a restraint against any particular person in certeine Vpon a Feoffement without warranty the Feoffee shall have all the Charters which comprize warranty and others though they be not given to him because hee is to defend the Title at his perill Upon a Feoffement with warranty without expresse grant the Feoffee shall not have any Charters which serve for to deraigne the warranty paramount Also the Feoffer shall have all Charters which serve for maintenance of the Title but the Feoffee shall have all which maintaine the possession as Court Rolls and which are concomitant and incident to the possession If A. be seized of a Segniorie rent advowson or other thing that lyeth in grant and grant the same over unto B. with warranty and B. grant that to C. with warranty In this case C. shall have the first deed although B. be bound to warrantie for without that he cannot make any Defence against A. or any claiming by him Pelhams Case 32. El. fo 14. A Tenant for life the remainder in Taile the remainder in fee bargaines and sells the Land to one who before the Statute of 14. El. ca. 8. suffers a recoverie in which A. is vouched and voucheth over and he in remainder enters and the entry is adjudged lawfull for the Recovery is a Forfeiture and the remainder may enter for it is the common Assurance As if Tenant for life had levied a Fine c. and suing of execution doth not toll the entry of the remainder and a Writ of error was sued and the plaintiffe release the errors Porters Case 35. El. fo 22. 32. H. 8. P. devised a house to his wife and her heires upon condition that she by advise c. with all convenient speed after his death should assure it c. for maintenance of a Free School c. for ever and dyes 32. H. 8. the wife enters and 3. E. 6. leases to A. for yeares the heire of P. enters and his entry adjudged lawfull because 23. H. 8. extends not to good uses nor doth it make the conveyance voyd or give entry but makes the use voyd and admit the use voyd yet the condition is not for Counsell may devise c. as to have a Corporation by Pattent and licence to assure and therefore the wife ought to have performed it Any man at this day may give Lands Tenements or hereditaments to any person or persons for the finding of a Preacher maintenance of a Schoole maimed Soulders poore people reparation of Churches High-wayes Bridges marriage of poore maids or any other charitable uses But it is good policy in every such Feoffment or estate to reserve to the Feoffor and his heires any small rent or to expresse some small summe of money for the consideration of the cause before recited Altonwoods Case 42. Eliz. fo 41. H. 8. seised of an estate Taile to him and the heires males of his body and of a Fee expectant grants in Taile and dyes without issue male adjuded that the grant is voyd for the King had an estate Taile in possession by which he might grant a lawfull estate for his own life and a Fee by which he might grant an estate Taile by speciall recitall And these words ex speciali gratia c. shall not produce a strainable construction against the rules of Law or in deceptionem regis Capells Case 23. Eliz. fo 62. A Tenant in Taile the remainder to B. in Taile B. grants a rent charge A. suffers a common recovery and dyes without issue the grantee distraines the Alienee of A. brings a Replevin adjudged for the alienee by all the Justices of England that a common recoverie against a Tenant in Tayle shall binde not onely the remainder and all Leases charges c. granted or made by him in remainder but also the Reversion and all Leases charges c. granted by him in reversion Archers Case 39. 40. Eliz. fo 66. LAnd was devised to the Father for life the remainder to the next heire male of the Father and to the heires males of his body the devisor dyes the Father infeoffes J. S. with warranty First it was resolved by Anderson and Walmeslowe et tot Cur. that the Father had but onely an estate for life for that he had an expresse estate for life demised unto him and the remainder is limitted to his next heire male in the singular number and his right heire male may not enter for the forfeiture in his life for he cannot be heire so long as he liveth Secondly It was resolved that the remainder to his right heire is a good remainder although he cannot have a right heire during his life but it sufficeth that it vesteth eo instanti that the particular estate determineth Dyer 14. Eliz. fo 309. Thirdly it was resolved which was the principall poynt in this case per tot Curiam that by the Feoffment of the Tenant for life the remainder was destroyed for every contingent remainder ought to vest either during the particular estate or at the least eo instanti that the particular estate determineth for if the particular estate be ended or determined in Deed or in Law before the contingency fall the remainder is voyd And in this case by the Feoffment of the Father his estate for life was determined by condition in Law which cannot be revived by any possibilitie for this cause the contingent remainder is voyd for by the Feoffment no right of the particular estate remaineth and the better opinion was that the warranty bindes the remainder though in Abeyance Bredons Case 39 40. Eliz Fol. 76. TEnant for life and the remainder in Taile joyne in a fine Come ceo c. to A. who renders a Rent charge of 40. l. a yeare to Tenant for life the remainder dies without issue the second remainder in taile enters Tenant for life distraines for the Rent adjudged he may and that the rent remaines after the death of Tenant in taile without issue during the life of Tenant for life the fine was no discontinuance for every one gave that which he might lawfully give and t is no forfeiture by Tenant for life for the Law construes this First to be a grant of him in remainder and after the grant of Tenant for life Vt res magis valeat c. If Tenant for life and the first remainder in Taile make a feoffement t is no discontinuance though the first remainder in taile dies without issue nor is it a forfeiture but the feoffee shall hold it during the life of Tenant for life but if it be without deed then t is a surrender of Tenant for life and the feoffement of the remainder Vt res magis valeat c. Corbets Case 42. Eliz Fol. 84. of Perpetuities C. Covenants to stand seised to the use of himselfe for life and after to the use of A. his Eldest Son and the Heires Males of his body the remainder to the use of B. his second Son and the
the husband had and to the remainder A. tenant in taile the remainder to B. the remainder to C. the remainder to D. A. makes a Feoffement the feoffee suffers a recovery B. is vouched and he vouches the common vouchee A. is not bound but B. and all the remainders are for though the remainders are discontinued and cannot be remitted till the taile be recontinued yet in a common recovery which is the common assurance he which comes in as vouchee shall be in judgement of Law in privity of the estate which he ever had though the precedent estate upon which the estate of the vouchee depends be discontinued so here the husband shall be said in of the taile and 't is the stronger because the estate of the wife was put to a right so that the husband came in as sole tenant in taile and not joyntly with his wife because she is not vouchee and he cannot be in of another estate because once he had a taile but had they had a joynt estate to them and the heires of their two bodies he being onely vouched it might be doubted whether the taile should be barred because the wife had a joynt inheritance with him 8. of the Queene Dyer Knivetons case A Praecipe is brought against tenant for life and the remainder in taile they vouch over it shall not binde the taile for the remainder is not tenant to the Praecipe and the land is recovered against the tenant for life onely and recompence shall not goe to the remainder and the remainder was never seised by force of the taile and so 't was adjudged in Leach and Coles case 41. of the Queene Heydons case 26. of the Queene fo 7. THe Gardians and Cannons Regular of the late Colledge of O. seised of the Mannor of O. granted a Coppihold to Father and Sonne for their lives c. and after they leased it to H. for fourescore yeares rendring the ancient Rent and after surrendred their Colledge Resolved that the lease to H. was voyd the Coppi-hold for life continuing by the Statute of 31. H. 8. For Coppihold is an estate for life and the Statute saith of which any estate or interest for life c. at the making of such grant had continuance reade the Booke at large where you have admirable rules for true interpretation of all Statutes Resolved when a Parliament alters the service tenure interest of the land c. in prejudice of the Lord custome or tenant the generall words shall not extend to Coppi-holds as the Statute of W. 2. de donis conditionalibus doth not extend to them for if the Statute should alter the estate this should also alter the tenure for the donee ought to hold of the donor and to doe such services without speciall reservation as his donor did to the Lord and the intent of the act was not to extend to such base estates which were taken then but tenants at will and the Statute saith Voluntas donatoris observetur in carta c. So that which shall be intailed ought to be such an hereditament which may be given by Charter and great part of the land within the Realme being granted by Coppy it would be inconvenient that Coppi-holds should be intailed yet neither Fine nor Recovery should barre them so that the owner cannot without making a forfeiture by assent of the Lord and a new grant dispose of it for payment of debts advancement of his wife or younger issues wherefore the Statute doth not extend to them by Manwood Ch' Baron which the Court agreed But 't was objected that the Custome and the Statute cooperating might make a taile as if by a custome a remainder had been limitted over and injoyed and plaints in nature of a Formedon in discender brought and the land recovered by it so neither the custome without the Statute nor the Statute without the custome can make a taile And Littleton saith that if a custome hath been that lands c. have been granted c. or in taile c. paulo post that a Formedon in discender lyes of all tenements which Writ was not at common law Manwood answered if the Statute doth not extend to them without question the custome cannot for before the Statute all estates of inheritance were fee simple and no custome can commence after the Statute for this being made 13. E. 1. is made within time of memory and Littleton is to be intended of a fee simple conditionall for he knew well that no custome could commence after the Statute of W. 2. as appeares in his booke 2. ca. 10. and 34. H. 6. and a Formedon in discender in speciall cases lay at the common Law And by the Court another Act made at the same time which gives an Elegit extends not to Coppiholds for the reason aforesaid but other Statutes made at the same time extend to them as ca ' 3. which gives a Cui in vita receite and ca ' 4. which gives to the particular tenant a Quod ei deforceat Resolved that though 't was not found that the said rents were the usuall rents accustomed to be reserved within 20. yeares before yet because 't was found that the accustomed rent was reserved and a custome goes to all times before it shall be so intended without shewing the contrary and judgement was enterd for the Queene The common Law is founded upon the perfection of reason and not according to any private and sudden conceite or opinion Borastons Case 29. of the Queene fo 19. B. Devised land for eight yeares and after to his executors to performe his will till H. his youngest Sonne come to the age of 21. yeares and when H. comes to 21. yeares then that he shall have to him and his heires H. dyed at the age of 9. yeares Objected that till H. attaines to 21. yeares the land descends to the heire and for that he never attained to 21. yeares this remaines in the heire and the intent appeares by the words that he should not have till he come to 21. yeares and this ought to precede the commencement of the remainder and if land were leased till H. comes to 21. yeares H. then being of 9. yeares 't is no absolute lease for 12. yeares for if H dye before 21. the lease shall be determined which the Court agreed 'T was also said that when the particular estate which should support the remainder may determine before the remainder can commence there the remainder doth not vest presently but depends in contingency If one make a Lease to A. for life and after the death of B. the remainder to another in Fee this remainder depends upon contingency for if A. dye before B. the remainder is voyd A Lease is made to A. for life the remainder to B. for life and if B. dye before A. the remainder to C. for life this is a good remainder upon contingency If A. survive B. which case is all one with
be divided For he had not the Mannor of H. for his Wife had it joyntly with him See many excellent Cases in the Booke at large adjudged upon this word Having in the Statutes the Initium of a Will ought to be full and perfect which is the writing and therefore if the devisor command one to write his Will and he devises white Acre to A. and his Heires and black Acre to B. and his Heires and dyes before the devise to B. is written yet the devise to A. is good But if he devises to A. c. upon condition and he writes the devise and the Testator dyes before the Writing of the condition t is voyd for in the one case the devises are severall and the one is perfect in the other Case t is maimed and imperfect for the intire devise was not fully put in writing so t was resolved in the Case at Barre that neither the commencement nor the end of the Will was full or perfect for at the time of writing of it and at the death of the devisor he had no power in respect of the joynt estate in H. to dispose all the Mannor of T. which amounts to the value of two parts of all Also upon the first Branch he ought to have a sole estate and here his Wife is joyntly seised with him and shee cannot disagree during coverture The Statute gives liberty to him for to devise two parts by will but this is to be intended of such Land which he might convey by act executed but here by reason of the undivided estate of the Wife he cannot dispose it but during coverture Also the third part of cleere yearly value is saved to the King and the intent of the Statute was that the King shall have the equall benefit at least for his third part as the devisee hath for two parts but here the devisee had two parts absolutely and the King but a possibility Viz. If the Wife would disagree which is at her pleasure and this Statute hath been constru'd that equality should be observed A man which held three Mannors of three Lords could not devise two of them but two parts of every one upon these words Cleere yearly value 't was said that of Inheritances which are not of any yearly value some are devisable some not as Bona et catalla felonum fugit or utlagat Fines amerciaments within such a Mannor or Towne these cannot be devised nor left to discend but a Leete Waife or Stray or other hereditament appendant or appurtenant to a Mannor passe by devise of the Mannor with th' appurtenances as incidents and the Statute had no intent for to dismember these things which by lawfull prescription had beene united But if a hundred with goods of Fellons Outlaws Fines Amerciaments returne of Writts and such other casuall hereditaments within the same hundred have beene accustomably demised for a yearely rent they may be devised within the purview of the said Act. 'T was said upon the words of the Statute which says that he may devise a rent common c. Out of two parts that a devise of a rent of the full value out of all is voyd but out of two parts 't is good And 't was observed that upon 32. H. 8. a devile of all his land had beene good for two parts as adjudged in Vntons Case for Land is severable but a rent is a thing intire and 34. H. 8. onely gives authority for to devise it The second branch which speakes of division cannot be satisfied for during his life he himselfe could not Set it out and after his death it survives to the Wife The third and fourth branch is not satisfied in this word immediatly for till disagreement without question the Mannor of H. survived to the Wife and if an Office had beene found before disagreement without doubt the Queene should have a third part of the Mannor of T. and the devise being voyd at the death of the devisor the third part lawfully vested in the Heire by discent it cannot be made good and devested by a subsequent disagreement Littleton discent to the Heire of Tenant by the courtesy of a disseissoresse doth not take away entry for the Heire comes not in immediatly 't was agreed if a man devises two acres holden by Knights service and a reversion upon a Lease for life discends to the heire this is no immediate discent within the Statute but the third part of the two ought to discend see many excellent Cases of devises adjudged upon the Statute Another good Case of relations Jennings and Braggs Case a disseisee makes an Indenture purporting a Lease for yeares and delivers it to a stranger out of the Land as an Escroule and commands him for to enter and deliver this as his deed to the Lessee who doth it and adjudged a good Lease and this diversity agreed First When the person at the first delivery hath not ability to make the contract and before the second delivery hath 't is voyd as an Infant and a Fème covert otherwise when at first delivery the person hath ability but cannot perfect it till an impediment removed which is done before the second delivery there 't is good as at Barre Resolved secondly that to some intent the second delivery shall have relation to the former by fiction of Law Vt res magis valeat quam pereat as if a Feme sole deliver a Lease as an escroule and after takes Husband or dyes yet by the second delivery 't is a good deed Ab initio and to some intent Vt res magis valeat c. it shall not relate yet in truth the second delivery hath all its force by the first and is but an execution and consummation of the former as at Barre for if it should relate to the first delivery then it would avoyd the lease for it should be made by one who was out of possession fictio legis inique operatur alicui damnum vel injuriam Thirdly 't was resolved that as to collaterall acts that there shall be no relation Omninò as if the Obligee release before the second delivery such release is voyd Ratcliffes case 34. of the Queene fo 37. A. Feme sole devises Socage land to the sonne of her daughter in taile the remainder to two Sisters of the devisee and to the heires of their two bodies by equall portions to be divided the remainder in fee to the Mother of the daughters and dyes the sonne dyes without issue Martha one of the daughters dwelling in her Mothers house daughter of the devisor within the age of 16. and above 14. departed at the second houre in the night with the consent of the husband of her Mother in whose house she was 8. miles and there married E. R. the issue was whether E.R. the Mother had the custody of the said M. at the time of the contract and marriage aforesaid for if she had then the
he lost his Common the Jury found that the Defendant did not put in the Beasts but they of themselves depastured there 1. The Jury have found the substance of the issue for the Plaintiffe the depasturing there and it is not materiall if he put them not there 2. This Action lyeth for the Commoner for he may distreine damage feasant and it may be that with strong hand he is hindered to distreine and so if he shall not have this Action he is remedilesse 2. A Commoner who had freehold in the common shall have an Assize Ergo a Copy-holder shall have this Action 3. The wrong ought to be so great that the Commoner loose his Common as a Master shall not have an Action for beating his Servant without losse of his Service and it appeareth not to the Court that there are more Commoners then he and if there be yet an Action lyeth because each had private damage and it is not like to a common Nusans which shall be punished onely in a Leete if there be not speciall damage but be the Trespasse never so little the Lord may have an Action of Trespasse The Lord Sanchars Case 10. Jacobi fol. 117. For procuring the Murther of John Turnor Mr. of Defence 1. REsolv That a Baron of Scotland shall be tried by Commons of England 2. The Indictment of the accessory in one County to a Fellony in another County by the Statute of 2. E. 6. c. 24. shall recite that the fellony was done in the other County for an Indictment is no direct affirmation of the fact 3. The Justices of the Kings Bench are within these words of the Statute Justices of Gaole-delivery or Oyer and Terminer for they are the supreame Judges of Gaole-delivery 4. The Lord Sanchar cannot be in the Terme-time Arraigned in Midd. before Justices of Oyer and Terminer because Justices of Oyer and Terminer shall not sit in the same County where the Kings Bench is but the principalls were Arraigned in L. in the Terme-time because this is another County 5. There needs not be 15. dayes for the returne of the Venire facias upon an Indictment in the same County where the Kings Bench is otherwise in another County 6. Because there is no direct proofe that the Lord S. commanded one of the principalls but that he associated himselfe to one who was commanded the best way is to arraigne him as accessory to him whom he commanded but if he be Indicted as accessory to two and found accessory to one of them this is good The word Appeale in the Statute of W. 1. c. 14. is to be intended generally Viz. By Indictment by Writ or Bill c. and attainders is to be intended upon any such accusation Ergo if upon any such accusation the principall be attainted erroneously the accessory may be arraigned because the attainder is good untill it be reversed but if the Accessory be Hanged and after the Attainder against the principall is reversed the Heire of the Accessory shall be restored to all which his Father lost either by entry or Action By 5. H. 4. cap. 10. none shall be imprisoned by Justices of Peace but in the Common Gaole whereby it appeares that Justices of Peace offend who commit Fellons to the Counters in L. and other Prisons which are not Common Gaoles Cases in the Court of Wards Anthony Lowes Case 7. Jacobi fol. 122. A. L. Tenant of 59. Acres parcell of the Mannor of A. by chivalry and Suite of Court to B. whereof A. was parcell and both A. and B. were parcell of the Duchie of L. out of the County Palatine holden formerly of the King in Chivalry in Capite and of another House there holden of A. by fealty and rent H. 8. grants the rent by release to him and confirmeth his estate in the said Lands by fealty onely and grants to him the Mannor of A. Tenendum by fealty and rent It was Objected that when the King grants the Seigniory to his Tenant the ancient Seigniory is extinct and a new one that is best for the King created Viz. Chivalry 2. When he extinguisheth services parcell of the Mannor of A. this shall be holden as the Mannor of A. is that is by Chivalry But resolved that the 59. acres and house shall be holden by fealty onely and as to the said Objection the release of the King doth not extinguish service which is inseparable to a Tenure that is fealty but all others are gone and true it is when the K. grants and expresseth no tenure it shall be by Chivalry but when the Land moveth from a Subject and the Tenure is changed the new Tenure shall be as neere the ancient as may be as Feoffee of Tenant in Frankalmoigne shall hold by fealty onely and here although they grant the services yet he limits the grantee to doe fealty A Knights fee is not to be taken according to the quantity but the value of the Land as 20. l. per annum and a Hide of Land is as much as a Plough can Plough in a yeare Reliefe is the fourth part of the annuall value that is of a Knight five pound of a Baron a 100. Markes of an Earle 100. l. of a Marques 200. Markes of a Duke 200. l. The Eldest Sonne of E. 3. called the black Prince was the first Duke in England and Robert Earle of Oxford in the Raigne of R. 2. was the first Marques and the Lord Beaumont was the first Viscount created by K. H. 6. Floyers Case 8. Jacobi fol. 125. BAron and Feme seized of Lands holden in Chivalry in right of the Feme in Fee levy a Fine to one who grants and renders to them and the heires of the Baron and levy another Fine to their use for life the remainder to their three Sons in taile one after another the remainder in fee to the heires of the Baron the K. shall have neither wardship of body nor Land 1. Resol That is out of the Statute of 32. H. 8. cap. 2. if he who had the fee dye c. in respect the estate by the first Fine did not continue and this although both the Conveyances are voluntary 2. The King shall not have wardship of the third part because it is not for advancement of the Wife for in the first Fine the Land moved from her and shee had no more by the second Fine then by the first 3. In regard the particuler estate is out of the Statute no wardship accrueth to the King by advancement of him in the remainder but if a revertioner upon an estate for life convey it to the use of his Wife this will give wardship of the body of the heire for he in revertion is tenant if a Lease for life be the remainder to two and to the heires of one he who hath the fee dyeth his heire shall not be in ward if the heire of one joyntenant who had the fee dye of full age living the tenant for
nor body were lyable to Execution in Debt or damages recovered but Execution was to be done by Fieri facias or Levari facias of his Goods and Chattells and profits growing upon his Land but in debt brought against one as heire his Land was liable to Execution because the Plaintiffe had no other remedy for the goods belong to the Executors but the body goods and Lands of the K. Debtor or accomptant were ever liable to Execution but such Levari facias or Fieri facias ought to have beene sued within the yeare or otherwise he was chased to his Writ of Debt and now by Westm 2. c. 45. he may have a Scire facias and by the 18º Chapter of that Statute an Elegiâ— is given of the moity of the Land which was the first Act that subjected Land to Execution for Debt or Recognizance and by the Statute of 13. E. 1. de Mercatoribus 27. E. 3. c. 9. 23. H. 8. c. 6. In Statute Merchant and Statute Staple all the Lands of the Conusor at the day of acknowledgement shall be extended into whose hands soever they shall after come But in all Actions Vi armis where a Capias lyeth in Processe there after judgement a capias ad satisfaciendum lyeth the K. shall have a Capias pro fine and in such cases the Law the preserver of peace subjecteth the body to Imprisonment and by Marlebridge c. 23. West 2. c. 11. a Capias was given in an accompt the proces before being a distresse infinite and by 25. E. 3. c. 17. the same proces given in Debt as in account for before this Act the body was not liable to Execution for Debt as aforesaid 2. If Land of the heire be seised in Execution upon a recognizance of his auncestor he shall not have contribution against a purchasor of his Auncestor although he come in without consideration and although the Heire be not charged as Heire but partly as Terretenant but one purchasor shall have contribution against another purchasor and one Heire against another Heire because they are in Aequali jure and therefore the Writ here which issued against the Heires without naming the purchasor is good although he be charged as Terretenant The Heire shall have an Audita quaerela as well as the Conusor himselfe before Execution sued and a Supersedeas but a Stranger shall not If diverse acknowledge a recognizance the charge doth not survive and the Land of one shall not be put in Execution but all their Lands equally so if two are bound to warranty both or their Heires and the survivor and the Heire of the other shall be jointly vouched and the Land of both shall be rendered in value But if Baron and Feme and the Heires of the Feme are bound to warranty and the Feme dye the Land of the Baron may be solely taken in Execution because there are no Moities betweene Baron and Feme So that when Land shall be charged by any Lien the charge ought to be equall but in a Lien personall otherwise it is as if two are bound in an Obligation there the charge shall survive But a Purchasor Bona fide before any Action brought shall not be subject to any charge And three Errors were moved in the record 1. The Scire facias was Haerediterrarum c. which is improper for he is not Heire to the Land but to his auncestor 2. The Writ is Scire facias haeredi terrarum c. and the Retorne is Scire fecit W. H. militi haeredi praedicti M. and every Retorne must answer the point of the Writ 3. The judgement is generall against Sir W. H. where it ought to be speciall for otherwise his owne Land shall be liable where by the Law the Land onely which came to him by his Father ought to be charged and he is charged as Terrtenant as aforesaid but these poynts were not resolved by the Court. Nota the new Writ of Error after entry of the first was not brought Quod coram vobis residet because the Record is not removed out of the keeping of him who had the custody thereof before A Perfect Table of the Principall matters contained in every Case in this Booke WHAT words doe make a generall warranty and to whom the custody of evidences doth belong Page 1 Tenant for life commeth in as Vouchee in a common recovery it is a forfeiture Page 1 2 23. H. 8. Extends not to suppresse good uses the conveyance good and the bad use void any man may give Lands to Charitable uses Page 2 Touching the Exposition of the Kings grants and how the words Ex speciali gratia mero motu c. therein shall be construed Page 3 A common Recovery by Tenant in taile binds them in remainder and reversion and all Leases and charges granted by them ib. A feoffement by Tenant for life destroyeth a contingent remainder Page 4 Conusee of Tenant for life and him in remainder in taile renders a rent to Tenant for life it is good during his life ib. Tenant for life and he in remainder in taile infeoffe I. S. it is no discontinuance or forfeiture otherwise if without deede Page 5 Perpetuities are against Law but the Parliament or Law may make an estate as to one and good to another Page 5 6 Tenant in taile suffers a recovery and dyes before Execution it may be sued against the issuâ— and when a man may enter or claime the Law will not put things in him till entry or claime Page 7 A man may be in by discent and yet not have his â—…ge ib. A future power of revocation may be released Page 8 When any thing Executory is created by consent of all it may be voided Page 8 A feoffement by feoffees devesteth all future uses contingent Page 9 27. H. 8. Transferreth the possession to uses onely In esse ib. When a remainder ought to vest ib. 27. H. 8. Of uses shall not be taken by equity ib. A diversity when Tenant for life infeoffeth the reversioner mediate and when imediate there it is no forfeiture ib. A disseissor may make admittances but not voluntary grants Page 11 A difference when a confirmation is made to one that is in upon an expresse condition and when not there the estate is absolute ib. Every fee simple may be charged one way or other Page 12 A difference betweene Terminus annorum Tempus annorum Page 13 A Termor grants to B. so many yeares as shall be behind Tempore mortis suae it is void otherwise if for a certeine number of yeares ib. A lease cannot comence upon a double contingency Page 14 He who hath a power of revocation may doe it part at one time and part at another time till he hath revoked all Page 15 By the same conveyance the old uses may be revoked and new raised Page 16 Vpon what conveyances uses may be raised upon a generall consideration Page 16 17 An Action of
the Case lyeth for disparaging the Plaintiffes Title unto Lands Page 17 THE SECOND BOOKE AN illiterate man is not bound to seale a Deed without hearing the same read and Ignorantia facti may excuse but Ignorantia juris doth not Page 19 If a man plead that he hath kept I. S. indemnified he must shew how but not if he pleads in the negative Page 19 20 The Date of a Deed is not of the substance thereof Page 20 If a Deed be made by Menace it is avoidable by Plea ib. If it be read in other words then it is it bindeth not Page 21 But if he require it not to be read it shall bind him ib. Touching considerations to raise an use Page 21 Where an estate taile is barrable notwithstanding 34. H. 8. Page 22 A Lease by the Q. under the Exchequer Seale is good ib. What Act doth extinguish a Copy-hold Page 23 Things which lye in grant are effectuall by delivery of the Deed without other ceremony ib. Where the Habendum in a Deed is void and where voidable ib. A sale by the Bankrupt after a Commission awarded is void Page 24 13. Eliz. giveth benefit to such onely as comes in ib. The possession of the House is a good possession of the Lands also Page 25 What passeth by this word Cum pertinentijs ib. Where by a Deed Lands are granted Scituate in one place and they lye in another what passeth thereby ib. Where the Act of 34. H. 8. aideth a voidable grant Page 26 A. demiseth bargaines and sells to B. upon consideration for yeares and no Attornement to B. what passeth to him Page 27 Much learning of Elections ib. What Persons capable of Tithes at the Common Law Page 29 Where a man may prescribe to have Tithes appurtenant to a Mannor Page 30 Where a Religious House or Colledge is given to the K. by 1. E. 6. Page 31 Where a perpetuall unity dischargeth Tythes by 31 H. 8. or 1. E. 6. Page 32 Where a possibility shall make a grant good Page 33 Where a Tender upon a condition shall devest an estate Page 34 An estate of freehold cannot commence in Futuro Page 35 The Office of the premisses and Habendum ib. Where the Husband solely may declare the use of a fine of his Wifes Land and when it shall bind her and when not Page 36 Where a Variance in the Declaration avoideth all Page 37 What act of the feoffor dispenseth with a condition Page 38 Where a feoffee is disabled to performe a condition ib. An estate made to three and to the Heires of one the jointure continueth ib. A demise made by Baron and Feme without saying by Deed ib. Attornement of one Tenant for life to the grantee is good Page 39 Where one jointenant may prejudice another ib. In what clauses this word Proviso maketh a condition Page 40 By a fine levyed a condition is not extinct much good matter Page 43 Common assurances construed favourably ib. Where another use may be averred upon a fine upon grant and render or another consideration then is expressed Page 44 When a request is necessary and in what cases ib. The remainder to the right Heires of the Conisor is a reversion Page 45 Where a Donee in taile shall hold of no body Page 46 A man wounded upon the Sea dyes upon the Land unpunishable ib. The Law respects the Originall Act Page 47 THE THIRD BOOKE WHere a Writ of Error or right of Action is given to the King by 28. H. 8. Page 49 A diversity betweene inheritances and Chattells personall Page 50 Neither an Action without a Right nor a right without an Action shall make Remitter ib. A reversion upon an estate taile is out of the Statute of 9. R. 2. c. 3. Page 51 Where a grant from the Q. ought to haue precise words ib. A render to the Wife onely voidable where shee is not party Page 52 The Husband onely vouched where it barreth the remainder Page 53 A recovery against Tenant for life and he in remainder in taile shall not bind the taile Page 54 A grant of a Copy-hold for life is within 31. H. 8. of Monasteries ib. Excellent Rules for interpretation of all Statutes ib. What Statutes extend to Copy-holders and what not ib. Whether West 2. c. 1. extends to Copy-holds Page 55 Where the rents shall be intended to be the old rents Page 56 If the particular estate may determine before the remainder can comence what is become of it ib. In VVills the intent of the Devisor must be considered Page 57 Paying in a VVill where it is a condition and where a limittation ib. VVhere Debt lyeth for rent before the last day of payment Page 58 Three sorts of privities Page 59 Lessee assigneth Bargainee of the reversion shall not have Debt against the Lessee but the Lessor might Page 60 An Executor of a Termor not liable to Debt after Assignement ib. The Lessor may charge the Lessee or his Assignee Page 61 VVhere an estate may be waved in pays at the common Law and where by the Statute of 27 H. 8. of Vses Page 61 62 Much notable Learning upon the Statutes of 32. 34. H. 8. of VVills and of Relations and what inheritances are devisable Page 63 64. c. VVhere the second delivery of a Deed shall relate to the former Page 67 The severall sorts of custodies and Gardians Page 68 VVho shall have the custody of the Heire apparent an infant Page 68 69 The Mother shall have the custody c. within 4 5. Phil. Mar. c. 8. Jure naturae Page 69 Equally to be divided in a VVill and their construction Page 70 Excellent Learning of discents and of Possessio fratris ib. The Sheriffe is not bound to bring a prisoner in Recta linâ—a Page 71 VVhat Act is an escape and how prevented by the Sheriffe ib. A lease for three lives by a fine where within 11. H. 7. c. 20. Page 72 VVhat person may take advantage by entry within that Act ib. A VVoman accepts a fine and renders back for 1000. yeares it is within that Statute Page 73 A prisoner taken againe in Recenti insecutione is in Execution againe Page 73 An Action will lye against the Sheriffe before he be retaken ib. And after he is taken he shall be in prison againe ib. After a demurrer there shall be no repleader Page 74 Issue Tenant in taile suffers a recovery the Mother releaseth with warranty this is not within 11. H. 7. Page 74 75 Otherwise if the Wife had released after the death of the issue Page 76 An estate transferred in the Post before the warranty discend Page 77 The Lessor having cause of entry but no notice accepts rent ib. The Lessor may have debt after a reentry Page 78 A Lease for yeares is not made good by acceptance if the condition be to be void othewise of a Lease for life ib. Acceptance and an acquittance barreth all former
Lands to the use of himselfe and of the heires males of his body And for default thereof to the use of the Queene her heires and successors After the Tenant in tayle in possession suffereth a common recoverie with voucher And whether it was a barre to the issue in tayle was the question And it was adjudged that the issue in tayle was barred for good considerations are too general to raise any use without speciall averment that valuable or other good consideration was given Resolved that the Land should continue in his name and bloud is not a consideration to raise a use to the Queene though the limitation to her were for the preservation of the tayle against discontinuances and barres for there wants quid pro quo Resolved if he had said in consideration that the Queene is the head of the weale publique and hath the care and charge as well to preserve peace as for to repell hostility yet 't is no good consideration for Kings ex officio ought to governe their Subjects in tranquillity which is implyed in the word King And admit the consideration had been sufficient to raise a use to the Queene yet that would not preserve the estate tayle by force of the Act 34. H. 8. for no estate tayle is preserved by the said Act except the same estate tayle be of the creation or provision of the King and not where the estate tayle is given or created of a common person without provision of the King as may appeare by the preamble of the Act. Resolved that before the Statute of 34. H. 8. a common recovery barred a tayle created by the King Lanes Case 29. Eliz. fo 16. THe Queene seised of a Mannor in right of her Crowne by her Steward granted coppie-hold Lands parcell thereof to one by coppie according to the custome in Fee And after the Queene under the Exchequer Seale made a Lease of the same Lands to another for 21. yeares who granted the same Tearme to the coppie-holder and after the Queene reciting the Lease for yeares granted the reversion thereof in Fee the Tearme of 21. yeares expired The Patentee of the reversion entreth upon the coppie-holder and the entrie was adjudged good Resolved that the Lease under the Exchequer Seale was good by the usage there for the course of every Court is as a law of which the common law takes notice without alledging of it in pleading and every Court at Westminster is bound to take notice of the Customes of other Courts otherwise of Courts in the Countrey and the order of Exchequer is to make Leases by Committimus such land Resolved that the estate of the Coppie-holder was determined by the acceptance of the Lease for yeares And so it was adjudged against the Coppie-holder for notwithstanding that the Coppie-holders estate is taken to be but an estate at will yet the custome hath so established the estate of the Coppieholder that he is not removeable at the will of the Lord so long as he performes his customes and services and by the same reason the Lord cannot determine his interest by any act that he can doe And so it hath been adjudged many times And the aceptance of this Lease was the proper act of the Coppie-holder Resolved that by the severance of the free-hold from the Mannor the Coppiehold estate is not extinguished Baldwyns Case 31. Eliz. fo 23. THings which lye in grant and take their essence and effect by delivery of a Deed without other ceremony as rent or common out of Lands c. by the premisses of the Deed to one and his heires habendum to the grantee for yeares or life this habendum is repugnant to the premisses for the Fee passeth by the premises by the delivery of the Deed and therefore the habendum is voyd And when a man giveth Lands by Deed in Fee by the premisses habendum to the Lessee for life there the habendum is voyd and when livery is made the effect of the Deed shall be taken the most strongly against the Feoffor and the best for the Feoffee When a ceremony is requisite to the perfection of an estate in the premisses limitted and to the estate limitted in the habendum no ceremony is requisite but onely the delivery of the Deed although the habendum be of meaner estate then the premisses the habendum shall stand good and qualifie the generalitie of the premisses as a Fee granted in the premisses habendum for yeares it is for yeares and no inheritance Note There is a diversity betwixt the estate implied in the premisses and expressed as if A. grant a rent to B. this is an estate for life but if the habendum be for yeares this is good and qualifies the implication of the premisses Case of Bankrupts 31. Eliz fo 25. REsolved that a grant or assignement of goods by a Bankrupt after the Commission awarded which is matter of Record of which every one ought to take notice and though to a Creditor in satisfaction of his debt is voyd and that a sale of such goods by the Commissioners is good Which sale by the Statute of 13. of the Queene ought to be equall to every one rate and rate like according to the quantity c. And the Court resolved that the proviso in the said Statute concerning gifts bona fide doth not make any gift good but excludes them out of the penalty c. Commissioners may sell by Deed without Inrollment and though they have not seene the goods agreed that the distribution ought to be severall not joynt for the one debt may be greater then the other and in this case the Jury found that the Commissioners sold the goods to three Creditors joyntly but further that the Bankrupt was indebted to them in 273. pounds which shall be intended a joynt debt and so good Resolved that the act giveth benefit to such as will come and not to them that refuse vigilantibus non dormientibus jura subveniunt and every Creditor may take notice of the Commission being matter of Record Bettisworths Case 33. Eliz. in communi Banco fo 31. A Lease for yeares was made of one Messuage one Close called Raynolds and of divers other Lands in Dale and afterwards the Lessee being in the house the Lessor entred into the same Close and maketh a Feoffment of the Messuage and of the Lands therewith demised and maketh livery in the same Close and afterwards the Lessee reentreth into the said Close And if this was a good Feoffment and livery of seison of the said Close the Lessee nor any for him being in the said Close was the question And it was adjudged that the livery and seison was voyd as well for the Close as for the Messuage and the other Land therewith demised For the Possession of the Messuage which is his Castle is a good possession of the Lands therewith demised and it matters not whether livery be made on the Land within view of the
former acts of limitation as W. 1. ca ' 38. W. 2. ca ' 2. doe not exclude a seisin sufficient at common Law And the Statute saith Actuall possession or seisin which Seisin is eyther actuall or in Law Resolved that the act doth not extend to such a rent or service which by common possibility cannot happen within sixty yeares as homage fealty for the tenant may live beyond or to cover the Hall or to goe in Warre so of a Formedon in Discender for tenant in taile may live sixty yeares after discontinuance and though In facto he dyes and the issue doth not pursue his Formedon yet he may have it at any time and the seisin of the donee was not traversable so of homage and other casuall services though the Lord might have had seisin So if the Lord release to the tenant so long as I. S. hath heires of his body though sixty yeares passe yet he may distraine for Impotentia excusat legem and there may be a tenure by homage c. and yet never done as if the Land be conveyed to a Maior c. or other Corporation aggregate of many they hold by fealty yet they cannot doe it A Writ of Escheate Cessavit Rescous are not within the Act for in them the seisin is not traversable but the tenure and in the Escheate and Cessavit they demand the Land and can lay no seisin and the Act extends onely to those Writs where the demandant or his Ancestors might have had seisin So Note Land shall escheate though there be no seisin of the services within the time of limitation for the Seigniory remaines though seisin wants so if the tenant cesse and the Land be not overt and sufficient to his distresse the Lord shall have a Cessavit though he wants seisin of the services Resolved if nothing be arreare and the Lord distraines the tenant may make rescous or if he be so often distrained that he cannot manure his Land he may have an Assise De souent distres but for such tortious distresse where nothing is arreare the tenant shall not have Trespasse Vi armis against the Lord for this is prohibited by the Statute of Marleb ca ' 3. See the Booke at large in what case an incroachment of more rent by the Lord then he ought to have shall be avoyded in what not Resolved that though a man hath beene out of possession of Land by sixty yeares yet if his entry be not taken away he may enter and bring any possessory action of his owne possession for the first clause doth not barre any right but prohibits that none shall have a Writ of right c. of the possession of his ancestors c. but onely of a seisin within sixty yeares the first and second clause extend onely to seisin auncestrell the third to an action of his owne possession not to entry the fourth to avowry the fifth to a Formedon c. Note Reader out of this that when the tenant hath done homage and fealty which the Lord may inforce him to doe this shall be a seisin of all other services as to avowry though the Lord nor those by whom he claimes had seisin within sixty yeares Actions of Slaunder The Lord Cromwells Case 20º of the Queene fo 12. THe Lord Cromwell brought an Action De Scandalis magnatum against D. Viccar Tam pro domina regina quam pro seipso upon the Statute of 2. R. 2. ca ' 5. The Defendant said to the Plaintiffe It is no marvell though you like not of me for you like of those that maintaine sedition against the Queenes proceedings the Defendant justifies specially that he being Viccar of N. the Plaintiffe procured I. T. and I. H. for to preach there who in their Sermons inveyed against the Booke of common prayer and affirmed it to be superstitious upon which the Viccar inhibited them for they had not license nor authority to preach yet they proceeded by the incouragement of the Plaintiffe the Plaintiffe said to the Defendant Thou art a false Varlet I like not of thee to whom the Defendant said It is no marvaile though you like not of me for you like of those innuendo the aforesaid I. T. and I. H. that maintaine sedition Innuendo seditiosam illam doctrinam against the Queenes proceedings Resolved in this case that the Statute aforesaid concerning the King the Judges Ex officio ought to take notice of it as they ought of all Statutes that concerne him Resolved that the justification is good for in case of slaunder the sence of the words is to be taken which may appeare by the occasion of speech Sensus verborum ex causa dicendi accipiendus est et sermones semper accipiendi sunt secundum subjectam materiam And here the sence of the words appeares and his meaning in speaking them and that he did not intend any publique or violent sedition as the word of it selfe imports and God defend that the words of one by a strict and grammaticall construction should be taken contrary to the manifest intent as in an Action for calling the Plaintiffe murderer 't is a good justification that the Plaintiffe confessing that he had killed diverse Haires with Engines the Defendant said Thou art a Murderer and the Defendant shall not be put to a generall issue when he confesses the words and shewes that they are not actionable as in maintainance the Defendant may justifie lawfull mainteinance whereupon the Plaintiffe replyed that the Defendant dixit c. Verba praedict de iniuria sua propria absque tali causa upon this they were at issue and after agreed Cutler and Dixons Case 27. and 28. of the Queene fo 14. IF one exhibite certaine Articles to a Justice of peace against one declaring divers great abuses and misdemeanours c. to the intent to bind him to the good behaviour In this case the party accused shall not have any action upon the case for it is in pursuite of ordinary justice and if such actions were permitted none would complayne for feare of infinite vexation Sir Richard Buckley and Woods Case 33. and 34. of the Queene fo 14. WOod exhibited a Bill in the Starrechamber against Sir R. B. and charged him with divers matters examinable there and with other matters not determinable there as that he was a maintainer of Pyrates and Murtherers and a procurer of Pyracies upon which Sir R. B. brought this action c. Resolved that no action lyes for matter examinable there though 't was meerely false because that 't was in course of justice Resolved that an action lyes for these words not examinable there for 't is not done in course of Justice and great inconvenience would follow if matters may be inserted in Bills exhibited in so high and honourable a Court in Slaunder of the parties and they cannot answer there for their purgation nor have their action for purging themselves of the crimes and recover damages for
in the remainder enters J. S. takes the Corne he in remainder brings Trespas The right of the Corne is not in the plaintiffe or defendant but in the lessee for yeares of lessee for life but the lessee of the disseisor had right against the plaintiffe by reason of the possession and for that if he had pleaded that he had entred to take the Corne this had been good but because he pleaded Non culp the plaintiffe had judgement for the Entry and was barred for the residue Penrins case 38. Eliz. Banco Regis fol. 85. W. P. Brings a Quod ei deforceat in nature of a Writt of Right in Wales and after the mise joyned is nonsute Judgement finall is given he brings the like Writt and the first Judgement is pleaded in barre the demandant demurres and adjudged against him and he brings Error 1. Although by the Statute of 12. E. 1. Triall of right in Wales shall be by Common Jury yet Judgement finall shall be given 2. Erroneous Judgement finall in right shall binde untill it be reversed 3. Judgement finall shall not be given upon default of the Tenant in a Writt of right but a Petit Cape shall issue for peradventure he may save his default Cases of Executions Blumfeilds Case in banco le roy 39. Eliz. fo 86. TWo men were bound joyntly and severally in an Obligation the one was sued condemned and taken in Execution and after the other was sued condemned and taken in Execution and after the first escaped and the other brought an Audita quaerela and although the Plaintiffe might have his Action against the Sheriffe upon the escape yet untill he be satisfied indeed the other cannot have his Audita quaerela for if the Defendant be sued by one Writ or severall Proces although the entry be Quod unica fiat executio This is to be understood of one Execution with satisfaction for he may have three bodies in Execution In communi banco inter Lynacre Rodes Case Hill 33. Eliz. It was adjudged that notwithstanding the Conusor in a Statute Staple was taken and escaped yet his goods and Lands upon the same Statute may be extended for the Escape and the Action which the Plaintiffe might have against the Sheriffe is not a satisfaction of the Debt And if so the Conusor be taken and dye in Execution the Conusee shall have Execution of his goods and Lands And it was adjudged 24. Eliz. in t Joanes Williams that where two men were condemned in a Debt and the one taken and dyed in Execution yet the taking of the other was lawfull and then it was resolved Per. tot Cur. that if a Defendant dye in Execution yet the Plaintiffe may have a new Execution by Elegit or Fieri facias c. The Execution of the body is an Execution but not a satisfaction as appeareth in 4. H. 7. 8. and 33. H. 6. 47. in Hillaryes Case adjudged but a gage for the Debt for the words of the Writ are Capias I. S. Ita quod habeas corpus ejus coram Justic nostris c. ad satisfaciendum G. L. de debito damnis c. and so his body is taken to the intent he should satisfie and when the Defendant hath paid the money he shall be discharged out of Prison Garnons Case 40. Eliz. fo 88. LAyton recovered against Wallwyn in an Action of Debt and Outlawed the Defendant after judgement and sued a Cap. Vtlag and delivered the same to Garnon the Sheriffe who did take the Party and before the returne of the Writ the Defendant escaped and thus it was resolved that if one at the common Law have judgement in an Action of Debt and after judgement Outlaw the Defendant then the Plaintiffe is at the end of the Suite for any processe to be sued in his name Yet if the Defendant be taken by Vtlary at the Suite of the King no Laches being in the Plaintiffe in continuance of his Processe he shall be in Execution for the Plaintiffe if he will for reason requireth that if the King shall have benefite by the Suite of the party So the Plaintiffe shall have benefite by the Suite of the King if judgement in error be affirmed within the yeare a Capias or Fieri facias lyeth without any Scire facias although in another Court Frosts Case In communi banco 41. Eliz. fo 89. FRost recovered Debt and damages against B. who was Outlawed after judgement and a Cap. Vtlagatum delivered to the Sheriffe of London Laborne a Serjeant arrested the said B. in Fleete-streete Ad respondendum A. Laborne kept B. in his House and then Frost came to Laborne with the Sheriffes Warrant to Arrest B. upon the said Cap. Vtlagat the which to doe Laborne refused and afterwards the Sheriffe suffered the said B. to goe at large and upon this matter Frost brought his Action upon the case against the Sheriffe and supposed that the Sheriffe did arrest the said B. by vertue of the said Cap. Vtlagat and that he suffered him to goe at large and the Defendant pleaded Non permisit eum ire ad largum The Jury found all the said speciall matter and judgement was given for the Plaintiffe For first it was resolved That when a man is in custody of the Sheriffe by Processe of the Law and after another Writ is delivered unto him to apprehend the body of him who is in his custody immediately he is in his custody by force of the second writ by judgement of Law although he make no actuall arrest of him for to what purpose should he arrest the party that is already in his custody Et lex non precipit inutilia quia inutilis labor stultus the words of the writ are not onely Capias c. but also Salvo custodias c. Ita quod habeas corpus coram c. and so he ought safely to keepe him Vide 7. H. 4. 30. And the Defendant ought not to be discharged untill he had found surety to satisfie the Plaintiffe by 5. E. 3. cap. 12. Hoes Case 42. Eliz. fo 89. In the Exchequer EXecution of a writ of Execution as well at the Suite of a common person as at the Kings suite is good without returne of the writ for if a man be arrested upon a Cap. ad satisfaciendum the Execution is good although the Sheriffe doe not returne the writ and so in all writs of Execution where the Sheriffe doth onely execute the same as Cap ad satisfaciendum habere fac seisinam vel possessionem Fieri Facias Liberat. If the Execution be duely made it is good but if Cap. in Processe be not returned the Arrest is not lawfull for there the intent of the writ is to bring the party to answer the Plaintiffe and in case of an Elegit for there the extent is to be made by Inquest and not by the Sheriffe onely and the writ ought to be returned otherwise it is of none effect In this case
shall abate against all but if it be for matter in fact onely as for misnaming one Defendant it shall abate onely against him omission or addition which doth not alter the forme is amendable as if Dei gratia be omitted Voluntary or negligent keeping of Records by the Clerke is amendable by other parts of the Record or by exemplification Count or plea in barr c. which wanteth substance shall not be amended in another Terme but default in the colour because this is the default of the Clerke shall be a Record shall be amended in another Terme by the paper Booke and a thing apparent to be the fault of the Clerke shall be amended in another Terme as rien luydoit de hoc c. predictus defend pro quaerent Nisi prius shall be amended by this Statute if power be given to the Justices to proceed otherwise not as if issue joyned in the Record be mistaken in the Nisi prius it shall not be amended but misprision of dammages shall be because this is not materiall to the issue and it is the default of the Clerke Warrant of attorney and returnes are amendable by this Statute but if there be none at all it is out of the Statute and because this Statute leaveth many cases without remedy the Statutes of 32. H. 8. cap. 30. and 18. Eliz. cap. 14. were made Ten misprisions as yet not remedied 1. Variance materiall betweene the originall and the Count. 2. Want of substance in the originall or Count. 3. Insufficient tryalls 4. If a Coroner returnes the Jury where the Sheriffe ought 5. Lack of name of the Sheriffe to the returne 6. Where no returne is indorced upon the Venire facias 7. When one who is not returned giveth a Verdict 8. Pleas of the Crowne 9. If it appeare to the Court that he who hath a Verdict had no cause of action 10. Errour in Law Cases in the Court of Wardes Myghts Case 7. Jacobi fol. 163. 1. REsolved if J. M. purchase Lands to him and an Infant in fee it cannot be averred that this was to take away the wardship because he never was sole Tenant to the King 2. No feoffement that I. M. can make of his moity can be aver'd to be by collusion c. because without feoffement no wardship shall be and also the Statute speakes of sole seisin 3. A feoffement to the wife or younger Child cannot be averred to be by covin c. upon construction of the Statute of 32. 34. H. 8. where collusion cannot be averred by the Statute of Marlebridge it cannot be now to seize all the Land but it may be for the third part which belongs to the King If a third part be left to the King no averrement of covin may be for the other two parts the Father makes a feoffement to diverse uses the remainder to his second Sonne and dyeth his Eldest Sonne dyes the second Sonne shall not be in ward by averment of covin Digbies Case 7. Jacobi fo 165. TEnant of the King conveys his Lands to the use of himselfe for life the remainder to his Sonne and Heire in taile and after is attainted of Treason the King shall have no wardship of any part of the Land by 32. 34. H. 8. because there is no Heire and livery must be sued in the name of the Heire but the King shall have wardship in such a case before 26. H. 8. because there was an Heire The Earle of Cumberlands Case 7. Jacobi fol. 166. E. 2. granted the Castle and Mannor of S. in taile to R. C. H. 6. granted the reversion to T. C. if the taile be good if not he grants it in possession this is good one way or other and so are many Patents from time to time Paris Stoughters Case 7. Jacobi fol. 168. BY Mandamus it was found that P. S. dyed seised 40. El. and held of the Queen in common socage 7. Jacobi a Melius inquirendum was awarded whither he held of the King by common socage or in chivalry and it is found that he held of the Queene by chivalry This Writ of Melius c. is repugnant and giveth no authority to find this office because a Tenure cannot be of the King in the time of Queene Elizabeth and therefore a new Writ shall be awarded but if the first Melius be good no other shall issue 1. For avoiding Infinitnesse 2. A Diem clausit c. shall not issue upon a Diem c. Nor Mandamus upon a Mandamus so a Melius c. shall not issue upon a Melius 3. If an Office be found against a Subject he shall have a traverse and if upon that it be found against him he hath no remedie So the King shall have but one office and a Melius and no more although that a Tenure be found of two Subjects or one hath an Ouster le maine the King shall not reseise without a Scire facias Toursons Case 8. Jacobi fol. 170. IF Tenant of the King commit Fellony Ao 1. Jaco and after is attainted Ao 3. for the same and after in Ao 4. all is found by office Now this office shall have relation to the time of the Fellony to avoid all meane alienations and incumbrencies but for the meane profits it shall have relation to the time of the Attendor for their the Kings Title appeared of Record and the like Law is of an Ideot But in case of a ward within age the King shall have the meane profits from the death of the Auncestor because he hath it by reason of his Seigniory and he looseth the rent and services in the meane time the difference is when the King seiseth jure protectionis regae or Nomine destrictionis and when Ratione Prioris recti seu tituli Sir Gerrard Fleetewoods Case 8. Jacobi fol. 171. SIr William Fleetewood receiver of the Revennues of the Court of Wards in Anno. 35. Eliz. was possessed of a Messuage and certaine Lands in Harrow in Com Mid for a tearme of yeares in Anno. 36. Eliz. he became Receiver generall and was bound in 20. Obligations of 200. l. a peece to make true account c. And after upon severall accounts he became indebted in great Summes of money to the Queene and being so indebted in consideration of 1100. l. did bargaine and sell the said Lease to James Pemberton which by meane conveyance came to Sir Gertard Fleetwood Question Whither this Lease c. was extendable and lyable to the Kings Debt c. and it was resolved that the said sale of the tearme was good against the King because the tearme was but a Chattell and the sale of Chattells after judgement Bona fide is good but not after Execution awarded And Cooke Chiefe Justice said that a Receiver or other accomptant which is indebted shall not be in worse case then a Fellon or a Traytor that may after Fellony or Treason and before conviction sell Bona fide for his
life his heire shall not be in ward although he be within age by that Statute because he is not immediate heire Sondayes Case 8. Jacobi fol. 127. M. S. deviseth to his Wife for life the remainder to W. S. and if he shall have issue that then his issue shall have it the remainder to S. the remainder to T. c. Totidem verbis upon condition that if any of them or this heires of their bodies goe about to alien that he in the next remainder to enter after the death of M. W. and S. T. suffereth a common recovery to his owne use in fee he in the next remainder enters 1. Resol Every one of the Sonnes hath an estate taile 1. These words if he dye without issue Male are sufficient to create an estate taile 2. The generall clause if any of his Sons or heires of his body doe it maketh it manifest 3. The condition proveth it for they cannot alien if they have but for life for this would be a forfeiture 2. The restraint of tenant in taile to suffer a common recovery is voyd See Mildmayes Case in the sixth Book Quicks Case 9. Jacobi fol. 129. THe King Lord I. N. and Tho. Q. mesnes of a Mannor which they hold in common in Capite and tenant of three Acres holden in Chivalry T. Q. maketh a feoffment of his moity to the use of himselfe for life the remainder to I. Q. his Son in taile the tenant infeoffeth I. Q. who infeoffeth T. Q. to defraud I. N. of the wardship of his Sonne within age and dyes I. N. seiseth the Son T. Q. dyeth the King shall not have wardship of the body and moity of the three Acres 1. Resol By the death of I. Q. it was a Chattell vested in I. N. and the King had but a possibility to have it if T. Q. dye during the minority of the ward which possibility shall not devest the wardship out of I. N. 2. When the tenant infeoffeth a stranger to defraud the Lord of wardship the Lord shall not have ravishment of ward before recovery of the Land in a right of ward and although the title of I. N. be but in action yet it shall not be devested by a descent after See the Statute of 34. H. 8. in Case of collusion Bewleys Case 9. Jacobi fol. 130. THe King Lord mesne by Socage and tenant the tenant is attainted of Treason the King grants to one tenendum by Chivalry and Rent and to doe his services to other Lords the tenant shall hold by Socage of the mesne and he by Socage of the King because the intent of the King was to revive the mesnalty which cannot be by any other way and the reviving of the ancient tenure shall be in construction preferred before the reservation of a new and the honour of the King shall be preferred before his profit and there was no default in the mesne Thomas Holts Case 9. Jacobi fol. 131. GRandfather tenant in Chivalry in Capite Father and Son the Grandfather conveyeth part of his Lands to the use of the Father and his Wife the remainder to the Son in taile c. the remainder to the right heires of the Grandfather and conveys other Lands to his younger Children for life with diverse remainders over and dyeth the Father tenders livery and before he sueth it dyeth 1. Resol By the death of the Father before livery sued and after tender the King loseth the primer seisin but not meane rates if any be due 2. The Son shall not pay primer seisin nor sue livery because the Father and not he was within the Statute of 32. H. 8. 3. If the King had had one primer seisin he shall not have another of the Lands conveyed to the younger Children but that ought to be an effectuall seisin Ergo here because the King had not the effect of the primer seisin of the Father he shall have primer seisin of the Lands conveyed to the younger Children as if hee had the grant of a prochein avoidance and presents and his Clerk dyeth before Induction he shall present again and before the Statute of Donis If tenant in taile the revertion to the King had aliened post prolem suscitatam with warranty which descends upon the King it is no barr without assets the effect of the warranty 4. The King shall not have primer seisin in regard of a secke revertion which descends to the Son otherwise if a rent be reserved the King may have that for a yeare So note for a fruitlesse revertion there shall be wardship but no primer seisin Matthew Menes Case 9. Jacobi fol. 133. TEnant of the King of a Messuage in Capite who holds other Gavelkinde Land deviseth all to his 4. Sons equally 1. Whether the King shall have a third part of the Messuage onely 2. Whether out of the part of the heire onely because Praerogativa Regis cap. 1. Rex habebit c. De quocunque tenuerint c. is intended if the Land descend to the same heire to whom the Land holden did discende 1. Resolved if no Will had beene made the King shall not have the Lands holden of others in socage but when by the Will to which he is inabled by the Statute he deviseth it to his Sonnes there the saving in 32. H. 8. giveth to the King ward and primer seisin So if Lands in chivalry devisable by custome are devised to the Feme although the devisee be good for all without aide of the Statute yet the King shall have a wardship of a third part 2. The King shall have his third part out of all their Estates equally Ascoughs Case 9. Jacobi fol. 134. THe King Lord Mesne in Capite and Tenant in socage the Mesne grants to the use of himselfe for life the remainder to the Tenant in taile if the remainder suspends the Mesnalty during the life of the Mesne Resolved that during his life the Mesnalty is not suspended 1. Not as to the Mesne because he remaineth Tenant to the Lord nor by reason of the remainder for the avoâ—ding of Fractions otherwise if the remainder be liimitted in fee for then he hath as high an estate in the Mesnalty as in the Tenancy and this can never be revived and otherwise a Seigniory in fee shall issue out of a Mesnalty for life and there will be Lord and Tenant in fee and Mesne for life but if the Lord Grant his Seigniory for yeares the remainder for life to the Tenant the Mesnalty is suspended A Mesnalty or Seigniory cannot be suspended in part and in esse for part by the Act of the party but they may by act of Law or of a third party As if the Lord take a Lease of part of the Tenancy all the Seigniory is suspended but if a Gardian indow the Feme the Seigniory is in esse for that part and suspended for the residue If two Coparceners are of a Seigniory and one commeth to the Tenancy by
defeasible Title the other shall distraine for the moity of the Seigniory and the Act of the Coparcener shall not prejudice her There are foure manner of Avowries 1. Upon his very Tenant 2. Upon his very Tenant by the manner where the Tenant had but a particular estate 3. Upon his Tenant by the manner when the Lord had but a particular estate 4 Upon the matter in the Land as within his fee but the Lord hath liberty to Avow according to the Common Law Thoroughgoods Case 9. Jacobi fol. 136. TEnant in fee infeoffeth one by Deed indented and delivereth it upon the Land in the name of seisin this is good and hath a double operation at one instant Viz. to deliver the Writing as a Deed and to deliver seisin of the Land according to the Deede 1. Resolved this is his Deed although he doth not say so but delivers it in the name of seisin for delivery is good without any words if one deliver a Deed to one as an escrow to be his Deed upon performance of conditions this is his Deed presently otherwise if he deliver it to a stranger so words are good without actuall delivery as if he saith take it like to a livery within view If the Obligee deliver the Obligation to the Obligor to redeliver the Obligor may retaine it for the words to redeliver are void 2. Delivery of the deede upon the Land amounteth not to livery and seisin but it doth if delivered in the name of seisin so of any other thing or if he saith I deliver you seisin without delivering any thing this is good also Beaumonts Case 10. Jacobi fol. 138. I. B. and E. his Wife Tenants in speciall Taile the remainder to the Heires of the Baron I. B. levies a Fine to K. E. 6. who grants to the Earle of H. in fee I. B. dyeth E. enters the Earle of H. confirmes her estate to have to her and the Heires of the body of I. B. E. dyeth seised having issue F. B. who accepts a fine Sur conusans de droit tantum with Proclamations and dyes having issue Sir H. and I. Sir H. in Ward to the K. after full age and before livery Covenanteth to stand seised to the use of himselfe and his heires Males of his body and dyes having issue onely a Daughter in Ward whether shee or I. B. shall have the Land c. 1. Resolved that E. had an estate taile and the Statute of 4. H. 7. c. 24. which inableth the Baron to barre the issue saveth the right of the Feme if shee enter or c. and one may have an estate taile which cannot discend as if the Sonne in the life of the Father levyeth a fine the Father remaineth Tenant in taile still although it cannot discend and E. here hath an estate taile so long as shee liveth or the Heires in taile remaine 2. The Confirmation is void for he who did confirme had but a possibility which passeth not by the confirmation and if he had a reversion in fee yet it should be void 1. Because the taile which the Feme had was confirmed which cannot descend 2. The confirmation doth not add a descendible quallity where he who should have it is disabled to receive by discent 3. This would in effect repeale 4. H. 7. 32. H. 8. two of the principall Pillars of the Law 4. 5. If Tenant in Dower grants her estate there is a discendible quality in the Heire to bring wast against Tenant in Dower and although the Heire confirme her estate for life and after shee assigneth it to I. S. who committeth wast yet the action of wast is maintainable against her Pari ratione in the Case at Barre in regard the confirmation doth not inlarge the estate of E. it cannot add unto it a discendible quallity 6. There are but three manner of Confirmations Viz. Perficiens Crescens aut diminuens and the Confirmation in this Case is none of them and if E. had no power to levy a fine or suffer recovery the reason is because she cannot barre that which was barred before by her Husband but this point was not now in Question The End of the Ninth Booke THE TENTH BOOK The Case of Suttons Hospitall Baxter Plaintiffe Sutton and Law Defendants in Trespasse in the Kings Bench and adjourned into the Exchequer Chamber and judgemet given against the Plaintiffe 1. Obj. BY the Parliament 7. Jacobi the Hospitall was Founded at H. in Essex Ergo the incorporation made after by the Kings Letters Patents is void and the Charterhouse is not given by the said Statute because S. purchased it after 2. Sutton who had License to Found an Hospitall before the Foundation dyed 3. The K. cannot name the House and Lands of S. to be an Hospitall because in Alieno solo 4. Every Corporation ought to have a place certaine but here the License is to found an Hospitall at or in the Charterhouse Ergo before that S. had made it certaine there was no incorporation also the place of Corporation ought to be certaine by Meates and Bounds and a place knowne will not serve 5. The King intended to make an incorporation presently which cannot be before that S. name a Master 6. Governors cannot be untill there be poore in the Hospitall Ergo S. calleth it in his Will his intended Hospitall 7. The Foundation cannot be without the words Fundo erigo c. and before such Foundation a Stranger cannot give Lands unto it 8. The Master was named at will where he ought to be for life and have freehold in the Lands also the Hospitall must be Founded before a Master be named 9. The bargaine and sale made by S. is void 1. Because the Money paid by the Governours in their private capacity shall not inure to them in their politick capacity 2. The Habendum is to them upon trust which cannot be in a Corporation 3. Because as before no Hospitall was Founded 10. The King cannot make Governours of a thing not in Esse To the first it was answered that the Letters Patents recite the preamble of the Act whereby and in many parts of the Act it appeareth that the incorporation was to be In futuro when it shall be erected and the Statute doth not give any Lands unto it but power to give without License of alienation and mortmaine and it appeareth by the Letters Patents that the erection precedes the License 2. The License is to him his Heires Executors c. at any time hereafter and the words of incorporation are in the present and so the incorporation precedeth the execution of this License 3. Although the King gave the name yet S. devised it and assented to it and the K. did it at his Suite 4. The K. makes an Hospitall of all the premises so that it is certaine and as to that which was said that a place uncertaine cannot be an Hospitall It was answered that a Mannor may be which is
lyeth against Executors for the Testators Debt Page 352 VVhere a man may wage his Law Page 353 VVhat words shall be adjudged a good consideration Page 354 VVhat Offices grantable for yeares and by what Acts Offices may be forfeited and where the King may seise without Scire facias Page 355 356 Copy-hold estates are within 4. H. 7. of fines Page 356 Disseissor of Copy-hold levyes a fine what time the Lord hath ib. VVho may enter without command to avoid a fine Page 356 357 A plea by an administratrix of fully administred must be certeine Page 358 VVhere an Allegation generally of Covin is good ib. A commoner Copy-holder may have an Action of the Case for the losse of his Common so he may distreine damage feasant ib. A Baron of Scotland shall be tried by Commons of England Page 359 See the diverse Resolutions of difficulties arising upon the Indictment of the Lord Sanchar and others Page 359 360 Cases in the Court of Wards The Kings release doth not extinguish a service inseparable Page 361 VVhen the Land moveth from a Subject and the Tenure is changed the new Tenure shall be as neere the ancient as may be ib. VVhere the particular estate is out of 32. H. 8. no wardship accrueth to the King by advancement of him in remainder otherwise of a reversion for he is Tenant Page 362 VVhat words are sufficient to create an estate taile Page 363 The Kings possibility shall not devest a VVardship vested Page 364 The reviving of an ancient Tenure preferred before the reservation of a new ib. By death of the father before livery sued after tender The King looseth primer seisin but no meane rates Page 365 Of a fruitlesse reversion a wardship but not primer seisin ib. Where the saving in 32. H. 8. giveth ward and primer seisin Page 366 A Mensnalty cannot be suspended in part and in esse for part by the act of the party but it may by Act of Law or a third person ib. There are foure manner of Avowries Page 367 What Act is a good delivery of a Deed or of seisin of Land ib. One may have an estate taile which cannot discend Page 368 Three manner of Confirmations Page 369 THE TENTH BOOKE WHat things requisite to the Founding of an Hospitall see at large Page 371 An estate taile barred by recovery in value without recompence Page 374 A Feme Covert shall not loose her Land by any conclusion without examination upon a Writ in Court ib. Tenant for life suffers a recovery and he in remainder in taile is vouched the reversion in fee is barred Page 375 The devise of a terme to one for life the remainder to another for life is good as an Executory devise Page 376 The first Devisee cannot barre him who hath the Executory devise ib. Assent to the first devise is an assent for all ib. Such an executory devise not grantable over ib. but it may be extinguished by release to the first Devisee ib. Qui destruit medium destruit finem Page 377 If a Recusant grant the next avoidance before conviction it is void by 3. Jacobi for he is disabled from the beginning of the Session c. Page 378 Covin shall not be presumed if it be not averred ib. A private Act shall be taken as it is Pleaded ib. What grants of Offices by a Bishop are void by 1. Eliz. except for twenty one yeares or three lives and what Circumstances requisite Page 380 Praerogativa Regis c. 15. excepts Knights fees and advowsons and indowments all other appendants now passe by grants and so doe they in Case of Restitution Page 381 A Corporation aggregate may make a surrender in Law not in Deed Page 382 The Jurisdiction of the Marshalsea and the reasons thereof Page 382 383 About 4. E. 3. the Court of Kings Bench became resident Page 383 A good diversity where the Court hath Jurisdiction but proceed In verso ordine and where they have not Jurisdiction there all they doe is Coram non judice and void Page 383 384 Diverse abstruse points resolved some at the common Law and severall upon the Statutes of 32. 34 H. 8. of wills Page 385 386 VVhat Colour is and where it must be given Page 388 VVhere a privy interest although he claime but part must shew the first Deed except he claim meerly by Law Page 388 389 VVhere a man may have a freehold discendible Page 390 A warranty barres no estate which is not displaced at the time of c. ib. A warranty cannot inlarge an estate where it may be given in evidence Page 391 VVhat Obligations made to Sheriffes are within the Statute of 23. H. 6. Page 391 Forma verbalis Forma legalis or Essentialis Page 392 393 The time of granting a Tales and when it is well granted Page 396 397 The proper place of a reservation is after limitation of the estate Page 397 Increase of services is betweene very Lord and very Tenant Page 398 VVhen Lands shall be said to be concealed from the K. 398 399 A man shall have costs in all cases where hee recover dammages Page 400 Where a man shall recover damages and costs also ib. Where to the writ of Inquiry and to the verdict and judgement ib. Where insufficient verdict may be supplyed by a writ of Inquiry and where it cannot a good difference Page 401 A difference between auncient Corporations and new in matter of Misnosmer Apices Juris non sunt Jura Page 401 402 Which is the legall time of payment of Rent Page 402 If payment be in the morning and the lessor dye at noone this is satisfactory against the heire but not against the King ib. Where the lessee shall hold rent free for a quarter Page 402 Where Damages may be assessed intirely and where not Page 403 404 What words passe under the name of Latine Page 404 Where by death of one of the Plaintiffes after summons and severance the writ abateth divers good diversities Page 404 405 A Qu. impedit praesentare ad medietatem Ecclesiae where good ib. Cases upon the Commissions of Sewers Where the Commissioners may subvert a Cawsey and where not Page 406 If a wall be subverted by a sodaine inundation the Commissioners may taxe all equally who have damage thereby ib. Otherwise if it come by neglect of him who ought to doe it ib. If the Commissioners have power to make a new River and a generall taxe so much upon every Towne for doing thereof Page 407 What is a good revocation of old uses and limitation of new Page 409 THE ELEVENTH BOOK A Difference between a disability absolute and temporary or personall Page 411 The grant of the office of Auditor to two is good Page 412 What offices grantable in reversion ib. Where the Jurors may assesse damages severally Page 413 Where one shall have an attaint that is a stranger to the issue ib. Where a writ of Enquiry shall issue Page 414 The plaintiffe shall have judgement de melioribus damnis ib. The conclusion of a plea is not traversable Page 415 In every issue there must be an affirmative and a negative ib. The Impropriation sufficient in the life of the Incumbent ib. VVhere the witnesses are not punishable for perjury Page 416 Perpetuall unity a discharge and what requisite thereunto ib. VVhat prescription for tithes of houses is good ib. A customary Mannor may be holden of another Mannor Page 417 VVhat variance in the name of a Corporation doth vitiate Page 418 VVhat devise of socage by tenant is Capite is good Page 419 An Ejectione firmae of tithes without shewing their kinds not good ib. If a deed be rased the obligor may plead Non est factum Page 420 A diversity where it is rased by the obligee himselfe and where by another ib. VVhere Clergy allowable at the Common law and where at this day copious and excellent matter Page 421 VVhere an Errour lyeth not before the finall Judgement Page 423 A fine by the Stewart of a Mannor where it is well assessed Page 425 VVhere the Lord may destreine for it without prescription ib. VVhere an action shall abate in part and where for the whole Page 426 Notwithstanding the exception trees remaine parcell of the Inheritance ib. A thing in possession cannot be parcell of a reversion upon an estate for life Page 427 None may be prohibited by the common law to use any trade Page 428 An ordinance by a Corporation against law is void ib. How an Ejectione firmae must be brought Page 429 Although the dammages are not well assessed yet the Plaintiffe may have judgement ib. Much variety of Learning touching Recusancy and upon the severall Statutes concerning them Page 429 430 Master and Fellowes of a Colledge restrained to grant by 13. Eliz. what statutes doe binde the King Page 432 Some grants to the King void and some voidable Page 433 VVhere acceptance of Rent doth barre and where not Page 434 Tenant in taile after possibility of c. hath a greater estate in quality then tenant for life not in quantity Page 434 435 VVhat priviledges belong to his estate Page 435 A lease without impeachment of wast what passeth thereby ib. A monopoly is against law and hath three incidents against the weale publique Page 436 What fees belong to the office of Master of the Ordnance Page 427 In the Kings Case the law maketh a privity to be accomptable ib. For what causes a Citizen may be disfranchised Page 438 The 3. Book fol. 9. Dowties Case A Difference where the first certainty is false in a grant and where the first is true and the second false Page 439 Where lands are in the Q. by 33. H. 8. c. 20. without seisure ib. Fol. 11. Sir William Harberts Case What remedy for debts at the common law and when the body and lands became liable thereunto Page 440 44â— In all actions vi et armis the body was subject unto Imprisonment and so for debt at the Kings suite Page 441 The heirs of the conâ—isâ—ser shall not have contribution against a purchasor ib. Changes reall doe not survive but personall doe Page 442 Three Errours there moved but not resolved ib. FINIS
the estate of the land which all the Court agreed 5. If the Fine had not been the auncient uses were determined without entry or claime because he himselfe was tenant for life of the land and the act of revocation is as strong as claime and this point was agreed in the Earle of Salops case 6. By the same conveyance that the auncient uses are revoked others may be raised without claime or other act and the Law adjudges a priority of operation Whites case adjudged according Maildmayes Case 24. Eliz. fo 175. A Use cannot be raised by any covenant proviso or bargaine c. upon a generall consideration and therefore if a man by Deed indented and inrolled c. for divers good causes considerations bargaine and sell his Land to another and his heires nihil operatur inde for no use shall be raised upon such generall considerations for it doth not appeare to the Court that the bargain or had quid pro quo But the bargainee may averre that money or other valuable consideration was paid or given if in truth it was so and the bargaine and sale is good It was resolved that when uses are raised by covenant in the consideration of advancement of any of his bloud and after in the same Indenture a Proviso that the Covenantor may make Leases for yeares c. that the Covenantor in this case may not make Leases for yeares to his sonne daughter or any of his bloud much lesse to any other person because that the power to make Leases for yeares was voyd when the Indenture was sealed and delivered For the covenant upon this generall consideration will not raise any use and no particular averment in this case may be taken but if the uses be limitted upon a recoverie fine or feoffment there needeth not any consideration to raise any of the uses Resolved that the words other consideration cannot comprise any consideration expressed in the Indenture before the proviso for other ought to be in quality nature and person different and advancement of his daughter is a consideration mentioned before Anthonie Mildmay brought an action of the case against Roger Standish for saying that Lands were lawfully assured to John Talbott for 1600. yeares and that he was lawfully possessed of the same tearme whereas in truth the said Lands were not lawfully assured for the said tearme nor the said John Talbott was lawfully possessed of the interest thereof And so for slaundering of the title by speaking of the words Mildmay brought an action Standish justified the words and shewed the title of Talbott and it was adjudged that the action was maintaineable and good although that Talbott had a limitation of the Land by will which was the reason that Standish being a man not learned in the Lawes affirmed the words yet because he tooke upon him the notice of the Law and medled in a matter that did not concerne him Judgement was given for Mildmay Et ignorantia juris non excusat THE SECOND BOOK Of Sir Edward Cooke Lord c. Mansers Case 26. Eliz. fo 3. IF a man be unlearned and cannot read and be bound to doe an act of sealing assurances writings c. upon tender c. he is not bound to seale and deliver any such writing if there be not some ready which may read the Deed if the party so require it and in the same language and tongue that he understandeth Ignorantia duplex est facti juris and ignorance in reading or of the language Quae sunt ignorantia facti may excuse but ignorantia juris non excusat and if it be read unto him he may not have a reasonable time to shew it to his Councell learned to see whether it agree with his bond or covenant for he must seale it at his perill or if the same be truly expounded to him it is good enough But if it be read amisse or declared contrary to what it is and thereby the illiterated man is deceived he may very well plead non est factum For the Law saith it is not his Deed and so it was adjudged in Throughgoods case being the third case in this second Booke Resolved that if a man be bound that a stranger shall doe an act in such case he takes upon him that he shall doe it at his perill for he which is bound takes more upon him for a stranger then for himselfe in many cases If a man plead that he hath kept a man indemnified c. he ought to shew how otherwise where he pleads in the negative Non fuit damnificatus Goddards Case 26. El. fo 4. AN obligation dated the fourth of Aprill Anno 24. El. and delivered as the Deed of the partie 30. July An. 23. El. adjudged the Deed of the partie for though the plaintiffe in pleading cannot alledge the delivery before the Date because he is estopped yet a Jury which are sworne to speake the truth shall not be estopped The Date of a Deed is not the substance of the Deed. For if it want date or have an impossible Date as the 30. February the Deed is good For there are three things of the essence or substance of a Deed viz. writing in paper or parchment sealing and delivery And if it have these three although it want In Cujus rei testimonium Sigillum suum apposuit c. yet the Deed is good and when a Deed is delivered it takes effect by the delivery not by the date Throughgoods Case 26. Eliz. fo 9. REsolved that 't is not materiall whether the party to whom the Deed is made or another by his procurement or a Stranger of his owne head reades the writing in other words then the writing is so that he that seales it be a lay man and without covin in him deceived and the pleading of it is alwayes generall without shewing by whom 't was read and A. shall voyde an obligation to B. by pleading that he did it â—y menace of C. Resolved that such a lay-man is not bound to deliver a Deed if no body be present that can reade it in such language as he can understand and if it be read in other words it shall not binde him and 't is at the perill of him to whom 't is made that the very effect and purport of it be declared if it be required but if he doe not request it he shall be bound by it though it be made contrary to his meaning Resolved that it shall not binde if the effect be declared in other words then it is as if the Deed had been read in other words Two Justices a Feoffement of two acres is read as of one it shall not binde see Mansers case before Wisemans Case 27. Eliz. fo 15. TEnant in tayle of certaine Lands the remainder to another in Fee he in remainder by Deed indented and inrolled in consideration of bloud c. as for other good considerations doth covenant to stand seized of the said
house or not When a man maketh a feoffment of a Messuage cum pertinentii he departeth with nothing thereby but that which is parcell of the house as buildings curtelage and gardens If a Lessee for yeares makes a Lease for a certaine Tearme of any parcell and so divides the possession thereof from the residue if of this parcell so severed Liverie be made the possession in the residue by the first lessee is not any impediment to the liverie of this parcell otherwise if a Lessee make a Lease at will of any parcell there his possession of the residue shall hinder the liverie made in this parcell and with this judgement agreed all the other Justices and Serjeants of Serjeants Inne in Fleete-streete Doddingtons Case 27. Eliz. fo 32. KIng H. 8. Ex certa scientia c. granted to A. for 300 l. Omnia illa Messuagia in tenura Johannis Browne Scituate in Well nuper prioratini de W. Spectant ' And in truth the Lands lie in D. in this Case 't was resolved that the grant was voide by the Common Law as well in case of a common person as the King because the grant is generall and is restrained to one certaine Village and the grantee shall not have any Lands out of that Village to which the generallity of the grant is referred for this Pronoune Illa hath his necessary reference as well to the Towne as well as to the Tenure of I. B. for if eyther the one or the other faile the grant is voide And so it was adjudged Per tot cur de Banco Regis Resolved also that this grant was not holpen by the Statute of 34. H. 8. For no grants are holpen by this Statute nor by any act of confirmation but such as comprehend convenient certainty 1. Quia generale nihil certum implicat And here no Tenements are mentioned to be granted because the generall grant being intire was referred to a falsity and therefore it cannot be said that the Towne was misnamed and great inconvenience would follow if c. for the King should be deceived but the Statute helpes when there is a convenient certainty as a Mannor Farme Land knowne by a certaine name or containing so many Acres c. So that it may appeare what things the King intended to passe Note t is the most sure way for the Pattentee to expresse as much as he can in certainty before the generall words SIR Rowland Heywards Case In cur Wardor 37. Eliz. fo 35. SIr Rowland Heyward seised of a Mannor in Demeans and rents in consideration of money doth demise grant Bargaine and sell to A. the said Mannours Lands Tenements and the reversions and remainders with all Rents reserved upon any demise to have and to hold to A. and his asignes after the death of the Lessor for seaventeene yeares rendring a rose the Indenture was inrolled and after the Lessor by Indenture doth Covenant with B. to stand seised of the premises to the use of himselfe and the Heires of his body and no attornment was made to A. The Question was What passed to A and it was resolved by Popham and Anderson chiefe Justices and the Court that A. may have his election eyther to take the same by demise at the common Law or by bargaine and Sale Per Statutum 27. H. 8. without attornment for it was one entire demise and bargaine of one Mannor without any fraction or division thereof and this election remaineth to A. and his Executors and assignes for here is not Election to claime one of two severall things by one Title but to claime one thing by one of the two severall Titles for where the things are severall nothing passeth before Election and the Election must precede but when one thing passeth the Election of the Title may be subsequent For if I. have 3 Horses and doe give to you one of them the property comenceth by Election and must be made in the life of the Parties The Bi of Sarum had a great wood of 1000 Acres called Brerewood and infeoffed another of one House and seaventeene Acres parcell of the Wood and made Liverie in the Wood House nothing passeth of the Wood before Election and the Heire of the feoffee may not make Election Bullocks Case 10. Eliz. Dyer In case where election is given of two several things he which is the primer Agent and that ought to doe the first act shall have alwayes the Election As if a man grant a Rent of twenty Shillings or a Robe the Grantor shall have the Election for he is the primer Agent eyther by paying the one or delivering the other If a man make a Lease rendring twenty shillings or a Robe the Lessee shall have the Election Causa qua supra but if I give unto you one of my Horses in my Stable there you shall have the Election for you are the Primer Agent by taking or seising one of them and so of twenty trees in my Wood. Note for Elections these diversities 1. When nothing passes to the grantee c. before Election there it ought to be made in the life of the Parties but when the Estate passes presently c. the Grantee c his Heire or Executor may elect 2. When the same thing passes and the Donee c. hath Election in what manner c. he will take it the Donee Heire or Executor may elect 3. When Election is given to severall persons the first shall stand 4. When Election is given of two severall things he which ought to doe the first Act shall have Election 5. When the thing granted is annuall and to have continuance there the Election remaines to the Grantor in case where the Law gives him Election as well after the day as before otherwise t is when the thing is to be performed Vnica vice 6. The feoffee c. by his act may forfeit his Election as if A. infeoffe B. of two Acres Habendum the one for life the other in Taile and hee before Election makes a feoffement of both here the feoffor shall enter in which he pleases for the wrong of the feoffee 7. Though the Lessees here enter generally yet they may Elect after so if one be Executor and Devisee of a terme and enters generally c. and after the Lessees in the principall case made Election for to take by bargaine and Sale and had the Rents The Bishop of Winchesters Case 38. El. fo 43. In a prohibition REsolved that at common Law none had capacity to take Tythes but spirituall persons or Persona mixta as the King and regularly no meere Lay man was capable of them except in speciall Cases for he could not sue for them in Court Christian and regularly a lay man had no remedy for them till 32 H. 8. A Lay-Man may be discharged of Tythes at the common Law by grant or by composition but not by prescription for it is commonly said in our Law-Books that a lay man may
prescribe In modo decimandi but not In non decimando And the reason is because he is not except in speciall Cases capable of Tythes at the common Law before the Statute of 32. H. 8. Cap. 7. And therefore without speciall matter shewing it shall not be intended that he hath any Lawfull discharge and in favour of the Holy Church although it may have a lawfull comencement the Law will not suffer this prescription In non decimando to put it to the Tryall of lay men which sooner will straine their conscience for their private benefit then render to the Church the duty which belongeth to it A spirituall person that was capable of Tythes at the common Law in pernancy may prescribe to be discharged of Tythes generally or to have a portion of Tythes in the Land of another Before the Counsell of Lateran every man might give his tythes to any spirituall person that he would and if the Lands of the Bishop were discharged in his hands absolutely by prescription the demising it to a lay man cannot make it chargeable and the Bishop might reserve the greater Rent And in discharge of Tythes the Judges of our Law doe know that the Ecclesiasticall Judges will not allow any such allegation and therefore a Traverse Absque hoc quod judices placitum c. recusarunt is insufficient for the refusall is not materiall for the party might have a prohibition before any plea pleaded by him but in some Cases the refusall is traversable as t was adjudgd in Morris and Eatons Case where t was pleaded that the plaintiffe did not read the Articles c. and that the Ecclesiasticall Judge refused this Plea But the truth is a man may prescribe that hee and all others whose estate he hath in the mannor of D. time out of remembrance have paid to the parson of C. for the time being one certaine pension yearly for the maintenance of Divine service there in contentation of all Tythes renewing or happening within the same Mannor and prescribe in respect of the pension payd c. to have all the Tythes within c. and this was adjudgd good in Banco Regis Mich. 39. Et. 40. El. Rotulo 199. And that a lay-person may sue for the Tythes c. For at the beginning it shall be intended that the Lord was seised of the whole Mannor before any tenancy was derived out of the same and then by composition or other lawfull meanes the Lord had all the Tythes within the Mannor for the said Pension paying to the parson and the Law intends it was for Divine service Et pro bono Ecclesiae the reason of whch intendment is the continuall usage time out of remembrance And upon such speciall matter a man might have Tythes as appurtenant to a Mannor for he prescribes in a Que estate in the Mannor and therefore cannot have them in grosse but t was adjudged Winscombs Case in a prohibition that a man cannot prescribe generally in him and all those c. to have Tythes appurtenant to a Mannor without speciall matter shewne because Tythes are due Jure divino The Arch-Bishop of Canterburies Case 38. Of the Queene fo 46. A Religious house in M. was given to E. 6. by the Statute of 1. E. 6. a Rectory which was impropriated to it was granted to the Arch-Bishop of Canturbury who leased to the Defendant and Land within M. parcell of the said Colledge came to the Lord Cobham and from him to the Plaintiffe who shewes that the Master of the Colledge was seised of the said Land and Rectorie Simul semel as well at the making of 31. H 8. as of 1. E. 6. Resolved that this Colledge came to the King by 1. E. 6. onely for when 31. H. 8. speakes of dissolution renouncing relinquishing forfeiture giving up which are inferior meanes by which c. or by any other meanes cannot be intended of an act of Parliament which is the highest manner of conveyance that can be and the makers would have placed this in the beginning if they had intended it Bishops are not included within 13 of the Queene which begins with Colledges Deanes and Chapters c. Also 1. E. 6. Enacts that all Colledges by this Parliament shall be in actuall possession of the King which last act being of as high nature as the first it cannot come to the King by 31. H. 8. and it was never pleaded that of Colledges which came by 1. E. 6. the King was seised Vigore of the Statute of 31. H. 8. Resolved that neither the Act nor the meaning of 31. H. 8. extends to other Colledges then to those which came to the King by 31. H. 8. for it should be absurd that a Branch of the act of 31. H. 8. should extend to a future Act of which the makers of 31. without a spirit of prophecy could not have foreknowledge and the Act of 31. concludes in as large manner as the late Abbots c. which late as it hath been agreed extends onely to those to be dissolved by 31. Resolved admitting that the Colledge had come to the King by 31. H. 8. that such a generall allegation of unity of possession of the Rectory and the Land with it was not sufficient for no unity shall be sufficient but lawfull and perpetuall unity of possession time out of minde as 't was adjudged in Knightly and Spencers case and that the generall allegation of the plaintiffe that the Master of the Colledge at the making of 1. E. 6. held the Land discharged is not good without shewing how either by prescription composition or other lawfull meanes as 't is adjudged in the Bishop of Winchesters case otherwise if the Land had come by 31. then by force of the said branch of discharge such generall allegation had been good Resolved that no Ecclesiasticall house except religious was within the Statute of 31. H. 8. Resolved that though 1. E. 6. saith that the King shall have the lands of Colledges in as ample and large manner as the said Priests c. enjoyed the same yet these generall words doe not discharge the land of any tythes for they doe not issue out of the land for a Prior had tythes against his own Feoffment of the Mannor and 't is no good cause of prohibition to alledge unity of possession in a Colledge which came to the King by 1. E. 6. as 't is upon 31. H. 8. in Abbyes c. For the Statute of 1. E. 6. hath no such clause of discharge of payment of tythes as 31. hath and therefore such perpetuall unity will not serve upon 1. E. 6. So 't was likewise resolved betwixt Greene and Buffkin Sir Hugh Cholmleys case 39. of the Queene fo 50. TEnant in Taile the remainder in taile the remainder bargaines and sells the Land and all his estate to J. S. to have for the life of Tenant in taile the remainder to the Queene c. upon condition that the
fine be reversed by nonage of the wife all the estate shall be restored to the wife presently for all the estate passed from her by the fine and so it was adjudged Banco regis in Worseleys case Resolved that though the variance of the limitation be onely in one estate and they agree in all the other yet all is voyd But if two joynt tenants or two having severall estates vary 't is good for every of their parts and shall be directed by their interests but if the variance had been in limitation of part of the land and they had agreed in the use it should be voyd for that part and good for the residue Note That though the husband might dispose of the land during coverture yet for the cause aforesaid his declaration was voyd If A. tenant for life and B. in reversion or remainder both levie a fine together generally the use shall be to A. for life the reversion or remainder to B. in fee for either of them grants that which lawfully he may grant and either of them shall have the use which the Law vesteth in them according to the estate which they would convey over Winningtons case 40. of the Queene fo 59. W. Infeoffed B. upon condition to regive to the Feoffor for life the remainder to J. Sonne and heire of the Feoffor the Feoffor enters and takes the profits without agreement or contradiction of the Feoffee and leases to D for 21. yeares and yet continues possession the Feoffee acknowledges a Statute to J. the Feoffor makes a feoffement to the use of himselfe for life the remainder to his second Sonne in taile c. and dyes the Feoffee enters and infeoffes the Sonne and heire upon which the second Sonne enters c. Resolved that though the intention was that the Feoffee should make an estate to him for his life when he hath entered without agreement of the Feoffee 't is a disseisin and the rather because as owner of the land he tooke upon him to make a Lease for yeares Resolved that by the Lease by Indenture he hath dispensed with the condition during the terme Resolved that when the Feoffor disseises the Feoffee upon condition and the Feoffee acknowledges a Statute c. This is no disability to cause the Feoffor to enter for the right of the Feoffee is not subject to the Statute but when the Feoffee in possession takes a wife grants a rent or acknowledges a Statute the land is presently subject c. And though upon entry he may be disabled yet till then he is not because the wife may dye or the Statute be released and then he may enter and performe the condition and the Feoffor by his feoffement hath extinct the condition so that the Feoffee may enter and when he hath infeoffed the eldest Sonne he hath done well Westcots Case in Communi Banco 41. El. fo 60. IF a man make an estate to three and to the heires of one of them one of them in this case hath Fee simple and yet the joynt estate continues for it is all one estate created at one time and therefore the Fee simple cannot drowne the joynture which taketh effect with creation of the remainder in fee but when three joyntenants are for life and after one of them purchase the Fee or else the Fee discends to him there the Fee simple doth drowne the estate for life for the estate for life was in esse before Note by this resolution if tenant for life grant his estate to him in the reversion and a stranger 't is a surrender for the moity and the benefit of survivor not regarded so the doubt in 7. H. 6. well resolved Resolved upon view of three presidents that judgement should be given for the plaintiffe upon a demise made by husband and wife without alledging it to be by Deed. Tookers Case 43. Eliz. fo 66. IOhn Arundell seised of Lands in Fee maketh a Lease thereof to A. and B. for their lives and after grants the reversion to C. for his life to which grant A. doth atturne being joynt tenant with B. and after A. by his Deed doth surrender to C. all his estate title and interest c. and then dyeth C. entereth claiming to hold in common with B. and whether his entree was lawfull or no was the question and judgement was given that it was lawfull for the attornement of the one tenant for life shall vest the entire reversion in the grantee because the estate of the joynt Lessees is entire and every joynt tenant is seised per my pro tout ' and by consequence the reversion which is dependent and expectant upon this estate is entire also and the atturnement of the one joyntenant is the atturnement of both Attournement is a lawfull act if one joyntenant assigne Dower 't is good Also the attornement passes no interest from him that attournes but perfects the grant of another And if one joyntenant give seisure of rent that shall binde the other but in a quid juris clamat or quem redditum reddit or per quae servitia one joyntenant shall not be permitted to attourne without his companion for doing of prejudice to his companion By Popham one joynt-tenant may prejudice another in the personalty but not in the realty if one take all the profits or release a personall action the other hath no remedy because of the privity and trust betweene them and the folly imputed to him to joyne with such a companion Note if a tenant have notice of the grant by a stranger and doe give his assent thereunto it is a good atturnement although it be in the absence of the grantee but disagreement ought to be to the party himselfe or doe atturne for any part it is good for the whole for the intent of an atturnement is but onely an assent to perfect the grant of another and he which atturnes cannot apportion divide or alter the grant Lord Cromwells case 40. of the Queene fo 70. BLunt bargained c. the Mannor of Alexton to which the Advowson of A. was appendant by Indenture to have as after in the same Indenture is mentioned and B. covenanted to suffer a common Recovery to the use of Andrewes and his heires rendring 42. pounds per annum to B. and his heires with a nomine poenae And further 't was covenanted and agreed as well for the assurance of the Mannor to A. as of the rent to B. that B. should levie a Fine c. to A. and his heires and A. by the same Fine should render a rent of 42. pounds per annum c Provided alwayes that A. by Deed should give the Advowson c. to B. during his life and if it did not become voyd during his life one turne to his executors c. And further 't was covenanted and agreed that all assurances afterwards to be made should be to the use of this Indenture c. after a recovery was
and accepted the Rent by the hands of the assignee due after the assignement and before that this rent now demanded was due the Plaintiffe demurred and adjudged against him because the privity of the contract was determined by the death of the Lessee and therefore after the assignement made by the administrator Debt doth not lye for rent due after the assignement Also it was said that if a Lessee assigne over his terme the Lessor may charge the Lessee or his Assignee at his Election And if the Lessor accept the rent of the assignee he hath determined his Election and shall not have an action after against the Lessee for rent due after the assignement no more then a Lord having received the Rent of the Feoffee shall avow upon the Feoffor afterwards Butler and Bakers Case 33. and 34. of the Queene fo 25. W. B. and his Wife seised of the mannor of H. by an Estate made to them during coverture for the joynture of the Wife in taile holden In Capite and W. seised of Land in F. both which amount to a third part of all his Lands and also of the Mannor of T. In capite which amounts to two parts W. devises T. to his Wife upon condition that shee should take no former joynture and dyed the Wife in pays refused H. the question was whither the Will were good for the intire Mannor of T. or but for part by the Statutes of 32. and 34. H 8. Resolved that at common Law if a gift be to a Husband and Wife in taile c. the Husband dyes the Wife cannot devest the free hold by any verball Waiver or disagreement in pays as if she say before entry that shee will never agree to it shee may enter when shee pleases so if shee saith reciting her estate that shee assents c. to the said estate yet afterwards shee may waive it in a Court of record but if shee enters into the Land and takes the profits though shee saith nothing t is a good agreement in Law for the Law more respects acts without words then words without acts and a freehold shall not be so easily devested to the intent that the Tenant to the Praecipe should be the better knowne But as an act in Pays may amount to an agreement so it may amount to a disagreement but this is alwayes of one and the same thing if the Tenant by deed infeoffe the Lord and a stranger and maketh livery to the Lord if the Lord dissagree ' by word t is worth nothing and if he enters generally and takes the profits t is an agreement but if he distraines for his Seigniory t is a dissagreement yet in some cases a claime by words shall direct the entry to be an agreement to one Estate and a disagreement to another c. See the Booke at large but a man may devest the property of goods and Chattells or an obligation sealed to him by disagreement In pays Resolved that though the estate was created by way of use which use before the Statute might have beene waived in Pays yet now the Statute hath so incorporated the use and possession of the Land that it cannot be waived In pays more then an Estate created by feoffment c. yet t was here resolved That the refusall In pays to have H. and the entry and agreement to T. was a good agreement to the one and disagreement to the other And this by 27. H. 8. ca ' 10. If any Woman hath Lands c. assured after Marriage c. after the death of the Husband She may refuse her joynture and take her Dower c. And upon these words the Court agreed That a Woman might refuse her Joynture In pays and be indowed by consent or Writ The great doubt was if by this refusall of H. by operation of Law it doth discend immediatly to the Heire after the death of the Devisor for to satisfie the Statute which saith The King shall take for his third part such Mannors c. as shall discend c. immediatly after the death of the devisor Resolved First Upon the reason of the common Law the refusall shall not have such relation that the devise shall be good for the intire Mannor of T. for a relation is a fiction of Law to make a nullity of a thing Ab initio to one certaine intent which in truth had being and that Propter necessitatem ut res magis valeat quam pereat 11. E. 3. The Law will make a nullity Ab initio that the Wife shall have dower but not as to a collaterall intent as if the reversion were granted of the Lands which the Husband and Wife held in taile and the Wife for to have Dower dissagrees yet the grant is good for shee may be endowed though the grant stand and Relatio est fictio juris et intenta ad unum And though relations aide acts in Law as Dower yet t will never aide the acts of the party to avoyd them by relation as a man infeoffes an Infant or Feme covert and after gives c. or devises the Land or any thing out of it the Infant or Husband disagrees this shall have relation betwixt the parties that the Infant or Husband shall not be charged in damages but shall not make the voyd devise c. good A Lease for life the remainder to the King the King grants his remainder the deed is in-rolled it shall have relation to make this passe Ab initio to the King not to make the voyd pattent good And as relations extend onely to the same thing and the same intent so also to the same parties not for to prejudice a Stranger feoffement of a Mannor and a long time after livery the Tenants attourne this shall have relation to make the services passe Ab initio or otherwise they could never passe nor be parcell of the Mannor but not for to charge the Tenants for the arrerages in the meane time So here the refusall shall relate as to the mannor of H. onely not to T. and to the wife onely but not to prejudice the Heire upon whom part of the Mannor of T. discended to make the devise good for the third part which was voide at the time of the death For Omne testamentum morte consummatum est and as it was at the death so it shall remaine Resolved that after the Statute of 27. H. 8. and before the Statute of 32 H. 8. the Mannor of T. was not devisable and therefore when the devisor hath not pursued the Authority which the Acts of 32. 34. H. 8. gives t was voide for part The first branch he hath not pursued which saith That all c. having a sole estate in fee simple in any Mannors c. shall have full and free liberty c. to dispose by his last will in writing as much of c. as shall amount to the cleere yearely value of two parts in three to
land of M. was lost by the Statute of 4. and 5. P. and M. ca ' 8. Resolved that there were two manners of custodies or Gardianships the one by the common law the other by the Statute at common Law foure manner of Gardians viz Gardian in Chivalry Socage Nature by Nurture The first two are fully described in our Bookes but great controversie was at barre for Gardian by Nature Some held that the Father onely shall have the custody of his sonne and heire apparent within age not the Mother Grandfather c. Also that the Father shall not have the custody of his daughter and heire for it ought to be such an heire as shall continue sole and apparent heire as the Father shall not have the custody of the youngest sonne in Borough English for tenure in Chivalry Others affirme that not onely the Father but every auncestor male or female shall have the custody of his heire apparent male or female Trespas quare 〈◊〉 consanguinium haeredem of the plaintiffe cujus maritagium ad ipsum pertinet c. rapuit c. lyes The Mother though she had no land brought ravishment of ward of J. her Sonne and heire against the grandfather who had land that might descend By the Court both erre for 't is true that every auncestor shall have trespas or ravishment of ward against a stranger for his heire male or female and the Writ shall say Cujus maritagium ad ipsum pertinet and good reason for the establishment of his house consists upon providing of a convenient marriage for his heire apparant and it matters not of what age such heire is but such action lyes not against gardian in chivalry by any of his auncestors but the Father So the Court resolved here the Mother could not be gardian in Socage if the land had descended to the daughter nor by nurture because she was above 14. but the common Law gives remedy against a Stranger as aforesaid Resolved here the Mother shall have the custody within the provision of the Act which hath ordained two new manners of custodies 1. By reason of nature 2. By assignation the first the Father after his death the Mother the second by assignation of the Father by his will or any act in his life See the Booke at large for the exposition of this Statute Resolved that the assent of the husband was not materiall for the Statute hath annexed the custody to the person of the Mother jure naturae which is inseperable and by marriage cannot be transferred to the husband the Father shall not forfeit the wardship by outlawry nor shall his Executors have it Resolved though she departed out of the house sixe houres before the contract yet in judgement of Law the Mother had the custody at the time of the contract for 't is inseperably annexed to the person of the Mother Resolved that by this devise the two daughters wete tenants in common in taile by these words equally to be divided though they never make partition in facto and so it hath been often adjudged Resolved that the husband and wife damsell had good title upon this verdict against the other daughter for by these words to the next of kin to whom the inheritance should c. come after her decease during the life of such person who shall so contract c. it seemes the daughter shall not have the forfeiture for though she be of the blood yet if M. dye her issue shall have the land if without issue the Mother in the remainder To the objection that the Mother cannot have it for she is not of the blood of the daughter but econtra Father or Mother are not next to whom administration shall be granted and land shall escheate rather then it shall goe to Father or Mother Resolved often against 5. E. 6. that the Father or Mother are next to whom administration may be granted and Littleton says that the Father is neerer of blood then the Uncle and therefore the Father shall have a remainder limitted to the next of blood of the Sonne but he shall not have an inheritance by discent from the Sonne for a Maxime prohibits it And 't was said at barre if he in reversion had been brother of the halfe blood he might have entered as Proximus de sanguine yet none of the halfe blood could inherit See the Booke at large where is excellent learning of discents as also the learning of Possessio fratris c. Resolved by the Court that it doth not come in question who shall enter for the forfeiture by the Statute for the issue was joyned upon a collaterall point whether the Mother had the custody at the time of the contract and the finding of the Jury is not materiall and therefore though the Plaintiffe who was lessee of the husband of the damsell as appeared had good title against the defendant being lessee of the husband of the other Sister yet because the issue was found against him judgement was given Quod nihil capiat c. Boytons case 35. Eliz. in Banco regis fo 43. A Writ of cap ad satisfaciendum is retornable at Westminster die Lunae prox post Crastin Animarū the partie is arrested the Sheriffe is not bound to bring the prisoner in recta Linea from the place where he was arrested or from the Countie But if he have the prisoner in Court at the day of the returne being never out of his custody in the meane season it is good But if a Sheriffe or a Bayliffe assent that one who is in execution and under their custody to goe out of the Gaole for a time and then to returne yet although he returne at the time it is an escape And so it is likewise if a Sheriffe suffer him to goe with a Bayliffe or a Keeper for the Sheriffe ought to have him in arcta custodia the Statute of Westminster 2. cap. 11. says Quod carceri manucipentur in ferris So as the Sheriffe may keepe him in yron and fetters to the intent that they may sooner satisfie their Creditors The Sheriffe upon a Habeas corpus for one in execution may bring the partie what way he will so as he have his bodie at the day according to the Writ If one in execution escape out of the Gaole and fly into another Countie the Sheriffe upon fresh suite taketh him again before any action brought against the Sheriffe the Judges have adjudged this no escape and if one in execution escape de son tort and be taken againe he shall never have an audita querela because a man shall not take advantage of his own wrong Sir George Brownes case 36. of the Queene fo 50. ISsue in speciall taile the remainder to himselfe in fee in the life of his Mother tenant in speciall taile levies a Fine in truth with Proclamations though they were not found to Sir G. B. the Mother living the Sonne leased for three lives
the Donor was in possession and used them and fraud is alwayes apparelled with trust and trust is the cover of fraud Sixthly it was contained in the deed that it was honesty truely and bona fide Et clausulae inconsuetae semper juducunt suspitionem and it was resolved although it was a due debt to Twyne and a good consideration of the deed yet it was not within the proviso of the said Act of 13. Eliz. By which it is provided that the said Act doth not extend to any estate or interest in Lands c. goods and chattells made upon good consideration and Bona fide for although it be upon good and true consideration yet it is not Bona fide for no deed shall be deemed to be made Bona fide within the said proviso that is accompanied with any trust for the proviso saith upon good consideration and Bona fide so as good consideration doth not serve if it be not also Bona fide Therefore good Reader if any deed be made to thee in satisfaction of any debt by one that is indebted unto others also First let it be in publick manner before Neighbours Secondly valued-by good men to a true value Thirdly take them out of the possession of the Donor presently for continuance of possession in the Donor is a marke of trust There are two considerations Viz. Consideration of blood or nature and valuable consideration And if one that is indebted to five severall persons every one 20. l. in consideration of naturall affection doth give all his goods unto his Sonne or Cosen The intention of the Statute was that the consideration in this case should be valuable for equity requires that this deed that defeates others shall be made of as high a consideration as the things are that are so defeated thereby for it is to be presumed that the Father if he had not beene indebted unto others would not dispossesse himselfe of all his goods and subject himselfe to his Cradle And therefore it shall be intended that it was to defeate his Creditors And if a consideration of nature or blood should be a good consideration within this proviso the Statute would serve for little or nothing and no creditor should be sure of his Debt A feoffment made solely in consideration of nature or blood shall not take away the use raysed upon valuable consideration but it shall take away a use raised in consideration of nature for both considerations are in Equali jure and of the same nature Many men marvaile the reason that so many acts and Statutes are dayly made this Verse answereth Queritur ut crèscunt tot magna volumina legis In promptu causa crescit in orbe dolus And because fraud abounds in these dayes more then in former times it was resolved that all Statutes made against fraud shall be liberally expounded for to suppresse the fraud and according to this see severall resolutions in the Booke at large It was resolved that no purchasor may avoyd a precedent conveyance made by fraud but he that is a purchasor for money or other valuable consideration paid for consideration of blood is a good consideration but not such a consideration as is intended by the Statute 27. El. ca 4. for valuable consideration is onely good consideration by the same act Anderson chiefe Justice of the common banck said That a man who is of small capacity and not able to governe his Lands that discends unto him and being disposed to ryot and disorder by the mediation of his friends by open Act conveyes his Lands to them upon trust and confidence that he shall take the profits for his maintainance and that he shall have no power to wast or consume them And after he being seduced by deceitfull and covetous persons bargained for small summes his Lands of great value this bargaine although it were for money was holden to be out of this Statute for this act was made against all fraud and deceit and shall not ayd any purchasor that commeth not to the Lands for good considerations lawfully without fraud or deceit And in this case Twyne was convicted of fraud and he and all the others of a ryot Resolutions P. 44. of the Queene upon the Statutes of Fines fo 84. A. Tenant for life the remainder to B. in taile the remainder to B. and his heires B. levies a Fine hath issue and dyes before all the Proclamations passed the issue then beyond the Sea the Proclamations are made the issue retournes and upon the land claimes the remainder Resolved that the estate which passed was not determined by the death of tenant in taile so if tenant in taile of a rent Advowson Tythes Common c. grants by Deed and dyes for if the issue brings a Formedon for the rent he makes the grant voidable if he distraines or claimes it upon the land he by this determines his election And there is no diversity betwixt tenant in taile of a rent c. and tenant in taile of a reversion or a remainder upon an estate for life though in the first case the issue may have a Formedon presently after the death of tenant in taile Holden by Popham and divers other Justices that the Statute of 32. H. 8. hath inforced the case that the estate which passes by the Fine of tenant in taile shall not be determined by his death for by this 't is provided that Fines levied of any lands c. intailed immediatly after the Fine ingrossed and Proclamations made shall be a barre if the Fine cannot be a barre without continuance the Statute hath provided that the estate shall continue for it provides for all necessary incidents to the perfection and consummation of it Every Fine shall be intended with Proclamations for 't is most beneficiall for the conusee and all Fines being the generall assurance of land are levied according Resolved that though by the death of tenant in taile a right of the estate taile descends to the issue for that the tenant in taile dyed before all the Proclamations passed yet when they are passed without claime this right is barred by the Statute of 32. H. 8. Resolved by all the Judges and Barons but three that the issue in this case being heire and privy cannot by any claime save the right of the taile which is descended to him but that after the Proclamations he shall be barred for 't is provided that every Fine after the ingrossing of it and Proclamation had and made shall be a finall end and conclude as well privies as strangers And if no saving had been all strangers had been barred also and all the exceptions extend onely to Strangers but the issue is privy To the objection if by the equity of the Statutes the issue cannot claime c. to what purpose are the Proclamations with such solemnities Answered 32. H. 8. being an Act of explanaiton of 4. H. 7. as to the Fine by tenant in taile shall
not be taken by any strained construction against the letter for then 't is requisite to have a new Act of explanation upon the explanation sic in infinitum By 4. H. 7. every one hath liberty to pursue a Fine according to the said Act viz. with proclamations c. or without as at common Law and therefore the Act of 32. H. 8. of necessitie prescribes that Proclamations shall be made according to 4. H. 7. to distinguish it from a Fine at common Law and not to inable the issue for to make claime for this should be against the expresse intent of the Act in the preamble and purview Also it should be very inconvenient if when such Fine is levied for a valuable consideration advancement of his issues or payment of his debts and he dyes before Proclamations that all should be avoyded by the claime of the heire when the conusee could not have better assurance by Recovery for that he was not tenant to the Praecipe See the Booke at large in what case the issue in taile may averre seisin in a Stranger quod partes Finis nihil habuerunt what not Objected 1. 't is provided by the Statute de donis c. that as to the issue Finis ipso jure sit nullus 2. That the Statute of 27. E. 1. extends not to the heires in taile as 8. H. 4. is for the issue is not bound by any Record which inures by way of Estoppell 3. 27. E. 1. speakes De finibus ritè levatis and when there wants seisin which is the essence of a Fine 't is not ritè levatus 46. E. 3. that 't is a good plea. Answered the Statute de donis c. was made 13. E. 1. and the Statute of Fines 27. in which the issue is not excepted therefore he is bound and according there is a good opinion 8. H. 4. To the second though the issue was not barred of his right before 4. H. 7. yet he was estopped to say Quod partes Finis nihil habuerunt To the third Finis ritè levatus is intended in due forme of Law which it may be though it be onely by way of conclusion for the same Act ousts the parties from such averment and 46. E. 3. is to be intended of a collaterall auncestor from whom the heire doth not claime the Land and then the averment is good In Conisbies case 't was resolved upon a Fine levied to tenant in taile in remainder by tenant for life and a grant and render of a rent that this was not within the Statutes of 4. H. 7. or 32. H. 8. for the Fine was not of the land it selfe which was intailed but of the rent newly created out of the land And in the Lord Zouches case 't was resolved that 4. H. 7. and 32. H. 8. doe extend to Fines levied by conclusion and shall binde though partes c. nihil habuerunt as if tenant in taile makes a Feoffement or be disseised and levies a Fine for the Statute says All Fines of any lands c. in any wise intailed to the person so levying or to any of his auncestors and in 4. H. 7. the exception Quod partes c. is saved to all persons not party nor privy to the said Fine and the issue in taile is privy for he claimes as heire by discent and if such Fine shall barre where the tenant in taile had nothing though the issue enter after the death of the auncestor before all the Proclamations passe a fortiori here when tenant in taile at the time was seised of an estate though 't were in reversion See Archers case where a Fine shall barre the issue where the Father had onely a possibility at the time of the Fine levied Purslowes case 32. of the Queene tenant in taile levies a Fine Term. P. T. and dyed in August next his daughter being heire to the taile and her husband brought a Formedon and pending the plea the Proclamations passed and 't was agreed by the Court that the tenant shall plead the Fine and the Proclamations which passed pending the Writ shall barre the demandant yet there the issue did all that might be done for the conveyance is the Fine and the Proclamations are but a short repetition of the Fine out of this foure things are to be observed 1. Though after the Fine a right descends to the issue yet after Proclamations the right is barred 2. Though he pursues a Formedon yet after Proclamations he is barred ergo in the principall case he is barred notwithstanding his entry or claime in pays 3. When tenant in taile levies a Fine and dyes before Proclamations the issue is not within any of the savings for then the bringing of a Formedon should avoyd the barre 4. The Proclamations serve for no purpose but to distinguish the Fine from a Fine at the common Law Trin. 4. of the Queene Bendlowes tenant in taile disseised the discontinuee and levied a Fine and tooke an estate by render the discontinuee enters and claimes before all the proclamations passed and avoides the estate after the proclamations passe tenant in taile continues his possession and dyes within the yeare after the entry and claime Resolved that the issue was not Remitted but barred by 32. H. 8. Though the estate was avoyded before all the Proclamations passed Resolved though the issue be beyond the Sea yet because he is privy c. he is bound as if he he were within age covert or non compos Which was agreed by all the Justices Ergo the claime of the issue is not materiall and if Infancy c. should avoyde the Fine no man should be assured of land conveyed THE FOURTH BOOK Vernons Case 14. 15. of the Queene fo 1. IN Dower the tenant shews that the husband made a Feoffement of other Land to the use of himselfe for life and after to the use of the demandant for life c. and averres that the said estate was for her Joynture c. and that the demandant hath entered c. and agreed to the estate the demandant shews that the estate was upon condition for to performe the will of the husband and that divers things were to be performed in it judgement if the tenant shall be admitted c. Resolved that at Common Law a right or title to a Freehold cannot be barred by acceptance of a collaterall satisfaction or recompence As if a disseisor of the Mannor of P. gives to the disseisee the Mannor of S. in satisfaction of all his right c. And therefore 't is said in our Bookes that an accord with satisfaction is a good plea in a personall action where damages are to be recovered not in a reall and therefore no barre in Dower but Dower ad ostium Ecclesiae or ex assensu patris concludes her if she enters after c. for the Law allowes them c. to be Dowers in Law Before 27. most lands were in use
it was resolved that when one hath a power of revocation yet if he suffer any thing to be lawfully executed as touching that he cannot make any revocation as if a man make a Letter of Attourney to another to doe any thing before Execution he may revoke it but after Execution lawfully done it cannot be revoked if one to whom another is indebted be Outlawed and he that oweth the money payeth it to the King and the Outlary is after reversed yet the Creditor shall recover his Debt against the party if the goods of an Outlawed person be sold by the Sheriffe upon a cap. utlagat ' after the Outlary is reversed by Error the Defendant shall have restitution of his goods for the Sheriffe or Escheator is not compellable to sell the goods but he may keepe them to the use of the King agreeing to the Booke 20. Eliz. Dyer 363. but if a Sheriffe by vertue of a Fieri facias sell the goods and after the judgement be reversed by error the Defendant shall not have restitution of the goods but the value of them for which they were sould And the reason is the Sheriffe is compellable to Levy the Debt of the goods of the Defendant and therefore great reason that the Sale should stand Semaynes case 2. Jac. fo 91. Banco regis THat the House of every man is to him as his Castle and Fortresse as well for his defence against injuries and violence as for his repose that if a man kill another in his defence or permisfortune without any intent yet it is felony and he should loose his goods and Chattells for the great regard that the Law hath to the life of a man But if Theeves come to the House of a man to rob or murther and the owner or his servant kill any of the Theeves in defence of him or his House this is not felony neyther shall he loose any thing any man may assemble his Neighbours or friends to Guard his House against violence but he may not assemble them to goe with him to the Market or abroad to safe-gaurd him against violence and the reason of all this is Domus sua cuique est tutissimum refugium It is resolved that when any House is recovered by any reall Action or by Ejectione firmae the Sheriffe may breake the House and deliver seisin or possession It was also resolved that in all cases where the King is party the Sheriffe may breake the House if the Doores be shut and make Execution of his Writ but before he breake the House he ought to signifie the cause of his comming and make request to have the Doores opened West 1. ca. 17. which Act is but an affirmance of the common Law but if the Officer breake the House when he might have the Doores opened he is a Trespassor 41 Ass pl. 35. For fellony or suspition of fellony the Officer may breake open the Doore in all Cases where the Door is open the Sheriffe may enter and make Execution of his writ either for body or goods at the suite of a subject or the Lord may distraine for his rent But it was resolved that the Sheriffe at the Suite of a common person upon request made to open the Doors and denyall thereof ought not to breake open the Doore or the House to Execute any processe at the Suite of any Subject or to execute a Fieri facias being a Writ of Execution but he is a Trespassor yet if he doe Execution in the House it is good in the Law being done it was also resolved that the house of a man is not a Castle or defence for any other person but for the owner his Family and goods and not to protect another that flyeth into the same or the goods of another for then the Sheriffe upon request and denyall may breake the House and doe Execution And this is proved by the Statute of West 1. ca. 17. whereby is declared that the Sheriffe may breake the House or the Castle to make replevin when the goods of another that he hath destrayned are conveyed away to prevent the owner but in this case the Sheriffe must demand the goods first Barwicks Case 39. Eliz. in Exchequer fo 93. THe Queene 28. Die Julij Anno. 26. demised the Mannor of Sutton to Humfrey Barwicktenend sibi a die confectionis It was resolved that the same 28. day of July is excluded and the demise began the 29. of July It was also resolved that an estate of freehold cannot commence In futuro but ought to take effect presently in possession Reversion or Remainder A Lease for yeares may commence in future but not a Lease for life and the reason is for that a Lease for yeares may be made without livery and seisin but an estate of freehold may not be made without livery eyther in deed or in Law and therefore when a man maketh a Lease for Life to commence at a day to come he cannot make a present Livery to a future estate and therefore in this case nothing passeth and it is all one whither it commenceth at a day to come or yeares to come for the distance of the times doth not make alteration in this Case but in the case of two joynt Lessees the Livery made to one is good in the name of both for they have an interest in the Land before their entry and livery to one in the name of both maketh an actuall possession in both which is sufficient to support the remainder to a third person in Fee Vide Claytons ' Case in the Fifth Booke Lycense to occupy Land for one yeare is a Lease for one yeare 5. H. 7. 1. in consideration of a former demise to be surrendered which was false and void is a void consideration as to the Queene Goodalls case 40. El. Banco Regis fol. 95. COnditions for payment of money touching inheritance ought to be truly performed and not covenous if they concerne a third person The Law doth not finde an assignee in Law where there is an assignee in fact Expressum facit cessare tacitum affirmed in the Exchequer chamber upon Error there brought Countesse of Northumberlands case 40. El. Communi Banco fol. 97. FItton and the Countesse of Northumberland his wife Sir Thomas Cecill Knight and Dorothie his wife William Cornewalleys and Lucy his wife and the Lady Davers Daughters and heires of the Lord Latimer brought a Quare impedit against Hall who pleaded a release of William Cornewalleys pendente breve and it was adjudged that this should but goe in barre onely against William Cornewalleys and his wife and the Writt should stand for others and all shall vest in the others because intire and in the realty presentment of the lessor and lessee is not double for the lessors onely traversable Buries case 40. El. in communi banco fol. 98. BEtween Whebster and Burie in Ejectione firmae a speciall verdict was given upon divorce between Burie and his wife
personam The Lord cannot claime common in his owne soyle A diversitie was taken and agreed upon between a prescription and a custome a prescription is alwayes alledged in the person and a custome ought alwayes to be alledged in the Land for every prescription ought to have by common intendment a lawful commencement but otherwise of a custome for that ought to be reasonable and ex certa causa rationabili usitata as Littleton saith But it needeth not to have intendment of a lawfull commencement as custome to have Land Devisable or of the nature of Gavelkinde or Borough English These and such like customes are reasonable but by common intendment these cannot have lawfull commencement by grant or act or agreement but onely by Parliament and the custome in the case at barre was repugnant for it was alledged that the Custome of the Towne was that every Inhabitant had used to have common within a place in the Towne of H. which was another Towne Catesbyes Case 4o. Jac. fol. 61. SIx moneths being halfe a yeare semestre is given to the Patron of an advowson to present and according to the Kalander and not after 28. dayes to a Moneth and the Statute saith Si tempus semestre non transierit adjudicentur damna ad valorem c. per dimidium anni and being ambiguous it shall be construed for the benefit of the Patron Sir Moyle Finches case 4. Jac. Com. Banco fol. 63. THe Lady M. tenant for life of the Mannor of B. the remainder in fee to the Lady Finch shee and S. her husband and D. levyed a fine to one of the demesnes who grants and renders to D. for 50. yeares the reversion to S. and his wife and her heires with proviso in the Deedes which directed the fine that the reversioner shall enter and hould Courts And it was averred that this was knowne by the name of the Mannor of B. D. maketh his sonne of three yeares of age executor and administration was committed to R. T. S. and his wife levy a fine of all the lands of the wife in K. except the Mannor of B. to the use of the feme for life the remainder to Sir M. F. R. T. demiseth to P. L. for ten yeares Dame M. dyeth P. L. entreth by vertue of a power of revocation and limitation of new uses S. with the assent of the Lady F. his wife limitteth the uses to one who ousteth P. L. and maketh a feoffment to the use of the La F. for life the remainder to H. F. in taile P. L. reenters Dame F. dyeth H. F. for rent arreare distraineth 1. Resol By the grant and render of the demesnes the Mannor is destroyed because in an instant the services and demesnes are severed by act of the party but otherwise it is if by act in Law as upon partition so it is of an advowson appendant c. and upon partition many Mannors may be made of one but not by the act of the party 2. B. is excepted by the name of a Mannor 1. Because the intent of the parties is so 2. Exception of misnosmer shall not be favoured in Law 3. It is sufficient in Law in many cases that a thing be reputed as it is named as if a remainder be limitted to a Bastard by the name of sonne of J. S. and as to that was objected that this reputation is not time out of minde this needs not if it be of convenient time as this was for it was a Mannor revera before to levy a fine and continue the name after so that this reputation is stronger having such a ground and reputation serveth in Writts amicable although not in adversarie 3. The lease made by the administrator durante minori aetate is good because the administration is generall and not speciall to the benefit of the Infant but howsoever this is good during the administration 4. P L. in the life of the Lady M. had but interesse Termini so that attornement cannot be in his life but after the death of the La. Mo. by entry of the lessee the reversion is in S. and his wife without attornement because attornement needs not because the reversion is setled and he hath no meanes to compell c. otherwise it is where an attornement may be had and although that P.L. lessee of a lessee of part cannot make an expresse attornement yet his reentry shall be an attornement in Law so he who hath interesse termini may make a surrender in Law but no expresse surrender and a man of non-sane memory may make an attornement in Law but not an expresse attornement The Lord Darcies Case 4. Jacobi Com. Banco fol. 70. TEnder is not necessary to have the single value of the heire male or female but the heire female shall not forfeit the double value because the Statute of Merton is si se mavitaverit at the age of 14. yeares c. at which time the heire female is out of Ward and where by the Statute of Westm 1. cap. 22. it is provided that the Lord shal have two yeares to make a Tender it giveth not the double value but if he waive the two yeares he shall have the value without Tender quia de mero Jure c. Burrells case 5. Jac. Com. Banco fol. 72. IF the father make a lease by fraud and dyes the sonne sells the land knowing or not knowing of it the vendee shall avoyd it 2. If the father makes a lease to the sonne who assigneth it over by fraud the father dyes the sonne sells the land the vendee shall avoyd it Sir Drue Druries case 5. Jac. Cur. Wardor fol. 73. E. 1. granted to the Towne of Y. Quod omnes de villa oriundi licet terras c. extra libertatem villae c. te nuerint in Capite se maritare possint juxta libertates villae praedictae R. D. dyed seised of a house parcell of a Monasterie dissolved in the time of H. 8. houlden in Capite the King grants the wardship of his sonne to the plaintiffe and makes the Ward Knight the plaintiffe brings a valore Maritagij The Charter doth not discharge the defendant 1. Because it is juxta libertates villae praedict ' and the liberties are not shewed 2. This Charter cannot extend to a Tenure created in the time of H. 8. 3. It is not shewed that the defendant was borne within the Towne 1. Resol If the heire in Ward be made a Knight he is out of Ward for his body because by intendment he is able to doe Knights service otherwise if made a Nobleman 2. By the death of the tenant the value of the marriage is vested in the Lord and cannot be devested by Knighthood c. 3. If he be Knighted in the life of his auncestor he shall not be in Ward at all 4. If making of the heire in ward Knight shall devest the value it will be prejudiciall to the Subject and to the King for
from an auncestor a Subject but not where it discends from an auncestor who was King except in speciall cases 3. The issues of the King at the time of the levying of the fine are subjects therefore within the Statute and it seemd to them that there ought to be Letters Patents to give power to the Conisee to enter into the Land Nevills Case 2. Jacobi fo 33. THe dignity of an Earle intailed is forfeitable for treason 1. Resolved this is within the Statute of W. 2. De donis and experience is to give dignities in taile with remainders over also this was an office anciently and offices may be intailed 2. A dignity may be forfeited at the common Law by a condition in Law for the Office of Earle was Ad consulendum Regem tempore pacis defendendum Regem tempore belli therefore he forfeits it when he takes Councell and Armes against him 3. If it were not forfeited by the common Law yet it is by 26. H. 8. cap. 13. by this word Hereditament and the words use or possession which are added are to shew that every Hereditament shall be forfeited at the common Law Donee in taile had Potestatem alienandi post prolem suscitatam but if hee reteine the Land himselfe he hath no absolute fee for none shall inherit but the heire Per formam doni so it is now in case of annuity and other things out of the Statute Penall Statutes 2. Ja. fo 36. WHen a Statute is made by Parliament the King cannot give the penalty benefit or dispensation of the same to any Subject but the King may make a Non obstante to dispense with any perticular person that he shall not incurre the penalty of a Stature and the King after a forfeiture or penalty of a Statute by judgement and recovery may grant the same to any of his Subjects by way of reward and all the Judges of England subscribed to this the 8. Day of November 1604. Lillingstons Case 5. Jacobi fo 38. TEnant in fee grants a rent charge proviso that the person of the grantor shall not be charged the grantee acknowledgeth a recognizance according to 23. H. 8. and after releaseth to the grantor the conisee sueth an extent and brings debt against the grantor Terretenant 1. Resolved the rent is extendable for notwithstanding the release it is In esse as to the Conisee and cannot be discharged by the act of the Conisor also the extent relateth to the judgement at which time it was extendable See the Lord Aburgavenies Case in the sixth Report 2. Debt lyeth not so long as the extent indureth for so long the rent hath continuance although that by the release the freehold be determined if a rent charge be granted for life with proviso as above-said if the rent be determined debt lyeth against the grantor because he had no other remedy Bedels Case 5. Jacobi fo 40. R. B. Covenants in consideration of paternall love c. to stand seised to the use of himselfe for life the remainder to his Wife for life the remainder over 1. Resolv although the consideration in the deed runneth not to the Wife yet another consideration may be averred which stands with the Deed. The limittation of an use to the Wife importeth a consideration in it selfe so if it be to any of his blood but if he Covenant in consideration of a 100. l. to stand seised to the use of his Sonne nothing passeth untill inrollment Quia expressum facit cessare tacitum Beresfords Case 5. Jacobi fo 41. AN use is limitted to A B. and of the heires Males of the said A. lawfully begotten this is fee taile notwithstanding the words of the Body be wanting and that lawfully begotten are implied for no heire shall inherit who is not lawfully begotten Resolved that to create an inheritance the word Heires is necessary but the words De corpore are not necessary to make an estate taile if there be words which Tantamount and here the sence according to the intent of the Donor is of or by the said A. lawfully begotten A gift to a man haeredibus de se exeuntibus or Haeredibus suis de prima uxore sua are estates taile Kenns Case 4. Jacobi fo 42. C. K. had issue by E. S. M. K. and they are divorced and the Marriage sentenced void C. K. marrieth F. they have issue E. K. C. dyeth E. K. is found by office to be Heire M. and W. her Baron preferre a bill in the Court of wards to traverse the Office to which the Committees of the wardship answer one of the Committees dyeth M. and W. sue a Bill of Reviver and M. having issue E. dyeth E. her issue and R. her Baron bring a new Bill of Reviver 1. Resolved so long as the sentence stands in force the issue of the first feme is a Bastard because the spirituall Judge hath jurisdiction thereof and our Law giveth faith unto it Sentence of divorse may be repealed after the death of the parties but no divorse can be after their dearh for that will Bastardise the issue and the Court of the King hath triall of it originally not being hindered by any Sentence 2. The Plaintiffe shall not have a traverse without an office found for her for the King being sure of wardship shall not be ousted by one before that he be sure to have benefit by him and 2. E. 6. cap 8. doth not extend to give a traverse without office but if by two offices two are found Heires whereof one is within age by that Statute the other may traverse immediatly 3. A bill of reviver upon a bill of reviver shall not be suffered for the infinitnesse no more then a Writ by Journeys accompts By all the last bill was absurd which prayeth that the first bill be revived because M. was dead but it ought to be that her Heire may traverse The End of the Seaventh Booke THE EIGHTH BOOK The Princes Case 3. Jacobi in Chancery fo 1. THE Queene 37. Eliz. grants three Mannors parcell of the Duchee of C. to H. L. and G. M. the King at the supplication of the Prince brings a Scire facias against the said H. L. and S.H. to make Livery to the Prince by force of the Statute of 11. E. 3. H. L. pleads Null tielum recorde S. H. pleads the Patents with a Non obstante 32. H. 8. whereby these Mannors were made parcell of c. and the Act of Confirmation 43. Eliz. As to the plea of H. L. the Atturney sheweth an Inspeximus and demurreth upon the plea of the other two who joyne and as Amici curiae repeate part of the Statute of 1. H. 7. touching the Duchie H. L. demurreth 1. Resolv the Charter of creation of the Prince Duke of C. 11. E. 3. is an Act of Parliament for such a limittation to the first-begotten Son is void without Statute for if Grandfather King the Father Duke and Sonne be if
aforesaid an Assumpsit without specialty is no more personall then a Covenant by specialty and therefore dyeth not with the person William Banes Case in banco regis 9. Jacobi fol. 93. UPon an Action of Assumpsit against Executors the Plaintiffe needeth not to averr that the Executors have assets in their hands of the goods of the Testator to the value of the said Debt for it shall be intended Prima facie that they have Assets for the Law doth presume that the Testator will not leave a greater charge upon his Executors then he will leave benefit to discharge If a Stranger doe say unto a man to whom a Debt is owing I pray â—ou forbeare your Debt and doe not sue the Partie untill Michaelmas c. and then I will pay you the Debt This is a good consideration although it be no benefit to him that made the promise for it It is a damage to the Creditor to forbeare his Suite or debt hee may have his Action of assumpsit against such a Stran-ger after the day Sir George Reynells Case 9. Jacobi fol. 95. In Chancery IT was found by Office by Commission under the great Seale That the Marshall of the Kings Bench had committed diverse Forfeitures of his Office by suffering voluntary escapes of Prisoners That Office and such like may not be granted for yeares because it is an Office of trust and personall and he must continually attend and be Sworne in Court Two matters of record amount to an Office as in the Case of Sir John Savage who was Sheriffe of the County of Worcester for life by Letters Patents under the Great Seale and was Indicted of two voluntary escapes of Fellons and the King may seize his Office into his owne hands without suing forth any Scire facias 5. Mar. Dyer The Abbot of Saint Albones had a Gaole and detained Prisoners therein and because he would not be at charges to sue forth a Commission for the Gaole delivery the King caused his Franchise and Liberty thereof to be seised into his owne hands The Abbey of Crowland had a Gaole and Prisoners and for that hee once deteined men that were quit of Fellony the King reseised the Gaole for ever If a man grant an Office to another for life or for yeares and he will not doe his Office or otherwise misuse his Office the Grantor may reseize the said Office 39. H. 6. fo 34. If a Gaoler commit voluntary escapes or permit them this is a forfeiture of his Office Cooke Lib. 9. in the Countee of Salops Case The King may grant the custody of the Gaole to one in fee and also to the Sheriffe of a County to one and his Heires which estate in fee simple includes all other estates and it is true that these grants may be made by Law for in these Cases there is not any intermission for presently after the death of the Ancestor the Office discends to the Heire 2. This Office cannot be forfeited by Outlary as if it were granted for yeares it might grants of these Offices in fee or for life have beene allowed and approved but such grants for yeares were never allowed or approved Et periculosum existimo quod bonorum virorum non comprobatur exemplo He that hath the custody of the Gaole whither by right or wrong shall be charged with escapes of Prisoners untill he be actually removed Margaret Podgers Case 10. Jacobi fol. 104. I. P. Copy-holder for life the remainder for life the Lord bargained and sould and levyed a fine to I. P. this discended to M. P. who levyed a fine five yeares passe without claime of them in remainder adjudged no barre 1. Resolved that Copy-hold estates are within 4. H. 7. by the word Interest but if the Fine be by covin this barreth not the issue if Lessee for yeares or Copy-holder be ousted the Lord shall not have five yeares after a fine levyed by the disseissor after their estate determined because he may presently have an assize otherwise where Lessor for life is ousted A meer Stranger cannot enter to avoyd a fine without Commandement or assent of the party who hath right but a Gardian in socage or Lessor for life or Lord of a Copyholder may for the privity betweene them and the Infant or Lessees 2. A Fine barreth not any by Non-claime who is not put to a right therefore here they in remainder are not barred because the bargaine and sale and Fine to the Tenant in possession putteth them not to a right 1. Because it is a lawfull act 2. Tenant in possession devesteth not the remainder by acceptance as if Lessee for life accept a fine Corne ceo although it be a forfeiture 3. Because he is in by 27. H. 8. of uses which doth no wrong 3. After the bargaine and sale he in the next remainder shall not enter for by the custome his estate was to commence after the death of the Tenant in possession so if Tenant in possession forfeite the Lord and not he in remainder shall enter but thereby without a speciall custome the remainder is not destroyed If a Copy-holder in fee surrenders to the use of one for life no more passeth then serveth the estate limitted and he shall pay no fine for admittance after the death of Tenant for life It seemed to the Chiefe Justice that if the Lord here had charged the Land I. P. shall not hold it charged for the estates in remainder preserve him from incumbrances of the Lord. Meriel Treshams Case 10. Jacobi Communi Banco fol. 108. AN Administratrix Defendant in Debt pleads that the Testator and his Sonne acknowledged a recognizance to the King of a hundred pound and another of 800. l. to B. and another of a 1000. l. to M. and diverse others over and about which she had not assets and after said she had not sufficient assets the Plaintiffe replieth that the recognizance to B. was for payment of 400. l. which is paid and the other to M. is to performe Covenants whereof none is broken and the recognizance remaineth in force by Covin of the Defendant 1. Resolved that the barre is insufficient for shee first confesseth that shee had sufficient assets to pay the said recognizances and after denyeth it 2. She saith she had assets but not sufficient this is too generall but shee must confesse how much she had because she had knowledge thereof 3. The pleading by the Plaintiffe that the Obligation was made to performe Covenants is good without more certainty because he is a Stranger 4. The generall allegation of Covin is good without shewing of refusall to release c. and fraud may be in one onely also the barre is insufficient because the intestate was bound in the recognizances with another and the Defendant had not averred that the other had not satisfied them Robert Marys Case 10. Jacobi fol. 111. A Commoner being Copy-holder brings an Action of the Case for putting Beasts into the Common whereby
devise of Land purchased after 2. The statute doth not regard this seck reversion but inheritances of annuall value Resp To the first that this reversion shall hinder the devise by the words of the Statute for he had a reversion of Lands holden but although the Statute saith that he may alien two parts by act executed or will if he alien to one of the three uses by act executed he may devise the reversion for the Statute is to be intended of an intire Alienation and where the Statute saith in reversion or remainder it is to be intended that the devisor be seised of such a remainder which drawes wardship To the second it was answered that things which of their nature are seck are out of the Statute but not things which of their nature are of annuall value but are not of value in respect of some Lease or gift Absque abliquo inde reddendo and therefore seck reversions are devisable by the said Statutes but if they be not yet they shall hinder the devises of other Lands To make one able to devise by those Statutes the time of Having Holding and disposing must concurre and therefore if a grant to the second Sonne here had beene in fee although with power of revocation the devise had been good because he had no Lands In Capite at the time of the devise if the Father conveyeth his Land to the use of his younger Sonne the eldest being within age after the death of his Father he shall be in ward although nothing discend A true Child and not in reputation is within the Statute and if the Sonne purchase Land Bona fide of his Father this is out of the Statute because it is not for his advancement If Tenant in socage devise and after purchase Land in Chivalry the devise is void for a third part but if Tenant in Chivalry and socage devise all and after aliens the Land holden this is good To make division that the King shall have a third part holden the Lands shall be taken according to their value at the time of the death of the Devisor The time of provision that a third part must discend needs not concurre with the time of alienation but it is sufficient that he had it at the time of his death The estate to any of the three purposes ought to continue to the time of death and the Tenure must till after death to make it within the Statute and the estate also of Lands holden ought to continue after death therefore if Tenant in taile in Capite devise socage Land and dye without issue this is good so privity must continue after death therefore if he who made the conveyance be attainted this is out of the Statute The uses to the second Sonne are in contingency and not executed by 27. H. 8. by the power to make Leases and devise reserved to the feoffor and therefore the fee is in the feoffor in the meane time so that having disposed of it and being seised of it he cannot devise the Land purchased after It was Objected that the Statute saith lawfully executed in his life but here no use was to be executed in the second Sonne untill after his death It was Answered that after his death the uses were derived out of the feoffement and so are as it were executed in his life It was holden by the Chiefe Justice that the remainder to the second Sonne is contingent in regard no alienation is found to be made by the Eldest and if there had been then it would be repugnant that after alienation the Land should remaine to the second Sonne and so Quacunq via data the remainder as this Case is cannot vest in him but this point was not resolved by the Court. 2. The revocation is good although the Indenture precedeth the feoffement and that the uses are in contingency and that the revocation is but in part and the Chiefe Justice held that the Eldest Sonne had but a terme determinable and the second an estate taile But in this the Kings Bench and Common pleas differ in Opinion and that if Lands be devised to one and the Heires of his body for 500. yeares the Executors shall have it and not the Heire and the devisee may alien it for it cannot be intailed and so in Peacocks Case 28. Eliz. Banco Regis was it resolved Doctor Leyfields Case 8. Jacobi fol. 88. in Trespasse IN Trespasse for Corne taken at O. C. the Defendant pleads that Q. Eliz. granted the Rectory of O. C. to C. P. without shewing the Letters Patents who demised to G. P. for 8. yeares if the said C. P. so long live and that he as servant of G. P. tooke the Corne and avers the life of C. the Plaintiffe demurreth because the plea amounteth to the generall issue and it was adjudged in the K. Bench that the barre was insufficient because the Defendant shewed not the Letters Patents and Error was brought in the Exchequer-Chamber because the plea amounts to the generall issue because the Defendant gave no colour wherein judgement ought not to be given against the Defendant but onely to answer over 2. Because he is not bound to shew the Letters Patents It was answered that colour shall not be given for colour shall not be given where the plea goeth to the barre of the right for it would be in vaine to give colour of right and to barre him if he had right as if a collaterall warranty fine Statute be pleaded or if he claimes by a waife otherwise where he pleads a discent for this doth not barre the right but the possession he who claimes by sale in a Market overt shall not give colour if he pleads generally but if he pleads that I. S. was possessed as of his owne goods and sold them in a Market overt or waived them there he shall give colour because he confesseth no interest in the Plaintiffe 2. If the Defendant claimes by the Plaintiffe he shall not give colour 3. If the plea be to the Writ or action of the Writ no colour shall be given 4. Colour shall not be given in case of Tithes for to whomsoever the Lands belong the Tithes belong to the Parson 1. Colour ought to be a doubt to the Laygents 2. It must have continuance 3. It must be such a colour that if it be effectuall will maintaine the Action 4. It ought to be given by the first conveyance 2. Resolved Lessee for yeares of Lessee for life of the K. must shew the Letters Patents for he who is privy in estate or interest or who justifieth in right of a Party or privy although he claime but part must shew the first deed and the reason that deeds are shewed to the Court is that the Judges and Jury that which respectively to them belongs shall judge of the sufficiency thereof therefore a deed shall not be suffered to be given in evidence by Witnesses or Copy except it be burned
or some such inconvenience but a Copy of a record is good evidence if a release be made to Tenant for life this inureth to the reversioner yet he cannot pleade it without shewing a Fortiori here because the Lessee may contract with the Lessor to suffer him to have the deed to shew but Strangers who claime not the thing granted nor interest out of it need not to shew the deed otherwise if he claimes the thing granted or interest out of it Ergo the second grantee of a rent charge must shew the first grant but he who claimes as Gardian or meerly by the Law without privity or power of providing the deed need not to shew it But Tenant by the courtesie must shew it because the deed was in his power living the Wife otherwise of Tenant by Statute c. 3. The not shewing of the deed is matter of substance therefore judgement shall be given against the Plaintiffe in the Writ of Error although it was not shewed as Cause of Demurrer And judgement was affirmed Nota when a plea amounts to a generall issue if the Plaintiffe demurre specially upon 27. Eliz. and the Defendant joyne judgement shall be given for the Plaintiffe Edward Seymors Case 10. Jacobi fol. 95. THe Lord Cheyny Tenant in taile the remainder in taile to I. C. the reversion to the Lord C. bargaines and sells and levyes a fine to the bargainee with warranty to him and his Heires the bargainee nfeoffeth the Lord S. who infeoffeth E. S. I. C. dyes having issue T. the Lord C. dyeth without issue Edward Lord S. leaseth to the Plaintiffe the Defendant by the command of T. ejected him and judgement was given for the Defendant and affirmed in Error 1. Resolved the bargainee had an estate discendible during the life of the bargainor whereof his Wife shall have Dower and also the reversion in fee expectant upon the remainder in taile 2. The fine after bargaine and sale is not discontinuance of the remainder for this operates upon the estate passed by bargaine and sale and corroborateth that and maketh it determinable onely upon the death of the bargainor without issue otherwise if the fine had preceded the bargaine and sale 3. It was Objected that the feoffement of the bargainee displaceth the remainder so that the warranty which discends upon him barreth him But resolv that the warranty doth not bind him 1. Because it was annexed to an estate determinable by the death of Tenant in taile without issue and to the reversion in fee granted by bargaine and sale and fine and not to the remainder in taile and the Conisee by his owne Act cannot make it to extend any further therefore the estate taile being determined the warranty ceaseth 2. A warranty barreth not an estate which is not displaced at the time of the warranty annexed as if the Father maketh a feoffement of Land out of which his Sonne hath a rent with warranty this binds not the Sonne as to the rent 3. The feoffement was lawfull because he had fee therefore he cannot make discontinuance 4. A warranty cannot enlarge an estate the remainder in taile to I. C. was not discontinued for the feoffor was not then seised by force of the taile 5. A collaterall warranty may be given in evidence if it be not pleaded for although it giveth not a right yet it barreth anothers right and the rather in an Ejectione firmae and other personall actions because in them it cannot be pleaded by way of barre Note there are some Titles to which a warranty extendeth not as in case of Mortgage Mortmaine consent to a Ravishor for in these cases no Action lyeth in which Voucher or Rebutter can be neither shall a discent take away an entry Bewfages Case 10 Jacobi Common Pleas. fol. 99. THe Sheriffe upon a Fieri facias executed did take an Obligation of the Defendant to pay the money in Court at the returne of the Writ and this was adjudged good notwithstanding the Statute of 23. H. 6. Before this Statute the Sheriffe could not let any person to baile which was taken Ad respondend as may appeare Fitz. Na. br 25. a b. and in 34. Eliz. in Debt by Dawson Sheriffe of B. against Burnam upon an Obligation the Defendant pleaded the Statute 23. H. 6. and shewed that one K. recovered Debt and damages against him and pursued one Writ of Fieri facias against him directed to the Sheriffe of B. and that he made the Obligation to the Plaintiffe for the Execution and that the Obligation was void by the Statute whereupon the Plaintiffe demurred and it was resolved First that the Obligation was not within the Statute because that the Statute extended onely to such Obligations which any who is in their ward did make unto him Secondly that the same Obligation was not void at the Common Law whereupon the Plaintiffe had judgment and another judgement 28 El. Inter Burwey Kett upon an Obligation taken by the Sheriffe Pro solutione pecuniae debitae dominae reginae upon extent out of the Exchequer Now it is said in the later clause of the Act that if any of the Sheriffs or other Officers or Ministers aforesaid take any Obligation in other forme by colour of their Offices that it should be void c. There are two manner of formes Viz. Forma verbalis forma legalis for Verbalis stands upon the Letters and Sillables of the Act Forma legalis is Forma essentialis and stands upon the substance of the thing to be done and upon the sence of the Statute Quia notitia ramorum hujus Statuti non in sermonum folijs sed in rationis radice posita est and according to this distinction this Branch of this Statute is to be expounded and therefore in 37. H. 6. 1. If the Sheriffe take a single Obligation of one in his ward that was bailable this was void for this Obligation wants essentiall forme prescribed by the Statute for the condition prescribes the fault which is part of the substance And there Moyle said that if the Sheriffe let one to Baile or Mainprise that is excepted in the Statute and not mainpernable and take a simple Obligation that the same is void Quod alij Justiciarij concesserunt for by the exception it appeareth that it was not the intention of the Statute that such should be let to Baile and therefore the Obligation is taken in another sence then the Statute intends And it seemeth to me that as well in the same Case of 37. H. 6. as in the principall Case of Dive and Manningham plow 67. the Obligation which hath the condition to save the Sheriffe harmelesse when the Sheriffe against the Law letteth one to Baile who is not Baileable is against the Law and void by the Common Law And with this accordeth William Wishams Case 15. Eliz. Dyer 324. in 7. E. 4. One was in custody of the Sheriffe by force of a Capias upon an
Deed to the Court the plaintiffe may pray it to be entred in haec verba the same Terme but not after Pagetts case 35. El. in communi banco fol. 76. IT was resolved that if tenant for life the remainder for life the remainder in fee if tenant for life maketh wast in trees and after he in remainder for life dye an action of wast is maintainable for the wast done in the life of him in remainder for life because it was to the disinheritance of him in remainder in fee. And now the impediment which was the meane estate for life is taken away Et remoto impedimento emergit actio It was resolved that when the trees are cut downe the property thereof belongeth to him in remainder in fee. And where it is said in some Bookes That he in remainder or reversion in fee shall not have an action of wast it is to be intended during the continuance of the meane remainder And in other Bookes is said in this case that an action of wast doth lie it is intended after the death of him in remainder for life Boothes case 36. Eliz. in communi Banco fol. 77. GEeorge Booth brought an action of wast against Skevington and declared that Sir William Booth demised for yeares to Ensor who assigned to Skevington The defendant pleaded an assignement to Elizabeth Cave before which assignement no wast was made the plaintiffe replyed and shewed the Statute 11. H. 6. ca. 5. and that the grant to Elizabeth Cave was made to the intent he should not know against whom to bring his action and averred that Skevington did take the profits the defendant rejoyned that Elizabeth Cave granted her estate to A. who demised to the defendant at will and traversed the fraud c. the plaintiffe demurred it was resolved that every assignee of every Lessee mediatly or immediatly is within the said act for the Statute was made to suppresse fraud and deceipt and therefore it should be taken most beneficially Secondly that he in remainder is within the said act as well as he in reversion Thirdly the intent of fraud aforesaid is not traversable but the taking of the profits which is a thing notorious whereof the Country may have knowledge In a formedon the tenant pleaded Non tenure the demandant said that he made a Feoffment to persons unknowne to defraud him of his tenancy and to keepe the profits the pernancy of the profits and not the Feoffment is traversable Samons case 36. Eliz. Banco Regis fol. 77. THe plaintiffe and defendant referred all controversies to the Arbitrement of J. S. who did arbitrate that the defendant shall enter into an obligation to the plaintiffe that the plaintiffe and his wife shall injoy certeine lands which he had not done this is voyde for the incerteinty of what summe the obligation shall be for the award ought to be certeine like a Judgement Also the award was voyde as to the feme for she was a stranger to the submission Grayes case 37. Eliz. Banco Regis fol. 78. Replevin THe plaintiffe intitles himselfe in barre to the avowry to Common c. which was traversed the Jury found that every c. time of minde have used to pay for the Common a henne and five egges the plaintiffe had Judgement for he needs not shew more then makes for him for this is not Modus Communiae paying so much nor parcell of the issue but a collaterall recompence to be paid for the Common for which the Terretenant had remedy but if the Terretenant had no remedy then the Commoner shall have the Common sub modo and may be disturbed by the Terretenant Fitz-Herberts case 37. Eliz. Banco Regis fol. 79. THe father tenant for life the remainder to the sonne in taile leaseth for yeares to A. to the intent to barre the sonne A. infeoffeth J. S. to whom the father releaseth with warranty and dyeth this doth not barre the sonne for although that the disseisin which is made by the feoffment precedes the warranty yet because it was to that intent the Law will adjudge upon the intire act and so a warranty by disseisin 2. Although the disseisin was made to the father yet because he consented unto it the warranty commenceth by disseisin but if the father had made a feoffment in fee and dyed this shall binde the sonne if it be with warranty Foordes case 37. Eliz. Com' Banco fol. 81. A Prebend leaseth for 70. an Patron Deane and Chapter confirme dimissionem praedictam in forma praedicta fact ' for 51. yeares non ultra this is a confirmation for all the Terme for when they confirme dimissionem c. for 51. yeares it is repugnant but if they had recited the Lease and confirmed the land for 51. yeares this had been good for they have an authority coupled with an interest otherwise if onely a bare authority but by what words soever they confirme a lease for life or a gift in taile for part this is a confirmation of all because they are intire so if the estate of the disseisor or his lessee for life be confirmed for an houre yet all is confirmed Cases of Customes Snellings case 37. Eliz. Com' Banco fol. 82. S. Brings Debt upon an Obligation against an Administrator who pleads there is a custome in L. that an Administrator shall pay debts upon contract to a Citizen as well as upon Obligation and that J. S. upon a Contract had recovered and good 1. Resol Although that debt is given against an Administrator by the Statute of 31. E. 3. yet because they were charged as Executors before so that onely the name is changed the custome generally alledged is good 2. The ordinary by taking the goods was chargeable at the Common Law 3. This custome bindeth strangers The case of Markett overt 38. Eliz. fo 83. SHopps in L. are Marketts overt for things to be sold there by the trade of the owner therefore if plate be sold there in a Scriveners shop the property is not altered otherwise if in a Goldsmiths shop if he who passeth in the street may see it Nota the reason of this case extends to all Marketts overt in England Perimans case 41. Eliz. Com. Banco fol. 84. IT is a good Custome of a mannor that all sales of lands within that mannor be presented at the Court of the Mannor Obj. What remedy if the Steward will not accept the presentment Resp What remedy if the Clerke will not Inrolle a deede of bargaine and sale and therefore Caveat Emptor 2. Obj. That Interest is by the feoffment vested in the feoffee which shall not be devested by the Custome Resp That livery was ordained to give notice and a Custome which addeth more solemnity and notice is good Sir Henry Knivets case 38. Eliz. Banco Regis fol. 85. TEnant for life the remainder in fee leaseth for yeares the Termor is ousted the disseisor leaseth for yeares his lessee sowes the land tenant for life dyes he