Where one having a Reversion in Fee does grant this Habendum after the death of I. S. for years and it was adjudged a void Grant And Trin. 39 Eliz. Johnson and Somerset in the Common Pleas Lessee for life grants the Reversion Habendum a die dat for ten years and adjudged a void Grant And in the Comment 155. by Brown If one having a Reversion does grant it habendum after a day to come for years this is a void Grant for if it may be granted from a day to come the Grantor shall have a particular Estate in the mean time by his own making which cannot be that one may be Lessor to himself or diminish his own Estate and there it is taken for a Rule that when there is a Rent in Esse or a Reversion c. a man cannot make this to be in esse for a time and to cease for another time or to grant it to another after the death of any or from a day to come relinquishing to himself an Estate in the mean time And in the Comment 197. b. Adams against Wortesbey agreed there that a Reversion cannot passe as a Reversion according to the common understanding thereof from a day to come But Haughton conceived that this Case being a bargain and sale whereby the use doth passe first this may well passe from a day to come Quod nullus dedixit Thirdly It is not averred that the twenty acres in which the Distresse was taken was not part of the Closes excepted so that it may be part of them and then no Distresse for the Rent can be taken there And although it may be gathered by some words in the Bar to the Avowry that the place where c. was parcell of the Land devised to Wiseman yet this shall not help the Conusans as in Cokes 7. Rep. fol. 24 25. where one having Land in Fee and another Land for years did grant a Rent for life out of both the Grantee distrained for the Rent and avowed that the Rent was granted out of the Lease land amongst other lands whereas he ought to have alledged the Rent to be granted out of the Land in Fee only and although the Plaintiff in his Bar to the Avowry hath shewed the truth of the Case yet this will not make the Avowry which wants substance to be good Judgment And all the Court did agree the Avowry to be naught for this exception Wherefore Iudgment was given for the Plaintiff in the Replevin Mich. 14 Jac. Webb and Jucks Case against Worfeild Rot. 266. IN a Writ of Error to reverse a Iudgment given in the Common Pleas for the now Defendant against the now Plaintiffs In which the Plaintiff did declare that the Defendants the fourteenth of Febr. 9 Jac. at Ponick in a place called Brancefords Court did take an Oxe from the Plaintiff ad damnum forty pounds The Defendants did acknowledge the taking of the said Oxe as Bayliffs to Elizabeth Ligon Widow for that the place where c. contained two acres of Land and that one Anne Ligon was seised in Fee of the Scite of the Mannor of Bransford and of seven Messuages three Gardens and a hundred and fifty acres of Land forty two of Meadow sixty six of Pasture five of Wood and seventy of Furzes and Heath in Ponick aforesaid Bransford Leigh Newland and Wick whereof the place where c. is parcell That the sixth of September the twenty fourth of H 8. Anne Ligon did devise this to John Parsons and Anne his Daughter for seventy years after the death of Elizabeth his wife if they or either of them shall so long live rendring five pounds four shillings eight pence Rent at the Annunciation Christmas Midsummer and Michaelmas That the eleventh of August 1554. Elizabeth Parsons died whereupon John and Anne Parsons entred And Ligon dies whereby the Reversion descended to Sir Rich. Ligon her Son and Heir and Sir Richard died wherby the same descended to William Ligon his Son and Heir who died also whereby the same descended to Richard Ligon his Son and Heir who died also and the same descended to Sir Richard Ligon his Son and heire who Hil. 33 Eliz. did levy a Fine Sur Conusans de droit come ceo c. to the use of himself for life the Remainder to the said Elizabeth Ligon then his Wife for life the Remainder to the Heirs of the body of Sir William the Remainder to the right Heires of Sir William 10 May 4. Jac. John Parsons died Pasch 6 Jac. Sir William Ligon and Elizabeth his wife did levy a Fine to the Plaintiff to the use of the Plaintiff for the life of Sir William the Remainder to the said Elizabeth for her life the Remainder to the Plaintiff in Fee Sir William dies whereby the Reversion does remain to Elizabeth his Wife And for seventy eight pounds six pence of the said Rent for three quarters of a year ending at Christmas 9 Jacob. they did acknowledge c. and they averred the lives of the said Elizabeth Ligon and the said Anne Parsons Bar. The Plaintiff said that the Fine levied by Sir William and Elizabeth his wife was to the use of the Plaintiff and his Heirs and justified the putting in of the said Oxe by the license of the said Anne Parsons Absque hoc that the said Fine was to the use of the Plaintiff for the life of
Defendants Father was seised in Fee of divers Lands and made a Feoffment to the use of himself for life the remainder to the Defendant his Son in Tail with divers remainders over with power of revocation by writing under his hand and Seal and publisht in the presence of three Witnesses And then for the consideration of four hundred pounds did enter into this Recognizance to the Plaintiff and dies And whether this Land were extendable or not against the Son was the question And I conceive that by the Statute of the 27. Eliz. this Recognizance may be extended against the Son the words of which Statute are And be it further enacted by the Authority aforesaid that if any person or persons have heretofore sithence the beginning of the Queens Majesties Reign that now is made or hereafter shall make any conveyance Gift Grant or Demise Charge Limitation of Use or Uses or Assurance of in or out of any Lands Tenements or Hereditaments with any Clause Provision Article or Condition of Revocation Determination or alteration at his or their will or pleasure of such Conveyance Assurance Grants Limitation of Uses or Estates of in or out of the said Lands Tenements or Hereditaments or of in or out of any part or parcell of them contained or mentioned in any Writing Deed or Indenture of such Assurance Conveyance Grant or Gift and after such Conveyance Grant Gift Devise Charge limitation of Use or Assurance so made or had shall or do bargaine sell demise grant convey sell or charge the same Lands Tenements or Hereditaments or any part or parcell thereof to any person or persons bodies Politick or Corporate for money or other good consideration paid or given the said first Conveyance or Assurance Gift Grant Demise Charge or Limitation not by him or them revoked made void or altered according to the power and authority reserved or expressed unto him or them in and by the said secret Conveyance Assurance Gift or Grant That then the said former Conveyance Assurance Gift Grant or Demise as touching the said Lands Tenements and Hereditaments so after sold bargained conveyed demised or charged against the said Bargainees Vendees Lessees Grantees and every of them their Heirs Successors Executors Administrators and Assigns and against all and every person and persons which have shall or may lawfully claim any thing by from or under them or any of them shall be deemed taken and adjudged to be void frustrate and of none effect by vertue and force of this present Act. So that this Statute doth not only aide Purchasors of the Lands but those who for a valuable consideration have any charge out of the Land or upon the Land But it may be objected that the Statute doth make the revokable Conveyance void only against the Bargainees Vendees Grantees Object and Lessees but does not speak of any Conuzee But I answer that it appears by the foregoing words Respons that the Statute intends to aide not only Bargainees c. but also all that have any charge out of the Land or upon the Land and although the last words of the Statute doe not speak expresly of Conuzees yet the Statute shâ—ll be expounded to extend to them and the Statute of West 2. cap. 1. Quod illi quibus tenementa data sunt in Taile potestatem alienandi c. which words seem only to restrain the Dâ—nee in Tail yet in the 5. Edw. 2. Form 52. the issue is thereby restrained and 3. Edw. 3. Formedon 46. that Tenant in tail cannot charge the Land no more then alien can forfeit the Land so that if he grant a Rent or acknowledge a Statute or Recognizance or commit Felony or Treason and dies the Issue shal have the Land discharged And this Statute hath alwaies been taken as to the equity thereof to releive Purch sors and those who have and therefore in Coke R. 3. 82. B. Standen and Bullocks case Mich. 42. 43. Eliz. where a man had conveyed his Land to the use of himself for life and then to the use of divers others of his blood with future power of revocation as after such a Feast or after the death of such a one and after and before the power of revocation commenc'd he for a valuable consideration did bargain and sell the Land to another and his Heirs this bargain and sale is within the remedy of the Statute for although the Statute saith the said first Conveyance not by him revoked according to the power by him reserved which seems by the literall sense to be intended of a present power of revocation for no revocation may be made by force of a future power untill it comes in esse yet it was holden that the intention of the Act was that such a voluntary Conveyance which was originally subject to the power of revocation be it in present or in future shall not be good against a Purchasor bona fide upon valuable consideration and if other construction be made the Act will signifie very little and it will be easie to evade such an Act. And so if A. hath reserved to him a power of revocation by the assent of B. and then A. bargains and sells the Land to another this bargain and sale is good and within the remedy of the said Act. The King against Sir John Byron Knight IN a Quo Warranto for that the Defendant for a year past hath used and yet doth use without any Warrant within the Mannor of Colswick in the County of Nottingham within the bounds of the Kings Forest of Sherwood and within the reguards of the said Forest to have a Park within the said Mannor with a Pale Hedge and Ditch inclosed being two hundred acres of Pasture and a hundred acres of Wood within the said Park Et ad venandum capiendum occidendum apportandum in the said Park and two hundred acres of Pasture and a hundred acres of Wood omnes omnimodas damas Domini Regis Forrestae suae praedict in parcum praedict praedict 200. acr pasturae 100. acr Bosci aliquo tempore venand occidend Ita quod Forrestini Domini Regis forestae praâ—dict nec aliquae aliae personae quaecunque intromittantur ad venandum fugandum intra parcum praedictum 200. acr pasturae 100. acr Bosci sine licentia defendentis The Defendant pleaded that John Biron Knight the Defendants Grandfather was seised in Fee of a Messuage of a hundred acres of land two hundred acres of Meadow three hundred acres of pasture and a hundred acres of wood in Colwick in the County aforesaid now and time out of mind called the Mannor of Colwick within the meets and bounds of the Forâ—st aforesaid And that the said John Byron the Grandfather and all those whosâ— Estate the said John Byron hath in the aforesaid house and a hundred acres of land two hundred of Meadow and three hundred of Pasture and a hundred of Wood in Colwick aforesaid have had
held and have accustomed to have in the aforesaid two hundred acres of pasture and a hundred of wood parcel of the aforesaid Tenements called the Mannor of Colwick belonging to the said Mannor of Colwick enclosing ditching and hedging at their will and pleasure with all liberties priviledges and Franchises to the said Park belonging and in the said Park from the time aforesaid have used to have and to keep Deer and from time to time to constitute and appoint a Keeper of the said Deer in the said Park who from the aforesaid time have used to keep the same ac ad venandum fugandum occidendum capiendum asportandum omnes omnimodas damas in eodem parco de tempore in tempus existentes ita quod nullus forestarius Domini Regis Forestae praedictae nec aliquae aliae personae quaecunque intromittantur ad venandum fugandum in parco praedicto sine licentia praedicti Johannis avi And set forth that the said John the Grandfather died seised whereby the said Mannor c. descended to Sir John Byron his Son And that Hillary 3. Jacobi a Fine was levied between Sir Peter Leigh and other Plaintiffs and Sir John Byron the son Defendant of the said Tenements to the use of the said Sir John for life the remainder to the Defendant in tail And that the seventeenth of December 10. Jac. did let the Premisses to the Defendant for eighty years if the Lessee should so long live wherby the Defendant the 26. Mar 11. Jac was and is thereof possessed did aver that the Mannor of Colwick in the information and the said Messuage a hundred acres of Land two hundred of Meadow three hundred of Pasture and a hundred of Wood to be the same and did also aver the life of the Lessor The Attorney Generall for the King did reply that before the information sc 9 Octobr. 19. Jacobi and long before and continuing after untill the exhibiting of this information the Defendant the Park and Tenements aforesaid with Ditches Hedges and Fences had so sleightly inclosed that the Kings Deer of the aforesaid Forest for defect of sufficient inclosing of the Park and Tenements aforesaid through the default of the Defendant did enter and the Deer of the King into the said Park and Tenements aforesaid for the cause aforesaid entring the Defendant did very unjustly kill the said Deer in the said Park and Tenements aforesaid The Defendant did maintain his Bar and traversed without that that the Defendant the Park and Tenements aforesaid with such sleight Fences Hedges and Ditches inclosed did keep the same Quod Damae Regis de forresta praedicta de tempore in tempus intra tempus praedictum in parcum tenementa praedicta pro defectu sufficientis inclusurae parci tenementorum praedictorum in defectu defen intraverunt absque hoc quod Defendens Damas Regis de forresta praedicta in parco tenementis praedictis pro defectu sufficientis inclusurae parci tenementorum praedictorum in defectu defendentis minus juste interfecit modo forma prout c. Whereupon the Attorney demurred And I conceive that Iudgment ought to be given for the King First Because the plea in Bar and the Rejoynder made by the Defendant is altogether insufficient for divers causes Secondly As to matter in Law And as to the first The Quo Warranto doth suppose that the Defendant did use the liberties there mentioned within the Mannor of Colwick being within the meets and bounds of the Forest of Sherwood and within the Reguards of the said Forest and the Defendant did know this to be within the meets and bounds of the said Forest but does not answer whether it be within the Reguards or not for it may be within the meets and bounds of the said Forest and yet not within the Reguards as if the Mannor were disforested by Carta forestae because it was a Subjects Mannor and not the Kings yet it remains within the meets and bounds of the said Forest but not within the Reguards for now by the disforesting it is made purlue and not subject to the Reguards and Lawes of the Forest as to the Owner of the Mannor Vide Carta Foresta fol. 1. and yet notwithstanding this Statute if the King had granted this Mannor to be free of the Reguards or out of the Reguards yet is it still within the meets and bounds of the said Forest Secondly The Dendant makes Title to the liberties whereof Sir John Byron his Grandfather was seised in Fee viz. of a Messuage a hundred acres of land two hundred of Meadow three hundred of Pasture and a hundred of Wood in Colwick now and time out of mind called the Mannor of Colwick Quodque ille omnes illi Quorum statum idem Johannes habuit in tenementis praedictis habuerunt tenuerunt habere consueverunt in praedictis 200. acris pasturae 100. acris bosci parcellis praedictorum tenementorum vocat mannerium de Colwick praedictum parcum tenementa praedicta vocat mannerium de Colwcik spectant pertinent c. So that the Defendant doth not prescribe but doth alledge only that Sir John Byron and those whose estate he hath have used to have a Park the which is no Title to the Park for that ought to be time out of mind Thirdly The Defendant doth claim to have a Park in the aforesaid two hundred acres of pasture and a hundred acres of wood whereas there is no speaking of two hundred acres of pasture before and therefore he ought to have said in two hundred acres of pasture parcell of the said three hundred acres Fourthly The Defendant doth not answer to the killing of the Kings Deer of the Forest but doth only justifie the killing of all Deer time out of mind being in the said Park Fifthly The Rejoynder is a manifest departure from the Bar for in the Bar he claimeth to have a Park ditched and hedged Per voluntatem eorum inclusum so that by this pretence he may keep the Park with such low Hedges as he will and yet in his Rejoynder he doth traverse absque hoc that he kept the Park adeo parvis sepibus Fossatis quod Damae Regis de foresta praedicta in parcum praedictum pro defectu inclusurae intraverunt absque hoc c. So that the Defendant by his Rejoynder doth make an Issue upon that which he doth justifie in his Bar and doth upon the matter deny in his Rejoynder the matter alledged by him in his Bar. And as to the matter in Law I conceive that the Defendant cannot prescribe to have a Park in such manner as he pretendeth for that such prescription is quite contrary to the nature of his Royall Franchise of his Forest and is to the destruction of it for a Forest is a Royall Franchise so that regularly none can have it but the King as it was adjudged in this Court in a Quo Warranto
infeoff another of all the Lands whereof my Father died seised in an Action agâ—inst me I ought to set forth the certainty of the Land whereof he died seised And although the Executor does represent the person of the Testator yet the Act of the Executor is not the Act of the Testator not like to the Case of an Attorney 32. Ed. 3. Bar 264. If one be bound to enfeoff another it is sufficient if the Attorney be ready to make the Feoffment and so in the 19. H. 6. the same Law to confesse an Action but when an Executor does an Aâ—â— for the Testâ—tor it is otherwise as if the Executor sell Land it must be so pleaded for a dead person cannot sell Land And afterwards the Plaintiff discontinued his Suit Hillar 13. Jac. Norris Plaintiff against Henry Baker and Elizabeth Baker Defendants IN an Action of Trespasse for that the Defendants the 28. Octob. 13. Jac. by force and armes c. upon one Thomas Davis and Nicholas James Servants and Workmen of the Plaintiff did make an assaâ—â—t and them there labouring in the service of the Plaintiff did wound c. whereby the Plaintiffs lost their Service to his damage of forty pounds c. The Defendants as to the forme and according did plead not guilty whereupon issue was joyned And as to the residue of the Trespasse they say that at the time of the Trespasse the said Henry was and yet is possessed of an ancient House with the appurtenances in Worcester for divers years to come the which house doth joyn to a void peice of land in Worcester against the South and that at the time wherein c. and also time out of mind there were ancient Windows or Lights in and upon the South-side of the aforesaid house against the said peice of land through which the light did enter into the said house and the said Henry did enjoy great and necessary Easements and Commodities by reason of the open Ayre and light shining and entring into the said house by reason of the said Windows and Lights aforesaid and the said Thomas Davis and Nicholas Jones maliciously plotting and intending to deprive the said Henry of all the Easement and commodity of the aforesaid Windows and Lights Et Messuagium illud horrida tenebritate obscurare the said day and year did intend to build a house upon the said peice of land and did there then erect divers peices of Timber for the building of the said house which house if it had been built the said Henry should have lost the said easements and commodities wherefore the said Henry and the other Defendant who was his Servant by his commandment the said time wherein c. being in the said house did hinder the said Thomas Davis and Nicholas Jones from building the said house and the Defendants with a Staff did thrust down the said peices of Timber wherewith the said Thomas Davis and Nicholas Jones would have built the said house and did thrust and put away the said Thomas Davis and Nicholas Jones least they should build the said new house Prout eis bene licuit which is the same Assault and Battery of the said Thomas Davis and Nicholas Jones whereof the Plaintiffs complain Vpon which Plea the Plaintiffs demurred in Law And I conceive the Iudgment ought to be given for the Plaintiff Because the Defendants have made no answer to the first matter of the Action which is the losing of the Service for it is not shewne throughout the Bar that the said Davis and Jones did make the building as Servants to the Plaintiff or by his commandment and 2. H. 6. 13. In a Trespasse for cutting of Trees where the Defendant pleaded that the place where c. was the Freehold of I. S. who let the same to the Defendant at Will and adjudged no plea by the Court unlesse he had said by which he entred and cut the Trees and so justified the Action 3. H. 6. 54. In a Trespasse for beating of his Tenant the Defendant said he was his Servant and the Issue was whether he was his Servant or not 31. H. 6. 12. B. 5. H. 7. 3. 20. H. 7. 4. and 20. H. 7. 5. A Master shall not have an Action for beating of his Servant unlesse he saies Per quod servitium amisit The cause of Iustification is because the Servants did endeavour to erect a Building which is not issuable There is no cause of Iustification for how can the Defendant know that the building will be to his hurt or nusance to him untill the building be erected and if it be to his nusance he may abate the same by Law The Plea is double for first they set forth that they had Lights c. and then they alledge that the new house was built for the word if is wanting and 33. H. 6. 26. In an Action on the Case the Writ was good Cum ipse habeat quoddam Cheminum ratione tenurae c. the Defendant levavit murum per quod querens Cheminum habere non potest c. It was holden by Prisoit that the Writ was not good by reason of the Repugnancy And this Case was argued again by Barcley for the Defendant and by me for the Plaintiff Judgment Tr. 14. Jac. And all the Court held the Plea in Bar to be insufficient for which Iudgment was given for the Plaintiff Rot. 256. Hillar 13. Jacob. Edward Smith for the King and himself against Stephen Bointon IN an Information because the Defendant between the twentieth of June 12. Jac. and the fourth of July next after at Westminster in the County of Middlesex did buy ingrosse and obtain into his hands by buying and contracting of divers persons unknown three hundred quarters of Barley of the value each quarter of twenty pounds a hundred quarters of Beans of the value of twenty pounds every quarter Ad revendendum contra formam statuti c. whereupon an Action accrued to the King and the Informer to have of the Defendant foure hundred pounds viz. the value of the Barley and Beans whereof the Informer prayed a moyety c. The Defendant as to the Ingrosment between the twenty second of May 13. Jac. and the said fourth of July next after pleaded not guilty And as to the Ingrosment between the said twentieth day of July 12. Jac. and the said twenty second of May next after The Defendant saith that before the exhibiting of the said Information sc the twenty second of May 13. Jac. one Robert Beadow did exhibite an Information in the Exchequer for the King and himself against the Defendant because the Defendant between the first of June last and the day of the said Information did ingrosse five hundred quarters of Wheat of price every quarter thirty pounds five hundred quarters of Barley of price every quarter twenty pounds five hundred quarters of Oates of price every quarter twenty shillings and five hundred quarters of Beans and Pease
of price every quarter twenty shillings Ad revendendum contra formam statuti c. And did aver that Stephen Bointon named in the first Information and Stephen Bointon named in the last Information are one person and not divers and that the said three hundred quarters of Barley and a hundred quarters of Beans specified in the last Information are parcell of the aforesaid Barly and Beans in the first Information Unde petit judicium of the said last Information the said first Information depending determinable Vpon which Plea Mr. Attorney demurred in Law And I conceive that Iudgment ought to be given for the King and the Informer for two reasons The offence in the first Information is alledged to be between the first of June 12. Jac. and the two and twentieth of May 13. Jac. so that for any thing appears to the contrary this may be done between the first of June 12. Jac. and twentieth of July next which is not any part of the time contained in the last Information and then that is no answer to the ingrossing between the twentieth of July 12. Jac. and the two and twentieth of May next unlesse he had averred in fact that it was within the time contained in the last information The twenty second of May 13. Jac. is not answered to at all and it may be that the Ingrosment was on that day for the plea of Not guilty goes only between the two and twentieth of May 13. Jac. and the fourth of July next and the last information is between the first of June 12. Jac. and the twenty second of May so that the twenty second of May is utterly excluded and that is part of the time contained in the last information The first Information is for ingrossing of Beans and Pease being a mixt Grain and the last Information is for Beans only and Beans by themselves cannot be parcel of Beans and Pease being a mixt Graine And after Iudgment was given for the King and the Informer Judgment and that principally for the second exception Michalm 14. Jacob. Frosett against Walshe IN an Ejectment of one Messuage ten acres of Land six of Meadow and thirty of Pasture in Mansell Lacy upon a Lease made by Hen Hering the younger the twenty fourth of October 13. Jac. to have from the twenty third of October last past unto the twenty second of October next c. The Defendant pleaded not guilty And the Iury found that the said Tenements were Copyhold parcell of the Mannor of Mansell Lacy devisable in Fee and that there is a Custome within the said Mannor that every customary Tenant of the said Mannor of any Inheritance may surrender the said Tenements out of Court into the hands of two customary Tenants of the aforesaid Mannor to the use of any person or persons and their Heirs and that the said surrender by the Custome of the said Mannor ought to be presented at the next Court to be holden within the said Mannor otherwise the surrender to be void And they found that one Thomas Herring was seised in Fee at the will of the Lord according to the custome of the Mannor of the said Tenements and that he and Anne his Wife the twenty second of Decemb. the 28. of Eliz. at Mansell aforesaid did surrender the said Tenements out of Court into the hands of William Garrows and Hugh Ireland then being two customary Tenants of the said Mannor to the use of Rowland Whittington George Whittington and Robert Whittington and their Heirs and that the said Rowland George and Robert by vertue of the said surrender did enter into the said Tenements and held the same and paid the Rents thereof that were due to the Lord and that the said Thomas Herring before the Ejectment died and that no Court was holden within the said Mannor during his life nor ever since and that the said Rowland Whittington afterwards and before the Ejectment died and the said William Garnar and Hugh Ireton also died before the Ejectment and that the said Henry Herring is the Son and Heir of the said Thomas Herring and that the said Henry the twenty fourth of October the 13. Jac. did enter and made the Lease to the Plaintiff who did enter and was possest untill the Defendant as Servant of the said Rowland and Robert Whittington the twenty sixth of October the same year did enter and oust the Plaintiff And if it seemed to the Court that the Defendant was guilty the Iury found for the Plaintiff and if otherwise for the Defendant And I conceive that Iudgment ought to be given for the Plaintiff The Custome is precisely found that the surrender which is made out of Court is good so it be presented at the next Court so that here is a perfect assurance made according to the custome of the Mannor which the Copyholder that surrenders cannot avoid unlesse something fall out afterward that may avoid the surrender for as to the Cases that have been put by the other side that every Custome shall be taken strictly and therefore the custome of Rent that saves the Land of him that is hanged for Felony does not extend to an Attainder by Outlawry nor the custome that an Infant of the age of fifteen years may make a Feoffment does not warrant a Lease and Release I agree all these to be Law but I cannot conceive how any of them can be applyed to the present question for I do not endeavour to extend this custome in any point beyond the true expresse Letter of the custome viz. That the surrender shall be good if it be presented at the next Court. Object 1 But there have been two things objected to impeach this surrender That Herring who made the surrender is dead And as to that I conceive that the surrender is good notwithstanding for every Copyholder of Inheritance hath as good power to dispose of his land according to the Custome as a Tenant in Fee-sipmple hath by the Rules of the Common-law for although he that comes in by surrender ought to be admitted by the Lord yet all the Estate passeth from the Copyholder who surrenders and the Lord is but an instrument to make the admittance and he gives not the Estate and therefore it follows that the Estate is given by the Copyholder himself Cooks Rep. 4. Charls Pennifathers Case That Copyholders derive not their Estates from the Estate of the Lord and therefore if a Disseisor or Tenant at sufferance do make an admittance upon a surrender or upon a descent this shall binde the Disseisee and if Tenant for years of a Mannor or a Tenant at will does make a voluntary Grant according to the custom this shall binde him in the Reversion and the same Law of a Feoffee upon Condition Dyer 342. And so if there be Lord of a Mannor wherein are Copyholds for life and the Lord marries and grants Copies the Wife shall not avoyd this 9 Rep. Swans Case and 4 Rep.
at the time of the Declaration the Subjects of the King of Spain I conceive that the Plaintiff ought to alledg that these spoyls were to the damage of the Plaintiff I conceive that he ought to have named one of the Subjects of the King of Spain and not to leave it so uncertain to the Iury as to have them charged to enquire of all his Subjâ—cts for the Plaintiff takes notice of the persons that they were the Subjects of the King of Spain and therefore he may as well know their names Dyer 99. 285. An Indictment of Murder of one unknown or stealing the goods of one unknown is good because he may be discovered And after the Plaintiff discontinued his Suit Holland and others against Jackson and others RIchard Holland and Margaret his wife one of the daughters and heirs of the body of Sir Robert Langley Knight and William Dausey and Ann his wife the other daughter of the said Sir Robert brought a Writ of Error to reverse a common Recovery had at Lancaster die Lunae 13 Elizab. In a Writ of Entry sur Disseisin in the Post between the said Francis Jackson and Henry Oyden Plaintiffs and Robert Leigh and James Haye Tenants of 22 Messuages 10 Cottages 20 Tofts 22 Gardens 20 Orchards 300 acres of Land 200 of Pasture 40 of Wood 500 of Furze 100 of Turbary c. with the appurtenance in Alkerington and Prestnitch wherein the Tenants did vouch Thomas Leigh and Katherin his wife who did appear by George Butler their Attorney who entred into warranty and did vouch William Forster present in Court who did warrant c. ad damnum c. for that before the purchase of the said Writ of Entry and since the 27 H 8. Sir Robert Langley was seised in see of the said Tenements and thereof did infeoff Thurston Tilsley Fitton and Hopwood in fee to the use of himself for life and after to the use of the said Katherin in T. the remainder to the use of the right heirs of the body of the said Sir Robert the remainder to the use of his heirs Sir Robert was seised for life with remainders over c. and then Sir Robert dyed seised after whose death the said Tenements did remain to Katherin in Tayl the remainder to Katherin and the Plaintiffs Margaret and Ann and one Dorothy as daughters and heirs of the body of Sir Robert the Reversion to the said daughters and their heirs whereupon Katherin did enter and was seised in Tayl with Remainders as aforesaid and did marry Thomas Leigh whereupon the said Recovery was had in manner and form as aforesaid after which Recovery Thomas Leigh and Katherin did dye without issue of the body of Katherin and Dorothy dyed also without issue whereby the right of the said Tenements did remain to the said Margaret and Ann as daughters and heirs of the body of the said Sir Robert The Writ of Recovery was certified and the Plaintiffs assigned Error for that Katherin was within age at the time of the appearance of her and her Husband by the said Attorney and was within the age of 21 years at the time of the Iudgment to wit of the age of eighteen years and no more Hereupon a Scire facias was awarded against the Recoverors who being returned dead a Scire facias was awarded against the heirs and Ter-tenants whereupon Ambrose Jackson was returned son and heir of the said Jackson and Thomas Hulm and Margaret his wife and Isabel Ogden daughters and heirs of the said Ogden and William Ogden and others were returned Ter-tenants and the heirs and Ter-tenants did appear and pleaded several Pleas some to the Writ and some in Bar and after the Writ of Error was discontinued Hillar 11 Jacob. The Plaintiffs purchased a new Writ of Error of the said Tenements omitting the Rent and assigned the said Error whereupon a Scire facias was awarded against the Heirs and Ter-tenants which was returned to wit that Margaret Hulm was dead without issue and thereupon a Scire facias was directed to the said Jackson and Ogden the Heirs c. and Katherin Leigh and Robert Leigh and fourty other Ter-tenants who did appear and thereupon Whereupon the said Error was assigned The Ter-tenants did plead that John Chatterton was Tenant of a Cottage c. in A. aforesaid parcel of the said Tenements The Heirs pleaded in null est errat The Plaintiff did acknowledg the Plea of the Ter-tenants and thereupon a Scire facias was awarded against John Chatterton who did appear and the Plaintiff did assign the said Error whereupon Jane Jackson one of the Ter-tenants did plead that Katherin was of full age c. whereupon issue was joyned And George Chatterton and ten others of the Ter-tenants did plead non-tenure And the Heirs of the Recoverors did plead in null est errat And Mary Taylor did plead that before the Recovery a Fine was levyed the 4 Septemb. 13 Elizab. between the said Robert Leigh and James Haye Plaintiffs and Thomas Leigh and Katherin his Wife Deforceators of the said Tenements whereupon the said Thomas and Katherin did acknowledg the said Tenements to be the right of the said Robert c. with warranty against them and the Heirs of Katherin which Fine was proclaimed c. and was to the use of the Conusees and their Heirs until the Recovery should be perfected and then the seventh of March the 13 Eliz. the Writ of Entry was pursued which was to the use of Thomas and Katherin his Wife in Tayl the Remainder to Thomas and his Heirâ— Thomas and Katherin did demise to the said Mary a Cottage and three acres of Land parcel of the said Tenements for life c. wherefore she did demand Iudgment of the Writ against the Fine with proclamations Robert Leigh and 28 others of the Ter-tenants did plead the said Fine with warranty and that Katherin dyed without issue and that Thomas was seised in fee whose estate they have and that Thomas dyed and that after the death of Katherin the said warranty did descend to Margaret and Ann as sisters and heirs of Katherin and did demand Iudgment if they should maintain this Writ against the said Fine and against the warranty The Plaintiffs as to the said several pleas of non-tenure in null errat the fine with proclamations and the warranty did severally demur in Law to which the Defendants did severally joyn And I conceive that the Writ of Error does well lie and that the Recovery is erroneous and therefore ought to be reverst And for the Argument of the Case I shall divide it into three parts If the Writ of Error will lie 1. In respect of the Plaintiffs 2. Notwithstanding the plea of non-tenure pleaded in abatement thereof by Chatterton and ten others of the Ter-tenants Whether there be any Error in the Recovery and if it be such an Error as the Plaintiffs may assign If the Plaintiffs be barred thereof by the pleas
Sister and he to enter at the age of one and twenty years and if any of his Sons died before the age of one and twenty years his part should be divided amongst the Sâ—â—vivors and so every one should be heire to the other and all of them came of age and paid the money and it was holden that each of them had an Estate in Fee and not in Taile and Dyer 357. Chick did devise the Fee-simple of a Messuage to A. his wife and after her death to W. his Son which W. was his Heir apparent A. did enter and married again and dyed having Issue by him and adjudged that A. had an Estate for life the Reversion to W. for life the Remainder to A. in Fee and 14 Eliz. a. One seised of Lands in Fee devised them to B. and the heirs of his body and if he died that it should remain to A. in fee yet B. shall have an Estate in Taile by the first words and shall not be restrained by the last words And Trinit 37 Eliz Rot. 382. Bacon against Hill and having three Tenements did devise them to his wife for life and then one of them to each of his three Sons and if any did die his part should remain to the Survivors and if any had Issue and died before he entred his Issue should have it and R. one of the Sons had Issue the wife died and R. died and adjudged that his Issue should have nothing Object But it may be objected that Francis cannot die without heire so long and his Sisters are living and therefore it shall be construed that the Devisor did intend only the heires of his body Answer But it does not appear that the Daughters were of the whole blood to Francis so that they may be heires to him for although where a Brother or Sister is spoken of in pleading it shall be intended of the whole blood because a Brother of the half blood is but half a Brother yet here when the Father onely does call them his Sons and Daughters and is so found by the Iury that they were his Sons and Daughters yet this is no proof that they were of the whole blood for they are daughters to the Father by what ever wife they were had And so I conceive upon the whole matter that the wife does take an Estate for life by the devise and that the Son shall have a Fee-simple but yet subject to this future devise sc if he die without heire that the Wittingb shall have it and so all the Will shall be good except the limitation to the Daughters for their lives and it cannot be intended that the Devisor did intend to prefer the Wittingb being his collaterall Cosins before the Issue of his Daughters which Issues are of his owne body Judgment And before that I argued againe Hillar 14 Jacob. Iudgment was given for the Plaintiff for they all agreed that Francis had but an Estate-tail by these words of the Will viz. If M. A. and A. do out live their Mother and their brother Francis and his heires and Francis cannot die without heire so long as his Sisters are living and therefore the word Heirs shall not be intended Heires generall but heires of his body wherefore Iudgment was entred ut supra c. Mich. 14 Jac. Mason against Manning IN an Ejectment upon a Lease made by John Crooker and Christopher Crooker the two and twentieth of May 14 Jac. of two houses forty acres of Land forty of Meadow and forty of Pasture in S. Needs Habendum from the Annunciation last past for three years The Ejectment was the twenty third of May in the same yeare The Defendant as to the force and armes c. pleaded not guilty and as to the residue he said that Queen Elizabeth was seised in Fee of the Mannor of S. Needs whereof the said Tenements are and time out of mind were parcell and that the Queen the ninth of March in the one and thirtieth year of her Raign by her Letters Patents shewed here under the Exchequer Seal did devise the said Tenements to Robert Croker for life the Remainder to Edward Bett for life the Remainder to Edward Adams for life the Queen dies whereby the Reversion does descend to the King Robert Croker dies and the thirtieth of March 14 Jacob. Edward Bet doth devise the said Tenements to the Defendant from the Annunciation last past for three years whereby he entred and was possessed untill the said John and Christopher Croker did oust him and did disseise the said Edward Bet whereby they were seised in fee by disseisin and made the Lease to the Plaintiff upon which the Defendant claiming his term did enter and did out him and the Defendant was and yet is possessed of the said Tenements the Reversion to Edward Bet for life the remainder to Edward Adams for life the Reversion to the King unde non intendit quod curia domino Rege inconsulto ulterius procedere vellet aut debeat and prayed ayd of the King and did aver the life of Edward Bet. And I conceive that ayd is not grantable in this case 1. Because that it is but an Action of Trespass 4 H. 6. 10. Tenant for life of a Lease from the King shall not have ayd of the King for that no Freehold is to be recovered and he is able to plead to all matters in a Trespass 2. The Defendant shall not have ayd of the King because he is not his immediate Tenant but he may pray in ayd of Edward Bet his Lessor and he of the King 1 H. 4. 18. In a Scire facias to execute a Fine the Tenant said that the Land was given to him for life the remainder to N. in Tail the remainder to W. in fee who was attaint of Treason whereby his remainder came to the King and he prayed ayd c. And the Court said that he ought to pray ayd of N. and he of the King and after he said that W. was also attaint of Treason whereby he had ayd of the King 33 H. 6. 29. In a Trespass where the Defendant justified as Baily of a Hundred to distrain for amercements and prayed ayd of the King and by Prisot he could not have it for the Sheriff is the immediate Officer to the King and to this agrees 11 H. 6. 39. where such justification was for taking of Toll and 9 H. 6. 26. In a Replevin the Defendant made Conusance as Baily of I. who held of the King for life and prayed ayd of the King and adjudged he should not have it for there is no privity betwixt the King and him because he is not immediate and 28 H. 6. 13. A man shall not have ayd of the King and Queen or of the King and his Tenant for life but first of the Queen or Tenant for life and they of the King and a man shall not have ayd of the King but where he is Baily or Servant
immediately to the King Judgment And for these Reasons the Defendant was outed of his ayd by Iudgment of the Court. Michaelm 14 Jacob. Lightfoot against Lerret and others IN an Action of Trespass for that the Defendants 20 Novemb. 13 Jacob. two Heifers of the Plaintiff of price 6 l. at Bentley and Sprodburgh did take chase and drive away c. Richard Lerret did plead not guilty and the other Defendants viz. William Lerret and Edward Taylor as to one of the Steers did plead Not guilty and for the other that the King was seised in Fee of the Mannors of Doncaster Arkse and Sprodburgh whereof the Bridges called Wilcomb-Bridg and St. Mary-Bridg are and time out of mind c. were within the said Mannors That the 14 of January 13 Jacob. the King did grant to Edmund Duffield and John Babington and their Heirs Tolnetum omnium singulorum pecudum that did pass and repass upon the Water and River of Dun in the County aforesaid at and by the said Bridges to have and receive for the same as there the Kings of this Realm were used for such Toll or passage rendering 10 s. Rent to the King And they said that before and at the time of the making of the Grant the Toll was used to be taken at a Bridg called Burrow-Bridg in the County aforesaid for every twenty Cattel that past by that Bridg 6 d. That the 28 Junii 13 Jacob. Duffield and Babington by Deed enrolled and for a sum of mony did bargain and sell the said Toll to John Richardson and his Heirs That the third of June in the said year John Richardson did bargain and sell the Toll to the said William Lerret and his Heirs And the Plaintiff before the Trespass was possest as well of the said Steer as of thirty nine others and that the said Plaintiff at the time aforesaid did drive the said Cattel by the said Willow-Bridg and St. Mary-Bridg whereupon the said William Lerret did demand of the Plaintiff 12 d. for Toll of the said fourty Cattel which the Plaintiff did refuse whereupon the said William in his own right and the other as his servant did take the said Steer by distress for the said 12 d. And prayed ayd of the King c. The Plaintiff replyed that the said Willow-Bridg and St. Mary-Bridg were common Bridges for passage for all the Kings Subjects of the City of York and other Cities and Towns in the North parts to Doncaster and from thence to London and to the Cities and Towns in the South parts at their pleasure with Carts c. and that neither at the making of the Letters Patents nor at any time before any Toll was taken or received for any passages over the Bridges aforesaid Whereupon the Defendants demurred in Law and the Plaintiffs joyned And I conceive that Iudgment ought to be given for the Plaintiff The Grant is of Toll for Cattel passing and repassing upon the River of Dun by the said Bridges and it is not alledged that the Cattel did pass over the said River It is alledged that the two hedges are within the Mannor but it is not aledged that they are parcel of the Mannor so that it may be upon the Land of a Freeholder and if so the King cannot grant the Toll No certainty is granted but onely to take and receive c. and it is not alledged that at any Bridges any Toll was taken but onely at Burrowbridg No Town is alledged in which Burrow-Bridg is And Pasch 15 Jacob. It was agreed by all the Court that the Grant was utterly voyd for the â—ncertainty viz. to take such toll as was taken there and otherwhere within the Realm of England c. And also that the Plea of the Defendant was utterly insufficient for the other causes aforesaid wherefore it was adjudged that the Defendants should be outed of their ayd and that they should plead in chief c. Pasch 14 Jacob. Parker against Sanders IN an Information upon the Statute of 39 Eliz. cap. the 2d. as well for the King as for himself for that one hundred acres of Land in Nether-Winchenden in the County of Bucks 17 Novemb. 1 Eliz. and before the 24 of Octob. 29 Eliz. were converted from tillage to sheep-sheep-pasture and grasing of Cattel which 100 acres were arable Land such as were used in tillage for twelve years together next before the said conversion according to the nature of the soyl and course of tillage in that part of the Country and that the said 100 acres were not restored to tillage nor layd for tillage before the first of May 1599. nor ever since And that the Defendant the 26 of March the 13 of King James was occupier of the said hundred acres and did so continue until the 27 Martii 14 Jacob. and that the Defendant the 27 of March did not restore nor lay to tillage the said hundred acres but for the said time converted them into pasture contrary to the form of the Statute c. The Defendant pleaded Not guilty And the Iury for the fifty acres of Land did finde the conversion after the 17 of November 1 Elizab. and before the 24 of October the 39 of Elizabeth and that they were used in tillage for twelve years together before the said conversion and that they were not restored to tillage before the first of May 1599. nor ever since and that the Defendant the 26 Martii 13 Jacob. was occupier of the said fifty acres from that time unto the 27 Martii 14 Jacob. continuing his occupation thereof and was not occupier thereof before the 26 Martii 13 of King James And that the Defendant nor any other before the 27 Martii 14 Jacob. restored or layd the said fifty acres to tillage but continued them in Pasture during the said time And prayed the advice of the Court. And I conceive that Iudgment ought to be given for the King and the Informer for 50 l. viz. twenty shillings for every one of the said fifty acres And to this purpose the Statute hath two clauses the first is a commandment and this doth consist of two parts 1. That all Land converted from tillage to pasture since the 7 of Novemb. and before the 24 of Octob. 39 Eliz. being before used in tillage for twelve years together shall be restored to tillage before 1599. so as the whole according to the nature of that soyl and course of husbandry uses within that part of the Country be within three years at the least turned to tillage by the occupiers and possessors therof 2. And so shall be continued for ever The second clause doth contain the forfeiture viz. That if any shall offend against the premisses every such person shall forfeit for every acre not restored or not continued as is aforesaid 20 s. for every year that he so offends And Iudgment Judgment was given for the King and the Informer for otherwise the Statute shall be utterly
an Action of Debt for forty pounds upon the Statute of 2 Edw. 6. For that the Plaintiff is and was for two years past Rector of Bifeild and the Defendant the first of October 12 Jacob. was Occupier of eighteen acres of Land and thirty of Pasture in Bifeild aforesaid and did continue the occupation thereof for a yeare after and the first of Septemb. the 13 Jacob. did mow and reap the Hay growing upon the Meadow and the Grain viz. Barley Wheat Pease Beans and Oates growing upon the Land and the same day did take and carry them away without setting out the Tithes or agreeing with the Plaintiff for them and did aver the value of the Tithes to be thirteen pounds six shillings eight pence The Defendant pleaded Non debet The Iury found that King Henry the eighth was seised in Fee of the Advowson of Bifeild and the five and twentieth of April 34 H. 8. the King granted the same to Sir Edward Knightly and Ursula his wife and to the Heirs Males of the body of Sir Edmund the remainder to Valentine Knightley his brother and the heires males of his body the Remainder to the right heires of Sir Richard Knightley then dead Father of the said Sir Edmund Sir Edmund died seised without Issue Ursula did surrender to Valentine and the fifth of September 4 5 Phil. Mar. Valentine did give and grant the Advowson to Sir John Spencer and others and their heires to the use of himself for the life of Ursula and after the decease of which of them should first die to the use of Richard Knightley his Son and Mary his wife and the heires males of the body of Richard the Remainder to the right heires of Sir Richard Father of Valentine That the twentieth of Febr. 6 Eliz. William Briggs Rector of Bifeild by Indenture did let the Rectory to the said Richard Knightley habendum from the next Annunciation for sixty one yeares rendring 28. pounds Rent And that the twenty fourth of Febr. 6 Eliz. Valentine Knightley did confirm the Lease and the last day of February in the same year the Bishop of Peterborow being ordinary did confirm it That the thirtieth of July in the same year Richard Knightley did grant the Lease to Edward Knightley his second Son and afterwards recovered the profits to the use of Edward being within age That the eighth of May 8 Eliz. Valentine died seised of the Advowson having Issue the said Richard his eldest Son William Briggs did recover the Rent during his life and dies whereby Richard Knightley does present William Reynolds who was admitted instituted and inducted Reynolds did resigne whereupon Richard Knightley did present Richard Burdsale who was admitted c. and Burdsale did resigne wherefore Richard Knightley did present Simon Rogers who was admitted c. And they found that all these persons did accept the Rent And that the first of Septemb. 21 Eliz. Richard Knightley did take the profits to the use of Edward and did devise the Rectory to Rogers the Parson for forty years if he should be so long Parson there That the thirteenth of Novemb. 27 Eliz. Sir Richard Knightley did grant the Advowson to Valentine his Son in Fee That the 34 of Eliz. A Fine was levied between Bartholomew Tate and Henry Yelverton Esquires Plaintiffs and Valentine Knightley Esquire Deforceator of the said Advowson Sur conusans de droit come ceo with Warranty to the use of the Conusees and their heirs Rogers did resigne whereupon the said Valentine did present Jonas Challoner who afterwards died and the Ordinary did present the Plaintiff by Laps who did accept the Rent for divers years And they found the carrying away of the Tithes and to the value of ten pounds And prayed the opinion of the Court upon the whole matter whether the Defendant owed the thirty pound to the Plaintiff or not Vpon which Verdict the case is this Valentine Knightley seised of an Advowson in Taile to him and the Heirs males of his body the Remainder to the right Heirs of Sir Richard Knightley his Father then dead the 4 5 of Philip and Mary did give and grant the Advowson in Fee to the use of himself for the life of Ursula Knightley the Remainder to Richard his Son and Mary his wife and the heirs males of the body of Richard the Remainder to the right heirs of the said Sir Richard the Father The twentieth of February 6 Eliz. William Briggs the Incumbent does make a Lease of the Rectory by Indenture to Richard the Son for sixty one years from the Annunciation next c. rendring twenty eight pounds Rent And the twenty fourth of Febr. 6 Eliz. Valentine Knightley does confirm the Lease and the last of February in the same year the Ordinary confirms it The thirtieth of July in the same year Richard the Lessee grants the Term to Edward Knightley his second Son within age and takes the profits to his use And the 8. of Eliz. Valentine dies Richard being his eldest Son William Briggs dies whereby Sir Richard does present William Reynolds who was admitted c. And he did resigne whereby Sir Richard did present Burdsale c. who did resigne c. whereby he presented Rogers and all these persons did receive the Rent And the 21 Eliz. Sir Richard did make a Lease of the Rectory to Rogers the Parson for forty yeares if he shall be there Parson so long 27 Eliz. Sir Richard grants the Advowson to Valentine his Son in fee and 34 Eliz. A Fine was levied of the Advowson between Bartholomew Tate and Henry Yelverton Plaintiffs and Valentine Knightley Deforceator to the use of the Conusees and their heirs Rogers did resigne whereby the said Valentine did present John Challoner c. who died and the Ordinary collated the Plaintiff by Laps who for many years accepted the Rent and the Defendant did take and carry the Tithes to the value of ten pounds And whether this Lease be good to bind the Plaintiff or not is the question and I conceive it is not And for the arguing of this Case I will consider these three things The Validity of the Lease without any confirmation If here be any confirmation of this Lease and if it continues in force against the now Plaintiff Admitting here be not any sufficient confirmation of it self if the Fine levied by Valentine Knightley hath given any force and strength to it And as to the first I conceive without any doubt that this Lease without any confirmation is determined by the death of the person who made it and is so determined as no acceptance of Rent by the Successor can make it good and therefore the difference is between a Lease for life and a Lease for years made by a person rendring Rent for the Lease for life is only voidable and not void by the death of the Lessor so that if the Successor does accept the Rent and Fealty he shall be bound for his
cannot be First because that the Land devised to them is onely a Chamber and a mansion of little value and that is to repair the Bridg and that is a work of such charge that no surplussage can be intended Secondly The clause is Id quod clarum fuerit ultra solutionem reparationem c. which are the very words in the clause used for the disposing of the residue to R. for the time and cannot be referred to the Devise of the Wardens of the Bridge because that the things devised to them are apparently to be for the reparation only and no payment is limited out of it but the Tenement out of which the Stipend is to be payd is first charged with this payment and then with the reparation of the Tenement and then with the Ornaments and Books for the Church And afterwards this Case was argued by Coventrey the Kings Sollicitor for the Plaintiff and by S. Chibborne for the Defendant And Mich. 16. Jac. The Barons viz. Tanfeild Bromley and Denham did openly declare their opinion that the Land was not demised to the Parson by this Will and thereupon they commanded Iudgment to be entred for the Defendant which was entred accordingly Trinit 15 Jacob. John Adams against Roger James Knight and others IN a Replevin for taking of twelve Cowes and two Calves the twenty fourth of May the 14. of King James at Upminster in a place called Nelfeild alias Newfeild ad damnum 10 l. The Defendants did justifie the taking c. as Bayliffs of Thomas James and Moily Deale for that the place contained twenâ—â— acres of Pasture And that William Latham was seised in Fee of the Mannor of Upminster whereof the said twenty acres are parcell and the twenty fifth Maii 13 Eliz. devised the same to George Wiseman excepting one Close of Land or Pasture called Crouckfeild containing by estimation fifty acres and a parcell of a Close called Ecrowchfeild containing by estimation sixty acres and all Woods and Frees and Profits of Court Leets Waifes Estrayes Escheats Hermots Reliefs Goods and Chattels of Felons and Fugitives Deodands and Treasure Trove Habendum from Michaelm 1576. for sixty one years rendring forty pounds Rent at the Annunciation and Michaelmas The first of Octob. 1576. George Wiseman entred The twentieth of August 35 Eliz. William Latham by Deed inroled for the consideration of two thousand pounds did bargain and sell the Mannor to Roger James Father of the Defendant Roger in Fee and the 15 Decemb. 39 Eliz. Roger James the Bargaines did devise the third part of the Mannor to John his Son after whose death John was seised of the third part in Fee The seventh of August 11 Jacob. John James by Indenture for a thousand pounds paid by Thomas Fryth did bargain and sell to the said Thomas Fryth and Moyle Deale the said Reversion of the said third part Habendum from the said seventh of August for a hundred years ex intentione that they should grant or assign the said term to Thomas Fryth or his Assignes upon condition that he should pay a thousand pounds to the said Roger James viz. five hundred pounds the seventeenth of August 1614. and five hundred pounds the seventeenth of Febr. next after And because sixty pounds thirteen shillings foure pence was behind to the said Thomas James and Moyle Deale for halfe a yeare ending at Mich. 12 Jac. they did well justifie the taking c. The Plaintiff said that after the seventh of August Bar. 11 Jac. and before the said Mich. 12 Jac. viz. the ninth of August the 11 Jac. the said Thomas James and Moyle Deale did bargain and sell to the said Thomas Fryth all their Estate in the said third part whereby he was and yet is possessed Replication The Avowants replyed that the Bargain and Sale was upon Condition to pay the said thousand pounds to the said Roger James at the said days of payment and that Thomas Fryth did not pay the said five hundred pounds the seventeenth of August 1614. Rejoynder The Plaintiff rejoyned that after the said ninth of August 11 Jac. scil 10. August 11 Jac. the said John James was seised in Fee of the Reversion of the third part expectant upon the estate of the said George Wiseman And that the tenth of August 11 Jacob. John James by Indenture inroled did bargain and sell the said Reversion to the said Thomas Fryth and his heires That the seventeenth of August 11 Jac. John James by Indenture dated the aforesaid seventh of August 11 Jac. fâ—r a thousand pounds did bargain and sell the said third part to the said Thomas James and Moyle Deale Habendum from the said seventh of August 11 Jac. for a hundred years and that they after scil the aforesaid seventeenth of August 11 Jac. did bargain and sell to the said Thomas Fryth upon condition before expressed Absque hoc that the said John James did bargain and sell to the said Thomas James and Moyle Deale the said Reversion before the said tenth of August 11 Jac. and absque hoc that the said Thomas James and Moyle Deale before the said tenth of August 11 Jac. did bargain and grant the said Reversion to the said Thomas Fryth on condition as aforesaid Vpon which the Avowants demurred and shewed for cause that this is a departure from the Bar and that the said Rejoynder is in it self repugnant And I conceive that Iudgment ought to be given for the Plaintiff in the Replevin for that the Conusance is utterly insufficient for three causes 1. The Defendants make Conusance as Bayliffs to Thomas James and Moyle Deale and do endeavour to entitle themselves to a third part of the Reversion and Rent upon the Lease to Wiseman by the Devise of Roger James and it doth not appear in all the Conusance that Roger James was dead before the Grant made by John James to the said Thomas James and Deale for it is not set forth that he died but only by implication scil the bargain and sale by Latham is pleaded to Roger James lately dead which doth refer to the time of the plea which was long after the Grant to Thomas James and Deale and after the Rent due and the taking of the Distresse then it is alledged that after the death of Roger James the Devisor John James entred which is not sufficient because it is not alledged in fact that he dyed or when he diâ— dye And all the Court agreed the Avowry insufficient as to this exception Secondly the bargain and sale of the Reversion by John James to the said Thomas James and Moyle Deale is pleaded to be made the seventh of August 11 Jac. Habendum from the aforesaid seventh of August for a hundred years whereby the day it self is excluded and so the Grant is to take effect in the future which cannot be by the Rules of Law as in Bucklers Case 2. Rep. where Buckler Tenant for life in Mich. Term 20 Eliz. made
Leases of the Recusant but the woman here being married hath no Lands or Goods and therefore the King cannot have any thing and the Goods or Lands of her Husband cannot be taken for his wifes offence she being convicted by Indictment only to which the husband is no party Object But it may be objected that the wife may perhaps survive the husband and then she may have Goods and Lands and the King may seise them I answer that first it may be also that the husband may survive and then the King shall never have any thing Answer as it is resolved in Dr. Fosters Case 2. This Objection is upon two possibilities 1. That the husband may first dye 2. That the wife then shall have Lands and Goods And I have alwaies taken it for a Rule that a possibility shall never take away a present Action or Suit as is proved by divers Cases as in 5. Rep. Harisons Case and 9. Rep. fol. 108. 109. And as it is said in Elmers Case 5. Rep. that two possibilities cannot maintain hospitality or repair a Churche so I say in this case that one such possibility to recover this penalty for the King cannot hinder the Informer of his Suit nor oppose the good reformation of Recusants intended by the Statute for then all marryed women addicted to Popery will be Recusants upon confidence that if they be once convicted by Indictment the which they themselves may procure to be done then they shall not be subject to any penalty during the lives of their husbands who peradventure may survive them and as it was well observed in Dr. Fosters Case that married women are the most dangerous Recusants because that they have the education of their Children and the government of their Servants But it may be objected Object that if the Informer may sue and recover against the husband and wife then if the wife does survive the King shall have these Lands and goods according to the 28 Eliz. or may sue the husband and wife according to the 35 Eliz. for these penalties and so shall be two waies punished for the same offence No such inconvenience can happen Answer for as it is resolved in Dr. Fosters Case the recovery of the Informer being legall shall bar the King as in the 19 Ed. 2. where the Testator was bound in a Recognizance for performing of Covenants this was no bar in debt upon an Obligation but that the Plaintiff may recover and if after such recovery the Statute be forfeited and execution thereupon the Executor shall have an Audita Querela for that he had lawfully administred the goods before for payment of the Bonds And after viz. Mich. 17 Jac. I moved the Court that the Plea of the Defendants was insufficient for that the Statute did ordain that upon every Indictment of Recusancy proclamation should be made and that the body of the Offender should be rendred to the Sheriff of the County before the next Assises or Gaol-delivery and if such Offender so proclaimed does not appear but makes default that he shall be convicted c. And the Defendants have pleaded that Proclamation was made that the body of the said Katherine should be rendred at the next Assises or Gaol-delivery c. and therefore she is not convict at all because she was not proclaimed according to the Statute for this Proclamation differs in two materiall circumstances from the form prescribed by the Statute first in omission of the Sheriff to whom the body is to be rendred 2. In the time for the Statute limits it to be done before the next Assises c. but this Proclamation gives a larger time scil at the Assises Whereupon all the Court agreed that the Plea was insufficient for the causes aforesaid and that now the wife was not convicted by proclamation Wherefore Iudgment Judgment was given for the King and the Informer John Mitton Administrator of George Mitton of Goods not Administred by Alice Mitton against John By. IN an Action of Debt for twenty five pounds for that William Marquess of Winchester the twentieth of October 30 Eliz by Indenture did devise to John By the Father of the Defendant three parts of the Mannor of Newnham in the County of Southampton excepting all Fines Reliefs Amerciaments Courts Woods Copies Fishings and Royalties Habendum from Michaelmas next for one and twenty years rendring six shillings ten pence Rent at the Annunciation and Michaelmas The twentieth of January 1. Jac. John By the Father made his Will and made the Defendant his Executor and died possessed The fourteenth of Novemb. 2 Jacob. the Defendant granted the Term to the Intestate The sixteenth of Novemb. 2 Jac. The Intestate did grant all the Term by Indenture to the Defendant rendring fifty nine pounds Rent at the Annunciation and Michaelmas whereby be entred and had possession of the Land and twenty five pounds of the said Rent for half a year ending at Michaelmas 15 Jacob. was behinde to the Plaintiff after the death of the Intestate which yet the Defendant doth not pay ad damnum c. The Defendant says that the Intestate the twenty sixth of June 5 Jac. did release by Deed to the Defendant all Actions Suits Debts Duties from the begining of the world until the day of the date of the said writing Whereupon the Plaintiff demurred in Law And I conceive that Judgment ought to be given against the Plaintiff For that in Littleton 118. If one doth release to another all Demands this is the best Release that may be and shall enure to the most advantage of him to whom it is made For by such Release all Actions Reals and Personals and Appeals and Executions are gone and extinct and if a man hath title to enter into any Land by such Release his title is gone and 20 Assis 5. where in an Assise for Rent a Release of all Demands was pleaded and the common Opinion was that it was good wherefore the Plaintiff was non-suited and 5 Edw. 4.42 by Danby A Release of all Demands by a Lord to his Tenant is a good bar and extinguishment of his Seigniory for although no Rent was behinde at the making of the Release yet is the Rent always in Demand and 6 H. 7. 15. If the King releaseth all Demands yet as to him the Inheritance shall not be included But in case of Rent or right of Entry by a common person and every thing therein implyed is gone by such Release And 14 H. 8. 9. by Pollard By Release of all Demands the Rent is extinct for Rent is to be had by Demand and if one doth determine the means he hath to come by a thing he doth determine the thing it self And Litt. 118. If a man hath a Rent-service or Rent-charge or Common of Pasture by such Release of all Demands all is gone from the Land from whence the Service or Rent is issuing or the Common of Pasture But if one lets Land to another