not have an Action without cause and if he were convicted then there is no cause of Action and he hath not shewed whether he was convicted or acquitted And he said that there was no difference betwixt an Action on the Case and a Conspiracie in such case but onely this That a Conspiracy ought to be by two at the least and an Action upon the Case may lie against one and he said that in both he ought to shew that he was legitimo modo acquietatus See 11. H. 7. 25. An Action of Conspiracy founded upon the Statute of 8. H 6. Cap. 10. where it is grounded upon a Writ of Trespasse brought against one onely But such a Conspiracy which is grounded upon an Indictment of Felony must be against two at the least for the same is an Action founded upon the Common Law Mich. 28 29. Eliz. In the Kings Bench. 92. BONEFANT against Sir RIC. GREINFIELD BOnefant brought an Action of Trespasse against Sir Richard Greinfield The Case was this A man made his Will and made A. E. I. O. his Executors and devised his Lands to A. E. I. and O. by their speciall names and to their heirs and further willed that his Devisees should sell the Land to I. D. if he would give for the same before such a day an hundred pound and if not that then they should sell to any other to the performance of his Will scil the payment of his debts I. D. would not give the hundred pound One of the Devisees refused to entermeddle and the other three sold the Land and if the Sale were good or not was the question Cooke The Sale is not good 1. Let us see what the Common Law is At the Common Law it is a plain case that the Sale is not good because it is a speciall trust and a joynt trust and shall never survive for perhaps the Devisor who is dead reposed more confidence in him who refused then in the others Vide 2 Eliz. the Case of the Lord Bray who covenanted That if his son marry with the consent of four whom he especially named viz. A. B. C. and D. that then he would stand seised to the use of his son and his wife and to the heirs of their two bodies begotten One of the four was attainted and executed The other did consent that he should marry such a one he married her yet no estate passed because the fourth did not consent and it was a joynt trust 38. H. 8. Br. Devises 31. A man willeth that his Lands deviseable shall be sold by his Executors and makes four Executors all of them ought to sell for the trust which is put upon them is a joynt Trust But Brook conceiveth that if one of them dieth that the others may sell the Lands The Case betwixt Vincent and Lee was this A man devised That if such a one dieth without issue of his body that then his Sons in law should sell such Lands and there were five sons in law when the Testatour died and when the other man died without issue there were but three sons in law and they sold the Lands and it was holden that the Sale was good because the Land was not presently to be sold Also he said that in the principall Case here they have an Interest in the Lands and each of them hath a part therefore the one cannot sell without the other But if the devise were that four should sell they have not an Interest but onely an Authority As to the Statute of 21. H. 8. Cap. 4. he said that that left our Case to the Common Law For that Statute as it appeareth by the preamble speaks onely of such Devises by which the Land is devised to be sold by the Executors and not devised to the Executors to sell And goes further and saith Any such Testament c. of any such person c. therefore it is meant of such a devise made unto the Executors and then no Interest passeth but onely an Authority or a bare Trust But in our Case they have an Interest for he who refused had a fourth part Then when the other sell the whole the same is a disseisin to him of his part If a Feoffment be made to four upon condition that they make a Feoffment over and two of them make the Feoffment it is not good Also the words of the Will prove that they have an Interest for it is that his Devisees shall sell c. Laiton contrary And he said That although the Devise be to them by their proper names and not by the name Executors yet the intent appeareth that they were to sell as Executors because it was to the performance of his last Will and that may be performed as well by the three although that the other doth refuse and the Sale of the Land doth referre to the performance of his Will in which there are divers Debts and Legacies appointed to be paid 2. H. 4. and 3. H. 6. A man devised his Lands to be sold for the payment of his debts and doth not name who shall sell the same the Lands shall be sold by his Executors 39. Ass A Devise is of Lands unto Executors to sell for the performance of his Will the profits of the Lands before the Sale shall be assets in the Executors hands 15. H. 7. 12. is That if a man devise that his Lands shall be sold they shall be sold by his Executors Also if I devise that my Executors shall sell my Lands and they sell it is an Administration and afterwards they cannot plead that they never were Executors nor never administred as Executors And although there are divers Authorities to be executed yet it is but one Trust 39. Ass 17. is our very Case A man seised of Lands deviseable devised them to his Executors to sell and died having two Executors and one of them died and the other entred and sold the Land and the Sale was good 49. E. 3. 15. Isabell Goodcheapes Case Where a man devised that after an Estate in taile determined that his Executors should sell the Lands and made three Executors and one died and another refused the third after the taile determined sold the Land and the Sale was holden good and that it should not escheate to the Lord for the Land was bound with a Devise as with a Condition as to the Statute of 21. H. 8. Cap. 4. the preamble of the Statute is as it hath been recited and although for exmaple the Lands in use are only put yet the Statute is not tied only to that As in the Statute of Collusion of Malbridge Examples are put only of Feoffments and Leases for years yet there is no doubt but that a Lease for life or a gift in taile to defraud the Lord is within the Statute So the Statute of Donis Conditionalibus puts onely three manner of estate tailes But Littleton saith That there are many other estate tailes which are
a Prohibition And Suit and Clenche Justices He shall have a Prohibition for he claims onely a portion of Tithes and that by prescription and not meerly as Parson or by reason of the Parsonage but by a collaterall cause viz. by Prescription which is a Temporall cause and thing And it is not materiall whether it be betwixt two Parsons Vide 20. H. 6. 17. Br. Jurisdiction 80. and 11. H. 4. and 35. H. 6. 39. Br. Jurisdiction 3. Where in Trespasse for taking of Tithes the Defendant claimed them as Parson and within his Parish and the Plaintiffe prescribed That he and his predecessors Vicars there had had the Tithes of that place time out of minde c. And the opinion of the Court was that the right of Tithes came in debate betwixt the Vicar and the Parson who were Spirituall persons who might try the right of Tithes And therfore there the Temporall Court should not have the Jurisdiction Mich. 28 29 Eliz. In the Kings Bench. 56 IN an Indictment upon the Statute of 8. H. 6. of Forcible Entry the Case was this One was Lessee for yeers and the Reversion did belong unto the Company of Goldsmiths And one was indicted for a forcible Entry and the words of the Indictment were That expulit disseisivit the Company of Goldsmiths quendam I. S. tenentem expulit Cooke took exception to the Indictment and said that a disseisin might be to one although not in possession as to a Reversioner upon a term for yeers or upon a Wardship but he could not be expulsed if he were not in possession for privatiâ— praesupponit habitum And after it saith that the Tenant was expulsed and two cannot be expulsed where one onely was in possession therefore it ought to have said that the Tenant of the Free-hold was disseised and the Termor expelled and it applyes the word expulit to both And Fuller took another Exception that the Cart is set before the horse For he who had the Free-hold could not be disseised if his Termor were not first ousted and the Indictment is That the Tenant of the Free-hold was expulsed and disseised and then the Termor was expelled But Sui Justice as to that said that the later clause scil et quendam I. S. tenentem c. is but surplusage For if one enter with force and expell the Tenant of the Free-hold it is within the Statute of 8. H. 6. Then Fuller moved that the Indictment doth not shew the place where he expelled him But Cleâ—ch Justice said that that was not material for he could not expell him at another place then upon the Land As a man cannot make a Feoffment by livery and seisin at another place but upon the Land unless a Feoffment with Livery within the view And as to the Objection of Cook that the Indictment is that he disseised and expelled the Tenant of the Free-hold out of the possession of the Free-hold To that he answered that the possession of the Termor is the possession of him in the Reversion Mich. 28 29. Eliz. in the King 's Bench. 57 A Man seised of a Copy-hold in Fee made his Will and thereby he devised the same unto his Wife for her life and that after her death his Wife or her Executors should sell the Land He surrendred to the use of his Wife which was entred in hac forma viz. to the use of his Wife for life Secundùm formam ultimae voluntatis The Woman sold the Land during her life The question was Whether she might sell or not Suit Justice said That the intent doth appear that she might sell during her life for when it saith That she or her Executors should sell after her death it is meant the Estate which is to come after her death for the Wife after her death could not sell The second Point was When the surrender is to the Wife for life secundùm formam ultimae voluntatis Whether here she have the Land for life and the Fee also to sell Clenche If she had not the Fee to sell then the words Secundùm formam ultimae voluntatis should be void for the Surrender to the use of the wife for life gives her an Estate for life without any other words Suit If it were ad usum ultimae voluntatis without speaking what Estate the Wife should have no doubt but shee should have for her own use for life and that afterwards she might sell the Land but he said As the Case is put it is a pretty Case And it was adjourned Mich. 28 29. Eliz. in the Kings Bench. 58 THis Case was moved in Court A Copy-holder committed Waste by which a forfeiture accrued to the Lord who afterwards did accept of the Rent The question was Whether by this acceptance he were concluded of his Entrie for the Forfeiture Cook said He was not for it is not as the Case 45 E. 3. where a Lease is made upon Condition that the Lessee shall not do Waste and he commits Waste and then the Lessor accepts the Rent there he cannot enter But otherwise is it of a Copy-hold for there is a condition in Law and here in Fait and a condition in Fait may save the Land by an Acceptance but a condition in Law cannot for by the condition in Law broken the Estate of the Copyholder is meerly void And the Court agreed That when such a Forfeiture is presented it is not to Entitle the Lord but to give him notice for the Copy-hold is in him by the Forfeiture presently without any Presentment A man made a Lease for years upon condition that he should not assign over his Lease and it was reserving Rent and after he did assign it and then the Lessor accepted the rent there he shall not enter for the condition broken Lessee for years upon condition that he should not do Waste and the Lessor accepts of the Rent for the quarter in which the Waste was done yet he may enter but if he do accept of a second payment of the Rent then it is otherwise but if it were upon condition That if he do waste that his Estate shall cease There no acceptance of the Rent by the Lessor can make the Lease good It was adjourned Mich. 28 29. Eliz. in the Kings Bench. 59 THE Lord Admirall did grant the Office of Clark or Register of the Admirall Court to one Parker and Herold for their lives eorum diuâ—ius viventi And Herold bound himself in a Bond of Five Hundred Pound to Parker that the said Parker should enjoy the Office cum omnibus proficuis during his life And afterwards Herold did interrupt the said Parker in his Office upon which he brought an Action of Debt upon the Bond. The Defendant pleaded That such is the custome That the Admirall might grant the same Office for the life of the Admirall only and that he is dead and so the Office void and that he did interrupt him as it was lawfull
not recited in the Statute So here our Case is within the Mischiefe of the Statute of 21. H. 8. Cap. 4. although it be not within the Example So the Statute of West 1. is That if the Gardien or Lessee for years maketh a Feoffment in Fee Tam Feofator quam feofatus habeantur pro disseisoribus yet 22. Ass is That if Tenant by Elegit make a Feoffment it is within the Statute Also it may be a doubt Whether Land devisable onely by custome bee intended in the Statute of 21. H. 8. Cap. 4. And whether Land devisable by the Statute of 32. H. 8. be within it or not viz. If a Statute of a puâ—sne time shall be taken by Equity within a more Ancient Statute and I conceive it may as 12. H. 7. the Statue of 4. H. 7. which sayes that the heire of Cestuy que use shall be in Ward shall extend to the Statute of Praerogativa Regis for if he be in Ward to the King he shall have Prerogative in the Lands to have other Lands by reason thereof Gaudy Justice did rely very much upon the word Devisees viz. that they have an Interest and that the Sale was not good Suit Justice They are both Executors and Devisees of the Lands Devisees of the Lands and Executors to performe the Will Cook he who refused to sell cannot waive the Freehold which is in him by a refusall in pars as 7. H. 2. and 7. E. 4. but ought to waive it in a Court of Record therefore he hath an Interest remaining in him Clenche Justice What if he had devised the Lands to four and made one of them his Executors and willed that he should sell could not he sell All the Court agreed that he might Cook When a man deviseth that his Executors shall sell the Fee descends to the heir yet they may sell that which is in another but the same is not like to our Case It was adjourned Mich. 28 29. Eliz. in the King 's Bench. 93. A Judgement was given upon a Bond for four thousand pound And the Scire facias was sued for three thousand pound and he did not acknowledge satisfaction of the other thousand pound Haughton moved That the Scire facias should abate As if a man brings Debt upon a Bond of twenty pound and shews a Bond for forty pound and doth not acknowledge satisfaction for 20l l it is not good The Justices would advise of it And at another day it was moved againe Whether the Scire facias was good because it doth recite Quod cum nuper such a one recuperasset four thousand pound and doth not shew in what Action or at what day the Judgment was given or the Recovery had Piggot That is not material for such is the Form in an Audita querela or Redisseisin As to the other That he doth not acknowledge satisfaction as in the Case before cited by Haughton which Case is in 1. H. 5. That is not like to an Execution for an Execution is joint or severall at the will of him who sues it forth as in 19. R. 2. Execution 163. hee may have part of his Execution against one in his life time and if he dieth other part against his Heir or Executor Note the Execution was of the whole but because the Defendant had not so much he had but part against him who had no more and therefore of the residue he had Execution against the Heir Gawdy Justice I conceive that he cannot have an Execution unlesse he acknowledge Satisfaction There is no difference as to that betwixt the Action of Debt upon a Bond and a Scire facias and the intendment viz. that it shall be intended that he was paid because he sued but for Three thousand Pound will not help him Piggot as to that vouched a Case out of 4 5. Mary in Dyer which I cannot find Suit Justice said That if the Defendant in the Scire facias say nothing by such a day that Judgement should be entred for the Plaintiffe Quod executio fiet Mich. 28 29. Eliz. in the Kings Bench. 94 JUdgement was given against an Infant by default in a reall Action of Land And a Writ of Error was thereupon brought and it was argued That it is not error for in many cases an Infant shall be bound by a Judicious act as 3. E. 3. Infant 14. Where an Infant and a Feme Covert bring a Formedon and the woman was summoned and severed And it was pleaded That where the Writ doth suppose the woman was Sole she was Covert and Judgment was demanded of the Writ and that the Infant could not gainsay it but confessed it this Confession of the Plea which abated his Writ was taken And 3. H. 6. 10. Br. Saver Default 51. An Infant shall not save his default for he shall not wage his Law See there that the Default shall not be taken against him therefore that book seems rather against it then for it Vide 6. H. 8. Br. Saver Default 50. That Error lieth upon a Recovery by default against an Infant otherwise if it be upon an Action tried so is 2 Mar. Br. Judgment 147. It was said That a generall Act of Parliament shall bind an Infant if he be not excepted The Justices did seem to incline That if Judgement be given by default that it shall bind an Infant but there was no rule given in the Case Mich. 28 29. Eliz. in the Kings Bench. 95 A Clark of the King's Bench sued an Officer of the Common Pleas and he of the Common Pleas claimed his Priviledge and could not have it granted to him for it is a generall rule That where each of the persons is a person able to have Priviledge he who first claimes it viz. the Plaintiffe shall have it and not the Defendant As if an Atturney of the Common Pleas sueth one of the Clarks of the Kings Bench yet he of the Kings Bench shall not have Priviledge although the Kings Bench be a more high Court because the other is Plaintiffe and first claimeth it Mich. 28 29. Eliz. in the Kings Bench. 96 AM Action upon the Case upon a Promise was brought but the Case was so long that I could not take it But in that Case Tanfield who argued for the Defendant said That it is not lawfull for any man to meddle in the cause of another if he have not an Interest in the thing for otherwise it will be Maintenance But if a Custome be in question betwixt the Lord of the Manor and Copy-holder all the other Copy-holders of the Manor may expend their money in maintenance of the other and the Custome and the Master may expend the money of the servant in maintenance of the servant So he in the Remainder may maintain him who hath the particular Estate Maintenance is an odious thing in the Law for it doth encrease troubles and Suites He argued also How that Bonds Obligations and Specialties might be
yet in the interim during the life of Brenne and his wife it is one entire Manor For if Blackborow had levied a Fine thereof before entry his Interest in the Land had not passed And if a Fine be levied of the Manor and the Conusee render back part to one for life and another part to another for life the remainder of the whole to a third until the Two enter it is one entire Manor in the hands of the Conusee If I devise that my Executors shall sell such Lands which are parcell of a Manor and dye untill they sell it remains parcell of the Manor So if the heir selleth the Manor that Land shall passe for it is but executory and remains parcell untill it be executed Wherefore in the principall Case here the Copy-hold is good The reason of the Case 33. H. 8. Dyer 48. is because before the grant the advowson was not appendant to that acre onely but to the whole Manor and to that acre as parcell of it Also he said that the Copy-hold shall be good against the Lessee being granted before execution of his term when as the Manor was entire For he who hath a Manor but for one year may grant Copies and the grant shall be good to bind him in the Reversion And if one recovereth an acre parcell of a Manor before execution it is parcell of the Manor and by grant of the Manor shall passe Periam Justice But yet now being executed by the death of the Lessor and his wife it is no part of the Manor if they be severall Leases Walmesley But the Defendant is in by Custome by one who is Dominus pro tempore Anderson Chief Justice The Case of 48. E. 3. is like our Case And I conceive clearly here is no severance but if there had been any severance it had been otherwise but I doubt of the other point Periam Justice In 13. H. 4. the difference is taken betwixt a grant of a Manor una cum advocatione and a grant of a Manor et ulterius a grant of the Advowson In 14. Eliz. Dyer 311. in the Case of the Lord Cromwell and Andrews it is moved If a man bargain and sell give and grant a Manor and Advowson to one and afterwards levieth a Fine or inrolleth the Deed Dyer held that the Advowson shall passe by the Bargain and Sale as in gross before that the Deed be enrolled But I conceive that it cannot pass if the Deed be not enrolled and then it shall pass as appendant by reason of the intent of the parties and so in this Case And for the last matter I conceive very strongly that when the Lease which is executory takes effect that it shall avoid the Copy-hold for although at once viz. during the expectancy of the said Lease to begin at a day to come the Copy-hold be not extinct yet now he may say That all times as in respect to him the Copy-hold Custome was broken I hold That a Tenant in Dower shall not avoid a Copy-hold made during the Coverture and so it hath been adjudged in the Kings Bench. But I conceive there is a difference betwixt that Case and the Case in question for in that Case the title of the wife to have Dower is not consummate till the death of the Husband Anderson Chief Justice I can shew you an Authority That if I grant unto you such Land and the Manor of D. there the Land shall pass as parcell of the Manor Periam True there for it doth enforce the first grant But here the intent of the parties doth appear and the same is to be respected Anderson But their intent ought to be according to the Law as in 19. H. 8. it is holden it shall be in a Devise Anderson upon the Argument of this Case said That if a Warranty be to a whole Manor and also to an Advowson the party cannot have Two Warrantia Chartae Periam If he had further said in the Deed That his intent was that it should be severall the same had altered the Case Anderson No truely because his intent did not stand with the rule of Law As if a man devise that his Lands shall be sold and doth not say by whom it is void and yet the intent is expressed If the Lease had been by severall Deeds Periam said The Copy-hold had beene severed Windham denied that If both the Deeds bee delivered at one time It was adjourned Hill 29. Eliz. In the Common Pleas. 148 AN Information was upon the Statute of 5. 6. E. 6. for buying of seed Corn having sufficient of his own and not bringing so much unto the Market of his own corn and a generall issue was found upon it And it was delivered for Law to the Jury by the Justices That a Contract in Market for corn not in the Market or which was not there that day is not within the Branch of the Statute But if corn or graine be in the Market although that the Contract be made in a house out of the Market and delivered to the Vendee out of the Market yet it is within the Statute And in the Argument of that Case Anderson said That the Market shall be said The place in the Town where it hath used to be kept and not every place of the Town And a Sale in Market overt in London ought to be in a Shop which is open to the street and not in Chambers or inward rooms otherwise the property is not altered And so it is of all Statutes in open Markets And the Recorder of London said That such was their Custome in London Hill 29. Eliz. in the Common Pleas. 149 It was holden by Anderson chiefe Justice That if one deviseth Lands to the heirs of I. S. and the Clerk writes it to I. S. and his heirs that the same may be holpen by averrment because the intent of the Devisor is written and more And it shall be naught for that which is against his intent and against his will and good for the residue But if a Devise be to I. S. and his heirs and it is written but to the heirs of I. S. there an averrment shall not make it good to I. S. because it is not in writing which the Statute requires anâ— so an averrment to take away surplusage is good but not to encrease that which is defective in the Will of the Testator Mich. 29. Eliz. in the Common Pleas. 150 A Feoffment was made unto A. unto the use of him and his wife dis-punishable of Wast during their lives one died and the Survivor committed Wast It was the opinion of the whole Court that an Action of Wast would not lie by him in the Reversion for it is a Priviledge which is annexed to the Estate which shall continue as long as the Estate doth continue Mich. 29 Eliz. in the Common Pleas. 151 A. grants annualem redditum out of Lands in which he hath nothing The opinion of
Cestuy que use when he entreth and maketh a Lease he hath no reversion nor shall punish waste And as it is in the Creation so is it in the Continuance 4 H. 7. 18. If Cestuy que use for life or in tail maketh a Lease for life it is warranted during his own life by the Statute of 1 R. 3. but if Tenant for life at the Common Law maketh a Feoffment or a lease for life there the first Lessor ought to avoid this forfeiture by entrie and it is not void by the death of the second Lessor viz. the Tenant for life 27 H. 8. 23. A Feme Covers is Cestuy que use the husband maketh a Feoffment and dieth the Feoffment is void by his death Br. Feoffments to Uses 48. If Cestuy que use for life levieth a fine it is no forfeiture but good by the Statute of 1 R. 3. during his own life And if in such case Proclamations pass there needeth no claim nor entrie within five years but the Law is contrarie of Tenant for life by the Common Law for if Tenant for life at the Common Law levieth a fine it is a forfeiture Dyer 57. Cestuy que use for life or in tail maketh a Lease for life the Lease is determined by the death of Cestuy que use and the Lessee is become Tenant at sufferance but a Lease for life by Tenant for life at the Common Law is not determined by the death of Lessee for life who was Lessor and his Tenant is tenant for life and not at sufferance as in the Case before and the first Lessor ought to avoid it by entrie Br. Feoffments to Uses 48. A Recovery by Cestuy que use in tail or in fee is ended by his death By these Cases appears a main difference betwixt the validitie of a Feoffment by Cestuy que use and the Feoffment at the Common Law The Statute of 27 H. 8. of Uses doth not execute Uses which are in abeyance C. 1. part Chudleigh's Case 9 H. 6. by the Common Law the Devise to an Enfant in ventre samier is good but by the Statutes of 32 and 34 H. 8. of Wills such a Devise is not good for the Statute Law doth not provide for the putting of lands in abeyance By the Statute of 1 R. 3. All Feoffments and Releases c. shall be good and effectual to those to whom they are made to their uses And this Feoffment in our Case was not made to a man in Nubibus Cestuy que use by this Statute of 1 R. 3. makes a lease for years the remainder over to the right heirs of I. S. the remainder is not good for the Statute doth not put it in abeyance for the remainder ought to be limited to one in esse 21 H. 8. cap. 4. giveth power to Executors to sell that Executor who proveth the Will shall sell and when he selleth if he have any right to the land the right of the said Executor is not gone by that Statute So if Commissioners upon the Statute of Bankrupts sell the Lands of the Bankrupt and one of the Commissioners hath right to the land so sold his right is not extinct And so in this Case the Statute limits what shall pass Upon the Statute of â—3 Eliz. cap. 4. which makes the lands of Receivers liable for their debts if the King selleth the right of the Accomptant passeth but not the Kings right 17 E. 3. 60. An Abbot having occasion to go beyond the Seas made another Abbot his Procurator to present to such Benefices which became void in his absence That Abbot presents in the name of him who made him Procurator to one of his own Advowsons the right of his own Advowson doth not pass but yet it is an usurpation of the Abbot which went beyond sea to that Church What is the nature of this right All rights are not giâ—en away by Feoffments at the Common Law Lit. 672. Land is given unto husband and wife in tail the husband maketh a Feoffment and takes back an Estate to him and his wife both of them are remitted Which Case proveth that the husband hath left in himself a right notwithstanding the Feoffment 41 E. 3. 17. 41 Ass 1. John at Lee's Case So at the Common Law a Feoffment doth not give away all the right This right doth stick so fast in the issue as the Statute of West 2. cap. 1. can back it unto him 2 E. 3. 23. 22 E. 3. 18. At the Common Law if Tenant in tail had offered to levie a fine the Judges ought not to receive it but ought to have refused it if it had appeared unto them that the Conusor was Tenant in tail the same was before the Statute of 4 H. 7. which gave power to Tenant in tail to levie a fine for the Statute of West 2. Cap. 1. saies Quod finis sit nullus 2. E. 2. age 77. 2 E. 3. 33. 3 E. 3. 1. 24 E 3. 25. If Donee in tail levieâ—h a Fine yet there is no remedie against his Tenant for he shall not be compelled to attorn for that the right is in the Donor â— E. 2. Avowry 181. 48 E. 3. 8. Avowry was made upon the Donee in tail notwithstanding that he made a Feoffment and Avowry is in the realtie and right 4 E. 3. 4. 4 H. 6. 28. 10 H. 7. 14. In a Replevin ancient Demesne is a good plea because the Avowry is in the realtie The Donor shall know for homage upon the Donee after that the Donee hath made a Feoffment 7 E. 4. 28. the Donee shall do homage And Litt. 90. saith That none shall do homage but such as is seised in his own right or in the right of another 2 E. 2. Avowry 85. 7 E 54. 28. 15 E. 4. 15 Gard. 116. the issue shall be in Ward notwithstanding a Feoffment by Tenant in tail Com. 561. Tenant in tail maketh a Feoffment yet the right of the tail doth remain in the Tenant in tail 21 H. 7. 40. Tenant in tail of a Rent grants the same in Fee if an Ancestor collateral releaseth with Warranty the same bindeth the Tenant in tail There is a common Rule That a Warranty doth not bind when a man hath not a right The Cases cited in C. 1. part Albonies Case where Feoffments give Rights I agree Barton and Ewers Case A man made a Feoffment of Land of which he had cause to have a Writ of Error he gave away his Writ of Error by the Feoffment I agree all those Cases for that is in Cases of Feoffments at the Common Law but in our Case the Feoffment is by the Statute of 1 R. 3. In our Case there is Jus habendi possedendi recuperandi It is like unto a plant in Winter which seemeth to be dead yet there is in it anima vegitativa which in due time brings forth fruit So the right in our Case is not given away nor is it in abeyance
of his eldest son in tail and afterwards he married a wife and died that the wife should not be endowed for when he had limited the use to himself for his life he could not limit arâ— Remainder over And Edwards Case adjudged in the Court of Wards which was That there was Tenant for life the Remainder in tail he in the Remainder granted his Remainder to I. S. and his heirs and afterwards Tenant for life dyed and then the grantee dyed his heirs within age it was adjudged that the heir of the garntee should not be in ward because the Tenant in tail could not by his Grant grant a greater estate then for his own life But he said That in the principall Case it appeareth That the Tenant in tail in Remainder hath particularly recited his estate And where it appeareth in the Conveyance it self that he hath but an estate in tail a greater estate shall not passe As if Tenant for life granteth a Rent to one and his heirs the same at the first sight seems to be a good Rent in Fee but when it appeareth in the Conveyance that the grantor was but Tenant for life there upon the Construction of the Deed it self it cannot be intended that he granted a Fee but that an estate for life passed only in the Rent Secondly he argued That although the estate in tail in the principall case was an abeyance Yet a Common Recovery would barr such estate tail in abeyance And therewith agreeth C. 2. part Sr Hugh Cholmleys Case 3. He said That the estate was out of the King and vested in the party without any Offence found as 49. E. 3. Isabell Goodcheaps case A man devised houses in London holden of the King in tail and if the Donee dyed without Issue that the Lands should be sold by his Executors The devisee died without Issue The bargain and sale of the Lands by the Executor doth divert the estate out of the King without Petition or Monstrans de Droit So If there be Tenant in tail the Remainder in tail and Tenant in tail â—n Remainder levieth a fine of his Remainder to the King and afterwards dyeth without Issue the Kings estate is determined and there needs no Petition or Monstrans de Droit 4. He said That in the principall case nothing was in the King because it doth not appeare that there was any seisure or Offence found to entitle the King And the Tenant in tail in the Remainder died in the life of King James and then if the Kings estate were then determined as before by the death of the Tenant in taile the King which now is never had any title And hee said that he needed not to shew a greater title then he had And hee took a difference when Tenant in taile doth onely defend or make defence and when he makes title to Lands in the one Case he ought for to shew That the Tenant in taile died without issue and in the other Case not And therefore in the principall case he demanded Judgment for the Defendant The Case was adjourned to another day Mich. 4. Caroli in the Star-Chamber 511 TAILOR and TOWLIN's Case A Bill was preferred against the Defendant for a Conspiracy to Indict the plaintiff of a Rape And the Plaintiff aleadged in his Bill That an Indictment was preferred by the Defendant against the Plaintiff before the Justices of Assise and Nisi prius in the County of Suffolk And did not lay it in his Bill that the Indictment was preferred before the Justices of Oyer and Terminer and Gaole delivery and the same was holden by the Court to be a good Exception to the Bill for that the Justices of Assise and Nisi prius have not power to take Indictments But afterwards upon veiw of the Bill because the Conspiracy was the principall thing tryable and examinable in this Court and that was well layd in the Bill the Bill was retayned and the Court proceded to Sentence And in this Case Richardson Justice said That in Conspiracy the matter must bee layed to be falsè et malitiosè and if it be layed for a Rape It must be layd that there was recens persecutio of it otherwise it will argue a Consent And therefore because the Defendant did not preferre an Indictment of Rape in convenient time after the Rape supposed to be done but concealed the same for half a years time and then would have preferred a Bill of Indictment against the plaintiff for the same Rape he held that the Indictment was false and malitious And Hyde Chief Justice said That upon probable proof a man might accuse another before any Justice of Peace of an Offence and although his accusation be false yet the Accuser shall not be punished for it But where the Accusation is malitious and false it is otherwise and for such Accusation he shall be punished in this Court Trinit 8. Caroli in the King Bench. 513 JONES and BALLARD's Case AN Action upon the Case was brought for these words viz These Jones are proper Witnesses they will sweare any thing They care not what they say They have already forsworn themselves in the Chancery and the Lord keeper Committed them for it Jermyn took Exceptions because it was not said to be in the Court of Chancery nor that it was in any Deposition there taken upon Oath But it was adjudged per Curiam That the Action would lie and Jones Justice said that the Addition in the Chauncery was as much as if he had said he was perjured there And Hâ—msies case was vouâ—hed by him Where one said of a Witness presently after a Tryall at the Guild Hall in London You have now forsworn your self That it was adjudged that the words were actionable Trinit 8. Caroli in the Kings Bench. 513. SYMME's and SMITH's Case A Woman being entituled to copyhold Lands of the Manor of D did covenant upon reasonable request to be made unto her to surrender the Copy-hold Land according to the Custome of the Manor And it was found That the Custome of the Manor is That a surrender may be made either in person or by Letter of Atturney and that the plaintiff did request the woman to make the surrender by a Letter of Atturney which shee refused to do And whether shee ought to surrender presently or might first advise with her Councell was the Question It was argued for the plaintiff that shee ought to do it presently And Munser's Case C. 2. part and 16. Eliz. Dyer 337. Sir Anthonie Cooks Case were vouched that she was to do it at her perill And the Election in this Case was given to the Covenantee and hee might require it to be done either in Court in person or by Letter of Atturney And C. 2. part Sir Rowland Heywards Case and C. 5. part Hallings Case was vouched to that purpose Rolls contrary for the Defendant And he said That the woman was to have convenient time to do it and
of the Term with the Remainder over And the Devisee of the Occupation of a Term hath one speciall Property and the Remainder another Property As if a Lease be extended upon a Statute the Conusee during the Extent hath one Property and he who is to have it afterwards another Property and the reason of the difference is apparent when the Occupation is devised and when the terme is devised for in the first Case he puts but only a confidence in the Devisee as it appears in Welkdens Case But in the other Case all the Property goes and there is no confidence reposed in the Devisee And there is a Case in the very Point with which I was of Councell and was decreed in the Court of Chancery it was one Edolf's Case Where the Devise was of a terme the Remainder to another and he made the Devisee his Executor and he entred Virtute donationis as in this Case and it was decreed That the Executor might alien the Terme and that the Remainder could not be good And to this purpose Vid. 33. H. 8. 2 E. 6. 37 H. 6. 30. But if there might be a Remainder yet Incertae Personae nulla donation for if all the Children be preferred then the Remainder is void and then the Property of the Lease is in the Wife and she might preferre her at any time during her life and the generall property cannot be in another but in the Executor for the Legatee cannot enter although that 27 H. 6. seemeth to be contrary And if the whole Property be in the Wife her Husband might alien it and therefore it may be extended for his Debt as 7. H. 6. 1. is But it may bee objected That the Cases before put are of a devise of a Term and this is of a Lease That makes no difference for in Wroâ—â—slâ—y's Case Lease there is said to contain not only a terme but also the years to come in the terme Then the Question is If by the sale of the Sheriff upon the Fieri facias if the term be so gone that the Wife shall not have it by the Reversall of the Judgment by Error for the Judgement is that the Party shall be restored to all that which he hath lost It is very cleer that it shall never return for if it should be so then no sale made by the Sheriffe might be good unlesse the Judgement be without Error which would be a very great damage to the Common Wealth And also by reason and by the Judgment in the Writ of Error it should not be so restored for the Judgment is That he shall be restored to all that which he hath lost ratione judicii and here the Defendant hath not lost any thing by force of the Judgment but by force of the Execution For the Judgment was to have Execution of 200 li and of the 200 li. he shall be restored again and not of the Lease And therefore in 7. H. 7. If a Manor be recovered and the Villains of the Manor purchase Lands and afterwards the Judgment is reversed by Error the Recover or shall have the Perquisite and the other shall not be restored to it And 7. H 7. A Statute was delivered in Owell maine and a recovery was by the Conusee upon Garnishment of the Conusor and the Conusee had Execution and afterwards the Judgement is reversed by Error yet the Conusor shall not be restored to the Land taken in Execution but only the Statute shall be redelivered back where it was before And in this Case if the party should be restored to the term it should be great inconvenience Also if I give one an Authority upon Condition and the Party doth execute the Authority and after the Condition is broken the Act is lawfull by him who had Authority upon Condition And so was the Lord of Arundels Case where the Feoffee upon Condition of a Manor granted Coppies it was holden That the Grants made by him were good notwithstanding the Condition was afterwards broken And in 13 E. 3. Barr 253. That a Recovery was Erroneous and the Party being in Execution the Gaoler suffered him to escape and after the Recovery was reversed for Error yet the Action lay against the Gaoler Also by him the Jury have given an imperfect Verdict so as we cannot tell whether the Party were preferred or not for the Will was unpreferred generally and the Jury find that she viz. A. the daughter was not preferred by her father in his life time so as the Preferment by the taile is limited generally so as if any other prefer her she shall not have the Remainder And the Jury have found that she was not preferred by one certain viz. by her Father nor in a certain time in his life time which is as much as to say That she was preferred by the Uncle Aunt or Mother and if it were so then the Remainder is not good to her Also they find no preferment in the life of the father and it may be that the Father hath given her preferment by Will and that was no preferment in his life but is consummate only by his death and so she might be preferred by him by Implication by his Will So as upon the whole Matter I conceive That the Judgement ought to be reversed Note that this Case was afterwards adjudged at Hertford Terme and the Judgement was That the Issue of the Wife had Judgement for her Terme and that the Judgement upon which the Execution was was Erroneous and reversed by the Writ of Error and that the opinion of the Justices was That the Term was not to be restored but so much for which it was sold upon the Execution And the Daughter of Perepoynt brought an Action for it and had Judgement 27 Eliz. in the Common Pleas. 37. ONE had certain Minerall Lands Leased to him for years with liberty to dig and make his Profit of the Mine The Lessee afterwards digged for Mine and sold the Gravell which came of it And by the Opinion of the whole Court This sale was no Waste for no Sale is Waste if the first act be not Waste As the Sale of Trees by Tenant for life or Years is not waste if the Cutting and Felling down of them was not Waste before for the Vendition is but a secondary Act and but subsequent to the Act precedent which Act if it were lawfull the Sale also is lawfull for the Sale alone is not waste But they said That if the Lessee fell or cut Timber Trees and sell them it is waste Non quia vendebat sed quia scindebat For if he suffer them to be upon the ground without doing any thing with them yet it is waste but he may use them for the Reparation of his house and then it is no waste And yet when he fels them with an intent for Reparations and afterwards sells them it is waste Non propter Venditionem only but for the felling
same to Cropp the Lessor And the same Margery at one or two dayes before the payment of the said Rent had received the Rent in the like manner and had paid it to Cropp and he had accepted of it But now he refused to receive it of her but at the last day of the Month he went to the Land and there demanded the Rent and because it was not paid he entred Laiton argued for the Lessor That his entry was lawfull for he said That the Tender made by Margery Briggs to the Lessor was not sufficient 1. Because the Servant of the Lessee had Authority to deliver it to the Lessor therefore when he delivers it to another he hath not pursued his Authority 19. H. 8. 27. H. 8. Letter of Atturney made to diverse to give livery of Seisin If one make Livery alone it is void 34. H. 6. If a Capias be to many Coroners and one execute it it is void 18. E. 4. If one hath a Letter of Atturney to make Livery he cannot transfer this Authority to another to make Livery for him Also if in this Case a Stranger had tendered the Rent the Lessor was not bound to receive it as upon a Mortgage if a Stranger tender the Money the Mortgagee is not bound to accept of it 21. E. 4. In case of Corporall Service as Homage or Fealty the demand is to be made of the person but of Rent the demand is to be made upon the Land because the Land is the Debtor Clenche Justice conceived That if the Lessee himselfe had delivered the Rent to Margery Briggs that it had been good but it is a doubt if good made by the servant for he could not transfer his Authority to another Wray Chief Justice If it were upon a Bond the Obligee was not bound to accept of it before the day so if it were payable at Mich. only there the Lessor is not bound to accept of it before the day but in as much as 't is after the day the Month is a Liberty and Benefit for the Lessee and it was due at Mich. therefore I conceive That being tendred to him within any part of the Month that he is bound to accept of it And as to that That his servant cannot transfer his Authority over and therefore Margery Briggs is but a stranger in that act that is not so for now she is a servant in that to the Lessor himself and therefore there is privity enough also she hath received the Rent for him before What then said Laiton We can prove a speciall commandment for the time before that she received it At another day the Case was moved again and it was ruled against Cropp the Lessor because the rent was due at Mich. and the month after was given because of the penalty of Re-entry and the Tender and Refusall after the Rent was due and within the month saves the penalty and also Lawes ought to be expounded Secundùm â—quum bonum and good conscience and the Lessor was at no prejudice if he had accepted of it when his Daughter in Law tendred it unto him and therefore it was conceived That he had an intent to defraud the Lessee of his Lease and the Law doth not favour Frauds and therefore it was adjudged against Cropp the Lessor Hill 28 Eliz. In the King 's Bench. 44 PRIDEAUX's Case IN this Case it was moved Where a man marrieth a woman who is an Administratrix so as the Suit is to be in both their names Whether they shall be named in the Writ Administrators or not Wray Chief Justice They shall be for by the Entermarriage the Husband hath Authority to entermeddle with the Goods as well as the Wife but in the Declaration all the speciall matter ought to be set forth and so some said is the Book of Entries That both of them shall be named Administrators Hill 28. Eliz. in the King 's Bench. 45. AN Action upon the Case was brought for these words viz. Thou art a Cozener and a Bankrupt and hast an Occupation to deceive men by the words were spoken of a Gentleman who had One hundred Pound land per annum to live upon and therefore although he used to buy and sell Iron yet because he was not a Merchant nor did not live by his Trade the better Opinion of the Court was That the words were not actionable and so adjudged Hill 28. Eliz in the King 's Bench. 46 HARWOOD and HIGHAM's Case ONE had Houses and Lands which had been in the tenures of those which had the Houses and he devised his Houses with the Appurtenances and it was holden and so adjudged by the whole Court That the Lands did passe by the words With the Appurtenances For it was in a Will in which the intent of the Devisor shall be observed Trinit 28. Eliz. Rot. 1130. in the Common Pleas. 47 The QUEEN and SAVACRE's Case IN a Quare Impedit by the Queen against Savacre Clerk the Case was this The Queen presented to a Parsonage which was void by the taking of another Benefice by the said Savacre and the said Savacre for to enable him to have two Benefices pleaded That he was the Chaplain of Sir James a Crosts Controller of the Queens House who by the Statute of 21. H. 8. cap. 13. might have two Chaplains and might qualifie them to take two Benefices to which it was replied That the said Sir James a Crost had two other Chaplains which are qualified to have two Benefices and have also two Benefices by reason of that qualification and also are alive so as he is a third Chaplain who could not be qualified by that Statute To which it was answered That one of those two Chaplains is removed and discharged by the said Sir James a Crost to be his Domesticall Chaplain scil Capellanum familiarem as it was pleaded and so he hath now but two Chaplains of which the Defendant was one upon which there was demurrer joyned Three Points were in the Case 1. If the qualification Sub sigillo be sufficient within the Statute without the Signature or name of Sir James a Crost 2. When two Chaplains are qualified and one is removed out of service if he might qualifie another by the Statute the party being alive who was qualified 3. Whether he remain his Chaplain notwithstanding such removall during his life Upon which Points after perusall of the Statute it was agreed by the whole Court That the Queen ought to have Judgement and so they gave Judgement presently And the reasons of their Judgement were for the first Point Because that the Defendant Sâ—vâ—cre was not qualified Sub Signo Sigillo praedict Jacobi a Crost but only Sub Sigillo and the words of the Statute are viz. Under the Sign and Seal of the King or other their Lord or Master c. Which words Or other their Lord or Master shall be referred to Sign and Seal which is limited to the
aliquam for he ought to answer singulatim as 4. H. 7. Where one was bounden that hee and his servants should keep the Peace he shall not say generally that he and his servants have kept the Peace but he ought to answer for every one particularly So here he ought not to answer generally Non usurpavit Libertates praedicts c. without saying Nec earum aliquam Also it is naught because he saith Non usurpavit infra Messuagium praedictum c. For although it be sufficient for us to say Quod usurpavit infra Messuagium praedictum because if hee hath usurped upon any part of the Mannor Vsurpavit infra Manerium yet it is not good for him to answer so for if he hath usurped in any part of the Mannor although not in the Messuage it is sufficient for us as 33. H. 8. Br. Traverâ— sans ceo 367. Information was in the Exchequer eo quod the Defendant had bought certaine Wools of W. N. contra formam Statuti where he is not a Draper nor was a Draper It is no issue that he did not buy them of W. N. but hee ought for to answer that he did not buy them modo forma For whether he bought them of W. N. or of I S. it is not materiall for that is not traversable but the buying contrary to the forme of the Statute is the matter traversable Besides he doth not answer that he hath these Liberties Concessione or Authoritate Regia And it followes necessarily That if he hath them not by Royall Authority that then he hath usurped them as 3. H. 6. and 33. H. 6. One alledged a Devise that the Lands were devisable in such a Town c. And the other pleads That the Lands are not devisable it is no plea because he doth not answer to the Custome of the Town So here hee pleads Non usurpavit but he doth not answer Whether he hath them Authoritate Regia or not Cook The Queen demands Quo Warranto He sayes Non usurpavit Doth not that answer the question Doubtlesse it is a direct Answer as 3. E. 3. Itin. North If he doth not use any Liberty a Quo Warranto doth not lie And as to that Objection That he ought to answer directly to your question it is not so for 31. E. 3. Voucher I may vouch in a Quo Warranto yet there I do not directly answer to your question So in Tempore E. 1. ibidem in a Juris utrum is a Question Who hath right yet he is not bound directly to answer the question 17. E. 3. he may plead the generall issue And it is a generall rule Where a thing is materiall without which you cannot have an Action that there I may traverse it as 8. H. 6. and 21. H. 6. upon the Statute of Maintenance Ne mainteina pas is a good plea and yet it doth not answer to the speciall matter alledged And upon Non usurpavit all the speciall matter may be given in evidence 14. H. 4. Where one is charged as Bayly of a Manor Curam habens administrationem bonorum there it is a good plea to say That he was not his Receivor modo forma and that shall go to the goods as well as to the Mannor and so is 49. E. 3. But it was objected That the issue is multiplex and uncertain for he might usurp by Misuser or non user because it had been used and now it is not used To that I answer That upon Non intrusit or Not guilty he may give in evidences 100. titles and the Court might be enveigled therewith as well as in this issue But then it was objected That he ought to say Non usurpavit Libertates praedictas nec earum aliquam I answer That he ought not so to do for if a Quo Warranto be brought of 100. Manors or Liberties Non usurpavit modo forma goes to them all And he shall not say Non usurpavit in hoc nec in illo nec in illo The book before vouched by Godfrey 33. H. 8. of buying of Wools of I. S. is not Law But then it was further objected That he doth not answer whether he hath them Authoritate Regia or not To that I answer That is answered in these words Modo forma But now let us see if the Information be good or not For it was shewed that the Defendant was seised of a Manor within which there is an house within which house he claims to have a Court with view of Frankpledg and to summon the Tenants ad â—andâ—m Curiam and this is uncertain where he saith ad eandem Curiam for there are two alledged before and therefore it is uncertain to which it shall be referred Also he saith that he claimeth to have a Court and it may be it is a Court of Pipowders or Torne as 10. E. 4. 15. Where it is said That an Indictment was taken at the Court or view of Frankpledg and there holden it was not good for it cannot be intended what Court. And as to that that he sayes that he clayms to have a Court c. infra Messuagium praedictum c. and to call twelve men to it and that these twelve men ought to be of the Jury there is an ancient Reading which goes under the name of Frowicks Reading upon the Statute of Quo Warranto And there it is holden That a Quo Warranto doth not lie of the claim of a thing which cannot be claimed as to claim Felons goods or to pardon Felons for those are things which lie onely in point of Charter If the claim be within the Messuage then he cannot call men out of the Messuage as if he claime within the Manor hee cannot call men out of the Manor But a man may have a Leet belonging to a house or within a house Suit Justice It is Habere tenere infra Messuagium praedictum and that he may well do A Quo Warranto contains but two things in it First it is demanded quo Warranto hee claymes such Liberties Secondly It chargeth him with a tortious usurpation of them And here in the principall Case he hath answered to the usurpation of them but hee doth not answer nor shew by what title he clayms them And the like Case was adjudged here in this Court That Non usurpavit modo forma was no sufficient Answer The Case was adjourned Mich. 28 29. Eliz. in the Common Pleas. Intratur Trinit 28. El. Rot. 256. 104 LEEDES and CROMPTON'S Case A Lease was made to A. B. and C. upon Condition that they nor any of them should alien without licence And the Lessor made a Licence that A. B. or C. might alien the same is a good licence notwithstanding the uncertainty and thereby they have severall authorities to alien As a Letter of Atturney to A. or B. to make Livery but a gift to A. or B. is void for the uncertainty But if a
common law yet it is otherwise at this day For when the Statute sayes That the Lessor shall recover damages for the Wast that proves sufficiently that the property of the trees is in him as the Statute of Merton Cap. 4. enacts That if the Lessor do approve part of the Wast leaving sufficient for the Commoners and they notwithstanding that bring an Assize they shall be barred in that Case and the Lord may have an Action of Trespass against them if they break the Hedges by force of that Statute as it hath been adjudged for the intent of the Statute was to settle the Inheritance of the Land approved without interruption of the Commoners And so in this case But Note that by the Statute of Marlebridge the Lessor shall recover damages for the houses c. which are wasted c. and yet a man cannot inferre thereupon that therefore the Lessee hath no Interest or property in them and such interest hath he in the trees notwithstanding the words of the Statute which is contrary to this meaning as it seems And therefore Quaere If there be any difference betwixt them and what shall be meant by this word Property But the damages are given by the Statute in respect of the property which the Lessor is to have in reversion after the Lease determined Anderson Chiefe Justice The Lessor hath no greater property in the trees then the Commoner hath in the soile Walmesley 2. H. 7. 14. and 10. H. 7. 2. The Lessor may give leave to the Lessee to cut the trees and the same shall be a good plea in an Action of Wast and the reason of both the books is because the property of them is in the Lessor and to this purpose the difference is taken in 2. H. 7. betwixt Gravell and trees 42. H. 3. If a Prior licence the Lessee to cut trees the same shall discharge him in Wast brought by the Successour But if the Lessee cutteth down the trees and then the Prior doth release unto him the same shall not barre the Successour and so is 21. H. 6. Also he cited Culpepers case 2 Eliz. and 44. E. 3. Statham and 40. Ass 22. to prove that the Lessor shall have the Wind-falls If a stranger cutteth down trees and the Lessee bringeth an Action of Trespasse he shall recover but according to his losse viz. for lopping and topping As to that which was said That if the Lessee cut down trees that the Lessor cannot take them away that is true for that there is a contract of the Law that if the Lessee doth cut them down that he shall have the trees and the Lessor shall have treble damages for them Also he said That the trees are no part of the thing demised but are as servants and shall be for reparations As if one hath a Piscarie in the land of another man the land adjoyning is as it were a servant viz. to drie the Nets So if one have conduit-pipes lying in the land of ather he may dig the land for to mend the pipes and yet he hath no Interest nor Free-hold To that which was said That by the excepting of the trees the land upon which they stood is excepted It is true as a servant to the trees for their nourishment but not otherwise for if the Lessor selleth the trees he afterwards shall not meddle with the land but it shall be wholly in the Lessee quia sublata causa tollitur effâ—ctus And if the Lessee tieth a horse upon the land where the trees stood the Lessor may distraine the same for his rent and avow as upon land within his distress and Fee and holden of him And he said that the lessor may grant the trees but so cannot the lessee and therefore he said That the property is in the lessor and not in the lessee Also if the lessor granteth them they passe without Atturnment But contrary if the lessor had but a Reversion in them Also if the lessor cutteth them down his Rent shall not be apportioned and therefore they are no part of the thing demised For 16. H. 7. and temps E. 1. Fitz. Waste in two or three places it is holden That if the Waste be done Sparsim in a Close or Grove the lessor shall recover the whole Then admit that the trees excepted are cut down sparsim if the Exception shall be good how shall the thing wasted be recovered and against whom quod nota Anderson Chief Justice did conceive that the Exception was void and that the Action was well brought and he said It was a Knavish and Foolish demise and if it should be good many mischiefs would follow which he would not remember Windham Justice was of the same opinion and he said The lessor might have excepted them and so take from the lessee his fire wood and Plough bote c. But the lessee could not grant his estate excepting the trees because he had but a speciall interest in them viz. for his fire-bote c. which shall go with the land Periam Justice agreed That as to such a speciall property none can have it but such a one who hath the land and therefore the exception of the Wood by the lessee was void But as to the other things perhaps if they were Apple trees or other Fruit-Trees the exception had been good Also although the trees are not let directly yet they are after a sort by a mean as annexed to the land and if the Action be brought against him who made the exception he cannot plead that they were let unto him and therefore he doubted of the exception Rodes Justice also said That he doubted of the Exception And he said That the Book of 44 E. 3. is That the lessee should have the Wind-falls and he did not much regard the Opinion of Statham But Anderson Chief Justice was of opinion that the lessor should have the Wind-falls Note the Case was not adjudged at this time Hill 29. Eliz. in the King's Bench 137 EXceptions were taken by Fuller to an Indictment upon the Statute of 1. Eliz. cap. 2. for the omitting of the Crossing of a Child in Baptising of him The Case was That a Minister out of his Cure at another Church viz. at Chelmesford in Essex did Baptize a Child without the Sign of the Crosse for which he was indicted The first Exception was That the Statute speaks of Ministers which do not use the administring of the Sacrament in such Cathedrall Churches or Parish Churches as he should use to administer the same that this was not the Parish Church in which he should use the same Suit Justice was of opinion That it was good notwithstanding that for otherwise the Statute might be greatly defrauded The words of the Statute are farther Or shall wilfully or obstinately standing in the same use any other Rule Ceremony Order Forme c. 2. He took another Exception upon those words For the omitting of the Crossing only is put and
intend to entermarry with Alice S. by Indenture did covenant with J. D that he would marry the said Alice being then of the age of seventeen years and that after the marriage had betwixt them that they would levy a Fine of divers Lands which said Fine should bee unto the use of the said J. D. and his Heirs and accordingly after the entermarriage the said J. S. and Alice his Wife did levy a Fine unto the said J. D. and his Heirs without any other use implied or expressed but what was contained in the said Indenture before marriage and according to the said Fine the Conusee continued the possession of the said Lands for a long time viz. for thirty years Cook Chiefe Justice said That this continuance of possession was a strong proofe and could not otherwise be intended but that the Conusee came to the possession of the said Lands by the said Fine which was so levied to him and his heirs And he said That it was adjudged in this Court in the Case betwixt Claypoole and Whestone That in a Recovery the Covenant did not lead the use of the Recovery for that it was but an evidence that such was the intent of the parties And in this Case it was agreed by the whole Court and was so said to be resolved in Clogat and Blythes case 30. Eliz. That when no use is expressed or implyed by Indenture or other agreement that it shall be to the ancient use viz. to the use of the Conusor As if Husband and wife be seised of one moytie of the Land in the right of the wife and the Husband of the other moytie by himselfe and they joyne in a Fine generally the Conusee shall be seised to the former uses as it is agreed in Beckwiths case C. 2. part And so it was agreed That if the Husband doth declare the use and the wife doth not disagree or vary from it that the declaration of the Husband shall bind the wife And Cook said That it is not alwayes necessary that the wives name be set to the Indenture which doth declare an use And further Cook said That if a Fine be levied of Lands yet the uses may be declared by subsequent Indentures And it was said Obiter in this Case That if a man for valuable consideration doth purchase a Lease for years and hee nameth two of his servants as joynt-purchasers with him in the Deed and afterwards the Master would sell the Lands alone and the servants do interrupt the sale or will not joyne with him that he hath no remedy to compell them to do it but by a Bill of Chancery Trinit 8. Jacobi in the Common Pleas. 254 A Vicar was endowed in the time of King Henry the 3d. of divers Tithes and afterwards he libelled for those Tithes in the spirituall Court The Defendant alledged a Mâ—dus Decimandi and prayed a Prohibition and day was given to the party to shew cause why the same should not be granted and at the day the Deed of Endowment was produced and shewed in Court By which it did appear That the Vicar was endowed of Hay viz. of the tenth part of it and so of the remnant of the Tithes for which he libelled whereupon the Court refused to award a Prohibition Quaere Causam For as I conceive a Modus Decimandi may accrue after the Endowment Trinit 9. Jacobi in the Common Pleas. 255 Sir W. DETHICK and STOKE's Case STokes libelled against Sir William Dethick in the spirituall Court for calling of him Bald Priest Rascally Priest and for striking of him and for those offences he was fined by the spirituall Court an hundred pound and imprisoned And the opinion of the whole Court was That neither the Fine nor Imprisonment were justifiable because the Statute of Articuli Cleri is Non imponant poenam pecuniariam nisi propter redemptionem c. And Cook said They might onely excommunicate and thereupon a Writ de Excommunicatâ— capiendo might be awarded and that is their onely course and then the Party may have his Cautione admittenda And the Court said That if the spirituall Court would not enlarge the party upon sufficient Caution offered them that then the Sheriffe should deliver him Trinit 8. Jacobi in the Common Pleas. 256 IT was the opinion of the whole Court That if a man have a Judgment against two men upon a joynt Bond That he cannot have severall Executions viz. a Capias ad satisfaciendum against the one and an Elegit against the other for he ought to have but unicam satisfactionem although he sue them by severall Actions And if he sue forth severall Executions an Audita Querela will lye Mich. 9. Jacobi in the Common Pleas. 257 CARLE'S Case NOte it was adjudged in this Case That if a man say of another that he hath killed a man an Action upon the case will not lie for those words for he may do it as Executioner of the Law or se defâ—ndeâ—do So if one say of another That he is a Cutpurse an Action will not lie for that a Glover doth and a man may cut his own purse and the same Term it was holden in the Kings Bench That an Action will not lie for calling one Witch Mich. 9. Jacobi in the Common Pleas. 258 IT was holden by the whole Court That a Commoner cannot generally justifie the cutting and taking away of Bushes off from the Common but by a speciall prescription he may justifie the same So he may say That the Commoners have used time out of mind to dig the Land to let out the water that he may the better take his Common with his cattell and it was agreed That if the Lord of the Waste doth surcharge the Common that the Commoner cannot drive his cattell off the Common or distraine them damage feasance as he may the cattell of a stranger But the remedy against the Lord is either an Assize or an Action upon the Case Mich. 9. Jacobi in the Common Pleas. 259 IT was agreed by the whole Court That if a man deviseth unto his daughter an hundred pound when she shall marry or to his son when he shall be of full age and they die before the time appointed that their Executors shall not have the money otherwise if the devise were to them to be paid at their full ages and they die before that time and make Executors there the Executors may recover the Legacy in the spirituall Court Hill 9. Jacobi in the Kings Bench. 260 ROYLEY and DORMER's Case TWo Boyes did contend and fight near unto their houses and the one stroke the other so as he did bleed who went and complained to his father who having a rod with him came to the other boy and beat him upon which he died And the opinion of the whole Court was That it was not murder Mich. 9. Jacobi in the King 's Bench. 261 EDWARDS and DENTON's Case UPon a special Verdict the Case was
in Ward For Cook Chief Justice said that all Offices which are found to deceive the Crown of such an ancient flower of the Crown as Wardship should be void as to that purpose and most beneficial for the King And he cited the Case in 36. H. 8. Where the Kings Tenant made a Feoffment and took back an estate unto himself for life the Remainder to his Grand-child for 80. years and died that in that Case the Heir was in Ward and they said that in the case at Barre the Heir had power of the Inheritance upon payment of five Shillings and if the Lease for years be found and proved by witnesses yet it carrieth with it the badges of fraud And Tanfeild Chief Baron said that if a Lease for 100. years shall be accounted Mortmain à fortiori this Lease for 1000. years shall be taken to be made by fraud and collusion And Cook said that the Lord Chancellour of England would not relieve such a Lessee in Court of Equity because the begining and ground of it is apparant fraud Note the lands did lye in Springfield in Essex Trinit 10. Jacobi in the Common Pleas. 274 MEADES Case AN Action of Debt was brought upon a Bond against Meade who pleaded that the Bond was upon condition that if he paid ten pound to him whom the Obligee should name by his last will that then c. and said that the Obligee made his Will and made Executors thereof but did not thereby name any person certain to take the ten pound Sherley Serjeant moved that the Executors should have the ten pound because they are Assignees in Law as it is holden in 27. H. 8. 2. But the whole Court was of opinion that the Executors were not named in the Will for such a purpose viz. to take the ten pound For they said It is requisite that there be an express naming who shall take the ten pound otherwise the Bond is saved and not forfeited And Cook put this Case If I be bounden to pay ten pound to the Assignee of the Obligee and his Assignee makes an Executor and dieth the Executor shall not have the ten pound But if I be bounden to pay ten pound to the Obligee or his Assignees there the Executor shall have it because it was a duty in the Obligee himself the same Law if I be bound to enfeoffe your Assignees c. Wherefore it it was adjudged for the Defendant Trinit 10. Jacobi in the Common Pleas. 275 GREENWAY and BAKER's Case IT was moved and afterwards resolved in the Case of a Prohibition prayed to the Court of Admiralty That if a Pirat taketh goods upon the Sea and selleth them that the property of them is changed no more then if a theife upon the Land steales them and selleth them And in this Case it appeared by the Libell That bona piratica fuerint infra Portam Argier super altum mare And for that cause a Prohibition was denied because Argier being a forrain Port the Court could not take notice whether there were such a place of the Sea called the Port or whether it were within the Land or not Afterwards upon the mediation of the Justices the parties agreed to try the cause in the Guild-hall in London before the Lord Chiefe Justice Cook Trinit 10. Jacobi in the Common Pleas. 276. Sir FRANCIS FORTESCUE and COAKE's Case UPon an Evidence in an Ejectione firme betwixt the Plaintiffe and Defendant The Court would not suffer Depositions of witnesses taken in the Court of Chancery or Exchequer to be given in Evidence unlesse affidavit be made that the witnesses who deposed were dead And Cook Chiefe Justice said nullo contradicente That it is a principall Challenge to a Jurour That he was an Arbitrator before in the same case because it is intended that he will incline to that partie to which he inclined before but contrary is it of a Commissioner because he is elected indifferent And it was also said in this Case That one who had been Solicitor in the Cause is not a fit person to be a Commissioner in the same Cause Trinit 10. Jacobi in the Common Pleas. 277 BArker Serjeant in Arrest of Judgement moved That the Venire facias did vary from the Roll in the Plaintiffs name for the Roll was Peter Percy and the Venire facias John Percy and the postea was according to the Roll which was his true name The Court doubted whether it might be amended or whether it should be accounted as if no Venire facias had issued because it is betwixt other parties But it was holden That in case no Venire facias issueth the same is holpen by the Statute of Jeofailes and in this case it is in effect as if no Venire facias had issued forth and so it was adjudged And Cook Chiefe Justice said that if there be no Venire facias nor habeas Corpora yet if the Sheriffe do return a Jury the same is helped by the Statute of Jeofailes Warburton Justice contrary vide C. 5. part Bishops case And Harris Serjeant vouched Trinit 7. Jacobi Rot. 787. in the Exchequer Herenden and Taylors case to be adjudged as this Case is Trinit 10. Jacobi in the Common Pleas. 278 BROWN's Case IT was holden by the whole Court in this case That if a man hath a Modus Decimandi for Hay in Black-acre and he soweth the said acre seven years together with corn that the same doth not destroy the Modus Decimandi but the same shall continue when it is again made into hay And when it is sowed with corn the Parson shall have tithe in kind and when the same is hay the Vicar shall have the tithe hay if he be endowed of hay Trinit 10. Jacobi in the Common Pleas. 279 JAMES and RATCLIFF's Case IN Debt upon a Bond to perform such an agreement The Defendant pleaded Quod nulla fuit conclusio-sive agreeamentum The Plaintiff said Quod fuit talis conclusio agreeamentum de hoc ponit se super patriam The Court held the same was no good issue because a Negative and an Affirmative Trinit 10. Jacobi in the Common Pleas. 280 WETHERELL and GREEN's Case IT was said by the Pronothories That if a Nihil dicit be entred in Trinity Term and a Writ of Enquiry of Damages issueth the same Term that there needs not any continuance but if it be in another Term it is otherwise The Court said If it were not the course of the Court they would not allow of it but they would not alter the course of the Court the words of continuance were Quia vicecomos non misit brev Trinit 10. Jacobi in the Common Pleas. 281 PARROT and KEBLE's Case A Man levied a Fine unto the use of himself for life the remainder in tail c. with power reserved to the Conusor to make Leases for eighty years in Possession or Reversion if A. B. and C. did so long live reserving the ancient rent
the case which implyed their opinions to be for the Universitie And 21. H. 7. was vouched That the Patronage was only matter of favour and was not a thing valuable And in this case Cook chief Justice said That Apertus haereticus melius est quam fictus Catholicus Mich. 11. Jacobi in the Common Pleas. 310 BOND and GREEN's Case AN Action of Debt was brought against an Administrator the Defendant shewed how that there were divers Judgments had against him in 〈◊〉 Aâ—d â—â—so that there was another Debt due by the Testator which was assigned over unto the Kings Majesty and so pleaded That he had fully Administred Barker Serjeant took Exception to the pleading because it was not therein shewed that the King did assent to the Assignment and also because it was not shewed that the Assignment was enrolled The Court said nothing to the Exceptions But whereas he Defendant as Administrator did alledge a Retayner in his own hands for a debt due to himselfe The opinion of the whole Court was that the same was good and that an Administrator might retayne to satisfie a debt due to himselfe But it was agreed by the Court That an Excecutor of his own wrong should not Retayne to satisfie his own debt See to this purpose C. 5. part Coulters Case Mich. 11. Jacobi in the Common Pleas. 311 STROWBRIDG and ARCHERS Case IN An Action of debt upon a Bond the Defendant was Outlawed And the Writ of Exigent was viz. Ita quod habeas corpus ejus hîc c. whereas it ought to be coram Justiciariis nostris apud Westminster And for that defect the utlagary was reversed and it was said that it was as much as if no Exigent had been awarded at all And upon the Reversall of the utlagary a Supersedeas was awarded and the party restored to his goods which were taken in Execution upon the Capias utlagatum It was also resolved in this Case That if the Sheriffe upon a Writ of Execution served doth deliver the mony or goods which are taken in Execution to the Plaintiffs Atturney it is as well as if he had delivered the same to the Plaintiff himself for the Receipt by his Atturney is in Law his own Receipt But if the Sheriff taketh goods in Execution if he keep them and do not deliver them to the paâ—â— at whose suit they are taken in Execution the party may have a new Execution as it was in the principal Case because the other was not an Execution with Satisfaction Mich. 11. Jacobi in the Common Pleas. 312 CHAVVNER and BOVVES Case BOwes sold three Licences to sell Wine unto Chawner who Covenanted to give him ten pounds for them and Bowes Covenanted that the other should enjoy the Licences It was moved in this Case whether the one might have an Action of Covenant against the other in such Case And the opinion of Warburton and Nichols Justices was That if a Man Covenant to pay ten pound at a day certain That an action of Debt lyeth for the money and not an action of Covenant Barker Serjeant said he might have the one or the other But in the principall Case the said Justices delivered no opinion 313 Note That this Day Cooke Chief Justice of the Common Pleas was removed to the Kings Bench and made Lord Chief Justice of England And Sir Henry Hobart who was the Kings Aturney generall was the day following made Lord Chief Justice of the Court of Common Pleas. Sir Francis Bakon Knight who before was the Kings Solicitor was made Atturney Generall And Mr Henry Yelverton of Grays-Inn was made the Kings Solicitor and this was in October Term. Mich. 11 Jacobi 1613. Mich. 11. Jacobi In the Common Pleas. 314 THis Case was put by Mountague the Kings Serjeant unto the Lord Chief Justice Hobart when he took his place of Lord Chief Justice in the Common Pleas viz. Tenant in tail the Remainder in taile the Remainder in Fee Tenant in tail is attainted of Treason Offence is found The King by his Letters Patents granteth the lands to A who bargaineth and selleth the land by Deed unto B. B. suffers a common Recovery in which the Tenant in tail is vouched and afterwards thâ— Deed is enrolled And the question was Whether it was a good Bar of the Remainder And the Lord Chief Justice Hobart was of opinion That it was no barre of the Remainder because before enrollment nothing passed but only by way of conclusion And the Bargainee was no Lawfull Tenant to the Precipe Mich. 11. Jacobi in the Common Pleas. 315 WHEELER's Case IT was moved for a Prohibition upon the Statute of 5. E. 6. for working upon Holy days and the Case was That a man was presented in the spirituall Court for working viz. carriage of Hay upon the feast day of Saint John the Baptist when the Minister preached and read divine service and it was holden by the whole Court of Common Pleas That the same was out of the Statute by the words of the Act it self because it was for necessity And the Book of 19 H. 6. was vouched That the Church hath authority to appoint Holy days and therefore if such days be broken in not keeping of them Holy that the Church may punish the breakers therof But yet the Court said That this day viz. the Feast day of Sr John the Baptist was a Holy day by Act of Parliament and therefore it doth belong unto the Judges of the Law whether the same be broken by doing of such work upon that day or not And a Prohibition was awarded Mich. 11 Jacobi in the Common Pleas. 316 REARSBY and CUFFER's Case IT was moved for a Prohibition to the Court of Requests because that a man sued there by English Bill for money which he had layd out for an Enfant within age for his Meat drink necessary apparel and set forth by his Bill that the Enfant being within age did promise him to pay the same And a Prohibition was awarded because as it was said he might have an action of Debt at the common Law upon the contract for the same because they were things for his necessary livelihood and maintenance And it was agreed by the Court That if an Infant be bounden in an Obligation for things necessary within age the same is not good but voidable Quaere for a difference is commonly taken When the Assumpsit is made within age and when he comes to full age For if he make a promise when he cometh of full age or enters into an Obligation for necessaries which he had when he was within age the Law is now taken to be that the same shall binde him But see 44. Eliz. Randals Case adjudged That an Obligation with a penaltie for money borrowed within age is absolutely void Mich. 11. Jacobi in the Common Pleas. 317 SMITH's Case SMith one of the Officers of the Court of Admiralty was committed by the Court of Common Pleas to the prison of
Tenures of such men viz. A. B. C. 3. All his lands which he had by Purchase c. And the words All my Lands are to be intended all those my Lands which are within the restrictions And he said that the word Et being in the copulative was not material for all was but one sentence and it did not make several sentences and the word Et is but the conclusion of the sentence 3. They resolved That general words in a Grant may be overthrown by words restrictive as is 2 E. 4. and Plow Com. Hill Granges Case And therefore if a man giveth all his lands in D. which he hath by Discent from his Father if he have no lands by Discent from his Father nothing passeth 4. They agreed That a Restriction may be in a special Grant as in C. 4. par Ognels Case but they said that if the Restriction doth not concur and meet with the Grant that then the Restriction is void Note the principal Case was adjudged according to these Resolutions Mich. 11. Iacobi in the Common-Pleas 293. COOPER and ANDREWS Case TO have a Prohibition to the Spiritual Court suggestion was made That the Lord De la Ware was seised of 140 Acres of lands in the County of Sussex which were parcel of a Park And a Modus Decimandi by Prescription was said to be That the Tenants of the said 140 Acres for the time being had used to pay for the tythes of the said 140 Acres two shillings in mony and a shoulder of every third Deer which was killed in the same Park in consideration of all tythes of the said Park And it was shewed how that the Lord De la Ware had enfeoffed one Cumber of the said 140 acres of land who bargained and sold the said 140 acres of land to the Plaintiffe who prayed the Prohibition The Defendant said that the said Park is disparked and that the same is now converted into arable lands and pasture-grounds and so demanded tythes in kind upon which the Plaintiffe in the Prohibition did demur Hutton Serjeant By the disparking of the Park the Prescription is not gone nor extinct because the Prescription is said to be to 140 acres of lands and not to the Park and although the shoulder of the Deer being but casual and at the pleasure of the party be gone yet the same shall not make void the Prescription 2. He said that the act of the party shall not destroy the Prescription and although it be not a Park now in form and reputation yet in Law the same still remains a Park And he compared the Case unto Lutterels Case C. 4. par 48. where a Prescription was to Fulling-Mils and afterwards the Mils were converted to Corn-Mils yet the Prescription remained 3. He said Admit it is not now a Park yet there is a possibility that it may be a Park again and that Deer may be killed there again For the Disparking in the principal Case is only alleadged to be that the Pale is thrown down which may be amended For although that all the Park-pale or parcel of it be cast down yet the same doth still remain in Law a Park and a Park is but a Liberty and the not using of a Liberty doth not determine it nor any Prescription which goes with it And if a man have Estovers in a Wood by Prescription if the Lord felleth down all the Wood yet the right of Estovers doth remain and the Owner shall have an Assise for the Estovers or an Action upon the Case Vid. C. 5. par 78. in Grayes Case the Case vouched by Popham Further he said That in the beginning a Modus Decimandi did commence by Temporal act and Spiritual and the mony is now the tythe for which the Parson may sue in the Spiritual Court And a Case Mich. 5. Jacobi was vouched where a Prescription to pay a Buck or a Doe in consideration of all Tythes was adjudged to be a good Prescription And the Case Mich. 6. Jacobi of Skipton-Park was remembred where the difference was taken when the Prescription runs to Land and when to a Park In the one case although the Park be disparked the Prescription doth remain in the other not And 6 E. 6. Dyer 71. was vouched That although the Park be disparked yet the Fee doth remain And so in the Case at Bar although the casual profit be gone yet the certain profit which is the two shillings doth remain Harris Serjeant contrary And he said that the Conveyance was executory and the Agreement executory and not like unto a Conveyance or Agreement executed And said that Tythes are due jure divino and that the party should not take advantage of his own wrong but that now the Parson should have the tythes in kind And upon the difference of Executory and Executed he vouched many Authorities viz. 16 Eliz. Dyer 335. Calthrops Case 15 E. 4. 3. 5 E. 4. 7. 32 E. 3. Anuitie 245. And in this case he said that the Parson hath no remedy for the shoulder of the Deer and therefore he prayed a Consultation Hobart Chief Justice said That the Pleading was too short and it was not sufficiently pleaded For it is not pleaded That the Park is so disparked that all the benefit thereof is lost But he agreed it That if a man doth pull down his Park-pale that the same is a disparking without any seisure of the Liberty into the Kings hands by a Quo Warranto But yet all the Court agreed That it doth yet remain a Park in habit And they were all also of opinion That the disparking the Park of the Deer was not any disparking of the Park as to take away the Prescription The Case was adjourned till another day Mich. 11. Iacobi in the Common-Pleas 330. PIGGOT and PIGGOT's Case IN a Writ of Right the Donee in tail did joyn the Mise upon the meer Right and final Judgment was given against the Donee in which case the Gift in tail was given in Evidence Afterwards the Donee in tail brought a Formedon in the Discender and it was adjudged by the whole Court that the Writ would not lie For when final Judgment is given against the Donee in tail upon issue joyned upon the meer Right it is as strong against him as a Fine with Proclamations and the Court did agree That after a year and day where final Judgment is given the party is barred and also that such final Judgment should bar the Issue in tail Mich. 11 Iacobi in the Exchequer-Chamber 331 AN action upon the Case was brought for speaking these words Thou doest lead a life in manner of a Rogue I doubt not but to see thee hanged for striking Mr. Sydenhams man who was murdered And it was resolved by all the Justices in the Exchequer-Chamber That the words were not actionable At the same day in the same Court a Judgment was reversed in the Exchequer-Chamber because the words were not actionable The words
resolved That although the Award was void as to that part yet for the residue it stood good and therefore for not performance of the same the Bond is forfeited As if J. be bounden to perform the Award of J. S. for White-Acre and that he award that I enfeoffe another of White-Acre and that he give unto me Ten pounds If I tender unto him a Feoffment of White-Acre and he refuseth it and will not give to me the 10l. I shall have an Action of Debt upon the Bond as it is adjudged in Osborn's Case C. 10. par 131. The same Law If J. S. and J. N. submit themselves unto the Award of J. D. who awardeth that J. S. shall surcease all suits and procure J. N. to be bounden with a stranger and make a Feoffment of his Mannor of D. which is a thing out of the Submission In that case there are three things enforcing the Arbitrement the first is only good the second is against the Law and the other is out of the Submission yet being in part good it ought to be performed in that otherwise the Bond is forfeited But this Case was put If J. be bounden to stand to the Award of A. ita quod it be made de super premissis and afterwards A. maketh an Award but of part of the premises there it is void in all because it is not according to the authority given unto him And afterwards in the principal Case Judgment was given for the Plaintiffe Pasch 12 Jacobi in the Kings Bench. 353. DOCKWARY and BEAL's Case IN an Essex Jury The opinion of the Court was That Wood will passe by the name of Land if there be no other Land whereby the words may be otherwise supplied Also it was agreed That the Tenant for Years might fell Underwoods of 25 years growth if the same hath used to be felled Pasch 12 Jacobi in the Kings Bench. 354. WROTESIEY and CANDISH's Case ELizabeth Wrotesley did recover Dower 6 Jacobi in the Common-Pleas in which Writ she demanded tertiam partem Manerii de D. eum pertinaciis Nec non tertiam partem quarundam terrarum jacent in Hovelan And upon Ne unque seise que Dower the parties were at issue and the Venire facias awarded de Hovelan And it was found for the Plaintiffe and Judgment was given for her And Candish the Defendant brought a Writ of Error in the Kings Bench and assigned for Error That it was a Mis-trial For that the Venire facias ought to have been de Manerio and not of Hovelan 6 H. 7. 3. 11 H. 7. 20. C. 6 par â— 19 H. 6. 19. 19 E. 4. 17. Yet the Councel of the Defendant moved That the Trial was good for the Land in Hovelan And it being found that the Husband was seised of the Mannor of D. that now the Trial was good for the whole Pasch 12 Jacobi in the Kings Bench. 355. COWLEY and LEGAT's Case COwley brought an Audita quaerela against Legat and the Case was this Cowley and Bates bound themselves in a Bond of 200l. jointly and severally to Legat And afterwards 6 Jacobi Legat brought an action of Debt upon the Bond against Bates and had Judgment and 7 Jacobi the said Legat brought Debt against Cowley in the Kings Bench upon the same Bond and obtained Judgment and afterwards he sued forth Execution upon the first Judgment by Elegit and had the Land of Bates who was Tenant thereof only for another mans life in Execution and afterwards he took forth a Capias ad satisfaciendum against Cowley upon the Judgment in the Kings Bench And thereupon Cowley brought an Audita quaerela containing in it all the whole matter And the opinion of all the Justices was That the Audita quaerela was well brought And first it was holden That when a man may plead the matter in bar he shall not have an Audita quaerela upon the matter because it was his lachess that he did not take advantage of it by way of plea. But secondly in this Case it was said That he could not have pleaded the special matter and therefore as to that point the Audita quaerela was well brought But the onely doubt in the Case was Whether Legat the Defendant might have a new Execution by Capias ad satisfaciendum after that he had Execution against one of the Obligers by Elegit and the doubt was because the Judgments upon which he grounded his Executions were given at several times and in several Courts and against several persons For it was agreed by the whole Court That a Capias doth not lie after Execution sued by Elegit against the same person but after a Capias an Elegit is grantable And the reason of the difference is because upon the prayer to have an Elegit it is entred in the Roll Elegit sibi executionem per medietatem terrae so as he is estopped by the Record to have another Execution but upon a Capias nothing at all is entred upon Record Yet Cook Chief Justice said That it is the common practice of a good Attorney to deferre the entry in the Roll of Execution upon an Elegit until the Sheriffe hath retorned it served And in such case it was agreed That if the Sheriffe retorn upon the Elegit That the party hath not Lands c. then the party may take forth a Capias Also the Elegit is in it self a satisfactory Execution and by the Common-Law a man shall have but one Execution with satisfaction And therefore at the Common-Law if after Execution the Land had been evicted the party had no remedy And Cook said If part of the Land be evicted the party shall not have remedy upon the Statute of 32 H. 8. cap. 5. to which Crook Justice agreed And the Court held it to be no difference although that the Judgments were given in several Courts against persons several and at several times and where it is but one Judgment against one person Vide the Case 43 E. 3. 27. where in Debt the Defendant said That the Plaintiffe had another Action for the same Debt depending in the Exchequer by Bill Judgment c. And by Mowbray and Finchden cleerly it is a good plea although it be in another Court And Dodderidge Justice said That in the first case the said Legat might sue the said Cowley and Bates severally and after Judgment he might choose his Execution against which of them he pleased But he could not have Execution by Elegit against them both And therefore he said That although there be an Eviction of the Land or that the Judgment be reversed by Error after that he hath Execution against one by Elegit yet Legat could not have Execution against the other for by the first Execution he had determined his Election and he could not sue the other which Cook agreed Mich. 12 Iacobi in the Kings Bench. 356. FOX and MEDCALF's Case IN a Writ of Accompt brought in
Judgement was affirmed for by intendment the Judgment was given upon the first Original which bore date before the Iudgment Another Error was assigned because the Plea was That such a one was seised of the Castle and Mannor of Mulgrave predictis in the plural number I answer that there is not any colour for that Error for the word predictis doth shew that the Mannor and Castle are not one and the same thing So upon the whole matter I pray that the Iudgment given in the Court of Pleas may be affirmed Sir Henry Yelverton argued for the Lord Sheffield that the Iudgment might be reversed There are three things considerable in the Case First If any right of the ancient estate tail was in Francis Bigot who was attainted at the time of his Attainder Secondly admit that there was an ancient right if it might be forfeited being a right coupled with a Possession and not a right in gross Thirdly Whether such a Possession discend to Francis Bigot that he shall be remitted and if this Remitter be not overreached by the Office First If by the Feoffment of Francis Bigot 21. H. 8. when he was Cestuy que use and by the Livery the right of the ancient entail be destroyed And I conceive it is not but that the same continues and is not gone by the Livery and Seisin made There is a difference when Cestuy que use makes a Feoffment before the Statute of 1 R 3. and when Cestuy que use makes a Feoffment after the said statute of 1 R 3 For before the statute hee gives away all Com 352. but after the statute of R. 3. Cestuy que use by his Feoffment gives away no Right In 3 H. 7 13. is our very case almost For there the Tenant in Tail made a Feoffment unto the use of his Will so in our Case and thereby did declare that it should be for the payment of his debts and afterwards to the use of himself and the heirs of his body and died the heir entred before the debts paid but in our Case he entred after the debts paid there it is said that the Feoffment is made as by Cestuy que use at the Common Law for his entrie was not lawfull before the debts paid But when Francis Bigot made a Feoffment 21 H. 8. he was Cestuy que use in Fee and then is the Right of the Estate tail saved by the Statute of 1. R. 3. And by the Statute of 1. R. 3. he gives the Land as Servant and not as Owner of the Land and so gives nothing but a possession and no Right 5 H. 7. 5. Cestuy que use since the Statute of 1 R. 3. is but as a Servant or as an Executor to make a Feoffment And if an Executor maketh a Feoffment by force of the Will of the Testator he passeth nothing of his own Right but only as an Executor or Servant 9 H. 7. 26. proves that Cestuy que use since the Statute of 1 R. 3 hath but only an Authority to make a Feoffment For Cestuy que use cannot make a Letter of Attorney to make Livery for him for he hath but a bare Authority which cannot be transferred to another Cestuy que use hath a Rent out of Land and by force of the Statute of 1 R. 3. he maketh a Feoffment of the Land yet the Rent doth remain to him for he giveth but a bare possession So in our Case the right of the Estate Tail doth remain in Francis Bigot notwithstanding his Feoffment as Cestuy que use by the Statute of 1 R. 3. If Cestuy que use by force of the Statute of 1 R. 3. maketh a Feoffment without Warranty the Vouchee shall not Vouch by force of that Warranty For as Fitzherbert saith Cestuy que use had no possession before the Statute of 27. H. 8. Cap. 10. 27 H. 8. 23. If Feoffees to Use make a Letter of Attorney to Cestuy que use to make a Feoffment he giveth nothing but as a Servant The Consequent of this Point is That the right of the old Estate Tail was in Francis Bigot at the time of his Attainder and was not gone by the Feoffment made 21 H. 8. The second Point is Whether a right mixt with a possession of Francis Bigot might be forfeited by the Statutes of 26. H. 8. and the private Act of 31. H. 8. The Statute of 31. H. 8. doth not save this Right no more then the Statute of 26. H. 8. For they are all one in words I say that he hath such a right as may be lost and forfeited by the words of the Statute of 26. H. 8. Cap. 13. For that Statute giveth three things First It gives the Forfeiture of Lands and not of Estates Secondly How long doth that Statute give the lands to the King For ever viz. to the King his Heirs and Successors Thirdly It gives the lands of any Estate of Inheritance in Use or Possession by any Right Title or means This Estate Tail is an Estate of Inheritance which he hath by the Right by the Title and by the means of coming to the Right it is forfeited These two Statutes were made for the punishment of the Child For the Common Law was strict enough against the Father viz. he who committed the Treason And shall the same Law which was made to punish the Child be undermined to help the Child The ancient Right shall be displaced from the Land rather then it shall be taken from the Crown which is to remain to the Crown for ever And this Statute of 26 H. 8. was made pro bonoâ— publico and it was the best Law that ever was to preserve the King and his Successors from Treason for it is as it were a hedg about the King For before this Statute Tenant in Tail had no regard to commit Treason For he forfeited his Lands but during his own life and then the Lands went to the issue in Tail But this Statute doth punish the Child for the Fathers offence and so maketh men more careful not to offend least their posterity may beg I take two grounds which are frequent in our Law First That the King is favoured in the Exposition of any Statute Com. 239 240. The second That upon the construction of any Statute nothing shall be taken by equity against the King Com. 233 234. Here in this Case although the Right were not in possession yet it was mixed with the possession from Anno 13. E. 1. untill 26. H. 8. Tenant in Tail feared not to commit Treason For the Statute of West 2. did preserve the Estate Tail so as the Father could not prejudice his issue per factum suum And therefore the Commonwealth considering that a wicked man did not care what became of himself so as his issue might be safe provided this Statute of 26. H. 8. Cap. 13. although the Statute of 16. R. 2. Cap. 5. which giveth the Premunire doth Enact that all Lands and
removed but if the VVrit of Error want only form but is sufficient for the matter in substance the VVrit shall not abate but the partie may have a new VVrit of Error coram vobis residet c. Trin. 3 Caroli in the Kings Bench. 464. MILL's Case ACtion upon the Case for these words Thou hast Coyned Gold and art a Coyner of Gold Adjudged the Action will not lie for it may be he had Authority to Coyn and words shall be taken in mitiori sensu Pasch 3 Car in the Kings Bench. 465. BROOKER's Case THe question was VVhether the Feoffee of the Land might maintain a VVrit of Error to reverse an Attaindor by Vtglary and the Case was this William Isley seised in Fee of the Mannor of Sundridge in Kent had issue Henry Isley who was Indicted of Felony 18 Eliz. and 19. Eliz. the Record of the Indictment was brought into this Court and thereupon 20 Eliz. Henry Isley was outlawed William Isley died seised Henry Isley entred into the Mannor and Land as son and heir and being seised of the same devised the Mannor and Lands to C. in Fee who conveyed the same to Brooker and Brooker brought a Writ of Error to reverse the Outlawry against Henry Isley Holborn argued for the King and said that Brooker was no way privy to the attaindor of Henry Isley but a meer stranger and therefore could not maintain a Writ of Error And first he said and took exception that he had not set himself down Terre-Tenant in possession Secondly he saith in his Writ of Error That the Mannor and Lands descended to Henry Isley as son and heir when as he was attainted The third exception was That he saith that Henry Isley did devise the Lands and that he could not do because he was a person Attainted Fourthly he said that Brooker was not Tenant so much as in posse 4 H. 7. 11. If it were not for the words of Restitution the partie could not have the mean profits after the Judgment reversed 16 Ass 16. Lessee for years pleaded to a Precipe and reversed it the question was whether he should be in statu quo vi Librum for it is obscure If this Attaindor of Henry Isley were reversed yet it cannot make the devise good For there is a difference betwixt Relations by Parliament which nullifie Acts and other Relations Vi. 3 H. 7. Sentlegers Case Petition 18. The violent Relation of Acts of Parliament If a Bargain and Sale be the Inrollment after will make Acts before good but a Relation by Common Law will not make an Act good which was before void C. 3. part Butler and Bakers Case A gift is made to the King by Deed enrolled and before the enrollment the King granteth away the Land the Grant is void yet the enrollment by Relation makes the Lands to pass to the King from the beginning Admit in this Case that Brooker were Terre-Tenant yet he is not a party privy to bring a Writ of Error to reverse the Attaindor of him who was Tenant of the Land and I have proved That although the Attaindor were reversed yet he hath nothing because the Devise was void and is not made good by Relation It is a rule in our Books that no man can bring a VVrit of Error but a partie or privy 9 E. 4. 13. 22 E. 4. 31 32. 9 H. 6. 46. b. Ass 6 C. 3. part in the Marquiss of Winchesters Case The heir of the part of the mother cannot have the VVrit of Error but the heir of the part of the father may So if erronious Judgment be given in the time of profession of the eldest son and afterwards he is dereigned he shall have the Writ of Error In 22 H. 6. 28. The heir in special taile or by Custom cannot have Error But yet M. 18 Eliz. in Sir Arthur Henninghams Case it was adjudged That the special heir in tail might have a Writ of Error The Baile cannot maintain a Writ of Error upon a Judgment given against the Principal because he was not privy unto the Judgment therefore it shall be allowed him by way of plea in a Scire facias I never find that an Executor can have Error to reverse an Attaindor but for the misawarding of the Exigent Marshes Case was cited C. 5. part 111. Fitz 104. Feoffee at the Common Law could not have an Audita Quaerela in regard he was not privy 12 Ass 8. 41. Keâ—laway 193. There the Terre-Tenant brought a Writ of Error in the name of the heir and not in his own name 24 H. 8. Dyer 1. There it is said That he who is a stranger to the Record shall have Error To that I answer That he in the Reversion and the particular Tenant are but one Tenant for the Fee is demanded and drawn out of him But in the principal Case at Barr no Land is demanded but a personal Attaindor is to be reversed Also there it is put That if the Conusee extend before the day there it is said that the Feoffee may have Error 17 Ass 24. 18 E. 3. 25. Fitz. 22. To that I answer That the Feoffee is privy to that which chargeth him for the Land is extended in his hands and if the Feoffee there should not have a Writ of Error the Law should give him no manner of remedy for there the Conusor himself cannot have Error because the Lands are not extended in his hands Also it is there said that the Feoffee brought a Scirefacias against him who had execution of the Land To that I answer That that is by special Act of Parliament Also there it is said That if the Parson of a Church hath an Annuity and recovereth and afterwards the Benefice is appropriated to a Religious house the Soveraign of the house shall have a Scirefacias I answer That in that Case he is no stranger for that he is perpetual Parson and so the Successor of the Parson who recovered 12 H. 8. 8. There a Recovery was against a Parson and there Pollard said that the Patron might have Error I answer That Pollard was deceived there for it is said before that the Parson hath but an Estate for life and then he viz. the Patron is as a Recoverer who shall have a Writ of Error Dyer 1. But the Parson hath the Fee and therefore Pollard was mistaken as it appeareth by Brook Fauxi fier de Recovery 51. 19 H. 6. 57 Newton A false verdict is had against a Parson the Patron cannot have an Attaint There is a difference if one be partie to the Writ although not partie to the Judgment Error 72. A Quare Impedit was brought by the King against the Patron and the Incumbent and Judgment only was had against the Patron and the Incumbent Parson brought a Writ of Error but if he had not been partie to the Writ he could not have maintained Error So in Attaint the partie to the Writ though not to the Judgment shall
to Thomas Spence and his Wife and the Survivor the Rent of seventeen Pounds yearly and every year during the terme Proviso that if the Rent be arrere by forty daies that Thomas and his Wife or the Survivor of them should enter Thomas Spence died his Administrator did demand the Rent and being denied entred for the Condition broken Calthrope argued That the reservation to the Wife was void because she had not any interest in the Land and also never sealed the Indenture of Assignment but was as a stranger to the Deed and so he said that the Wife could not enter for the condition broken nor make any demand of the Rent The 2l l Point was Admitting that the wife could not enter nor demand the Rent Whether the Administrator of the Husband might demand it and enter for the condition broken because the words are Yeilding and paying to Thomas Spence and Jane his Wife and the Survivor of them during the term and no words of Executors or Assigns are in the Case and he conceived the Administrator could not and so he said it had been resolved in one Butcher and Richmonds Case about 6. Jacobi Banks contrary and he said It was a good Rent and well demanded and the reservation is good during the Term to the Husband and Wife and although the word Reddendo doth not create a rent to the Wife because the Husband cannot give to the Wife yet the Solvendo shall gain a good rent to the Wife during the life of the Wife and the reservation shall be a good reservation to him and his Administrators during the Survivor Vide C. 5. part Goodales Case 38. E. 3. 33. 46. E. 3. 18. and admitting that the rent shall be paid to the Wife yet the condition shall go to the Administrator 2. The word Solvendo makes the Rent good to the Wife and amounts to an agreement of the Lessee to pay the Rent to them and the Survivor of them and that which cannot be good by way of reservation yet is good by way of grant and agreement and many times words of reservation or preception shall enure by way of grant Vide 10 E. 3 500. 10. Ass 40. 8. H. 4. 19. Richard Colingbrooks Case 41. E. 3. 15. 13. E. 2 Feasts and Fasts 108. Richardson Justice The Reservation being during the term is good and shall go to the Administrator Jones Justice contrary It is good only during the life of the Lessor and so was it adjudged in Edwyn and Wottons Case 5. Jacobi Crook Justice accorded The Administrator hath no title and the Wife is no party to the Deed and therefore the Rent is gone by the death of the Husband If it had been durante termino generally perhaps it had been good but durante termino praedicto to him and his Wife it ceaseth by his death And the words durante termino couple it to him and his Wife and the Survivor and it cannot be good to the Wife who is no party nor sealed the Deed neither can it inure to the Wife by way of Grant And the words Reddendo and Solvendo are Synonima and the Administrator is no Assignee of the Survivor for she cannot assign because she hath no right in the Rent Barkley Justice The intention of the parties was That it should be a continuing Rent and Judges are to make such Exposition of Deeds as that the meaning of the parties may take effect I do agree That the Wife could not have the Rent neither by way of Reservation nor by way of Grant if she were not a party to the Indenture but here she is a party to the Deed for it is by Deed indented made by the husband and wife and the husband hath set his Seal to it And 2. The Solvendo doth work by way of Grant by the intent of the parties The Reddendo shall go and relate as to the husband and the Solvendo to the wife and he agreed the Case 33. H. 8. Br. Cases because there expressum facit cessare tacitum but in case of a Lease for years the words Reserving Rent to him shall go to the Executor who represents the person of the Testator and 27. El. it was adjudged in Constables Case and Littleton agrees with it That the Executor shall be possessed and is possessed in the right of his Testator And therefore if an alien be made an Executor in an Action brought by him the Tryal shall not be per medâ—â—tatem lâ—nguae And this Case is the stronger because the Reservation is during the Term. And C. 3. part in Malleries Case That the Law shall make such a construction Upon reservation of Rent upon a Lease as may stand with the intent and meaning of the parties and therefore in that where an Abbot and Covent made a Lease for years rendring Rent yearly during the Term to the Abbot and Covent or to his Successors it is all one as if it had been to him and his Successors and although the words be joint or in the Copulative yet by construction of Law the Rent shall be well reserved during the terme for if the reservation had been only Annually during the terme it had been sufficient and his Successors should have had the Rent Quaere the principall Case for the Judges differed much in their opinions Hill 8. Caroli in the Kings Bench. 517 The KING against HILL AN Information was by the Kings Atturney against Hill and others upon the Statute of 32. H. 8. of Maintenance Where the Point was A man was out of Possession and recovered in an Ejectione firme in May 2. Car. and Habere Possessionem was awarded and 29. Sept. 4. Car. he sold the Land And whether he might sell presently or not was the Question And it was determined That he being put in possession by a Writ of Habere facias possessionem that he might sell presently Vide Com. Crookers Case and C. Littl. acc and so was it holden in Sir John Offley's Case 7. Car. in this Court Barkley Justice If a Disseisor doth recover in an Ejectione firme if he afterwards sell the Land it is a pretended Title Jones Justice It was adjudged 36. El. in the Common Pleas in Pages Case in the Case of a Formedon That if a man be out of Possession for seven years and afterwards he recover that he may sell the Lands presently Crook Justice There is a difference where the recovery is in a reall Action and where it is in an Ejectione firme It was Master Browneloes Case in the Star-Chamber resolved by all the Judges of England That a Suit in Chancery cannot make a Title pretended nor Maintenance Barkley Justice put this Case If Husband and Wife bargaineth and selleth whereas the Wife hath nothing in the Land and afterwards a Fine is levied of the same Lands by the Husband and Wife it shall have a relation to conclude the Wife and to make the Wife to have a Title ab initio It was
adjourned Pasch 10. Caroli in the Kings Bench. 518 BARKER and TAYLOR's Case IN an Ejectione firme the Case upon the Evidence was this Two Coparceners Copy-holders in Possession the one did surrender his reversion in the moity after his death Charles Jones moved That nothing did passe because he had nothing in Reversion Vide C. 5. part Saffyns Case If a man surrendreth a Reversion the Possession shall not passe 2. It is not good after his death so was it adjudged in C. 2. part Buckler and Harvey's Case Curia The Surrender is void and the same is all one as well in the Case of Copy-hold as of Free-hold and so was it adjudged 26. El. in Plats Case and so also was it adjudged in this Court 3. Caroli in Simpsons Case Pasch 13. Caroli in the Kings Bench. 519 HUMFREYS and STUDFIELD's Case IN an Action upon the Case for words the Plaintiff did declare That he was Heir apparant to his Father and also to his younger Brother who had purchased Lands but had no Issue either Male or Female and that the Defendant with an intent to bring him in disgrace with his Father and also with his younger brother and thereby to make the Father and younger Brother to give away their lands from the Plaintiff did maliciously speak these words to the Plaintiff Thou art a Bastard which words were spoken in the presence of the Father and younger Brother by reason of speaking which words the Father and younger Brother did intend and afterwards did give their Lands from the Plaintiff And by the opinion of the whole Court it was adjudged That the words were Actionable and Judgement entred accordingly FINIS I have perused this Collection of Reports and think them fit to be printed Per me JOHANNEM GODBOLT Unum Justiciar ' de Banco 18. Jun. 1648. An Alphabetical TABLE A ABatement of Writs 9 34 64 By Death 66 68 For Surplusage 380 Abeyance 313 314 319 443 Accâ—ptance 47 39 384 385 425 When a man is bound to accept c. 39 Accessary 65 Accusation before a Justice 444 Acts which purge the wrong before 384 Act subsequent where lawfull 28 29 First Act 337 Action 337 Another Action hanging 258 In what County 42 See County there where it bears date 388 Possessory 34 Before Seisin c. Special 186 Accord see Arbitrament Account 30 43 56 90 291 155 122 123 210 As Baiâ—y ad Merchandizandum 58 Against Executors 291 292 Acquittal 19 Acquittance 104 Addition de Parochia 203 Administrator is found to be an Executor 26 Surety in debt is Administrator c. 149 Administrator counts of his own Possession before he be possessed 34 see 40 Retains for his own debt 217 Administration 33 34 2 Durante minori c. 30 Sues to Execution the Executor comes of age 104 Admiralty upon a stipulation or bill there the body of the stipulators who are for the most part Masters of ships and Merchants transeuntes may be taken no execution can be upon lands It s jurisdiction 260 261 Admiralty Court its jurisdiction things partly done on land 386 387 388 389 390 Advâ—wson 17 38 128 129 passes in Grants 425 Equity in Statutes 308 Agreement disagreement 180 After an arâ—est 360 After Assumpsit 361 Alien 275 Amendment 57 286 103 Amercement 49 135 Distress for it without Presentment 190 Annuity 4 144 Ancient Demesn pleaded 64 320 Appeal 275 Appendant Appurtenant 40 352 353 Apportionment of rent 95 118 139 Apprentices bound by Covenants though Infants 122 Appropriation 1â—4 Approvement of common 116 Arbitrement 13 241 25 276 165 185 in part good 256 Arreers 12 Array triers of it 429 430 Arrests 125 358 lawful 360 Assault and battery 251 Assent of parties 429 430 Assets 29 30 31 averred 176 Assignment 18 of Debts 81 c. Assignee 3 16 70 271 277 120 162 Assize 4 for erecting houses 189 Assurance as counsel shall advise 435 bound to assure 445 446 Assumpsit 13 31 274 72 73 94 159 the arrest is void 360 337 338 350 138 144 358 to the servant 361 Attachment of Debts by custome 297 196 401 402 403 404 Attainder 267 275 303 325 376 Attaint 271 378 279 Atturnment 19 25 320 142 Atturney for livery 39 Atturney must not do acts unlawful 387 what he may do 389 Receipt by him 217 Audita querela 257 104 155 377 Averment of uses 269 214 in a devise 131 432 that Cestuy que vie is alive 195 Avowry 24 302 320 upon whom 368 Authority must be persued 39 84 195 389 naked 307 to recover a debt without more 358 359 Ayde 318 B BAil 148 339 Debt against them 354 Bailment of Goods 160 403 Bankrupts one Commissioner hath right to the land 319 division where but one bond 195 196 Bargain and sale 270 156 Bar Pleas in Bar 253 434 Insufficient 138 two bars 397 Barretor 384 Bastard 275 281 Battery a base fellow strikes a man of dignity 207 Benches 246 247 Bill Suits by bill 389 Bill for oppression or extortion 438 By-Lawes 50 Bishops their Acts 342 Borough English 3 C CApias 39 257 83 372 373 Case Action of c. 13 40 54 55 58 64 240 241 73 285 98 155 160 381 412 liâ—s 329 330 338 344 346 137 176 200 362 426 against an Inn-keeper 42 See Slander Vi armis c. 426 Trover c. 267 274 Challenge 234 110 193 428 429 to the Sheriff and Coronets 357 Chancery 262 Chaplains 41 Charge 3 Charters 370 Things in point of Charter 93 Church-Wardens 279 Cessavit 84 Certainty incertainty 14 93 336 220 once in a deed 198 Certiorari Certificate 14 356 404 Citation out of the Diocess 190 Claim 333 389 of the Lessee 105 Clark of a Parish 163 Colledges are Corporations 394 Collusion Covin 78 298 Colour 159 Commission Commissioners 105 193 High Commissioners 58 Common 4 21 96 97 185 168 169 170 171 Surcharged 182 Digging in the Common c 343 344 making Coney Boroughs 327 Where woods are inclosed 267 What the Commoner may do upon the ground 123 12â— Conclusion by the word praetextu 344 Condition assignee 162 c. 3 9 29 38 39 75 99 101 against Law 250 void 293 Lessee assignes Rent 336 broken acceptance by rent after 47 performance 299 that neither A. B. or C. shall disturb c. 60 61 not to implead A. 72 to assure lands as Councel shall advise 338 339 360 Confession 80 to save harmlesse c. 134 Confirmation 25 Consideration 13 31 32 94 134 159 437 against Law 251 to forbear a debt 303 306 See assumpsit 428 Conspiracy 76 206 447 Consultation 446 447 Contract 31 98 176 intire 154 Continuance to some intents 309 in Courts 195 Contribution for one surety against another 243 Conviction before it lands not to be begged 206 nor seised there 365 366 Copy-hold 2 11 47 233 268 129 130 140 Admittance 269 143 extinguished 101 Statutes extend to it 15 369 tailed 20 21 367 Fines 265 Leases
171 365 368 369 forfeiture 269 142 365 felling trees 173 174 trespasse brought 174 Corporation 347 dissolved the donor shall have his land again 211 sues 393 Costs 329 345 220 Covenant 38 assignee 162 Executors ibid. 11 12 48 69 70 to build a mill c. there 271 273 175 99 120 333 335 217 to surrender 445 performed 95 The Indenture is void in part 213 Covenant 87 121 cause of things must appear in the Court 401 Countermand 133 County where actions shall be brought 335 of trials 429 Courts-Baron 68 69 Leet 71 Tower Court 145 of Requests 208 216 243 244 Kings Bench and Chancery 357 Acts done in spiritual Courts 33 163 164 181 215 Curia claudenda 127 Custom 5 49 234 140 143 235 267 261 135 of descents 166 127 That the wife may devise to the husband 14 Particular Customes 163 D Day in Court 68 Day materiall to be set down 433 434 Damages recowping in them 53 135 362 jonyt severed 57 assessed 98 343 344 not assessed writ of enquiry 207 not recoverable in account 57 treble 245 to be severed 210 Damage feasan 124 185 Date of a Patent 416 Declaration 251 86 186 in an action upon 1 2. P. M. of distresses 11 upon an Assumpsit 32 Custome 252 particularly 358 insufficient 76 106 343 370 mistakes 345 287 119 160 125 Deed things passe by one deed 129 by deed 354 128 Debt 253 91 336 372 217 210 who liable 294 The Kings debt 289 290 291 292 293 294 295 296 Default 280 Defamation 440 Delivery of deeds 130 of money to anothers use 210 Demand 23 39 67 96 154 337 where to be 331 by writ 74 335 310 the word 398 Demurrer 10 Denizen made 417 Departure 255 122 Depositions 193 Deprivation 259 163 Detaining 8 Detinue 370 Declaration in it 403 Devastation by Executors 30 Devastavit 285 Devise 7 14 15 16 26 40 46 208 266 280 95 99 130 131 299 319 146 351 352 363 to a Colledge c. 394 prevents a remitter c. 411 to a mans heir 412 to one daughter heir of land held by Knights service c. 17 to sell 78 to the Son and heir 94 Dilapidation 259 Diminution 267 alledged 407 Disability the plaintiff cause of it 75 76 Discharge 11 105 ought to shew what 61 Discent 3â—5 312 365 Disclam 25 Discontinuance one issue only found 5 370 within a year 219 Discontinuance by tenant in taile 317 Disseisin 522 of a particular estate 139 Acts of disseisor disseisor sues c. 388 Distresse justified 109 110 187 190 driven out of the Countrey 11 sufficient upon the Land 67 110 Divorce 19 145 Dove-coat a Writ of Right lies of it 259 erected 284 Dower 21 135 145 A Lease is for years 266 Forfeitable by the Husband 323 Averment of seisin of the husband for damage 212 E Ejectione firmae 6 15 18 53 71 72 33â— extra tenet unnecessary 60. lyes 157 Plea 149 Election 258 159 127 140 446 To sue 196 determined ibid. Elegit 257 82 84 Ely jurisdiction there 380 381 Emblements 159 Enclosure in Forrests 167 168 169 170 171 Entry into one house 72 To defeat an estate 9 To fortifie it 25 for forfeiture 175 No trespasse 283 Error 26 258 248 73 80 84 87 372 373 lyes not 261 247. brought 376 377 378 379 439. directed 44. things uncertaine 408. severall 440 Escape 22 27 262 280 125 126 372 403 Fresh suite 177 433 Escheat 78 For Miscreancy 34 Right of action 322 Essoine 235 236 Estates 19 42 51 52 272 A Lease for time 102 103 determined 9 the lesse drowned 52 voidable 9 Estoppel 257 48 147 321 177 384 385 Estranger to a plaint erroneous c. 403 Estovers custome pleaded 235. see 238 97 173 Estrepment 112 164 Estrey 150 151 Eviction 258 Evidence maintaines not the issue 235 see 326 Execution 26 257 258 80 82 83 84 290 295 147 125 126 181 371 372 373 217 Assignment after judgement 161 Taking 372. severall 208 Executors 21 192 See Right Of his own wrong 104 Reteines 217 Order in payment 298 Pleads fully administred 178 Exception in a grant 116 117 118 Time past to take it 100 One releases 431 Exâ—hange 99 100 Exigent 83 217 Excommunication 191. unjust 406 Exposition 16 17 18 36 37 67 71 236 246 198 of Lawes 39 of Statutes 309. and Patents 425 Extent 82 289 311 Extinguishment 24 11 101 314 128 137 211 Lands given by Statute to the King Annuity not extinguished 170 F Falsâ—fying a Recâ—very 271 Falsely imprisoned 124 Fee executed â—â—2 one cannot depend of another â—â—7 Fee-simple 155 Felony not before attainder 267 Cause of arrest for it 406 Feoffments 318 319 320 Fieri facias 276 147 83 Fine for vert c. 277. What Courts may fine c. 381 Fine levied by tenor of it 246 Parish not named 440 Record of it 103 129 307 148 351 179 First fruits 393 Forceable entry 45 Forfeiture of Lessor 105 141. Of a Right 321 See Treason Forgery 62 63 175 Form commanded by Statute must be observed 334 188 189 Formedon 239 302 163 Forrests chases c. 169 Frankalmoigne 396 Franchises 17 262 Usurped 91 Frankmarriage 18 19 20 Franktenement rule of it 9 In an upper chamber 44 Forfeiture 6 318 In case of Treason 34 307 308 310 315 316 Fraudulent conveyances and acts 6 7 285 161 191 192 G. GArdian in soccage 316 Gardens 6 Gavel-kind Plea 55 Grants Words apt 7 Of a common person 8 18 24 25 236 237 270 273 Restriction rule 237 To dig in his waste 18 Generall words 183 One thing passes with another 352 Things passe in grosse 127. By one Deed 129. Of the King 8 35 Where a mistake shall not abridge the fulnesse of words precedent 36 Favoured 37 38 262 136 425. See 414 415 416 417 421 422 423 425 Of a possibility 316 H. HAbeas corpus directed 44. See 198 199 Habendum 51 269 272 Habendum successive 220 Holidayes 218 Heire-speciall 3. Force of the word ib. 4 275 102 312 Homage 320 Husband and Wife acts of both or either 2 5 14 15 312 141 180 Wifes lease good 327 Gives land to her husband 143 Execution of the Wives Lease 26 See Reservation Husband may forfeit the Wives Copy-hold 345 May correct his Wife 215 I. IDeot 302 Jeofailes 56 57 194 Imbracery 240 Imprisonment 158 344 199. See Fine Improvement of common 97 Incidents 359 Ingrossers of corn 144 Innkeepers 345 346 Incroachment 24 411 Inquisitions 294 299 Indictment 45 46 65 67 272 84 157 400 346 For erecting a Cottage 383 For omitting the Crosse in Baptisme 119 Joynt 349 Contra pacem when 59 Infant 60 104 In his mothers belly 319 364 365 366. May grant c. 14 Brings Error to reverse a Fine 20 May release 30 31 Acknowledges a Statute c. 149 Appears c. 382 Promises to pay for his meat c. 219. Sues his Guardian discharges 214 Information 91 131 158