plead it specially but as our case is here is no Act to be done but a permittance as abovesaid and it is in the Negative not a disturbance in which case permisit is a good plea and then it shall come on the other side on the Plaintiffs part to shew in what Lands the Defendant non permisit Which difference see agreed 17 E. 4. 26. by the whole Court. And such was the opinion of the whole Court in the principal case 1 Co. 127. Another Exception was taken to it that the Defendant had covenanted that his brother Edward should pay to the Plaintiff the said Rent To which the Defendant pleaded that his said brother had payed to the Platntiff before the said Feast of Michaelmas in full satisfaction of the said Rent three shillings and that was holden a good plea and upon the matter the Covenant well performed for there is not any Rent in this Case for here is not any Lease and therefore not any Rent For if A. covenant with B. that C. shall have his Land for so many years rendring such a Rent 1 Roll. 847. 1 Cro. 173. Owen 97. here is not any Lease and therefore neither Rent But if A. had covenanted with C. himself it had been otherwise because it is betwixt the same parties And if the Lessee covenant to pay his Rent to the Lessor and he payeth it before the day the same is not any performance of the Covenant causa patet contrary of a sum in gross Another Covenant was that the said Humphry solveret ex parte dicti Edwardi 20 l. to which the Defendant pleaded that he had paid ex parte dicti Humfridi 20 l. and that defect was holden incureable and therefore the Plaintiff had Iudgment to recover CLXXXVII Geslin and Warburtons Case Mich. 30 Eliz. In the Common Pleas. 1 Cro. 128. IN an Ejectione firmae by Joan Geslin against Hen. Warburton and Sebastian Crispe of Lands in Dickilborough in the County of Norf. Mich. 30. 31 Eliz. rot 333. upon the general Issue the Iury found a special verdict that before the Trespass supposed one Martin Frenze was seised of the Lands of which the Action was brought in tail to him and his Heirs males of his body so seised suffered a common Recovery to his own use Devises and afterwards devised the same in this manner I give my said Land to Margaret my Wife until such time as Prudence my Daughter shall accomplish the age of nineteen years the Reversion to the said Prudence my Daughter and to the Heirs of her body Lawfully begotten upon condition that she the said Prudence shall pay unto my said Wife yearly during her life in recompence of her Dower of and in all my Lands 12 pounds and if default of payment be made then I will that my said Wife shall enter and have all my Lands during her life c. the Remainder ut supra the Remainder to John Frenze in tail c. Martin Frenze died Margaret entred the said Prudence being within the age of fourteen years Margaret took to Husband one of the Defendants John Frenze being Heir male to the former tail brought a Writ of Error upon the said Recovery and assigned Error because the Writ of Entry upon which the Recovery was had was Praecipe quod reddat unum Messuag and twenty acras prati in Dickelborough Linford Hamblets without naming any Town And thereupon the Iudgment was reversed And it was further found that in the said Writ of Error and the process upon it Hutt 106. 2 Cro. 574. 3 Cro. 196. no Writ of Scire facias issued to warn dictam Prudentiam ten existentem liberi ten praemissorum ad ostendendam quid haberet vel dicere sciret quare Judicium praedict non reversaretur The Iury further found that the said Margaret depending the said Writ of Error was possessed virtute Testamenti ultimae voluntatis dict Martini reversione inde expectant dictae Prudentiae pro ut lex postulat And they further found Error that six pound of the said tewlve pounds were unpaid to the said Margaret at the Feast c. and they found that the said John Frenze praetextu Judicii sic reversat entred into the premisses as Heir male ut supra And so seised a Fine was levyed betwixt John Frenze Plaintiff and one Edward Tindal Owen 157. Dyer 321. 1 Cro. 471. 739. and the said Prudence his Wife Deforceants and that was to the use of the said John Frenze And that afterwards Humphry Warburton and the said Margaret his Wife brought a Writ of Dower against the said John Frenze Edw. Tindal and Prudence his Wife of the said Lands The said Edward and Prudence made default and the Demandants counted against the said Frenze and demanded against him the moity of the third part of the said Lands To which the said Frenze pleaded that the default of the said Edward and Prudence idem John Frenze nomine non debet quia he said that he the said John was sole seised of the Lands aforesaid at the time of the Writ brought c. and pleaded in Bar and it was found against the said John and Iudgment given for the Demandants of the third part of the whole Land and seisin accordingly And that afterwards 17 Eliz. the said Frenze levyed the Fine to the said Tindal to the use of the said Tindal and his Heirs And they found that after the said Feast the said Henry Warburton and Margaret his Wife came to the Messuage aforesaid half an hour before Sun-set of the said day and there did demand the Debt of the said twelve pounds Dower to the said Margaret by the said Martin Frenze devised to be paid unto them and there remained till after Sun-set of the said day demanding the Rent aforesaid and that neither the said Tindal nor any other was there ready to pay the same And first it was moved if the said yearly sum of twelve pounds appointed to be paid to the said Margaret were a Rent or but a sum in gross And the opinion of the Court was that it was a Rent and so it might be fitly collected out of the whole Will where it is said that Prudence his Daughter should have the Land and that she should pay yearly to Margaret twelve pounds in recompence of her Dower c. But if it be not a Rent but a sum in gross it is not much material to the end of the case For put case it be a Rent the same not being pleaded in Bar the Dower is well recovered and then when default of payment is made if the Wife of the Devisor shall have the whole was the Question And the Court was clear of opinion that by the suit and Iudgment in the Writ of Dower the Wife of the Devisor had lost all the benefit which was to come to her by the devise For the said Rent was devised to her in recompence of
Will he cited Chicks case 19 Eliz. 357 and 23 Eliz. 371. Dyer At another day it was argued by Cook That both the Houses pass and the words take the profit do not restrain the general words before viz. All my Lands and Tenements but rather expounds them sci such profits that they might take of a Reversion cum acciderit for it may be that the Brother shall die within ten years And he cited the case 34 H. 6. 6. A man seised of diverse Reversion upon estates for life devises them by the name of omnium terrarum tenementorum which were in his own hands and by those parols the Reversion did pass and yet the Reversion to speak properly was not in his hands and if the Brother had died in the life of the devisor they had clearly passed and then his death or life shall not alter the case And he resembled the case to the case in 39 E. 3. 21. The King grants to the Abbot of Redding That in time of vacation the Prior and Monks shall have the disposition of all the possessions of the said Abbey ad sustentationem Prioris Monachorum 3 Cro. 290. and if in the time of vacation they shall have the Advowsons was the question for it was said That advowsons could not be to their sustentation But yet by the better opinion the grant of the King did extend to Advowsons for it shall be intended such sustentation as Advowsons might give Godfrey Our Case is not like to the case of 34. H. 6. for there the Devisor had not any thing in possession and therefore if the Reversion did not pass the devise should be utterly void Gawdy conceived that the house in possession only passed for the devise extends to such things only whereof the Profits might be taken but here is not any profit of a Reversion Clench and Wray contrary The intent of the devise was to perform the Will of his Father and also of his own Will and in case the house in possession was not sufficient to perform both the Wills all shall pass and therefore the devise by favorable construction is to be taken largely so as the Wills might be throughly performed and also the devise is general and further all his Lands and Tenements which are not restrained by the Subsequent words to take the profits for to have and to hold and to have and to take the profits is all one CCLV. Slugge and the Bishop of Landaffs Case Trin. 31 Eliz. In the Kings Bench. SLugge libelled against the Bishop of Landaff in the Ecclesiastical Court because where he was presented by the Dean and Chapter of Gloucester to the Church of Penner the Bishop did refuse to admit him and now the Bishop sued a Prohibition and shewed Prohibition Quod non habetur talis Rectoria cum cura animarum in eadem diocesi sed perpetua vicaria And by Popham a Prohibition doth not lye but the matter ought to be determined in the Ecclesiastical Court and when he who is presented to the same Church whether it be a Church or not shall be tried in an action of trespass and the like matter was ruled Mich. 14. Eliz. betwixt Weston and Grendon who was presented by the Queen and it was holden that because institution and admission do belong to the Ecclesiastical Court and not to the Kings Court that no Prohibition should lye and therefore he prayed a Consultation And note That the Defendant in the Prohibition did not demur formally upon the suggestion for the Iudges use if the suggestion be not sufficient to maintain the Prohibition to grant a Consultation without any formal demurrer upon the Suggestion if the insufficiency of the Suggestion be manifest Trial. which was granted by the whole Court. Cook That a Consultation ought not to be granted for whether there be such a Rectory or not shall be tried here So 2 H. 4. 30. Prior or not Prior 49 E. 3. 17 18. Wife or not Wife but never accoupled in loyal matrimony by the Bishop Ante. 53. 54. 44 E. 3. So within or without the Parish 50 E. 3. 20. So 45 E. 3. Quare Impedit 138. In a Quare Impedit no such Church within the County Afterwards at another day Popham put the case Slugge was presented to the vicaridge of Penner the Bishop refused to admit him and admitted one Morgan Bletthen unto the Parsonage of Penner at the presentment of the Lord St. John Slugge sued the Bishop for contumacy per duplicem querelem The Bishop said Non habetur talis vicaria upon which matter he sued a Prohibition and he conceived That the Prohibition did not ly for a Vicar is but he that gerit vicem Personae to supply his place in his absence so as the same is a spiritual matter which ought not to be tried here Also the libel is to have Admission and Institution and the other matter ariseth by their Plea sci Quod Rectoria de Penner est Ecclesia cum cura animarum absque hoc quod habetur talis Vicaria and so it is but an incident to the principal matter wherefore it shall be tried there and he prayed a Consultation Cook We have shewed That in the time of E. 3. one L. was seised of the Manour of Penner to which the Church of Penner is appendant and we alledge presentments from the time and we convey it to the Lord St. John which now is and they would now defeat us by this surmise That there is no such Church with cure of Souls which is triable here Popham the libel doth contain nothing but contumacy in the Bishop in that he hath not admitted Slugge and the other matter comes in the Replication and afterwards by assent of the parties a Consultation was granted quoad institutionem of Slugge only but that they should not proceed further CCLVI. Fennick and Mitfords Case Pasch 31 Eliz. Rot. 154. In the Kings Bench. Moâ—e 284. 2 Co. 91. THe Case was A man seised of Lands in Fee levieth a Fine to the use of his wife for life the remainder to the use of his eldest son the heirs males of his body the Remainder to the use of the right heirs of the Conusor The Conusor makes a Lease for a thousand years to B. the eldest son dieth without issue male having issue a daughter the Conusor dieth the wife afterwards dieth the eldest son enters and leaseth the Lands to the Plaintiff Atkinson That upon this conveyance a Reversion was left in the Conusor although by the fine all is conveyed out of the Conusor and so as it hath been objected the use limited to the right heirs of the Conusor is a new thing For it is to be observed When a man is seised of Lands he hath two things the Land or the Estate and secondly the use which is the profits and if he make a Feoffment without consideration by that the estate and possession passeth
both not lye of a Tenement nor a forcible entry supposed in a Tenement 11 H. 7. 25. 38 H. 6. 1. Another error was because the Fine was levyed in the Court of the City of Exceter Which see 44 E. 3. 37 38. Those of Exceter can prescribe to have the Conusans but the same ought to be by special Charter of the King by express words Egerton the Queens Solicitor who sate under the Iustices and was not of Counsel in the case said 2 Inst 515. 1 Roll. 489. That he was of Counsel in a case betwixt Bunbery and Bird where such a Fine levyed in Chester by prescription was in question was by a Writ of Error reversed And afterwards in the principal case the Fine was reversed for the first Error CCLXVI. Trin. 31 Eliz. In the Kings Bench. 1 Cro. 96. 97. THe Case was this Grandfather Father and Son The Grandfather seised of a house called the Swan in Ipswich devised the same to his eldest Son for life the Remainder to A. Son of his eldest Son and the heirs males of his body Devises the Remainder to the right heirs of the Devisor and to the heirs males of his body and died The Father and Son died without issue male the Son having issue a Daughter who entred and assured the Land unto one Hawes and covenanted That she was seised of the said Messuage of a certain and sure estate in Fee-simple Godfrey That the Daughter shall take the last Remainder as right heir at the time that it ought to be executed to the heirs males of her body as if it had been devised to her by her proper Name so she hath but an estate tail and so the covenant is broken Cook contrary At the time that the devise took effect by the death of the Devisor the Father was his Right heir so as the Remainder vested in him immediately Antea 182. and shall not expect in abeyance until the Father and Son dye without heir male of the Son for the Father is a person able to take so that upon the death of the Devisor the Father is Tenant for life the Remainder to the Son and the heirs males of his body the Remainder to the Father in tail ut supra the Reversion to the Father in fee and the Daughter hath the same Reversion by discent after the Entayls spent all which Wray Iustice granted CCLXVII Galliard and Archers Case Mich. 31 32 Eliz. In the Common Pleas Intrat Trin. 31 Eliz. Rot. 1529. GAlliard brought an Action upon the Case against Archer Trover and Conversion The Plaintiff declared That he himself was possessed of certain goods which by trover came to the hands of the Defendant who hath converted them to his own use The Defendant pleaded Postea â—â—â— That before the Trover supposed one A. was possessed of the said goods as of his proper goods and sold them to the Defendant and that he had not any notice that the said goods were the goods of the Plaintiff upon which the Plaintiff did demur in Law. And by Anderson the plea is not good for the Plaintiff may chuse to have his Action against the first finder or against any other which gets the goods after by Sale Gift or Trover And by some Postea 253. The Defendant having the goods by Sale might traverse the finding See Contr. 27 H. 6. 13. a. And see by some In detinue where the Plaintiff declares of a Bailment The Defendant may say That he found them and traverse the Bailment 39 H. 6. 37. by Moile and by Windham Iustice The Defendant may traverse the property of the goods in the Plaintiff 12 E. 4. 11. CCLXVIII Edwards and Tedbuties Case Mich. 31 32 Eliz. In the Common Pleas. EDwards of London was endebted unto one A. of the same City Bailment of goods to a Carrier and Edwards delivered goods to one Tedbury Carrier of Exceter who went to him to carry for him certain Wares to be carried to Exceter to certain Tradesmen there the said goods to be delivered to them c. And so the said goods Wares and Merchandizes being in the possession of the Defendant Tedbury to be carried to Exceter the said A. caused them to be attached in the hands of the said Carrier for the Debt of the said Edwards The said Carrier being then priviledged in the Common Pleas by reason of an Action there depending And by the clear opinion of the whole Court the said Attachment ought to be dissolved Attachment of goods For the Carrier for the reason aforesaid is priviledged in his parson and his goods and not only in his own goods whereof the property belongs to him but also in such goods in his possession for which he is answerable to others c. And so it was adjudged CCLXIX Cockshal and the Mayor c. of Boaltons Case Mich. 31 32 Eliz. In the Common Pleas. HEnry Cockshal brought an Action upon the case against the Mayor Conâ—piâ—â—â—â— Town-Clark and Goal or of Boalton in the County of L. and declared That where he himself had affirmed a Plaint of Debt in the Court of the said Town before the said Mayor c. against I.S. and thereupon had caused the said I.S. to be arrested The said Defendants did conspire together to delay the Plaintiff of his said suit in peril of his Debt had let the said I. S. go at large without taking Bail. Periam Iustice conceived That upon that matter the Action doth not lye for the not taking of Bail is a judicial act for which he shall not be impeached But all the other Iustices were strongly of opinion against him for the not taking of Bail is not the cause of the Action but the Conspiracy CCLXX. Erbery and Lattons Case Mich. 31 32 Eliz. In the Common Pleas. 1 And. 234. IN a Replevin The Defendant doth avow because he is seised of such a Manor within which there is a Custom That the greater part of the Tenants at any Court within the said Manor holden appearing may make By-laws for the most profit and best government of the Tenants of the said Manor c. and that such By-laws should bind all Tenants c. and shewed further That at such a Court holden within the said Manor the Homage there being the greater part of Tenants of the Mannor aforesaid at the Court aforesaid appearing made this By-law scilicet That no Tenant of the said Manor should put into such a Common any Steer being a year old or more upon pain of six pence for every such Offence and that it should be lawful to distreyn for the same And the Court was Clear of opinion That the By-law was utterly void For it is against Common Right where a man hath Common for all his Cattel Commonable to restrain him to one kind of Cattel c. But if the By-law had bin That none should put in his Cattel before such a
formally expressed in the usual Terms As to the second payment Where a man bargains and sells his Lands by Deed indented to be enroled and before enrolment he makes Livery to the Bargainee and afterwards the Indentur is enroled the Court discharged Beamount from the arguing of that Point Liveâ—y where it prevents operation of an Enrolment for by Wray the Livery doth prevent the operation of the Enrolment and Sir George shall be accounted in by the Livery and not by the bargain and sale for Livery is of more worth and more worthy ceremony to pass estates and therefore shall be preferred and then the Livery being made in such part of the Mannor which was in the possession of the Feoffor in the name of the whole Mannor no more of the Mannor passeth but that which was then in the possession of the Feoffor And the Reversion of such part of the Mannor which was in Lease shall not pass without Attornment but when the Enrolment cometh now the whole passeth and then the Reversion being setled by the Enrolment the Attornment coming afterwards hath no relation See 48 E. 3. 15 16. The Iury here have found the default of payment whereby the conditional use which passed by the bargain and sale upon the condition broken shall be reduced to the Bargainor without any Entry 1. Cro. 382. and then the uses limited after are void for an use limited upon an use cannot rise quod fuit concessum per totam curiam Then Bracebridge the Father having the Inheritance of the said Mannor in his own right and the interest de futuro for years in the right of his Wife joyntly with the said A. when he sells the said Mannor by Deed indented and enroled now thereby the interest for years which he hath in the Right of his Wife doth not pass for a bargain and sale is not so strong a conveyance as a Livery As if I have a Rent-charge in the right of my Wife out of the Manor of D. which Manor afterwards I purchase and afterwards by Deed indented and enroled I bargain and sell the said Manor c. the Rent shall not pass Then the said Thomas Bracebridge the Father having the said Right of an entail to him and to the Heirs Males of his body and being Tenant for life by his own conveyance the Remainder in tail to his Son and Heir apparent the now Defendant when he levyeth a Fine and the Son enters for forfeiture before Proclamations pass and his Father dyeth in that case the Defendant is not remitted unto the first entail although after Proclamations pass in the life of the Father and so he shall not avoid the Leases for notwithstanding that the Issue in tail by that Entry hath defeated the possession which passed by the Fine yet as to the right of the old entail the Fine doth retain its force and so he entred quodam modo in assurance of the Fine As if Tenant in tail doth discontinue and disseiseth the Discontinuee and levieth a Fine with Proclamations and the Discontinuee enters within the five years now although the Fine as to the Discontinuee be avoided so as the possession which passed by the Fine is defeated yet the right of the entail doth continue bound Egerton Solicitor contrary and he conceived that all the Mannor doth pass by the Livery to Sir George and nothing of it by the Enrolment and that the meaning of the parties was that all should pass by the Livery for if the assurance should enure by the bargain and sale then the second uses limited upon default of payment should never rise for an use upon an use cannot rise and then the said uses limited for the payment of the debts of the Feoffor c. should be defeated and also where at the begining of the assurance the condition was entire the warranty entire c. and if such construction should be allowed here shall be a divided condition a divided warranty And also the meaning of the parties that the whole Mannor should pass by such construction should be dismembred and part pass by the Livery and part by the bargain and sale and we ought to make such constructions of Deeds that things may pass by them according to the meanings of the parties as if I be seised of a Mannor to which and Advowson is appendant and I make a Deed of Feoffment of the same Mannor cum pertinencijs and deliver the Deed to the party but no Livery of seisin is had the Advowson shall not pass for then it should be in gross whereas the meaning of the parties was that it should pass as appendant and that in such case cannot be for there is no Livery therefore it shall not pass at all and so it hath been adjudged So if I bargain and sell my Mannor of D. and all the Trees in the same and I deliver the Deed but it is not enrolled the Trees shall not pass for the intent of the parties was that the Trees should pass as parcel of the Free-hold and not as Chattels And as to the remitter I conceive that the Heir entring as Heir by the Law is remitted but where the Entry is given by a special Statute there the Entry shall not enure further than the words of the Statute As Land is given to the Husband and Wife and to the Heirs of the body of the Husband the Husband levieth a Fine and dieth the wife entreth this Entry shall not avail to the issue in tail for the Entry is given to the Wife by a special Law And he cited Sir Richard Haddons Case the Husband aliened the Lands of his Wife they are divorced the Husband dieth the Wife shall not enter by 32. H. 8. but is put to her Writ of Cui in vita ante divor And afterwards the same Term the Iustices having considered of the Case delivered their opinions upon the matters by Wray chief Iustice viz. That the one moyety of the Lease was extinct by the Livery viz. the moyety of Ioyce the Wife of the Lessor and as to the other moyety it is in being for here is no remitter for if any remitter had been in the Case it should be after the use raised which is not as yet raised for the Land ought to remain in Sir George until the said five hundred pounds be levyed and that is not found by the Verdict and therefore for the said moyety the Plaintiff had Iudgment XI Treshams Case Mich 25 26 Eliz. in the Exchequer SIR John Tresham seised of the Manor of D. holden of the King in Capite by Knights service 4 H. 7. enfeoffed Edmund Earl of Wilts and N. Vaux Knight who gave the said Manor to the said Sir John in tail upon condition that he should not alien c. quo minus c. John Tresham dyed seised by whose decease the Manor descended to Tho. Tresham who entred 2 Len. 55 56. and 18 H. 8. aliened with
things 1. Leases the number of the years 21 non ultra 2. antiquus redditus vel eo amplior yet in reason and good understanding we ought to think that the intent of the Act was that the said Manor should now come to the said Lady Frances surcharged with Leases in Reversion or to begin at a day to come for if by this Act the said Earl might make a Lease to begin three months after by the same reason he might make a Lease to begin twenty years after and also to begin after his death It hath been objected that the Lord Treasurer had a Commission to make Leases of the Queens Lands and that by virtue thereof he made Leases in Reversion I know the contrary to that for every such Lease is allowed by a Bill assigned and not by the ordinary Commission aforesaid the words of our Act are Dimissiones facere pro termino 21. annorum that shall be meant to begin presently As if I lease to you my Lands for one and twenty years it shall be intended to begin presently and he cited the Case betwixt Fox and Collier upon the Statute of 1 Eliz. cencerning Leases made by Bishops That four years of a former Lease being in being the Bishop leased for one and twenty years the same was a good lease notwithstanding the former lease for the lease began presently betwixt the parties And it hath been adjudged that a lease for years by a Bishop to begin at a day to come is utterly void And he cited the Case of the late Marquess of Northampton who by such an Act of Parliament as ours was enabled to make leases of the Lands of his Wife for one and twenty years and of the said Lands an ancient lease was made before the said Act which was in esse and before the expiration thereof he made a lease by virtue of the said Act to commence after the expiration of the former lease and that lease was allowed to be a good lease warranted by the said Statute because that the first lease which was in esse was not made by force of the said Act but if the said former lease had been made by virtue of the said Statute the second lease had been utterly void XLV Trin. 28 Eliz. In the Kings Bench. Copy-hold Surrender by Attorney not good A Copy-holder of the Manor of the Earl of Arrundel did surrender his customary Lands to the use of his last Will and thereby devised the Lands to his youngest Son and his Heirs and died the youngest Son being in prison makes a Letter of Attorney to one to be admitted to the Land in the Lords Court in his room and also after admittance to surrender the same to the use of B. and his Heirs to whom he had sold it for the payment of his debts And Wray was of opinion that it was a good surrender by Attorney but Gawdy and Clench contrary 3 Cro. 218. 9 Co. 75. and by Gawdy If he who ought to surrender cannot come in Court to surrender in person the Lord of the Manor may appoint a special Steward to go to the prison and take the surrender c. and by Clench Lessee for years cannot surrender by Attorney but he may make a deed purporting a surrender and a letter of Attorney to another to deliver it XLVI Troublefield and Troublefields Case Trin. 28 Eliz. In the Kings Bench. Dy. 337. b. Co. 1 Inst 15. 2. b. 52. 245. b. 252. 6. Post 51. Entry THe Case was that a Copy-holder did surrender to the use of his Will and thereby devised the Land to his Wife for life the remainder over to his son in tail and died the Wife entred and died a stranger did intrude upon the Lands and thereof made three several Feoffments to three several persons he in the Remainder entred upon one of the said three Feoffees in the name of all the Lands so devised and made a lease of the whole Land And by Clench and Wray it was a good Entry for the whole and by consequence a good lease of the whole Gawdy contrary Note all the Lands were in one County See 16 Eliz. Dyer 337. 9 H. 7. 25. XLVII Parmort and Griffina's Case Trin. 28 Eliz. In the Kings Bench. IN Debt upon an Obligation by Parmort against Griffina a Merchant-stranger the Defendant pleaded Debt that the Obligation was made upon condition for the performance of certain Covenants contained within certain Indentures and shewed what c. and alledged further that in the said Indenture there is a proviso that if aliqua lis vel controversia oriatur imposterum by reason of any clause article or other agreement in the said Indenture contained that then before any sute thereupon attempted the parties shall choose four indifferent persons for the ending thereof which being done the Indenture and Obligation shall be void And in fact saith that Lis controversia upon which the Action is brought groweth upon the said Indenture upon which there was a demurrer in Law. And because the Defendant hath not shewed specially upon what controversie or strife and upon what article certain The Court was clear of opinion that the Bat was not good And also the Court was of opinion Proviso taken strictly that the said Proviso did not extend to subject and submit the breach of every Covenant or Article within the said Indenture to the Arbitrament of the said four persons but only where strife and controversie doth arise upon the construction of any Covenant c. within the said Indenture so as the Defendant ought to have shewed such matter which fell within the Arbitrament by the meaning of the said Indenture and Iudgment was given against the Defendant XLVIII Partridge and Partridges Case Mich. 28 29. Eliz. In the Common Pleas. IN Dower by Partridge against Partridge the Case was Dower that Land was given to the Father for life the reversion to his Son and Heir for life the remainder to the right Heirs of the body of the Father The Father and Son joyn in a Feoffment to the Vncle in Fee scil to the Brother of the Father The Vncle takes a Wife the Father dieth the Son being his Heir in tail the Vncle dieth without issue so as the Land descendeth to the Son as Heir to his Vncle against whom the Wife of the Vncle brought Dower It was moved if the Son being Herein can to his Father and Heir also to his Vncle for the Fee descended be now remitted for then no Dower accrueth to the Wife of the Vncle for the estate of which she demands Dower is gone but if the livery in which the Son joyned with his Father be the livery of the Son Remittâ— the same lies in his way in the impediment and preventing of the Remitter so as during his life he shall be adjudged seised of the Lands in Feesimple by descent from his Vncle Then Dower lyeth for the same
for that he hath not made his Fresh sute according to the Law for he ought to have begun his Fresh sute within the Hundred where the Robbery was done and it was also objected that the Robbery was done post occasum solis in which Case the Hundreders are not to pursue the Malefactors And Walmsley Serjeant cited a Case out of Bracton Si appellatus se defenderit contra appellantem tota dle usque ad horam in qua Stellae incipiunt apparere recedat quietus de appello and it is not reason to drive the Hundreders to Follow felons at such a time 1 Cro. 270. when for want of light they cannot see them And all the Iustices were clear of opinion that if the Robbery was done in the night time the Inhabitants are not bound to make the pursute And by Rhodes if in a Praecipe quod reddat of Lands the Sheriff summons the Demandant upon the Land in the time of night such a summons is meerly void LXXIII Wiseman and Wisemas Case Pasch 29 Eliz. In the Common Pleas. Intrat Trin 28. Rot. 1458. IN an Action of Debt by Wiseman against Wiseman the Case was Debt 1 And. 160. Owen 140. that one Wiseman was seised of the Lands and by his Will devised 1. I will and bequeath unto my Wife B. acre for the Term of her life the remainder to my Son Thomas in tail Item I will and bequeath unto my Son Thomas Devises all my Lands in D. and also my Lands in S. and also my Lands in V. Also I give and bequeath unto the said Thomas my Son all that mâ— Island or Land enclosed with water which I purchased of the Earl of Essex To have and to hold all the said last before devised premisses unto the said Thomas my Son and the Heirs of his Body The only matter was If the Habendum shall extend to the Island only in which Case Thomas shall have but for life in the Lands in D. S. and V. or unto the Island and also to the Lands in D. S. and V 2 Roll. 60. Roph. 126. in which Case he shall have Fee-tail in the whole And it was argued by Fenner that the Habendum should extend to the Island only as he said the opinion of the Iustices of this Court was in 4 Eliz. in another Case I devise my Manor to D. my eldest Son and also my Land in S. in tail in that Case the entail limited for the Land in S. shall not extend to the 1 Roll. 844. said Manor and of such opinion was Weston Welsh and Dyer Brown contra that the Son hath tail in both But if the words of the devise had been I devise my Manor of D. and my Lands in S. to my Son in tail here the Son had an estate tail in both So it hath been adjudged that if I devise Lands to A. B. and C. successively as they be named the same is good by way of Remainder Walmesley contrary and he relied much upon this that the words of the Habendum are in the plural number 2 Bulst 180. 181. All the last before devised premisses whereas the thing lately devised by the Will was an Island in the singular number which cannot satisfie the Habendum Extent of an Habendum which is in the plural number and therefore to verifie the plural number in the Habendum the Habendum by fit construction shall extend to all the Lands in D. S. and V. and so upon his motion made at another day it was resolved by all the Iustices that the Habendum should extend to all the said Lands and the Habendum should not streighten the Devise to the Island only LXXIV Fullwood and Fullwoods Case Pasch 29 Eliz. In the Common Pleas. Bail renders himself in Court. IN an Action upon the Case the Defendant put in bail to the Court to answer to the Action and now Iudgment being given against him he came into Court and rendred himself and prayed that in discharge of his sureties that the Court would record the rendring of himself which was granted And the Court demanded of the Plaintiff if he would pray execution for the body against the Defendant who said he would not whereupon the Court awarded that the sureties should be discharged and the Rule was entred that the Defendant offered himself in discharge of his sureties and Attornatus Querentis allocatus per curiam c. dixit se nolle c. Ideo consideratum fuit per curiam quod tam praedict defend quam praedict Manucaptores de recognitione praedict denariis in eadem contentis exonerentur LXXV Pasch 29 Eliz. In the Common Pleas. THe Case was He in the Reversion upon a Lease for years makes a Charter of Feoffment to divers persons to the use of himself for life Feoffments and after to the use of his eldest Son in tail and the words of the Charter were Dedi Concessi Barganizavi Feoffavi and he sealed and delivered the deed but no livery of seisin was made and afterwards he came to his Lessee for years and said to him that he had made a Feoffment and shewed also the uses but did not shew to whom the Feoffment was made to whom the Lessee said you have done very well I am glad of it Attornment And if that were a good Attornment was the Question It was said that that was the Case of one Arden And Gent and Manwood were of opinion that the same was no Attornment because it was not made to the Feoffee scil to the Grantee of the Reversion and so it was ruled in this Case for Attornment ought to be to the Grantee himself and not to Cestuy que use 1 Cro. 251. Tythes and where the spiritual court shall have jurisdiction of them LXXVI The Parson of Facknams Case Pasch 29 Eliz. In the Common Pleas. THe Parson of great Facknam brought an Action of Trespass against the Parson of Hannington and the Case was If the Parson of one Parish claim by prescription a portion of Tythes out of the Parish of another if the Spiritual Court shall have the Iurisdiction for the tryal of it And the opinion of the whole Court was clear that it should because that the matter is betwixt two spiritual persons and concerning the right of Tithes As 35 H. 6. 39. I. Vicar of B. brought Trespass for taking away of forty loads of Beans c. The Defendant pleaded that he is Parson of the said Church of B. and the Plaintiff is Vicar c. and before the Trespass c. the Beans were growing in the same Town and severed from the nine parts and he took them as belonging to his said Church and demanded Iudgment of the Court c. The Plaintiff said that he and all his Predecessors Vicars c. time out of mind c. have used to have the Tithes of such a Close c. belonging to his Vicaridge and
Kings Bench. PRowse brought an Action upon the Case against Cary for words That the Plaintiff did subborn procure and bring in false Witnesses in such a Court at Westminster c. The Defendant pladed Not guilty And it was found that he did procure and brought in false Witnesses but was acquitted of the suborning It was objected 1 Cr. 296. 554. 607. That the Action doth not lie for it may be that the Defendant did not know that he would depose falsly Thou art a forger of false Writings are not actionable and so it was adjudged for it may be understood of Letters of small importance but that Exception was not allowed for it shall be taken in malam partem and cannot be spoken of any honest man. CXXXII Pasch 30 Eliz. In the Kings Bench. A. Was bounden in an Obligation to B. upon condition that if A deliver to B. twenty Quarters of Corn the nine and twentieth of February next following datum presentium that then c. and the next February had but eight and twenty days And it was holden that A. is not bounden to deliver the Corn until such a year as is Leap-year for then February hath nine and twenty days and at such nine and twentieth day he is to deliver the Corn and the Obligation was holden good CXXXII Allen and Palmers Case Pasch 30 Eliz. In the Kings Bench. THe Case was a Copy-holder did surrender his Lands to the use of a stranger for life Copy-holder surrenders where his heir shall be in by purchase 2 Roll. 416. Co. 1 Inst 226. and afterwards to the use of the right Heirs of the Copy-holder who afterwards surrendred his Reversion to the use of a stranger in Fee died and the Tenant for life died and the right Heir of Palmer the Copy-holder entred And by Cook nothing remained in the Copy-holder upon the said surrender but the Fee is reserved to his right Heirs for if he had not made any such second surrender his Heir should be in not by descent but by purchase And the common difference is where a surrender is to the use of himself for life and afterwards to another in tail the remainder to the right Heirs of him who surrendreth there his Heirs shall have it by descent contrary where the surrender hath not an estate for life or in tail limited to him for there his Heir shall enter as a purchasor as if such use had been limitted to the right Heirs of a stranger And by him if a Copy-holder surrender to the use of his right Heirs the Land shall remain in the Lord until the death of the Copy-holder for then his Heir is known c. See Dyer 99. The Husband made a Feoffment to the use of his Wife for life and afterwards to the use of the right Heirs of the body of the Husband and Wife begotten they have issue the Wife dieth the issue cannot enter in the life of his Father for then he is not his Heir See Dyer 7 Eliz. 237. The Husband is sole seised in Fee and levieth a Fine of the Land to the use of himself and his Wife and the Heirs of the Husband and they render the Land to the Conusor for the life of the Husband the remainder to B. for life the remainder to the right Heirs of the Husband The Husband dieth B. dieth Now the Wife shall have the Land for the life of the Wife for she shall not lose her estate by that render and this remainder to the right Heirs of the Husband is void and the Land and estate in it is in him as a Reversion and not as a Remainder And a man cannot tail a Remainder to his right Heirs whilest he is living unless it begin first in himself See Br. 32 H. 8. Gard. 93. CXXXIV Pearle and Edwards Case Pasch 30 Eliz. In the Kings Bench. THe Case was that the Defendant had leased Lands to the Plaintiff rendring Rent for certain years Assumpsit Consideration 1 Cro. 94. and after some years of the Term expired the Lessor in consideration that the Lessee had occupied the Land and had paid his Rent promised the Plaintiff to save him harmless against all persons for the occupation of the Land past and also to come And afterwards H. distrained the Cattle of the Plaintiff being upon the Lands upon which he brought his Action Golding Here is not a sufficient consideration for the payment of the Rent is not any consideration for the Lessee hath the ocupation of the Land for it and hath the profits thereof and also the consideration is past Cook The occupation which is the consideration continues therefore it is a good Assumpsit as 4 E. 3. A Gift in Frank-marriage after the espousals and yet the marriage is past but the blood continues so here and here the payment of the Rent is executory every year and if the Lessee be saved for his occupation he will pay his Rent the better Godfrey If a man marrieth my Daughter against my will and afterwards in consideration of that marriage I promise him one hundred pounds the same is no good consideration 2 Len. 111. which Clench Iustice denied And afterwards the Plaintiff had Iudgment to recover his damages CXXXV Wakefords Case Pasch 30 Eliz. In the Kings Bench. Extinguishment of Copy-hold by Release THe Earl of Bedford Lord of the Manor of B. sold the Free-hold Interest of a Copy-holder of Inheritance unto another so as it is now no part but divided from the Manor and afterwards the Copy-holder doth release to the purchasor It was holden by the Court that by this Release the Copy-hold Interest is extinguished and utterly gone but if was holden that if a Copy-holder be ousted so as the Lord of the Manor is disseised and the Copy-holder releaseth to the Disseisor nihil operatur CXXXVI Docton and Priests Case Pasch 30 Eliz. In the Kings Bench. IN Trespass for breaking of his Close 1 Cro. 95. it was found by special verdict that two were Tenants in common of a house and of a close â—djoyning to the house and they being in the house make partition without deed of the house and the close see 3 E. 4. 9. 10. Partition without deed upon the Land is good enough Vide 3 H. 4. 1. And it seems by 3 E 4. Partition made upon the Land amounts to a Livery Vide 2 Eliz. Dyer 179. Partition by word out the County void 19 H. 6. 25. Betwixt Tenants in common not good without deed 2 Roll. 255. 47 E. 3. 22. being upon the Land it is good without deed Two Ioynt-tenants make partition by word make partition in another County the same is no partition for as to that matter the common Law is not altered by the Statute but as to compel such persons to make partition Wray Iustice conceived that the partition here being without deed was not good although made upon the Lands Vide 18 Eliz. Dyer 35.
second Lessee and declared upon a Lease made for years without speaking of the Indenture And Gawdy Serjeant demanded the opinion of the Court if the Defendant might safely plead no Wast And they conceived that it should be dangerous so to do Then it was demanded if the Defendant plead that the Plaintiff had nothing tempore dimissionis whereof he had counted if the Plaintiff might estop the Defendant by the Indenture although he had not counted upon it and if such Replication be not a departure And it seemed to Periam and Leonard Custos brevium that it was not for it is not contrary to the Declaration but rather doth enforce the Declaration CCXXI Mich. 31 Eliz. In the Common Pleas. WAlmesley Serjeant demanded the opinion of the Court upon this matter Land is given to Husband and Wife in special tail during the Coverture they have issue the Husband is attainted of Treason and dieth the Wife continues in as Tenant in tail the issue is restored by Parliament and made inheritable to his Father saving unto the King all advantages which were devolded unto him by the Attainder of his Father the Wife dieth And he conceived that the issue was inheritable for the Attainder which disturbed the inheritance is removed and the blood is restored and nothing can accrue to the King for the Father had not any estate forfeitable but all the estate did survive to the Wife not impeachable by the said Attainder And when the Wife dieth then is the Issue capable to enherit the estate tail Windham and Rhodes prima facie thought the contrary yet they agreed that if the Wife had suffered a common Recovery the sâ—me had bound the King. CCXXII Mich. 31 Eliz. In the Common Pleas. IN an Action upon the Case the Plaintiff declared Assumpsit that he had delivered to the Defendant diversa bona ad valentiam 10 li. the Defendant in consideration thereof did promise to pay to the Plaintiff the Debt owing pro bonis praedictis and did not shew that the Defendant bought the said goods of the Plaintiff and so it doth not appear that there was any Debt and then a promise to pay it is meerly void which was agreed by the whole Court. CCXXIII. Seaman and Brownings Case Mich. 31 Eliz. In the Common Pleas. GEorge Seaman brought Debt upon a Bond against W. Browning and others Executors of one Marshal the condition was Debt that where the said Marshal had sold certain Lands to the Plaintiff if the said Plaintiff peaceably and quietly enjoy the said Lands against the said Marshal c. and assigned the breach in this that the said Marshal had entred upon him and cut down five Elms there upon which the parties were at issue And it was found that A. servant of the said Marshal by commandment of his said Master had entred and cut c. in the presence of his said Master and by his commandment for he is a principal Trespassor And it was so holden by the Court. CCXXIV. Mich. 31 Eliz. In the Common Pleas. IF the Kings Tenant by Knights service dieth his Heir within age 8 Co. 172. and upon Office found the King seiseth the Body and Land yet the Heir during the possession of the King may sell the Lands by Deed enrolled or make a Lease of such Land and the same shall bind the Heir notwithstanding the possession of the King but if he maketh a Feoffment in Fee it is utterly void for the same is an intrusion upon the possession of the King but where the King by Office found is entituled to the Inheritance as that his Tenant dieth without Heir whereas it is false for which the King seiseth in such case the Tenant of the King before his Ouster le mayne cannot make a Lease for years or sell the Land by Deed enrolled The Case depended in London before the Iudges of the Sheriffs Court. The King by colour of a false Office which doth falsly entitle him to the Inheritance is seised of certain Land he who hath right leased the same for years by Deed indented and then an Ouster le mayne was sued and he enfeoffed a stranger And it was holden that the Lease should not bind the Feoffee although it was by Deed indented for the Feoffee is a stranger to the Indenture and therefore shall not be estopped by it 18 H. 6. 22. A stranger shall not take advantage of an Estoppel and therefore shall not be bound by it As if one take a Lease for years by Indenture of his own Lands the same shall bind him but if he dieth without Heir it shall not bind the Lord in point of Escheat CCXXV. Gibbs Case Mich. 31 Eliz. In the Common Pleas. Trover and Conversion 1 Cro. 861. Owen 27. GIbbs brought an Action upon the Case upon Trover and Conversion of a Gelding and the Case was that one P. had stolen the said Horse and sold the same unto the Defendant in open Market by the name of Lister and the said false name was entred in the Toll-book And it was holden clear by the Court that by that sale the property was not altered CCXXVI Mich. 31 Eliz. In the Common Pleas. Owen 45. Hutton 105. 1 Cro. 734. Post 322. TEnant in Socage leased his Lands for four years and died his Heir within the age of eight years the Mother being Guardian in Socage leased the Land by Indenture to the same Lessee for fourteen years It was holden by the Court that in this Case the first lease is surrendred but otherwise upon a Lease made by Guardian by Nurture CCXXVII Kimpton and Dawbenets Case Mich. 31 Eliz. In the Common Pleas. IN Trespass the Defendant did justifie by a grant of the Land where c. by Copy The Plaintiff by Replication saith that the Land is customary Land ut supra and claimed the same by a former Copy The Defendant by Rejoynder saith that well and true it is that the Lord may grant Copies in possession at his pleasure and also estates by Copy in Reversion with the assent of the Copy-holder in possession but all estates granted by Copy in Reversion without such assent have been void It was argued that this custom is not good for it is not reason that the Lord in disposing of the customary possessions of his Manor should depend upon the will of his Tenant at will and the same is not like to the case of Attornment for there the Attendancy is to be respited which is not to be done here for the Copy-holder in possession shall continue attendant to his Lord notwithstanding such a grant in Reversion And see for the unreasonableness of the custom 19 Eliz. 357. in Dyer Sallfords Case It was moved on the other side that the Custom was good enough and 3 H. 6. 45. was vouched That every Freehold of a Manour upon alienation might surrender his Land c. It was adjourned CCXXVIII Marriot and Pascalls Case in a Writ of
as a Will but as an Executory Devise Wray It is not a conditional Estate in Fee but an Estate tail Coke They who would prove the Custom to entail Copyhold Land within a Manor it is not sufficient to shew Copies of Grants to persons and the Heirs of their bodies Copyhold Estate but they ought to shew that surrenders made by such persons have been enjoyed by reason of such matter VVray That is not so for Customary Lands may be granted in tail and yet no surrenders have been made within time of memory CCXLV Matthew and Hassals Case Mich. 31 Eliz. In the Kings Bench. IN an Ejectione firmae betwixt Matthew and Hassal the Plaintiff had Iudgment to recover and the Defendant brought a Writ of Error Error 1 Cro. 144. and assigned Error in this that the Iudgment was entred Quod querens recuperet possessionem c. where it should be Terminum vent in ten praedict See 9 Eliz. Dyer 258. Coke contrary That the Iudgment is good enough for the Writ of Execution upon it is Habere facias possessionem and in a real Action the Writ is Quod perens recuperet sesinam and not terram And afterwards Iudgment was affirmed CCXLVI Tempest and Mallets Case Hill. 31 Eliz. In the Kings Bench. IN an Action of Trespass by Tempest against Mallet Iudgment was given and Eror brought and assigned for Error 1 Cro. 153 145. that whereas the Action was brought against four one of them died Mesne betwixt the Award of the Nisi prius and the Inquest taken And it was said on the part of the Defendant in the Writ of Error which was entred upon the Record that the Plaintiff shewed unto the Court the death of one of the Defendants and prayed Iudgment against the others See 4 H. 7. 2 Eliz. 175. And there is a difference where in an Action of Trespass there is but one Defendant and where many Another Error was assigned the Defendant Obtulit se per Higgins Attornat suum without shewing his Christian Name as John or VVilliam for Higgins only without the Christian Name is not any Name for it is but an addition to shew which John or VVilliam Coke The same is helped by the Statute of 32 H. 8. cap. 30. Where it is enacted that after Verdict Iudgment shall be given notwithstanding the lack of Warrant of Attorney of the party against whom the Issue shall be tried or any default or negligence of any the parties their Counsellors or Attorneys and of necessity this default here in the Christian Name ought to be the fault of one of them See also 18 Eliz. Cap. 14. for want of any Warrant of Attorney c. Glanvil The Statute provides for default of Warrant of Attorney c. Then Coke To what end was the Statute of 18 Eliz. made for the Statute of 32 H. 8. provides for defects of Warrants of Attorney Glanvil The first Statutes for Warrants of Attorneys of such persons against whom the Issue was tryed but the later Stat. is general Another Error was assigned Quod defendens Capiatur where the Offence so the Fine is pardoned by Parliament and therefore the entry of the Iudgment ought to be Et de fine nihil quia perdonatur Coke The Iudgment is well enough for in every general Pardon some persons are excepted it doth not appear if the Defendant here were one of them and then the Fine is not pardoned 1 Cro. 768. 778. 3 Cro. 22. for the Court cannot take notice of that as it was holden in Serjeant Harris Case but if the Defendant be charged with the Fine then he ought to plead the pardon and to shew that he was not any of the persons excepted And afterwards at another day the Defendant did alledge that there was a Warrant of Attorney in the Common Pleas. And also it appeareth upon Record that the Defendant did appear upon the Supersedeas by Attorney who had his full Name and therefore prayed a Certiorari de novo to certifie the same matter vide 9 E. 4. 32. VVray A Case here greatly debated betwixt the Lord Norris and Braybrook In nullo est erratum and upon Advice such a Writ of Certiorari was granted after the Plaintiff had pleaded In nullo est erratum for this Plea in nullo est erratum goes but to that which is contained within the body of the Record and not unto collateral matter scil Warrant of Attorneys And afterwards the Writ of Error was allowed and upon the day of return thereof it appeared upon the Record of Supersedeas that the Defendant did appear by such a one his Attorney But it was said by the Court that there ought to be two appearances the one upon the Supersedeas and the other when the Plaintiff declares See as to the name of the Attorney Tirrells Case 1 Mar. Dyer 93. CCXLVII. Palmer and Knowllis Case Hill. 31. Eliz. In the Kings Bench. 1 Cro. 160. PAlmer recovered Debt against Knowllis and sued Execution by Elegit upon which the Sheriff returned that he had made Execution of the lands of the Defendant by the Oath of twelve men but he could not deliver it to the party Execution for it is extended to another upon a Statute upon which the Plaintiff sued a Capias ad satisfaciendum And now came the Defendant by his Counsel and moved that after Elegit returned the Plaintiff could not resort to the Execution by Capias and therefore prayed a Supersedeas Caplas after Elegit because the Capias erronice emanavit But the whole Court was clear to the contrary for upon Nihil returned upon Elegit the Plaintiff shall have a Capias 17 E. 4. 5. See 21 H. 7. 19. A man shall have a Capias after a Fieri facias or Elegit 34 H. 6. 20. and here the special return doth amount to as much as if the Sheriff had returned Nihil Also the Statute of West 2. which giveth the Elegit is not in the Negative and therefore it shall not take away the Execution which was at the Common Law. And here is no Execution returned for after the former extent ended he ought to have a new Elegit which Wray granted And afterwards the said Knowllis was taken by force of the Capias ad satisfaciend and came into Court in the Custody of the Sheriff and the Case was opened and in the whole appeared to be worthy of favour but by the Law he could not be helped and although he instantly prayed a Supersedeas yet the same was denied unto him CCXLVIII The Church-wardens of Fetherstones Case Hill. 31 Eliz. In the Common Pleas. AN Action of Trespass was brought by the Church-wardens of Fetherstone in the County of Norfolk and declared Church-wardens 1 Cro. 145. 179. That the Defendant took out of the said Church a Bell and declared that the Trespass was done 20 Eliz. And it was found for the Plaintiffs And now it was moved by
day the same had bin good for such By-law doth not take away but order the Inheritance For the nature of a By-law is to put Order betwixt the Tenants concerning their affayrs within the Manor which by law they are not compellable to do And by Periam The Avowant ought to have averred That this By-law was for the Common profit of the Tenants See the Lord Cromwells Case 15 Eliz. Dyer 322. and afterwards in the Principal Case Iudgment was given against the Avowant CCLXXI. Wicks and Dennis Case Mich. 31 32 Eliz. In the Common Pleas. Replevin WIcks brought a Replevin of Dennis who avowed That one Dennis his Father was seised of the Manor c. and granted out of it to the avowant a Rent of twenty pounds per annum and further granted That if the said Rent be arrear unpaid six days after the feasts c. wherein it ought to be paid si licite petatur That then it should be lawful to distrein The grantor afterward by Indenture Covenanted with the Lord Treasurer and others to stand seised of the same Manor unto the use of himself and his heirs until he or his heirs have made default in they payment of one hundred pounds per annum until three thousand pounds be paid and after default of payment to the use of the Queen and her heirs until the sum of three thousand pounds should be paid and levied The grantor afterwards levied a fine to the said Lord Treasurer and others to the uses aforesaid the Rent is arrear default of the payment of the hundred pounds in made Office is found The Queen seised the land the Avowant during the possession of the Q. demanded the Rent the arrearages thereof The Queen granted over the Manor to W. B. D. the grantee did distrain for the rent arrearages demanded ut supra It was moved by H. Serjeant That this demand of several sums payable at several days before is not good for every sum ought to be severally demanded when it was first due scil si licite petatur scil within the six days for otherwise without such demand distress is not lawful and he resembled it to the case of Sir Thomas Gresham 23. Elizabeth Dyer 372 of several Tenders Periam conceived that the demand ought to be several Anderson That the demand is good enough And as to the demand made during the possession of the Queen It was holden by the whole Court to be good enough for although the possession of the Queen be priviledged as to the distress yet the demand is good Demand of Rent charge during the possession of the King good without any wrong to her prerogative for the Rent in right is due and the possession of the Queen is in right charged with it and the Rent is only recoverable by Petition as it was by way of distress and if the partie sueth to the Queen by Petition for the said Rent he ought to shew in his Petition that he hath demanded the Rent for if the possession had bin in a common person he could not distreyn before demand nor by consequence have Assise And the Rent notwithstanding the possession of the Queen is demandable and payable for to entitle the party unto Petition against the Queen and to distress against the subject when the possession of the Queen is removed And see 7 H. 6. 40. disseisee may make continual claym although the possession of the Land of which he is disseised be in the King. And 34 H. Br. seisin 48. If the heir at full Age intrude upon the possession of the King and pays Rent to the Lord of his Land holden of a subject the same is a good seisin and shall bind the heir after he hath sued his livery 5 E. 4. 4. and see 13 H. 7. 15. That distress taken upon the possession of the King is not lawful but seisin obtained during it is good So in 21 H. 7. 2. CCLXXII Ashegells and Dennis Case Mich. 31 32 Eliz. In the Com. Pleas. Int. M. 30 31. Rot. 458. AShegel brought a Quare Impedit against Dennis Quare Impedit 1 Cro. 163. Hob. 304. and the Plaintiff Counted that the Defendant had disturbed him to present ad vicariam de D. and shewed that the Queen was seised of the Rectory of D. and of the Advowson of the vicaridge of D. and by her letters Patents gave unto the Plaintiff Rectoriam praedictam cum pertinentiis etiam vicariam Ecclesiae praedict And it was holden by the whole Court That the Advowson of the vicaridge by these words doth not pass nor so in the Case of a common person much less in the Case of the King But if the Queen had granted Ecclesiam suam of D. then by Walmesley Iustice the Advowson of the vicaridge had passed CCLXXIII Collman and Sir Hugh Portmans Case Mich. 31 32 Eliz. In the Common Pleas. IN Ejectione firmae by Collman against Sir Hugh Portman it was found by special verdict Ejectione firmae That the lands where were holden by Copy of the Manor of D. whereof Sir H. Portman was seised and that the Plaintiff was Copyholder in Fee and further found That the said Sir H. pretending the said Copy-hold lands to be forfeited Surrender of Copy-holder entred into Communication with Collman touching the same upon which Communication it was agreed betwixt them That the said Collman should pay to the said Sir Hugh five pounds which was paid accordingly that in consideration thereof Collman should enjoy the said Customary lands except one Wood called Combwood for his life and also of Alice his wife durante sua viduitate and that Collman should have Election whether the said lands should be assured unto him and his said wife by Copy or by Bill c. he chose by Bill which was made accordingly and further found That the said Sir H. held and enjoyed in his possession the said Wood c. upon this matter The Court was clear in opinion That here is a good surrender of the said lands and that for life only and that the said Sir Hugh had the Wood discharged of the customary interest CCLXXIV Thetford and Thetfords Case Mich. 31 32 Eliz. In the Common Pleas. Debt IN an Action of Debt for Rent the Plaintiff declared That Land was given to him and to T. his wife and to the heirs of their bodies and that his wife leased the Lands to the Defendant and that the Donees were dead and that the Plaintiff as heir c. for rent arrear c. and upon Non demiserunt the Iury found that the Husband and Wife demiserunt by Indenture and afterwards the husband died and the wife entred and within the term died Now upon the matter it seemed clear to Anderson that the Iury have found for the Defendant scil Non demiserunt for it is now no lease ab initio because the Plaintiff hath not declared
appendant to it and conveyed the said capital Messuage and Advowson to the King by the dissolution and from the King to the said Thomas Long who so seised without any Deed did enfeoff the Plaintiff of the said Manor and made Livery and Seisin upon the Demesnes And that the said Thomas Long by his Deed made a grant of the said Advowson to the said Strengham and afterwards the Free-holder attorned to the Plaintiff And by the clear opinion of the whole Court here is a sufficient Manor to which an Advowson may be well appendant and that in Law the Advowson is appendant to all the Manor but most properly to the Demesnes out of which at the commencement it was derived and therefore by the attornment afterwards within construction of the Law shall have relation to the Livery the Advowson did pass included in the Livery And the grant of the advowson made mesne between the Livery and the attornment was void and afterwards Iudgment was given and a Writ to the Bishop granted for the Plaintiff CCXC. Mich. 32 33 Eliz. In Communi Banâ—o Debt A Made a Bill of Debt to B. for the payment of twenty pounds at four days scil five pounds at every of the said four days and in the end of the Deed covenanted and granted with B. his Executors and Administrators that if he make default in the payment of any of the said payments that then he will pay the residue that then shall be un-paid and afterwards A. fails in the first payment and before the second day B. brought an action of Debt for the whole twenty pounds It was moved by Puckering Serjeant Sâ—y 31. 32. 1 Cro. 797. That the Action of Debt did not lye before the last day encurred And also if B. will sue A. before the last day that it ought to be by way of covenant not by Debt But by the whole Court the action doth well lye for the manner for if one covenant to pay me one hundred pounds at such a day an action of Debt lyeth a fortiori Owen 42. 1. 2 Rol. 523. when the words of the Deed are covenant and grant for the word covenant sometimes sounds in covenant sometimes in contract secundum subjectum materiae CCXCI. Lancasters Case Mich. 32 33 Eliz. In Communi Banco Roll. Tit. Covenant pl. 72. AN Information was against Lancaster for buying of pretended Rights Titles upon the Statute of 32 H 8. And upon not guilty pleaded It was found for the Plaintiff it was moved in arrest of Iudgment because the Informer had not pursued the Statute in this that it is not set forth that the Defendant nor any of his Ancestors or any by whom he claimed have taken the profits c. and the same was holden a good and material Exception by the Court although it be layed in the Information that the Plaint himself hath been in possession of the Land by twenty years before the buying of the pretended Title for that is but matter of argument not any express allegation for in all penal Stat. the Plaintiff ought to pursue the very words of the Stat. and therefore by Anderson It hath been adjudged by the Iudges of both Benches that if an Information be exhibited upon the Stat. of Vsury by which the Defendant is charged for the taking of twenty pounds for the Loan and forbearing of one hundred pounds for a year there the Information is not good if it be not alledged in it that the said twenty pounds was received by any corrupt or deceitful way or means And in the principal Case for the Cause aforesaid Iudgment was arrested CCXCII Bagshaw and the Earl of Shrewsburies Case Mich. 32 33. Eliz. In the Common Bench. BAgshaw brought a Writ of Annuity against the Earl of Shrewsbury for the arrerages of an Annuity of twenty Marks per annum Annuity granted by the Defendant to the Plaintiff Pro Consilio impenso impendendo The Defendant pleaded that before any arrerages incurred he required the Plaintiff to do him Service and he refused The Plaintiff by replication said that before the refusal such a day and place the Defendant discharged the Plaintiff of his Service c. And the opinion of the Court was that the Plea in Bar was not good for he ought to have shewed for what manner of Service to do the Plaintiff was so retained and for what kind of Service the Annuity was granted and then to have shewed specially what Service he required of the Plaintiff and what Service the Plaintiff refused Another matter was moved If the discharge shall be peremptory and an absolute discharge of the Service of the Plaintiff and of his attendance so that as afterwards the Defendant cannot require Service of the Plaintiff And by Walmesly Iustice it is a peremptory discharge of the Sevice for otherwise how can he be retained with another Master and so he should be out of every Service VVindham contrary For here the Plaintiff hath an Annuity for his life and therefore it is reason that he continue his Service for his life as long as the Annuity doth continue if he requirreth But where one is retained but for one or two years then once discharged is peremptory and absolute CCXCIII Matheson and Trots Case Mich. 31 32. Eliz. In the Common Bench. BEtwixt Matheson and Trot the Case was Sir Anthony Denny seised of certain Lands in and about the Town of Hertford 2 Len. 190. holden in Socage and of divers Mannors Lands and Tenements in other places holden in chief by Knights-service and having Issue two Sons Henry and Edward by his last Will in writing devised the Lands holden in Hertford to Edward Denny his younger Son in Fee Devises and died seised of all the Premisses Henry being then within age After Office was found without any mention of the said Devise the Queen seised the Body of the Heir and the possession of all the Lands whereof the said Sir Anothony died seised and leased the same to a stranger during the Minority of the Heir by force and colour of which Lease the Lessee entred into all the Premisses and did enjoy them according to the Demise And the Heir at his full age sued Livery of the whole and before any entry of the said Edward in the Land to him devised or any entry made by the said Henry the said Henry at London leased the said Lands by Deed indented to I.S. for years rendring Rent by colour of which the said I.S. entred and paid the Rent divers years to the said Henry And afterwards by casualty the said Henry walked over the Grounds demised by him in the company of the said I. S. without any special entry or claim there made I.S. assigned his Interest to I.D. who entred in the Premisses and paid the Rent to the said Henry who died and afterwards the Rent was paid to the Son and Heir of Henry
33 Eliz. In the Common Bench. IT was found by special Verdict that Berwich and Tesdel seised of certain Lands conveyed the same to Sir Thomas Cotton for life Fines levied to use Co. 2 Inst 519. 1 Cro. 219. the Remainder to VVil. Cotton primogenito filio suo haeredi masculo sic de primogenito ad primogenitum dict VVilliam the Remainder to the right Heirs of the body of Sir Tho. Cotton and VVil. Cotton lawfully issuing the Remainder to the right Heirs of Sir Tho. Cotton VVil. had Issue a Son born here in Eng. and went beyond Sea to Antwerp and there continuing and his Son being within age in England Sir Thomas Cotton levied a Fine of all the Land sur conusans de droit come ceo c. And afterwards by Indenture convenanted to stand seised to the use of himself for life and afterwards to the use of Rober Cotton his Son in Fee William died at Antwerp his said Son being within age in England Sir Tho. Cotton died Robert entred and leased the Lands for years to Sary and the Infant Son and Heir of William leased the Land to one Chewn at Will who entred and ousted Sary who thereupon brought Ejectione firmae It was here holden by the Court that Sir Tho. Cotton was Tenant for life the Estates Remainder to William for term of his life the Remainder to the Heirs of both their bodies issuing So as unto one Moyety Sir Thomas Cotton had an Estate tail dependant upon the said Estates for life and so the Fine levied by him was a Bar to the Issue of William for a Moyety And as to the other Moyety they held that the said Fine was not any Bar but that the party interessed at the same time might avoid the Fine at any time during his Nonage five years after for Wil. his Father was not bound by the Statute of 4 H. 7. because at the time of the Fine levied he was beyond the Seas and although he never returned but died there yet by the equity of the Statute his Issue shall have five years after his death to avoid the Fine if he were of full age and if he were within age then during his Nonage and five years after At another day the Case was argued and put in this manner viz. Lands were given to Sir Thomas Cotton for life without Impeachment of Wast the Remainder over to Cheny Cotton his eldest Son primogenito filio haeredi Masculo of the said Cheny sic de primogenito filio in primogenitum filium the Remainder to the Heirs Males of the body of the said Cheny for want of such Issue the Remainder to Wil. Cotton his second Son primogenito filio in primogenitum filium the Remainder over to the said Sir Thomas and the said William and the Heirs Males of their bodies lawfully begotten Cheny Cotton died without Issue William having Issue went beyond the Sea Sir Thomas Cotton 19 Eliz. levied a Fine with Proclamation and afterwards William the Father died in Antwerp his Son being within age Sir Thomas by Indenture limited the use of the Fine to himself for life the Remainder over to Robert Cotton his third Son in Tail Sir Thomas died but it doth not appear at what time William the Son being yet within age entred but non constat quando and 31 Eliz. leased the Lands to the Defendant at Will. Drue Serjeant argued for William Cotton And he conceived that William the Father had an Estate-tail and then the entry of William the Son was congeable for the whole But admitting that it is not an Estate-tail in VVilliam the Father for the whole yet he hath by the second Remainder an Estate-tail in the Moyety and then his Entry good as to one Moyety and then Robert being Tenant in Common of the other Moyety Tails his Lessee without an actual Ouster cannot maintain an Ejectionae firmae against the Lessee of his Companion And he conceived here is a good Estate-tail in VVilliam Cotton by virtue of the Limitation to William primogenito filio haeredi Masculo ipsius Guliel sic de primogenito filio in primogenitum filium c. for according to the Statute of VVest 2. the will of the Donor ought to be observed and here it appeareth that the intent of the Donor was to create an Estate-tail although the words of the Limitation do not amount to so much And the Estates mentioned in the Statute aforesaid are not Rules for Entails but only Examples as it is said by Trew 33 E. 3 F. Tail 5. see Robeiges Case 2 E. 2. 1 Fitz. Tail and 5 H. 5. 6. Land given to A. and B. uxori ejus haeredibus eorum aliis haeredibus dicti A. si dict haeredes de dictis A. B. exeuntes obierint sine haeredibus de se c. and that was holden a good Entail so a gift to one and his Heirs si haeredes de carne sua habuerit si nullos de carne sua habuerit revertatur terra and adjudged a good tail So 39 E. 3. 20. Land given to Husband and Wife uni haeredi de corpore suo ligitime procreat uni haeredi ipsius haeredis tantum And that was holden a good Tail and so he conceived in this Case that although the words of the Limitation are not apt to create an Estate-tail according to the phrase and stile of the said Statute of VVest 2. yet here the intent of the Donor appears to continue the Land in his Name and Blood for VVilliam the Son could not take with his Father by his Limitation for he was not in rerum natura and therefore all shall vest in VVilliam the Father which see 18 E. 3 Fitz. Feoffments Fait 60. Now it is to see if upon the Limitation to Sir Thomas Cotton and VVilliam his Son by which the Remainder is limited to Sir Thomas Cotton and VVilliam and the Heirs Males of their bodies issuing the said Sir Thomas Cotton Wil. have a joynt Estate-tail in respect that the Issue of the body of the Son may be Heir of the Body of the Father and so because they might have one Heir which shall be inheritable to his Land it shall be one entire Estate-tail in them But he conceived that they are several Estates-tail and that they are Tenants in Common of an Estate tail 3 4 Phil. Mar. Dyer 145. Land given to the Father and Son and to the Heirs of their two Bodies begotten the Remainder over in Fee the Father dieth without other Issue than the Son only and afterwards the Son dieth withou Issue a stranger abates Or if the Son hath made a Discontinuance if he in the Remainder shall have but one or two several Formedons was the Question And by Saunders Brook and Brown but one Formedon and Quaere left of it yet admitting that yet notwithstanding that it might be
that they had several Estates-tail 17 E. 3. 51. 78. Land given to a man and his Sister and to the Heirs of their two Bodies issuing they have several Estates tail and yet one Formedon And see 7 H. 4. 85. Land given to a man and his Mother or to her Daughter in Tail here are several Entails And here in the principal Case Sir Thomas Cotton hath one Moyety in Tail expectant upon his Estate for life and therefore as to the Moyety of Sir Thomas Cotton he is bound by the Fine And the other Moyety is left in the Son who may enter for a Forfeiture upon the alienation made by his Father as well in the life of the Father as afterwards Now after this Fine levied the entry of VVilliam the Son by virtue of his Remainder is lawful after the death of Sir Thomas although that VVilliam the Father was beyond the Sea at the time of the Fine levied and there afterwards died VVilliam the Son being within age The words of the Statute of 4 H. 7. are Other than Women Covert or out of this Realm c. so that they or their Heirs make their Entry c. within five years after they return into this Land c. So that by the bare letter of the Act VVill. the Son hath not remedy nor relief by this Act against the Fine because that William the Father died beyond the Sea without any return into England yet by the Equity of the Statute he shall have five years to make his Claim although his Father never return for if such literal construction should be allowed it should be a great mischief and it should be a hard Exposition for this Statute ought to be taken by Equity as it appeareth by diverse Cases 19 H. 8. 6. My Vncle doth disseise my Father and afterwards levies a Fine with Proclamations my Father dieth and after within five years my Vncle dies that Fine is no Bar to me yet the Exception doth not help me for I am Heir to him that levied the Fine and so privy to it but my Title to the Land is not as Heir to my Vncle but to my Father So if an Infant after such a Fine levied dieth before his full age his Heir may enter within five years after and yet that Case is out of the Letter of the Statute And by Brown and Sanders If the Disseisee dieth his Wife enseint with a Son the Disseisor levieth a Fine the Son is born although this Son is not excepted expressly by the words because not in rerum natura at the time of the Fine levied c. yet such an Infant is within the equity and meaning of the said Statute See the Case betwixt Stowel and Zouch Plow Com. 366. And by him It was holden 6. Eliz. that an Infant brought a Formdon within age and adjudged maintainable although the words of the Statute be That they shall take their Actions or lawful Entries within five years after they come of full age And he also argued that here when Sir Thomas being Tenant for life levyed a Fine which is a Forfeiture he in the Remainder is to have five years after the Fine levyed in respect of the present forfeiture and also five years after the death of the Tenant for life And that was the case of one Some adjudged accordingly in the Common Pleas It hath been objected on the other side That the Defendant entring by color of the Lease at Will made to him by William who was an Infant that he was a Disseisor as well to the Infant as to the Lessor of the Plaintiff who had the Moyety as Tenant in common with the Infant and then when the Lessor of the Plaintiff entred upon the Defendant and leased to the Plaintiff and the Defendant enentred and ejected the Plaintiff he is a Disseisor to which he answered That the Defendant when he entred by the Lease at Will he was no Disseisor for such a Lease of an Infant is not void but only voidable c. and then a sufficient Lease against the Plaintiff although not against the Infant Beaumont Serjeant to the contrary By this manner of gift William the Son took nothing but the estate setled only in William the Father but not an estate tail by the words haeredi masculo c. And voluntas Donatoris without sufficient words cannot create an estate tail but where the intent of the Donor is not according to the Law the Law shall not be construed according to his intent But this intent shall be taken according to the Law. And he held that Sir Thomas and VVilliam had several estates in tail and several Moyeties and not one entire estate and here upon all the matter Sir Thomas is Tenant for life of the whole the Remainder of one moyety to him in tail the Remainder of the other moyety unto VVilliam in tail and rebus sic stantibus Sir Thomas levying a Fine of the whole now as to one moyety which the Conusor had in tail the Fine is clearly good and so as to that Robert the Lessor of the Plaintiff had a good Title as to the said moyety and as to the other moyety he conceived also that VVilliam is bound for this Statute shall not be construed by Equity but shall bind all who are expresly excepted and that is not VVilliam the Son for his Father never returned and then his Heir is not releived by the Statuteâ— Also VVilliam had a Right of Entry at the time of the Fine levyed scil for the Forfeiture and because he hath surceased the time for the said Right of Entry he shall not have now five years after the death of Tenant for life for he is the same person and the second saving which provides forfuture Rights extends to other persons than those who are intended in the first saving and he who may take advantage of the first saving cannot be releived by the second saving for no new title doth accrue to him in the Reversion or Remainder by the death of Tenant for life for that title accrued to him by the forfeiture so as the title which he hath by the death of the Tenant for life is not the title which first accrued unto him Also by this Forfeiture the estate for life is determined as if Tenant for life had been dead for if Tenant for life maketh a Feoffment in Fee the Lessor may have a Writ of Entry ad terminum qui praeterijt Fitz. 201. which proves that by the Forfeiture the estate is determined and then no new title doth accrue to him in the Remainder by the death of the Tenant for life but that only which he had before the alienation so that his non-claim after the five years shall bind him Then when VVilliam the Infant having a Right to a moyety and Robert the Lessor of the Plaintiff a Right to the other moyety and the Infant leaseth unto the Defendant at Will who entreth now is he a
ipse nor any other by his procurement or consent had taken or riotously spent the Goods of the Plaintiff for Plea saith That the Plaintiff before the Writ brought had not sufficiently proved that the said John Hallywel took or riotously spent any of the Plaintiffs Goods Vpon which the Plaintiff did demur in Law. It was argued by Daniel That the proof is sufficient and good for the time if it be tried in the Action upon this Obligation and the proof intended is proof by twelve men for it is not set down before what person it shall be proved nor any manner of proof appointed and therefore it shall be tried according the Law of the Land which see 10 E. 4. 11. 7 R. 2. Bar. 241. Godfrey contrary This case is not like to the cases before for here is a further matter First warning and a month after Notice pay c. And if the proof shall be made in this Action the Defendant shall lose the benefit of the Condition which gives time to pay it within a month after for in all such cases the precedent Act of the Obligee is traversable as 10 H. 7. 13. I am bound by Obligation to enfeoff such a person of such Lands as the Obligee shall appoint In an Action brought against me I shall say-that the Plaintiff hath not appointed c. And here ought to be Notice first and proof ought to precede the Notice by the meaning of the Condition and so this differs from the other cases put for here proof is not the substance of the whole Owen Serjeant It is the folly of the Defendant to put himself to such an inconvenience for now he ought to pay the mony without delay of any month And here the Defendant ought to plead That he hath not imbezelled any goods of the Plaintiff and the Plaintiff Replicando shall say and shew the Special matter that he hath given Notice to him thereof See 15 E. 4. 25. CCCXLV. Manning and Andrews Case 18 Eliz. In the Kings Bench. Devise 4 Len. 2. IN Ejectione firmae the Iury found by special Verdict That Richard Hart and Katharine his Wife and divers other persons 1 H. 8. were seised of the Lands in question to the use of Richard and his Heirs ad per implend ultimam volunt dict Rich. who the first of August 8 H. 8. by his Will in writing devised That his Feoffees should be from thenceforth seised to the use of his said Wife for her life and after to the use of W. H. his Son for his life without impeachment of Wast and after the death of the said Katharine his Wife William his Son and Joan Wife of the said William his Feoffees should be seised to the use of the next Heir of the Body of the said William and Joan lawfully begotten for the term of the life of the same Heir and after the decease of the same Heir to the use of the next heir of the same heir lawfully begotten and for default of such issue to the use of the heirs of the body of the said William and Joan lawfully begotten for the term of life or lives of every such heir or heirs More Rep. 368. and for default of such heirs to the use of the heirs of the body of the said William and for default c. to the right heirs of William And further he willed That if any of the said heirs shall set alien say to mortgage the right title and interest which they or any of them shall have in or out of the same Lands or by their consent or assent suffer any Recovery to be had against them c. or do any other Act whereby they or their heirs or any of them may or ought to be disinherited that then the use limited to such heir so doing shall be void and of no effect during his life And that his said Feoffees shall be thenceforth seised to the use of the heir apparent of such Offender as though he were dead Richard Hart died William had issue by the said Joan his wife a Son named Thomas and died and afterwards 31 H. 8. Joan died Katharine died Thomas entred and had issue Francis and Percival Thomas by Deed indented 1 August 4 Eliz. bargained and sold to Andrews and levied a Fine to him with warranty And afterwards 6 Eliz. Francis levied a Fine to the said Andrews Sur conusans de droit come ceo And further by the said Fine released to him with warranty at the time of which Fine levied Percival was heir apparent to the said Francis Francis after had issue I. and F. who are now living The heir of the Survivor of the Feoffees within five years after the age of Percival and seven years after the Fine levied enter to revive the use limited to Percival who entred and leased to the Plaintiff This case was argued by the Iustices of the Kings Bench c. First It was agreed by the whole Court That Richard Hart being seised with seven others unto the use of himself and his heirs might well devise all the use Use suspended yet the Land devised although his use was in part suspended because he was joyntly seised with seven others to his own use and so the use for the eighth part suspended for when this Devise is to take effect i. e. at the time of his death all the possession of the Land by the Survivor passeth from the use and then the use being withdrawn from the possession shall well pass And by Wray A use suspended may be devised As if Feoffees to use before the Statute of 27 H. 8. be disseised by which disseisin the use is suspended and afterwards during the disseisin Cestuy que use by his Will deviseth That his Feoffees shall re-enter and then make an estate to I. S. in Fee the same is a good devise for by that disseisin the trust and confidence reposed by Cestuy que use in the Feoffees is not suspended Secondly It was holden that here a use implied was limited to Joan the wife of William although there be not any express devise of it according to the Book of 13 H. 7. 17. Thirdly when a use is limited to the Heir of the body of William and Joan lawfully begotten for life and afterwards to the Heir of the body of the same heir for life c. Geofry Iustice was of opinion That here is in effect an estate tail for the estates limited are directed to go in course of an estate tail for he wills That every heir of the body of his Son shall have the Land and the special words shall not make another estate to pass but that which the Law wills As if Lands be given to one for life the Remainder after his death to the Heirs of his body lawfully begotten notwithstanding that the words of the limitation imply two several estates yet because the Law so wills it is but one estate Gawdy Iustice said That
every issue begotten betwixt William and Joan should have an estate for life successive and a Remainder in tail expectant as right heir of the body of William A Contingent shall hinder the execution of an estate in possession and this estate tail shall not be executed in possession by reason of the mesne Remainder for life limited to the heir of the body of William and Joan and although that these mesne Remainders are but upon a contingent and not in esse yet such regard shall be had to them that they shall hinder the execution of the estates for life and in tail in possession As if an estate be made to A. for life the Remainder to the right heirs of B. in tail the Remainder in Fee to A. although the estate tail be in abeyance and not in esse during the life of B. yet in respect thereof the Free-hold and Fee shall not be conjoyned Southcote Iustice To the same purpose And he put a case lately adjudged betwixt Vaughan and Alcock Vaughan and Alcocks case Land was devised to two men and if any of them dieth his heirs shall inherit these devisees are Tenants in common because in by devise but contrary if it were by way of Grant Lands are devised to A. and B. to be betwixt them divided they are Tenants in common Wray William and Thomas have but for life for they are purchasors by the name heir in the singular number but when he goes further and says for want of such issue to the heirs of the body of William in the plural number now Will. hath an Inheritance And if a devise be made to one for life and then to his heir for life and so from heir to heir in perpetuum for life here are two estates for life and the other Devisees have Fee for estates for life cannot be limited by general words from heir to heir but by special words they may And here Thomas being next heir of the body of William and Joan hath an estate for life and also being heir of the body of the said William hath a Remainder in tail to him limited the mesn remaineth limited to others i. e. to the next heir of the body of Thomas being in abeyance Co 11. Rep. 80. because limited by the name heir his Father being alive shall not hinder the execution of these estates but they shall remain in force according to the rules of the common Law Then Thomas so being seised levyeth a Fine against the Provision of the Will by which Thomas hath forfeited his estate for life and so his next heir shall have the Land during his life And a great reason wherefore the heirs ut supra after the two first limitations shall have tail is because that if every heir should have but for life they should never have any Interest in the Lands by these limitations for by the express words of the devise none shall take but the heir of the first heir for ever i. e. When Thomas aliens by which the use vests in Francis and when afterwards Francis levieth a Fine then the use vests in Percival Hâ—rt being next heir of the said Francis at the time of the Fine levyed notwithstanding that afterwards Francis had a Son which is his next heir and therefore the use in Percival by the birth of the said Son in Francis shall not be devested Estate vested shall not be devested because it was a thing vested in him before by purchase 9 H. 7. 25. A enfeoffs B. upon condition on the part of A. to be performed 1 Cro. 61. and dyeth having issue a Daughter the Daughter performs the condition and afterwards a Son is born the Daughter shall hold the Lands against the Son So 5. E. 4 6. A woman hath issue a Daughter and afterwards consents to a Ravisher the Daughter enters and afterwards a Son is born yet the Daughter shall hold the Lands for ever i. e. And Geofries Iustice said Francis being in by force of the Forfeiture shall not be subject to the limitation of the Will i. e. to any forfeiture if he alien for the estate which Francis hath for his life is but an estate gained by the offence of his Father and the use was limited to him upon the Will of Richard and then the said estate is not subject to the Proviso of the Will and then hath not Francis committed any forfeiture And admit Francis shall forfeit yet Percival shall get nothing thereby but the estate which Francis had at the time of the Fine levied scil the Free-hold only for no estate of Inheritance was in him living his Father As to the regress of the Feoffees Geofries was of opinion That where an use is limited to a person certain and thereupon vested in the person to whom it is limited That the Entry of the Feoffees in such case is not requisite notwithstanding that the first estates be discontinued but where the use as in our case is not limited to a person certain in esse but is in abeyance not vested in any person upon the limitation of it some estate ought to be left in the Feoffees to maintain that use and to render it according to the limitation and in our case these uses not in esse at the time of the making of the Statute of 27 H. 8. could not be executed by the said Statute but now at the appointed time by the limitation shall be raised and revived by the Entry of the Feoffees but here by the Fine and Non-claim the Feoffees are bound and their Entry taken away and so no use can accrue to Percival Hart by such Entry Southcote Iustice was of opinion that the Feoffees cannot enter at all because that by the Statute of 27 H. 8. nothing is left in them at the time of the making of the Statute which saves the right of every person c. other than the Feoffees so as no right is saved to them but all is drawn out of them by the operation of the Statute and the second saving of the Statute saves to the Feoffees all their former Right so as the Right which the Feoffees had by the Feoffment to the use is utterly gone But Percival Hart may well enter for he is not bound to the five years after the Fine levied for he had not right at the time of the Fine levied but his right came by the Fine Wray chief Iustice The Feoffees are not to enter for the Statute of 27 H. 8. hath two branches 1. gives the possession to Cestuy que use in such manner as he hath in the use 2. takes away all the right out of the Feoffees and gives it to Cestuy que use so as nothing at all remains in the Feoffees for if an Act of Parliament will give to me all the Lands whereof my brother Southcote is seised and that I shall be in the Seisin thereof now is the actual possession in me without my
barred but if the Wife enter after the death of her Husband and before the Proclamations pass the issue is not bound by the Fine And if Tenant in Tail granteth totum statum and after levieth a Fine thereof with Proclamations come ceo c. The Issue is barred contrary where the Fine is upon a Release c. CCCXLVI Henningham and Windhams Case 18 Eliz. In the Kings Bench. ARthur Henningham brought a Writ of Error against Francis Windham upon a common Recovery had against Henry his Brother Error Owen Rep. 68. and the Case was That Land was given in special tail to Thomas Henningham Father of the said Henry and the said Arthur the Remainder in general tail the estate tail in possession was to him and the Heirs Mairs of his body Thomas had issue the said Henry and three Daughters by one woman and the said Arthur and two other Sons by another woman and dyed seised Henry entred and made a Feoffnent a common Recovery is had against the Feoffee in which Henry is vouched who vouched over the common Vouchee according to the usual course of common Recoveries Henry dyed without issue Error and Attaint by him to whom the Land is to descend and Arthur brought a Writ of Error being but of the half blood to Henry And it was resolved by the whole Court That Error and Attaint always descends to such person to whom the Land should descend If such Recovery or false oath had not been As if Lands be given to one and the Heirs Females of his body c. and suffers an erronious Recovery and dyeth the Heir female shall have the Writ of Error So upon Recovery of Lands in Borough English for such Action descends according to the Land quod fuit concessum per totam Curiam But it was objected on the Defendants part That because that the Feoffee being Tenant to the Praecipe is to recover in value a Fee-simple and so Henry is to yield a Fee-simple which should descend to the heir at the Common Law if this Recovery had not been therefore he to whom the same should descend should have the Writ of Error for he hath the loss But the said Exception was not allowed And it was said That Tenant in tail upon such a Recovery shall recover but an estate in tail scil such estate which he had at the time of the warranty made c. And afterwards Iudgment was given that the Action was maintainable So if a man hath Lands of the part of his mother and loseth it by erronious Iudgment and dyeth That the Heir of the part of the Mother shall have the Writ of Error CCCXLVII Foster and Pitfalls Case 18 Eliz. In the Kings Bench. IN Ejectione firmae the Case was 1 Cro. â— Brook devised Lands to his Wife in general Tail the Remainder over to a stranger in Fee and dyed he took another Husband and had issue a Daughter The Husband and Wife levyed a Fine to a stranger The Daughter as next Heir by 11 H. 7. entred It was agreed by the whole Court That an estate devised to the wife is within the words but not within the meaning of the Statute Secondly It was resolved That no estate is within the meaning of the Statute unless it be for the Ioynture of the Wife Thirdly Resolved That the meaning of the Statute was That the wife so preferred by the Husband should not prejudice the issues or heirs of her Husband and here nothing is left in the Issues or heirs of the Husband so as the Wife could not prejudice them for the Remainder is limited over CCCLXVIII Greenes Case 18 Eliz. In the Kings Bench. Acceptance of Rent 1 Cro. 3. 3 Co. 64. b. GReene made a Lease for years rendring Rent with clause of Re-entry and the Rent due at the Feast of the Annunciation was behind being demanded at the day which Rent the Lessor afterwards accepted and afterwards entred for the condition broken and his Entry holden lawful Entry Plow Com. in Browning and Bestons Case for the Rent was due before the condition broken but if the Lessor accepts the next Quarters Rent then he hath lost the benefit of Re-entry for thereby he admits the Lessee to be his Tenant And if the Lessor distrain for Rent due at the said Feast of the Annunciation after the forfeiture he cannot afterwards re-enter for the said forfeiture for by his Distress he hath affirmed the possession of the Lessee So if he make an Acquittance for the Rent as a Rent contrary if the Acquittance be but for a sum of mony and not expresly for the Rent all which tota Curia concessit CCCXLIX 20 Eliz. In the Common Pleas. THe Case was Lessee for life the Remainder for life the Remainder in tail the Remainder in fee The two Tenants for life make a Feoffment in fee. Dyer A woman Tenant for life in Ioynture the Remainder for life the Remainder in fee the Tenants for life joyn in a Feoffment Entry for Forfeiture the Entry of him in the Remainder in fee is lawful by 11 H. 7. And if Tenant for life be impleaded and he in the Remainder for life will not pray to be received he in the last Remainder may and so in our case inasmuch as he in the Remainder for life was party to the wrong he in the Remainder in tail shall enter Which Harper and Munson granted Dyer 339. a. i. e. Manwood Although that this Feoffment be not a Disseisin to him in the Remainder in tail yet it is a wrong in a high degree as by Littleton A Disseisor leaseth for life to A. who aliens in fee the Disseisee releaseth to the Alienee it is a good Release and the Disseisor shall not enter although the Alienation was to his disinheritance Lit. 111. which Dyer granted And if Tenant for life alieneth in fee and the Alienee enfeoffeth his Father and dieth the same descent shall not avail him no more than in case of Disseisin Livery of Seism It hath been objected that this is the Livery of the first Tenant for life and the confirmation of him in the Remainder for life Dyer was of opinion That by this Livery the Remainder for life passeth and this Livery shall be as well the Livery of him in the Remainder as of the Tenant in possession and although where an estate is made lawfully by many it shall be said the Livery of him only who lawfully may make Livery Yet where an estate is wrongfully made it shall be accounted in Law the Livery of all who joyn in it And in this the Remainder for life is extinguished by the Livery in the Feoffee and the Livery of him in the Remainder for life shall be holden a void Livery especially when he joyns with such a person who hath not authority to make Livery As if the Lord and a Stranger Disseise the Tenant and make a Feoffment over the whole Seigniory is
Iustice It was a great offence in the Plaintiff but the same ought to be punished according to Law but the Constable cannot imprison a Subject at his pleasure but according to Law i. to stay him and bring him before a Iustice of the Peace to be there examined Wray If the Defendant had pleaded that he stayed the Plaintiff upon that matter to have brought him before a Iustice of Peace it had been a good Plea. Fennor The justification had been good if the Defendant had pleaded that the Plaintiff refused to carry away the Child so all the Iustices were of opinion against the Plea but they would not give Iudgment by reason of the ill Example but they left the parties to compound the matter CCCCLXIII Cole and Walles Case Pasch 33 Eliz. In the Kings Bench. Ejectione Custodiae lieth not upon a Copy-hold Estate 1 Cro. 224. IN an Ejectione Custodiae the Plaintiff declared that A. was seised of the Manor of D. within which Manor are diverse Copyholds of Inheritance and that the Custom of the Manor is that if any Copy-holder of Inheritance of the said Manor dieth his heir within the age of 14 years that then the Lord of the Manor might grant the custody of his Body and Lands to whom he pleased and shewed that one Clevertie a Copyholder of Inheritance of the said Manor died his son and heir within the age of 14 years Hob. 215. Dyer 302 303. upon which the Lord of the Manor committed the custody of his Body and Lands to the Plaintiff and the Defendant did eject him and upon Not guilty it was found for the Plaintiff It was moved in arrest of Iudgment That this Action would not lye upon a Copyhold estate Quod tota Curia concessit and yet it was said that an Ejectione firmae lieth upon a demise of Copy-hold Land by Lease of a Copyholder himself but not upon a demise by the Lord of the Copyhold Quod fuit concessum and afterwards the Case was moved on the Plaintiffs side and it was said That this was but an Action upon the Case in the nature of an Ejectione firmae and this interest is not granted by Copy but entred only into the Court Roll so it is not an interest by Copy but by the Common Law for the words are Quod Dominus commisit custodiam c. and doth not say in Curia and afterwards Iudgment was given for the Plaintiff CCCCLXIV Bond and Bailes Case Trin. 33 Eliz. In the Kings Bench. Judgment upon a Bond where satisfied before a Statute â— Len. 37â— Roll. 926. BOnd brought a Scire facias against Bailes Administrator of one T. B. upon a Recovery had against the Intestate in Action of Debt The Defendant pleaded That before the said Iudgment given the Testator did acknowledge a Statute Staple to one C. and that the Son was not paid in the life of the Testator nor after and that they have not in their hands any goods of the Intestate beyond what will satisfie the said Statute upon which there was a demurrer in Law. And Coke argued That the Bar is not good for here is not pleaded any Execution upon the Statute and then the Iudgment the Statute being of things of as high nature that of which Execution is sued shall be first served and if this Action had been brought upon a Bond the Plea had not been good for although that Brian saith 21 E. 4. That Recognizances shall be paid by Executors before Bonds yet that it is to be intended when a Scire facias is to be sued upon it otherwise not And 4 H. 6. 8. in a Scire facias upon a Iudgment fully administred at the day of the Writ brought is a good Plea by which it appeareth That if the Executors had paid the Debt upon the Obligation before the Writ brought it had been good See 12 E. 3. Executors 73. in a Scire facias upon a Iudgment in Debt given against the Testator Enquiry shall be what goods the Executors had the day of the Scire facias and he said it was moved by Anderson 20 Eliz. in this Court. In Debt upon a Bond against Executors the Defendant pleaded that the Testator was indebted by Iudgment to A. and that they had not more than to satisfie the same and it was holden no plea if not that he pleaded further that a Scire facias was sued upon it Wray said The same is not Law and there is a difference when the Iudgment is given against the Testator himself and where against the Executors for where Iudgments are given against Executors the Iudgment which was given before shall be first executed but if two Iudgments be given against the Testator he who first sues Execution against the Executors shall be first satisfied because they are things of equal nature and before Suit it is in the election of the Executor which of them he will pay See 9 E. 4. 12. As if two men have Tallies out of the Exchequer he which first offers his Tally to the Officer shall be first paid but before that it is in the choice of the Officer which of them shall be first satisfied and therefore 19 H. 6. If the Lease enrolled be lost the Enrolment is not of any effect and Pasch 20 Eliz. our very case was moved in the Common Pleas in a Scire facias upon a Iudgment given against the Testator the Executor pleaded That the Testator had acknowledged a Statute before not satisfied Ultra quae c. and it was holden no Plea for a Statute is but a private and pocket Record as they called it and 32 Eliz. betwixt Conny and Barham the same Plea was pleaded and holden no Plea. Also if this Plea should be allowed Conny and Barhams Case great mischiefs would follow for then no Debts should be satisfied by the Executors for it might be that the Statute was made for performance of Covenants which Covenants perhaps shall never be broken and afterwards Iudgment was given for the Plaintiff CCCCLXV Crew and Bails Case Trin. 32 Eliz. In the Kings Bench. A Writ of Error was brought upon a Iudgment given in the Common Pleas Error 1 Cro. 216. in a Bill of priviledge brought by an Attorney of the said Court upon an Obligation and upon the said Iudgment issued forth process of Execution upon which the Defendant was Outlawed and the Error was assigned in this That upon that Iudgment process of Outlawry doth not lie for Capias is not in the original Action Priviledge and so was the opinion of the whole Court being upon a Bill of priviledge and the Outlawry was reversed and the Error was assigned in the first Iudgment because there were not fifteen days betwixt the Teste of the Venire facias and the return of it but that was not allowed for it is helped by the Statute of 18 Eliz. cap. 14. CCCCLXVI Wade and Presthalls Case Trin. 30 Eliz. In the Kings
accordingly Vi. 9 H. 7. 23. And the clear opinion of the Court was that the Count was good notwithstanding that exception As to the matter of the Plea the Court doubted of it for the Plea was that the Bishop demanded of the clerk presented his Letters of Orders and Letters Testimonial of his good behaviour and his Letters Missive and he did not shew them but requested of the Bishop the space of a week to satisfie the Bishop in those points which was allowed unto him but he never returned for which cause the Bishop afterwards refused c. And it was said upon that Plea that the Clark who is presented ought to make proof to the Bishop that he is a Deacon and that he hath Orders otherwise by the Statute of 13 Eliz. the Bishop is not bound to admit such Clark Degg 75. but the Statute doth not compel the Clark to shew his Orders for perhaps he hath lost them but how his Orders should be proved it was much doubted Anderson The Bishop may examine him upon oath if he hath Orders or not But as to the Letters Testimonial of his good behaviour and sufficiency the Bishop ought to examine the same himself and if he give day and defer the Admission because he is not resolved therein he is a Disturber if the Clark come to him in a convenient time And the Bishop cannot refuse a Clark for the want of Letters Testimonial CCCXIII. Linacers Case Pasch 33. Eliz. in the Common Pleas. 2 Leon. 96. Co. 5. Rep. 86. IN an Audita Querela brought by Linacer It was said by Anderson chief Iustice That if a man be in execution by his Body and Lands upon a Statute If the Sheriff permit the Conusor to go at Liberty yet the Execution of the Land is not discharged But if he go at large by the consent of the Conusee then the whole Execution is discharged And the Conusor shall have his Land again presently CCCXIV Brownsall and Tylers Case Pasch 33 Eliz. In the Common Pleas. THe Case was that Tenant in tail brought a Writ of Entry Sur disseisin and the Writ was general and it was moved if the Writ was good and 21 H. 6. 26. was vouched where it is holden that the Writ ought to be special scil to make mention of the tail But it was holden by the Court that the general Writ is good enough And then the Count ought to be special Vi. Fitz. 191. CCCXV. Ward and Knights Case Trin. 30. Eliz. In the Kings Bench. IN an Action upon the case the Plaintiff declared Toll 1 Cro. 227. That whereas Lostock parcel of the Mannor of E. in the County of Suffolk is an ancient Town and ancient Demesn of the Crown of England and that time out of mind c. all the men and Tenants of ancient Demesn ought to be quitted of Toll in all places within the Realm for them their Goods and Chattels c. And whereas the Queen by her Letters Patents the tenth of September the nineteenth of her Reign commanded all Mayors Bayliffs Constables c. to permit and suffer the men and Tenants of ancient Demesn to be quit of Toll Murage and other exactions throughout the whole Realm And whereas the Plaintiff was an Inhabitant and Tenant in Lostock aforesaid and such a day and year carried his Goods to Yarmouth in the said County the Defendant not ignorant thereof had taken and carried away a Cable of the Plaintiffs goods of the value of eight pounds for Toll to dis damage c. The Defendant pleaded by Protestation that Lostock was not ancient Demesn and by Protestation that the Tenants of ancient Demesn ought not to be quit of Toll he said That the Town of Yarmouth is an ancient Borough Prescription and that they had been incorporated by the name of Bayliff and Burgesses c. And that they have had time out of mind c. an Officer called a Water-Baly and that time out of mind c. they and their Predecessors have had and taken Toll of the Tenants and Inhabitants of Lostock for any of their goods brought thither to Merchandize with and if it be not paid they have used time out of mind to distrain for it by their Water-Bayly And said that the Plaintiff such a day brought to the said Town of Yarmouth two thousand weight of Cable Ropes to sell for which there was due for Toll six pence for Murage six pence for Thronage four pence and the Defendant being Water-Bayly demanded of the Plaintiff the said sum which he refused to pay for which he took the said Cable nomine districtionis for the said Thronage c. Golding for the Plaintiff the Defendant hath not set forth in himself any authority to demand the duty For he shews that they have used to distrain by their Water-Bayly but not that they have used to demand it by him and it may be that they have several Officers one to demand it and another to distrain for it And always when a man demands a thing against common Right he is to shew authority express in the whole And as to the matter in Law scil The Prescription to have Toll of the Tenants in ancient Demesn it cannot have a lawful beginning As 21 H. 7. 40. The Lord of a Mannor says that he hath had a Pound within his Mannor time out of mind c. And that he hath used to have of every one who breaks his Pound three pounds the same is a void custom to bind a stranger for it cannot have a lawful beginning and see 5 H. 7. 9. b. One prescribed that if any Cattel be taken in such a place Damage Feasant that he might distrain them and put them in Pound until the Owner had made amends at the will of him who distrained them the same is a void Prescription for it cannot have a lawful beginning and time cannot make such a thing to be good The King may grant Tollage Pontage c. but not to the prejudice of another as 22 E. 3. 58. The King cannot grant to one Thorough-toll to pass by Highways for it is an oppression to the people for every High-way shall be common to every one see 16. E. 3. Grants 53. and here the Tenants of ancient Demesn are quit of Toll by the common Law and not by Prescription which see Fitz. 14. and such Tenants have an Inheritance in such Liberties which the King by his grant cannot take away and then if it cannot have a lawful beginning it cannot be good by Prescription also this Prescription is against the Common-wealth therefore it is a void Prescription and the Common-wealth is much respected in Law and things which in themselves are justifiable by reason are not justifiable if they be injurious to others as 21 E. 4. 8 E. 4. 18. Fishers may prescribe to dry their Nets upon the Lands of others and none can prescribe against such a Prescription so here
Entry holden lawful But Error was brought upon it And also Calthrops case was cited to the same purpose 16 Eliz. Dyer 336. This estate limited to Ambrose doth refer to the estate limited to Muriel and Ann and not to the time for ever the first estate is to be respected as 23 Eliz. Dyer 371. He in the Remainder in Fee upon an estate for life deviseth it to his Wife yielding and paying during her natural life yearly 20 shillings and dieth living Tenant for life the Rent shall not begin until the Remainder falleth So as the general words refer to the beginning of the estate although the words imply that the Rent shall be paid presently And see also such construction 9 Eliz. 261. A Lease was made for thirty years and four years after the Lessor makes another Lease by these words Nos dictis 30 annis finitis dedisse concessisse c. Habend tenend a die confectionis praesentium termino praedict finito usque terminum c. And although prima facie the beginning of this Term seems incertain yet the Iustices did respect the former estate and so the Lessee hath the Interest of the Term from the making of the Deed but no estate until the first Term expire Then Ambrose before his age of 21 years levying a Fine the Fine shall not bind the Feoffee for it enures only by way of conclusion and so binds parties and privies but not a stranger And the party needs not to plead against this Fine quod partes to the Fine Nihil habuerunt for that appeareth upon their own shewing Wiat contrary The state of Ambr. accrues and rises when any of the said times come first full age return death for the words are And after the return of Ambrose from beyond the Seas and the age of 21 years or death c. This word or before death disjoyns all and makes the sentence in the Disjunctive and he cited a case lately judged in the Common Pleas A Lease was made to Trewpeny and his Wife for one hundred years if he and his Wife or any Child or Children betwixt them begotten should so long live the Wife died without Issue the Husband held the Land c. for the Disjunctive before Child made the sentence Disjunctive Gawdy Iustice That had been Law if no such word had been in the Case And Wiat said That although the return be incertain yet it is certain enough that he shall come to the age of 21 years or dye And also this is by way of use which needs not to depend upon any estate and if the Remainder shall vest presently upon his return then it would be doubtful what Remainder it is if it be a Remainder depending upon the estate for the life of Ann and Muriel or for years i.e. until Ambrose shall come of the age of 21 years But be it incertain yet the Fine is good for here is a Remainder in Ambrose and both are but particular estates and there is not any doubt but that one may convey by Fine or bar by Fine such contingent uses for which see the Statute of 32 H. 8. All Fines to be levied of any Lands intailed in any wise to him that levieth the Fine or to any his Ancestors in possession reversion c. which word use goes to contingent uses for at the time of the making of that Statute there was no other use Fenner Iustice remembred the Case adjudged M. 30 31 Eliz. betwixt Johnson and Bellamy 2 Len. 36. which ruled this Case Gawdy Iustice Here is a certainty upon which the Remainder doth depend i. e. the death of Ambrose but the Case had been the more doubtful if no certainty at all had been in the Case Atkinson contrary Here the Lord Vaux is Tenant for life the Remainder to George in tail now when the Lord Vaux levies a Fine this is a forfeiture and then the Entry of George is lawful It hath been objected on the other side that this Remainder was future and contingent and not vested therefore nothing passed to George by Ambrose The words are quousque Ambrose shall return This word quousque is a word of Limitation and not of Condition and then the Remainder may well rise when the Limitation hapneth It hath been said that this Remainder is contingent and then the Remainder which is to vest upon a contingency cannot be granted or forfeited before that the contingent hapneth And he cited the Case of 14 Eliz. 314. Dyer A Fine is levied to A. to the use of B. for life the Remainder to E. in Tail the Remainder to B. in fee. Proviso That if B. shall have Issue of his Body that then after such Issue and 500 l. paid to c. within six months after the birth of such issue the use of the said Lands after the death of the said B. and the said six months expired shall be to the said B. and the heirs of his body And it was holden that before the said contingent hapneth B. had not any estate tail for there it was incertain if the said contingent would happen but in our case the contingents or some of them will happen or run out by effluxion of time and that makes the Remainder certain in Ambrose And he also argued that the Limitations are several by reason of the Disjunctive and the last part of the sentence and that the said sentence is in the Disjunctive appeareth by the subsequent words which of the said days or times shall first happen And then the return of Ambrose for that first hapned vests the Remainder in him and therefore the Plaintiff ought to be barred Buckley contrary The estate of the Daughters doth depend upon a Copulative i.e. the return of Ambrose and his full age and both is but one Limitation it is clear that the first Limitation is upon a contingent and the remainder cannot vest until both are performed And as to that which hath been said that there is a certain Limitation i. e. the return of Ambrose 18 Eliz. the Case was Lands were given to Husband and Wife the Remainder to such of them as should survive the other for years the Husband makes a Lease for years and dieth it was holden that although the Limitation was upon a certain estate yet because it is not known in which of the parties the estate secondly limited shall begin the Lease is void So here it is not certainly appointed when the estate limited to Ambrose shall begin upon the return full age or death of Ambrose and he said that here are but two times of Limitation first return and full age second death return and full age determines the estate of the Daughters and also the death if it shall first happen and if these three times shall be construed in the Disjunctive 2 Len. 2â— the same would overthrow the estate of the Daughters which is an estate for years determinable upon the death of themselves or Ambrose
shewed our matter scil That we have Letters Patents of the Queen and that we were sworn in the said Office and so we are King of Heralds by matter of Record against which is pleaded only matter in defect of ceremony and circumstance which is not material An Earl is created with the ceremonies of putting a Sword broad-wise about his Body and a Cap with a Coronet upon his Head. Yet the King may create an Earl without such ceremonies And may also create an Earl by word if the same be after Recorded when a Knight is made Spurs ought to be put upon his Heels yet without such ceremony such degree may be conferred to and upon another for such ceremonies are or may be used or not used at the Kings pleasure Afterwards it was objected that the same is but a name of Office but not a name of Dignity To which it was answered that this word Coronamus always imports Dignity and this is a Dignity and Office as Earl Marquess c. Fenner Iustice The Patent is Nomen tibi imponimus and therefore Garter is parcel of his Name And therefore he ought to be Indicted by such Name And it should be hard to tye Estate and Degrees to ceremonies Gawdy was of opinion That this is but a name of Office and therefore the Indictment good as 1 Mar. Writ of Summons of Parliament issueth without these words Supream Head and the Writ was holden good for it is not parcel of the Name but addition only So here Fenner and Wray contrary for the words are Creamus Coronamus Nomen imponimus Ergo part of his Name which Clench also granted and afterwards Dethick was discharged CCCXXXVIII Strait and Braggs Case Pasch 32 Eliz. Rot. 318. In the Kings Bench. IN an Action of Trespass 2 Len. 1â—9 for breaking his Close in H. the Defendant pleaded that long before the Trespass the Dean and Chapter of Pauls were seised of the Manor of C. in the said County of H. in Fee in the Right of their Church and so seised King Edward the Fourth by his Letters Patents Dat. An. 1. of his Reign granted to them all Fines pro licentia Concordandi of all their Homagers and Tenants Resiants and Non-resiants within their Fee and shewed that 29 Eliz. A Fine was levied in the Common Pleas betwixt the Plaintiff and one A. of eleven Acres of Lands whereof the place where is parcel and the Post-Fine was assessed to 15 s. and afterwards Scambler the Forain Opposer did allow to them the said 15 s. because the said Land was within their Fee And afterwards in behalf of the said Dean and Chapter he demanded of the Plaintiff the said fifteen shillings who refused to pay it wherefore he in the Right of the said Dean c. And by their commandment took the Distress as Baily c. for the said 15 s. and afterwards sold it upon which the Plaintiff did demur in Law. It was moved that it is not averred that the Land whereof the Fine was levied was within their Fee but they say that Scambler allowed it to be within their Fee and the same is not a sufficient Averment which the Court granted And it was the opinion of the Court that the Dean and Chapter cannot distrain for this matter but they ought to sue for it in the Exchequer as it appeareth 9 H. 6. 27. In the Dutchess of Somersets Case Gawdy This Grant doth not extend to the Post Fine for Fine pro licentia Concordandi is the Queens Silver and not the Post Fine Wray All shall pass by it for it is about one and the same matter and they were of opinion to give Iudgment for the Plaintiff CCCXXXIX Sherewood and Nonnes Case Trin. 32 Eliz. Rot. 451. In the Kings Bench. Covenant IN an Action of Covenant the Plaintiff declared that Charles Grice and Hester his Wife were seised of certain Tenements calle Withons with divers Lands to the same appertaining and of another parcel of Land called Dole containing eight Acres to them and the heirs of the body of the said Charks on the body of the said Hester his wife lawfully begotten and so seised 15 Eliz. leased the same to the Defendant by Indenture for years by which Indenture the Lessor covenanted that the Lessee should have sufficient House-boot Fencing-wood and Hoop-wood upon the Lands during the Term and that further the Lessee covenanted for him his Executors and Assigns with the Lessor c. That it should be lawful for them to enter upon the Lands during the said Term and to have egress and regress there and to cut down and dispose of all the Wood and Timber there growing leaving sufficient House-boot Fencing-wood and Hoop-wood to the Lessee upon the Lands called the Dole for his expences at Withons and further that he would not take any Wood or Timber upon the Premisses without the assent or assigment of the Lessor or his Assigns otherwise than according to the Indenture and true meaning thereof And further declared That the said Charles and his Wife so seised levied a Fine of part of the Land to R. S. and his heirs to whom the Defendant attorned and that the said R.S. afterwards devised the same to I. his Wife the now Plaintiff for years the Remainder over to another and died and that the Defendant had felled and carried out of the Lands called Withons twenty loads of Wood without the assent and assignment of the Lessor or his Assigns for which the Plaintiff as Assignee brought the Action The Defendant pleaded That after the Lease John Grice and others by assignment of Hester had cut down and carried away fifty loads of Wood in the said Lands called the Dole and so they had not left sufficient Woods for his expences at Withons according to the Indenture for which cause he took the said twenty loads of Wood upon Withons for his expences upon which the Plaintiff did demur in Law. Godfrey The Plea is not good This Plea is no more but that sufficient Wood was not left upon the Dole for his expences and although there be not yet the Defendant cannot cut Wood elsewhere for he hath restrained himself by the Covenant Also the Covenant of the Lessor is That the Lessee shall have sufficient Wood upon the Dole for his expences at Withons but in his satisfaction he doth not alledge that he had need of Wood for to spend at Withons nor doth aver that he hath spent it there for otherwise he hath not cause to take c. And the meaning was that the Lessee should have sufficient Wood when he had need of it Hobart for the Defendant He would not speak to the Plea in Bar but he conceived that the Declaration was not good for here no breach of Covenant is assigned for the Covenant is in the Disjunctive scil That the Defendant should not take Wood without the assent or assignment of the Lessor or his Assigns And the Plaintiff
afterwards that this murder is dispunishable notwithstanding the Statute of 2 Ed. 6. CCCLXIV The Queen and Braybrooks Case Pasch 25 Eliz. In the Kings Bench. 3 Co. 1 2 c. THe Queen brought a Writ of Error against Braybrook The Case was this That King Ed. 4. was seised of the Manor of Marston and gave the same to Lionel Lord Norris and A.M. and the Heirs of the body of the Lord the Remainder to H. Norris in Tail L and A. entermarry L. suffered a common Recovery against himself only without naming the said A. Hen. Norris is attainted of high Treason by Act of Parliament and by the same Act all his Lands Tenements Hereditaments Rights Conditions c. the day of the Treason committed or ever after c. Hen. Norris is executed Lionel dieth without issue the Queen falsified the said Recovery for one moiety by Scire facias because Anne who was joint-tenant with Lionel was not named party to the said Recovery and afterwards the Queen granted to the Lord Norris Son of the said Hen. Norris Manerium suum de Merston omnia jura in eodem and now upon the said Recovery the Queen brought a Writ of Error and it was argued by Egerton the Queens Sollicitor that this right to a Writ of Error is such a right as is transferred to the Queen by the Act of Parliament for the words are omnia jura sua quaecunque and here is a right although not a present right yet a right although in futuro so it is a right of some quality as A. Tenant in Tail the Remainder in Tail to B.A. makes a Feoffment in Fee B. is attainted of high Treason and by such Act all his Lands c. given to the King. A. dieth without issue the Queen shall have a Formedon in the Remainder and although the Queen hath granted to the Lord Norris Manerium suum de Merston omnia jura in eodem yet by such general words a Writ of Error doth not pass which See 32 H. 8. Br. Patents 98. And also this Action rests in privity of record and cannot be displaced from thence but by Act of Parliament see Br. Chose in Action 14. 33 H. 8. for when the King will grant a thing in Action he ought in his Patent to recite all the circumstances of the matter as the Right and how it became a Right and because the Queen here doth not make mention of this Right as of the Entail the Recovery and the Attainder for that cause the Right doth not pass The Case betwixt Cromer and Cranmer 8 Eliz the Disseisee was attainted of Treason the Queen granted to the Heir of the Disseisee all the Right which came unto her by the Attainder of his Ancestor nothing passed Causa qua supra And always where the King grants any thing which he cannot grant but as King that such a grant without special words is to no purpose Coke contrary he agreed the Case put by Egerton for at the time of the Attainder B. had a Right of Remainder but in our Case Hen. Norris had not any Right but a possibility of a Right of Action i.e. a Writ of Error And he said that this Writ of Error is not forfeitable for it is an Action which rests in privity no more than a condition in gross as a Feoffment in Fee is made upon condition of the party of the Feoffor who is attainted ut supra This word Right in the Act of Attainder shall not transfer this Condition to the Queen and of the Act of Attainder to Hen. Norris it is to be conceived That the makers of the Act did not intend that by the word Right every right of any manner or quality whatsoever should pass to carry a Condition to the Queen and therefore we ought to conceive that the makers of the Act did not intend to touch Rights which rested in privity And as to the Grant of the Queen to the Lord Norris of the Mannor of Merston Et omnia jura sua in eodem he conceived that thereby the Right of the Writ of Error did pass for it is not like Cranmers Case but if in the said Case the Land it self had been set down in the Grant it had been good enough as that Cranmer being seised in Fee of the Manor of D. was there of disseised and so being disseised was attainted of high Treason now the Queen grants to his Heirs totum jus suum in his Manor of D c. and so in our Case the Queen hath granted to the Lord Norris Manerium suum de Merston omnia jura sua in eodem c. at another day it was moved by Plowden that this Right of Writ of Error was not transferred to the Queen by the Act but such Right might be saved to a stranger c. the words of the Act are omnia jura sua and this word sua is Pronomen possessionis by which it is to be conceived that no Right should pass but that which was a present Right as a Right in possession but this Right to a Writ of Error was not in Hen. Norris at the time of his Attainder but it was wholly in him against whom the erroneous Iudgment was had and therefore if in a Praecipe quod reddat the Tenant vouch and loseth and Iudgment is given and before Execution the Tenant is attainted by Act of Parliament by words ut supra and afterwards he is pardoned the Demandant sueth for Execution against the Tenant now notwithstanding this Attainder the Tenant may sue Execution against the Vouchee and afterwards Wray chief Iustice openly declared in Court the opinion of himself and all his companions Iustices and also of all the other Iustices to be That by this Act of Parliament by which all Lands Tenements Hereditaments and all Rights of any manner and quality whatsoever Henry Norris had the day of his Attainder or ever after Lionel then being alive and over-living the said Hen. Norris that this Writ of Error was not transferred to the Queen And that the said Act by the words aforesaid could not convey to the King this possibility of right for at the time of the Attainder the Right of the Writ of Error was in Lyonel and Hen. during the estate tail limited to Lyonell had not to do with the Land nor any matter concerning it And Iudgment was given accordingly And it was holden That he in the Reversion or Remainder upon an Estate tail might have a Writ of Error by the common Law upon a Recovery had against Tenant in tail in Reversion CCCLXV Mich. 25 26. Eliz. In the common Pleas. Copy-holder IN Trespass brought by a Copy-holder against the Lord for cutting down and carrying away his Trees c. It was found by special Verdict That the place where c. was Customary lands of the Plaintiffs holden of the Defendant and that the Trees whereof c. were Chery Trees de
If now because the Tithes are not expresly named in the Habendum the Grantee shall have them for life only was the Question It was moved by Popham Attorney General That the Grantee had the Tithes but for life and to that purpose he cited a Case adjudged 6 Eliz. in the Common Pleas A man grants black Acre and white Acre Habendum black Acre for life nothing of white Acre shall pass but at will and in the argument of that case Anthony Browne put this case Queen Mary granted to Rochester such several Offices and shewed them specially Habendum two of them and shewed which in certain for forty years It was adjudged that the two Offices which were not mentioned in the Habendum were to Rochester but for life and determined by his death And so he said in this Case The Tithes not mentioned in the Habendum shall be to the Grantee for life and then he dying his Executors taking the Tithes are Intrudors But as to that It was said by Manwood chief Baron That the cases are not alike for the Grants in the cases cited are several intire and distinct things which do not depend the one upon the other but are in gross by themselves But in our Cases The Tithes are parcel of the Rectory and therefore for the nearness betwixt them i. the Rectory and the Tithes the Tithes upon the matter pass together with the site of the Rectory for the term of twenty years and Iudgment was afterwards given accordingly CCCLXXXI The Lord Darcy and Sharpes Case Pasch 26 Eliz. In the Common Pleas Mich. 27 28 Rot. 2432. Debt THomas Lord Darcy Executor of John Lord Darcy brought Debt upon a Bond against Sharpe who pleaded that the Condition of the Bond was That if the said Sharpe did perform all the Covenants c. contained within a pair of Indentures c. By which Indentures the said John Lord Darcy had sold to the said Sharpe certain Trees growing c. And by the same Indentures Sharpe had covenanted to cut down the said Trees before the seventh of August 1684. and shewed further That after the sealing and delivery of the said Indenture the said Lord Darcy now Plaintiff Razure of Deeds 11 Co. 27. caused and procured I. S. to raze the Indenture quod penes praedict Querentem remanebat and of 1684. to make it 1685. and so the said Indenture become void And the opinion of the whole Court was clear against the Defendant for the razure is in a place not material and also the razure trencheth to the advantage of the Defendant himself who pleads it and if the Indenture had become void by the razure the Obligation had been single and without Defeasance CCCLXXXII Rollston and Chambers Case Pasch 28 Eliz. In the Common Pleas. Costs where Damages are given 2 Len. 52. ROllston brought an Action of Trespass upon the Statute of 8 H. 6. of forcible Entry against Chambers and upon Issue joyned it was found for the Plaintiff and Damages assessed by the Iury and costs of suit also and costs also de incremento were adjudged And all were trebled in the Iudgment with this purclose quae quidem damna in toto se attingunt ad c. and all by the name of Damages It was objected against this Iudgment that where damages are trebled no costs shall be given as in Wast c. But it was clearly agreed by the whole Court That not only the costs assessed by the Iury but also those which were adjudged de incremento should be trebled and so were all the Presidents as was affirmed by all the Prothonotaries and so are many Books 19 H. 6. 32. 14 H. 6. 13. 22 H. 6. 57. 12 E. 4. 1. And Book of Entries 334. and Iudgment was given accordingly And in this case it was agreed by all the Iustices That the party so convicted of the force at the suit of the party should be fined notwithstanding that he was fined before upon Indictment for the same force CCCLXXXIII Jennor and Hardies Case Hill. 29 Eliz. In the Common Pleas. Intrat Trin. 27 Eliz. Rot. 1606. THe Case was Lands were devised to one Edith for life upon condition that she should not marry and if she died or married Devises that then the Land should remain to A. in tail and if A. died without Issue of his body in the life of Edith that then the Land should remain to the said Edith to dispose thereof at her pleasure And if the said A. did survive the said Edith that then the Lands should be divided betwixt the Sisters of the Devisor A. died without Issue living Edith Shutleworth Serjeant Edith hath but for life and yet he granted That if Lands be devised to one to dispose at his will and pleasure without more saying That the Devisee hath a Fee-simple but otherwise it is when those words are qualified and restrained by special Limitation As 15 H. 7. 12. A man deviseth that A. Goldsb 135. Shepherds Touch-stone 439. shall have his Lands in perpetuum during his life he hath but an estate for life for the words During his life do abridge the Interest given before And 22 Eliz. one deviseth Lands to another for life to dispose at his will and pleasure he hath but an estate for life And these words If A. dieth without Issue in the life of Edith That then the Lands should remain to Edith to dispose at her pleasure shall not be construed to give to Edith a Fee-simple but to discharge the particular estate of the danger penalty and loss which after might come by her marriage so as now it is in her liberty And also he said That by the Limitation of the latter Remainder i. That the Lands should be divided betwixt the Daughters of his Sister the meaning of the Devisor was not that Edith should have a Fee-simple for the Remainder is not limited to her Heirs c. if A. dieth in the life of the said Edith for the Devisor goeth further That if A. overlives Edith and afterwards dieth without Issue that the said Land should be divided c. Walmesley contrary And he relyed much upon the words of the Limitation of the Remainder to Edith Quod integra remaneat dictae Edithae and that she might dispose thereof at her pleasure Ante 156. for the said division is limited to be upon a Contingent i. if A. survive Edith but if Edith survive A. then his intent is not that the Lands should be divided c. but that they shall wholly remain to Edith which was granted by the whole Court and the Iustices did rely much upon the same reason and they were very clear of opinion That by those words Edith had a Fee-simple And Iudgment was given accordingly Anderson conceived That it was a Condition but although that it be a Condition so as it may be doubted if a Remainder might be limited upon a Condition yet this devise is as