the Rent is gone If I make a Lease for Life reserving a Rent to me and my Executor neither the Executor nor the Heir shall have the Rent Justice Walmsley held this difference in making a Lease to two during their Lives if one die the other shall have it otherwise it is if it be made to one during the Life of two and one of them die in this case the Lease is ended and there is difference between a reservation of Rent and Lease for Reservation is according to the will and pleasure of the Lessor and Justice Walmsley said if a Lessee for years granteth a Rent to A. during the Life of B. and C. this Reservation is good although one should die which Sir Edward Cook denied and Judgement was given for the Plaintiff in Hills case If I make a Lease for years reserving a Rent and then I grant demise and to farm let Reversionem domus for years and the Rent to have and to hold the Reversion and the Rent from a time past if the Lessee cannot get an Attornement yet it is a good Lease in Reversion and shall take effect after the end of the first Lease habendum terram habendum reversionem est terra revertens and no difference If the Husband with his own money purchaseth for his Wives Joynture Land to them and the Heirs of their two Bodies the Remainder in Fee to the Wife and they have Issue two Sons and the Husband dieth and the Wife suffereth a Recovery to the use of the youngest Son the eldest Son notwithstanding shall have the Land by the Statute of Joyntures Hill 6. Jac. If I set-out my Corn and after take it away the Parson may sue me in the Spiritual Court or bring an Action of Trespass against me but if the Parson sue in the Spiritual Court a stranger for taking away the Tithes which were set out this is a Praemunire in the Parson Tenant at will shall pay his Rent when he holdeth over his terme but Tenant at sufferance shall not pay any Rent if a man hold over his terme and pay his old Rent he shall be accounted Tenant at will For one joynt Debt for one Contract you cannot plead Nil debet for part and demur for the rest for he pleads Nil debet and the matter in Law is reserved Licet saepius requisit is a sufficient Request upon a Bond because it is a Debt Unto an Action brought against a man upon a Bond pleads Denis age the case was this that when the Obligation was sealed and delivered the Defendant was of full age but at the time when the Bond bore Date he was under age and at the Assises the Judge there ruled that at the time of making the Bond was when the Bond was sealed and not when it bore Date The Court were of opinion that where a Bishop holds Land discharged of Tithes and he makes a Feofment of the Land the Feoffee shall be discharged of Tithes and the like if the King hath ancient Forest-land discharged of Tithes and the King grants this Land the Grantee is discharged of Tithes and it is a general Rule that he which may have Tithes may be discharged of Tithes If I let Land for years reserving Rent if I command one to put his Cattle into the Land I cannot distrain them for my commandement is a wrong and an Action of case will lie against the commandor If I make a Lease and bid the Tenants cut down the Trees yet I may have an Action of waste against my Lessee In Sir Cheydens case the commandment to take Possession was void unless he had commanded him to expell the Tenant and then he might joyn either to distrain or bring an Action of Debt for the Lease was made by him and two more 28 H. 8. If I make a Lease to the Husband and Wife covenant to do no waste or repair Houses and the Husband dieth and the Wife surviveth and holdeth in if the Wife commit waste or not repair the House no Action lieth against the Wife but to such a Lease the Wife is tied to pay the Rent or to perform a condition made by the part of the Lessor but not observe or perform Covenants of the Lessee Pasch 10. Jacobi The Court much doubted whether one that had a Park and was used to pay one Shoulder of Deer for all manner of Tithes and the Park is dis-parked should now pay Tithes in kinde or not For Wooll and Lamb no Action upon the Statute for not setting out of Tithes for they are no predial Tithes and no Action lies upon this Statute for small Tithes An Administration granted durand minori aetate execut is not within the Statute of 21 H. 8. And by the Civil Law the Judge may after Administration by him granted revoke it and grant it to another And if an Administration be granted to a Feme Covert yet she shall sue in their Court as a Feme sole One Briefly married an Administratrix and entred into Bonds for the Intestates Debts and afterwards the Wife leaveth her Husband and refuseth the Administration and it was granted to another and now B. prayeth a Prohibition for that he may be sued for Debts and denied by the Court untill he be sued This Administration was first granted by Doctor B. and after by him revoked and a new granted by him to the Wives Brother and afterwards he revoked that and established the first Administration and the Appeal A Feofment in Fee by Deed indented Rent reserved it is good but without Deed cannot reserve Rent If Land be devised by three upon condition to pay them 100. l. equally to be divided and one of them dieth his Executor or Administrator shall have the Money and so it is if one were bound to pay Money The Commissary granted Administration of the Intestates Goods to the Wife and did make a Divident of his Estate to some of the rest of his Kindred and this was-held not to be warranted by Law and more then the Ordinary could do because the Administratrix is chargeable to pay all Debts and Promises of the Intestate and to bring up his Children which she cannot do if the Goods be taken away Vbi delinquit ibi punietur If a Copy-holder of Inheritance accept a Lease for years of his Copy-hold the Copy-hold is gone by the opinion of the whole Court If a Legacy be granted of Land this shall not be sued for in the Spiritual Court but if one by Will devise Land to be sold for payment of Legacies this shall be sued for in the Spiritual Court by the opinion of the whole Court If two Fulling-mils be under one Roof and a rate-tithe paid for the Mils and after you alter these Mils and make one a Corn-mill your Rate is gone and you must pay Tithes in kinde or if you have but one
lie by the Heir for pulling down the Coat-Armor c. of his Ancestors set up in the Church A Pew cannot belong to a House Fraud shall never be intended except it be apparent and found and that conveyance which at the time of the making was good shall never by matter ex post facto be adjudged to be fraudulently made for before primo Eliz. at the Common Law A conveyance made for natural affection without valuable consideration is not to be avoided none shall avoid it but such as come in upon valuable considerations Lands devised to one in Tail upon condition that he shall not alien and for Default of such the Remainder to R. in Tail this is a Condition and no Limitation by the whole Court and the Heir at the Common Law may enter for the Alienation Matters of instance which are between party and party as for Tithes and Matrimony are not to be dealt withall by the high Commissioners if they proceed inverso ordine that cannot be holpen in the Common Pleas but by superior Magistrate if they be Judges of the cause If one in Norfolk come within another Dioces and commit Adultery in another Dioces during the time of his residence he may be cited in the Dioces where he committed the Offence although he dwell out of the Dioces by Cook Warburton and Winch. If the King grant Lands to A. and his Heirs Males and doth not say of his Body he is but Tenant at will Tamen quaere A Deputy of an Office for Bribery cannot make his Master be punished corporally but pecuniarily equity shall not barr me of the benefit of Law Note the Probate of Wils and Administrations did not belong to the Ordinary originally but to the Common Law If two Aliens be at Issue the Inquest shall be all English but if between an Alien and Denizen that Inquest shall be de medietate Linguae 21 H. 6. 4. A Judgement given against a dead person is not void but Error 28. Ass 17. A Juror was committed to the Fleet For making his Companions stay a whole Day and a Night having no reason for it and without the Assent of any of the rest of his Fellows and after was bailed but not untill the Court was advised 8 E. 3. 75. In a Writ of Estate Probanda every Juror ought to be of the Age of 42. years If I grant Land to one and his Heirs in the Premises of the Deed Habendum to him and the Heirs of his Body he shall have the Land in Tail and the Fee-simple after the State in Tail when the Estate is certain in the Premises the Habendum shall not controll it If one make two Executors one of seventeen years of Age and the other under Administration during the minority is void because he of seventeen years old may execute the Will of Administration during the minority in such case be granted and the Administrator brings his Action the Executor may well release the Debt Pigot and Gascoins case If a Record go once to Triall and warning given if the first Attorney be alive the Plaintiff is not tied to give warning again but if the Attorney be dead he is If no place of Payment be in a Will which appointeth Money to be paid there must be a Request to pay the Money for he is not bound to seek all England over for him otherwise it is if it were by Bond. In every case where the Plaintiff might have Judgement against the Defendant there if the Plaintiff be non-suit the Defendant shall have his Costs if the Plaintiff be non-suit TRin. 11. Jac. In cases of remitting causes from the inferior Judge the Arch-deacon cannot remit the cause to the Arch-bishop but he must remit it to his Bishop and he to the Arch-bishop It was held by the Court that one might distrain for a Legacy In a special Verdict the Plaintiff must begin to argue first OLive versus Hanmer A Writ of Error was brought upon a Judgement by Nil dicit for want of a Warrant of Attorney and the Record certified and a Certior are to the Clerk of the Warrants and Error assigned for want of a Warrant And the Court was moved that a Warrant might be filed and it was granted and a Warrant filed accordingly Pasch 12. Jac. An Action was brought against Baron feme and an Attorney appeared for the Husband alone and the Court held it was the Appearance of Baron feme in Law PAsch 12. Jacobi Sheriff versus Whitsander One Judgement was confessed in Trin. 42. Eliz. rotulo 504. And afterwards in Trinity Terme 43. Eliz. the Defendant brought a Writ of Error bearing Date the 12. of May Anno 43. and upon that Writ the Record was certified 25. May and afterwards Error was assigned in the upper Bench for want of a Warrant of Attorney by the Defendant And Mich. 43. 44. Eliz. the Warrant of Attorney was received and entred upon Record by Order of Court of Common Pleas. And the like was Pasch 2. Jac. rotulo 1956. Int. Bathgrone and Smith and the like Mich. 1. Jac. rotulo 1306. Inter Smith Kent CRane versus Colpit Question was whether the Attornement of an Infant be good or not and by the whole Court it was held good by three Reasons First he gives no Interest Secondly it is to perfect a thing Thirdly he is a Free-holder IT was held in the case of Gage an Attorney who as an Administrator brought an Action of Priviledge that his Priviledge ought not to be allowed And after a Bill was filed against Drury an Attorney as Executor and held that the Bill would not lie but in both cases the Suit should be by Original BEarbrook versus Read The name of Confirmation must stand for Sir Francis Gawdy was christened Thomas and confirmed Francis by that name he must be called SIr Henry Compton was sued for Cloathes of his Wife bought without his command or privity and the whole Court were of opinion that if the Wife should buy Merchandises and thereof make Cloathes and wear those Cloathes although the Husband know nothing of them yet he shall pay for them PAsch 10. Jac. The Court was moved to know whether the Wife of a Bankrupt can be examined by the Commissioners upon the Statute of Bankrupt and they were of opinion she could not be examined For the Wife is not bound in case of high Treason to discover her Husbands Treason although the Son be bound to reveal it therefore by the Common Law she shall not be examined An Infant shall not be examined If an Administration be granted to one during the minority of two Infants and one of them dieth the Administration continueth still Actions of Debt LOvelace versus Cocket Mich. 6. Jac. rotulo 1001. Action of Debt brought upon an Obligation for the Paiment of Money at a
goes to issue upon it for if they discend to issue upon such a Plea and it be found against the Defendant it is peremptory and he shall loose the Land but upon demurrer it is not peremptory but onely to answer over Which mark VVOrkley versus Granger Mic. 5. Jacobi An Ejectment brought for two Houses and certain Lands c. And upon a speciall Verdict The case was one Heâ— Wels and his wife nere seised of a parcel of Land to them and the Heirs of their bodies begotten as for the joynture of the wife the remainder to the Heirs of the Husband in Fee the Husband bargains and sels the Land to Stamp and his Heirs in Fee And afterwards the Husband and one Winter leavie a Fine of that Land to another who grants that Land back again to Winter for one month the remainder to the husband and wife and the heire of their bodies to be begotten the remainder to the husband and his heirs The Husband dyes the Wife survives and makes a Lease to the Defendant for ninety nine yeers if she should so long live the woman dyes and the Plaintiffe claims under the bargainee and in this Case two points were debated First what Estate passed to the bargainee and Digges of Lincolnes Inne who argued for the Plaintiffe that the bargainee had a Fee simple determinable which issued out of both the Estates as it was held by Periam in Alton Woods Case And he said that the Proclamations upon the Fine are but a repetition of the Fine as it is held in Bendlones Rep put in the Case of Fines in Cooks 3. Rep. And see Pinslees Case for then for the same cause the Issue in tayl is bound although the Fine be levied by the Husband alone by the Statute of the 4. H. 7. and 32 H. 8. because he cannot claim but as Heir to the Father as well as to the Mother and therefore his Conveyance is bound and see 16. E Dyd 332. Husband and Wife Tenants in speciall tayl The husband is attainted of Treason and executed having Issue the woman dyes the Issue shall never have the Land And if husband and wife Tenants in speciall tayl And the Husband levies a Fine to his own use and devises the Land to his wife for life which remainded over rendring Rent the husband dyes the woman enters pays the Rent and dyes the Issue is barred for two causes first by the Fine which had barred his Conveyance of the intayl secondly by the Remitter waived by the Mother 18 Eli Dyer 531. See 5 H. 7. Assise Thorp and Tirrels Case Secondly the Lease made by the woman was determined by her death and it was said that the woman had not any qualitie of an Estate tayl but onely she might take the profits during her life within the Statute of 11 H. 7. And when she dyes the Estate is denised See Austens Case Doctor Wyat Tenant in tail leased for yeers And dyed without Issue the Lease was determined See first of Eliz title Executors And 31 H. 8. Dyer Where a Bishop made a Lease for yeers and afterwards makes another Lease to one of the Lessees c. And Fleming held that if the woman survived as under Tenant in speciall tayl and made a Lease for 21. yeers it is out of the Statute of 32 H. 8. and so it was adjudged in Wattes and Kings Case LAne versus Alexander Hill 5. Jaco The Plaintiffe declares in Ejectment upon a Lease made to him by Mary Planten for three yeers the Defendant saies c. that the Land is Copihold Land of the Mannor of H. in Norff. whereof the Queen Eliz was seised in Fee and long time before the Lessor had any thing there in Court such a day that J. S. her Steward at the Court c. granted the Land to the Defendant by Copie in Fee according to the custome and so justifies his entry upon the Plaintiffe The Plaintiffe replies and saies that long time before the Copy granted to the Defendant to wit at a Court of the Mannor held such a day the 43. Eliz the Queen by Copy c. granted the Land to the Lessor for life according to the custome by force whereof he entred and made a Lease to the Plaintiffe The Defendant by way of rejoynder maintained his barr and traverses with that the Queen at the Court of the Mannor by J. S. her Steward such a day c. granted the Land to the Lessor and upon this the Plaintiffe demurred in Law generally And Yelverton moved that the traverse was good in this Case upon the day and Steward and the difference is where the act done may indifferently be supposed to be done on the one day or the other there the day is not traversable as in the Case of a Deed made such a day there the day of the Deed is not traversable for it passes by the livery and not by the Deed. And the livery is the substance and the day but a bundance 10 E. 4. And the Law is the same if the day in trespasse wherein the day is not traversable For although it be done upon another day it is not materiall But when a man makes his title by an especiall kinde of Conveyance as in this case the Plaintiffe makes his title by one Copy there all that is concerned in the Copy is materiall and the party cannot depart from it for he claims not the Land by any other Copy but by that which is pleaded as is in the 18 H. 6. 14. where an Action is brought for taking his Servant and counts that he by Deed retained with him his Servant the Monday in one week in such a case it is a good plea for the Defendant to say that the Servant was retained by him such a day after without that that the Plaintiffe did retain him the Monday And the Law seems to be concerning Letters Patents wherein the day and place are traversable being the speciall conveyance of the party from which he cannot depart And also it seems that although the day in the principall case be traversed yet the Statute of 18 Eliz of Demurrers aids it it being but a generall Demurrer and the day being onely matter of form But the whole Court were of opinion that the day was not traversable in this case For the Queen granting an ancienter Copy to the Plaintiffs Lessor then to the Defendant and the traverse should have been without this that the Queen did grant in manner and form c. to the Plaintiffs Lessor and the Case is the same in the Letters Patents for there the traverse should be without this that the Queen granted in manner and form c. And the day and place shall not come into the traverse But Justice Fennor was of a contrary opinion for the Reason delivered by Yelverton before and he also and the Lord cheif Justice held it to be holpen by the Statute of 18 Eliz for it is but
BAnks against Barker Hill 12. Jac. rotulo 1979. In an Action of Trespass the venire facias was well awarded upon the case of the venu in Westown and of the Mannor of D. and the Writ of Venire was mistaken to wit of the venu of Westown and exception being taken after tryall the Court was moved for the amending of the venire facias by the roll and it was denyed because the Jury did come of another venu then they ought by the Law of the Land to come and therefore could not be amended but afterwards the Court seemed to be of an opinion that the awarding of the venu in the roll was mistaken because it was of the venu of the Villiage and Mannor and it should have been of the Mannor only being to try a custome of the Mannor FOrrest against Headle Hill 13. Jac rot 1123. An Action of Trespass brought and a continuando of the Trespass unto the day of the shewing forth the Plaintifs Originall to wit the 20. day of November which day was after the shewing forth of the Originall and because the Jury gave damages for the whole time which ought not to be it was proved that the Judgment upon the verdict might stay but by the whole Court the videlicet was held idle and Judgment given for the Plaintiff COcks against Barnsley Hill 10. Iac. rotulo 2541. An Action of Trespass brought and a speciall verdict found and the question was whether Land held in ancient Demesne was extendable for debt and an action of Trespass brought for that cause And Justice Nichols held it was extendable for otherwise if it should not be extendable there would be a fayler of Justice for if a Judgment should be had against a man that had no other Land but what was in ancient Demesne and that it could not be extendable there would be a fayler of Justice which the Law doth not allow of but an Assize or a re-disseisin doth not lye of Land in ancient Demesne because of the Seisin that must be given by the Common Law and it would be prejudicial to the Lord which the Law allows not and Wynch and Hubbard were of the same opinion For ancient demesne is a good plea where the Free-hold is to be recovered or brought in question but in an action of Trespass it is no plea. And note that by this execution neither the Free-hold nor Possession is removed but only the Sheriffe enters to make execution upon a Judgment had in the Common bench in debt which is a proper Action to be brought there WRight and his Wife against Mouncton Hill 12. Iac. rotulo 43. An Action of Trespass brought to which the Defend pleaded not guilty And the Husband only made a challenge that he was servant to one of the Sheriffs and prayes a processe to the Coroners and the Defendant denies the challenge and therefore notwithstanding the challenge the Venire issued to the Sheriffs and after a tryall exception was taken because the woman did not joyne in the challenge and it was held that the Husband and Wife should joyn in the challenge although the cause of challenge proceded from the Husband only but after tryall it was helped by the Statute of Ieofailes and judgment given for the Plaintiff BIde against Snelling Hill 16. Iac. rotulo 1819. An Action of Ejectment brought and also a Battery in one and the Writ and after a verdict it was moved in Arrest of Judgment because the Battery was joyned with the Ejectment The damages were found severally and the Plaintiff had released the damages for the Battery and prayed Judgment for the Ejectment Winch held the Writ naught but Judgment was given for the Plaintiff notwithstanding STeward and his Wife against Sulbury An Action of Trespass brought wherefore by Force and Armes the Close of the Wife while she was sole at D. hath broken and the wood of the said D. to the value of 1005. there lately growing hath cut down and carried away and in his Count shews that he hath cut downe two acres of wood and exception was taken because he declared of so many acres of wood and not of so many loads of wood to wit twenty c. loads and held by the Court to be a good exception BLackeford against Althin Trin. 14. Jac. rotulo 3376. An action of Trespass brought wherefore by Force and Armes a certain Horse of the said Plaintiffs took away c. The Defendant conveys to himselfe a certain annuity granted to him by one John Hott The Plaintiff shews that one William Hott Father of the said Iohn Hott the Grantor was seised of Land in Fee which Land was Gavel-kind Land and devised it to his Wife for life the remainder to Iohn Hott the Elder and Iohn Hott the Younger his Sonne and the Heirs of their bodies And afterwards William dyed and the Woman entred and was seised for life and the two sonnes entred and were seised in tayl and being so seised Iohn Hott the younger had issue Iohn Hott c. and traverses without this that Iohn Hott the Father at the time of granting the annuity was seised of the Tenements aforesaid with the appurtenances in his Demesne as of fee as c. And the Defendant as before saith that the said J. H. the Father at the time of the granting the annuity aforesaid was seised and after the tryall it was moved in Arrest of Judgment supposing it was mistried because the issue was that the said J. H. the Father at the time of the grant c. And it doth not appear that the said J. H. was nominated Father neither could it appear that the said J. H. was the Father and so the word Father was idle and the Court were of opinion that it was helped by the Statute of Ieofailes and the word Father was idle and judgment was given for the Plaintiff A. brought an Action of Battery against the Husband and Wife and two others the Wife and one of the others without the Husband pleads not guilty and the Husband and the other pleaded seu assault demesne and tryed and alledged in arrest of Judgment because the Woman pleaded without her Husband and Judgment was stayed and a Repleader alledged and this case was confirmed by a case which was between Yonges and Bartram HArvy against Blacklole Trin. 8. Jacobi rotulo 1749. An Action of Trespass brought wherefore by force and Armes his Mare so strictly to a Gelding did fetter that by that fettring the Mare aforesaid did dye If a stranger take a Horse that cometh and strayeth into a Mannor the Lord may have his action of Trespass If my stray doth stray out of my Mannor and goeth into another Mannor the day before the yeare be ended I cannot enter into the other Mannor to fetch out the stray If I take an Horse as a stray and onother taketh him from me the Action lyeth not by the Owner against the second taker
any private Prison And it seemes if any do against this Statute that an action of false Imprisonment lies For every one ought to be committed to the Common Goal to the intent that he may be dilivered at the next Goale delivery and also if any be committed to any of the Counters in London unlessthat it be for debt that an action of false Imprisonment lieth for that for these are private Prisons for the Sheriffes of London for Debt only Note in Debt for ten pound the Defendant confesseth five pound and for the other five pound pleades that he oweth nothing by the Law and at the day the Plaintiff would have been nonsuited And it was agreed by all that if he be nonsuited that he shall loose all as well the debt confessed as the other Note the yeare of the Reigne of the King was mistaken in the Record of nisi prius but the Record which remaines in the Court was very well and it was amended For insomuch that it was a sufficent and certaine Issue this was sufficent Authority to the Justices of nisi prius to proceed but nothing being mistaken but the yeare of the Reigne this shall be amended for it is only the misprision of the Clark see Dyer 260. 24 25. 9. Eliz. 11. H. 6. Note also if Tenant in Dower be disseised and the Disseisor makes a Feoffment the Tenant in dower shall recover aâ—l their dammages against the Feoffee for she is not within the Statute of Glocester chapter 1. By which every one shall answer for their time Hillary 8. Jacobi 1611. in the Common Bench. Reyner against Poell See Hillary 6. Jacobi fol IN second deliverance for copy-hold in Brampton in the County of Huntington the case was copy-hold Lands were surrendered to the use of a woman and the Heires of her Body and she took a Husband the Husband and the Wife have Issue 2. Sonnes and after Surrenders to themselves for their lives the remainder to the eldest Son and his Wife in fee the Husband and the Wife dye the eldest Son dies the youngest Son enters and Surrenders to the use of a stranger And the sole question upon which they relied if the Wife was Tenant in tayl or if she had fee simple conditionall and it was argued by Nicholls that the Wife was Tenant in tayl and to prove that he cited 2. cases in Littleton where it is expresly mentioned who may be Tenant in tayl see Sect. 73. 79. And who may have a Formedon see in the discender sect 76. And he grounded that upon reason for that that it cannot be denied But that fee simple might be of copy-hold according to the custome and as well as fee simple as well it may be an estate tayl for every greater containes his lesse and he said that this is grounded upon the reason of other cases as if the King grant to one to hold Plea in his Court of all actions of debt and other actions and then one action of debt is given in case where it lieth not at the common Law yet the Grantee may hold Plea of that But if a new action be framed which was not in experience at the time of the grant but is given after by Statute the grant shall not extend to that and to the Objection that copy-hold is no Tenement within the Statute of gifts c. As to that he saith that that shall be very well intended to be within the Statute as it is used and 4. H. 7. 10. A man makes a gift in tayl by deed the Donee hath an estate tayl in the deed as well as in the Land so Morgan and Maxells case Commentaries 26. And so of Office Honour Dignity and copy-hold also and Dyer 2 and 3. Phil And Mary 114. 61. It is found by speciall verdict that copy-hold Lands have been devisable by copy in tayl and so it is pleaded 2 and 3 Eliz. Dyer 192. b. And when a lesser estate is extracted out of a greater that shall be directed and ordered according to the course of the Common Law and for that the Wife shall have plaint in nature of a Cui in vita and 15. H 8. b. Title Tenement by copy of Court Roll it was said for Law that tayl may be of a copy-hold and that Formedon may well ly of that in descender by protestation to sue in nature of a Formedon in descender at the Common Law and good by all the Justices for though that Formedon in descender was not given but by Statute Yet now this Writ lieth at the Common Law and shall be intended that this hath been a custome time out of mind c. And the Demandant shall recover by advise of all the Justices and the like matter in Essex M. 28. H. 8. And Fitz. affirms that in the chamber of the Dutchy of Lancaster afterwards and also he saith that when custome hath created such Inheritances and that the Land shall be descendable then the Law shall direct the discent according to the Maximes and Rules of the Common Law as incident to every estate discendable and for that shall be possessio Fratris of a copy-hold estate 4. Coke 22. a. Brownes Case b. And there 28. a. Gravener and Tedd the custome of the Mannor of Allesley in the County of Warwick was that copy-hold lands might be granted to any one in fee simple and it was adjudged that a grant to one and the Heires of his Body is within the Custome for be that Estate Tayl or Fee simple conditionall that is within the Custome So he may grant for life or for yeares by the same Custome for Estate in Fee simple includes all and it is a Maxime in Law to him that may do the greater it cannot be but the lesse is lawfull and over he said that in all cases where a man was put to his reall action at the Common Law in all these cases a copy-holder may have plaint with protestation to prosecute in â—…re of the same action and to the objection that there cannot be an Estate tayl of copy-hold Land for that that the Tenant in tayl shall hold of him in revertion and shall not be Tenant to the Lord to that he said that this Estate may be created as well by Cepit extra manus Domini as by Surrender and then there is not any reversion or remainder but it is as if Rent be newly granted in tayl but he said there may be a reversion upon an Estate tayl as well as upon an Estate for life and he did not insist upon the Custome but upon this ground that if the Custome warrant the greater Estate which is the Fee simple the lesse shall be included in that And he did not argue but intended that it would be admitted that discent of copy-hold Land shall not take away entry nor Surrender of that nor shall make discontinuance so prayed Judgement and â—…rne Harris the youngest Serjeant argued for the Plaintiff that it shall be
shall be said conclusion and agreement within the said Provision and for that as it seemes it is so uncertain as going about but admitting that it is good yet it shall be good but to some purpose but not to restraine the Daughter which was Tenant in taile to do lawfull Acts as to suffer a Recovery or to levy a Fine as it is resolved in Mildmayes case 6 Coke 40. By which it appears that she hath as well power to dispose that by Recovery as of Fee simple notwithstanding that the Reversion remaines in the Giver as it appears by 12 Ed. 4. 3. For all lawfull Acts made by Tenant in taile shall binde the Issue as 44 Ed. 3. Octavian Lumbards Case Grant of Rent for Release of right is good and shall binde the Issue for there are foure incidents to an Estate tayle First That he shall not be punished for Waste Secondly That his Wife shall be indowed Thirdly That the Husband of the Wife Tenant in Tayle shall be Tenant by the Courtisie Fourthly That Tenant in Tayle may suffer common recovery So that a Condition which restraines him so that he cannot suffer a common Recovery is void for it is incident to his act and it is a lawful Act and for the benefit of the Issue as it is intended in respect of the intended recompence and he said that a Feoffment to a woman covert or infant shall be conditionall that they shall not make a Feoffment during their disability is good for that the Law hath then made them disable to make a Feoffment so a Lease for life or years upon condition that he shall not alien is good in respect of the confidence that was reposed in them by the Lessor and so concluded that the Condition in this Case which restraines Tenant in Taile generally from alienation First was uncertain in respect of the words conclude and agree Secondly for that it was against Law so void and for that prayed Judgment for the Defendant Hutton Serjeant for the Plaintiff he argued that the verball agreement of the Wife shall bind her notwithstanding the Coverture for that that this is for her benefit for in performance of the said agreement she suffers a recovery to the use of her selfe and her Heires and so Dockes the remainder and he agreed the cases put by the other part which concerne free-hold but he said in cases of Limitation of Estates as if Limitation be if a Ring be tendred by a woman that the Land shall remaine to her and she takes a Husband and after that she and the Husband tender the Ring this shall be sufficient tender and it shall be intended the Act of the wife and 10. H 7. 20. a. A man devises his Lands to a married woman to be sold she may sell them to her Husband And though that it be not any agreement of the Husband only yet here is an act done in a Precipe brought against the Wife and she vouches over for that is not only an agreement but an Act executed upon which the Estate Limited to the eldest Sister shall take effect and the 2. Coke the 27. a. Beckwiths Case If the Husband and the Wife joyne in a Fine of Land of the Wife the Wife only without the Husband may declare the use of that And he intended it was a Limitation and not a condition and so it might be well at this day in case of devise and then the Act shall be that the Estate is Limited to have beginning being made the Estate of the youngest Daughter which made the Act shall be destroyed and determined for if it be a condition then all the Daughters shall take advantage of that and this was not the intent of the Devisor for they are the parties which should be restrained by the devise from Alienation And also he cited Wenlocke and Hamonds Case cited in Bractons Case 3. Coke 20. b. Where a Copy-holder in fee of Lands devisable in Burrough English having three Sons and a Daughter deviseth his Lands to his eldest Son paying to his Daughter and to his other Sons forty shillings within two yeares after his death the Devisor maketh surrender according to the use of his Will and dieth the eldest Son admitted and doth not pay the money within the two yeares and adjudged that though the word paiment makes a condition yet in this case of devise the Law construes that to a Limitation and the reason is there given to be for that that is it shall be a condition then that shall discend upon the eldest Son and then it stands at his pleasure if the Brothers or Sister shall be paid or not and 29. Assis 17. cytes in Nourse and Scholasticas Case Commentaries 412. b. where a man seised of Lands in Fee devisable deviseth them to one for life and that he should be Chapleine and single for his Soule all his life so that after his decease the sayd tenements should remaine to the Commonalty of the same Towne to finde a Chapleine perpetuall for the same Tenements and dyed and adjudged that this shall not be a condition of which the heir shal take advantage but limitation upon which the remainder shall take effect and also he cyted S. E. Clâ—ers Case 6 Coke 18. a. b. 11 H. 7. 17. Pennants Case 3 Coke 65. a. That if a man makes a Lease for years upon a condition to cease that after the condition is broken grantee of reversion may take advantage of that so he said in the case at the Bar when the first Estate is determined and destroyed by the limitation then he to whom the Remainder is limited shall take advantage of that and not the Heire for as he intended an Estate of Inheritance may as well cease by limitation of devise as tearme as in 15 Ed. 4. Lands are given to one so long as he hath heires of his body the remainder over and if he dye without heires of his body the remainder over shall vest without entry and the Free-hold shall vest in him and 2 and 3. Phil. and Mary Dyer 127. and 56. Fisher and Warrens Case If a man devise Lands to one for life the remainder over upon condition that if he do such an act that his estate shal cease and he in remainder may immediately enter there he in remainder shall take advantage though he be a stranger for that that the Estate determines there without re-entry And he saith that the Case of Wellock and Hamond cyted in Barastons Case was a stronger Case then this for there the limitation was upon Fee-simple and here it is upon an Estate tayle and the Law hath favourable respect to devises as in Barastones Case is alteration of words for the better exposition of that for Shall is altered to Should and also see 16 Eliz. Dyer 335. 29. for the marshalling of absurd words in a Will for the expounding of that and 18 Eliz. Cheekes Case he cyted to be adjudged that
cannot a Copy-holder which hath so base an estate And if this shall be so these mischeifes will insue That is that this base estate should be of better security then any estate at the Common Law for Fine shall not be a Barr of that for it cannot be levied of that also Recovery cannot be suffered of that for there cannot be a Recovery in value neither of Lands at the Common Law neither of Customary Lands for they cannot be transferred but by the hands of the Lord. And to Littleton he agreed and also 4 Ed. 2. which agrees with this where it is said that at Stebenâ—eath a Surrender was of Copy-hold Lands to one and the Heires of his Body but he said that that shall not be an Estate taile for then the Estate hath such operation that this setles a Reversion and Tenure betwixt the Giver and him to whom it is given but this cannot be of Copy-hold Land for this cannot be held of any but only of the Lord and to the others this Estate doth not lye in Tenure and yet he agreed that of some things which did not lye in Tenure Estate Tail may be but Land may be intailed but Copy-hold Estate is so base that an Estate tail cannot be derived out of it so that though that custome may make an Estate to one and the Heires of his Body yet this cannot be an Estate taile but Fee-simple conditionall and also he agreed that they might have Formedon in Discender but it is the same Formedon which was before the Statute as if Tenant in Fee-simple conditionall before the Statute would alien before issue but it was no Estate taile with the priviledges of an Estate taile before the Statute and to the other matter of Surrender that is the admittance of the parties which is an Estate taile that doth not conclude the Court as it appears by the Lord Barkleys Case in the Commentaries where the Estate pleaded severally by the parties is not traversed by any of them and so concludes and prayes Judgment c. And this case was argued again in Trinity Tearme next ensuing by Montague the Kings Serjeant for the Defendant and he said that there are three questions in the case First If Copy-hold land may be intailed Secondly Admitting that it may be intailed if Surrender makes discontinuance Thirdly If it shall be Remitter and to the first he seemed that it might be intailed and that it shall be within the Statute of Westminster 2. And first for the Antiquity of that he said that Littleton placed that amongst his Estates of Free-hold and hath been time out of minde and is a primitive Estate and not derived out of the Estate of the Lord and the Lord is not the Creator of that but the means to convey that after that it is cerated and what is created then shall have all the priviledges and Benefits which are incident to it and shall be nursed by the custome and is time out of minde and the Law alwaies takes notice of it and he cited 24 H. 4. 323. by Hankf Bracton Fitz. Na. Bre. 12 C. and Brownes Case 4. Coke which is not simply an Estate at the will of the Lord but at the VVill of the Lord according to the custome of the Mannor and when it hath gained the reputation of Free-hold then it shall be dircted according to the rules of the Common Law and 2. and 3. P. and Ma. Dier 114. 60. allow Copy-hold Estate to be intailed and he saith That no Statute hath more liberall exposition then the Statute of Westminster 2. 45. Ed. 3. Incumbrance shall not charge the Issue intaile also a Copy-holder shall have a Cui in vita also a Copy-hold is within the Statute of Limitation and so upon the Statute of buying of pretenced rights And it is alway intended when a Statute speakes of Lands and Tenements that Copy-hold Lands shall be within that And he saith That all the Objections which have been made of the contrary part are answered in Heydons Case but he relyed upon that that every reall Inheritance is within the Statute of Westminster 2. 4 Ed. 2. Formedon lyeth of Copy-hold Land 25 Ed. 3. 46. Estate tayle is of a Corrody and office which proves that Copy-hold is a reall Inheritance and for that shall be within the Statute 46 Ed. 3. 21. Gavelkinde Land may be intailed 6 Rich. 2. Avowry 2. 8. Rich. 2. 26. Copy-holder shall be charged with Fees of a Knight at Parliament 22 and 23. Eliz. Dier 373. 13. Lands in ancient Demesne were intayled and he said that the reason is that for that it is Inheritance and time hath applyed them to an Estate and so concluded and prayed Judgment for the Defendant Hutton Serjeant argued for the Plaintiff that Copy-hold Lands cannot be intailed for that is but a customary Estate and the Law doth not take any notice of it but onely according to Custome for there were no Estates tayle before the Statute for then all were Fee simple absolute or conditionall that is either implyed or by limitation which cannot be of an Estate tayle which is not within the Statute of Westminster 2. for no Actions are maintainable by that but those which are by the Custome and a Writ of false Judgment See Fitzherberts Natura brevium 12. 13 Ed. 3. F. Prescription 29. that it hath no Incidents which are incident to Estates at the Common Law without Custome as Dower See Revetts Case and so is Tenancy by the Curtesie and there shall be no discent of that to take away Entry and so of other derivatives And he seemed that it is not within the Statute for three reasons apparent within the Statute First That it is hard that Givers shall be barred of their reversions but in case of Copy-holds the Giver hath no remedy to compell the Lord to admit him after the Estate tayle spent but onely Subpena and in this Case the Lord may releive himselfe for the losse of his services for that the Statute provides no remedy for him Secondly That the Statute doth not intend any Lands but those of which there is actuall reversion or remainder and those which passe by Deed so that the will of the Giver expressed in the Charter may be observed and of which there may be a subdivision as Lord Mesne and Tenant for there shall be alwayes a reversion of the Estate tayle and the Donee shall hold of the Donor and not of the Lord. Also it seems that the Statute doth not intend to provide for any but those for whom the VVrit in the Formedon ordained by the Statute lyes and agreed that for Offices and such like Formedon lyeth if the party will admit Estate tayle to be discontinued Also the Statute intends those things of which a Fine may be levyed for the Statute provides that the Fine in his owne right should be nothing but by Copy-holder Fine cannot be levied and for that he shall not be within the
are to be recovered agreement is a good Plea as in 47. Ed. 3. 24. and 10. Ed. 3. in Debt upon a Lease for yeares concord is a good Plea and 7. Ed. 4. 23. in Detinue for charters it is a good Plea and in 6. Ed. 6. Dyer 75. 25. it is a positive rule that in all Cases and Actions in which nothing but amends is to be recovered in Dammages there an agreement with an execution of that is a good Plea and for that in Detinue it shall be a good Barr So in Covenant it was adjudged in Blakes Case 6. Coke 43. 6. As where an Obligation is with a Condition to pay money at such a day the payment of another thing is good if the Obligation be to pay a certaine Sum of money But if a man be bound in a Sum of money to make another Collaterall thing the acceptance of an other thing Collaterall shall not be a Barr for money is to the measure and the price of every thing if a man be bound in two Horses to pay one acceptance of another thing shall be no Barr But the acceptance of such a Sum of money in satisfaction is good Barr for this is the just Estimation and measure of every thing see 12. H. 4 Where a man was bound in an Obligation with Condition that he shall make acknowledgement of the Obligation of twenty pound to the Obligee before such a day c. And agreements are much favoured for it is a Maxim and Interest of the Common-Wealth that there be an end of suits for by Concord small thing increase and by Discord great things are consumed and the beginning of all Fines is Et est Cordia talis c. and the 11. of Rich. 2. Barr. 242. In Debt upon a Lease for yeares the Defendant pleads that by the same Deed by which the Land is let the Plaintiff grants that the Defendant ought to repaire the houses lett when they are ruinous at the costs of the Plaintiff and he retaines the Rent for the repaire of the houses being ruinous and a good Barr And if it be a right of Inheritance or Free-hold that cannot be barred or extinct by acceptance of another thing though it be of other Land as of another Mannor as it is agreed in Vernons Case 4. of Coke A woman accepts Rent out of the Land of which shee is not Dowable in recompence of her Dower this shall not be a Barr 5. Ed. 4. 22. 3. Eliz. Dyer and he said that the book of 11. H 7. 13. is misprinted insomuch that it is reported to be adjudged But in truth this was not adujdged for then it would not say in 13. H. 7. 20. the residue before 11. H. 7. 13. And in the 16. of H. 7. warranty it is agreed that in wast against Lessee for yeares Agreement is a good Plea otherwise if it be against Lessee for life And if they have adjudged 11. H. 7. 15. which was so small a time before they would not have adjudged the contrary in 16. H. 7. and Hillary 6. Ed. 6. Bendlowes in wast against Lessee for yeares in the Tenet Agreement is affirmed to be good Barr And in the book of Reports in the time of H. 7. printed in time of H. 8. the yeare of the 11. of H. 7. there was no print at all And he then upon that inferrs that as well as a man might agree for Trees so well might he agree for Tearme and to the booke of 9. H. 5. 15. a. That release of one Plaintiff in an Action of wast is a good Barr he said that this is to be understood in wast of the Tenant and then it shall be a good Barr see in the 12. of Ed. 4. 1. a. Two joyne in an Action of wast and the one was summoned and severed the other recovered the halfe of the place wasted and in the 26. H. 6. 8. Agreement is a good Barr in an Action of wast and he intended that in all Actions by force and Armes where a Capias lies at the Common Law Agreement or Arbitrement are good Pleas as Ravishment of Ward which is given by Statute in lieu of Trespasse for taking of a Ward where a Capias lies at the Common Law and Agreement was a Bar and for that now Agreement shall be a Barr in Ravishment of a Ward And he intended that an Ejectione Firme which is Trespasse in his nature and the Ejectment is added of later times And in all their Entries this is entred Trespasse and severs the Trespasse from the Ejectment and the Ejectment will vanish and the Statute of 4. Ed. 3. chap. 6. which gives Action to Executor of goods carried away in the life time of the Testator extends to that which proves this to be Trespasse for by the Statute the Executors may have Ejectione Firme for Ejectment made to their Testator notwithstanding that ancient Demesne is a good Plea in that and in the 44. Ed. 3. 22. That is called an Action of Trespasse and so all the Entries are De Placito Transgressionis and in the book of Entries in Mayhme it is cited to be adjudged 26. H. 6. Trin. Rot. 27. that concord is a good Plea in an appeale of mayne 35. H. 6. 30. But in an Action in the realty it is no Plea otherwise in Quare Impedit for there nothing is to be recovered but that which is personall and he intended that Agreement by one of the Defendants in personall Action is a good Barr as in 36. H. 6. Barr concord made by the freind of one of the parties was a good Barr Statham Covenant accordingly and 35. H. 6. 〈◊〉 7. H. 7. One of the petty Jury in Attaint pleads agreement and good and in an Ejectione Frime Lease made to try Title is not within the Statute of buying of Titles if it be not made to great men but to a Servant of him which hath the Inheritance and cannot mainetaine or countenance the Action and Bracton fol. 220. Lessee for yeares hath three remidies if he be evicted that is Covenant Quare Ejecit infra Terminum against the Feoffee of the Ejector or an Ejectione Firme against the Immediate Ejectors and in Ejectione Firme the Tearme shall be recovered as 12. H. 4. 1. H. 5. and 11. H. 6. 6. Non-Tenure is a good Plea in Ejectione Firme ergo the Tearm shall be recovered 7. Ed. 4. 6. 13. H. 7. 21 and 14. H. 7. It is adjudged that the Tearme shall bee recovered in Ejectione Firme and so he concluded that the agreement shall be a good Barr because Wise men seeke peace Fooles seeke strifes And that Judgement shall be given for the Defendant which was done accordingly Mâ—hcaelmass 1611. 9. Jacobi in the Common Bench. Mallet against Mallet LANDS were given to two men and to the Heires of their two Bodies begotten and the one died without Issue and the remainder of the halfe reverted to the Donor and he brought an Action of wast
Lessee for years or life surrender before the performance of the condition the Fee doth never increase as it is 14. H. 8. 20. and the Lord Chandois Case 6 Coke But the Estate tayl remaines after the condition performed and then hath the Fee dependant upon the Estate tayl and that there is a necessity that there shall be an office as it was in Nicholls Case in the Com because of the right and that after the condition performed then the Fee shall vest Ab Initio and this corporates together partly by the Letters Patents and partly by the performance of the condition and so it is in Butler and Bakers case that it is not a Grant in futuro but one immediate Grant to take effect In futuro see 2. H. 7. for the execution of Chantrey and Grendons Case in the Com. and 2. H. 7. If the King grant Land to J. S. for life the remainder to the right Heires of J. R. which is in life the remainder is good as well as in case of a common person and so he seemed that Judgement shall be given for the Plaintiff Walmesley Justice agreed that it shall be remainder and not reversion as if Lands begin to the Husband and the Wife and to the Heires of the Body of the Husband the Husband dies this is a remainder in the Heires Males and not a reversion for it cannot grow higher and it was not in the King as one distinct Estate before the Grant and Formedon in remainder lieth for it and though it be misrecited yet it shall be good and ayded by the Statute of Misrecitalls and grant of a thousand is suffered to convey the reversion of a thousand by the common Law and if the recitall were that it was a reversion depending upon the Estate tayl it was good without question and the King may grant five hundred reversions if he will and that the last Damus is ex certa scientia et mêre motu nostris Damus et concedimus that if the Patentee pay twenty shillings Tunc sciatis quod nos de ampliori gracia ea certa scientia et mero motu nostris concedimus c. and that the word Volumus will amount to a Covenant or a Release as 32. H. 6. The King by his Patent by these words Nolent that he shall be impleaded and this amounts to a release and so words which intends expresly words of Covenant may be pleaded as a Grant in case of the King as it is 25 Ed. 4 So is a common person license another to occupy his Land this amounts to a Lease of Land if the time be expressed so if a man grants to another that he shall have and injoy his Land to him and his Heires that by that Fee passeth And if the King grant reversion to begin at Michaelmasse the Grant is void for that it is to begin totally at Michaelmasse and doth not looke back to any precedent thing But if it relate to any precedent Act then that shall be good by relation and shall passe ab Initio see Com. Walsinghams Case 553. b. that in such case the performance of the condition divests the Estate out of the King and there is no difference in this case betwixt the King and a common person and agreed in the case of Littleton Where a man makes a Lease for yeares upon condition to have Fee that the Fee shall not passe till the condition be performed and with this agrees 2. R. 2. But if a man makes a Charter of Feoffment upon condition that if the Feoffee injoy the Land peaceably for fifteen years that the Feoffment shall be void In this case the Fee-simple determineth by the performance of the Condition and in this case the Fee passeth ab Initio by the Livery as in 10. Assise 18. Assise 1. 44. Assise 49 Assise And he agreed that the words Habeat et Teneat the Reversion passes and this is good Fee-simple and this refers to the first Damus et Concedimus and so concluded that he seemed that Judgement shall be given for the Plaintiff Coke cheife Justice accordingly and he conceived that there are two questions upon the substance of the Grant And to the first objection that hath been made that is that reversion was granted and increase of an Estate cannot be of a reversion and in all these cases which have been put they are of an Estate in possession and so is the case of Littleton also and he agreed that it shall not be good if it be not good ab Initio that though there be not other words then Reversionem predictam That it shall be good And to the second point upon the former He conceived that the Grant is but a Grant and that the condition is but precedent Limitation when the Estate of Fee-simple shall begin and so it is said by Montague in Colthurst and Brinskins Case in the Com. And further he saith that there are four things necessary for increasing an Estate First that it ought to be an Estate upon which the increasing Estate may increase Secondly the particular Estate ought to continue for otherwise it is grant of a reversion in Futuro Thirdly That the Estate which is to increase ought to vest by the performance of the Condition for if there be disturbance that it cannot then vest then it can never vest Foutthly that both the Estates as well the particular Estate as the Estate which is to increase ought to have their beginning by one self same Deed or by diverse Deeds delivered at one self same time And to the first and to prove that he cyted 44 Ed. 3. Attaint 22. Lessee for yeares upon condition to have Fee granes his Estate the Fee doth not increase upon the performance of the condition for then it shall passe as a Reversion and so the particular Tenant surrenders his Estate as it is sayd 14. H. 8. For if the Privity be destroyed the Fee will never increase but there is no such â—ycity but that if the substance of the Estate remains though it doth not remain in such form as it was at the first Reversion the Estate may well increase as if Lands be given to the Husband and wife and to the Heirs of the Husband upon the Body of the Wife to be begotten the Wife dies and the Husband is Tenant after possibility of Issue extinct yet he may well perform the condition for the Estate remaines in substance and with this agrees 20 H. 6. Ayd and so it is if a Lease be made to two for years upon condition to have fee one dies the other may perform the Condition and shall have Fee-simple as it is agreed by 12. Assise 5. the reason is that the privity remaines and the Estate also in substance Thirdly As to that also it seems that it ought to vest upon the performance of the condition which is the time limited for the beginning of the Estate and if it do not vest
for the intent of a Will must be certain and agreeable to Law and there must not an intent out of the words of the will be sought out and the whole Court held that the Plaintiff was barred YOung versus Radford Pasch 10 Jacobi Rotulo 1515. Action upon an Ejectment brought and the Jury found a speciall Verdict and the Case was that Elizabeth Rudford was possessed of a house full thirty years and she took a Husband the Husband and Wife morgage the Term the Wife dies and the Husband redeems the Land and marries another wife and then dies and makes his Wife Executrix and she maries the Lessor The Defendant takes Administration of the Goods of the first Woman and it was held void and Judgement for the Plaintiff PEttison versus Reel Pasch 12 Jacobi Rotulo 2350. An ejectment brought and Triall and Verdict for the Plaintiff and exception taken in arrest of Judgement to the Venire Facias because this word Juratum was omitted for the Writ was posuerunt se in illam and omitted the word Juratum and this was amended by the Court. When a Title is to be tryed upon an Ejectment and a Lease to be executed by Letter of Attorney the course is this that the Lessor do seal the Lease onely and the Letter of Attorney and deliver the Letter of Attorney but not the Lease for the Attorney must deliver that upon the Land and upon an Ejectruent brought of Lands in two villages of a house and forty Acres of Land in A. and B. and a speciall Entry in the Land adjoyning to the house to wit the putting in of a Horse which was drove out of the Land by the Defendant and this was adjudged a good Entry for the Land in both the Villages by the opinion of the whole Court ARden versus Mich. 12 Jacobi The Plaintiff delivers that whereas such a day and year at Curdworth in the said County did demise to the Plaintiff two Acres of Land with the Appurtenances in the Parish of C. and the Venire facias was of the Parish of C. and after a verdict exception was taken because it was not of Curdworth but it was adjudged good by the Court and to prove the Lease made Lanheston an Attorney swear that the Lessor sealed the Lease and subscribed it but did not deliver it and by word gave authority to one W. to enter into the Land and to deliver the Lease upon the Land to the Plaintiff as his Deed and by that authority he entred and delivered the Lease as his Deed to the Plaintiff and it was adjudged good MArsh versus Sparry Hill 14 Jacobi Rotulo 1859. An Ejectment brought ex dimissione G. W. and the Originall was made ex divisione and after a Triall Serjeant Hitchaw moved the Court that the Originall might be amended and make ex dimissione and the Court granted it and the Cursitor was ordered to amend it and also in the end of the Originall it was written Barnabiam and it should have been Barnabas and that also was ordered to be amended by the Court. CRadock versus Jones Trin. 14 Jacobi Rotulo 2284. An Ejectment brought upon a Demise made by Cotton Knight the Defendant pleads not guilty and a Challenge to the Sheriff and prayes a Venire facias to the Coroners because the Sheriff is cozen to the Plaintiff and shews how and because the Defendant did not deny it a Venire facias was awarded to the Coroners and after a verdict it was alledged in arrest of Judgement because it was not a principall Challenge and a Venire facias de novo awarded to the Sheriff PArkin versus Parkin 13 Hill Jacobi Rotulo 979. And Ejectment brought and verdict and after a Triall Exception taken to pleading of a Deed inrolled the Action was brought in the County of York and pleaded thus ut infra sex menses tunc proximos sequent coram milite uno Justic c. in West-Riding Com. Eborum ad pacem c. conservand Assign W. C. Clerico pacis ibidem debito modo de Recor. irrotulat and Exception was because the inrollment was not made according to the Form of the Statute because it did not appear that the Justice before whom the Deed was inrolled was a Justice of the Peace of the County of York but of the West-Riding and it was not alledged that the Land did ly in the West-Riding and note that the Defendants Plea in Barr was insufficient because the Defendant did not confesse nor avoid the Count and the Plaintif by his Replication doth not shew any Title to the Land because it did not passe by the inrollment and so he hath lost his Suit and although the Barr be insufficient yet notwitstanding the Plaintif shall not recover GReenely versus Passy Hill 5 Iacobi Rotulo 808. An Ejectment brought the Defendant pleads not guilty and the Jury found it Specially that one Woodhouse was seised of Land in Fee and did infeof the Husband and Wife to have and to hold to the said Husband and Wife and the Heirs of their bodies between them to be begotten by vertue of which Feofment the Husband and Wife were seised of the whole Land in Fee Tail to wit c. the Husband infeofs the youngest Sonne of the land in Fee and afterwards the Husband dies and the woman survives and afterwards she dies before any Entry by her made into the Land and further find the lessor to be the eldest son of their bodies and that the younger Son infeoffed the Defendant and afterwards the eldest Sonne entred into the Land and made the lease in the Declaration and whether the Entry of the eldest Son was lawfull or no was the question upon the Statute of 32 H. 8. that Fines or Feoffements made by the Husband c. during coverture be or make any discontinuance c. or be hurtfull to the said wife or her Heirs and Sir Edward Cook held that the Heir is not barred of his Entry by the Statute PAcy versus Knollis Trin. 6. Iacobi Rotulo 291. An Ejectment brought the Defendant pleaded not guilty and the Jury found it Specially and the question is upon the words of the Will to wit And I give to Katharine my Wife all the Profits of my Houses and Lands lying and being in the Parish of Billing and L. at a certain street there called Broke-street and the Jury found that there was not any Village or Hamlet in the said County called Billing and that the Land supposed to be devised lieth in Byrling-street no mans verbal Averment shall be taken or admitted to be contrary to the Will which is expresly set out in the Will If I have two Thomas to my Sonnes and I give it to Thomas it shall be intended my youngest Son because my eldest Son should have it by Discent the Will was held by all the Court to be good HEllam versus Ley Trin. 7. Jacobi rotulo 2718.
31 H. 8. of Monasteries which gives the Houses dissolved to the King but in the same degree and qualitie as the Abbot had them And the Abbot was charged with the power given by himself and so was the King Which mark VVAnto versus Willingsby Pasch 5. Jacobi The Bishop of Exceter in the time of H. 8. by his Deed gives Land c. to Nicho Turner and by Bill his Cousin in consideration of service done by Turner and for other considerations him moving to them and the Heirs of their bodies and dyes They have Issue Jo. and William N. T. dies and Sybill marries Clap. and they alien the Land to Iohn in Fee Sybill and Iohn leavie a Fine to Walther in Fee of the Land And afterwards Sybill infeoffes William her younger Son who infeoffes Willinghby Io enters and leaseth to Walther and Willingby for the tryall of his title seals a Lease to ward who declares of so many Acres in Sutton Cofeild And the Jury upon a not guilty pleaded foundby the Verdict that the Bishop gave the Tenements aforesaid by his Deed the tenor of which Deed follows c. And by the Deed it appeared that the Lands did lye in Little Sutton within the Lordship of Sutton Cofeild And notwithstanding the Plaintiffe shall recover For first it was held not to be any Joynture within the Statute of 11 H. 7. for it is not any such gift as is intended by the Statute for the Bishop was not any Ancestor of the Husband and the Husband took nothing by that but it was a voluntary recompence given by the Bishop in reward of the service passed And the Statute intended a valuable confideration And also the Bishop might well intend it for the Advancement of the woman who appeared to be Cozen to the Bishop And Tanfeild held if the woman were a Doneâ— within the Statute of 11 H. 7 she could be but for a moyetie for the gift was before the marriage and then they took by moyeties And the Baron dying first the woman came not to any part by the husband but by the course of Law as survivour But quaere of this conceit for the other Judges did not allow it And secondly they held that the Fine of Io. the elder Son of Sybill levied to Walther destroyed the entry of Io. and of Walther For although in truth the Fine passed nothing but by conclusion yet Io. the Son and Walther his Conusee shall be estopped to claim any thing by way of forfeiture against that Fine on the womans part then any title accruing after the Fine For they shall not have any new right but Io the Son upon whom the Land was intayled is barred by the Fine Thirdly although upon view of the Deed made by the Bishop the Land which by the Declaration is layed to be in Sutton Cofeild by the Deed appears to be in Little Sutton yet this is helped by the Verdict by which it is found expresly that the Bishop gave the Lands within written and therefore being so precisely found the Deed is not materiall Which mark KNap versus Peir Iewelch Pasc 5. Jacobi An Ejectment brought for Lands in Wiccombe which were the Deans and Chapters of Chichester And in this case it was agreed by the whole Court that if it be a Corporation by prescription it is sufficient to name them by that name they are called And the Court held that if a man demands Rent upon the Land to avoid a Lease upon a condition the Demand ought to be made in the most open place upon the Land The Dean and Chapter of Chichester made a Lease to one Raunce the Lessee of the Defendant of Lands in Wiccombe rendring Rent payable at the Cathedrall Church of Chichester upon such a condition it was agreed by the whole Court that the Demand ought to be made in the Cathedrall Church of Chichester although it was of the Land Leased And the Demand ought to be made at the setting of the Sun the last instant of that day and when he made his Demand he ought to stand still and not walk up and down for the Law did not allow of walking Demands As Pipham said and he ought to make a formall demand And because those whom the Dean and Chapter did send to make the demand of Rent said bear witnesse we are come hither to demand and receive such Rent it was held by the Court that such a demand was not good And they held the demand ought to be made at that part of the Church where the greatest and most common going in is And in this case it was said by Popham that if a man make a Lease to one for yeers to commence at a day to come and then he lease to another for yeers rendring Rent upon a condition to commence presently And he enter And the first Lease commence and he enter the Rent and Condition reserved upon the second Lease is suspended A man leases for years rendring Rent after he leaseth to another to commence at a day to come and the first Lessee attorns the second shall not have the Rent reserved upon the first Lease by Popham but he doubted of it And Popham and Tanfeild held none contradicting that the Letter of Attorney made by the Dean and Chapter to demand their Rent was not good because the Letter of Attorney was to make a general demand on any part of the Land which the Dean and Chapter had leased And that ought to have been speciall onely for that Land And secondly it was to demand Rent of any person to whom they had made a Lease And the Letter of Attorney ought to be particular and not generall of any person TOmpson versus Collier Mich. 5. Jacobi The Plaintiffe declares upon a Lease of Ejectment made by Robinson and Stone of one Messuage and fourty Acres of Land in the Parish of Stone in the Countie of Stafford The Defendant imparled tryall another Terme and then pleads that within the Parish of Stone there were three Villages A. B. and C. And because the Plaintiffe hath not shewed in which of the Villages the Land he demanded Judgement of the Bill c. And the Plaintiffe demurred upon this Plea And adjudged for the Plaintiffe For first after an Imparlance the Defendant cannot plead in abatement of the Bill for he hath admitted of it to be good by his entring into defence and by his Imparlance And secondly the matter of his Plea is not good because the Defendant hath not shewed in which of the Villages the House and fourty Acres of Land did lye And that he ought to have done For where a man pleads in abatement he alwayes ought to give to the Plaintiffe a letter writ with mark And the whole Court held that this Plea was not in barr but that he should answer over And Williams Justice took this difference that when a man demurrs upon a Plea in abatement And when he
Exchequer where the Record was would not award the Venire Facias of all the three Villages named in the Record if it did not appear judicially to them that the Close did extend in all the Villages and it doth not appear for parcell if the premises doth not necessarily extend to all the Villages but may well be and so presumed in one Village onely and therefore it is matter of substance And the Judges had not power after their Commission determined to amend the Plea DAvis versus Pardy Mich. 8. Jacobi The Plaintiffe declared of a Lease made by one Cristmas the sixth of May Anno 7. of one Messuage c. In D. by reason whereof the Plaintiffe entered and was possessed untill the Defendant afterwards to wit 18. of the same month Anno sexto supradicto did eject him And not guilty being pleaded a verdict was found against the Plaintiffe And Yelverton moved in Arrest of Judgement to save Costs that the Declaration was insufficient For that Action was grounded upon two things first upon the Lease secondly upon the Ejectment and both those ought to concur one after the other And in this case the Ejectment is supposed to be one year before the Lease made for the Lease is made Anno 7. and the Ejectment supposed to be done Anno 7. 6. And therefore the Declaration naught And Yelverton vouched the case between Powre and Hawkins Anno septimo Termino Pasch Where the Plaintiffe declared upon the Lease of Edw. Ewer 27. April Anno sexto and laid the Ejectment to be 26. April Anno 6. And the Court held then that the Declaration was naught yet in the case in question the Declaration was adjudged good And the word sexto to be void for the day of the Ejectment being the 18. of the same month of May it cannot be intended but to be the same year in which the Lease is supposed to be made by the opinion of the whole Court AYlet versus Chippin Mich. 8. Jacobi The Plaintiffe declares upon a Lease made by John Aylet for one year of certain Land in C. in the County of E. by vertue whereof he entred and was possessed untill the Defendant did eject him The Defendant pleads that the Copihold Land is parcell of the Mannor of D. c. of which one Jo Aylet the Lessors Father was seised in Fee according to the Custome and that he made a surrendor thereof to the use of his Will and by his will devised the Land in question to John the lessor and H. Aylet his sons and to their Heirs Males of their Bodies and willed that they should not enter untill their severall ages of 21 years And further willed that W. B. and H. B. his Executors should have the Lands to perform his Will untill his said Sons Jo and H. came to their severall Ages of one and twenty years c. To which Plea the Plaintiffe replies and confesses the Will but shews further how that such a day and year before the Lease Jo his Lessor attained to his full Age of one and twenty years and entred and made a Lease thereof to him c. To which Plea the Defendant demurred and adjudged for the Plaintiffe For although the Estate to Jo and H. precede in words and the devise to the Executors insues in construction yet the estate to Io Executors precedes in possession And is as if he should have demised the Land untill his Sons Io and H. should attain to their severall Ages of one and twenty years And afterwards to them and their Heirs Males c. to be enjoyed in possession at ther severall Ages so that the Executors have onely a limited estate determinable in time when either Son severally should attain to his full age for his part For so it appears the Devisors intent was that either Son might enter when he attained to the age of one and twenty years And although it was objected by Justice Williams that the two Brothers are joyntenants by the Will and if one should enter when he comes to his full Age the other Brother being under age that would destroy the intent of the devise for then they should not take joyntly but the Court as to that said that the entry of him that attained to his full age doth not destroy the juncture but that they are joyntenants notwithstanding For that entry in the intent of the Devisor was only as to thâ— taking of the the profits and the possession and not as to the estate in joyntenancy and this is proved by 30 H. 6. Devise 12. where a devise was to foure in Fee and that one of them should have all during his life and this was adjudged good and it was as to the taking of the profits onely which observe by the whole Court but Williams RIce versus Haruiston Pasch 10. Jacobi The Plaintiffe declares of a Lease made by Jo. Bull c. The Defendant pleads that the Land is Copihold Land parcel of the Mannor of c. Whereof the King was seised and is seised and that the King by his Steward such a day granted the Land in question to him in Fee to hold at will according to the custome of the Mannor by vertue whereof he was admitted and entred and was seised untill the lessor entred upon him and outed him and made a Lease to the Plaintiffe and then he entred and did eject him c. The Plaintiffe replies that long before the King had any thing in the Mannor Queen Eliz. was thereof seised in Fee in right of her Crown and before the Ejectment supposed by the Defendant by her Steward at such a Court did grant the Land in question by Copy to him in Fee to hold at Will according to the custome of the Mannor who was admitted and entred and further shewed the descent of the Mannor to the King and how the Lesser entred and made a Lease to the Plaintiffe who entred and was thereof possessed untill the Defendant did eject him Upon which Plea the Defendant did demurr because he supposed that the Plaintiffe ought to traverse the grant alledged by the copy of the Defendant in his Barr. But the Court held the replication good for the Plaintiffe had confessed and avoided the Defendant by a former Copy granted by Queen Eliz under whom the King that now is claimed and so the Plaintiffe need not traverse the grant to the Defendant but such a traverse would make the Plea vitious for which see Hilliais Case 6. Rep. And 14 H. 8. Dotknis Case 2 E. 6. Dyer And Brooks title confesse and avoid for as no man can have a Lease for years without assignment no more can a man have a Copy without grant made in Court Which observe SHecomb versus Hawkins Pasc 10 Jacobi The case was in an especial verdict in Ejectment that one Mrs. Luttrel Tenant in fee of the Mannor of L. leavied a Fine to the use of her self for life and after death to
an inquiry of damages between the Plaintiffs and Dawby according to the Award upon the Roll which is the warrant for the Venire facias and it was shewed that the Jury knew nothing of the matter for which they were warned for they ought to have onely given their Verdict against Scullard and not against Dawby and it was likened where two matters are in Issue and they give a Verdict for one and nothing for the other it is naught for all And this was the opinion of the whole Court except Justice Williams who relyed upon 9. Eliz. Dyer Sir Anthony Cook and Wottons Case in partition against two one confessed the Action and the other pleaded to Issue and the Venire facias was to try the Issue between the Plaintifs and the two Defendants and it was amended by the opinion of the Court But marke the difference for no damages are to be recovered in partition but it is otherwise in Trespass and therefore in Cooks Case it was found by the Court that it was as if a meer stranger to the Record had been named in the Venire facias WInckworth against Man Mich. 5. Jacobi The Plaintiff declares for a Trespass in one Acre of Land in D. and abuts that East West North and South and upon not guilty pleaded the Jury found the Defendant guilty in halfe an Acre within written and moved in Arrest of Judgment because upon the matter no Trespass had been found for there is no such moity bounded as the Plaintiff had declared for the whole Acre is onely bounded by the Plaintiff containing his Trespass within those bounds and the Defendant ought to be found a Trespassor within those bounds for otherwise it is not good and it is impossible for the moity of one Acre to be within those bounds But the whole Court except Fenner were of opinion that the Plaintiff should have his Judgement for if the Plaintiff layeth his Action for a Trespass committed in one Acre and the Jury find that onely to be in one foot of it it is good and here they have found the Trespass in the moity of the Acre bounded which is sufficient in this Action where damages onely are to be recovered but if it had been in Ejectment the Verdict had been naught for it is incertaine in what part he should have his Writ of Habere facias possessionem BVckwood against Beale Mich. 5. Jacobi In an action of Trespass it was sayd by the Court That if a Sheriff execute a Capias and there is no Originall to warrant it he is excused it for he is not to examine whether the Originall be sued out or no and for this Trewyrmards Case 38 H. 8. And so if a Bailiff execute a Process made to him by the Steward for damages recovered in the Mannor in a thing in which they had no authority to hold Plea The Bailiff is excused and shall not be punished because he is not to examine the jurisdiction of the Court 7 H. 4. 27. 22 Ed. 3. 22. Ass But if Process come to the Sheriff to arrest J. S. and he arrest J. N. or to make execution of the Goods of J. S. and he make execution of the Goods of I. N. he is a Trespassor for in this Case he must take notice at his perill of the Person and the Goods for when he arrests I. N. or does execution upon his Goods he doth it without warrant And so if I. S. sue a Replevin to the Sheriff to replevin his Cattell and I. S. comes to the Sheriff and shews him the Cattell of I. N. and saith they are his Cattell and he makes replevin of the Cattell he is a Trespassor to I. N. and the Sherif may have an Action of Trespass against I. S. for his false information for the Sherif must at his owne perill take notice whose Cattell they be 3 H. 7. 14 H. 4. but if there be any fraud in the matter he may averr that MOnrey versus Johnson An Action of Trespass brought for entring into a mans House The Defendant pleads that he was a Constable c. And it was held by the whole Court that a Constable may justifie his entry into the House of any man for Felony or Treason STrickland against Thorpe Pasch 6. Jacobi Thorpe brought an Action of Trespass against Strickland wherefore he broke his close the 20. of June 3 Jacobi with a continuance thereof untill the sixth of November after and upon a not guilty pleaded it was found for the Plaintif and Judgment entred but it was entred nothing of the Fine because it is pardoned And upon a Writ of Errour brought he assigned for Errour that the Judgment should have been entred with a Capiatur because the King and Parliament pardoned all offences before the 25. of September and therefore the Trespass being alleadged to have been continued untill the sixth of November following onely part of the Trespass was pardoned and therefore as to that it should have been a Capiatur but the whole Court were of opinion that the Judgment was well entred for the first Trespass which was by force and Armes being pardoned all that depends on that was pardoned and the continuance of the Trespass being onely as to the entring and consuming the Grasse is for increase of damages onely but not for the Kings Fine for the first entry being only with force and Arms makes the Trespass REpps against Bonham Trin. 6. Jacobi The Case in Trespass was that a Feofment was made of three Acres to R. Repps and Mary his Wife for their lives and afterwards to the first second and third Son of the body of the sayd Mary and after to the heirs of the body of the said Mary by the said Richard to be begotten and they had no Son but one Daughter Richard levies a Fine of the Land and Mary dyes the Plaintif enters and the Defendant pleads Richards Fine and adjudged that the Plaintif is not barred by the Fine for Richard had onely an Estate for life and the Estate tayle was in the woman only by the opinion of the five Justices for they said that the Husband is only named to declare what heir of the body of the woman should inherit and not any Heir but such an Heir as Richard her present Husband should beget And if the limitation had been to the Heirs of the body of the woman by her Husband and by I. S. to be begotten the Inheritance had been only in the woman but by the last words for if shee had no Heirs by her Husband and afterwards marries I. S. the Heirs that shee should have by I. S. should inherit And they were all of opinion that the Inheritance was only in the woman because the word Heir which makes the estate of inheritance is annexed only to the body of the woman but if it had been to the Heirs which the Husband should have got of the body of the woman there the
condition to re-enfeoff and she with her Husband makes the re-enfeoffment it is good so a Woman being Lessee for Life and with her Husband attorn upon a Grant of Reversion is good and shall binde the Wife after the Death of the Husband 3 Ed. 3. 42. 4 Ed. 3. Attornment 12. 15 Ed. 3. Attornment also this Estate was made to the Wife when she was sole and for that it shall be accounted her folly that she would take such a Husband that would forfeit her Estate but with that agreed the reason of the Booke of 20 H. 6. 28. Where a woman Tenant was bound by the ceasing of her Husband and so he concluded and prayed Judgment for the Plaintiff and so it was adjourned see another argument of this case in Michaelmas Tearm 9. Jacobi 1611. by Haughton and Nicholls Serjeants Pasch 9. Jacobi 1611. In the Common Bench. Pitts against Dowse IN an Ejectione firme upon not guilty pleaded The Case was this A man makes his Will by these words I bequeath all my Lands to my Son Richard except my Chauntery Lands And I devise all my Chauntery Lands to be devided amongst all my Children men and women alike except my Son Richard And if Richard die without Issue the remainder to A. My second Son the remainder to B. My third Son the remainder to C. My fourth Son the remainder to my next of blood and so from Heire to Heire And so likewise I would to be done upon my Chauntery Lands and Tenements in case all my aforesaid Children die without Issue Then I would the one halfe of my Chauntery Lands to remaine to the next of kin and the other half to the Hospitall of M. And the question was what estate the Heire of the eldest Son shall have in the Chauntery Lands and it was argued by Dodridge the Kings Serjeant that the Heire of the eldest Son shall have estate tayl in the Chauntery Lands the Devisor devises no estate to Richard his eldest Son in the Chauntery Lands nor limitts any estate of that in certaine and for that he seemed that the youngest Sons and Daughters shall be Tenants in Common for life and by this manner of Interpretation every part of the Will shall be for first he excludes Richard himselfe so that he shall have nothing in that and then by the Limitation to the younger Children to be equally divided between them makes them Tenants in Common see 28. H. 8. 25. Dyer 155. And he cited Lewin and Coxes Case to be adjudged Michaelmasse 41. and 42. of Eliz. Pasche 42. Eliz. Rot. 207. Where a man devises Lands to his two Sons to be equally divided and adjudged that they are Tenants in Common so devise to two part and part like and equally divided and equally to be divided is all one and for that there is no other words to make an estate of Inheritance it shall be an estate for life and the remainder shall be directed according to the estates limited of the other Land And he seemed that the words in the last sentence all my aforesaid Children shall extend to Richard his eldest Son as well as to the others and so all the Will shall stand in his force which may be Objected that Richard the eldest Son shall be excluded out of the Possession and for that see 6. Eliz. Dyer 333. 29. Chapmans Case and also he cited one case to be adjudged Trinity 37. Eliz. Rot. 632. betweene Bedford and Vernam where a man deviseth all his lands in Alworth and afterwards purchaseth other Lands in the same Town and afterwards one comes to him to take a Lease of this Land newly purchased which the Testator refused to Let. And said that these Lands newly purchased should goe as his other Lands And upon his Death bed adds a Codycell to his Will but saith nothing of his purchased Lands and adjudged that the purchased Lands shall passe and so concluded and praied Judgement Harris Serjeant that it is a new Sentence and Richard is excluded and it shall be a good Estate tayl to the youngest Children and foresayd Children shall be intended them to which the Chauntery Lands are limited see Ratcliffes case 3. of Coke adjudged that they shall be Tenants in Common by the devise to he equally divided and thall not be surviving but every youngest Children shall have his part in tayl though that the first words do not containe words of Inheritance yet the last words in case all my Children die without Issue declares his intent that they should have an estate tayl see the 16. of Eliz. Dyer 339. 20. Claches Case that when he hath disposed of part devised to Richard then disposeth of the residue and the sentence begins with And so likewise and that shall be intended in the same manner as he had disposed of the Lands devised to Richard for he hath devised the remainder otherwise that is to an Hospitall and so concludes and praies Judgement accordingly Coke cheife Justice saith that it was adjudged between Coke and Petwiches 29. Eliz. that if a man devise a house to his eldest Son in tayl and another house to his second Son in tayl and the third house to the third Son in tayl and if any of them die without Issue the remainder to the other two equally this shall be but for life for this enures to the quantity of the Land and not to the quality of the Estate And he said that Richard is excepted without question for it is but a Will and every of the youngest Sons therein shall have the Chauntery Land one after another and Richard shall have no part and the Chauntery shall have nothing till they all are dead and he likened that to Frenchams Case where Lands were given to one and to his Heires Males and if he died without Issue the remainder over the Issues Females shall not take though that it be if they die without Issue for expresse it makes to cease only and so it was adjourned Petoes Case PEto suffers a common Recovery to the use of himselfe for life the remainder to his eldest Son in tayl with diverse remainders over to the intent that such Annuities should be paid as he by his last Will or by grant declares so that they did not exceed the summ of sixty pound and if any of the said Rents be behind then to the use of him to whom the Rent shall be behind till the Rent be satisfied with clause of distresse Rent of twenty pound was granted to his youngest Son for his life the grantee distraines for the Rent and in Replevin avowes the Plaintiffe replâ—es that by the non-paiment the use riseth to the youngest Son by which it was objected that the Rent shall be suspended Quere if without demand or if the distresse shall be demanded or that the use shall not rise till after the distresse and to the distresse well taken and agreed by all that the Plaintiff shall take nothing by
Mannor held in cheife and of other Mannors and Lands held of a Common person in socage and had Issue foure Sonns Thomas William Humphrey Richard And by his Deed 12 Eliz. covenants to convey these Mannors and Lands to the use of himself for his life without impeachment of wast and after his desease to the use of such Farmors and Tenants and for such Estates as shall be contained in such Grants as he shall make them and after that to the use of his last will and after that to the use of VVilliam his second sonn in tayle the Remainder to Humphrey his third Son in tayle the Remainder to Richard the fourth Sonn in tayle the Remainder to his own right Heires with power of Revocation and after makes a Feoflment according to the covenant and after that purchases eight other acres held of another common person in socage and after makes revocation of the said Estates of some of the Mannors and Lands which were not held by Knights service and after that makes his Will and devises the Land that he had purchased as before and all the other Land whereof he had made the Revocation to Thomas his eldest son the Heirs Males of his body for 500. years provided that if he alien and dye without Issue that then it shall remaine to William his second sonne in tayle with the like proviso as before and after dyed and the Jury found that the Lands whereof no revocation is made exceeds two parts of all his Lands Thomas the eldest sonne enters the 8. Acres purchased as before and dyes without Issue male having Issue a Daughter of whom this Defendant claimes these eight Acres and the Plaintiff claims them by William the second Son And Dodridge the Kings Serjeant argued for the Plaintiff intending that the sole question is for the 8. acres purchased and if the devise of that be good or not by the Statute of 34. H. 8. And to that the point is only a man which hath Lands held in cheife by Knights service and other Lands held of a common person in Socage conveys by act executed in his life time more then two parts and after purchases other Lands and devises those if the devise be good or not And it seems to him that the devise is good and he saith that it hath been adjudged in the selfe same case and between the same parties And this Judgment hath been affirmed by writ of Error and the devise to Thomas and the Heirs males of his body for 500. years was a good estate tayle and for that he would not dispute it against these two Judgments But to the other question hee intended that the devise was good and that the Devisor was not well able to doe it by the Statute of 34. H. 8. And hee intended that the statute authoriseth two things 1. To execute estates in the life time of the party for advancement of his Wife or Children or payment of his debts and for that see 14. Eliz. Dyer and that may be done also by the common Law before the making of this statute But this statute restrains to two parts and for the third part makes the Conveyance voyd as touching the Lord But the statute enables to dispose by Will a parts where he cannot dispose any part by the Common Law if it be not by special Custome but the use only was deviseable by the common Law this was altered into possession by the statute of 27 H. 8. and then cometh the statute of 32. and 34. H. 8. and enables to devise the Land which he had at the time of the devise or which he purchased afterwards for a third part of this Land should remain which hee had at the time of the devise made and if a third part of the Land did not remain at the time of the devise made sufficient should be taken out of that but if the Devisor purchase other Lands after hee may those wholly dispose And for that it was adjudged Trin. 26. Eliz. between Ive and Stacye That a man cannot convey two parts of his Lands by act executed in his life time and devise the third part or any part so held by Knights service and also he relyed upon the words of the statute that is having Lands held by Knights service that this shall be intended at the time of the devise as it was resolved in Butler Bakers Case That is that the statute implies two things that is property and time of property which ought to be at the time of the devise But here at the time of the devise the Devisor was not having of Lands held by Knights service for of those he was only Tenant for life and the having intended by the statute ought to be reall enjoying and perfect having by taking and not by retaining though that in Carrs Case cited in Butler and Bakers Case rent extinct be sufficient to make Wardship yet this is no sufficient having to make a devise void for any part Also if the Statute extend to all Lands to be after purchased the party shall never be in quiet and for that the Statute doth not intend Lands which shall be purchased afterwards for the Statute is having which is in the Present tence and not which he shall have which is in the Future tence and 4. and 5 P. and M. 158. Dyer 35. A man seised of Socage Lands assures that to his Wife in joynture and 8. years after purchases Lands held in cheife by Knights service and devises two parts of that and agreed that the Queen shall not have any part of the land conveyed for Joynture for this was conveyed before the purchase of the other which agrees with the principall case and though to the Question what had the Devisor It was having of Lands held in Capite insomuch that he had Fee-simple expectant upon all the estates tayl he intended that this is no having within the Statute but that the Statute intend such having of which profit ariseth and out of which the K. or other Lord may be answered by the receipt of the profits which cannot be by him which hath fee-simple expectant upon an estate tayle of which no Rent is reserved and also the estate tayle by intendment shall have continuance till the end of the world and 40. Edw 3. 37. b. in rationabili parte bonorum it was pleaded that the Plaintiff had reversion discended from his Father and so hath received advancement And it seems that was no plea in so much that the reversion depends upon an estate tayle and upon which no Rent was reserved and so no advancement So of a conveyance within this Statute ought such advancement to the youngest sonne which continues as it is agreed in Binghams Case 2 Coke that if a man convey lands to his youngest sonne and he convey that over to a stranger in the life time of his father for good consideration and after the Father dies this
to whom the private damage is done may have action And he said that the Register contains many Writs for publique wrong when that is done to private men as fol. 95. A man fixes a pale crosse a navigable River by which a Ship was cast away and the Owner maintained action of Trespasse And fol. 97. A man brought Trespasse against one which cast dung into a River by which his Medow was drowned so if the River be infected with watering Hemp or Flax he which hath fishing there may maintain action of Trespasse and 2 H. 4. 11. Action of Trespasse by one for ploughing of Land where one had a common way and so it is 13. H. 7. 17. One brings an action of Trespasse against another for erecting a Lyme Kill where many others are annoyed by that So by an assault made upon a servant the Master and servant also may have severall actions and so in the other cases many may have actions and yet this is no reason to conclude any one of them that hee shall not have his action for in truth those are rather actions upon the Case then actions of Trespass for the truth of the Case is contained in the Writ Also in this case it doth not appeare that there are any other Commoners which have Common there and for that this Objection is not to the purpose and it appears by Heisman and Crackesoods Case 4 Coke 31. That Copy-holder shall have Common by prescription in the demesnes of the Lord and so he concluded and prayed Judgment for the Plaintiff Coke cheife Justice said that it was adjudged in this Court Trinity 41 Eliz. Rot. 153. b. between Holland and Lovell where Commoner brings an action upon the Case as this Case is against a stranger which pleads not guilty and it was found by verdict for the Plaintiff and it was after adjudged for the Plaintiff for insomuch that the Plaintiff may take them damage feasant that proves that he hath wrong and this is the reason that he may distraine doing dammage And by the same reason if the Beasts are gone before his comming he may have action upon his Case for otherwise one that hath many Beasts may destroy all the Common in a night and doe great wrong and shaâ—l not be punished and it is not like to a Nusance for that is publique and may be punished in a Leet but the other is private to the Commoners and cannot be punished in another place nor course and he also cyted one Whitehands case to be adjudged where many Copy-holders prescribe to have Loppings and Toppings of Pollards and Husbands growing upon the Waste of the Lord and the Lord cuts them and one Copy-holder only brings his action upon the Case and adjudged that it was very well maintainable notwithstanding that every other Copy-holder may have the same remedy And he said also that so it was adjudged in the Kings Bench Hillary 5 Jacobi Rot. 1427. in George Englands Case And 2 Edw. 2. b. Covenant 49. If a man Covenant with 20. to make the Sea banks with A. B. and every one of them and after he doth not doe it by which the Land of two is drowned and damnified and they two may have an action of Covenant without the others Quere for it seems every one shall have an action by himselfe But Foster and Wynch Justices seemed that the Plaintiffe ought to sue in his Court that the Beasts of the stranger escaped in the Common or were put in by the Owner for it may be they were put in by the Lord which was owner of the Soile or by a stranger in which cases the Owner of the Beasts shall not be punished But Coke and Warburton seemed the contrary and that this ought to be averred and pleaded by the Defendant in excuse of the Trespasse as in action of Trespasse why he broke his Close And so it was adjourned see Gosnolds case 490. see Judgment Pasche 1612. 10. Jacobi in the Common Bench. Henry Higgins against George Biddle IN Replevin the Defendant made Conusance as Bayliff to Sir Thomas Leigh and Daine Katherine his Wife intimating that Isabel Bradburn was seised of the place where c. in their demesne as of Fee and so seised the first of June 15 H. 8. gives this to the Lord Anthony Fitzherbert and Maud his Wife and to the Heirs males of their bodies which have Issue Thomas Fitzherbert Knight John Fitzherbert and William Fitzherbert Anthony and Maud dyed and the said place where c. discended to Sir Thomas Fitzherbert as Heire to the Donees to the Intayl and the said Thomas Fitzherbert the 5. of Aprill 6 Edw. 6. of that enfeoffed Humphrey Swinnerton Ralph Cotton and Roger Baily to the use of William Fitzherbert and Elizabeth his Wife for their lives and after to the use of Sir Thomas Fitzherbert and the Heirs of his body the remainder to the use of the right Heirs of the said William Fitzherbert William Fitzherbert dyed Sir Thomas Fitzherbert disseised the said Elizabeth and the said John Fitzherbert had Issue Thomas and dyed Sir Thomas Fitzherbert dyed without Heir of his body and the said place where c. discended to the said Thomas as Cousin Heir of the said Sir Thomas and Son and Heir of the said John Fitzherbert which enters and was seised to him and to the Heirs Males of his body as in his Remitter And the said Thomas Fitzherbert 4 of Novemb. 39. Eliz. by Indenture of Bargain and Sale enrolled in the Chancery within six moneths bargained and sold the said Land to Sir William Leighton his heirs and Sir William Leighton 5 of Novemb. 43. Eliz. by Indenture enrolled within six moneths for 4000. l. bargained and sold the said land where c. to Sir Thomas Leigh and Dame Katherine as aforesaid and so avowed the taking for doing damage And the Plaintiff for Barr to the said Avowry pleads that well and true it is that the said Sir William Leighton was seised of the said place where c. in his Demesne as of Fee as it was alledged by the Defendant But further hee saith that the said Sir William Leighton so being thereof seised 1 Decemb 44 Eliz. enfeoffed the Plaintiff in fee and by force of that the Plaintiff was seised and put in his Beasts into the said place where c. without that that the said Sir William Leighton bargained and sold the said Land in which c. to the said Sir Thomas Leighton and Katherine his Wife as in the Conusance hath been alledged by the Defendant upon which the Defendants joyn Issue and it was agreed by all the Justices that notwithstanding this admission of the Parties is an Estoppell by the pleading yet as well the Plaintiffe as the Defendant were admitted to give another evidence to the Jury against their own pleading that is that Sir William Leighton was not seised and so nothing passed by the bargain and sale and also
this shall passe for him which pleads the demise of the Mannor Then if in Judiciall proceeding the Law makes such favourable construction to make that passe by a Mannor which is no Mannor in truth because it hath been usually known by the name of a Mannor then it seemes to him a Fortiore that no more beneficiall construction shall be made in conveiances which allwaies shall be construed to the intent and meaning of the parties and so it seemes to him that the Common remaines and Crooke Yelverton and the cheife Justice Flemming conceived that in reason he shall have the Common but they did not give any absolute opinion as to that But Williams Justice to the contrary and that the Lessee for yeares cannot have more then he contracted for in his Lease and then the Vsitatum void and the Lessees have taken that by wrong And this Grant having reference to a void and wrongfull usage is not good and it is adjourned Hillary 7. Jacobi 1609. In the Kings Bench. Stydson against Glasse Stydson brought an Ejectione Firme against Glasse and upon speciall Verdict the case was this that is That one Holbeame was seised of the Land in question in Fee and made a Lease for life to Margret Glasse and after covenanted with John Glasse Husband of the said Wife Lessee that before such a day he would Levie a Fine to A. B. and to the Heires of A. of the same Lands which Fine should be to the use of the said Glasse for sixty yeares to begin after the death of the said Margeret Glasse with Proviso within the same Indentures that if the said Holbeame at a certaine day should pay to the said John Glasse a hundred pounds that then the Lease should cease and then of that the Conusees should stand seised to the use of the said John for his naturall life and after the said Holbeame disseised the said Margeret Glasse the Lessee and made a Feoffment to the use of himselfe and one Alice with whom he intended to marry and to the Heire of their two bodyes begotten the remainder to the right Heires of the Feoffor and after the sayd Feoffor and Alice intermarried and after the said Holbeam tendred a hundred pound to the sayd John Glasse the Lessee for years and after the sayd John Glasse assigned over his Tearme and after the sayd Holbeam by Deed indented and inrolled bargained and sold the said Land to the said John Glasse and his Heir and after Iohn Glasse dyed and the Inheritance discended to the said Margeret Glasse Lessee for life the Conusor dies his Wife enters and lets to the Plaintiff the Defendant enters upon him and the Plaintiff re-enters and brings Trespass against the Defendant which justifies as servant to the Assignees of the Tearm and if upon all the matter c. And it was argued by Nicholls Serjeant for the Plaintiff and he moved three points in the case First if by this feoffment upon such condition as this is had been Extinct at the Common Law or remaines to the Feoffor notwithstanding the feoffment for if he have interest in the Land then it is extinct by the Livery for it is given of the Feoffor and past out of him and yet the Feoffee cannot have and for that it is extinct but if it were but Authority as in 15 H. 7. Authority to sell the land of the Devisor then the Authority remaines and is not extinct by the Feoffment of the land so power of Revocation to a stranger which is but authority is not extinct by a feofment Albaines case Coke 112. a. But if it be right in Interest then it is extinct by the feofment as power of revocation to the Party himself resolved to the point in Albains case so of Title to a Writ of Deceit 38 Ed. 3. So of a title to be Tenant by the Curtesie 9 H 7. 1. But by 42 Edw. 3. by a Feoffment made by a Parson of Land of his Rectory the Tythes of that Land are not extinct but remaines notwithstanding the Feoffment for that it was collaterall to the title of the Land as the Cases of Authority are which were put before then if this power to alter a Lease by payment of a hundred pound be not any right nor Interest but a collaterall power and the authority not extinct by the Feoffment but remaines but admitting that it is in nature of an ordinary Condition and that before the Statute it should be extinct by the Feoffment for that it is the gift of the Feoffor and yet it is not transferable to the Feoffee If now by the Statute of 32 H. 8. which inables Grantees of reversions to take advantage of Conditions if the condition be not transferred to the Feoffees and so over to he to whose use that then by consequence this remaines to the Feoffor which was the he to whose use and then the tender of the money after well may alter the Lease it seems that so for before the Statute if a Lease for yeares had been made upon condition to cease and after the Lessor enters upon the Lessee and makes a Feoffment and the Lessee re-enter and breakes the condition the Feoffee shall take advantage of that condition being by way of ceasing of an Estate so after the Statute the Feoffee of the Lessor shall take advantage of the condition of Re-entry and of every other condition annexed to the reversion as well as of one condition to cease before the Statute and as well that every Grantee shall doe since the Statute for though that he comes in by Feoffment which is wrong to the Lessee yet after the re-entry the Lessee is in nature of a Grantee And he cyted the Case of Clyfford Error 7. Ed. 6. to be that Lessor entred upon his Lessee and made a Feoffment if the Lessee re-enter the Rent and the Condition are revived againe and the Feoffee shall have both see Cliffords Error 7. Ed. 6. Dyer the last case and 1. M. Dyer 96. 43. but there is not any such matter and for that it seemes that he hath another report of this case of Cliffords Error or otherwise he meant some other case and not Cliffords Error so is our case the condition being inherent to the reversion shall passe with the reversion be that by grant or feoffment and when the reversion is revived by the entry of the Lessee the condition shall be revived also and it is the more strong insomuch that the Condition is that upon the payment of the money the Lease for years shall cease and not that the Lessor shall re-enter that such Feoffee shall take advantage of a condition by way of ceasing of that at the Common Law 2. point and for the second point he would not argue against that that he took to be cleer and for that he conceived the Law to be against his Clyent in this point though that after the Disseisin and Feoffment the free-hold could not accrue
against three Executors two of them are out lawed and the third pleads and Verdict against him and it was resolved that the Judgement shall be against all by the Statute of 9. Ed. 3. for they all are but one Executor and the Cost shall be against him which pleades if the others confesse or suffer Judgement by default And there shall be but one Judgement and not diverse see 17 Ed. 3. 45. b. 11 H. 6. Upon a Venire Facias awarded the Sheriff returnes but 21. and the Habeas Corpora was against 21. only and this was also returned and upon that ten appeared and upon this Tales was awarded and triall had and but ten of the principall Pannell sworne And this was Error but if twelve of the principall Pannell had appeared and served it seemes that it shall not be error for so it was resolved in Graduers case where twenty three were returned but twelve appeared and tryed the Issue and this was resolved to be good and no error Michaelmasse 7 Jacobi 1609. In the common Bench. Buckmer against Sawyer A Man seised of Land in Gaelvelkind hath Issue three Daughters that is A. B. and C. deviseth all his Land to A. in tayl the remainder of one halfe to B. in tayl the remainder of the other halfe to C. in tayl and if B. died without Issue the remainder of her Moytie to C. and her Heires and if C. died without Issue the remainder of her Moytie to B. and her Heires the Devisor dies A. and B. dies And the question was if C. shall have a Formedon in remainder only or severall Formedons for this Land And it seemed to all the Justices that one Formedon lieth well for all for that that it was by one selfe same conveiance though that the Estate come by severall deaths and this Action was to be brought by the Heire of C. after the death of C. See the three and four Phil. and Mary Dyer Note that after appearance of a Jury and after that divers of them were sworn others were challenged so that it could not be taken by reason of default of Jurors But a new Distringas awarded and at the day of the returne of that these which were sworn before appeared and then were challenged But no challenge shall be allowed for that that they were sworn before if it be not of after time to the first appearance Michaelmasse 7. Jacobi 1609 In the Common Bench. Baylie against Sir Henry Clare BAYLIE against Sir Henry Clare the Writ was of two parts without saying in three parts to be divided And it seemed to Nicholls Serjeant which moved this that it was not good but error But the opinion of the Court was that it was good See 17. Ed. 3. 44. 19. Ed. 3 breife 244. 17. Assise with this difference that if there are but three parts and two are demanded there it is good without saying in three parts to be devided for when parts are demanded it is intended all the parts but one and that it is only one which remaines see the Register fol. 16. 12. Assise And it was adjudged in the Kings Bench in the case of one Jordan that demand of two parts where there are but three parts is good see 39. H. 6. Salford against Hurlston in Formedon which demanded two parts where there is but three and so of three parts where there is but four it is good without saying in three or four parts to be divided But if a man grant his part this shall be intended the halfe for Appellatio partis dimidium partis contenetur and a Writ of Covenant ought to be of two parts without saying in three parts to be divided for so is the forme and if in such case in three parts to be divided be incerted the Writ shall abate see Thelwell in his digest of Writs 146. and by Coke if a man bring Ejectione Firme for ten Acres and by evidence it appeares that he hath but the halfe Ex vigore Juris it shall not be good but he said he would submit his opinion to the Judgement of ancient Judges of the Law which have often time used the contrary Note that the Husband may avoid his Deed that he hath Sealed by the duresse of Imprisonment of his Wife or Son But not of his Servant and so Mayor and Commonalty may avoid a Deed sealed by duresse of Imprisonment of the Mayor for it is Idemptity of person between the Husband and the Wife See 21. Ed. 4. and 7. Ed. 4. A man may avoid Seâ—sin for payment of Rent by coersion of distresse but not his Deed. Michaelmasse 7. Jacobi 1609. In the Common Bench. Payn and Mutton IN an Action upon the case by Payne against Mutton the Plaintif counts that the Defendant called him Sorcerer and Inchantor And agreed by all the Justices that Action doth not lie for Sorcerer and Inchantor are those which deale with charmes or turning of Bookes as Virgill saith Carminibus Circes socios mutavit ulissis which is intended Charmes and Inchantments and Conjuration is of Con et nico that is to compell the Divell to appeare as it seemes to them against his will but which is that to which the Devill appeares voluntarily and that is a more greater offence then Sorcery or Inchantment which was adjudged that Action doth not lie for calling a man Witch and said that he bewitched his Weare that he could not take any Fishes Dodridge the Kings Serjeant saith that an Action lieth for calling a woman gouty pockye Whore and said that the Pox had eaten the bottome of her Belly out and so it was adjudged that it lieth well for these words get thee home to thy pokey Wife the Pox hath eaten off her Nose But for the Pox generally Action doth not lie But if he saiâ—h that he was laid of the Pox then Action well lieth for then it shall be intended the great Pox. Note that in Prohibition and Replevin the Defendant may have nisi prius by Proviso without default of the Defendant for he himselfe is re vera Defendant and there are two Actors that is the Plaintiff and Defendant But the Court appointed that Presidents should be searched the Plaintiff is not bound to prosecute Cum Effectu in this Court as he is in the Kings Bench And it was agreed that the manner of Pleading was agreement as for Returno Habendo in the Replevin and Pro consultatione habenda in the Prohibition Michaelmas 7. Jacobi 1609. In the Common Bench Miller and Francis MYLLER Plaintiff in Replevin against Thomas Francis the case was Richard Francis was seised of Land held in Socage and deviseth that to John his eldest Son for a hundred yeares the Remainder to Thomas his second Sonn for his life and made his four other youngest Sonns his Executors and after made a Feoffment to the sayd uses the Remainder to the sayd John his eldest Son in tayl
Berwick Gaol for stealing of a Mare and other Beasts and after a Verdict for the Plaintiff it was moved in Arrest of Judgement that the words were not actionable and so it was adjudged for that he did not directly say the Plaintiff was a Thief but onely implied Hill 15. Iac. rotulo An Exception taken to a Declaration in Trover brought by an Administrator because he declares that whereas he was possessed of divers Goods and Chattels as of his own proper Goods and should have said as was pretended as of the Goods and Chattels of the intestate at the time of his Death but the Exception was over-ruled by the Court. Exception to an Action of the case brought and the Plaintiff declares that whereas the Plaintiff had delivered the Defendant unum statum salis Anglicae a Bushel of Salt pretending that statum had another proper signification but because it was shewed to the Court that statum by one Dictionary was Latine for a Bushel Judgement was given for the Plaintiff In Trover it is usual to prove no more but that you requested the Goods and the Defendant refused to deliver them this is a Conversion When a Justification arises upon a Sale then I need traverse no more but the place alleadged and not go to the whole County but where it is a transitory Trespass as for Battery taking of Goods and the like then the whole County must be traversed CAtford versus Osmond Mich. 16. Jac. rotulo 1063. Action of Trover brought for two Steers the Defendant being an Attourney of the Common-pleas justifies the taking as Under-sheriff by reason of Process from the Exchequer to levy of the Occupiers of the Lands of divers persons in a Schedule in the said Writ named the Debts therein specified and doth not recite the Schedule and he being Under-sheriff took the Steers in the Land of the Plaintiff which was lately one Stones who was Debtor to the King in 59. s. being behinde upon the Land and Exception was taken for that it was not directly alledged that the Land such a Day was the Land of the said S. The Writ commanded to levy the summs in the said Schedule mentioned and if they could not to take their Bodies and it was adjudged a good Warrant to levy of the Occupiers of the Lands that were the said S. 59. s. COles versus Flaxman Hill 14. Jac. rotulo 2175. Action of the case brought for disturbing the Plaintiffs Common The Defendant pretends Title to the Common by reason of Common appurtenant to certain customary Land of part of which he conveys a Title to himself but not of the whole and the Question was whether it were Common appurtenant or appendant and if appurtenant it could not be divided KEymes versus Moxham Trin. 15. Jac. rotulo 559. Action of the case brought for a promise made at C. for the Delivery of a Mare which the Plaintiff delivered the Defendant to plow his ground in P. And shews the Defendant did so excessively and immoderately labor and work the said Mare that the Mare died The Defendant confesses the promise and that the Mare at the time of the Delivery was infirm and that he worked her moderately and traverses the excessive labouring of the Mare and after a Verdict it was moved in Arrest of Judgement that it was mis-tried because the Venn was of C. which was naught and there was no place alleadged where the excessive labouring was for the Venn ought to come from that place where the laboring was HArbin and his Wife versus Green Trin. 14. Jac. rotulo 2263. Action upon the case brought for not grinding his Corn at the Plaintiffs Mill and shews that the Bishop of Salisbury was seised of four customary Mils called A. in his Demesne as of Fee in right of his Bishoprick and prescribes that all Inhabitants and Residents within the City of Salisbury holding any ancient Mesuages of the said Bishop in right of his Bishoprick were time out of minde used and ought to grinde all their Corn whatsoever spent in their houses or exposed to sale in the said City at the said Mils of the said Bishop and no where else without the licence of the said Bishop and to pay Toll therefore to the said Bishop his Successors Bishops or their Farmors for the time being and in consideration thereof the Bishop his Successors or Farmors for the time being of the said Mils time out of minde have been used and accustomed at their own charges from time to time to keep and maintain a Servant expert in grinding as well by night as day there attending to grinde their Corn as soon as conveniently might be and the Plaintiff shews that such a Day the Defendant was and yet is an Inhabitant in one ancient Mesuage in the said City held of the Bishop and so possessed intending to deprive the Plaintiff of the profit of his Mill did such a day grinde divers sorts of Corn in other Mils without the Bishops leave to his damage of c. The Defendant pleads Non cul The Jury finde the Defendant guilty for a longer time then the Plaintiff had interest in the Mill and gave Damages intire and upon a Motion in arrest of Judgement adjudged naught GResley versus Lother and his Wife Executrix of R. B. and declares that communication was had between the Testator in his life and the Plaintiff concerning a Marriage to be had and solemnized between one T. B. son and heir apparent of the said R. B. and Jane Daughter of the Plaintiff and heir apparent of John F. deceased the said Testator such a Day and Year in consideration that the Plaintiff at the special instance and request of the said R. B. then and there would agree that the said T. B. should marry the said J. promised to pay 20. l. and adjudged a good consideration GOwland versus Mason Hill 17. Jac. rotulo Action of the case for these words I charge him with Felony for taking of money out of the pocket of Henry Sparry and I will prove it and the Court was divided in opinion whether the words would maintain an Action or no. SMith and his Wife versus Stafford Executor of Stafford Hill 15 Jac. rotulo 906. Action of the case brought upon a promise made to the Woman when she was sole in consideration the Woman would marry the Testator he promises that if the Woman should over-live the Testator that then he would leave her worth 100. l. and they averr that she did marry him and after the Husband died and did not leave her worth 100. l. and the Defendant pleads Non assumpsit and found for the Plaintiff and it was moved in Arrest of Judgement that by the Inter-marriage the Promise was drowned and released Three Judgeâ—…r the Plaintiff and one for the Defendant The like Observations in Actions of Covenant DRury versus Allen al. Mich. 6. Jac. rotulo 926. Action of Covenant
omit to take them every other year I cannot take them in the third year But for Rent and such other things that are in the Render I ought to have it when ever I demand it as it best pleases me And note that in such case one prescribed for eight Loads of Wood to be cut and taken as appertaining to a Messuage which was held naught by the whole Court for the Prescription should be laid for Estovers to be imployed upon Repairs of the said Messuage or to be spent in it for a man cannot prescribe to have a Prescription to come and cut down my Wood which is as much as I that have the Free-hold can do For the claim to take and sell my Wood cannot be good And the Court held it a good Prescription to prescribe to have Common every other year although you shew not the Commencement as to shew what time of the year when it begins If a man hath Common of Pasture in divers Closes and parcels of Ground where he hath some Land of his own there and in all other cases where one is to prescribe he need not to make his Title to every peice but to say he hath Common in loco in quo c. in t alia and need not to speak of the rest of the Land in the residue of the Feild because he hath Land of his own Common appendant belongeth to arrable Land not to Pasture Land If two Issues be joyned and in the awarding the Venire facias these words Videlicet Quoad triandum tam exit istum quam praedictum alium exit superius junct were omitted and after a Verdict such Default was moved in Arrest of Judgement and the Exception over-ruled and held good notwithstanding that omission The whole Court were of opinion that local things shall not be made transitory by laying the Action in a forrain Shire as for Corn growing in one Shire and an Action of Trover brought in another COmes Cumbr. versus Comitem Dorset It was moved by the Defendant that whereas the Plaintiff had prosecuted a Distring Jur. and onely eleven of the Jury appeared and the Inquest remained to be taken for want of Jurors and that at such time neither Plaintiff nor Defendant desired a Tales and afterwards the Defendant in another Terme prayed a Tales of that Writ which the Plaintiff had prosecuted and the Court denied to grant it because he prayed not a Tales when the Distress was retorned and if he would have a Tales he must purchase anew a Plur. distring and if then the Jury fill not the Defendant may pray a Tales and the Court ought to grant it And note upon the first Habeas Corpus the Defendant shall not have a Tales but in Default of the Plaintiff IF the Chamberlain of the County Palatine of Chester make an insufficient Return to the Court of Common Pleas upon a Writ issued out of that Court the Sheriff shall be amerced because the Sheriff is the Officer responsible to the Court. The King hath power to make and create a Leet anew where none was before A Distress is incident of Right but in a Court Baron a Prescription must be laid to distrain J. Rogers versus Powell My Lord Cook held that the Surrender of a Copy-hold in Tail is not any Discontinuance and Justice Foster of the same opinion In Doctor Husseys case in a Ravishment de gard wherein the Judgement is penal the Habeas Corpus was denied by the Court to be amended being a blank Writ after a Verdict but was adjudged Error For the Proviso in the Statute of Jeofailes 18 Eliz. excepts Actions upon penal Statutes One Jury was impannelled of the Town of Southampton and called to the Bar and made Default and the men of that Town shewed to the Court a Grant made to the Inhabitants of that Town that no Return should be made of the men of that Town to be of any Jury and prayed the Allowance of their Charter and the Court appointed them to plead their Charter and it was done accordingly TRier versus Littleton A special Verdict was found whether Fraud or not Fraud and the Jury did not finde the Fraud expresly but they found Circumstances that the Deed might seem thereby to be fraudulent but the Court will not adjudge it Fraud where the Jury do not expresly finde the Fraud for the Judges have nothing to do with matter of Fact and so by the whole Court no Fraud Tenant for Life Remainder for Life Remainder in Tail Remainder in Fee the first Tenant for Life suffereth a Recovery the Remainder in Tail is barred although the second Estate for Life be no party Baron Feme seised of the Wives Land for Life of the Wife Remainder to the Husband and Wife in Tail and afterwards the Husband doth bargain and sell the Land by Deed inrolled and a Precipe is brought against the Bargainee and he voucheth them in Remainder this is a good Recovery to barr the Estate Tail If an Information be brought against three upon the Statute of Maintenance and two of them appear and the third doth not appear the Plaintiff may declare against the two that do appear before the other appears for it is but a Trespass and Contempt as in Trespass and Conspiracy but it is otherwise in Debt upon a joynt Contract for there the Plaintiff cannot declare against one untill the Process be determined against the other by the opinion of the whole Court If Judgement be entred in Trespass of Oct. Hillarii the Writ to inquire of Damages may bear teste of any other Return of that Terme besides of Octab. Hillarii for the Terme is as one Day and so hath been adjudged upon a Writ of Error in the upper Bench but it is otherwise held in the Common Pleas. If a Bargain and Sale be void in part it is void in all If an Officer or priviledged person of the Court of Common Pleas sue another priviledged man of any other Court whatsoever yet he of the Common Pleas that first sued shall force the other priviledged person to answer in the Common Pleas but if a priviledged man be sued with another as Executor no Priviledge lies Summons and Severance lies between Executors Plaintiffs and if one of the Executors be outlawed or excommunicated he may be demanded and if he comes not shall be severed by an award without Process after he hath appeared and the other shall proceed without him but if he had not appeared then Summons and Severance shall issue out against him FLetcher versus Robson An Extent upon a Statute Merchant issued out against Robson the Cognisor and the Sheriff returned that the Cognisor was possessed of divers Goods and seised of Lands which he delivered to the Cognisee and that the Cognisee accepted of the Land and because the Sheriff did not return that he had not any other Lands Goods or Chattels it was
folio 367. To the contrary is not Law two Tenements in Common joyne in a Lease for years to bring an Ejectment and declare that whereas they did demise the Tenements and it was held nought for it is a severall Lease of moities and if they had declared that one of them had demised one moity and the other another moity it had been good WIlson versus Rich Pasch 44. Eliz. The Husband and Wife joyn in a Lease by Indenture to A. rendring Rent and this is for years and make a Letter of Attorney to seal and deliver the Lease upon the Land which is done accordingly A. brings an Ejectmentand declares upon a Demise made by the Husband and Wife and upon Evidence to the Jury ruled by Popham Fenner and Yelverton that the Lease did not maintain the Declaration for a Woman covert could not make a Letter of Attorney to deliver a Lease upon the Land although Rent was reserved by the Lease and so the Warrant of Attorney is meerly void and the Lease is onely the Lease of the Husband which is not made good by the Declaration by the opinion of the Court. STretton versus Cush Pasch 1. Jacobi J. L. leased a House for fourscore years in which Lease there is one Condition that the Lessee his Executors and Assignes should keep and maintain the House in reparation and if upon lawfull warning given by the Lessor his Heires and Assignes c. to enter the Lessee for fourscore years leases the House to A. for thirty years and A. leases it to Wilmore for fifteen years the Assignee of the Reversion came to the House and seeing it in decay gave warning to Wilmore then possessed of that House to repair it which was not done within six Moneths by reason whereof the Assignee entred for the Condition broken and upon a Not guilty pleaded the matter before recited was found by a special Verdict and adjudged against Sir William Wade the Assignee of the Reversion for the warning given to Wilmore to repair who was but an under tenant was not good for he was not Assignee of the terme nor had but a pety interest under the grand Lease upon whom no Attorney could be made for the Rent nor any Action of Waste brought against him for there wanted the immediate privity and in this Case there is a difference to be taken between a rent and a Condition for reparations for the Condition is meerly collateral to the Land and meerly personal and therfore warning is not of necessity to be given at the House but notice of Reparations ought to be given to the person of the Lessee who had the grand interest And a Difference is to be taken between a time certain in which a thing is to be done and a time incertain for in the Case of Rent reserved at a Day certain Demand thereof must be made upon the Land onely because the Land is the Debtor for Popham said that if the Lessor should come and demand his Rent and there should meet with J. S. a stranger and should say to J. S. Pay me my Rent this is no good Demand of the Rent having mistaken the person who is chargeable with it but in this Case one general Demand of Rent without reference to any person who is not chargeable is good And he was of opinion that if a man lease Land rendring Rent for a year whensoever the Lessor should demand it in this Case the Lessor come and demand it before the end of the year his Demand upon the Land is not good except the Lessee be there also for the time being incertain when the Lessor will demand it he ought to give notice to the Lessee of it And if the Lessor come to the Lessee in person and demands the Rent yet it is not sufficient for although notice is to be given the Lessee in person yet the Land is the Debtor and therefore the Law ties the Lessee to the Land as to the place in which he shall be paid but if the Lessor stay nntill the eud of the year then the Lessee at his peril ought to attend upon the Land to pay it for the end of the year is time of payment prescribed by the Law which was granted and Judgement was given for the Plaintiff CLerk versus Sydenham Pasch 4. Jacobi An Ejectment brought by the Plaintiff of a Lease made of Land by P. and B. and Not guilty pleaded and the Evidence of the Defendants part was by reason of a Lease of the Land in Question made by the Abbot of Cleeve before the Dissolution to W. D. and Jo. his Wife and F. their Daughter for their Lives by Indenture and by the same Indenture the Abbot covenants grants and confirmes to the three Lessees that the land should remain to the Assignee of the Survivor of them for ninety years Fr. survived and took to Husband one Hill who the 20 Eliz. grant their Estate for life to J. S. and all their interest in the Remainder and all their power for all the term and this by mean Assignements came to the Defendant and whether any interest passed in Remaindor by the Lease of the Abbot was the Question and by all the five Judges it was held to be a good interest in possibility and to be reduced into a certainty in the person of the Survivor as where Land is given to three and the right Heirs of the Survivor this is a good limitation of the Inheritance presently but it is in expectancy untill the Survivor be known for then the Fee is executed in him And Popham vouched a Case in his experience 17 Eliz. in which Serjeant Baker was of Counsel and it was a Lease was made to Husband and Wife for life and for forty years to the Survivor of them the Husband and Wife joyn in Grant of this Interest and although it be certain one of them shall survive yet the Grant is void because at the time of the Grant there was not any interest but onely a possibility in either of them and although in the Case in Question the Remainder is not limited to any of the three Lessees but to the Assignee of the survivor yet the Court was of opinion that this was not a bare nomination in the survivor to appoint what person he pleased but a terme and an interest and Popham took this difference if a Lease be made to J. S. for life and after his death to the Executors and Assignes of J. S. this is an interest in J. S. to dispose of it but if it had been limited to J. S. for life and afterwards to the Executors and Assignes of J. D. here this is a bare power in J. D. and his Executors because they are not parties or privies to the first interest which was agreed and it was also agreed that whether it was an interest or a word of nomination it was all saved to the party by the Statute of
is the eldest Son although they alleadge their births in severall Counties yet it shall be tryed where the Land lyes and so in that Case a Release of all his right was pleaded against him and he pleaded that he was within age and borne in another County yet it shall be tryed where the Land lyes and so adjudged 7 H. 4. 8. and 17 E. 3. 36. b. 19 H. 6. 15. Nay though the Espousals be alleadged to be in another County yet it shall be tryed where the Land lyes and adjudged 7 H. 4. 8. And Davenport inferrs from 36 H. 6. 9. A grand Cape against one he comes and pleads that he was within age at the time of the first Cape which shall be tryed where the Land lyes And another exception was taken because the Venire facias was not well awarded for it was directed to the Sheriff of Middlesex that he should cause to come twelve Coram nobis apud westmonasterium which is not good for that Court follows the King and may be removed to any place and therefore it ought to have been Vbicunque fuerimus in Anglia but all the Judges Fleming being absent after mature deliberation held the tryall at Middlesex good for they took this difference in their answer to the rule layd downe that what concernes the realty it shall be tryed where the Land lyes for when nonage or the birth are alleadged to intitle one to the Land demanded as if in an Assise the Tenant pleads a discontinuance the Demandant sayes he was within age at the time or to debarr another of Land that he was borne before marriage in these Cases because the Inheritance of the Land depends upon it although they be alleadged in another place yet they shall be tryed where the Land lyes 19 H. 6. And so it is 39 H. 6. 49. b. to be intended but if nonage or birth be pleaded as matter dehors and not to the disabling of the title to the Land but to another purpose as here it is to the person because he could not appeare by Attorney in this Case it shall be tryed where the Infancy is alleadged As if in a Formedon in the Remainder the Tenant pleads nonage in the Plaintiff and prayes that the Plea may stay untill his full age if Issue be taken upon it it shall be tryed in the place where it is alleadged And as to the Exception to the Venire facias the Roll is right which warrants the Writ and therefore they held it was but the Writers fault and should be amended and Doddridge and Cook held the Triall good if Infancy be alledged the Triall shall be by inspection during his Nonage as it is 17 E. 3. Account 121. and 11 H. 4. 115. 25. Ass 2. and 48 E. 3. 11. and the 11. Rep. f. 30. but if his Age upon inspection remains doubtfull then the Judges may swear the party and examine Witnesses And 25 E. 3. 44. and 50 E. 3. 5. but if the Infant come to full Age it shall be tried by the Countrey 33 H. 8. and they took this Difference in what place it should be tried for if the Action be reall it shall be tried where the Land lies as it is 21 E. 3. 28. 28 E. 3. 17. 44 Assis 10. 46 E. 3. 7. 13 H. 4. 3. and if both places be in one County then the venire facias shall be of both 22 E. 3. 11. H. 4. 75. but if nonage be alledged in a personall Action the Triall shall be where the writ is brought 43. H. 6. 40. in Debt the Defendant pleaded infancy and that he was born in such a place yet the Venire facias was awarded of that place where the Action was brought and 43 H. 6. 40. Prisot was of the same opinion and the Law is the same when it concerns the person as in misnomer or that he is not the same person and so in the Case in question although the Action be brought in one place and the nonage pleaded in another County yet it shall be tried where the Action was brought and therefore the Action being brought in Midd. the triall of Midd. is good for a writ of Error is of the nature of an Originall which is personall and they held the Venire facias should be amended being but a matter of Form and that it was no mistriall it being awarded at a right place and likewise the will is right which warrants it and therefore it is but a misprision and no mistriall and the Venire facias shall be amended according to the will and Judgement was given for the Plaintiff in the writ of Error Formedon BRigham versus Godwin The Formedon did abate by the death of one of the Demandants and upon a new writ brought by Journes accounts the Tenant was Essoined and it was moved by the demanded that the Essoin should be quashed because the Tenant was Essoined upon the first writ but the Essoin was allowed by the Court but it was held by the Court that if the Tenant had the view upon the first Writ he should never have the view again at the Common Law we might have had a new Essoin upon view as often as he brings a new writ and Husband held that if by the Common Law it is to be granted the Statute doth not abridge it two views do not ly upon one writ at the common Law and if this shall be accounted but one Writ the view lieth not but in this case the Tenant did relinquish the view because he had day to plead NEvill versus Nevil Mich. 15 Jac. rotulo 77. Formedon in le Discender the writ was generall and the Count was upon a Feofment made after the Statute of uses and a speciall verdict whether the Deed warrant the Count the verdict is whether upon the whole matter the said A. N. gave the moity of the third part of the Mannor c. for default of Issue of the Bodies of either the said G. and D. to the use of either of them surviving and of the Heires males of his Body to be begotten or no the Jury are wholly ignorant the writ was to the use of G. and D. and of the Heirs males of the Bodies of the said G. and D. lawfully to be begotten and for default of such issue male of the Body of either of them then to the use of either of them having issue male of his Body lawfully begotten and for default of such issue male of both the Bodies of the said G. D. or either of them lawfully to be begotten then to the use c. By Deed an implication cannot be intended if there be not apt words otherwise it is in a Will for this is but a gift to a man and his Issue for this gift is but to both of them for life and severall inheritances Bishop al. versus Cossen Trin. 16 Jac. rotulo 62. In Formedon the Tenant pleaded a warranty and pretends
that it was collaterall warrantry where in truth it was a lineall warranty and it was held naught because the warranty was in Law a lineall warranty the Case was that Land was givenby Feoffment made to the use of the Feoffer for life remainder in Tail Tenant for life dies Tenant in Tail had Issue a Son and two Daughters and the Father and Son joyn in a Feoffment with warranty and after the Father and Son die without issue and the Daughters bring a Formedon and this is a lineall warranty PIt versus Staple Trin 14 Jac. rotulo 112. Formedon in le discender against three which plead non-Tenure and issue thereupon joyned and found specially that two of them were Lessees for life the remainder to the third person and whether the three were Tenants as is supposed by the writ was the question and the better opinion was that it was found for the Demandant for the Tenants should have pleaded severall Tenancy and then the Demandant might maintain his writ but by this generall non-Tenure if any be Tenant it is sufficient but in some Cases the Precipe may be brought against one who is not Tenant as a morgagor or morgagee COmes Leicester versus Comit. Clanriccard In Formedon upon a Judgement given in part for the Demandant and part for the Tenant the Tenant brought a writ of Error and had a Supersedeas upon it and afterwards the Demandant prosecuted a writ of Seisin and delivered it to the Sheriff and he executed the writ and immediately afterwards the Tenant delivered the Supersedeas to the Sheriff and the Tenant moved the Court and prayed a writ of restitution and it was granted him because the Tenant had done his indeavour and had not delayed the prosecuting the writ of Error COmes Clanriccard Francisca uxor Ejus Demandants versus R. S. milit vicecomit Lyple for three messuages c. which R. late Earl of Essex and Frances late wife of the said Earl by Fine in the Court of the Lady Elizabeth late Queen of England before her then Justices at Westminster levied and gave to William Gerrard Esquire and F. Mills Gentleman and the Heires of the said W. for ever to the use of Elizabeth Sydney Daughter and Heir of P. S. Milir and the Heirs of the Body of the said E. comming and for default of such issue to the use of the said F. then wife of the said Earl and the heirs of the said Fr. and which after the death of the said Eliz. ought to revert to the said Fr. by form of the gift aforesaid and by force of the Statute in such case provided because the said Eliz. died without Heir of her Body The Tenant pleaded in abatement of the writ because the writ ought to revert to the woman alone and it should have been to the Husband and wife and upon a demurrer Judgement was that he should answer over the writ may be either to revert to the Husband and wife or to the wife alone and herein the Tenant vouch two vouches and one is Essoined and an idem dies given to the other and Serjeant Harris demanded of the Court if he should Fourcher by Essoin because the Statute of Westminster the first is that Tenants Parceners or Joint Tenants shall not fourcher in Essoin therefore they two should not fourcher by Essoin but the Court held that before appearance it could not appear to the Court whether they were Tenants or not and therefore before appearance they shall have severall Essoins and Westminster the first is expounded by Gloucester the tenth which is that two Tenants shall not fourcher after appearance and at the day of the adjournment of the last Essoin the Tenant was Essoined and such Essoin was allowed and adjudged by the whole Court and the reason hereof seemed to some to be because the Tenant might be informed of the Vouchee that he vouched was the same person or no for he might be onother person for if he should be an estranger and demand the place and the Demandant could not hold him to the warranty the Demandant should loose his Land and they held that upon severall Processe to wit upon the view and upon the summons to warranty which are divers Processes the Tenant ought to be Essoined and the Court held that this Essoin was at the Common Law if the Tenant and the vouchee at the day given to the Tenant and the vouchee make default Judgement shall be given against the Tenant to wit a petty Cape and nothing against the vouchee SHotwell versus Corderoy In Formedon the Tenant prayes in aid â—nd the prayee in aid and Tenant vouch and the Vouchee was essoined and adjourned and at that Day the Attorney of the Tenant without the Prayer in aid cast an Essoin and an Idem dies given the Prayee in aid and it was quashed for they shall not have severall Essoines but joynt Essoines A Formedon brought of Lands in A. B. C. The Tenant pleads a Fine of all by the name of the Mannour and Tenements in A. B. And it was objected that he said nothing to the Land in C. but the Courtheld that by the name of the Mannor the Land in all the Villages would pass and the Demandant may if he will plead as to the Land in C. that it was not comprised in the Fine Hill 7. Jacobi rotulo 76. vel 69. Formedon in the Discender the Writ was general that J. L. gave to T. L. and the Heirs Males of his Body upon the Body of D. V. Widow lawfully to be begotten which D. the said T. afterwards took to Wife and which after the Death of the said T. c. Son and Heir Male of the Body of the said T. upon the Body of the said D. lawfully begotten to the said J. L. younger Son and Heir of the said J. L. Son of the said T. ought to descend by form of the Gift aforesaid c. and whereof he saith that the said T. was seised c. and 2 Eliz. of the said Tenements did infeoff the Plaintiff in Fee to the use of the said T. L. and his Heirs c. and note in the Count no mention made of the Marriage If a Gift be made in tail to D. and his Heirs Males the Remainder to A. in tail D. discontinues in the Life of A. and D. dies without Issue and the Heir of A. brought his Writ as the immediate Gift to A. his Ancestor who never was seised in his Life and for that cause the Writ was naught but if A. had been seised of the Land then it had not been necessary to have shewed the first Gift to D. by the opinion of the whole Court Actions upon the Statute of Hue and Cry NEedham versus Inhabitant Hundredi de Stoak Trin. 8. Jac. rotulo 534. Action brought upon the Statute of Hue and Cry by the Servant who was robbed in his own name and part of the Goods
first had the Free hold granted to him by the Lord of the Mannor And then he leavied a Fine and five years passe whether he in the Remainder be Barred or no those whose estates are turned to rights either present or future are meant by the Statute to be barred of a Copy-hold for years be put out of possession and a Fine Leavied and no entry by him he is barred by the Statute by the Bargain and Sale he in the Remainder is not put out of possession if a man make a Lease to begin at Easter next and before Easter a Fine is leavied and five years passe this Fine will not barr because at the Leavying of the Fine he could not enter for then his right was future if the Lease had been in possession and the Lessee had never entered he had been barred A Lease for years Remainder for years if the first man taketh for life the first estate is not so determined but that the Remainder standeth if a Copy-hold surrender for life there passeth no more from him then so much as maketh the estate and no more and the rest remaineth in him CRantley versus Kingswel Pacsb 15 Jacobi rotulo 710. The Defendant makes cognisance as Bailiff of Kingswell his Father for Rent service due to his Father at such a Feast And shews that Cramley holds of him by fealty and rent paiable at such a Feast and for Rent due at such a Feast made Cognisance the Plaintiffe in Barr saies that he at the said Feast offered the Rent upon the Land and that no body was there to receive it And the Plaintiffe saith that afterwards he demanded the Rent upon the Land and the Plaintffe made a Replevin pretending the Lord should make a personall demand but the whole Court was against him And Warburton took acception against the pleading the Tender because he saith that he offered the Rent to pay when as he was not present And the question was whether the Lord for a Rent service did not demand it at that day whether he can distrain without a demand of the person and held he might for the Tenant is yet bound to tender and the Land is debter and the Lord may resort thither when he pleases to demand the Rent upon the Land but if he tender his Homage and the Lord refuses it he cannot distrain without a demand of the Person and Judgment for the Defendant STokes versus Winter Trin. 15. Jacobi rotulo 2242. In Replevin the Defendant makes cognisance as Bayliff to Tenant for life to whom the Annuity was granted for life to begin by will after the death of the devisor And alledges the death of the devisor but not the day of the death after whose death the said H. was seised of the yeerly rent aforesaid in his demesn as of his Free-hold for terme of his life by vertue of the devise aforesaid And because seven pounds of the Rent aforesaid for one yeer ended at the Feast c. and by the space of 14. dayes then next following were behinde to the said T. the said time with c. the said T. as Bayliffe of the said H. doth make cognisance of the taking of the cattell aforesaid in the said place in which c. for the said 7 li. for the yeerly Rent aforesaid being so behind c. and issue was taken whether the said I. at the time of his death was seised of the said six Acres of Land in his demesne as of Fee as c. And after tryall exception was taken to the Advowry because it was not alledged that the annuity at such a Feast after the death of the devisor was behinde but it was over-ruled because there is so much expressed and Judgment given for the Defendant HVmfrey versus Powell Trin. 12. Jacobi rotulo 2791. Replevin wherein the Defendant avows for one Annuity granted to the Defendant to whom the office of Catorship of the Church of Roffen in Kent was granted by the Dâ—an and Chapter of that Church for life with an Annuity of 6. pounds for the exercising of that Office with a clause of distresse by vertue of which grant he was possessed and avowes for the Annuity and avers that it was an ancient Office pertaining to the Dean and Chapter of Roffen and doth not aver that the Annuity was an ancient Annuity The Defendant pleads the Statute of the 13 Eliz that all Devises Donations Grants c. made by any Master and Fellows of any Colledge Dean and Chapter c. other then for the terme of twenty and one yeers or three lives from the time of this Devise c. should be totally void And shews that the old Dean died and another was elected And a Demurrer thereupon And Judgement that the Grant was void HYen versus Gerrard Mich. 13. Jacobi rotulo 752. The Defendant in Replevin avows that one being seised in Fee made a Lease to him and avows for Damage feasant The Plaintiffe in Barr pleads and maintains his Declaration and traverses the Lease upon the Avowant demurrs and adjudged a goodtraverse IEnyx versus Applefourth Trin. 17. Eliz rotulo 543. The Defendant avows for a Rent charge the Plaintiffe in Barr pleads that the Defendant had presented a Writ of Annuity And that he had an Imparlance thereunto And demands Judgement if the Defendant did well make cognisance to the taking of the cattell in the said place in which c. in name of a distresse for the rent aforesaid by vertue of the said writing as Bayliffe of the said R. the said Writ of Annuity being prosecuted c. upon the said writing in form aforesaid c. And a Demurrer thereupon and Judgement by the whole Court for the Plaintiffe it is not needfull to lay a prescription to distrain for an Amerciament in a Court Leet but it is otherwise for an Amerciament in a Court Baron by the whole Court DArcy versus Langton The Defendant avows for a Rent charge and for a Nomine penae and no mention made in the Avowry of the Rent charge and the Plaintiffe was non-suit and afterwards in Arrest of Judgement this matter was alledged and at first held to be a good exception but afterwards Judgement was entred an Advowry is in the nature of a Declaration if that be vitious no Judgement can be given for the Advowant TRin. 9. Jacobi Regis rotulo 2033. Replevin for the taking of Cattell at Andover in a certain place there called R The Defendant makes cognisance for damage feasant the Plaintiffe saies that he was seised of the Messuage c. in C. in the Parish of A to which he claimed Common of Pasture And issue taken upon the prescription and a Venire Facias of A. and exception taken because it was not tryed of C. and A. or of the Parish of A. but it was adjudged to be good TRinbone versus Smith Trin. 12. Jacobi rotulo 626. In Replevin foure and twenty were returned upon the
Cletherwoods Case of the Middle Temple but he said that Prescription to have all the Vesture of the Land is good for such a time and at the first day of the Argument of this Case Foster Justice seemed that the prescription was good and might have reasonable beginning that is by Grant as if they have Common together and they agree that one shall have all for one part of the yeare and the other for another part of the year and that shall be good to which Coke answered that that cannot be by Prescription to have that as Common and at another day Coke cited Shirland and Whites Case to be adjudged 26 of Eliz. in the Kings Bench to be prescription to have common in the Waste of the Lord and to exclude the Lord to have common in the place and adjudged to be void prescription and also he cited a case between Chimery and Fist where prescription was to have common in the Soile of the Lord and that the Lord shall have feeding but for so many cattell and adjudged that the Prescription was not good to exclude the Lord but a man may prescribe to have the first Crop or the first Vesture of anothers Land and it is good and with that agrees the resolution in Kiddermisters Case in the Star-Chamber Warburton justice said that this prescription is not for the excluding of the Lord but for their good ordering of their Lands according to the Book of 46 Ed. 3 25. before cited that the great Cattell should have the first feeding and after that the sheep Coke said that if it had appeared by the pleading that all the Demesnes of the Lord ought to be common and in consideration that the Lord had inclosed part and injoyed that in severall the Free-holders and Tenants of the Mannor which have Common over all the Residue and exclude the Lord and this shall be good by prescription and it is adjourned see 15 Ed. 2. Fitzherbert Prescription 51. And afterwards in Trinity Tearme 1612. 10. Jacobi this case was moved againe and all the Justices agreed as this Pleading is Judgment shall be given for the Plaintiff and they moved the parties to replead Pasch 9. Jacobi in the Common Bench. Portington against Rogers Trin. 8. Jacobi Rot. 3823. MARY Portington brought a Trespasse against Robert Rogers and others Defendants for the breaking of her house and Close upon not guilty pleaded and speciall Verdict found the Case was this A man had Issue three Daughters and made his Will in writing and by that devised certain Land to the youngest Daughter in taile the Remainder to the Eldest Daughter in taile the Remainder to the middlemost daughter in taile with Proviso that if my sayd daughters or any of them or any other Person or persons before enamed to whom any estate of Inheritance in possession or Remainder of in or to the said Lands limited or appointed by this my last Will and Testament or to the Heires before mentioned of them or any of them shall joyntly or severally by themselves or together with any other willingly apparently and advisedly conclude and agree to or for the doing or execution of any Act or Devise whereby or wherewith the said Premises so to them intailed as aforesaid or any part or parcell thereof or any estate or Remainder thereof shall or may by any way or means be discontinued aliened or put away from such person or persons and their Heires or any of them contrary to mine intent and meaning in this my Will otherwise then for a Joynture or shall willingly or advisedly commit or do any act or thing whereby the premises or any part thereof shall not or may not discend remaine or come to such persons and in such sort and order as I have before limited and appointed by this my last Will and Testament then I will limit declare and appoint that then my said Daughter or Daughters or other the said person or persons before named and every of them so concluding and agreeing to or for the doing or execution of any such act or Devise as is aforesaid shall immediately from and after such concluding and agreeing loose and forfeit and be utterly barred and excluded of and from all and every such Estate Remainder and benefit as shee or they or any of them should might or ought justly to have claime Challenge and demand of in or to so much thereof as such conclusion or agreement shall extend unto or concern in such manner and forme as if she or they or any of them had not been named nor mentioned in this my last Will and Testament and that the Estate of such person c. shall cease and determine c. And after that the youngest Daughter tooke a Husband and then shee and her Husband concluded and agreed to suffer a Recovery and so to barr the Remainder and upon that the Plaintiff being the eldest Daughter entred and upon the Entry brought this Action And Harris Serjeant argued for the Defendant that this shall be a condion and not a limitation and he said that Mews and Scholiasticas Case is not adjudged against him see the Commentaries 412. b. And it shall be taken strictly for that that it comes in Defesans of the Estate and then admitting it is a condition it is not broken for this conclusion and agreement is only the agreement of the Husband and though that the Wife be joyned yet be that for her benefit or prejudice that shall be intended only the Act of the Husband and he only shall be charged as in the 48 Ed. 3 18. Husband and Wife joyne in Contract and the Husband only brings Action upon that and 45 Ed. 3. 11. Husband and Wife joyne in Covenant and the Action was brought against them both and it was abated for that shall charge the Husband only 24 Ed. 3. 38 The Husband and the Wife joyne in an Action upon the Statute of Laborers and the Writ abated and so in cases of Free-hold as 15 Ed. 4. 29. b. The Husband and the Wife being Tenants for life joyne in praying aid of a stranger and this shall be no forfeiture of the Estate of the Wife and 48 Ed. 3. 12. a. Statute Merchant was made to the husband and Wife and they joyned in Defeasans that shall not be Defeasans of the Wife and 28 H. 8. Dyer 6. The Husband of the Wife Executrix aliens the Tearme which was let to the Testator upon condition that he or his Executors should not alien and by Baldwin by the alienation of the Husband the Condition was not broken for it was out of the words so here the agreement and conclusion being made by Husband and Wife shall be intended the Act of the Husband only and so out of the Words and by consequence out of the intent of the Condition and shall be taken strictly but he seemed that the Condition shall be void for the Words conclude and agree are words uncertain for what
if a man devise his Lands to his Wife and after her death to his Son and the remainder to his sayd Wife in Fee-simple the Husband of the Wife having Issue shall not be Tenant by the Curtesie for alwayes the Judges have made such favourable construction of Wills that if Estates devised by Will might be created by act executed in the life of the party then it should be good by devise and to the objection that conclusion and agreement is uncertaine and so for that shall be voyd he saith that it is not so uncertaine as going about or resolve and determine an attempt or procure as in Corbets Case first of Coke 83. b. or as attempt or endeavour as in Germins and Arscotts Case there cyted fol. 285. a. See 6 Coke 40. a. Mildmayes Case and also the words subsequent are repugnant that the Estate tayle shall cease as if the Tenant in tayle were dead and not otherwise which is absurd and repugnant for the Estate tayle doth not determine by his death if he doe not dye without Issue And also he sayd that it is more reasonable that the perpetuity in Scholasticas Case for here the limitation depends upon agreement which is a thing certaine upon which the Issue may be joyned and also the condition doth stand with the nature of the Estate tayle and for the preservation of it and Recovery is against the nature of it for this destroyes the Estate tayle and is onely a consequent of it and not parcell of the nature of the Estate and this is the reason that Littleton saith That an Estate tayle upon condition that he should not alien is good for that preserves the Estate and also preserves Formedon for him in reversion if there be a discontinuance and with that agreed 13 H. 7. 23. 24. and he sayd that there was a Judgement in the point for his Clyent for another part of the Land and he cyted 31 Edw. 5. Fitz. Feoffment placito the last and Fitzherberts Natura brevium Ex gravi querela last Case and so concluded and prayed judgement for the Plaintiff and this Case was argued againe by Shirley Serjeant for the Defendant and he intended that the agreement is voyd to the Wife and shall be intended the agreement of the Husband onely for a marryed Wife cannot countermand Livery 21 Assis 25. and if a Woman makes a Feoffment upon condition to enfeoff upon request made by her and she takes a Husband she cannot make request after coverture 35 Assisarum So that he intended that this shall be intended the agreement of the Husband onely and not of the Wife and yet he argued that Declaration of a use by a marryed Wife shall be good according to Beckwiths Case But he sayd That the reason of that is for that that she is party to the Recovery which is a matter of Record and as long as the Record remaines in force so long the Declaration of the use shall be good and also he argued that if the condition being that if the Wife conclude or agree to any act to make discontinuance that then c. that that shall be intended unlawfull acts and Recovery is no unlawfull act and for that shall not be within the restraint of the Condition as the Earl of Arundels Case 17 Eliz. Dyer 343. and admitting that it is a limitation yet it shall be of the same nature as a condition and as well as a condition that Tenant in tayle shall not suffer Recovery is voyd So also is such Limitation void and so it was intended before the Statute of Donis Conditionalibus and it appeares by the pleading that the parties did not intend to take advantage of the agreement for it is pleaded that at the time of the Recovery suffered the youngest Daughter was seised of an estate tayl the which could not be if her estate were determined and destroyed by the agreement and conclusion so that the last words make the Forfeyture for the first are not unlawfull and before the execution of the Recovery the estate tayl is determined and so he concluded and praied Judgement for the Defendant Barker Serjeant argued for the Plaintiff It shall be intended a Limitation and not a condition for a Will shall have favorable construction according to the intent of the Devisor for a Joyntenant may devise to his Companion 49. Ed. 3. and Fitz. Na. Bre. Ex gravi querela last case A man devises Land to his Wife for life upon condition that if he marry that it should remain over to his Son in tayl and the Wife marries and the Son in remainder sues Ex Gravi querela by which it appeares that it was a Limitation and not a condition and 34 Ed. 3. devise was to one for life upon condition that if his Sonn disturbed him that then it should remaine over in taile upon disturbance he in Remainder in tail brings Formedon by which it appears it was a Limitation and with that agrees all the Justices in 29 Assisarum 17. And Wellock and Hamonds Case cited in Barastons Case before and 18. Eliz. Dyer If Land be limited to no third person by the Devise then the Heir shall enter for breaking the condition and also he said that it appears by Littleton and 13 H. 7 23. and 24 and 20 H. 7. and 17 Eliz. 343. the Earle of Arundells case which conditioneth that Tenant in taile shall not alien standeth with his Estate but not with Fee simple and so it is adjudged in Nowes and Scholasticas Case which is adjudged in the point which as he saith cannot be answered and the Words of the Condition are not that her Estate taile shall cease as if shee had been dead but as if she had not been named which is not so repugnant or absurd as the other and this compared to 34 Ed 3. Where the Estate was limited till it was disturbed And he also argued that the agreement of the Wife shall be a forfeiture notwithstanding the coverture for when the Estate is granted upon such condition he which hath the estate shall take it subject to the condition as if two Lessees are and one Seals the Counterpart onely yet the other shall be bound by the Covenants contained in it and 33 H. 6. 31. a Woman disavows to be Executor notwithstanding that shee was marryed and if Precipe had been brought against the Husband and Wife the default of the Husband shall binde the Wife and so she shall be punished for waste made during the coverture and so concluded and prayed judgement for the Plaintiff Foster Justice that an Estate of Free-hold shall not cease by agreement or conclusion without entry for it is a matter of Inheritance and Free-hold and it is not like to 33 H. 6. 31. which concerns Chattels and Goods and Walmesley Justice accorded with him Warburton Justice it hath been adjudged in Scholasticas Case that the condition was good and therefore he would not deliver his
opinion without argument Coke cheif Justice that the agreement is void to a Woman married for then she was married to a Husband whom in her life she could not contradict and a Devise upon Condition that if she conclude or agree as this Case is is void for it is a bare communication upon which the Inheritance doth not depend and so he said it hath been twice adjudged 6 in Corbets Case and Germins Case and Arscots Case and Richells Case in Littleton it was upon condition that he should not alien and this was adjudged to be void but yet if the condition were if he alien and not if go about or intend or conclude or agree as in the case at the Bar for there is no such case in all our Bookes as this Secondly For that that the Words are if they do any act that then the Estate shall cease and this is repugnant for when the Act is done then the Estate tayle is Barred and cannot cease but if it had been but a Feoffment then the right had remained and he said that such a condition had been void before the Statute of Donis Conditionalibus when it was but Fee simple Conditionall be it a Condition or a Limitation and he said that Scholasticas Case is of Fine which is only discontinuance till the Proclamations are past and if dead before may be avoided by Remitter in Germins and Arscotts Case the Condition was that if he go about or indeavour and this was adjudged to be void though that it be in devise in respect of the uncertainty and he said that the agreement or conclusion is so uncertain and may be well compared to that for here the Estate shall cease by the agreement as well as it may cease by the going about also he seemed that the Freehold cannot cease without entry for if use cannot cease without entry as he intends much lesse a Free-hold cannot though it be by Devise and he seemed that it shall be no limitation but a Condition and Judgment accordingly if cause be not shewed the next Tearm and in Trinity Tearme then next insuing this Case was argued againe by Dodridge Serjeant of the King for the Plaintiff and he said that there are three questions to be disputed First If it be a good limitation Secondly If the recovery be a breach of that Thirdly Admitting that it may be broken if the agreement of the Husband and the wife shall be said to breake it and to the first he seemed that it is a limitation and not a condition and such a Limitation that well might be with the Law and that it is a Limitation it is agreed in Scholasticas Case Commentaries and the reason of the Judgment there is that if the intent of the Devisor appears that another shall take benefit of that and not the Heire that then it shall be but a limitation and not a Condition and he in remainder shall take benefit of that and for that in the principall case Mary the Eldest Daughter to whom the Remainder was limited shall take benefit of that and with this agrees the case of Fitz. Na. Bre. Ex gravi querela last case that if a man devises Lands to his Wife for life upon condition that if she marry that the Land shall remain over and after she marryes and he in Remainder sues by Gravi querela by which it appears that it is a limitation and not a condition and with this agrees 2. and 3. P. and M. 127. Dyer Jasper Warrens Case where a man devises land to his Wife for life upon condition to bring up his Sonn Remainder over and agreed to be a limitation and not a condition and so he concluded this first point that it is a limitation and not a condition Secondly that it is a lawfull limitation for there is not any repugnancy in that as it is in Corebts before cited for there are no words of going about for he agreed that this is absolutely uncertain and void and so is Germin Arscots case where ther is not only a going about but repugnant going about for he ought to go about and before discontinuance and then his Estate shall be void from the time of the going about and before discontinuance but here it is upon conclude and agree plainly and apparently and conclude and agree is issuable and a Jury may try that and it will not invegle any man but the Law will not suffer Issue upon such uncertainty as going about or purposing but Attornements and Surrenders are but agreements and yet are Issuable And so in the principall case and in Mildmayes Case 6 Coke it is agreed that a condition that a Tenant in taile shall not suffer a Recovery is void for Recovery is not restrained by the Statute of Westminster 2. but here it is not so but in generall that he shall not conclude or agree to alien or discontinue but that which cannot be a condition good in the particular may be good in the generall as Littletons Case gift in taile upon condition that he should not alien is good otherwise of Fee simple with which 10 H. 7. 11. and 13 H. 7. 23. 24. accordingly Thirdly That it is a breach of the limitation Condition that alienation and discontinuance be by Recovery which is a lawfull act and it is a priviledge incident to the Estate taile and though that the agreement was made by the Husband and the Wife during the Coverture and so should be if the Husband and the Wife had levied a Fine see 10 H. 7 13. Condition that if the condition had been expressed that they should not levy a Fine had been void and here this verball agreement betwixt the Husband and the Wife and the third person shall be for Forfeiture of their Estates for this is the agreement of the Wife as well as of the Husband as it appears by Becwithes Case 2. Coke before cited where the Husband and the Wife agree to levy a Fine and that the Fine shall be to the use of the Connusee this is good declaration of the use though that it be of the Land of the Wife and during the Coverture and cannot be avoided by the Wife after the death of her Husband for it was the agreement of the Wife though it be not by any Indenture to declare the use of the Fine so many acts in the Country made by the Husband and the Wife shall be intended the act of the Wife as well as of the Husband as in the 17 Ed. 3. 9. The Abbot of Peterboroughs Case the Husband and Wife granted Rent for equality of partition and this shall binde the Wife after the death of the Husband for it is her act as well as the act of the Husband and shall be intended for her benefit and so here by the Recovery the Wife shall be Tenant in Fee simple which was Tenant in taile before and 34 Ed. 3. 42. feoffment to a married Wife upon
upon the Estate and to the Livery made after two Rent dayes incurred he intended that Livery is good that notwithstanding for the deferring of the Execution of a letter of Attorney shall not defeat the Lease or other meane act which amounts to a Command for the Lessâ—r takes the profits in the mean time and it is not like to Littletons case that if a man devise his land to his Executors to be sold and they take the profits and do not make Sale that the Heir may enter insomuch that the Executors have not performed the Condition and it was not the intent of the Devisor that they should take the profits in the Interim to their own use and he intended that the declaration was not repugnant for it is of the aforesaid Church and not of the Dean and Chapter aforesayd and also there need not such congruity as it were the Foundation of the Action insomuch that this is only Allegation of the truth of the matter see 1 H. 7. 18. For variance upon shewing in Deed and 17 Ed. 3. 33. b. and here the aforesaid shew that it is the same in substance though it vary in words and though that the name is altered yet are the same persons in substance and the same Body and though that it be as it is intended to be of another part yet it is but name and the Foundation then is not Issuable as if the King H. 8. had been the Founder and made speciall provision in the Foundation that after the Time of Ed. 6. it shall be said to be the Foundation of Ed. 6. this shall be good and so he concluded and prayed Judgment for the Plaintiff see after adjudged Michaelmas 9. Jacobi 1611. In the Common Bench. The Bishop of Ely THE Bishop of Ely granted an Office with the Fee for the exercising of that if it be an ancient office it is a good grant and if the Fee be newly increased yet Foster Justice thought that the Grant shall be good for the Office and for so much of the Fee as hath been anciently granted with the Office Michaelmas 1611. 9. Jacobi in the Common Bench. Holcroft against George French IN an Action upon the Case upon an Assumpsit if the consideration be Executory then the Declaration ought to contain the time and place where it was made and after it ought ro be averred In Facto when it was performed or executed accordingly but if it be by way of Reciprocall agreement then the Plaintiff may count that in consideration that he hath promised for the Defendant the Defendant hath promised to do another thing for him there he need not that the Declaration contain time or place for the consideration or otherwise that it is performed and executed But if in the first case where it is executory that is also an averment that it is executed there if the Defendant plead Non Assumpsit generally and do not plead the speciall matter he cannot after take exception to that Count for the Default aforesayd where he pleads specially to that as in an action of Trover the Conversion ought to be averred to be in a certain place and so in submission and Arbitrement they are contained in the declaration it need not to expresse any time or place certain but if the Defendant pleads that the Arbitrators made no award or that the parties have not submitted themselves to their award there the Plaintiff may reply that the Arbitrement or Submission was made at such a place and this was agreed by all the Justices Michaelmasse 1611. 9. Jacobi in the Common Bench Sir Edward Puncheon against Thomas Legate IT was adjudged in the Kings Bench and affirmed upon a Writ of Errour in the Kings Bench that an action upon the case upon an Assumpsit made by the Testator is very well maintainable against the Executor and this was for Money borrowed and so the Count speciall but not upon generall Indebitatus Assumpsit but is good without any averment that the Executors have assets over the payment of Debts due by specialty and Legacies and he sayd that the Record of the Case of 22 H. 8. with this agrees and that the book in this is misprinted and so Coke cheife Justice who publickly reported this Judgment in the Common place sayd which was adjudged in the 11 H. 8. in this Court Note that Land of which a Writ of Right Close lyeth shall be assetts in a Formedon and it is a Free-hold and not a Copy-hold and so are all Lands in ancient Demesne 3 Ed. 3. 14 H. 4. It is no matter what is known to the Judge if it be not in the form of Judgment Pasche 1611. fol. 50. HAughton Serjeant for the Defendant argued that the entry of him in Remainder is not lawfull insomuch that he intended it is not any forfeiture of the Estate tayle and first he argued that the condition is not good but repugnant to Law and for that voyd and yet he agreed that Tenant in tayl may be distrayned from making unlawfull Acts but here the condition tends to restraine him from doing of things which are lawfull as if a man makes a Gift in tayl upon condition that the Wife of the Donee shall not be indowed or that the Husband of the Donee shall not be Tenant by the Curtesie or that a Feoffee shall not take the profits of the Land though that the profits may be severed from the Land as in 16 Ed. 3. Formedon was brought of the profits of a Mill yet the condition is voyd insomuch that it is against the nature of an Estate tayl or in Fee-simple to be in such manner abridged so if a man makes a gift in tayl upon condition that the Donee shall not make waste the condition is void for the making of wast is a priviledge which is incident to an Estate tayle and for that the condition restraynes the Tenant in tayle of a thing which the Law inables him to do the condition is yoyd so a Donee in tayle upon condition that he shal not make a Deed of Feoffment or Lease for his own life as it is agreed in Mildmayes Case so here when the condition restraynes Tenant in tayl of concluding and agreeing the which in him is not any wrong no more then if a man should make a gift in tayl upon condition that the Donee should not bargaine and sell the Land this is voyd insomuch that he doth not make any wrong or discontinuance So in the case here for the thing which is restrayned that is concluding agreeing is in it self a lawfull act and also this is only the affections and qualities of the minde that they cannot make an Estate conditionall if an open act be not annexed unto it but he agreed that if a man make a gift in tayle or a Lease for life of white acres upon condition that the Donee or Lessee shall not take the profits of Black acre this is
hath the Copy-hold Estate for life in remainder was the question And it was argued by Harris Serjeant that the Estate of Fines in the body of that binds all persons but onely some which have Infirmities and by the saving Rights Titles Claimes and Interests are saved But Title comes in the conditionall perclose of saving that is so that they pursue their Title Claime and Interest c. By way of Act or lawfull Entry within five yeares next after the said proclamations had and made So that in this case the principall matter to be considered is what thing is operated by the acceptance of the Bargaine and Sale for if by that the remainder of the Copy-holder be turned to right then insues that the Fine shall be a Barr And it seemes that this determines the first Estate for life and he agreed that it cannot be a surrender insomuch that there is a mesene remainder as it is 37. H. 6. 17. b. 4. H. 7. 10. But this Lease to commence at a day to come cannot be a surrender but shall be determined and extinct by acceptance of a new Lease as it is there and in 22. H. 7. 51. a. agreed and so it was adjudged in Hillary 30. Eliz. between Wilmottand Cutlers Case that if a Husband which was seised of a Copy-hold Estate in right of his Wife accept an estate for life this determines the copy-hold Estate which he hath in right of his Wife in possession So if Lessee for yeares accept an estate of one which hath no Estate yet this determines his Tearme as it was adjudged Hillary 31. Eliz. Rot. 1428. b. That if Lessee for yeares of a Lease made by the Ancester accept an estate of Guardian in Soccage this determines his Lease which he had of the Ancestor and upon that he concluded that in this case the acceptance of a Bargaine and Sale turnes the Copy-holder in remainder to a Right and then it appeares by Saffins Case 5. Coke 125. That he shall be bound though that he hath only Interest and so of Title also and he said that it appeares by Kite and Quarintons case 4. Coke 26. a. that a Right or Title may be of Copy-hold Estate for it is there said by Wray cheife Justice that it shall be with in the Statute of 32 H. 8. chapter 9. of buying of Titles and so concluded Dodridge the Kings Serjeant agreed that the sole question is if any thing be here done to turn the Copy-hold-Estate in remainder into a right for then he agreed that this shall be barred otherwise not and to that hee intended that the first Estate for life shall be sayd to be in Esse notwithstanding the acceptance of the Bargaine and Sale as to all estrangers and especially when it is to their prejudice as if Tenant grant Rent and after surrenders his estate now between the parties the Lease shall be extinct by the surrender but to the Grantee of the Rent it shall be sayd to be in Esse and if during his life he in Remainder also grants a Rent hee shall hold the Land subject to both the Rents though that the grants be both to one self sameperson so if he in Reversion grants his Reversion with warranty and after the Tenant for life surrenders and the Grantee be impleaded he shall never vouch during the life of the Tenant for life 5 H. 5. Comment 24 Ed. 3. And here also is a custome which preserves the Copy-hold Estate in Remainder and their particular Tenant cannot that prejudice and for that also it shall not be turned into a right as if a Copy-hold Estate be granted to one for life by one Copy and after the Lord grants another Estate for life by another Copy to another and then the first Copy-holder commits forfeiture he which hath the second estate cannot take advantage of that but the Lord shall hold it during the life of the first Tenant for no act made by the particular Tenant shall prejudice him in Remainder for otherwise many Inconveniencies would insue upon that as by secret conveyances or as if a grantee of a Rent charge grant that to the Tenant of the Land for his life the Remainder over the Remainder shall be good notwithstanding that the particular Estate bee extinct and drowned also he intended that the Copy-hold Estate is another thing then the land it self and for that the Fine shall not be a Barr no more then in Smith and Stapletons Case Com. Where a Fine levied of Land shal not be a Barr of Rent insomuch that it is another thing so in this case he intended that the fine shall not be a Barr of the Copy-hold Estate and concluded c. Wynch Justice was of opinion that the Fine shall not be a Barr to the Copy-hold Estate in Remainder for the acceptance of the Bargaine and Sale doth not determine the first Copy-hold Estate for life as to him in Remainder but only to the first Tenant and the Lord and betweene those he agreed that the Copy-hold Estate is determined as in Heydens Case by acceptance of a Lease for years and for that the Remainder shall not be turned to a Right and by consequence shall not be barred and for that he supposed that the reason that the Fine was a Bar in Saffins Case 5 Coke 123. b. was insomuch that the Lessor entered made a Feoffment and after levied a Fine and it is there agreed that the Feoffment turnes the Estate of the Lessee to a Right and for that the Fine shall be a barr and also there the Lease was by limitation of time to have a beginning but if a man makes a Lease for years to begin at a day to come and before the beginning of that makes a Feoffment or is disseised and Fine with proclamation is levyed yet he which hath future Interest shall not be barred for this is not turned to a Right and it was not the intent of the Statute of Fines to make a Barr of right where there was no discontinuance or Estate at least turned to right and this was the cause that at the Common Law Fine with Non-claime was no Barr but where they make alteration of possession and he cited Palmers case to be adjudged that a Fine of Land shall not be a barr for Rent where the case was Lessee for life Remainder for life of Rent The first Lessee for life of the Rent purchaseth Land and levies Fine of that and adjudged that this shall not binde them in Remainder of the Rent no more if he in remainder levy a fine that shall not prejudice the particular Tenant and so he concluded in this case that the Ramainder shall not be barred and that the Plaintiff shall have Judgment Warburton Justice accordingly and he argued that the Statute of Fines containes two parts The first to barr those which have present right and they ought to make their claim within five yeares after the Fine levied or otherwise they
shall be barred And the second those which have Right title or interest accrued after the Fine levied by reason of any matter which preceded the Fine and in both cases the Estate which is barred ought to be turned into a right or otherwise it shall not be barred the which cannot be here for the estate is given by the Custome and it is to have his beginning after the Death of the first Tenant and though that the first Tenant commit Forfeiture yet he in remainder cannot enter for his time is not yet come as in 45 Ed. 3. is a collaterall Lease with warranty to the Tenant for life in possession this shall not be a barr insomuch that it is made to him which hath possession so if a man make a Feoffment upon condition and the Feoffee levy a Fine with proclamations and five yeares passe and the condition is broken the Feoffee may enter at any time otherwise if the Fine had been levied after the condition broken and so if the Lord be intituâ—ed to have Cessavit and Fine is levied by the Tenant and five yeares passe he shall be barred and this was the cause of the Judgment in Saffins case insomuch as the Lessee had present interest to enter and this was altered into a Right by the Feoffment and then the Fine was a Barr but here he in Remainder hath no right till after the Death of him which was the first Tenant and then his right to the possession begins and then if a Fine had been levied with proclamation this shall be a Barr and so he concluded that Judgment should be entered for the Plaintiffe Coke cheife Justice accordingly and he agreed also that the sole question is if by acceptance of a Bargaine and sale by the first Tenant for life the Remainder be turned into a right and he sayd that right sometimes sleepeth but it never dyes but this shall be intended the right of the Law and not right of Land for that may be barred by Writ of Right at the Common Law and he intended that Copy-holdes are within the Statutes of Fines be they Copy-hold for life yeares in tayl or in fee for the third part of the Realme is in Copy-holdes and two parts in Lease for yeares and if these shall not be within the Statute then this doth not extend to three parts of the Realme and it is agreed in Heydons case 3 Coke 8. a. That when an act of Parliament doth not alter the Tenure Service Interest of Land or other thing in prejudice of the Lord or of the custome of the Mannor or in prejudice of the Tenant there the generall words of such act of Parliament shall extend to Copy-holds and also it is resolved to be within the Statute of 32 H. 8. Of Maintenance and also it is within the expresse Letter of this which containes the word Interest and Copy-holder hath interest and so also of Tenant by Statute Merchant then the question will be if the acceptance of a Bargaine and sale turnes that to a right and he intended that his Estate for life remaines though that it is only passive in acceptance of Bargain and sale and for that it shall not be prejudice more then if Tenant at will accepts a Bargaine and Sale for his Estate at will this notwithstanding remaines but if Lessee for years or life accepts a Fine upon conusance of right this is a forfeiture insomuch that it is a matter of record and it shall be an estoppel to say that he did not take Fee by that doth not admit the Reversion to be in another also insomuch that the Bargain and sale was executed by the Statute for this cause it shall not be prejudice as it was adjudged in the Lady Greshams case in the Exchequer 28 Eliz. Where two severall conveyances were made with power of Revocation upon tender of ten pound and adjudged by act of Parliament that a revocation was good and also that no license of alienation shall be made insomuch that it was by act of Parliament which doth no wrong and it is for the Trespasse for which the party ought to have license and if it be not Trespasse there need no license before hand nor pardon afterwards So if a man makes a Lease for yeares remainder for yeares the first Lessee accepts Bargaine and Sale this shall not turn these in remainder to prejudice Thirdly it seemes to him also that notwithstanding the acceptance of the Bargain and Sale the first Copy-hold Estate for life remains in Esse and is not determined For this differs from an Estate of Land for it shall not be subject to a Rent granted by the Lord the first Estate remaines till all the remainders are determined for the first tenant for life cannot surrender to the Lord also it is customary estate for by the Common Law this being granted to three successively this shall be determined and extinct for the third part for they three take into possession and the word successively shal be taken as void but here the Custome appoints that the remainder shall not have his beginning till the death of the first-Tenant and that they should take by succession and for that there is a difference between this customary Estate and other Estates at the Common Law and other surrenders for if a Copy-holder surrender to the use of another for life nothing passeth but for life only the Lord hath not any remainder by this Surrender and if this Tenant for life commits forfeiture he in reversion shall not take advantage of that and if at the Common Law Tenant for life remainder for life or in fee be and the first Tenant for life makes a Feoffment and after levies a Fine and resolved that he in reversion should not be bound till 5 years are incurred after the death of the 1. Tenant for life for then his title of Entry first accrues in apparancy and before that is in secrecy of which he in remainder is not held to take notice and so in this case he in remainder shall not be bound till five yeares are incurred after the death of the first Tenant and the rather insomuch as the first Estate remaines for that that the first Tenant was only passive and not active and so he concluded that Judgement shall be given for the Plaintiff insomuch that the Fine was no Bar and upon this concordance of all the three Justices in opinion no other Justices being present this Tearm Judgment was entered accordingly Pasche 1612. 10. Jacobi in the Common Bench. Danyell Waters against the Deane and chapter of Norwich IN covenant The case was this in 37 H. 8. the then Deane and Chapter of Norwich made a Lease to one Twaits for fifty yeares which ended 35 Eliz. in time of Ed. 6. The then Dean and Chapter surrendred all their possessions to the King which those newly endowed and incorporated by the name of Deane and Chapter of the foundation
and before the originall purchased the Indentnre was by the assent of the Plaintiff and the Defendant cancelled and avoyded and so demands Judgment if action and it seemes by Coke cleerly that the Plea is not good without averment that no Covenant was broken before the cancelling of the Indenture Pasch 12. Jacobi 1612. In the Common Bench. Barde against Stubbing IT was moved in arrest of Judgment that the Venire facias wants these words Et habeas ibidim nemina Juratorum but the words Venire facias duodecim c. were incerted and it seems by all the Justices that it was good and that the first words are supplyed in the last and they are aided by the statutes of Jeofai es after verdict and so it was adjourned In Audita querela sued by the sureties upon an escape made by the principall they being in execution offered to bring the Money into the Court or to put in sufficient Sureties to the Court and so prayed that they might be bayled and it was agreed that if Audita querela be grounded by specialty or other matter in writing or upon matter of Record Supersedeas shall be granted before that the party be in Execution and if he be in execution he shall be bayled but if it be founded upon a matter in Deed which is only surmise he shall not have Supersedeas in one case nor shall be bayled in the other case and so was the Opinion of all the Justices In an Action of Waste for digging of earth to make Brick Estrepement was awarded and upon Affidavit that the Writ of Estrement was delivered to the Sheriff and that he gave notice of that to the party and he notwithstanding that continues to make waste attachment was awarded Pasch 12 Iacobi 1612. In the Common Bench. Fetherstones Case Trinity 1612. IN Ejectione firme The Plaintiff had Judgment and an Habere facias possessionem to the Sheriff of Coventry which returnes that he had offered possession to the Plaintiff and he refused to accept it and it seems that the Plaintiff cannot have Habere facias possessionem insomuch that it appeares by the Record that he hath refused to have the possession The case was A Dean and Chapter being Lord of a Maunor parcell of the Demesnes of the Mannor being severall adjoyned to the Common which was parcell of the wast of the Mannor and one Copy-holder which had Common in the sayd Wast puts his Beasts into the sayd waste to take his Common and they for default of inclosure escape into the sayd Demesnes by which the Lord brings his action of Trespass and upon this the Defendant pleads the speciall matter and that the Lord and all those whose Estate he had in the said place where the trespass is supposed to be made have used to fence the said place which is parcell of the Demesnes of the sayd Mannor against the Commoners which have Common in the sayd Common being parcell of the waste and also of the demesnes of the sayd Mannor and that the Beasts of the sayd Defendant escaped into the sayd place in which c for default of inclosure and so demands Judgment upon which the Plaintiff demurrs in Law In the agreement of which it was agreed by Hutton and Haughton the Serjeants which argued it whether a man by prescription is bound to make fence against Commoners as it is agreed in the 22 H. 6. 7. 8. 21 H. 6. 33. But the doubt which was made in this case by Haughton which demurred was for that that the Lord which by the prescription ought to inclose is owner of the soyle also against which he ought to inclose and so he ought to inclose against himself and for that he supposed that the pleading should have been that there is such a custome there and of time out of minde that the Lord shall inclose against the Common insomuch that by that the Copy-holder would bind the Lord and upon that it was adjourned c. Pasch 12 Jacobi 1612. In the Common Bench. Sir Henry Rowles against Sir Robert Osborne and Margeret his Wife IN Warrantia Charte the case was Sir Robert Osborne and his Wife levyed a Fine of the Mannor of Kelmersh with other Lands in Kelmersh to Sir Henry Rowles against all persons and this is declared for the Lands in Relmersh to be to the use of Sir Henry Rowles for life with diverse Remainders over and for the Mannor no use was pleaded to be declared at all and then a Writ of Entry in the Post was sued against the sayd Sir Henry Rowles which vouched Sir Robert Osborne and his sayd wifeâ— and this was declared for the sayd Lands to be to the use of the sayd Sir Henry Rowles for his life with other Remainders over which were declared upon the Fine of the Lands in Kelmersh only and of the Mannor of Kelmersh no uses were declared upon the Recovery also and upon this Recovery pleaded in barr the Plaintiffe demurred and it was argued by Dodridge Serjeant of the King for the Plaintiffe that the Plea in Barr was not good insomuch that it doth not appeare that the warranty which was executed by the Recovery was the same warranty which was created by the Fine and also the Fine was taken for assurance against the Issue in tayle and the Recovery to Barr the remainders and so one shall not destroy the other and for the first he sayd that a man may have of another severall warranties and severall causes of Voucher and all shall be together for warranty is but Covenant reall and as well as a man may have severall Covenants for personall things as well he may have severall reall Covenants for one self same Land as if the Father infeoff one with warranty and the Sonn also releases to the same Feoffee with warranty or if the Father infeoff one with warranty against him and his Heires and the Sonn release with warranty against all men the Feoffee may vouch one and Rebut against the other so of Warranty of Tenant in tayle and release of an Ancestor collaterall with warranty in Law and expresse warranty as it is agreed in 31 Ed. 1. Fitzh Voucher 289. And upon that he concluded that a man may have severall warranties of one selfe same man and the one may be executed and the other remaine notwithstanding that it be for one selfe same Land and he supposed the effect of these warranties are as they are used for if that may vouch generally and bind himselfe upon the Fine or upon his owne warranty or upon the warranty of his Ancestor notwithstanding that the voucher be generally as it is 31. Ed. 3. Warranty of Charters 22. So if he be vouched as Heire though that it were speciall but if he be Heire within age otherwise it is for that is a good Counter Plea that he was within age and so praied that the word might demur during his nonage 17.
a possibility only which cannot be granted surrendred or released and yet he agreed that if Lessee for life grant or demise the land all his Estate passeth without making of any particuler mention of it as it is agreed in 10. Eliz. Dyer And for that when the Lessee hath devised the Lands to his Father for his life that which remaines is only a possibility for it doth not appeare for what yeares the Sister shall have it and for that meerely uncertaine 7. Eliz. Dyer 244. The King Ed. 6. appropriated a Church to the Bishop to take effect after the death of the present Incumbent the Bishop after that makes a Lease for yeares to begin after the death of the Incumbent and void for the uncertainty for the Bishop hath no perfit Estate but future Interest which is meerely impossibility and with that agreed Locrofts Case in the Rector of Cheddingtons Case 1. Coke where Lessee for yeares makes assignement of so many of the yeares as shall be to come at the time of his death and void for the uncertainty insomuch that it is meerely possibility for that which may be granted or surrendred ought to be Interesse Termini at least And he supposed it could not be released insomuch that he to whom the release is made hath all the Tearme if he lived so long and so he concluded and praied Judgement for the Plaintiff Harris Serjeant for the Defendant argued that the first devisee had two Titles one as Executor and another as a Legatee and before entry and after that he had entred also the Law doth adjudge him in as a Legatee and before that he enter he may that grant over notwithstanding that he hath not determined his Election for the Law vests the property and possession of that in him before any entry but to make an election there ought to be some open Act done as it is agreed in Welden Eltingtons Case where that the first devisee which was Executor also made expresse claime to have the Tearm as Legatee and not as Executor and so vested the remainder also see Com. 519. b. And so in Paramore and Yardlies Case Lessee for years devises his Tearme to his Executor during his life to educate his Issues the which the Executor doth accordingly and this open act was resolved to be a good election and in Mannings case 8 Coke 94. b. The Executor which hath the 1. Estate devised to him saith that he to whom the Remainder was limited shall have it after his Death and this resolved to be a good Execution and election and it is there resolved that such Election made by the particular Devisee is a good Execution for him in remainder but here is not this Election to have this as Legatee nor Executor for there is not any overt Act made by which this may be done Secondly he conceived that this is no remainder but Executory devise as it is agreed in Mannings Case and that this may be done by Devise which cannot be done by the party by act Executed and for that he conceived that there is no possibility but an Estate Executed and vested in him which is Executor though there be no election made nor Execution of the Legacy and admitting that it is but a possibility yet he conceived that it is Propinqua possibilitas insomuch that the Tearme is longer then it may be intended that any man might live insomuch that Adam lived but 950. yeares and this is five thousand yeares which is longer then any man in the world ever lived and he said that it is agreed in Fullwoods Case that possibility may be released to a possession and with this agreed the opinion of Strange in the 9 H. 6. 64. And so warranty may be released which is meerly in contingency as it is agreed in Littleton and power of revocation may be extinct by release of him that hath the possession of the Land and so he concluded and prayed Judgment for the Defendant Nicholls Serjeant for the Plaintiff conceived that the Remainder is in Esse and not determined by the Release And first he conceived that the Remainder was executed insomuch that the Release was made at the Request of the Father which was the first Devisee for this shewes his assent and implies that he took notice of his Remainder and assented to it and he sayd it was adjudged in Doctor Lawrences Case that the speaking of these words by the Executors that is that they were glad of the Devise was a good Execution and assent of the Legacy Secondly He conceived that it is only possibility and for that cannot be released or granted and he saith that the Law hath great respect of possibilities that Estates may revert and for that it is adjudged in the 13 of Richard 2. Dower 55. If Tenant for life grants his Estate to him in remainder in tayl for his owne life the Tenant enters takes a Wife and dies she shall not be Indowed but the Tenant for life shall have it againe and it shall be as it had been let to a stranger and to this purpose also he cited 18. Ed. 3. 8. Counter-Plea of voucher 8. And it was adjudged in Middletons Case 5. Coke 28. a. that an Executor before probate of the Will may release a Debt but not an Administrator before Administration granted see Com. 277 278. Fox and Greisbrookes Case and in 6. Ed. 3. Lessee for anothers life rendring Rent the Rent was behind and the Lessor releases to the Lessee all Debts he For whose life dies and there the Release determines and discharges the arrerages for it is a duty and Debitum is Latine as well for Debt as for duty also release bars the Lord and Writ of deceit for reverser of a Fine levied of land in ancient Demesne as it is 7. H. 4 and yet Littleton saith that release of a futrue thing shall not be a barr and for that if Conusee of Statute Merchant release all his Right in the land yet he may extend the Statute 15. assis And so if a mad man release and after come to his wits and dies Quere if the Heire may have a Writ of non compos mentis And he said that it was adjudged in the 25. of Eliz. If an Infant levie a Fine and after he levies another Fine this shall be a Barr in a Writ of error for the reversing of the first otherwise of a release And here to the principall case to a release made by the Son in the life time of his Father without warranty And so upon all these cases he concluded and prayed Judgment for the Plaintiff Shirley Serjeant for the Defendant argued that the acceptance of Release by the first Devisee shall not be execution of the Devise as it was adjudged in Barramores and Yardleys case by the Education of the Issue or a Devise upon condition to pay money and the Executor pays it this is a good execution
Prerogative of a Prince and is part of Law and stands with it and this is reasonable custome and so it hath been adjudged in the Kings Bench the reason is insomuch that the custome is the life of the Copy-hold upon which that depends and the party is but a Conduit to nominate the Tenant and when he is nominated and admitted then he takes by the Lord and that stands with the rules and reasons of the Common Law that is that a man devises that a marryed wife shall sell his Land and she may sell notwithstanding the Coverture for she upon the matter nominates the party and he takes by the Devise and by this reason she may sell to her Husband as it is agreed by the 8 of Assises And also by devise that Executor shall sell Executor of Executor may sell notwithstanding that he is not in Esse at the time of the Devise and so a Lease for life to one Remainder to him that J. S. shall nominate is good after nomination and then he takes by the first Livery as it is agreed in 10 H. 7. and J. S. Only hath the nomination and nothing passes to him and with this also agrees 43 Ed. 3. 19 H. 7. So if a man makes a Feoffment to the use of himself for life with diverse Remainders over and power to himself to make Leases for three lives this is good as it is agreed in Mildmayes Case and Whitlocks Case 8 Coke and yet the Estate doth not passe from him but out of all the Estates and he upon the matter hath only the nomination of the Lessee and of the lives for all the estates apply their forces to make that good and the 2 El. Dyer 192. 23. Custome that the Wife of the Copy-holder for life shall have her Widdows Estate is allowed to be a good custome and there an Estate for life upon the matter is raised out of the estate for life and annexed to it and this is by the Custome and the reason he conceived to be for that that Women should be incouraged to marry with their Tenants and by that the marriage with the Tenant and the custome in this Case doth bind the Lord and so 4 Coke there are divers customes by which the Lord is bound and the 8 Coke Swaines Case where the Copy-holder by custome hath the Trees in Case where the Lord himself hath them not so if the Lord sell the Waste yet the Copy-holder shall not loose his Common in that notwithstanding that the Estate of the Copy-holder be granted after the Wast is severed from the Mannor and it is agreed in Waggoners Case 8 Coke that custome is more available then the Common Law And for that this cnse hath been adjudged in this point between Crab and Varney by three or four Judges he would not further question it And for the second custome he agreed that one bare Tenant for life could not meddle with the Sale or falling of the Trees but here is a Copy-holder for life which hath Aut ority given by the Lord and the Custome to dispose the Trees and he saith that Bracton and the old Laws of England calls Copy-holders Falkland and saith they cannot be moved but in the hands of the Lord they ought to surrender and agreed that this is within the Rules of the Common Law for Consuetudo privat communem legem and the Law doth nor give reason of that for this is as a ground and need not to be proved for the reason of every custome cannot be shewed as it was sayd in Knightly and Spencers Case and he sayd that Mannors are divided into three sorts of Tenures The first holds by Knights Service and this is for the defence of the Lord and they have a great number of Acres of Land and pay less Services The second holds by Socage and this for to plow and manure the Demesnes of the Lord and they shall pay no Rent nor do other services and this was at the first to draw such Tenants to inhabit there and for that they have Authority to dispose and sell the Trees growing upon theit Tenements The third holds by base Tenure and these were at the Will of the Lord and these were to do Services and then these in many Cases have liberty for their Wives in some cases to dispose that for another life and to dispose the Trees and so it is in Ireland at this day where some give more and greater priviledge then others to induce Tenants to inhabite and manure their Land for there every day is a complaint made to the Councell for inticing the Tenants of the Lord and 14 Ed. 3. Bar 277. The Tenant preseribes to have the Windfalls and if the Lord cut the Trees that he may have the Lops and 11 H. 6. 2. The Keeper of the Wood prescribes to have Fee and 46 Ed. 3. is prescription to stint the Lord in his own Soyl and all these are for the Incouragement of Tenants to inhabit upon the Land and time of Ed. 1. Prescription 75. A stranger prescribed to have all the profit of the Land of another for a great part of the yeare and to exclude the giver of the Soyl 6 Ja. It was adjudged in the Kings Bench between Henrick and Pargiter that the Lord may be stinsted for Common in his own Laud and in the Book of Entries 563. It appears that by Custome Copy-hold granted Sibi suis was a good Fee-simple and the reason of all this is shewed in the 4. Coke amongst his Copy-hold Cases where it is agreed that the Life of a Copy-hold Estate is the customes and then if the Custome gives life to the Estate this gives life also to all the Priviledges which are incident to the Estate and the Lord is but the means to convey the Estate from one to another and as in 38 Ed. 3. A man hath a House as Heir to his Mother and after a stranger grants Estovers to him and his Heirs to be burnt in the same House these Estovers shall go to the Heirs of the Mother insomuch that they are incident to the House so of Priviledg incident to a Copy-hold Estate by the Custome and at the Common Law if Tenant for life hath cut the Trees he hath not forfeited his Estate for he was trusted with the Land and was not punishable till the Statute of Glocester and at this day if there be a mesne Remainder for life which remains in Contingency and that shall prevent that the Tenant shal be punished for this waste and to make innovation of this custome will be dangerous and for that he concluded that the Plaintiff shall be barred Warburton Justice agreed And the first Custome that is for the nomination of the Successor he conceived that it is good and that it is good by the Common Law and good by Custome by the Common Law as a Lease for life remainder to him which the Tenant for life shall
all their Study is practise and that if they have no practise of themselves then they attend upon others which practise and apply themselves to know the nature of Simples And to third objection that in London ought to be choyce men for the Statute appoints that they shall be examined by the Bishop and Deane and four others at least and for that there is a more strict course for them then in other places to that it is agreed But he said that in the University there is a more strict course then this for here he ought to be publickly approved by many after that he hath been examined and answered in the Schooles to diverse questions and allowed by the Congregation house And 35. H. 6. 55. Doctor is no addition but a degree quia gradatim et progressâ—one Doctrine provenit to that and that Doctor is teacher and that he was first taught by others as Scholers afterwards he is Master and Doctor dicetur a docendo quia docere permittitur and they are called Masters of their faculty and that the Originall of Doctor came of the Sinagogue of Jewes where there were Doctors of Law and it appeares that they had their ceremonies in time of H. 1. And when a man brings with him the Ensigne of Doctrine there is no reason that he should be examined againe for then if they will not allow of him he shall not be allowed though he be a learned and grave man and it was not the intent of the King to make a Monopoly of this practise And to the second point that he propounded it seemes that the Justification is not good which is Quia non comperuit upon Summons he was amerced and ordered that he shall be arrested and being arrested being examined if he would submit himself to the Colledge he answered that he was a Doctor and had practised and would practise within the sayd City as he conceived he might lawfully do and for that shewing of this case he was committed to prison and he conceived two things upon the Charter First That it doth not inhibit a Doctor to practise but punisheth him for ill using exercising and making and may imprison the Emperick and Imposter and so prayed Judgment for the Plaintiff and after in Hillary Tearm in the same year this case was argued by all the Justices of the Common Bench and at two severall dayes and the first day it was argued by Foster Daniell and Warburton Justices at whose Arguments I was not present but Foster argued against the Plaintiff and Daniell and Warburton with him and that the Action of false imprisonment was well maintainable And the second day the same case was argued again by Walmesley Justice and Coke cheife Justice and Walmesley argued as followeth that is that the Statute of 3. H. 8. was in the negative that no person within the City of London or seven Miles of that take upon him to exercise or occupy as Physitian or Chirurgion c. And he doth not know in any case where the words of the Statute are negative that they admit any Interpretation against that but one only and that is the Statute of Marlebridge chapter 4. Which provides that no Lord shall distrain in one County and the beasts distrayned drive into another County in which case though that the words are uegative yet if the Lord distrain in one County he may drive the Beasts to his Mannor in another County of which the Lands in which the distresse was taken were held but it is equity and reason in this case that the Statute should admit such exception for it is not of malice but for that that the Beasts may remain within his Fee but in the principall case there is not the like reason nor Equity And also the King H. 8. in his Letters Patents recites as followeth that is Cum Regij officij nostri munus arbitremur ditionis nostri hominum felicitati omni ratione consulere id autem vel imprimis fore si Improborum conatibus tempestive occurremus apprime necessarium duximus improborum quoque hominum qui medicinant magis avaritiae sue causa quam ullius bonae conscientiâ— fiducia profitebantur c. By which it appears that it is the Office of a King to survey his Subjects and he is as a Phisitian to cure their Maladies and to remove Leprosies amongst them and also to remove all fumes and smells which may offend or be prejudiciall to their health as it appears by the severall Writs in these severall cases provided and so if a man be not right in his Wits the King is to have the Protection and Government of him least he being infirme wast or consume his Lands or Goods and it is not sufficient for him that his Subjects live but that they should live happyly and discharges not his Office if his Subjects live a life but if they live and flourish and he hath care as well of their Bodyes as of their Lands and Goods for Health for the Body is as necessary as vertue to the minde and the King H. 8. to express his extraordinary care of his Subjects made the said Act in the third year of his Reigne which was the beginning of his Essence to that purpose and by the Common Law any Phisitian which was allowed by the University might practise and exercise the sayd faculty within any place within England without any dispensation examination or approbation of any but after the making of the sayd Act made in the third year of King H. 8. none may practise exercise or occupy as Phisitian or Surgion within theCity of London and seven miles of that if he be not first examined approved and admitted by the Bishop of London and the Dean of Paules for the time being calling to them foure Doctors of Phisick or Chirurgions c. And that no practiser may occupy or exercise the sayd faculty out of the sayd Precincts if he be not first examined approved and admitted by the Bishop of the Diocess or in his absence by his Vicar generall every of them calling unto him such expert persons in the said faculty as their discretions thinks convenient and the reason of this difference as he conceived was for that that in this City and the sayd Precincts the King and all his Councell and all the Judges and Sages of the Law and divers other men of quality and condition live and continue and also the place is more subject unto Infection and the Heir more pestiferous and for that there is more necessity that greater Care diligence and examination be made of those which practised here in London and the precincts aforesayd then of those which practise in other places of the Realm for in other places the People have better aire and use more exercise and are not so subject to Infection and for that there is no cause that such care should be used for them for they are not in such danger and
every Knight and that diverse of those Fees were received and this office being litigious were delivered to be detained in Deposito and to be delivered to him which was Officer and the plaintiff brought an Action by the name of Chester as Officer and recovered those Fees and this was resolved good Seisin and also that Seisin after the grant of the Office and before the investing of the Patentee by the Marshall was good for the Investing was but a ceremony it was also resolved that where an office extends to all the parts of England and that here an Assise doth not lie in any County though that the dissesin were made in one County but the Assise be brough for the profit of the office in one County and not for the office it selfe 43. Ed. 3. Feoffments and Deeds That by Grant of the profits of a Mill and Livery the Mill it selfe passes so that taking of the profits is dissesin of the office also it was objected that the Demandant was no officer for though that he hath a Patent of it yet he was not Invested nor Installed in the office which appeares to the Marshall and for that he was no Officer and so hath no cause to have Action And that this is an office which is incident and annexed to the office of Earle Marshall and though that he be not Earle Marshall yet there are Commissioners have his power and authority and for that the Investing and Instalment of the Plaintiff in the said office appeares to the said Commissioners but it was resolved cleerely by all the Justices that the Demandant was Officer by the Kings Grant without any Installation or Investing and that this without that all the Fees and Profits of the office appertayning to him and that the Investing and Installation was but a ceremony in the same manner as if the King hath a Donative and gives that to another the Donee shall be in actuall possession by the gift without any Induction or other ceremony But admitting that the office were annexed to the office of Earle Marshall then it was agreed that the Commissioners cannot give it as the cheife Justice of the Common â—ench hath divers offices appertaining to his place and he may dispose of them But if he die the King in time of vacancy nor the most ancient Judges cannot give or dispose of any of them being void as it appeares by Serrogates Case Eliz. Dyer And so the cheife Justice is made and allwaies hath been made by Patent and so are the other Justices and for that they cannot be made by Commissioners and so the cheife Justice of England hath all times been made by Writ and for that cannot be made by Patent nor by Commission And so in the case at the Barr though that the Commissioners have the power and authority of the Earle Marshall yet they are not Earle Marshall it was also objected that the Fees were not due to the Plaintiff for that he did not attend But to that it was answered and resolved that the Fees were due to the office and for that non attendance of the office was no forfeyture of the Fees And upon these resolutions the Recognitors found for the Demandant according to the direction of the Court. Trinity 7. Jacobi 1609. In the Kings Bench. Godsall GODS ALL and his Wife The Proclamations of the Fyne were well and duly entred in the Originall remaining with the Chirographer But in the Transcript with the Custos brevium was error and it seemeth that this notwithstanding the Fyne was good but the Transcript was amended Trinity 7. Jacobi 1609. In the Kings Bench The Town of Barwicke THE King which now is by his Letters Patents Incorporated the Mayor Bayliffs and Burgesses of Barwicke and granted to them the execution of the Returne of all Writs And after a Writ of Extendi facias was directed to them and they made no returne of that and upon this was the question if that shall be executed by them or by the Sheriff of Northumberland And it seemed to Nicholls Serjeant that argued for the Plaintiff in the extent that desired execution and the returne of that that they ought to make execution and returne for it seemes to him that this was English and that this appeares by the Act of Parliament by which the Incorporation was confirmed and so it appeares also by the Letters Patents of the King by which the Incorporation is made for if it were not English neither the Letters Patents nor the Act of Parliament are sufficient to make Incorporation of that and also they certified Burgesses to the Parliament of England And the Kings Bench sent Habeas Corpus to it and for the not returne of that inflicted a Fyne upon the Corporation See 21. Ed. 3. 49 and 1. Ed. 4 10. But Hutton Serjeant seemed to the contrary and that they ought not to make execution for he said it is a part of Scotland and not part of England and it was conquered from that and it was a Sherifwicke and hath the same priviledges of ancient times which they now have by their new Grant See 24 Ed. 1. and 2. Ed. 2. Obligation c. That one Obligation dated there shall not be tryed in England and also that it is not within the County of Northumberland nor part of it nor the Sheriff of Northumberland cannot meddle in it see 2. H. 7. 31. 26. H. 6. 23. and it is adjourned It seemes that Jacob and James are all one name for Jacobus is-Latine for them both but Walmesley conceived that if he be Christened Jacob otherwise it is as if one be Christened Jacob and another James then they are not one selfe same name Note that Coke cheife Justices said that if Commissioners by force of Dedimus potestatem take a Fine of an Infant that they are Fynable and ransomable to the value of their Lands and that this shall be sued in the Star chamber Trinity 7. Jacobi 1609 In the Common Bench. Robinson RObinsons Case A man devises Lands to his Wife for life the remainder to his Son and if his Son dies without Issue not having a Son that then it should remaine over and it seemed that this it a good Estate tayl and it was adjudged accordingly If a man makes a Lease for three yeares or such a small Tearme to his Son or Servant to try an Ejectione Firme or if it be made to another Inferion by a Superior which cannot countenance the Suit it shall not be intended Maintenance nor buying of Tytles which shall be punished Trinity 7 Jacobi 1609. In the Common Bench. NOte an Attorney of the Common Bench was cited before the High Commission and committed to the Fleet for that he would not swear upon Articles by the Commissioners ministred and Habeas Corpus was awarded to deliver him and a Prohibition to the Court of high Commission see 1. and 2. Eliz. Scroggs case
have Elegit and for that being in Prison he prayed execution of his Body and had it but if the party gets out that he hath no execution that it is not his default he shall have Elegit after for that that he cannot have his purpose according to his first election And if any be in this case then upon that he inferrred that the party in this case may have a Fieri Facias against the Executors And also it is resolved by the whole Court in the Common Bench 29 H. 8. B. Execution 132. That if two are bound in an Obligation conjunctim devisim the Obligee impleads one and hath execution of his body and after impleads the other and condemns him hee may have Execution against him also for the taking of the body is good execution but it is no satisfaction and therefore he may take the other also but if he have satisfied the Plaintiffe he shall not have execution afterwards And therefore this Order that the Plaintiff upon an Obligation shall have but one Execution is intended such an Execution which is a satisfaction See 33 H. 6. 48. b. 4 H. 7. 8. 4 Edw. 4. 38. 5 Edw. 4. 4. 5 Coke 92. Blumfields case resolved by all the Court that if the Defendant in debt dye in Execution that the Defendant shall have new execution by Elegit or Fieri Facias for the death of the Defendant is the act of God which shall not turn the Plaintiff to prejudice as it is said in Trewynyards case 38 H. 8. Dyer 60. The Plaintiff shall not be prejudiced of his Execution by act in Law which makes no wrong to any And to the first Objection which may be made against him that is That all processe are determined after the party is taken and in execution to that he answered that this is where the Plaintiff hath satisfactory execution as it appears by 41 Edw. 3. 13. where an action of Account was brought against two one was out-lawed and the other comes by the Exigent and enters in the Court and he which was out-lawed obtained his charter of pardon and for that that processe was determined against him And the Plaintiff hath chosen to have his action against the other he prayed that he may be discharged But it was resolved that the processe was not determined nor he which was out-lawed shall not be discharged till the Plaintiff be satisfied by which it appears that the process is not determined till execution with satisfaction Two other Objections also he endeavoured to answer that is that the Plaintiff hath determined his election by taking the Capias and that cannot resort to any other Process and to that he agreed that where the party hath made such election that he cannot resort to any other Process during the life of the party But if the satisfaction be prevented by the act of God as in the principall case But when his person which was the pledg for the debt and was to remain in prison till the debt be satisfied is discharged by the act of God and the Plaintiff hath not the fruit of his Suit nor the Judgement is not satisfied and the Plaintiff hath done all that hee can and there was no defect in him it is no reason but that he may have new processe and the third objection is a Judgment which was given in the Kings Bench Pasche 43. Eliz. Rot. 58. between Williams and Curtiz And to that he said that he he conceived that this was a rule for default of prosecution for the cause was referred to Arbitrement and so hanged for long time and so though the Judgment was directly against Law in the principall points yet for that that it was not upon solemn argument of the Judges hee saith it is not to be compared to other authorities by him cyted before for which he includes and prayed Judgment for the Plaintiff Hutton Serjeant that argued for the Defendants conceived the contrary and first he examined how the body of a man cometh subject and lyable to any Execution and to that he said that by the Common Law the body was not subject to Execution for the debt of any man but in accompt only a Capias ad computandum lyes and no other processe in this action but distresse infinite till the Statute of Marlbridge Chap. 23. and West 2. Chap. 11. Capias was given in Accompt for by the Common Law the Processe in that was Distresse Infinite as aforesaid and after by the Statute of 25 Edw. 3. Chapter 17. Such like Processe was given in debt as in accompt and before that the body of the Defendant was not lyable to execution for debt if it be not in the Kings case as it appeares by Sir William Harberts case 12. a. And upon this he inferred upon the words of the Statute of 25 Ed. 3. Chap. 17. which saith that such like Processe shal be in debt as were in accompt That after the Plaintiff hath determined his election and taken a Capias that then he is in the same case as if it had been in accompt and for that he cannot resort to any other Processe And he said that the words of the Elegit and Fieri Facias do not differ in substance from the words of Capias for there is to satisfie the party as well as in the other And when a man hath made his Election to have Elegit he shall not have other Execution But when the Defendant hath neither goods nor Lands Then qui non habet in are licet in Corpore and the Plaintiffe at the first when he hath Judgment hath election to have Fieri Facias Elegit or Capias then he cannot have fieri facias but if he determine his Election at the first and sue Elegit or Capias then he cannot have fieri facias but may first sue fieri facias and after Elegit or Capias as it appears by the 15 H. 7. 15. 14 H. 7. 28. and 7 H. 6. 7. But if it be upon Statute staple Then he may have execution for his Body Goods and Land together as it appears by 31 H. 6. 47. Lynnacres Case is put in Blunfields case 5 Coke 92. b. and 15 H. 7. 15. But the reason of this is that a speciall Execution by statute is given in this case And he agreed that where a Judgement is given against 2 or 3. and the Plaentiff sue Capias against one of them by that he hath determined his Election So that if he dye in Prison or otherwise he may sue another Capias against the others but he cannot sue fieri facias or Elegit as it appears by 33 H. 6. 47. before and Blunfields case 5 Coke 92. b. 4 H. 7. 8. And he said that the body is the principall and becomes chargeable by statute and it appears by 22 Assis 43. That when the party is in Prison that this is adjudged in Law an Execution for the party and further in the
in Prison and agreed that if 2 Precipes are contained in one Originall there shall be but one satisfaction But if one be taken by Capias and remains in Execution Capias shall be awarded against the other and he shall remain in Prison till satisfaction be had for execution is no satisfaction as it is said in 29 H. 8. b. Execution 132. adjudged See 4 Ed. 4. 38. 5 Ed. 4. 4 H. 7. 8. And Hillaries case 33 H. 6. And to the third that is that the Debt remains after the taking of the body in execution and agreed that when execution is made of goods or lands no Debt remains but otherwise it is of execution of the Body as it appears by 29 H. 8. before cyted B. Execution 132. and 41 Assis 15. where a man was condemned in Damages in Trespass and committed to Prison by Capias and escaped the Gaoler dyed the Plaintiff prayed debt against his Executors and could not have it for they are not charged without specialty and the Plaintiff alleadged that the Defendant was vagrant in the County of M. and prays Capias to the Sheriff of M. to take him and it was granted for his remedy against the Sheriff was determined and this proves also that the Debt remains after escape scire facias is licet Judicium redditum sit tamen executio restat ad huc facienda de debito for the body is but as a pledg the form of the Writ in the Register Capias ad satisfaciendum and not in satisfaction which proves that there is no satisfaction but upon the payment of the money his body shall be delivered out of Prison this is execution with satisfaction for there are two Executions that is Medius finalis the first is the Capias the second Satisfaction which is Vltimus Finis And it is a good rule quod nihil videtur factum ubi aliquid restat faciendum and here is aliquid faciendum that is Satisfaction for in all acts there is a beginning progression and consummation Consummation in this case fails Mors est horendum divortium which is the act of God And when the act of God hath delivered him which lyes in prison for his own default it is no reason that the Plaintiff should be prejudiced 43 Ed. 3. 27. A man enfeoffs the Father with Warranty which infeoffs an estranger which enfeoffs the son the father dyes the son may vouch for it is the act of God And to the Mischiefs nec crudelis creditor nec delicatus debitor sunt audiendi for they play at Bowls and keep Hospitality in the Prison Or if a man be arrested and makes a tumult and is slain in indeavouring to break the Prison and breaks his Neck it is no reason that he by such act should defraud the Plaintiff of his Debt the opinions against him are coupled with absurdities as 7 H. 6. 8. Martins opinions is also imparted with absurdity 33 H. 6. 48. The opinion of Lacon is also coupled with another absurdity and 22 Assis b. Execution is also coupled with absurdity that is if the Defendant escape this determines the debt and is satisfaction and 15 Edw. 3. Quare Impedit 174. in Writ of Right of Advowson the Plaintiff hath Judgment and habere facias sesinam in the life time of the Incumbent and after his death sues Scire Facias the first is Execution but not with satisfaction and the last is satisfaction for by this he hath the fruit of his Judgment So 19 Ed. 3. Execution 12. a younger statute is extended and Liberate sued executed and returned And after an elder statute is extended and after satisfaction of that he that hath the youngest may sue Scire Facias and have execution of the youngest So of Beasts distrained and put into the Pound and there dye he which distrayned may distrayâ— again for this is no satisfaction of his Rent 14. H. 4. 4. 15 Edw. 4. 10. 11 Eliz. Dyer 280 And so Capias ad computandum is not Accompt nor Capias ad acquietandum Acquital Register 30. 39. 285. And it is said in Bract. lib. 7. Chap. 17. Sunt brevia Magistralia fâ—rmata the first are made by Masters of the Chancery the others which are Originall by Cursitors which are founded by acts of Parliament and cannot be changed without Parliament and as Fitzherbert in his Preface to his Na. Bre. saith that every Art and Science hath certain Rules and Foundations to which a man ought to give faith credence and the Writ of Fieri facias being founded upon a Statute and the form that executio adhuc restat facienda he saith that this was the Judgment of the Parliament that the first Execution was not Satisfaction But as the Writ is also in the Register 245 That where a man is condemned in Trespasse and committed to prison detinendum quousque he satisfie the party by this it appears that he is but a pledge And Fitz. Na. Bre. 63. 65. 67. and Register If a man be taken by Capias Excommunicatum ad satisfaciendum parendum Clavibus Ecclesiae and is delivered by Writ which issues improvide another Writ of Capias shall be awarded And to the matter of Election he agreed that if Elegit were awarded the party cannot have Fieri facias nor Capias for there is Entry made quod Elegit sibi executionem de meditate But when Fieri facias or Capias is awarded no entry at all is made But if any of them are returned executed then he cannot resort to another Processe and with this difference agrees all the Books of 15 H. 7. 15. 21 H. 7. 19. 30 Ed. 3. 24. 31 Edw. â—3 Process 52. 19 H. 6. 4. 34 H. 6. 20. 45 Edw. 3. 19. 50 Edw. 3. 4. and 5. 18 Edw. 4. 11. 20 Edw. 4. 13. 11 Eliz. Dyer 296. And to the case of Williams and Cuttrys cyted to be adjudged 43 Eliz. the which he cyted as Lambs case he said in this was many apparent Errors in forme of pleading so that the matter in Law cannot come to Judgment 35 H. 6. Prisot seemed that by the law of God the Imprisonment of the body of a man was no satisfaction for by that the Creditor may sell his Debtor and his Children for the payment of his Debts Matth. chap. 18 vers 24. 4 Kings 4 Chap. vers 1. Matth. chap. 5. Luke chap. 12. And so he agreed with Foster in opinion and concluded that the death of the Defendant in the action of Debt was no satisfaction nor determination of the Processe nor of the election But that the Plaintiff may have new Execution against the Executors and by consequence that Judgment shall be given for the Plaintiff in the Scire facias but no Judgment was given for that there was equality of opinions that is Coke and Foster against Walmesley and Warburton Danyel being dead and for that it was adjourned Pasche 8. Jacobi 1610. See Hillary 7. Jacobi the beginning Chalke
c. and that the Plaintif was sued there by J. S. and that hee was summoned and upon a nihill returned a capias issued according to the Custome c. And that he being an Officer there did arrest and the Court ruled him to plead the Custome particularly for holding the Court and to prescribe c. And here it is shewn that the Maior is a Justice of Peace And it doth not appear whether he did it as a Justice of Peace or Maior as 14. H. 7 8. A Justice of Peace cannot command his servant to arrest one without a Warrant in writing in his absence And Popham chiefe Justice said That although the Judges knew the Authority of the Maior by which they arrested men yet because it did not appear to them judicially as Judges it must be pleaded And a Justice of Peace cannot command his servant to arrest one if not in his presence which was granted And Fennor Justice said that the servant is not an Officer to the Maior as he is a Justice of Peace but the Constable and Walker also added that the Plea was that the Maior commanded to imprison him presently without shewing any cause which was held naught for the maior ought to temper his Authority according to Law For the Judges cannot imprison without shewing cause but them and the Maior both may command an Officer to arrest a man without shewing the cause for else before he shall be examined he may invent and frame an excuse and the accessories will flye away And Williams Justice finds that it was incertain for the Plaintif by what authority he commanded it whether as Maior or Justice of Peace and his power as a Justice of Peace the Judges knew by common Law but his power as a Maior they knew not if it be not shewed by pleading and Judgement HVggins versus Butcher Trin. 4. Jac. The Plaintif declared that the Defendant such a day did assault and beat his Wife of which she dyed such a day following to his damage 100 l. And Serjeant Foster moved that the Declaration was not good because it was brought by the Plaintiff for a Battery done upon his Wife And this being a personall wrong done unto the woman is gone by her death And if the woman had been in life hee could not have brought it alone but the woman must have joyned in the Action for the damages must be given for the wrong offered to the body of the woman which was agreed And Tanfield said that if one beat the servant of J. S. so that he die of that beating the Master shall not have an Action against the other for the battery and loss of service because the servant dying of the extreamity of the beating it is now become an offence against the Crown and turned into Felony and this hath drowned the particular offence and prevails over the wrong done to the Mr. before And his action by that is gone which Fennor and Yelverton agreed to BRown versus Crowley Pasch 5. Jac. Action of Trespass brought against Croyley for wounding the Plaintif upon the hinder part of the left legge being rendred in Latin super posteriorem partem levis libaei and the Jury found for the Plaintiff And Harris moved in Arrest of Judgment for hee said that these words levis libaei made the Declaration vitious for the incertainty for he said that levis signified light and it was an improper word for left and that judgment ought to be respited for the incertainty And Yelverton argued that judgment ought to be given for the Plaintiff for he said the Declaration was not vitious for if the Plaintiff had declared generally that he had wounded broken or evill intreated him and had omitted those other words it had been sufficient and then the adding of those words which were not materiall but for damages did not make the Declaration vitious and he said that levus leva levum was Latin for left And whereas he hath said that he strook him super posteriorem partem levis libaei where it should have been levis libaei it was but false Latin and the Declaration shall not be made naught for false Latin And Popham said that hee shewing upon which part of the body the wound was were laid only to incense damages for the Declaration had been sufficient though they had been omitted And Justice Fennor agreed to Popham and he said it had been judged that where a man brought an Action against another for calling him strong Theife and the Jury only found that he called him Theife but not strong Theif yet the Plaintiff recovered for this word strong was to no other purpose then to increase dammages and Judgement was given for the Plaintif VIccars versus Wharton Pasch 5. Jac. Viccars brought an action of false imprisonment against Wharton and others and shews that he was imprisoned two dayes and two nights without meat or drink The Defendants come and shew that King Edward the 1. by his Letters Patents did incorporate one Village in Nottingham-shire with Bailiffs and Burgesses and that the King did ordain and make those Burgesses Justices of the Peace there and that the Defendant was Bailiâ—â— and a Justice of Peace there and that the Plaintiff did speak divers opprobrious and contumelious words of the Defendant by reason whereof they imprisoned him And shews further that the Bailiffs have used from the time of the making their Patent to imprison the disturbers of the Peace and it was held a naughty plea for a custome could not be shewn in such a manner And Tanfield held in this case that a man could not prescribe to be a Justice of peace but Justice Williams held he might prescribe to be a conservator of the Peace And Tanfield held that the King might grant that all the Burgesses and their Heires should be Burgesses which Justice Williams denyed HAll versus White Pasch 5. Jac. An action of Trespass brought against the Defendant for impounding the Plaintiffs Cattel the Defendant justifies for Common And upon that they were at issue in Derby-shire and the Jurors being sworn the Bailiff found one Bagshaw one of the Jurors rending of a Letter concerning the said cause and shewed it to the Judg and a verdict given by the Jury And this matter moved in the then Kings Bench to quash the verdict but denyed by the whole Court because the Letter and the Cause was not certified by the Postea and made parcell of it for otherwise the examination of that at the Barre after the verdict shall never quash it And so it was adjudged between Vicary and Farthing 39. Eliz. where a Church Book was given in Evidence of which you shall never have remedy except it be entred and made parcell of the Record BVtler versus Duckmonton Trin. 5 Jacobi In Trespasse upon a speciall Verdict the Case was that no demised Land to a woman if she should live sole and unmarried
the remainder to John D. bastard in Tail the Remainder to the Defendant Ro. Duckmonton in Fee the woman married with Ro. D. the Defendant the Term expired Jo. D. Tenant in Tail in remainder releases to the Husband and whether this should alter the estate of the Husband he being Tenant at sufferance was the question and adjudged by the whole Court that the Release was void and it was cheifly void because the Release was made to him in the Remainder to take effect as upon the Remainder and there was no privity and he had but a bare possession and no Freehold and 10 Eliz. Dier Lessee for years surrenders and afterwards the Lessor releases to him and held a void Release for the reason aforesaid and 31 and 32 Eliz. it hath been adjudged between Allen and Hill where a Devise was made to the woman for life if she would inhabite and continue in the house and he went and inhabited in Surrey and the Heire released to her and it was held void because she was but Tenant at sufferance and so no privity but Yelverton and Tanfield that such estate for life was not determined without Entry and Yelverton Justice demanded that when the Husband continued in possession after the Lease determined whether he should be in the Right of his Wife and so remain Tenant at sufferance whether he should be in his own Right or be as an intruder Disseisor and then the release made to him was good but no answer was given to him but Judgement was given that the release was void and Fennor put this Case Tenant for life remainder in Tail remainder in Fee he in the remainder in Fee released to Tenant for life a void release because of the mean remainder in Tail and cited 30 E. 3. and no answer was given to it and Yelverton said that if Tenant for life release to him in the remainder in Fee it is void because it shall be void as a surrender and this word release shall not recite as a surrender HOldesden versus Gresill Mich. 5 Jacobi An Action of Trespass brought for breaking the Plaintiffs Close called B. at L. and for taking of two Conies the Defendant to the whole Trespasse but the entring in the Close pleads not guilty and as to the Close justifies because he Common in the Close called B. for five Cowes and because very many Conies were there feeding and spoiling the Common the Defendant in preservation of his Common entred to chase and kill the conies to which the Plaintiff demurred in Law and Judgement was given that the justification was naught for a Commoner cannot enter to chase or kill the Conies for although the owner of the Soil hath no property in the Conies yet as long as they are in his Land he had the possession which is good against the commoner for if the Lord surcharge the common with Beasts the commoner cannot chase them out but the owner may distrain the Beasts of an estranger or dammage feasant or chase them out of the common for the stranger hat no colour to have his Beasts there and also conies are a matter of profit to the owner of the Soil for Housekeeping and therefore because it appears that the cause of Entry was to chase and also to kill which are not lawfull as against the Lord who is Plaintiff therefore the matter of the justification is not good for if the Lord surcharge the Soil with conies the commoner may have an Action of case against him for that particular dammage which is a sufficient remedy against the Plaintiff upon a full and deliberate considera-of all the Judges JEnnings versus Haithwait Mich. 5 Jacobi An Action of Trespass brought to which the Defendant pleaded not guilty the Jury found the Defendant Vicar of D. and that he such a day leased his vicaridg to J. S. for three years rendring rent which J. S. assigned one Acre parcell thereof to the Plaintif and the Defendant was absent severall quarters in one year to wit sixty dayes in every quarter but they did not find the Statute of 13 Eliz. adjudged for the Defendant for the Statute of the 13 Eliz. is a generall Law for although it extends but to those which have cure of Souls yet in respect of the multiplicity of Parsonages and vicaridges in England the Judges must take notice of it as a generall Law and adjudge according to the said Statute and so is the Statute of the 21 H. 8. for non-residence DRewry versus Dennys Mich. 5. Jacobi An Action of Trespass brought against a man and his Wife and the Plaintif declares that they did beat one Mare of the Plaintifs and committed diverse other Trespasses and upon not guilty pleaded the Jury found that the Woman beat the Mare and for the residue they found for the Defendant and the Verdict adjudged naught by the Court for it is altogether imperfect for they have found the Woman guilty of the beating the Mare and have given no Verdict concerning that for the Husband either by way of acquittall or condemnation and the finding the Defendant not guilty as to the residue doth only extend to the other Trespasses contained in the Declaration and not to the beating of the Mare And Williams and Cooke Justices said that where a Battery is brought against Husband and Wife supposing that they both beat the Plaintif or the Mare of the Plaintif and upon not guilty pleaded it is found that the Woman onely made the Battery and not the Husband this Verdict is against the Plaintif for it now appears that the Plaintifs Action was false for the Husband in this case shall not be joyned for conformity onely and there is a speciall Writ in the Register for this purpose and is not like a Battery charged upon I. D. and I. S. for there one may be acquitted and another found guilty and good because they are in Law severall Trespasses SAnds and others versus Scullard and others Mich. 5. Jacobi The Plaintiffs brought an Action of Trespass against the Defendants for entring their Close and Judgement was entred against Dawby one of the Defendants by nil dicit Scullard pleaded not guilty whereupon a Venire facias was awarded upon the Roll between the parties as well to try the Issue as to inquire of the damages And the Plaintiffs took their Venire facias to try the Issue between the two-Defendants and the two Plaintiffs And according to that was the Habeas Corpus and Distringas but the Plaintiffs knowing Dawby to be dead took their Record of Nisi prius against Scullard onely and he was found guilty And Yelverton moved in Arrest of Judgement and shewed the Venire facias and that there was no Issue joyned between the Plaintiffs and Dawby for Judgment was given against him by Nil dicit and the Writ ought to have made mention onely of the Issue between the Plaintiffs and Scullard And their ought to have been
against the surviving Donee of houses and Lands to him demised and agreed that the Writ was good but it was a question if the Count shall be generall or of a halfe only notwithstanding that both the parties were Tenants in Common of the reversion Michaelmas 1611. 9. Jacobi in the Common Bench. Ralph Bagnall against John Tucker after 83. TRINITY 9. or Micaelmasse 8. Jacobi Rot 3648. The Case was Copy-holder for life remainder for life purchaseth the Frehold and levies a Fine with Proclamations made five yeares-passe and then he died if the remainder were bound by the Fine or not was the question and it seemes that it shall not be Barr for he is not turned out of possession in right So if a man hath a Lease for remainder for yeares and the first Lessee for yeares purchase the free-hold and levie a Fine with Proclamations and five yeares passe this shall not barr the remainder for yeares insomuch that this was Interest of a Tearme and remaines an Interest as it was without any alteration and it was not turned to a Right And yet it was agreed that the Statute of buying of pretenced rights extends to Copy-holds See Lessures Case 5. Coke 125. See Pasche 1612. for the Judgement Note if an Attorney of this Court be sued here by Bill of Priviledge he ought not to find Bayle But if he be sued by Originall and comes in by Capias then he ought to find Bayle In covenant upon a Lease made by the Dean of Norwich Predecessor to the Dean that now is and the then Chapter of the Foundation of Ed. 6. King for injoying of Land devised to the Plaintiff for three Lives discharged of all incumbrances and also to accept surrender of the same Lease and to make a new and for breaking of covenant the same Dean and Chapter in such a yeare of the Raine of H. 8 had made a lease for years not determined by which the lands devised were incumbred upon which the Defendant demurred And Hutton Serjeant for the Defendant argued that the Lease was by the Statute of 13 of Eliz. as to the successor of the Dean which made it for that it was a Lease for years in being at the time of the making of that as it is resolved in Elmers Case upon the Statute of 1 Eliz. if a Bishop makes a Lease for years and after makes a Lease for life the Lease for life is void to the Successor and so it is in the case of Dean and Chapter and though that the words of the Statute are generally that such a Lease shall be void to all intents purposes and Constructions yet he intended that it shall not be voyd against the Bishop himselfe as it was resolved in the case of the next Advowson by the Bishop in Singletons Case cyted in Lincolne Colledge Case 3. Coke 59. b. And he intended if the Lease be voyd against the Successors that then the covenants also are void as it is agreed in the 28 H. 8. 28. Dyer 189. 190. and he cited one Mills case to be adjudged in the 29 and 30. Eliz. in the Kings Bench that if a Parson make Lease and avoid by non-Residence the Covenants also are void as well as the Lease and also he intended that the Lease for life was void insomuch that it was to be executed by a Letter of Attorney and the Attorney had not made livery till after two Rent dayes were past and for that the Livery was not good for when a man makes a Lease for life rendring Rent with Letter of Attorney to make livery here is an implyed condition that Livery shall be made before any day of payment be incurred and it is as much as if a man had made a Lease for life without any Letter of Attorney to make Livery before such a day there if the Attorney do not make Livery before the day but after the Livery is void insomuch as it is contrary to the Condition so in the case here for if Livery made be after a Rent day it may be made after twenty and so immediately before the end of the Tearme and if the Rent be void for this cause the Covenants also are void and if a man bargain and sell his Mannor and the Trees growing upon it the Trees do not passe without Inrollment insomuch that it was the intent of the parties that it should so passe and for that they do not passe without the Mannor also he intended that the Count is repugnant insomuch that that containes that the last Lease for life was made in the time of Ed. 6. and after by the Dean and Chapter of the foundation of Ed. 6. and after that containes that the same Dean and Chapter have made a former Lease in the time of H. 8. Which cannot be if the Dean and Chapter were of the Foundation of Ed. 6. and for that the Count ought to have contained the alteration of the foundation as in case of prescription as in Tringhams case 4. Coke 38. Wyat Wilds Case 8 Coke 79. 2. and 3. Phil. and Mary Dyer 124. A good Case and he intended that a declaration ought to have precise certainty as in 8. and 9. Eliz. 254. Dyer for a thing which cannot be presumed shall not be intended as it is agreed in Pigotts Case 5 Coke 29. a. otherwise of Plea in Barr for that is sufficient if it be good to common intent also he intended that there is variance between the Count and the Covenant for the declaration is that the Dean and Chapter covenanted with the Plaintiffs the Covenant is generall that is that the Dean and Chapter covenant and doth not say with who and for that the Count also shall not be good and so he concluded and prayed Judgment for the Defendant Haughton Serjeant for the Plaintiff intended that the Covenants shall not be voyd notwithstanding that the Lease it self be voyd he intended that a lease made by a Parson shal be good against himself but it shall be voyd by his death to the Successor but a Lease made by a Dean and Chapter shall be void to the Dean himself and the Covenant shall be in force notwithstanding that the Lease be void insomuch that the Covenants are collaterall and have not any dependance upon the Lease but to the inherent Covenants which depend upon the Lease and the Estate as for Reparations and such like shall be voyd by the avoidance of the Lease but he intended that Covenant to discharge the Land from incumbrances doth not depend upon the Interest but it is meerly collaterall and for that it shall not be void and with this difference he agreed all the Cases put of the other part as in 45 Ed. 3. 3. Lease was made to the Husband and Wife the Husband dies the wife accepts the Land and shall not be charged with collaterall Covenants notwithstanding that shee agrees to the Estate insomuch that they do not depend