of the Justices was That the Fee was executed for a moitie Manwood If the Land be to one for life the Remainder for yeers the Remainder to the first Tenant for life in Fee there the Fee is executed so as if he lose by default he shall have a Writ of Right and not Quod ei deforceat for the term shall be no impediment that the Fee shall not be executed As a man may make a lease to begin after his death it is good and the Lessor hath Fee in possession and his wife shall be endowed after the Lease And I conceive in the principall case That the term shall not be extinct for that it is not a term but interesse termini which cannot be granted nor surrendred Mounson If he had had the term in his own right then by the purchase of the Fee the Term should be extinct But here he hath it in the right of another as Administrator Dyer If an Executor hath a term and purchaseth the Fee the term is determined So if a woman hath a term and takes an husband who purchaseth the Fee the term is extinct Manwood The Law may be so in such case because the Husband hath done an act which destroyes the term viz. the purchase But if the woman had entermarried with him in the Reversion there the term should not be extinguished for the Husband hath not done any act to destroy the term But the marriage is the act of Law Dyer That difference hath some colour But I conceive in the first case That they are Tenants in common of the Fee Manwood The Case is a good point in law But I conceive the opinion of Manwood was That if a Lease for yeares were to begin after the death surrender forfeiture or determination of the first lease for yeares that it shall not begin in that part for then perhaps the term in that part shall be ended before the other should begin Pasc 20. Eliz. in the Common Pleas. 3. A Man seised of Copyhold land descendable to the youngest Son by Custome and of other Lands descendable to the eldest Son by the common Law leaseth both for yeers The Lessee covenanteth That if the Lessor his wife and his heirs will have back the land That then upon a yeers warning given by the Lessor his wife or his heirs that the Lease shall be void The Lessor dieth the Reversion of the customary Land descends to the younger son and the other to the eldest who granteth it to the younger and he gives a yeers warning according to the Covenant Fenner The interest of the term is not determined because a speciall heir as the youngest son is is not comprehended under the word Heir but the heir at common Law is the person who is to give the warning to avoid the estate by the meaning of the Covenant But Manwood and Mounson Justices were cleer of opinion That the interest of the term for a moity is avoyded for the Condition although it be an entire thing by the Descent which is the act of Law is divided and apportioned and the warning of any of them shall defeat the estate for a moity because to him the moity of the Condition doth belong But for the other moity he shall not take advantage by the warning because that the warning is by the words of the Condition appointed to be done by the Lessor his wife or his heirs And in that clause of the Deed the Assignee is not contained And they agreed That if a Feoffment of lands in Borough-English be made upon condition That the heir at common Law shall take advantage of it And Manwood said that hee would put another question Whether the younger son should enter upon him or not But all Actions in right of the Land the younger son should have as a Writ of Error to reverse a Judgment Attaint and the like quod nota Pasc 22. Eliz. in the Common Pleas. 4 IT was holden by Meade and Windham Justices of the Common Pleas That a Parsonage may be a Mannor As if before the Statute of Quia emptores terrarum the Parson with the Patron and Ordinary grant parcel of the Glebe to divers persons to hold of the Parson by divers Services the same makes the Parsonage a Manor Also they held That a Rent-Charge by prescription might be parcel of a Manor and shall passe without the words cum pertinentiis As if two Coparceners be of a Manor and other Lands and they make partition by which the eldest sister hath the Manor and the other hath the other Lands and she who hath the Lands grants a Rent-charge to her sister who hath the Manor for equality of partition Anderson and Fenner Srjeants were against it Hill 23 Eliz. In the Common Pleas. 5. THis Case was moved by Serjeant Periam That if a Parson hath Common appendant to his Parsonage out of the lands of an Abby and afterwards the Abbot hath the Parsonage appropriated to him and his Successors Whether the Common be extinct Dyer That it is Because he hath as high an estate in the Common as he hath in the Land As in the case of 2 H. 4. 19. where it is holden That if a Prior hath an Annuity out of a Parsonage and afterwards purchaseth the Advowson and then obtains an Appropriation thereof that the Annuity is extinct But Windham and Meade Justices conceived That the Abbot hath not as perdurable estate in the one as in the other for the Parsonage may be disappropriated and then the Parson shall have the Common again As if a man hath a Seignorie in fee and afterwards Lands descend to him on the part of the Mother in that case the Seignory is not extinguished but suspended For if the Lord to whom the Land descends dies without issue the Seignorie shall go to the heir on the part of the Father and the Tenancy to the heir on the part of the Mother And yet the Father had as high an estate in the Tenancy as in the Seignory And in 21 E. 3. 2. Where an Assize of Nusance was brought for straightning of a way which the plaintif ought to have to his Mill The defendant did alledg unity of possession of the Land and of the Mill in W. and demanded Judgment if c. The plaintif said that after that W. had two daughters and died seised and the Mill was allotted to one of them in partition and the Land to the other and the way was reserved to her who had the Mill And the Assize was awarded And so by the partition the way was revived and appendant as it was before and yet W. the Father had as high an estate in the Land as he had in the Way Hill 23 Eliz. In the Common Pleas. 6. A Man makes a Feoffment in Fee of a Manor to the use of himself and his Wife and his heirs In which Manor there are Underwoods usually to be cut every one and twenty yeers and
24. Eliz. in the Kings Bench. 19. IN an Action upon the Case upon a Promise The consideration was Where I. S. had granted a Term to I. D. That afterwards upon the request of I. S. I. D. did make to W. an Estate for four years upon which W. brought his Action And after Verdict it was moved in stay of Judgement that there was no good consideration and a difference taken where the Promise was upon the Grant and where afterwards If it were before then the Condition was good but if it were afterwards it was not good And it was adjudged That the Plaintiffe Nihil capiat per billam Pasch 24. Eliz. in the Kings Bench. 20. AN Action upon the Case upon a Promise was The Consideration was That in consideration that the Plaintiffe Daret diâ—m solutionis the Defendant Super se assumpsit and because he doth not say in facto that he had given day It was adjudged that no sufficient Consideration was alledged But if the Consideration were Quod cum indebitatus c. the same had been a good Consideration without any more for that implies a Consideration in it self Pasch 24. Eliz. in the Kings Bench. 21. IT was said by Cooke That the Chancellor or any Judge of any of the Courts of Record at Westminster may bring a Record one to another without a Writ of Certiorare because one Judge is sufficiently known one to the other as 5. H. 7. 31. where a Certificate was by the Chancellor alone and to this purpose is 11. H. 4. But that other Judges of base Courts cannot do nor Justices of the Peace as 3. H. 6. where the certificate by Suitors was held void Pasch 25. Eliz. In the Common Pleas. 22. SKIPWITH'S Case IT was found upon a speciall verdict in an Action of Trespass that the place where c. was Copy-hold land And that the Custome is That quaelibet foemina viro cooperta poterit devise lands whereof she is seised in Fee according to the custome of the Manor to her Husband and surrender it in the presence of the Reeve and six other persons And that I. S. was seised of the land where c. and had issue two Daughters and died and that they married husbands and that one of them devised her part to her husband by Will in writing in the presence of the Reeve and six other persons and afterwards at another day shee surrendred to the Husband and he was admitted and she died and her Husband continued the possession And the Husband of the other Daughter brought an Action of Trespasse Rodes Serjeant The Custome is not good neither for the Surrender nor for the Will for two causes One for the uncertainty of what estate shee might make a Devise and because it is against reason that the Wife should surrender to the Husband Where the Custome shall not be good if it be uncertain he vouched 13. E. 3. Fitz. Dum fuit infra aetatem 3. The Tenant saith that the lands are in Dorset where the Custome is that an Enfant may make a Grant or Feoffment when he can number twelve pence And it was holden that because it is uncertain when he can so do the Custome is not good 19. E. 2. in a Ravishment of Ward the defendant pleaded that the custome is that when the Enfant can measure an ell of cloth or tell twelve pence as before that he should be out of Ward and it is holden no good custom for the cause aforesaid 22. H. 6. 51. a. there a man prescribed That the Lord of D. had used to have Common for him and all his Tenants And because it is not shewed what Lord whether the Lord mediate or immediate it is adjudged no good custome And as to the Surrender it is against reason that the Wife should give to the Husband for a Wife hath not any Will but the Will of her Husband For if the Husband seised in the right of his Wife make a Feoffment in Fee and the Wife being upon the land doth disagree unto it saying that shee will never depart with it during her life yet the Feoffment is good and shall binde during the life of the Husband as it is holden in 21. E. 3. And therefore it is holden in 3. E. 3. Tit. Devise Br. 43. That a Feme covert cannot devise to her Husband for that should be the Act of the Husband to convey the land to himself And in the old Natura Brevium in the Additions of Ex gravi quaerela it is holden so accordingly And the Case in 29. E. 3. differs much from this Case For there a woman seised of lands devisable took an Husband and had issue and devised the lands to the Husband for his life and died and a Writ of Waste was brought against him as Tenant by the Courtesie and it was holden that it did lie and that he is not in by the Devise for the reason there is because he was in before by the Courtesie But as I conceive that Case will disprove the Surrender for in as much as he had it in the Right of his wife he could not take it in his own Right Also he took another Exception in the principal Case because that the wife was not examined upon the Surrender but none of the Justices spake to that Exception but when the Record was viewed it appeared that it was so pleaded Further He said That the devise was void by the Statute of 34. H. 8. Cap. 5. where it is said It is enacted That Wills and Testaments made of any Lands Tenements c. by women Coverts or c. shall not be taken to be good or effectual in Law And he said That this Statute doth extend to customary Lands And as to that all the Justices did agree That it is not within the Statute And as to the Statute of Limitations Andâ—rson chief Justice said That if a Lease for years which perhaps will not indure sixty years shall be taken strong this shall Anderson moved That if the Lord Lease Copyhold land by Word Whether the Lessee might maintain an Ejectione firme and he conceived not for in an Ejectione firmâ— there ought to be a Right in Fact And although it be by conclusion it is not sufficient for that the Jury or Judge are not estopped or concluded And he conceived That if Tenant at Will make a Lease for years that it is no good lease betwixt him and the Lessor but that he may well plead that he had nothing in the land Meade contrary but they both agreed That the Book of 14. E. 4. which saith That if Tenant at Will make a lease for years that he shall be a Disseisor is not Law Anderson said That the prescription in the principal Case was not good for it is Quod quaelibet foemina viro cooperta poterit c. and it ought to be that feme Coverts possunt and by the Custome have used to devise to the
Bench. 70 GILE'S Case A Writ of Error was brought to reverse a Judgement given in an Action upon the Case The Action upon the Case was brought against one Quare exaltavit stagnum per quod suum pratum fuit inundatum and he pleaded Not guilty and the Jury found Quod erexit stagnum and if Errectio be Exaltatio then the Jury find that the Defendant is guilty and thereupon Judgement was given for the Plaintiffe Glanvile alledged the generall Error That Judgement was given for the Plaintiffe where it ought to have been given for the Defendant And he said That erigere stagnum est de novo facere Exaltare est erectum majoris altitudinis facere Deexaltare is ad pristinam altitudinem adducere prosternere stagnum est penitus tollere And the precise and apt word according to his Case in an Action upon the Case ought to be observed that he may have Judgement according to his damage and his complaint viz. either Deexaltare or Posternere c. 7. E. 3. 56. An Assize of Nusans Quare exaltavit stagnum ad nocumentum liberi tenementi sui The Defendant pleaded That he had not inhaunced it after it was first levyed And by Trew There is not any other Writ in the Chancery but Quare exaltavit stagnum Herle said That he might have a Writ Quare levavit stagnum and there by that book Levare stagnum exaltare stagnum do differ And therefore he conceived That the Writ should abate for using one word for another 8. E. 3. 21. Nusans 5. by Chauntrell In a Writ of Nusans Quare levavit if it be found that it was tortiously levied the whole shall be destroyed But in a Writ Quare exaltavit nothing shall be pulled down if it be found for the Plaintiffe but the inhauncing shall be abated only So 8. Ass 9. Br. Nusans 17. the same Case and difference is put and 16. E. 3. Fitz. Nusans 11. If the Nusans be found in any other forme then the Plaintiffe hath supposed he shall not recover And in 48. E. 3. 27. Br. Nusans 9. The Writ was Quare divertit cursum aquae c. and shewed that he had put Piles and such things in the water by which the course of the water was streitned wherefore because he might have had a Writ Quare coarctavit cursum qquae the Writ was holden not to be good Cook took another Exception viz. That the Assize of Nusans ought to be against the Tenant of the Free-hold and therefore it cannot be as it was here brought against the Workmen and it is not shewed here that the Defendant was Tenant of the Soil for 33. H. 6. 26. by Moile If a way be streitned and impaired an Action upon the Case lieth but if it be altogether stop'd an Assize of Nusans lieth But Prisoit said If the stopping be by the terr-Terr-Tenant an Assize of Nusans lieth but if it be by a Stranger then an Action upon the Case but for common Nusanses no Action lieth but they ought to be presented in the Leet or Turne Drew We have shewed That he who brought the Assize of Nusans hath a Free-hold in the Land and if the Tenant be named it is sufficient although it be not shewed that he is Tenant of the Free-hold And to that all the Justices seemed to incline But then it was shewed to the Court that one of the Plaintiffes in the Writ of Error had released And if that should bar his Companions was another question And it was holden That the Writ of Error shall follow the nature of the first Action and that Summons and Severance lieth in an Assize of Nusans and therefore it was holden that it did the like in this Action therefore the Release of the one was the Release of the other But then it was asked by Glanvile What should become of the Damages which were entire Note Pasch 29. Eliz. the Case was moved again and Drew held exaltare and erigere all one and that erigere is not de novo facere for that is Levare But the Justices were against him who all held That erigere is de novo facere and exaltare is in majorem altitudinem attollere and at length the Judgment was affirmed That Erectio and Exaltatio were all one For the Chief Justice had turned all his Companions when he came to be of Opinion that it was all one And so the Case passed against Glanviles Client Mich. 28 29. Eliz. in the Kings Bench. 71 THE Lady Gresham was indicted for stopping the High-way and the Indictment was not laid to be contra pacem And Cook said That for a mis-feasance it ought to be contra pacem but for a non-feasance of a thing it was otherwise and the Indictment was for setting up a gate in Osterly Park And Exception also was taken to the Indictment for want of Addition for Vidus was no Addition of the Lady Gresham and also Vi armis was left out of the Indictment And for these causes she was discharged and the Indictment quashed Mich. 28 29. Eliz. in the King 's Bench. 72. IN an Ejectione firme Exception was taken because the Plaintiffe in his Declaration did not say Extratenet For in every Case where a man is to recover a possession he ought to say extra tenet And in Debt he ought to say Debet dâ—tinet And in a Replevin Averia cepit injustè detinet But all the Justices agreed That in an Ejectione firme those words were not materiall For if the Defendant do put out the Plaintiff it is sufficient to maintain this Action And Kempe Secondary said that so were all the ancient Presidents although of late times it hath been used to say in the Declaration Extra tenet and the Declaration was holden to be good without those words Mich. 28 29. Eliz. in the King 's Bench. 73 IN a Case for Tithes the Defendant did prescribe to pay but ob q for the Tithes of all Willows cut down by him in such a Parish Cooke It is no good prescription for thereby if he cut down all the Willows of other men also but ob q. should be paid for them all But he ought to have prescribed for all Willows cut down upon his own land and then it had been good But as the prescription is it is unreasonable and of that opinion was the whole Court Mich. 28 29. Eliz. in the King 's Bench. 74 DEIGHTON and CLARK'S Case IN an Action of Debt upon a Bond the Condition of the Bond was That whereas the Plaintiff was in possession of such Lands If I. S. nor I. D. nor I. G. did disturb him by any indirect means but by due course of Law that then c. The Defendant pleaded That nec I S. nec I. D. nec I. G. did disturb him by any indirect means but by due course of Law Godfrey The plea in Bar is not good for it is a Negative pregnans viz. such a Negative
in the Point But I will put you as strong a Case A Judgement is given upon an Exigent by the Coronor yet by 28. Ass 49. If there be no Returne of the Exigent it is no sufficient Out-lawry and one Pleaded the same in the plainplaintiffe and said that it appeared by the Record and vouched the Record and because the Exigent was not returned it was not allowed And so was the Case of Procter and Lambert 4 5. Philip and Marie adjudged As to the Reports which are not printed vouched by Tanfield eâdem facilitate negantur quâ affirmantur Upon an Elegit if there be goods sufficient the Sheriff is not to meddle with the Lands and if there be not sufficient goods yet hee is not to meddle with the beasts of the plough If a man have an Authoritie and he doth lesse then his Authoritie all is void as here the Return of the Writ is part of his Authority As 12. Ass 24. If a man have a letter of Atturney to make Livery and Seisin to two and he makes it to one all is void and he is a disseisor to the Feoffor So 4. H. 7. If he have a letter of Atturney to make Livery of three Acres and he makes onely Livery of two Acres and not of the third Acre it is void for the whole Also the Elegit is Quod extendi facias liberari quousque the Debt be satisfied and therefore if the land be extended onely and there be no delivery made of the land ut tenementum suum liberum according to the Writ then there is no execution duly done And in the principall Case there was no delivery made of the land It was adjourned Mich. 28 29. Eliz. in the King 's Bench. 97 STRANSAM against COLBURN STransam brought a Writ of Error against Colburne upon a Judgment given in a Writ of Partitione facienda and divers Errors were assigned The first Error assigned was That the party doth not shew in his Writ nor in his Declaration upon what statute of Partition hee grounds his Action And there are two Statutes viz. the Statute of 31. H. 8. chap. 1. and the Statute of 32. H. 8. chap. 32. And yet hee groundeth his Action upon one of the Statutes As 3. H. 7. 5. Where the servants of the Bishop of Lincoln were indicted of Murder eo quod ipsi in Festo Sancti Petri 2. H. 7. felonicè apud D. murdraverunt c. and because there are two Feasts of Saint Peter viz. Cathedrae Ad vincula therefore the Indictment was not good 21. E. 3. One brought a Cessavit by severall Precipes viz. of one Acre in D. and of another in S. and of the third in Villa praedicta and because it was uncertain to which praedict shall be referred it was not good 5. H. 7. Br. Action upon the Statute 47. An Information was in the Exchequer for giving of Liveries and the partie did not declare upon what Statute of Liveries and Exception was taken to it and the Exception was not allowed because that the best shall be taken for the King but if it had been in the Case of a common person it had not been good So if a man bring an Action against another for entry into his Land against the forme of the Statute it is not good because hee doth not shew upon what Statute hee grounds his Action Whether 8. H. 6. which gives treble damages or 2. H. 2. which gives Imprisonment and single damages The second Error which was assigned by Weston was That the Declaration doth shew Quod tenet pro indiviso and doth not shew what estate they held pro indiviso And there is a Statute which gives Partition of an estate of an Inheritance viz. 31. H. 8. Cap. 1. And another which gives partition for years or for life and he doth not shew in which of the Statutes it is As if one claime by a Feoffment of Cestuy que use as 4. H. 7. is he ought to shew that the Cestuy que use was of full age at the time of the Feoffment c. for it is not a good Feoffment if he be not of full age So here he ought to shew that he is seized of such an estate of which by the Statute he may have a Writ of Partition For in many Cases there shall be Joynt-Tenants and yet the one shall not have a Writ of Partition against the other by any Statute As if a Statute Merchant be acknowledged to two and they sue for the execution upon it I conceive that the one shall not have partition against the other So if two Joynt-Tenants bee of a Seignorie and the Tenant dieth without heir so as the Lands escheat to them they are joynt-Joynt-Tenants and yet Partition doth not lye betwixt them by any Statute Therefore one may be seised pro indiviso and yet the same shall not entitle him to a Writ of Partition Shuttleworth contrary The Statute doth not give any forme of Writ but the Writ which was at the Common Law before And therefore it is not to be recited what kind of Writ he is to have As to the second point It is not necessary to shew the estate because it cannot be intended that he hath knowledge of the estate of the Defendant For if one plead Joynt-tenancy on the part of the Plaintiffe hee shall not shew of whose gift but if the Defendant or Tenant plead Joynt-tenancy of his part he ought to shew of whose gift and how 7. E. 6. Plo. Com. Partridges case In a Case upon the Statute of Maintenance The Plaintiffe may say That he accepted a Lease and shall not be forced to shew the beginning or the end of it or for what years it is In the Case of the Indictment before and the Case of severall Precipes of severall Acres in severall Towns that lyeth in the Plaintiffs Cognisance But here how can the Plaintiffe know the Defendants estate because he may change it as often as he pleaseth and therefore it is uncertain for if before he had a Fee hee might passe away the same unto another and take back an estate for years Also the Plaintiffe hath appeared and pleaded to the Declaration And therefore he shall not have a Writ of Error Gaudy Justice That is not so Shuttleworth True if there be matter of Error apparant Gaudy Justice Cannot you take notice of your own estate Cook The Declaration is not good therefore the Writ of Error is maintainable By the Common Law No partition lieth betwixt Tenants in common as these are And the Statute of 31. H. 8. gives Partition onely of an estate of Inheritance and prescribes also that the Writ shall be devised in the Chancery there he conceived the Ancient Writ is not to be used I grant for a generall rule That if a Statute in a new Case give an old Writ he shall not say Contra formam Statuti because it is not needfull to recite the Statute
the Land unto another Shuttleworth moved it to the Court Whether the Patentee ought to shew the Letters Patents and he conceived He need not because he hath not any interest in them but the same do belong only to the Earle As if a Rent be granted to one in Fee and he taketh a wife and dieth and the Wife bringeth a Writ of Dower she is not bound to shew the first Deed by which the Rent was granted to her Husband because the Deed doth not belong unto her So hee who sues for a Legacie is not tied to shew the Will because the same belongs to the Executor and not him Periam Justice The Cases are not alike for they are Strangers and not Privies but the Lessee in the principall Case deriveth his interest from the Letters Patents and therefore he ought to shew them Rodes Justice remembred Throgmorton's Case Com. 148. a. where a Lease was made by an Abbot to J. S. and afterwards the same Abbot made a Lease unto another to begin after the determination of the first Lease made to J. S. and exception was taken That he ought to have shewed the Deed of the first Lease and the Exception was disallowed by the Court Periam That case is not like this case and he said That as he conceived the Lessee in this case ought to shew forth the letters Patents and if any Books were against his Opinion it was marvellous Mich. 28 29 Eliz. in the Common Pleas. 134 ONE intruded after the death of Tenant for life and died seised and the land descended to his Heire and a Writ of Intrusion was brought in the Per against the Heir and Gawdy Serjeant prayed a Writ of Estrepment against the Tenant And first the Court was in doubt what to do but afterwards when they had considered of the Statute of Gloucester Cap. 1. in the end of it Anderson said If the Writ be in the Per take the Writ of Estrepment but if the Writ be not in the Per we doubt whether a Writ of Estrepment will lie or not Mich. 28 29 Eliz. In the Common Pleas. 135 WOOD against ASH and FOSTER CErtain Lands with a Stock of Sheep was leased by Indenture and the Lessee did covenant by the same Indenture to restore unto the Lessor at the end of the Terme so many Sheep in number as he took in Lease and that they should be betwixt the age of two and four years Afterwards the Lessee granted the same Stock unto a Stranger viz. to Elizabeth Winsor who was the wife of Ashe whereas in truth all the ancient Stock was spent And it was holden by all the Justices upon an Evidence given unto a Jury at the Bar That when such a Stock of Sheep is leased for years the principall Property doth remain in the Lessor as long as those Sheep which were in esse at the time of the Lease should live but if any of them do die and other come in their roomes then the property of those new Sheep doth belong to the Lessee and therefore they held that the second Lessee should have so many of the Sheep as were left and did remaine at the end of the Lease and no other And yet it was objected by Walmesley That the Stock was entire and that as soon as any other came in the room of the ancient Sheep which were dead that they were accounted part of the same stock and although they be all dead and so changed successively two or three times yet he said it shall be said the same stock And he resembled the same to the case of a Corporation which although all the Corporation die and other new men come in their places it shall be said the same Corporation But notwithstanding his Opinion all the Justices were of opinion as before Walmesley said That agreeing with his opinion was the opinion of all the civill Lawyers but the Court was angry and rebuked him that he did in such manner crosse their opinions and that he cited the opinion of Civilians in our Law and they resolved the contrary and they said there is a difference betwixt the Lease of other Goods and a lease of live Cattel for in the first Case if any thing be added for mending repairing or otherwise by the Lessee at the end the Lessor shall have the additions for of them he hath alwayes the property and they are annexed to the principall but Lambs Calves c. are severed from the principall and are the Profits arising of the Principall which the Lessee ought to have else he should pay his Rent for nothing And as to the issue upon the Cepit by Foster it was shewed That he did but stay the Sheep in his Manor where he had Fellons Goods Waifes and Strayes and that the Sheep were stayed upon a Huy and Cry and that he had taken Bond of one to whom he had delivered the Sheep to render them to him who had the right of them And that stay was holden by the Court to be out of the point of the Issue For that he who doth stay doth not take Mich. 28 29. Eliz. in the Common Pleas. 136. The Heirs of Sir ROGER LEWKNOR and FORD's Case Intratur Pasch 28. El. Rot. 826. SIR Roger Lewknor seised of Wallingford Park made a lease thereof unto Ford for years and died the Lessee granted over his term to another excepting the Wood the term expired and now an action of Waste was brought against the second lessee by the two Coparceners and the Heir of the third Coparcener her Husband being tenant by the courtesie And Shuttleworth and Snag Serjeants did argue that the action would not lie in the form as it was brought And the first Exception which was taken by them was because the action was generall viz. Quod fecit Vastum in terris quas Sir Roger Lewknor pater praedict ' the plaintiffs cujus haeredes ipsae sunt praefat ' defend ' demisit c. and the Count was that the Reversion was entailed by Parliament unto the Heirs of the body of Sir Roger Lewknor and so they conceived that the Writ ought to have been speciall viz. cujus haeredes de corpore ipsae sunt For they said that although there is not any such form in the Register yet in novo casu novum remedium est apponendum And therefore they compared this case to the case in Fitz. Nat. Brevium 57. c. viz. If land be given to Husband and Wife and to the Heirs of the body of the Wife and the Wife hath issue and dieth and the Husband committeth Waste the Writ in that case and the like shall be speciall and shall make speciall recitall of the estate And so is the case 26. H. 8. 6. where Cestuy que use makes a lease and the lessee commits Waste the action was brought by the Feoffees containing the speciall matter and it was good although there were not any such Writ in the Register cujus
haeredes de corpore and we are not to devise a new form in such case but it is sufficient to shew the speciall matter to the Court. Also the words of the Writ are true for they are Heirs to Sir Roger Lewknor and the count is sufficient pursuant and agreeing to their Writ for they are Heirs although they are not speciall Heirs of the body and so the Court was of opinion that the Writ was good notwithstanding that Exception And Anderson and Periam Justices said That the case is not to be compared to the case in F. Nat. Br. 57. c. for there he cannot shew by whose Demise the Tenant holdeth if he doth not shew the speciall conveyance viz. that the land was given to the Husband and Wife and the Heirs of the body of the Wife Nor is it like unto the case of 26. H. â— 6. for the same cause for alwayes the demise of the Tenant ought to be especially shewed and certainly which it cannot be in these two cases but by the disclosing of the Title also to the Reversion Another Exception was taken because that the Writ doth suppose quod tenuerunt which as they conceived is to be meant that tenuerunt joyntly whereas in truth they were Tenants in common Walmesley contrary because there is not any other form of Writ for there is not any Writ which doth contain two Tenuerunts And the words of the Writ are true quod tenuerunt although tenuerunt in Common But although they were not true yet because there is no other form of Writ it is good enough As Littleton If a lease be made for half a year and the Lessee doth waste yet the Writ shall suppose quod tenet ad terminum annorum and the count shall be speciall 40. Ed. 3. 41. E. 3. 18. If the Lessee doth commit waste and granteth over his term the Writ shall be brought against the Grantor and shall suppose quod tenet and yet in truth he doth not hold the Land 44. Ed. 3. and Fitz. If one make divers leases of divers lands and the Lessee doth waste in them all the Lessor shall have one Writ of waste supposing quod tenet and the Writ shall not contain two Tenets And such was also the opinion of the Court The third Exception was because that the Writ was brought by the two coparceners and the Heir of the third coparcener without naming of the Tenant by the Courtesie And thereupon Snagg cited the Case of 4. Ed. 3. That where a Lease is made for life the Remainder for life and the tenant for life doth waste he in the Reversion cannot have an Action of waste during the life of him in the Remainder So in this case the Heir of the third coparcener cannot have waste because the mean estate for life is in the Tenant by the courtesie And to prove that the Tenant by the courtesie ought to joyn he cited 3. E. 3. which he had seen in the Book it self at large where the Reversion of a tenant in Dower was granted to the Husband and to the Heirs of the Husband and the tenant in Dower did waste and they did joyn in an Action of waste and not good And so is 17. E. 3. 37. F. N. B. 59. f. and 22. H. 6. 25. a. Walmesley contrary for here in our case there is nothing to be recovered by the tenant by the courtesie for he cannot recover damages because the disinheresin is not to him and the term is expired and therefore no place wasted is to be recovered and therefore it is not like unto the Books which have been cited for in all those the tenant was in possession and the place wasted was to be recovered which ought to go to both according to their estates in reversion But it is not so here for in as much as the term is expired the land is in the tenant by the courtesie and so he hath no cause to complain And such also was the opinion of the whole Court viz. that because the term was ended that the Writ was good notwithstanding the said Exception Then concerning the principall matter in Law which was Whether the Writ were well brought against the second Lessee or whether it ought to have been brought against the first Lessee It was argued by Shuttleworth that it ought to have been brought against the first Lessee for when he granted over his term excepting the trees the Exception was good Ergo c. For when the Land upon which the trees are growing is leased out to another the trees passe with the Lease as well as the Land and the property of them is in the Lessee during the term and therefore when he grants his term hee may well except the trees as well as the first Lessor might have done And that is proved by the Statute of Marlebridge Cap. 23. for before that Statute the Lessee was not punishable for cutting downe the trees and that Statute doth not alter the properties of the trees but onely that the Lessee shall render damages if he cut them down c. Also the words of the Writ of Wast proveth the same which are viz. in terris domibus c. sibi dimissis Also the Lessee might have cut them down for reparations c. and for fire-wood if there were not sufficient underwoods which he could not have done if the trees had been excepted And in 23. H 8. in Brooke It is holden that the excepting of the trees is the excepting of the Soile And so is 46. E. 3. 22. Where one made a Lease excepting the woods and afterwards the Lessee did cut them down and the Lessor brought an Action of Trespasse quare vi armis clausum fregit c. and it was good notwithstanding that Exception was taken to it And it is holden in 12. E. 4. 8. by Fairfax and Littieton That if the Lessee cut the trees that the Lessor cannot carry them away but he is put to his Action of Waste Fenner and Walmesley Serjeants contrary and they conceived that the Lessee hath but a speciall property in the trees viz. for fire-boot plough-boot house-boot c. And if he passe over the Lands unto another that he cannot reserve unto himselfe that speciall property in the trees no more then he who hath common appendant can grant the principall excepting and reserving the Common or grant the Land excepting the foldage The grand property of the trees doth remain in the Lessor and it is proved by 10. H. 7. 30. and 27. H. 8 13. c. If Tenant for life and he in the reversion joyne in a Lease and the Lessee doth wast they shall joyne in an Action of Wast and Tenant for life shall recover the Free-hold and the first Lessor the damages which proves that the property of the trees is in him As to that that he was dispunishable at the common law that was the folly of the Lessor and although it was so at the
duty did survive with the wife or were extinguished by the entermarriage was the Question And Hâ—bart Chief Justice and Warburton were against Winch and Hutton Justices That the marriage was a Release or discharge of the 100â— Quaere Hill 15 Jacobi in the Kings Bench 380. PLOT' 's Case AN Enâ—ant brought an Assise in the Kings Bench for Lands in Mich depending which The Tenant in the same Assise brought an Assise for the same Lands in the Common-Pleas which last Writ bore date and was recornable after the first Writ And the Demandant in the second Writ did recover against the Enfant by default by the Aâ—â—â—se who found the Seisin and Disseisin And upon a Plea in 〈◊〉 of the first Assise of that Recovery the Enfant by way of Replication set forth all the special matter And that the Deâ—andant at the time of the second Writ brought was Tenant of the Land And prayed that he might 〈◊〉 the Recovery And it was adjudged That he might falsifie the Recovery For in all Cases where a man shall not have Error noâ—â—â—taint he may Falsifie But in this case he could not have Error nor Attaint because the Judgment in the Common-Pleas was not given only upon the Default but also upon the Verdict And it should be in vain for him to bring an Attaint because he shall not be 〈◊〉 to give other Evidence then what was given at the first Trial. Also he shall falsifie the Recovery because it was a practise to defeat and take away the Right of the Enfant and to leave him without any remedy whatsoever Pasch 16 Iacobi in the Kings Bench. 381 INGIN and PAYN'S Case LEssee for years was bounden in a Bond to deliver the possession of a house unto the Lessor his heirs and assignes upon demand at the end of the term The Lessor did bargain and sell the Rendition by Deed enrolled to two One of the Bargainees at the end of the term demanded the Delivery of the Possession The Lessee refused pretending that he had no notice of the bargain and sale It was adjudged that the Bond was forfeited Pasch 16 Iacobi in the Common-Pleas 382. JERMYN and COOPER'S Case A Man by Deed gave Lands to A. and to a Feme sole and to their heirs and assigns for ever Habendum to them and to the heirs of their bodies the Remainder to them and the survivor of them for ever And it was adjudged by the Court That they had an Estate in tail with the Fee-simple Expectant Pasch 16 Jacobi in the Kings Bench. 383. A Man was Indicted De verberationem vulnerationem of J. S. and the words vi armis were left out of the Indictment And the same was adjudged to be helped by the Statute and that the Indictment was good Mich. 16 Jacobi in the Kings Bench. 384. BARNWEL and PELSIE'S Case A Parson did Covenant and grant by Deed with one of his Parishioners That in consideration of Six pounds thirteen shillings and four pence per annum be paid unto him that the said Parishioner should be discharged of all Tythes upon condition to be voyd upon default of payment Afterwards the Parson against his grant did sue the Parishioner in the Spirituall Court for Tythes in kind and it was moved for a Prohibition But the Court would not grant it because that the Originall viz. the Tythes do belong to spirituall jurisdiction But it was said that the Parishioner might have an Action of Covenant against the Parson upon the Deed in the Temporall Court 385. Posch 16 Jacobi in the Kings Bench. AN Action upon the Case was brought for speaking of these words viz. J. S. 34 years since had two Bastards and hath paid for the nursing of them And the Plaintiff shewed that by reason of these words contention grew betwixt him and his wife almost to a Divorce And it was adjudged That an Action would not lye for the words And the Chief Justice said That an Action upon the Case doth not lye for every ill word but for words by speaking of which the Plaintiff is damnified and that cannot be in this Case the time being so long past And the causes wherefore a man shall be punished for saying that a man hath a Bastard are twoâ— the one because by the Statute of 14 Eliz. the offender is to be punished for the same And secondly because the party by such means is discredited or hindered in his preferment Hill 16 Iacobi in the Kings Bench. 386 HURLSTON and WODROFS Case HEnry Hurlston was Plaintiff against Robert Wodroffe in an Action of Debt upon a Demise of a Messuage with a Sheep-walk the Latin word being Ovile And it was moved in arrest of Judgement after a verdict found for the Plaintiff That the sheepwalk was not alledged to be appurtenant nor pleaded to be by Grant by Deed. But notwithstanding that it vvas ruled by the vvhole Court because it rested indifferent whether there was a grant by Deed or not That when the Jury find that the Sheep-walk did passe it shall be intended that there was a Deed. Dodderidge Justice in the Argument of this Case did hold That by the word Ovile although it be translated in English a Sheep-walk yet a Sheep-walk did not passe by it but a Sheep-Cote and by that the Land it self did passe Hill 16 Iacobi in the Kings Bench. 387. HILL and WADE'S Case HIll brought an Action upon the Case against Wade and declared upon an Assumpsit to pay mony upon request and did not alleadge the Request certain but issue was joyned upon another point and found for the Plaintiffe That the failing of certain alleadging of the Request in the Declaration made the same insufficient And so it was adjudged by the Court with this difference where it was a duty in the Plaintiffe before and where the Request makes it a duty For in the first case the Plaintiffe need not alleadge the Request precisely but otherwise in the later Dodderidge Justice put this Case If I promise J. S. in consideration that he will marry my daughter to give him 20â— upon request there the day and place of the request ought to be alleadged in the Declaration Montagu Chief Justice cited 18 E. 4. and 5 H. 7. to be contrary viz. That the finding of the Jury made the Declaration which was vitious to be good As if Executors plead That they have nothing in their hands the day of the Action brought it is insufficient But if the Jury find Assets it is good and so by consequence the Verdict shall supply the defect of Pleading But the Court held these books to be good Law and not to be contrary and well reconciled with this difference For there the Plea was naught only in matter of circumstance but otherwise it is where it is vitious in substance as in this case it is And a difference also was taken where the Verdict doth perfect all which is material and ought to be expressed
removed but if the VVrit of Error want only form but is sufficient for the matter in substance the VVrit shall not abate but the partie may have a new VVrit of Error coram vobis residet c. Trin. 3 Caroli in the Kings Bench. 464. MILL's Case ACtion upon the Case for these words Thou hast Coyned Gold and art a Coyner of Gold Adjudged the Action will not lie for it may be he had Authority to Coyn and words shall be taken in mitiori sensu Pasch 3 Car in the Kings Bench. 465. BROOKER's Case THe question was VVhether the Feoffee of the Land might maintain a VVrit of Error to reverse an Attaindor by Vtglary and the Case was this William Isley seised in Fee of the Mannor of Sundridge in Kent had issue Henry Isley who was Indicted of Felony 18 Eliz. and 19. Eliz. the Record of the Indictment was brought into this Court and thereupon 20 Eliz. Henry Isley was outlawed William Isley died seised Henry Isley entred into the Mannor and Land as son and heir and being seised of the same devised the Mannor and Lands to C. in Fee who conveyed the same to Brooker and Brooker brought a Writ of Error to reverse the Outlawry against Henry Isley Holborn argued for the King and said that Brooker was no way privy to the attaindor of Henry Isley but a meer stranger and therefore could not maintain a Writ of Error And first he said and took exception that he had not set himself down Terre-Tenant in possession Secondly he saith in his Writ of Error That the Mannor and Lands descended to Henry Isley as son and heir when as he was attainted The third exception was That he saith that Henry Isley did devise the Lands and that he could not do because he was a person Attainted Fourthly he said that Brooker was not Tenant so much as in posse 4 H. 7. 11. If it were not for the words of Restitution the partie could not have the mean profits after the Judgment reversed 16 Ass 16. Lessee for years pleaded to a Precipe and reversed it the question was whether he should be in statu quo vi Librum for it is obscure If this Attaindor of Henry Isley were reversed yet it cannot make the devise good For there is a difference betwixt Relations by Parliament which nullifie Acts and other Relations Vi. 3 H. 7. Sentlegers Case Petition 18. The violent Relation of Acts of Parliament If a Bargain and Sale be the Inrollment after will make Acts before good but a Relation by Common Law will not make an Act good which was before void C. 3. part Butler and Bakers Case A gift is made to the King by Deed enrolled and before the enrollment the King granteth away the Land the Grant is void yet the enrollment by Relation makes the Lands to pass to the King from the beginning Admit in this Case that Brooker were Terre-Tenant yet he is not a party privy to bring a Writ of Error to reverse the Attaindor of him who was Tenant of the Land and I have proved That although the Attaindor were reversed yet he hath nothing because the Devise was void and is not made good by Relation It is a rule in our Books that no man can bring a VVrit of Error but a partie or privy 9 E. 4. 13. 22 E. 4. 31 32. 9 H. 6. 46. b. Ass 6 C. 3. part in the Marquiss of Winchesters Case The heir of the part of the mother cannot have the VVrit of Error but the heir of the part of the father may So if erronious Judgment be given in the time of profession of the eldest son and afterwards he is dereigned he shall have the Writ of Error In 22 H. 6. 28. The heir in special taile or by Custom cannot have Error But yet M. 18 Eliz. in Sir Arthur Henninghams Case it was adjudged That the special heir in tail might have a Writ of Error The Baile cannot maintain a Writ of Error upon a Judgment given against the Principal because he was not privy unto the Judgment therefore it shall be allowed him by way of plea in a Scire facias I never find that an Executor can have Error to reverse an Attaindor but for the misawarding of the Exigent Marshes Case was cited C. 5. part 111. Fitz 104. Feoffee at the Common Law could not have an Audita Quaerela in regard he was not privy 12 Ass 8. 41. Keâ—laway 193. There the Terre-Tenant brought a Writ of Error in the name of the heir and not in his own name 24 H. 8. Dyer 1. There it is said That he who is a stranger to the Record shall have Error To that I answer That he in the Reversion and the particular Tenant are but one Tenant for the Fee is demanded and drawn out of him But in the principal Case at Barr no Land is demanded but a personal Attaindor is to be reversed Also there it is put That if the Conusee extend before the day there it is said that the Feoffee may have Error 17 Ass 24. 18 E. 3. 25. Fitz. 22. To that I answer That the Feoffee is privy to that which chargeth him for the Land is extended in his hands and if the Feoffee there should not have a Writ of Error the Law should give him no manner of remedy for there the Conusor himself cannot have Error because the Lands are not extended in his hands Also it is there said that the Feoffee brought a Scirefacias against him who had execution of the Land To that I answer That that is by special Act of Parliament Also there it is said That if the Parson of a Church hath an Annuity and recovereth and afterwards the Benefice is appropriated to a Religious house the Soveraign of the house shall have a Scirefacias I answer That in that Case he is no stranger for that he is perpetual Parson and so the Successor of the Parson who recovered 12 H. 8. 8. There a Recovery was against a Parson and there Pollard said that the Patron might have Error I answer That Pollard was deceived there for it is said before that the Parson hath but an Estate for life and then he viz. the Patron is as a Recoverer who shall have a Writ of Error Dyer 1. But the Parson hath the Fee and therefore Pollard was mistaken as it appeareth by Brook Fauxi fier de Recovery 51. 19 H. 6. 57 Newton A false verdict is had against a Parson the Patron cannot have an Attaint There is a difference if one be partie to the Writ although not partie to the Judgment Error 72. A Quare Impedit was brought by the King against the Patron and the Incumbent and Judgment only was had against the Patron and the Incumbent Parson brought a Writ of Error but if he had not been partie to the Writ he could not have maintained Error So in Attaint the partie to the Writ though not to the Judgment shall
found amongst the Latinists Snag said What then yet one is a word which is received in the Law and is vox artis but the other not and therefore it is not in the same degree Also he said That when the Indictment comes to the Accessories It said Felonicè praesentes abbâ—ttentes assistentes and felonicè cannot be applied to praesenteâ— Also when it comes to the Accessories it doth not say Ex malitia praecogitata abbetâ—entes assistentes c. Cook contrary and he said That if Indictments have sufficient substance they are not to be overthrown for trifles As to the first he said If you will have it to be coram Coronatore de Comitatu perhaps it was a Liberty and then coram Coronatore of the Liberty cannot be coram Coronatore of the County Gaudy Justice said that was no answer But as to this point the Justices desired that Presidents might be searched and said that they would follow the greater number of them Clenche If one say that such a one is a Justice of Peace in Hertfordshire it is all one as if he had said a Justice of Peace of Hertfordshire As to the 2d. Jurati that is no Exception for it is true that it must be so in an Assize but not in an Indictment also no President can be shewed where ex malitia propensa sua shall be applied to every word when it runs in sense to all by Conjunctions copulative As to the Exception that there ought to be the length breadth c. Kempe the Secondary said That it was not worth the standing upon and as to the word Murdredi if it had been left out the Indictment had been sufficient and that shall not make the Indictment void for if it be left out it doth no hurt to it For if many come together to make an Assault ex malitia praecogitata and one of them onely strikes the partie mortally and he dieth it is murder in them all And that was Doctor Ellis case in the Commentaries and the Indictment needs not say that they were praesentes abbettantes auxiliantes and as to the word felonicè it goes to all the words although not particularly applied Note all the Justices did incline that the Indictment was good notwithstanding the Exceptions but yet they said they would advise of it and look upon Presidents Mich. 28 29. Eliz. in the King 's Bench. 79. A Writ of Error was brought against two upon a Recovery in a Precipe quod reddat c. and one of them died The question was Whether the Writ should abate Cook moved that it might not abate for he said That the Writ of Error is but a Commission for to examine the Record and the partie shall recover nothing therby but shall be onely discharged from the first Recovery and he said It is not like unto a Precipe Then the Justices demanded of him if the Recovery were in a reall Action and he said that it was Then they said that 3. H. 7. 1. is That if Error be brought upon a Recovery in a personall Action that death shall not abate the Writ but otherwise if it were upon a reall Action for there the Judgement shall be that he shall be restored to the Land Quere Mich. 28 29. Eliz. in the King 's Bench. 80 AN Appeal of Mayheme was that Percussit super manum dextram viz. inter manum dextram brachium dextrum And Exception was taken to it that it was repugnant for if it was inter brachium manum dextram therefore it could not be super manum dextram for the word inter excludes both Cook It is certain enough because it saith Super manum dextram And an Indictment shall not abate for forme if it be sufficient in substance of matter and also being upon the Wrist it was upon the rising of the hand Mich. 28 29 Eliz. in the Kings Bench. 81 A Man made a Lease for years rendring rent at the Feast of Saint Michael th'Arch-Angel and if it were behind by ten days after being in the mean time lawfully demanded and no sufficient distresse to be found upon the Land that then it might be lawfull for the Lessor to re-enter The last of the ten dayes at the hour of two afternoon the Rent was demanded and there was a sufficient distresse upon the Land before the Demand but not after and whether the Lessor might enter or not was the question Daniel These words Sufficient distresse ought to be referred to the time of the Demand viz. to the last instant at which time the Demand is only materiall Upon a Cessavit if there be a sufficient distresse the last instant of the two years it is sufficient Clenche Justice held That there ought to be a sufficient distresse upon the Land for all the ten dayes But Suit Justice held That it was sufficient if there were a distresse for a reasonable time so as it might be presumed that the Lessor might have knowledge of it But if a distresse be put upon the Land only for an hour or by nights he held it was not a sufficient distresse Mich. 28 29. Eliz. in the Kings Bench. 82 Sir EDWARD HOBBYE'S Case IN this Case the question was Whether the Death of one of the Defendants should abate the whole Writ of Error Cook The Writ shall not abate for no Defendant is to be named in the Writ which see in the forme of the Writ of Error and 2 R. 3. 1. it is holden That the Writ shall not abate for it is in its nature but a Certiorari and Judgement only is to be reversed Atkins Although that the Defendants have not day in Court by the Writ of Error yet by the Scire facias which is sued upon it as in our Case it is they have day and see 3. H. 7. and 14. H. 7. a difference where it is a Writ of Error upon a reall Action and where upon a personall Cook That holds Where the first Writ is abated and so is 3. H. 7. See the Case a little before Gaudy and Clench Justices bring a new Writ of Error for that is the surest way Mich. 28 29. Eliz. in the King 's Bench. 83 LOVELL and GOLSTON'S Case IN a Writ of Error brought upon a Record removed out of the Court of Kingston where the first Judgement was given in an Action of Debt for an Amercement in a Court Baron The first Error which was assigned was That he in the Action of Debt did declare That whereas at a Court holden before William Fleetwood Steward c. whereas it ought to have been holden before the Suitors for they are the Judges The second Error was That the Presentment upon which the Amercement is grounded saith That Golston the Defendant had cut down more Trees quam debuit extra boscum Domini 1. That it is repugnant for he could not cut wood extra boscum but in bâ—sco 2. When it saith many and doth
it is not shewed that he used any other rite or Ceremony c. for there ought to be some Positive thing 3. He doth not shew the Place or Parish where he persisted in it and that is materiall and issuable The fourth Exception was Because it was Inquisitio câ—pta coram Johanne Peter Waltero Mildmay and so named four of them by vertue of a Commission directed to them and to others and doth not shew what others nec quod illi fuerunt praesentes and then if the Commission were to them all jointly and two only were present then it was coram non judice and so void 5. The Statute saies That if any Parson or Vicar but doth not say being Minister Dei. The sixth was That it was at another Church c. Wray Chief Justice If this Evasion should be allowed the Statute were not to the purpose The seventh was That it doth not shew where the persisting was for that is a speciall thing and materiall and issuable Wray Chief Justice conceived That that only was a materiall Exception and that the other Exceptions were but frivolous and were not good Hill 29. Eliz. In the Kings Bench. 138 WARREN's Case ONE Warren demanded by a Writ of Debt in the Common Pleas Forty Pound and upon his Declaration did confess himselfe satisfied of Twenty Pound and thereupon Error was brought in the King's Bench And the Judgement reversed because by his Declaration he had abated his Writ and he ought to have Judgement according to his Writ and not according to his Declaration The Error assigned was in the Outlawry and it was holden by all the Justices That if the principall Record be reversed for Error that the Outlawry which is grounded upon it shall be reversed also Hill 29. Eliz. in the Kings Bench. 139 ROOTE 's Case THE Case was in a Prohibition touching Tithes and the libell in the Spirituall Court was for Corn and Hay and other things and the Tenant of the land did prescribe to pay in one part of the land the third part of the tenth and in another part the moity of the tenth of Corn for all manner of Tithes And the Court did incline that the same was a good prescription And a Prohibition was granted to the Ecclesiasticall Court Hill 29. Eliz. in the King 's Bench. 140 A Man was possessed for the terme of six years of a Tavern in London and leased the same unto another for three years and it was convenanted betwixt them that during the three years quolibet mense monthly the lessee should give an Account to the lessor of the Wine which he sold and should pay unto him for every Tun sold so much money And afterwards the lessor granted the three years which were remaining of the six years to another and he did request the lessee to account and he would not whereupon he brought an Action of Covenant and the Defendant pleaded That he had accounted to the Assignee of the three years and upon that there was a Demurrer joyned And the better opinion of the Court was that it was no Plea because it was not a Covenant which did go with the land or the Reversion but was a collaterall thing and did not pass by the assignment of the three years Hill 29. Eliz. in the King 's Bench. 141 IT was adjudged That the bringing of a Writ of Error to reverse a Fine by an Infant during his nonage is not sufficient but the Fine by Judgement in the Writ of Error must be reversed during his Nonage Hill 29. Eliz. in the Common Pleas. 142 WIDALL and Sr. JOHN ASHTON's Case A Writ of Error was brought by Widall against Sr. John Ashston because in the other action being an action of Wast The Plaintiff there did declare that he was seised and so seised demisit pro termino annorum c. and did not shew of what estate he was seised And yet he did suppose that it was ad exhaeredationem ejus c. And the same by Beamount was taken for an exception as 7. H. 6. A man pleaded a Feoffment to two haeredibus and doth not say suis it is uncertain And in the principal Case it shall be supposed that he hath but an estate for life for it shall not be intended that he hath an estate of Inheritance without expressing of words to carry an Inheritance As 7. Ass If I grant a Rent to I. S. and do not name what estate he shall have in it he shall have but an estate for life But he said that the Presidents are that if the word seised had been left out it had been good enough For by the Book of Entries a man may say demisit without saying that he was seised demisit But if a man will plead a thing which is not necessary to be pleaded and mistake it it shall make his Plea naught as in Patridges Case Where a suite was upon the Statute of Maintenance It is sufficent to say contra formam Statuti But if he will plead specially the day and place of the Statute and mis-plead it it makes all naught Suit Justice I conceive that that is a fault incurable But upon the other side it was argued that in 21. H. 7. It is holden that he might plead quod demisit without that that he was seised and demisit as there in an Action of Debt And therefore it is but surplusage in the principal Case Vide 15. E. 4. A good Case where surplusage shall not hurt because it is not traversable And he urged that by the Statute of 18. El. the Declaration doth not abate for matter of form And he said that Counts and Declarations shall be taken by Intendment and it shall be intended that if bringeth Wast that he hath such an estate that he may maintain such Action In Adams Case in the Commentaries One shewed that such an Abbot was seised and that the Land came unto the King by Dissolution and that the King being seised did grant the same and did not shew of what estate the King was seised and yet it was holden good See a good Case to this purpose 18. E. 3. Formedon 58. And he said that the Defendant had pleaded Nul wast fait and therefore he had by his Plea affirmed the Declaration to be good Beamount He ought to have said reversione inde sibi haeredibus c. Clenche Justice I conceive that the Statute of 18. El. helps that Suit Justice No truly It was adjourned Hill 29. Eliz. in the Common Pleas. 143 AN Action of Covenant was brought by a Man against another who had been his Apprentize The Defendant pleaded that he was within age The plaintiff did maintain his Action by the Custome of London Where one by Covenant may binde himself within age And Exception was taken to it That that was a Departure Daniel It is no Departure for by 18. R. 2. an Infant brought an Action against Gardian in Socage and the
commit his house to his servants and the one doth assent to the Livery and departeth the house if the other do continue there and Livery be made it is no good Livery of Seisin Mich. 6. Jacobi in the Kings Bench. 216 IT was holden for Law in this Court That if a man do offend against any Penal Law the Informer ought to begin his Suit within one year after the Offence done otherwise he shall not have the moity of the Penalty And if the Informer hath put in his Information although that the party be not served with Process to answer it yet the same doth appropriate the Penalty unto him Hill 6. Jacobi in the Common Pleas. 217 PEREPOYNT'S Case PErepoynt procured one to convey the daughter of a Gentleman and to marry her to a Ploughman in the night and procured a Priest to marry them and was there present for which matter he was excommunicate by the Ordinary of the Diocess and after absolution he was for the same committed to Prison by the High Commissioners It was holden by the Court That matters concerning Tithes Marriage or Testaments are not examinable before them yet because that he had suffered imprisonment for such things and that neither the Statute of 23. H. 8. nor the Cannon doth extend to the High Commissioners it was resolved That if upon submission to the Commissioners they would not set him at liberty that this Court would do it Mich 6. Jacobi in the Star-Chamber 218 IT was resolved by the whole Court of Star-Chamber That if a man doth assist one who is a Plaintiffe in that Court that it is not maintenance because that it is for the benefit and advantage of the King But if a man do assist an Informer in another Court in an Information upon a Penall Law the same is such a Maintenance for which he may be punished in this Court 6. Jacobi in the Common Pleas. 219 IT was adjudged in this Court That if Land which was sowed be leased to one for life the Remainder to another for 〈◊〉 That if the Tenant for life dieth before the severance of the Corn 〈…〉 in the Remainder shall have the Corn. Mich. 6. Jacobi in the King 's Bench. 220 THE Lessee of a Copy-holder was distrained for rent behind in the time of his Lessor and the Lessee did assume and promise That he would satisfie the Lord his rent if he would surcease the suing of him It was adjudged by the whole Court That it was a good Assumpsit and a good consideration Mich. 7. Jacobi in the King 's Bench. 221 PIGGOT and GODDEN's Case NOte It was in this Case agreed by the whole Court and so adjudged That in an Ejectione firme a man shall not give colour because the Plaintiffe shall be adjudged in by title Mich. 7. Jacobi in the King 's Bench. 222 TWo Tenants in Common brought an Action upon the Case for stopping of a water course against a Stranger whereby the profits of their Lands were lost and it was shewed in pleading that the water had run time out of minde ante diem Obstructionis and Judgment was given for the Plaintiffs And two Exceptions were taken by Coventry First that Tenants in Common ought to have several Actions and not have joyned Secondly that the Custom ought to have been pleaded to continue ante usque die Obstructionis and both the Exceptions were dissallowed by the Court and it is not like the Case of Falsefails in which Action they must join because the same is in the Realty Mich. 7. Jacobi In the King 's Bench. 223 CROSSE and CASON's Case AN Action of Debt was brought upon due Obligation the condition of which was that the Obligee the 18. of August anno 4. Jacobi should go from Algate in London to the Parish Church of Stow-Market in Suffolk within 24. hours and the Obligee shewed that he went from Algate to the said place and because he did not shew in his Declaration in what Ward Algate was It was holden not to be good Mich. 7. Jacobi in the King 's Bench. 224 NOte That it was adjudged to be Law by the whole Court that if a man bail goods to another at such a day to rebail and before the day the Bailee doth sell the goods in market overt Yet at the day the Baylor may seise the goods for that the property of the goods was alwaies in him and not altered by the Sale in market overt Mich. 7. Jacobi in the Common Pleas. 225 ZOUCH and MICHIL's Case AN Enfant Tenant in tail did suffer a Recovery by his Gardian It was holden by the Court that the same should binde him because he might have remedy over against the Gardian by Action upon the Case But otherwise if he suffer a Recovery by Attorney for that is void because he hath not any remedy over against him as it was adjudged 4. Jacobi in Holland and Lees Case Pasch 8. Jacobi In the Common Pleas. 226 WILSON and WORMAL's Case IN an Evidence given to a Jury it was admitted without Contradiction that if judgment in an action of Debt be given against Lessee for years and afterwards the Lessee alieneth his Term and after the year the Plaintiff sueth forth a Scire facias and hath Execution That the Terme is not lyable to the Execution if the Assignement were made bona fide Also in that Cook Chief Justice said that if Lessee for years assignee over his Terme by fraud to defeat the Execution And the Assignee assigneth the same over unto another bona fide that in the hands of the second Assignee it is not lyable to Execution Also in this Case it was said for Law That if a Man who hath goods but of the value of 30. pound be endebted unto two Men viz. to one in 20. pound and to another in 10. pound and the Debtor assignes to him who is in his debt 10. pound all the goods which are worth 30. pound to the intent that for the residue above the 10. pound debt he shall be favourable unto him This Assignement is altogether void because it is fraudulent in part But Foster Justice said that it shall not be void for the whole but onely for the surplusage as Twynes Case C. 3. part 81. Quaere Pasch 8. Jacobi in the Common Pleas. 227 BRISTOW and BRISTOWE's Case IN an Action of Covenant the Case was this Lessee for 90. years made an Assignement for part of the Term viz. for 10. years and the Assignee covenated to repair c. The first Lessee devised the Reversion of the Term and dyed the Devisee of the Reversion brought an Action of Covenant against the Assignee for 10. years and the question was If the Devisee of the Reversion being but a Termor were within the Statute of 32. H. 8 of Conditions Secondly whether the Action would lye because no notice was given of the grant of the Reversion Dodderidge Serjeant to the first point said that this
the time of King Henry the 8. said That if the King should arrest him of High-Treason that he would stab him with his dagger and it was adjudged a present Treason So was it also adjudged in the Lord Stanley's Case in the time of King Henry the 7. who seeing a Young-man said That if he knew him to be one of the Sons of E. 4. that he would aid him against the King In the like manner a woman in the time of Hen. 8. said That if Henry the 8. would not take again his wife Queen Katherine that he should not live a year but should die like a dog So if discontented persons with Inclosures say That they will petition unto the King about them and if he will not redress the same that then they will assemble together in such a place and rebell In these Cases it is a present Treason and he said That in point of Allegiance none must serve the King with Ifs and Ands. Further Cook Chief Justice said That Faux the Gunpowder Traitor being brought before King James the King said to him Wherefore would you have killed me Faux answered him viz. Because you are excommunicated by the Pope How said the King He answered Every Maunday-Thursday the Pope doth excommunicate all Herâ—tiques who are not of the Faith of the Church of Rome and you are within the same Excommunication And afterwards Owen was found guilty and Judgment of Treason was given against him Mich. 13 Jacobi in the Kings Bench. 364. SIMPSON'S Case RIchard Simpson a Copy-holder in Fee jacens in extremis made a Surrender of his Copyhold habendum to an Enfant in ventrefamier and his heirs and if such Enfant die before his full age or marriage then to John Simpson his brother and his heirs The Enfant is born and dieth within two moneths Upon which John was admitted and a Woman as Heir-general to the Devisor and to the Enfant is also admitted and entreth into the Land against whom John Simpson brought an Action of Trespasse and it was adjudged against the Plaintiffe And two points were resolved in this Case 1. That a Surrender cannot begin at a day to come no more then a Livery as it was adjudged 23 Eliz in this Court in Clarks Case 2. That the Remaindor to John Simpson cannot be good because it was to commence upon a Condition precedent which was never performed And therefore the Surrender into the hands of the Lord was void for the Lord doth not take but as an Instrument to convey the same to another And it was therefore said That if a Copy-holder in Fee doth surrender unto the use of himself and his heirs because that the Limitation of the use is void to him who had it before the Surrender to the Lord is void Trin. 13 Jacobi in the Chancery 365. The Lord GERARD'S Case IT was holden in the Chancery in the Lord Gerards Case against his Copyholds of Aâ—dley in the County of Stafford That where by antient Rolls of Court it appeareth that the Fines of the Copyholds had been uncertain from the time of King Hen. the 3 to the 19 of H. the 6. and from thence to this day had been certain Except twenty or thirty That these few antient Rolls did destroy the Custome for certainty of Fine But if from 19 H. 6. all are certain except a few and so incertain Rolls before the few shall be intended to have escaped and should not destroy the Custome for certain Fines Hill 13 Jacobi in the Common-Pleas 366. BAGNAL and HARVEY'S Case IN a Writ of Partition it was found for the Plaintiffe And a Writ was awarded to the Sheriffe that he should make the partition And the Sheriffe did thereupon allot part of the Lands in severalty and for other part of the Lands the Jurors would not assist him to make the partition All which appeared upon the Retorn of the Sheriffe And an Attachment was prayed against the Jurors who refused to make the Partition and a new Writ was prayed unto the Sheriffe And the Court doubted what to do in the Case whether to grant an Attachment or not and whether a new Writ to the Sheriffe might be awarded And took time to advise upon it and to see Presidents in the Case Hill 13 Iacobi in the Kings Bench. 367. BLANFORD'S Case A Man seised of Lands in Fee devised them unto his Wife for life and afterwards to his two Sons if they had not issue males for their lives and if they had issue males then to their issue males and if they had not issue males then if any of them had issue male to the said issue male The wife died the sons entred into the lands and then the eldest son had issue male who afterwards entred and the younger son entred upon the issue and did trespasse and the issue brought an Action of Trespasse And it was adjudged by the whole Court that the Action was maintainable because by the birth of the issue male the lands were devised out of the two sons and vested in the issue male of the eldest Crook Justice was against the three other Justices Hill 13 Iacobi in the Kings Bench. 368. BROOK and GREGORY'S Case IN a Replevin the Defendant did avow the taking of the Cattle damage feasants And upon issue joyned it was found for the Plaintiffe in the Court at Winsor being a Three-weeks Court And the Defendant brought a Writ of Error and assigned for Error That the Entry of the Plaint in the said Court was the 7. day of May and the Plaintiffe afterwards did Declare there of a taking of the Cattel the 25. day of May. And whether the same was Error being in a Three-weeks Court was the Question and 21 E. 4. 66. was alleadged by Harris that it was no Error But the Court held the same to be Error because no Plaint can be entred but at a Court and this Entry of the Plaint was mesne betwixt the Court dayes and so the Declaration is not warranted no â—ustome being alleadged to maintain such an Entry 2. It was holden by the Court in this Case That 〈…〉 est erratum is pleaded the Defendant cannot alleadge Dimâ—â—â—tion because there is a perfect issue before 3. It was holden That a 〈◊〉 cannot alleadge Diminution of any thing which appeareth in the Râ—â—â—d to be 〈◊〉 And because the Defendant â—id alleadge Diminution 〈◊〉 Case of the Record and by the Record it was certified that the 〈◊〉 was entred the 25 day of May the same was not good after issue joyned and after Judgment is given upon the â—â—â— Record upon the first Dâ—â—â—aration and Pleading in the said Court of Winsor And therefore the Judgment was reversed by the opinion of all the Justices Hill 13 Iacobi in the Kings Bench. 369. BISSE and TYLER'S Case IN an Action of Trover and Conversion of goods the Defendant said That J. S. was possessed of the said goods and sold them unto him in open market
in tail may have a Formedon against the Bishop But in our Case it is otherwise Tenant in tail maketh a Feoffment and takes back an estate unto himself in tail the remainder in Fee to his right heirs The Bishop in such case shall not have the land forfeited for Treason because that the Bishop cannot have the estate tail but in such case the King shall have the Land by the Statute of 26 H. 8. cap. 13. And the Bishop in such case shall not have the Fee because it is one estate and the King shall not wait upon the Subject viz the Bishop The Right waits upon the possession For 11 H. 7. 12. If the son and a stranger disseiseth the father and the father dyeth this right infuseth it self into the possession and changeth the possession And it is a Release in fact by the father to the son 9 H. 7. 25. Br ' Droit 57. A Disseisor dyeth seised and his heir enters and is disseised by A. The first Disseisee doth release unto A. all his right All the right is now in the second Disseisor viz. A. because the right and the possession meet together in A. 40 E. 3. 18. b. Tenant in tail makes a Lease for life with warranty If Tenant for life be impleaded by the heir to whom the warranty doth discend he shall rebut the right in tail being annexed with the possession for that is in case of a saving of the land by that right But where one demands land there all the Right ought to be shewed 11 H. 4 37. If a man be to bring an Action to recover then he ought to make a good title by his best right if he hath many rights But if a man be in possession and an Action be brought against him then he may defend himself by any of his rights or by all his rights 11 H. 7. 21. Tenant in tail maketh a Feoffment to his use upon Condition and afterwards upon his Recognisance the land is extended and afterwards the Condition is performed yet the interest of the Conusee shall not be avoided For although the Extent come upon the Fee and not upon the Tail yet when the Extent was it was extracted out of all the rights C. 7. part 41. A Tenant in tail makes a Lease for life now he hath gained a new Fee by wrong and afterwards he makes a Lease for years and Tenant for life dyeth He shall not avoid his Lease for years although he be in of another estate because he had a defeicible title and an ancient right the which if they were in several hands shall be good as the Lease of the one and the Confirmation of the other And being in one hand it shall be as much in Law as a saving of the Right In our Case the Right and Possession both were in Francis Bigot And Ratcliffe is entitled to the old estate tail and to the new also There is a difference betwixt him who claims the land so forfeited to the King and the heir of the body of the person attainted Littâ—719 Land is given to A and the issue males of his body the remainder to the heirs females of his body If the Father commit Treason both heir male and female are barred for they both claim by the Father but if the heir male after the death of his Father be attainted of Treason the King shall have the lands as long as he hath issue male of his body and then the heir female shall have the lands for she shall not forfeit them because she claimeth not by the brother but by the father Com. in Manxels case A man hath three several rights of estate tails and comes in as Vouchee If the Recovery pass it shall bar all his Rights for one Recompence and they shall be all bound by one possession There is a difference where the Kings title is by Conveyance of the party and where for forfeiture for Treason by this Statute of 26 H. 8. cap. 13. v. the Abbot of Colchesters Case The Abbot seised in the right of his house did commit Treason and made a Lease for years and then surrendred his house to the King after the Statute of 26 H. 8. The question was whether the King should avoid the Lease It was adjudged That the King was in by the surrender and should not avoid the Lease and not by the Statute of 26 H. 8. But if the King had had it by force of the Statute then the King should have avoided the Lease Com. 560. Tenant in tail the reversion to the King Tenant in tail maketh a Lease for years and is attainted of Treason The King shall avoid the Lease upon the construction of the Statute of 26 H. 8. which gives the lands unto the King for ever The third point is upon the Remitter This point had been argued by way of Admittance For as I have argued The ancient right is given away unto the King and then there is no ancient right and so no Remitter There is a difference where the issue in tail is forced to make a Title and where not In point of defence he is not so precisely forced to make his Title as he is in case of demand Whereas the Defendant demands the lands from the King the Discent will not help him because the Attaindor of the Ancestor of Ratcliffe hinders him in point of title to make a demand Dyer 332 b. In this case he ought to make himself heir of the body of Francis Bigot and Katharine C. 8. part 72. C. 9. part 139 140. There Cook couples the Case of Fine levied and the Case of Attaindor together C. 8. part 72. Land is given to husband and wife and to the heirs of their two bodies The husband alone levies a Fine with proclamations Or is attainted of Treason and dyeth The wife before Entry dyeth The issue is barred and the Conusee or King hath right unto the land because the issue cannot claim as heir to them both viz. father and mother for by the father he is barred 5 H. 7. 32 33. C. 9. part 140. Husband and wife Tenants in tail If one of them be attainted of Treason as it was in our Case the lands shall not discend to the issue because he cannot make title And there Cook puts the Case That if lands be given to an Alien and his wife they have a good estate tail and yet it is not discendable to the issue The Consequence then of all this is That if Ratcliffe cannot take advantage of the discent by reason of the disability by Attaindor à fortiori he shall not be remitted And yet I confess that in some Cases one may be remitted against the King Com. 488 489 553. But that is where the King is in by matter of Law by Conveyance but in this Case the King is in by an Act of Parliament and there shall be no Remitter against a matter of Record Another reason is because that
have Attaint 44 E. 3. b. 7. But if he be not partie to the Writ he shall not maintain Attaint as if he pretend Joynt-Tenancy with a stranger who is not named and the verdict pass against him he shall not have attaint But Jones Justice said that he might have Attaint Admit the first Feoffee viz. C. might have a Writ of Error yet Brooker in this case cannot because he is the second Feoffee and a Writ of Error is a thing in Action and not transferable over C. 3. part The Marquiss of Winchesters Case C. 1. part Albanies Case One recovers against A. who makes a Feoffment to B. neither the Feoffee nor Feoffor shall have Error for he viz. B. comes in after the title of Error and the Feoffor shall not have the Writ of Error because he is not a partie griev'd 34 Eliz. in the Common Pleas. Sherrington and Worsleys Case Sherrington had Judgment against Worsley and afterwards acknowledged a Statute to B. Sherrington sued forth Execution B. brought Error upon the Judgment and it was adjudged that it would not lie First because he was a stranger Secondly because he came in under and after the title of Error See the reason C. 3. part the Marquiss of Winchesters Case where it is said that a Writ of Error is not transferrable This Attaindor doth not work upon the Land and so it doth not make the Terre-Tenant privy but it works upon the person and blood of Henry Isley the Land is not touched For Henry Isley was attainted in the life of his Father and so it did not touch the Land For if Henry Isley had died without issue in the life of his father the youngest son should have had the Land by discent which proves that it works not upon the Land but upon the person Bankes for the Plaintiff and he desired that the Outlawrie might be reversed As this Case is there is no other person who can maintain Error Henry Isley had his pardon before the Outlawrie but he came not in to plead it and now having enjoyed it so long a time we hope a Purchasor shall be favoured before him who beggs a concealed title The first Exception was taken To the Devise by a person attainted I answer That that is but the conveyance to the Writ of Error Secondly it was said that none but privies or parties could maintain Error and the adverse partie would disable the heir on the part of the Mother and by Custome Thirdly he would disable the Feoffees and make them as strangers First the Outlawrie was 20 Eliz. against Henry Isley which was after the seisin of the Land and Brooker is a party able to bring a Writ of Error being the heir of the purchasor Error and Attaint go with the Land 13 H. 4 19. Dyer 90. Br. Cases 337. But Estopels and Conditions go to the heir Fitz. 21. Error brought by a special heir It is not necessary that alwaies the heir and partie to the Record have the Writ of Error but sometimes he who is grieved by the Record A Scirefacias is a Judicial Writ founded upon a Record and hath as much in privity is Error and yet a stranger to the Record shall have it 16 H. 7. 9. The heir of the purchasor brought a Scirefacias to execute a Fine It was objected that he was not a partie to the Record but it was resolved in respect he was to have the benefit that he was a sufficient person to maintain the Writ 17 Ass 24. 18 E. 3. 25. Execution was upon a Statute before the time that it ought to have been and a Feoffee brought Error It was objected that he was not partie nor privie to the Record yet because he was was grieved by the Execution he did maintain the Writ of Error Trin. 34 Eliz. in the Kings Bench Sherrington and Worsleys Case not rightly remembred Sherrington did recover in debt against Worsley who aliened the Land to Charnock afterwards an Elegit is awarded upon the Roll and Charnock brought Error and it was admitted good and Sherrington forced to plead to it Now in the principal Case we are the partie grieved by the Outlawrie and therefore may maintain the Writ 21 H. 6. 29. A Reversioner or he in the Remainder without aid prayer or Resc ' shall have a Writ of Error because they are damnified although they be not parties to the Record I agree that where one is not grieved by the Judgment there a stranger shall not have Error 21 E. 4. 23. A Recovery is in Debt and the Defendant is taken and escapes the Sheriff shall not have a Writ of Error for he is not grieved by the Record but by the escape 2 R. 3. 21. The Principal is Outlawed in Felony afterwards the Accessory is condemned he shall not have a Writ of Error to reverse the Outlawrie of the Principal for he is not grieved by that Outlawrie but by his own Condemnation Another Objection was because here was an Outlawrie against him and therefore he shall be disabled to sue I answer Our Writ of Error is brought to reverse that Outlawrie and we shall not be rebutted by that Outlawrie when we are to reverse it 7 H. 49 40. Error brought to reverse an Outlawrie the Defendant would have disabled the Plainfiff by another Outlawrie and it was not allowed because he seeks to avoid it 10 H. 7. 18. For the Mastership of an Hospital Exception was taken to the Writ because the Assise is brought to undoe the name of Master and therefore he ought not to name him Master 22 H. 6. 26. Abbot and Covent the Abbot is preferred and the Covent elected another Abbot And the Patron brought a Quare Impedit to defeat the Election It was ruled because he goes about to overthrow the Election he need not name him Abbot Garranty 29. and 18 E. 3. 8. â—o the same purpose The matter of devise is but conveyance to the Writ of Error and the Writ shall not be abated for surplusage 9 E. 4. 24. 7 E. 4. 19. Surplusage is no barr nor Estopel The Outlawriâ— was against Henry Isley and Peckham and wants these words Nec eorum alter comparuit Dodderidge Justice To say where a Feoffee shall have a Writ of Error is a large field If this Feoffee bring Error and reverse the Judgment he must restore the heir in blood and who can have a Writ of Error to restore blood but he who is privie in blood and that is the heir Jones Justice Marshes Case C. 8. part 111. was never adjudged There an Executor could not reverse an Attaindor by Outlawrie because it doth restore the blood The Case of Sherrington and Charnock was to reverse the Execution and not the Judgment An Executor shall have a general Writ of Error to reverse an Outlawrie It was adjourned Pasch 3. Car. in the Kings Bench. 466. GUNTER and GUNTER's Case A Writ of Error was brought to reverse a Judgment in the Court
but doth not shew by whom And shewed that the Lands inclosed out of which the Inhabitants had their Common And said That there were divers other Grievances to the Inhabitants of Tue but did not shew by whom they were nor what they were and shewed that at a Parliament the Defendant did deliver such a Writing to the Prince as one of the Peers of Parliament supposing that the grievances were set upon the Inhabitants by the Plaintiff by reason the Plaintiff occupied the Lands so inclosed and for Reformation thereof that he delivered the Writing to the Prince Absque hoc that he did deliver it in any other manner And upon this Plea in Barr Tanfield the Plaintiff did demurr in Law Noy for the Plaintiff said That the Defendant complains of wrong and doth not shew any wrong to be done by Tanfield the Plaintiff It is a grievous scandal to deliver this Writing for it is a scandalous Writing and no Petition for therein he doth not desire any Reformation but complains generally Betwixt John Frisel and the Bishop of Norwich The Case touched in 21 E. 3. was That Frisel brought a Prohibition to The Bishop and the Bishop excommunicated him for the delivering of it unto him The Bishop was fined And there it is said As Reverence is due to the King so it is due to his Ministers Our Action is brought at the Common Law and not upon the Statute of R. 2. de scandalis magnatum M. 18 E. 3. Rot. 162. Thomas Badbrook sent a Letter to Ferris one of the Kings Councel the effect of which was That Scot Chief Justice of the Kings Bench and his Companions of the same Bench would not do a vain thing at the Command of the King yet because he sent such a Letter to the Kings Councel although he spake no ill yet because it might incense the King against the Judges he was punished for it might be a means to make the King against his Judges We are to see here if the Defendant hath made any good Justification If there were no wrong then there was no cause to complain Secondly If he had demeaned himself as he ought he ought to have had the wrong if there were any reformed and that he did not do 11 H. 4. 5 H. 7. A voice of Fame is a good cause for to Arrest a man of Felony but then some Felony ought to be committed 7 H. 4. 35. A certain person came and said to one that there were certain Oxen stoln and that he did suspect such a one who he arrested upon the suspition It is a good cause of Justification if any Oxen were stoln but if no Fellony was committed if one be arrested upon suspicion that he hath committed Fellony it is not good If Fellony be done then a good cause to suspect him but if no Fellony be done nor he knoweth nor heareth of any Fellony committed there is no cause for to suspect that the partie hath committed Fellony but there ought to be suspition that the partie hath committed such a particular Fellony Where Fellony is committed certainly one may be arrested upon suspition but unless a Fellony be committed he cannot be arrested For where no Fellony is committed at all he shall not be drawn to a Tryal to clear himself of the suspition but if a Fellony be certainly committed and he be arrested upon the suspition there he being forced to answer to the Fellony he may clear and purge himself of the infamy upon his tryal and so the infamy is not permanent as in case when no Fellony is committed for there he may bring his Action upon the Case Here he saith that parcel of the Waste is inclosed and doth not shew what parcel so as no certain issue can be taken upon it Moor and Hawkins Case in an Ejectione firme It was alledged that he entred into parcel of the Land and the Land was alledged to lie in two several Towns and it was not good because no certain issue could be thereupon He saith the same was inclosed but doth not shew by whom it was inclosed viz. whether by the Feoffor or Tanfield the Feoffee he complains of many grievances but doth not shew what they are and he ought not to be his own Judge Secondly He hath not demeaned himself as he ought for he hath not desired in the Letter any Reformation but only he complains of the oppression of Tanfield He ought to have directed the Writing unto the Parliament and he directed the same unto the Prince by name In the Letter he doth not shew that Tanfield the Plaintiff did oppress but that the Plaintiff was an oppressor but he doth not shew in what thing The Case was adjourned Trin. 21 Iacobi in the Kings Bench. 487. SCOT'S Case PRoborum legalium hominum is omitted in the Certificate of an Indictment by the Clark of the Sessions Curia If it had been in Trespass the omission of the said words had vitiated the Indictment but not in Case of Felony Quaere the reason Trin. 21 Iacobi in the Kings Bench. Intratur M. 19 Jac. Rot. 322. 488. CROUCH and HAYNE'S Case IN a Writ of Error the Record is removed out of the Common Pleas The Defendant pleads in nullo est Erratum and a Demurrer is joyned and the Defendant afterwards alledgeth Diminution of the Original 7 E. 4. 25. The Assignement of Errors is in lieu of the Declaration 4 E. 4. Error 44. After that in nullo est erratum is pleaded the Defendant shall not alledg Diminution for they are agreed before that that is the Record The Writ of Error was general and did not shew when the Judgment was when the Ejectment was what the Lands were and nothing is certain in the Writ of Error but the persons and the Action He shall not be concluded by the general retorn of the Record by the Chief Judg of the Common Pleas. Fitz. 25. a. C. 6. Entr. 231. The Record was removed and a Scire facias awarded ex recorde and Diminution was alledged for omitting of certain words yet the Retorn there was of the Record omnia ea tangentia Dyer 330. The Court certifie that the partie was not essoigned there then cannot be any Certificate of the Chief Justice to the contrary The Principal Case was An Original bore date in June 18 Jacobi and another Original in September 18 Jacobi and both were retornable S. Mich. And the Trespass was done after the first Original sued forth and before the later and both the Writs are in Court The question was upon which of the Originals the Judges should judge 4 E. 4. 26 27 28. There it is holden that the Judges ought not to suppose any Error 22 E. 4. 45 Error was brought to reverse a Judgment in a Writ of Dower And the Error assigned was That there was not any Issue joyned but because there was sufficient matter upon which the Judges might give their verdict therefore the Judgment was affirmed
certain Farme Lands called Estons and that a Fine was levied of Lands in Eslington Eston and Chilford whereas Eston lay in another Parish appell D. Calthrope argued That the Land in Eston did passe by the Fine although the Parish was not named for that the Writ of Covenant is a personall Action and will lie of Lands in a Hamlet or lieu conus 8. E. 4 6. Vide 4. E. 3. 15. 17. Ass 30. 18. E. 3. 36. 47. E. 3. 6. 19. E. 3. Brev. 767. 2. He said That it was good for that the Plea went only to the Writ in abatement but when a Concord is upon it which admits it good it shall not be avoided afterwards 3. He said That a Fine being a common assurance and made by assent of the parties will passe the Lands well enough 7 E. 4. 25. 38. E. 3. 19. And he vouched Pasch 17. Jacobi in the Kings Bench Rot. 140. Monk and Butlers Case Where it was adjudged that a Fine being but an arbitrary assurance would passe Lands in a Lieu conus and so he said it would do in a common recovery And Richardson said That if a Scire facias be brought to execute such a recovery Nul tiel ville ou Hamlet is no plea and the Fine or recovery stands good Vide 44. E. 3. 21. 21 E. 3. 14 Stone And the opinion of the Court was That the Lands did well passe by the Fine Mich. 8. Caroli in the Kings Bench 509 CAWDRY aud TETLEY's Case CAwdry being a Doctor of Physick the Defendant Praemissorum non ignorans to discredit the plaintiff with his Patients as appeared by the Evidence spake these words to the plaintiffe viz. Thou art a drunken Fool and an Asse Thou wert never a Scholer nor ever able to speak like a Scholer The opinions of Jones and Crook Justices were that the words were actionable because they did discredit him in his Profession and hee hath particular losse when by reason of those words others do not come to him And Palmers Case was vouched Where one said of a Lawyer Thou hast no more Law then a Jackanapes that an Action did lie for the words Contrary if he had said No more Wit And William Waldrons Case was also vouched where one said I am a true Subject thy Master is none that the words were actionable Mich. 4. Caroli in the Kings Bench. 510 The King and BAXTER SIMMON's Case THE Case was this Tenant in tail the Remainder in taile the Remainder in Fee to Tenant in tail in possession Tenant in tail in Remainder by Deed enrolled reciting that he had an estate tail in Remainder Granted his Remainder and all his estate and right unto the King and his Heirs Proviso that if he pay ten shillings at the Receipt of the Exchequer that then the Grant shall be void Tenant in tail in possession suffers a common Recovery and afterwards deviseth the Lands to I. S. and dieth without Issue 18. Jacobi Afterwards 21. Jac. he in the Remainder in tail dieth without issue but no seisure is made nor Offence found that the lands were in the Kings hands Noy who argued for the King The first Point is When Tenant in taile recites his estate and grants all his estate and right to the King and his Heirs what estate the King hath And if by the death of Tenant in tail without issue the estate of the King be so absolutly determined that the Kings possession needs not to be removed by Amoveas manum And he argued That when the Lands are once in the King that they cannot be out of him again but by matter of Record 8. E. 3. 12. Com. 558. And a bare entry upon the King doth not put the King out of possession of that which was once in him And so was it adjudged 34. Eliz. in the Lord Paget's Case as Walter chief Baron said And Noy took this difference 8. H. 5. Traverse 47. and 8. E. 2. Traverse 48. If a particular estate doth determine before that the King seise there the King cannot afterwards seise the Lands But if the King hath once the Lands in his hands or possession there they cannot be devested out of him but by matter of Record So F. Nat. Br. 254. If a man be seised of Lands in the right of his Wife and be outlawed for Felonie for which the Lands come into the Kings hands and afterwards hee who is outlawed dieth there a Writ of Diem clausit extremum shall issue forth which proveth That by the death of the Husband the Lands are not immediately out of the King and setled in the Wife againe 22. E. 4. Fitz. Petition 9. Tenant in taile is attainted of Treason and the Lands seised into the Kings hands and afterwards Tenant in taile dieth without Issue he in the Remainder is put to his Petition which proveth that the Lands are not presently after the death of Tenant in taile without issue out of the King But he agreed the Cases If Tenant in taile acknowledgeth a Statute or granteth a Rent charge and dieth that the Rent is gone and determined by his death as it is agreed in 14. Assisarum The second point argued by Noy was That although that there was not any seizure or Offence found which entituled the King Yet the Deed enrolled in the Chancery which is returned in this Court did make sufficient title for the King as 8. E. 3. p. 3. is The Judges of Courts ought to Judge upon the Records of the same Courts In 8. H. 7. 11. a Bayliff shewed That a Lease was made to T. his Master for life the Remainder to the King in Fee and prayed in Ayd of the King And the Plaintiff in Chancery prayed a Procedendo And it was ruled That a Procedendo should not be granted without examination of the Kings title Thirdly he said That in this case he who will have the Lands out of the possession of the King ought to shew forth his title and in the principall case it doth not appear that the Defendant had any title Vide 10. H. 7. 13. Athowe Serjeant argued for the Defendant he said That in this case the King had an estate but for the life of Tenant in tail And therefore he said That If Tenant in tail grant totum statum suum that an estate but for his own life passeth as Litt. is 145. and 13. H. 7. 10. acc So If Tenant for life the remainder in taile bee and he in the Remainder releaseth to Tenant for life in possession nothing passeth but for the life of Tenant in tail 19. H. 6. 60. If Tenant in tail be attainted of Treason or Felonie and Offence is found and the King seiseth the lands he hath an estate but for the life of Tenant in tail And he cited 35. Eliz. C. 2 part 52. Blithmans case Where Tenant in tail Covenanted to stand seized to the use of himself for his own life and after his death to the use
171 365 368 369 forfeiture 269 142 365 felling trees 173 174 trespasse brought 174 Corporation 347 dissolved the donor shall have his land again 211 sues 393 Costs 329 345 220 Covenant 38 assignee 162 Executors ibid. 11 12 48 69 70 to build a mill c. there 271 273 175 99 120 333 335 217 to surrender 445 performed 95 The Indenture is void in part 213 Covenant 87 121 cause of things must appear in the Court 401 Countermand 133 County where actions shall be brought 335 of trials 429 Courts-Baron 68 69 Leet 71 Tower Court 145 of Requests 208 216 243 244 Kings Bench and Chancery 357 Acts done in spiritual Courts 33 163 164 181 215 Curia claudenda 127 Custom 5 49 234 140 143 235 267 261 135 of descents 166 127 That the wife may devise to the husband 14 Particular Customes 163 D Day in Court 68 Day materiall to be set down 433 434 Damages recowping in them 53 135 362 jonyt severed 57 assessed 98 343 344 not assessed writ of enquiry 207 not recoverable in account 57 treble 245 to be severed 210 Damage feasan 124 185 Date of a Patent 416 Declaration 251 86 186 in an action upon 1 2. P. M. of distresses 11 upon an Assumpsit 32 Custome 252 particularly 358 insufficient 76 106 343 370 mistakes 345 287 119 160 125 Deed things passe by one deed 129 by deed 354 128 Debt 253 91 336 372 217 210 who liable 294 The Kings debt 289 290 291 292 293 294 295 296 Default 280 Defamation 440 Delivery of deeds 130 of money to anothers use 210 Demand 23 39 67 96 154 337 where to be 331 by writ 74 335 310 the word 398 Demurrer 10 Denizen made 417 Departure 255 122 Depositions 193 Deprivation 259 163 Detaining 8 Detinue 370 Declaration in it 403 Devastation by Executors 30 Devastavit 285 Devise 7 14 15 16 26 40 46 208 266 280 95 99 130 131 299 319 146 351 352 363 to a Colledge c. 394 prevents a remitter c. 411 to a mans heir 412 to one daughter heir of land held by Knights service c. 17 to sell 78 to the Son and heir 94 Dilapidation 259 Diminution 267 alledged 407 Disability the plaintiff cause of it 75 76 Discharge 11 105 ought to shew what 61 Discent 3â—5 312 365 Disclam 25 Discontinuance one issue only found 5 370 within a year 219 Discontinuance by tenant in taile 317 Disseisin 522 of a particular estate 139 Acts of disseisor disseisor sues c. 388 Distresse justified 109 110 187 190 driven out of the Countrey 11 sufficient upon the Land 67 110 Divorce 19 145 Dove-coat a Writ of Right lies of it 259 erected 284 Dower 21 135 145 A Lease is for years 266 Forfeitable by the Husband 323 Averment of seisin of the husband for damage 212 E Ejectione firmae 6 15 18 53 71 72 33â— extra tenet unnecessary 60. lyes 157 Plea 149 Election 258 159 127 140 446 To sue 196 determined ibid. Elegit 257 82 84 Ely jurisdiction there 380 381 Emblements 159 Enclosure in Forrests 167 168 169 170 171 Entry into one house 72 To defeat an estate 9 To fortifie it 25 for forfeiture 175 No trespasse 283 Error 26 258 248 73 80 84 87 372 373 lyes not 261 247. brought 376 377 378 379 439. directed 44. things uncertaine 408. severall 440 Escape 22 27 262 280 125 126 372 403 Fresh suite 177 433 Escheat 78 For Miscreancy 34 Right of action 322 Essoine 235 236 Estates 19 42 51 52 272 A Lease for time 102 103 determined 9 the lesse drowned 52 voidable 9 Estoppel 257 48 147 321 177 384 385 Estranger to a plaint erroneous c. 403 Estovers custome pleaded 235. see 238 97 173 Estrepment 112 164 Estrey 150 151 Eviction 258 Evidence maintaines not the issue 235 see 326 Execution 26 257 258 80 82 83 84 290 295 147 125 126 181 371 372 373 217 Assignment after judgement 161 Taking 372. severall 208 Executors 21 192 See Right Of his own wrong 104 Reteines 217 Order in payment 298 Pleads fully administred 178 Exception in a grant 116 117 118 Time past to take it 100 One releases 431 Exâ—hange 99 100 Exigent 83 217 Excommunication 191. unjust 406 Exposition 16 17 18 36 37 67 71 236 246 198 of Lawes 39 of Statutes 309. and Patents 425 Extent 82 289 311 Extinguishment 24 11 101 314 128 137 211 Lands given by Statute to the King Annuity not extinguished 170 F Falsâ—fying a Recâ—very 271 Falsely imprisoned 124 Fee executed â—â—2 one cannot depend of another â—â—7 Fee-simple 155 Felony not before attainder 267 Cause of arrest for it 406 Feoffments 318 319 320 Fieri facias 276 147 83 Fine for vert c. 277. What Courts may fine c. 381 Fine levied by tenor of it 246 Parish not named 440 Record of it 103 129 307 148 351 179 First fruits 393 Forceable entry 45 Forfeiture of Lessor 105 141. Of a Right 321 See Treason Forgery 62 63 175 Form commanded by Statute must be observed 334 188 189 Formedon 239 302 163 Forrests chases c. 169 Frankalmoigne 396 Franchises 17 262 Usurped 91 Frankmarriage 18 19 20 Franktenement rule of it 9 In an upper chamber 44 Forfeiture 6 318 In case of Treason 34 307 308 310 315 316 Fraudulent conveyances and acts 6 7 285 161 191 192 G. GArdian in soccage 316 Gardens 6 Gavel-kind Plea 55 Grants Words apt 7 Of a common person 8 18 24 25 236 237 270 273 Restriction rule 237 To dig in his waste 18 Generall words 183 One thing passes with another 352 Things passe in grosse 127. By one Deed 129. Of the King 8 35 Where a mistake shall not abridge the fulnesse of words precedent 36 Favoured 37 38 262 136 425. See 414 415 416 417 421 422 423 425 Of a possibility 316 H. HAbeas corpus directed 44. See 198 199 Habendum 51 269 272 Habendum successive 220 Holidayes 218 Heire-speciall 3. Force of the word ib. 4 275 102 312 Homage 320 Husband and Wife acts of both or either 2 5 14 15 312 141 180 Wifes lease good 327 Gives land to her husband 143 Execution of the Wives Lease 26 See Reservation Husband may forfeit the Wives Copy-hold 345 May correct his Wife 215 I. IDeot 302 Jeofailes 56 57 194 Imbracery 240 Imprisonment 158 344 199. See Fine Improvement of common 97 Incidents 359 Ingrossers of corn 144 Innkeepers 345 346 Incroachment 24 411 Inquisitions 294 299 Indictment 45 46 65 67 272 84 157 400 346 For erecting a Cottage 383 For omitting the Crosse in Baptisme 119 Joynt 349 Contra pacem when 59 Infant 60 104 In his mothers belly 319 364 365 366. May grant c. 14 Brings Error to reverse a Fine 20 May release 30 31 Acknowledges a Statute c. 149 Appears c. 382 Promises to pay for his meat c. 219. Sues his Guardian discharges 214 Information 91 131 158
afterward the Husband suffers the wood to grow five and twenty yeers and afterwards hee dieth The question was Whether the Wife being Tenant for life might cut that Underwood And it was moved What shall be said seasonable Underwood that a Termor or Tenant for life might cut Dyer Chief Justice and all the other Justices held That a Termor or Tenant for life might cut all Underwood which had been usually cut within twenty yeers In 11. H. 6. 1. Issue was taken If they were of the age of twenty yeers or no. But in the Wood-Countries they may fell seasonable wood which is called Sylva caedua at six and twenty eight and twenty thirty years by the custome of the Country And so the Usage makes the Law in severall Countries And so it is holden in the books of 11. H. 6. and 4. E. 6. But they agreed That the cutting of Oakes of the age of eight yeers or ten years is Waste But by Meade Justice the cutting of Hornbeams Hasels Willows or Sallows of the age of forty yeares is no Waste because at no time they will be Timber Another question which was moved was That at the time of the Feoffment it was seasonable Wood and but of the growth of fourteen or fifteen yeers If this suffering of the Husband of it to grow to 25 years during the Coverture should bind the Wife so as she cannot cut the Woods Gaudy Serjeant said That it should not bind the Wife For if a Warranty descend upon a Feme Covert it shall not bind her So if a man seized of Land in the Right of his Wife be disseised and a Descent be cast during the Coverture it shall not bind the Wife but that she may enter after the death of the Husband But by Dyer Chief Justice and all the other Justices This Permission of the Husband shall bind the Wife notwithstanding the Coverture for that the time is limited by the Law which cannot be altered if it be not the custome of the Country As in the case of 17. E. 3. Where a man makes a Lease for years and grants that the Lessee shall have as great commoditie of the Land as hee might have Notwithstanding these words he cannot dig the land for a Mine of Cole or Stone because that the Law forbids him to dig the land So in the principall Case The Wife cannot fell the Wood notwithstanding that at the time of her estate she might and afterwards by the permission of the Husband during the coverture the time is incurred so as she cannot fell it because the Law doth appoint a time which if it be not felled before such time that it shall not be felled by a Termor or a Tenant for life but it shall be Waste Hill 23. Eliz. In the Common Pleas. 7. A Man makes a Lease of a Garden containing three Roodes of Land and the Lessee is ousted and he brings an Ejectione firme and declares that he was ejected of three Roods of Land Rodes Serjeant moved That by this Declaration it shall be intended that he was ejected of the Garden of which the Lease was made and so the Ejectione firme would lie And it was holden by the Lord Chief Justice Dyer That a Garden is a thing which ought to be demanded by the same name in all Precipes as the Register and Fitz. N. Brevium is And this Action is greater then an Action of Trespasse because by Recovery in this Action he shall be put into Possession But Meade and Windham Justices contrary And they agreed that in all reall Actions a Garden shall be demanded by the name Gardinum otherwise not But this Action of Ejectione firme is in the nature of Trespasse and it is in the Election of the Party to declare as here he doth or for to declare of the Ejectment of a Garden for a Garden may be used at one time for a Garden and at another time be ploughed and sowed with Corn. But they conceived that the better order of pleading had been if he had declared that he was ejected of a Garden containing three Roodes of Land as in the Lease it is specified Hill 23. Eliz. In the Common Pleas. 8. SErgeant Fenner moved this case That Land is given to the Wife in tail for her Joynture according to the Statute of 11. H. 7. The Husband dieth the Wife accepts a fine Sur conusans de droit come ceo c. of a Stranger And by the same fine grants and renders the Land to him for an Hundred years whether this acceptance of a Fine and Render by the Wife were a forfeiture of her estate so as he in the Reversion or Remainder might enter by the Statute Mead and Dyer Justices it is a forfeiture and Mead resembled it to the Case in 1 H. 7. 12. where it is holden That if Tenant for life do accept of a Fine Sur conusans de droit come ceo c. that it is a forfeiture and the Lessor may enter But Fenner asked their opinions what they thought of the principall case But haesitavernut because they said it was a dangerous case and is done to defraud the Statute of 11. H. 7. Pasch 23. Eliz. in the Common Pleas. 9. A Man made a Feoffment in Fee to two to the use of himself and his wife for the term of their lives without impeachment of waste during the life of the Husband the remainder after their decease to the use of I. his son for the term of his life And further by the same Deed Vult concedit that after their three lives viz. of the Husband Wife and Son that I. S. and I. D. two other Feoffees shall be seized of the same Land to them and their heirs to the use of the right Heirs of the body of the Son begotten It was moved That by this deed the two later Feoffees should be seized to the use of the right Heirs of the body of the Son begotten after the death of the Husband Wife and the Son But it was holden by all the Justices That the second Feoffees had not the Fee because by the first part of the Deed the Fee-Simple was given to the first Feoffees and one Fee-Simple cannot depend upon another Fee-Simple Notwithstanding that after the determination of the former uses for life the Fee-Simple should be vested again in the Heires of the Feoffer and that the words That the second Feoffees should be seized should be void But Dyer Chief Justice and the other Justices were against that because there wanted apt words to raise the later use As if a man bargain and sell his Reversion of Tenant for Life by words of Bargain and Sale only and the Deed is not Enrolled within the six months but afterwards the Tenant for Life doth attorne yet notwithstanding that the Reversion shall not passe because Bargain and Sell are not apt words to make a Grant And that Case was so adjudged in the Common Pleas as the
husband and therefore the prescription is not good that Potest ponere retes upon the land of another upon the Custome of the Sea for prescription must be in a thing done also by him the devise is not good according to the Custome for that is that she may devise and surrender and that ought to be all at one time and that in the presence of the Reeve and six other persons as well as the Surrenderer and the words of a Custome shall be so far performed as they may be Meade contrary And that these Witnesses shall be referred to the surrender onely for a devise may be without Witnesses And he said that sometimes the latter clause shall not refer to all the precedent matter but unto the latter onely as 7. H. 7. is Where a Praecipe was brought of lands in A. B. and C. in Insula de Ely the Clause in Insula de Ely is referred onely to C. And it was said That if in the principal Case the Will were good that then the husbands are Tenants in common and then the Action of Trespass is not maintainable Pasch 25. Eliz. in the Common Pleas. 23. THis Case was moved by Serjant Gawdy Thomas Heigham had an hundred Acres of lands called Jacks usually occupied with a house and he leased the house and forty Acres parcel of the said hundred Acres to I. S. for life and reserved the other to himself and made his Will by which he doth devise the house and all his lands called Jacks now in the occupation of I. S. to his wife for life and that after her decease the remainder of that and all his other lands pertaining to Jacks to R. who was his second son Whether the wife shall have that of which her husband died seised for her life or whether the eldest son should have it and what estate he shall have in it Meade The wife shall not have it for because that he hath expressed his Will that the wife shall have part it shall not be taken by implication that she shall have the whole or the other part for then he would have devised the same to her And therefore it hath been adjudged in this Court betwixt Glover and Tracy That if Lands be devised to one and his heirs males and if he die without heirs of his body that then the land shall remain over that he had no greater estate then to him and his special heirs viz. heirs Males and the reason was because the Will took effect by the first words Anderson Chief Justice It was holden in the time of Brown That if lands were devised to one after the death of his wife that the wife should have for life but if a man seised of two Acres deviseth one unto his wife and that I. S. shall have the other after the death of the wife she takes nothing in that Acre for the Cause aforesaid For the second matter If the Reversion shall pass after the death of the wife to the second son we are to consider what shall be said land usually occupied with the other and that is the land leased with it But this land is not now leased with it and therefore it cannot pass Windham The second son shall have the Reversion for although it doth not pass by these words Usualy Occupied as Anderson held yet because the devise cannot take other effect and it appeareth that his intent was to pass the land the yonger son shall have it Anderson Jacks is the intire name of the house and lands And that word when it hath reference unto an intire thing called Jacks and is known by the name of Jacks shall pass to the second son for words are as we shall construe them And therefore If a man hath land called Mannor of Dale and he deviseth his Mannor of Dale to one the land shall pass although it be not a Mannor And if I be known by the name of Edward Williamson where my name is Edward Anderson and lands are given unto me by the name of Edward Williamson the same is a good name of purchase And the opinion of the Court was that the Reversion of the land should pass to the second son Pasc 25. Eliz. in the Common Pleas. 24. The Lord MOUNTJOY and the Earle of HUNTINGTON'S Case NOte by Anderson Chief Justice and Periam Justice If a man seised of any entrie Franchises as to have goods of Felons within such a Hundred or Mannor or goods of Outlaws Waifes Strares c. which are causual There are not Inheritances deviseable by the Statute of 32. H. 8. for they are not of any yearly value and peradventure no profit shall be to the Lord for three or four years or perhaps for a longer time And such a thing which is deviseable ought to be of annual value as appeareth by the words of the Statute And also they agreed that the said Franchises could not be divided and therefore if they descend to two coparceners no partition can be made of them And the words of the Statute of 32. H. 8. are That it shall be lawful c. to divise two parts c. and then a thing which canot be divided is not diviseable And they said That if a man had three Manors and in each of the three such Liberties and every Manor is of equal value that yet he cannot devise one Mannor and the Liberties which he hath to it Causá quâ supra but by them an Advowson is deviseable because it may be of annual value But the Lord Chancellor smiling said That the Case of the three Manors may be doubted And there also it was agreed by the said two Justices upon Conference had with the other Justices That where the Lord Mountjoy by deed Indented and Inrolled did bargaine and sell the Manor of â—amford to Brown in Fee and in the Indenture this Clause is contained Provided alwayes And the said Brown Covenants and Grants to and with the Lord Mountjoy his Heirs and Assigns that the Lord Mountjoy his Heirs and Assigns may digg for Ore within the land in Camford which was a great Waste and also to digg Turffe there to make Allome and Coperess without any contradiction of the said Brown his Heirs and Assigns They agreed That the Lord Mountjoy could not devide the said Interest viz. to grant to one to digg within a parcel of the said Waste And they also agreed That notwithstanding that Grant That Brown his Heirs and Assigns owners of the Soile might digg there also like to the Case of Common Sans number The Case went further That the Lord Mountjoy had devised this Interest to one Laicott for one and twenty years and that Laicott assigned the same over to two other men And whether this Assignment were good or not was the Question forasmuch that if the Assignement might be good to them it might be to twenty and that might be a surcharge to the Tenant of the soile And as to that
agree in the Services Walmesley He shall have the traverse for the mischief which otherwise would follow for if he should traverse the seisin thereby he should confesse the Tenure Periam concessit and said That the difference which is commonly taken in our Books is That where they agree in the Tenure there the Seisin is traversable but where they do not agree in the Tenure there the Tenure is traversable So is 26. H. 8. 6. 7. E. 4. 27. 12. E. 4. 7. 20. E. 4. 16. And he conceived here that the payment at two dayes doth alter the tenure so as now it is another tenure then before Also he said That if Wh. acre and Bl. acre be adjoyning and are holden the one of I. S. and the other of I. D. and I. S. distrein and avow for both acres that he may well traverse the tenure Meade 8. H. 7. 5. a. It is said by Brian That if avowry be made for a tenure of two acres by twenty shillings and the Plaintiffe saith that he holdeth these two and two other acres by twelve shillings without that that he holdeth the two acres by twenty shillings that that is good for that he cannot do otherwise And it is no reason that for a false avowry the Plaintiffe should be at a mischief But the Book is not ruled for Keble is contrary Vide Librum Trinit 26 Eliz. in the Kings Bench. 35 SAVELL and CORDELL's Case HEnry Savell Lessee for years of the Manor of M. grants the same Manor Habendum for so many years which should be to come after his death to Cordell Master of the Rolls if Dorothy his Wife so long should live And afterward Henry Savell and he in the Reversion levied a Fine The Case went by many Conveyances further But two points were here moved 1. If it were a good Grant for so many yeers c. Shuttleworth argued that it was But Cooke contrary And Cooke said to that which hath been said That Leases which have uncertain beginning may be by act of matter ex post facto made certain and so good As a lease for so many years as I. S. shall name if he name it is a certain lease but if the Lessor die before I. S. name and after hee name all is void as it is in the Commentaries put by Weston and granted by Dyer 273. And the reason is that it behoves that the interest passe out of the Lessor during his life and the Deed ought to have its perfection in the life of the Lessor But in our case here the Lessor or Grantor is dead before the certaintie of the beginning is known and before any perfection of interest out of him and therefore the reason in the common case 40 Ass and 16. E. 3. that there behoveth to be Attornment in the life of the Lessor proves our case for the reason of that is that it behoveth that some interest passe out of the Lessor or Grantor during his life and that perfection of his Grant be in his life or else the Grant is void Vide 31. E. 3. alb 20. and 33. E. 3. Confirmation 22. If the Chapter confirm the Grant of the Bishop after his death it is void for it ought to have perfection in the life of the Bishop otherwise it is void And upon that reason is the case put by Popham Com. 520. b. That where a man grants all his term which shall be to come after his death that it is a void Grant because no interest passeth during the life of the Grantor And to this purpose is 7. E. 6. Br. Leases 66. Temps H. 8. 339. If a man will take by Livery within the view it behoves the Feoffee to enter during the life of the Feoffor and yet that is a more strong case for by the Livery being a ceremony of the Law it is presumed that the land passed and yet there ought to be an entry to fortifie the Grant otherwise it is void The second point was If by the Fine levyed the possibilitie aswell as the right of possession of the term did passe And I conceive that it doth therefore we see in many cases a man may grant by his Deed a possibility to come As 19. H. 7. 1. where a man seised in the right of his Wife made a Feoffment in see and after they had issue and the Wife died that he should not be Tenant by the Courtesie and yet the Wife was remitted but by his own Grant he had granted from him the possibility he might have had to be Tenant by the courtesie And here If Cordell had entered and made a Feoffment in fee or levied a Fine the possibility which he had to have the term had been cleerly gone 39. H. 6. 43. If I disseise my Eather and make a Feoffment in fee and afterwards my Father dieth although that a new Right descends unto me yet I shall be barred of this possibilitie which I had at the time of the Grant But otherwise it had been if this discontinuance or grant had been defeated by entry or otherwise in my life by my Father or any other in that case I may shew the speciall matter as 15. E. 4. 5. is and so avoid my own Deed. And 44. E. 3. 4. is That tenant for years and he in the Reversion disclaim and it is holden a good Disclaimer which proves that a possibility may also pass by Disclaimer And 21. E. 3. and 35. H. 6. is That if he who hath cause to have a Writ of Error if he enter into the Land and make a Feoffment the Writ of Error is gon for ever so by these Cases it is proved and appeareth That a Possibility may passe by grant And so in the Principall Case the Possibility to have the terme is by this Fine granted and the Grant is a good Grant And it was adjourned Pasch 26. Eliz. in the Kings Beneh 36. LUDDINGTON and AMNER'S Case Intratur Mich. 25. Eliz. Rott 495. IN a Writ of Error the Case was this Perepoynt possessed of a Lease for 99 years devised the same unto his Wife for Life and that after her Decease that it should go to his Children unpreferred the Wife took Sir Thomas Fulster to her Husband and the Lease was put in Execution by Fiery facias for the Debt of Sir Thomas Fulster and afterwards Sir Thomas died and the Wife died The Administrators of Sir Thomas Fulster did reverse the Judgement upon which the Lease was taken in Execution And afterwards A. the Daughter of Perepoynt entred supposing her selfe to be the only Daughter of Perepoynt alive unpreferred by her Father in his life time And the Pleading was That the Wife of Perepoynt was his Executrix and that she entred into the Lease after the death of Perepoynt Virtute legationis donationis praedict Cook There is a difference in our Books That the Devise of the Occupation of a Term may be with the Remainder over but not a Devise
of the Term with the Remainder over And the Devisee of the Occupation of a Term hath one speciall Property and the Remainder another Property As if a Lease be extended upon a Statute the Conusee during the Extent hath one Property and he who is to have it afterwards another Property and the reason of the difference is apparent when the Occupation is devised and when the terme is devised for in the first Case he puts but only a confidence in the Devisee as it appears in Welkdens Case But in the other Case all the Property goes and there is no confidence reposed in the Devisee And there is a Case in the very Point with which I was of Councell and was decreed in the Court of Chancery it was one Edolf's Case Where the Devise was of a terme the Remainder to another and he made the Devisee his Executor and he entred Virtute donationis as in this Case and it was decreed That the Executor might alien the Terme and that the Remainder could not be good And to this purpose Vid. 33. H. 8. 2 E. 6. 37 H. 6. 30. But if there might be a Remainder yet Incertae Personae nulla donation for if all the Children be preferred then the Remainder is void and then the Property of the Lease is in the Wife and she might preferre her at any time during her life and the generall property cannot be in another but in the Executor for the Legatee cannot enter although that 27 H. 6. seemeth to be contrary And if the whole Property be in the Wife her Husband might alien it and therefore it may be extended for his Debt as 7. H. 6. 1. is But it may bee objected That the Cases before put are of a devise of a Term and this is of a Lease That makes no difference for in Wroâ—â—slâ—y's Case Lease there is said to contain not only a terme but also the years to come in the terme Then the Question is If by the sale of the Sheriff upon the Fieri facias if the term be so gone that the Wife shall not have it by the Reversall of the Judgment by Error for the Judgement is that the Party shall be restored to all that which he hath lost It is very cleer that it shall never return for if it should be so then no sale made by the Sheriffe might be good unlesse the Judgement be without Error which would be a very great damage to the Common Wealth And also by reason and by the Judgment in the Writ of Error it should not be so restored for the Judgment is That he shall be restored to all that which he hath lost ratione judicii and here the Defendant hath not lost any thing by force of the Judgment but by force of the Execution For the Judgment was to have Execution of 200 li and of the 200 li. he shall be restored again and not of the Lease And therefore in 7. H. 7. If a Manor be recovered and the Villains of the Manor purchase Lands and afterwards the Judgment is reversed by Error the Recover or shall have the Perquisite and the other shall not be restored to it And 7. H 7. A Statute was delivered in Owell maine and a recovery was by the Conusee upon Garnishment of the Conusor and the Conusee had Execution and afterwards the Judgement is reversed by Error yet the Conusor shall not be restored to the Land taken in Execution but only the Statute shall be redelivered back where it was before And in this Case if the party should be restored to the term it should be great inconvenience Also if I give one an Authority upon Condition and the Party doth execute the Authority and after the Condition is broken the Act is lawfull by him who had Authority upon Condition And so was the Lord of Arundels Case where the Feoffee upon Condition of a Manor granted Coppies it was holden That the Grants made by him were good notwithstanding the Condition was afterwards broken And in 13 E. 3. Barr 253. That a Recovery was Erroneous and the Party being in Execution the Gaoler suffered him to escape and after the Recovery was reversed for Error yet the Action lay against the Gaoler Also by him the Jury have given an imperfect Verdict so as we cannot tell whether the Party were preferred or not for the Will was unpreferred generally and the Jury find that she viz. A. the daughter was not preferred by her father in his life time so as the Preferment by the taile is limited generally so as if any other prefer her she shall not have the Remainder And the Jury have found that she was not preferred by one certain viz. by her Father nor in a certain time in his life time which is as much as to say That she was preferred by the Uncle Aunt or Mother and if it were so then the Remainder is not good to her Also they find no preferment in the life of the father and it may be that the Father hath given her preferment by Will and that was no preferment in his life but is consummate only by his death and so she might be preferred by him by Implication by his Will So as upon the whole Matter I conceive That the Judgement ought to be reversed Note that this Case was afterwards adjudged at Hertford Terme and the Judgement was That the Issue of the Wife had Judgement for her Terme and that the Judgement upon which the Execution was was Erroneous and reversed by the Writ of Error and that the opinion of the Justices was That the Term was not to be restored but so much for which it was sold upon the Execution And the Daughter of Perepoynt brought an Action for it and had Judgement 27 Eliz. in the Common Pleas. 37. ONE had certain Minerall Lands Leased to him for years with liberty to dig and make his Profit of the Mine The Lessee afterwards digged for Mine and sold the Gravell which came of it And by the Opinion of the whole Court This sale was no Waste for no Sale is Waste if the first act be not Waste As the Sale of Trees by Tenant for life or Years is not waste if the Cutting and Felling down of them was not Waste before for the Vendition is but a secondary Act and but subsequent to the Act precedent which Act if it were lawfull the Sale also is lawfull for the Sale alone is not waste But they said That if the Lessee fell or cut Timber Trees and sell them it is waste Non quia vendebat sed quia scindebat For if he suffer them to be upon the ground without doing any thing with them yet it is waste but he may use them for the Reparation of his house and then it is no waste And yet when he fels them with an intent for Reparations and afterwards sells them it is waste Non propter Venditionem only but for the felling
same to Cropp the Lessor And the same Margery at one or two dayes before the payment of the said Rent had received the Rent in the like manner and had paid it to Cropp and he had accepted of it But now he refused to receive it of her but at the last day of the Month he went to the Land and there demanded the Rent and because it was not paid he entred Laiton argued for the Lessor That his entry was lawfull for he said That the Tender made by Margery Briggs to the Lessor was not sufficient 1. Because the Servant of the Lessee had Authority to deliver it to the Lessor therefore when he delivers it to another he hath not pursued his Authority 19. H. 8. 27. H. 8. Letter of Atturney made to diverse to give livery of Seisin If one make Livery alone it is void 34. H. 6. If a Capias be to many Coroners and one execute it it is void 18. E. 4. If one hath a Letter of Atturney to make Livery he cannot transfer this Authority to another to make Livery for him Also if in this Case a Stranger had tendered the Rent the Lessor was not bound to receive it as upon a Mortgage if a Stranger tender the Money the Mortgagee is not bound to accept of it 21. E. 4. In case of Corporall Service as Homage or Fealty the demand is to be made of the person but of Rent the demand is to be made upon the Land because the Land is the Debtor Clenche Justice conceived That if the Lessee himselfe had delivered the Rent to Margery Briggs that it had been good but it is a doubt if good made by the servant for he could not transfer his Authority to another Wray Chief Justice If it were upon a Bond the Obligee was not bound to accept of it before the day so if it were payable at Mich. only there the Lessor is not bound to accept of it before the day but in as much as 't is after the day the Month is a Liberty and Benefit for the Lessee and it was due at Mich. therefore I conceive That being tendred to him within any part of the Month that he is bound to accept of it And as to that That his servant cannot transfer his Authority over and therefore Margery Briggs is but a stranger in that act that is not so for now she is a servant in that to the Lessor himself and therefore there is privity enough also she hath received the Rent for him before What then said Laiton We can prove a speciall commandment for the time before that she received it At another day the Case was moved again and it was ruled against Cropp the Lessor because the rent was due at Mich. and the month after was given because of the penalty of Re-entry and the Tender and Refusall after the Rent was due and within the month saves the penalty and also Lawes ought to be expounded Secundùm â—quum bonum and good conscience and the Lessor was at no prejudice if he had accepted of it when his Daughter in Law tendred it unto him and therefore it was conceived That he had an intent to defraud the Lessee of his Lease and the Law doth not favour Frauds and therefore it was adjudged against Cropp the Lessor Hill 28 Eliz. In the King 's Bench. 44 PRIDEAUX's Case IN this Case it was moved Where a man marrieth a woman who is an Administratrix so as the Suit is to be in both their names Whether they shall be named in the Writ Administrators or not Wray Chief Justice They shall be for by the Entermarriage the Husband hath Authority to entermeddle with the Goods as well as the Wife but in the Declaration all the speciall matter ought to be set forth and so some said is the Book of Entries That both of them shall be named Administrators Hill 28. Eliz. in the King 's Bench. 45. AN Action upon the Case was brought for these words viz. Thou art a Cozener and a Bankrupt and hast an Occupation to deceive men by the words were spoken of a Gentleman who had One hundred Pound land per annum to live upon and therefore although he used to buy and sell Iron yet because he was not a Merchant nor did not live by his Trade the better Opinion of the Court was That the words were not actionable and so adjudged Hill 28. Eliz in the King 's Bench. 46 HARWOOD and HIGHAM's Case ONE had Houses and Lands which had been in the tenures of those which had the Houses and he devised his Houses with the Appurtenances and it was holden and so adjudged by the whole Court That the Lands did passe by the words With the Appurtenances For it was in a Will in which the intent of the Devisor shall be observed Trinit 28. Eliz. Rot. 1130. in the Common Pleas. 47 The QUEEN and SAVACRE's Case IN a Quare Impedit by the Queen against Savacre Clerk the Case was this The Queen presented to a Parsonage which was void by the taking of another Benefice by the said Savacre and the said Savacre for to enable him to have two Benefices pleaded That he was the Chaplain of Sir James a Crosts Controller of the Queens House who by the Statute of 21. H. 8. cap. 13. might have two Chaplains and might qualifie them to take two Benefices to which it was replied That the said Sir James a Crost had two other Chaplains which are qualified to have two Benefices and have also two Benefices by reason of that qualification and also are alive so as he is a third Chaplain who could not be qualified by that Statute To which it was answered That one of those two Chaplains is removed and discharged by the said Sir James a Crost to be his Domesticall Chaplain scil Capellanum familiarem as it was pleaded and so he hath now but two Chaplains of which the Defendant was one upon which there was demurrer joyned Three Points were in the Case 1. If the qualification Sub sigillo be sufficient within the Statute without the Signature or name of Sir James a Crost 2. When two Chaplains are qualified and one is removed out of service if he might qualifie another by the Statute the party being alive who was qualified 3. Whether he remain his Chaplain notwithstanding such removall during his life Upon which Points after perusall of the Statute it was agreed by the whole Court That the Queen ought to have Judgement and so they gave Judgement presently And the reasons of their Judgement were for the first Point Because that the Defendant Sâ—vâ—cre was not qualified Sub Signo Sigillo praedict Jacobi a Crost but only Sub Sigillo and the words of the Statute are viz. Under the Sign and Seal of the King or other their Lord or Master c. Which words Or other their Lord or Master shall be referred to Sign and Seal which is limited to the
any remedy in this Court. Also he saith That he hath paid but doth not shew where and the other may say nâ—n solvit and so an issue shall be and no place from whence the Visne shall come Godfrey contrary If one be a lay man and the other a spirituall man then the tryall shall be at the common Law as it is holden 31. H 6. and 2. E. 4. And the defendant here is a lay man who makes prescription of a Modus decimandi for the discharge of Tithes in kind As to that which Cook said That he prescribes that he hath used to pay to the Parson and doth not say That it was due to the Parson and if he pay the Vicars Tithes to the Parson he doth wrong to the Vicar He saith That he hath paid and used to pay 4d. to the Parson in full satisfaction c. and reddâ—ndo singula singâ—lis it is good enough As to the doublenesse or repugnancy of the Prescription he said That the prescription is set forth according to the truth of the matter As to the place for that no issue can be taken upon it he answered That he conceived the issue will bee upon the Custome or Modus decimandi And Gawdy Justice agreed to that Suit Justice There is no Modus decimandi alledged for when he saith That he hath paid to the Parson that which the Vicar demands that is no answer Gaudâ— Justice The prescription is repugnant as Cook said and he said That the herbage is for all Kine as well for those which have Calves as those which have not No Prohibition granted Mich. 28 29. Eliz. in the Kings Bench. 64. WINDSMORE and HULBORD's Case THe Case was this A man gave lands to J. S. Habendum to him and to three other for their lives â—t eorum diutius viventi successivè The question was What estate J. S. had and if after his life there were any occupancy in the Case Cooke That J. S. had an estate but for his life onely because he cannot have an estate for his life and for the life of another where the interest commenceth both in praesenti but he may have an estate for his own life in present interest and the remainder thereof for anothers life But this Habendum by no means can create a Remainder And he said that as a Lease to one for life Habendum to him primogâ—nito filio suo was no Remainder primogenito filio although some held to the contrary So a Lease for years Habendum to him and to another was no Remainder to the other Also the word successivè doth not make a Remainder as 30. H. 8. Br. Joynâ—ts 53. where a Lease for life to three or for yeers to three Habendum successivè yet they have a joynt estate and successivè is void for he said It is uncertain who shall have it first and who secondly Also one cannot have an estate for his own life and for the life of another at the same time in present interest for the greater will drown the lesser But if the greater be in praesenti and the lesse in futuro as a lease for his own life the Remainder to him for another mans life it is otherwise As a lease for his own life the Remainder for yeers is good But if I make a lease to you for your own life and 100 years both to begin at the same time the Lease for yeers is drowned and an estate for his own life is greater then an estate for anothers life and shall drown the estate for anothers life Vide 19. E. 3. Surr. 8. where Tenant for life of a Manor did surrender to Tenant for life in Reversion And 12. H. 7. 11. and Perkins 113. That if there be a Lease for life to one the Remainder to another for life and the Lessee for life doth surrender to him in the Remainder it is good So Dyers Reports A lease is made to one for the term of another mans life without impeachment of Waste the Remainder to him for his own life he is now punishable for waste for the first estate is surrendred Gaudy Justice If a lease be made to one for his life and so long as another man shall live quaere what estate he hath 2. If there can be any Occupancy in the Case for if the estate be void the limitation upon the estate is void therefore if the estate for the other mans life be drowned in the estate for his own life that can be no Occupancy Also the Occupancy is pleaded That such a one entred and doth not say claiming as occupant For if one come hawking upon the land he shall not by such entry be an Occupant and in the book of Entries it is pleaded that he entred clayming as Occupant Clenche Justice Every Occupancy ought to be in possession for otherwise the Law casts the interest of it upon him in the Reversion But Gaudy and Suit Justices were utterly against him in that for then they said there should be no occupancy if the party were not in by Lease or such like means Mich. 28 29. Eliz. in the Kings Bench. 65. DIKE and DUNSTON'S Case IN an Action of Trespasse brought the defendant did justifie as Lessee to the Lord Mountagu and said that the Lord Mountagu for him and his Farmors had used to have a way over the land in which the trespass is supposed to be done And that by rooting of a cart wheel the way was so digged and drowned that he could not so wel use his way as before and that therefore he did fill up the cart roots and digged a trench to let out the water upon which the plaintiffe did demur in law For 15. H. 7. is that a Commoner cannot meddle with the soil so is 12. 13. H. 8. So he who hath Warren in the land of another man cannot meddle with the soile and as to that that he could not use his way so well as before it is not good for he ought to have said That he could not use his way at all otherwise the plea is not good As 6. E. 4. One is to lop his tree and he cannot do it unless it fall upon the Land of another there he may well justifie the felling of it upon the others Land because otherwise he could not lop it at all So if I give to one all the fish in my Pond he cannot dig a Trench to draw out the water unlesse he cannot otherwise take the fish as with Nets c. Also he justifies by reason that the Lord Mountagu for him and his Farmors c. And he was a Lessee and paid no rent therefore no Farmor Cowper contrary He shall not have an Action of Trespass for it is no losse or hinderance unto him but it is for his profit for the Land is the worse being drowned with water If a man do disseise me and fells trees upon the Land and doth repair the houses in an
not shew what trees nor how many he might cut and that he hath cut down more then he ought and also he doth not shew when the cutting of them was Vide 6. E. 4. By prescription they may prescribe to hold a Court before the Steward but if there be no custome or Prescription to warrant it then as 4. H. 6. is it is coram Senescalio Sectatoribus Gaudy Every Court Baron is to be holden before the Suitors if there be no Prescription to the contrary But a Leet alwayes before the Steward The Action of Debt was upon the Presentment and the Error is brought upon the defects in the Presentment for if that be not good all is naught Notwithstanding it was said by one at the Bar That the forme of pleading in the book of Entries is That the Court was holden before the Steward if the Action be for debt or Trespass for Amercements or such personall things But if the Action be brought for reall things then it is before the Suitors But notwithstanding that the Judgement for the Causes aforesaid was reversed Mich. 28 29. Eliz. in the Kings Bench. 84 BARKER and FLETWEL'S Case BArker of Ipswich brought an Action of Covenant against the Assignee of his Lessee for years one Fletwell And set forth That whereas he had made a Lease for years reserving Rent with re-entry for non-payment of the Rent and that the Lessee did covenant to build a house upon the Land within the first ten years and that he assigned over his terme And he brought the Action against the Assignee who pleaded That the Lessor did enter and had the Possession for part of the ninth year and if thereby the Covenant were discharged was the demurrer in Law Godfrey Who argued for the Lessor said That by this entrie of the Lessor the Covenant was not suspended As 20. E. 4. 12 BY. Extinguishment 34. The Abbot of D. did grant to W. S. a Corrodie viz. so much bread c. for the term of his life faciend ' talia servitia prout J. N. alii usi sunt focere The Grantee leased back again the Corrodie unto the Abbot for 10. years rendring 3â— rent per annum and he brought Debt for the rent and the Abbot said That he did not the Services and the Grantee said That he was not bound to do them for that by the Lease the Corrodie was suspended And it was holden that it was not suspended Godfâ—â—y held the reason to be because that the service is a Collaterall thing And therefore he said He ought to do it notwithstanding that the Abbot had the Corrodie So in 8. H. 7. 7. Br. Conditions 134. Where Tenant in taile makes a Feoffment in Fee and takes back an estate in Fee and afterwards was bounden in a statute Merchant and then made a Feoffment in Fee upon Condition and died his Issue within age who enters for the Condition broken he was remitted notwithstanding that execution upon the statute was sued against the Father in his life So if Lease be made of a Manor except Herriots Fines and Amercements and that the Lessee shall collect them during the Term although that the Lessor entreth yet the Lessee ought to collect them during the term Also he pleades here That Barker did enter and that generall pleading is doubtfull and the Plea shall be taken strictly against him that pleadeth it and it may be that he entred by wrong and so it may be that he entred by right viz. for not payment of the Rent as in truth his entry was And if Barker did enter lawfully then it was no suspension or extinguishment of the Covenant As 19. R. 2. If Lessee for life commit waste and afterwards alieneth and the Lessor entreth for the Alienation yet after his entry he shall have an Action of Waste against the Lessee So 8. H. 6. 10. Waste 8. but with this difference If the Lessor enter wrongfully there although Waste be done before he shall not have Waste to punish it but otherwise if he enter for the Forfeiture done by the Tenant Also if the Covenant was suspended it was only for the time that the Lessor had the Possession and the Party hath not answered for the time before or after As 16. H. 7. If one be bound to find a Chaplain to say Divine Service within such a Chappel and the Chappel fall down it is a good excuse for the time but if it be built again he must find a Chaplain there Clarke contrary If Lessee for years covenanteth to repair the houses I grant that the same shall charge his Assignee But a Collateral thing as if the Lessee covenant to pay such a sum in gross or to enfeoffe him of the Manor of D the same shall not charge the Assignee no more shall a Covenant to build a new house But here it was said That he had time to build it both before and after the entry of the Lessor Barker To that he answered Not so for if he once disturbed the Covenant is destroyed Godfrey This Case was this Terme in the Common Pleas. Lessee for five years covenanted to build a Mill within the terme and because he had not done it the Lessor brought an Action of Covenant and the Defendant pleaded That within the last three years the Lessor forcibly held him out c. so as he could not build it and by the Opinion of all the Justices he ought to plead That the Lessor with force held him out otherwise it would be no Plea Cook As amicus curiae vouched 35. H. 6. Tit. Barr. If one be bounden to enfeoffe me of such land before Michaelmas there the Obliger in Debt brought upon the Bond pleaded That the Obligee before the day had entred with force into the land so as he could not enfeoffe him and there it was holden That he ought to prove that he was holden out by force Gaudy In the principall Case he ought to have shewed That he would not suffer him to build And the other Justices seemed to be of the same Opinion but yet they said That they would advise upon the Case Mich. 28 29. Eliz. in the Kings Bench. 85 OWen took Exception to a Declaration in an Ejectione firme because it was à Possessione sua ejecit where it ought to be according to the supposal of the Writ Quod à firma sua ejecit Also it was of three closes naming them with a Videlicet containing by estimation 30. Acres and that he said did contain no certainty where he ought to have alledged in Fact that they did contain so many Acres But it was holden by all the Justices That although he doth not put in the Declaration the certainty of the Acres if he give a certain name to them as Green-Close c. that it is good And as to the other Exception viz. Ejecit à Possessione inde that the word inde had relation to the Farme and shall be as much as
not have an Action without cause and if he were convicted then there is no cause of Action and he hath not shewed whether he was convicted or acquitted And he said that there was no difference betwixt an Action on the Case and a Conspiracie in such case but onely this That a Conspiracy ought to be by two at the least and an Action upon the Case may lie against one and he said that in both he ought to shew that he was legitimo modo acquietatus See 11. H. 7. 25. An Action of Conspiracy founded upon the Statute of 8. H 6. Cap. 10. where it is grounded upon a Writ of Trespasse brought against one onely But such a Conspiracy which is grounded upon an Indictment of Felony must be against two at the least for the same is an Action founded upon the Common Law Mich. 28 29. Eliz. In the Kings Bench. 92. BONEFANT against Sir RIC. GREINFIELD BOnefant brought an Action of Trespasse against Sir Richard Greinfield The Case was this A man made his Will and made A. E. I. O. his Executors and devised his Lands to A. E. I. and O. by their speciall names and to their heirs and further willed that his Devisees should sell the Land to I. D. if he would give for the same before such a day an hundred pound and if not that then they should sell to any other to the performance of his Will scil the payment of his debts I. D. would not give the hundred pound One of the Devisees refused to entermeddle and the other three sold the Land and if the Sale were good or not was the question Cooke The Sale is not good 1. Let us see what the Common Law is At the Common Law it is a plain case that the Sale is not good because it is a speciall trust and a joynt trust and shall never survive for perhaps the Devisor who is dead reposed more confidence in him who refused then in the others Vide 2 Eliz. the Case of the Lord Bray who covenanted That if his son marry with the consent of four whom he especially named viz. A. B. C. and D. that then he would stand seised to the use of his son and his wife and to the heirs of their two bodies begotten One of the four was attainted and executed The other did consent that he should marry such a one he married her yet no estate passed because the fourth did not consent and it was a joynt trust 38. H. 8. Br. Devises 31. A man willeth that his Lands deviseable shall be sold by his Executors and makes four Executors all of them ought to sell for the trust which is put upon them is a joynt Trust But Brook conceiveth that if one of them dieth that the others may sell the Lands The Case betwixt Vincent and Lee was this A man devised That if such a one dieth without issue of his body that then his Sons in law should sell such Lands and there were five sons in law when the Testatour died and when the other man died without issue there were but three sons in law and they sold the Lands and it was holden that the Sale was good because the Land was not presently to be sold Also he said that in the principall Case here they have an Interest in the Lands and each of them hath a part therefore the one cannot sell without the other But if the devise were that four should sell they have not an Interest but onely an Authority As to the Statute of 21. H. 8. Cap. 4. he said that that left our Case to the Common Law For that Statute as it appeareth by the preamble speaks onely of such Devises by which the Land is devised to be sold by the Executors and not devised to the Executors to sell And goes further and saith Any such Testament c. of any such person c. therefore it is meant of such a devise made unto the Executors and then no Interest passeth but onely an Authority or a bare Trust But in our Case they have an Interest for he who refused had a fourth part Then when the other sell the whole the same is a disseisin to him of his part If a Feoffment be made to four upon condition that they make a Feoffment over and two of them make the Feoffment it is not good Also the words of the Will prove that they have an Interest for it is that his Devisees shall sell c. Laiton contrary And he said That although the Devise be to them by their proper names and not by the name Executors yet the intent appeareth that they were to sell as Executors because it was to the performance of his last Will and that may be performed as well by the three although that the other doth refuse and the Sale of the Land doth referre to the performance of his Will in which there are divers Debts and Legacies appointed to be paid 2. H. 4. and 3. H. 6. A man devised his Lands to be sold for the payment of his debts and doth not name who shall sell the same the Lands shall be sold by his Executors 39. Ass A Devise is of Lands unto Executors to sell for the performance of his Will the profits of the Lands before the Sale shall be assets in the Executors hands 15. H. 7. 12. is That if a man devise that his Lands shall be sold they shall be sold by his Executors Also if I devise that my Executors shall sell my Lands and they sell it is an Administration and afterwards they cannot plead that they never were Executors nor never administred as Executors And although there are divers Authorities to be executed yet it is but one Trust 39. Ass 17. is our very Case A man seised of Lands deviseable devised them to his Executors to sell and died having two Executors and one of them died and the other entred and sold the Land and the Sale was good 49. E. 3. 15. Isabell Goodcheapes Case Where a man devised that after an Estate in taile determined that his Executors should sell the Lands and made three Executors and one died and another refused the third after the taile determined sold the Land and the Sale was holden good and that it should not escheate to the Lord for the Land was bound with a Devise as with a Condition as to the Statute of 21. H. 8. Cap. 4. the preamble of the Statute is as it hath been recited and although for exmaple the Lands in use are only put yet the Statute is not tied only to that As in the Statute of Collusion of Malbridge Examples are put only of Feoffments and Leases for years yet there is no doubt but that a Lease for life or a gift in taile to defraud the Lord is within the Statute So the Statute of Donis Conditionalibus puts onely three manner of estate tailes But Littleton saith That there are many other estate tailes which are
not recited in the Statute So here our Case is within the Mischiefe of the Statute of 21. H. 8. Cap. 4. although it be not within the Example So the Statute of West 1. is That if the Gardien or Lessee for years maketh a Feoffment in Fee Tam Feofator quam feofatus habeantur pro disseisoribus yet 22. Ass is That if Tenant by Elegit make a Feoffment it is within the Statute Also it may be a doubt Whether Land devisable onely by custome bee intended in the Statute of 21. H. 8. Cap. 4. And whether Land devisable by the Statute of 32. H. 8. be within it or not viz. If a Statute of a puâ—sne time shall be taken by Equity within a more Ancient Statute and I conceive it may as 12. H. 7. the Statue of 4. H. 7. which sayes that the heire of Cestuy que use shall be in Ward shall extend to the Statute of Praerogativa Regis for if he be in Ward to the King he shall have Prerogative in the Lands to have other Lands by reason thereof Gaudy Justice did rely very much upon the word Devisees viz. that they have an Interest and that the Sale was not good Suit Justice They are both Executors and Devisees of the Lands Devisees of the Lands and Executors to performe the Will Cook he who refused to sell cannot waive the Freehold which is in him by a refusall in pars as 7. H. 2. and 7. E. 4. but ought to waive it in a Court of Record therefore he hath an Interest remaining in him Clenche Justice What if he had devised the Lands to four and made one of them his Executors and willed that he should sell could not he sell All the Court agreed that he might Cook When a man deviseth that his Executors shall sell the Fee descends to the heir yet they may sell that which is in another but the same is not like to our Case It was adjourned Mich. 28 29. Eliz. in the King 's Bench. 93. A Judgement was given upon a Bond for four thousand pound And the Scire facias was sued for three thousand pound and he did not acknowledge satisfaction of the other thousand pound Haughton moved That the Scire facias should abate As if a man brings Debt upon a Bond of twenty pound and shews a Bond for forty pound and doth not acknowledge satisfaction for 20l l it is not good The Justices would advise of it And at another day it was moved againe Whether the Scire facias was good because it doth recite Quod cum nuper such a one recuperasset four thousand pound and doth not shew in what Action or at what day the Judgment was given or the Recovery had Piggot That is not material for such is the Form in an Audita querela or Redisseisin As to the other That he doth not acknowledge satisfaction as in the Case before cited by Haughton which Case is in 1. H. 5. That is not like to an Execution for an Execution is joint or severall at the will of him who sues it forth as in 19. R. 2. Execution 163. hee may have part of his Execution against one in his life time and if he dieth other part against his Heir or Executor Note the Execution was of the whole but because the Defendant had not so much he had but part against him who had no more and therefore of the residue he had Execution against the Heir Gawdy Justice I conceive that he cannot have an Execution unlesse he acknowledge Satisfaction There is no difference as to that betwixt the Action of Debt upon a Bond and a Scire facias and the intendment viz. that it shall be intended that he was paid because he sued but for Three thousand Pound will not help him Piggot as to that vouched a Case out of 4 5. Mary in Dyer which I cannot find Suit Justice said That if the Defendant in the Scire facias say nothing by such a day that Judgement should be entred for the Plaintiffe Quod executio fiet Mich. 28 29. Eliz. in the Kings Bench. 94 JUdgement was given against an Infant by default in a reall Action of Land And a Writ of Error was thereupon brought and it was argued That it is not error for in many cases an Infant shall be bound by a Judicious act as 3. E. 3. Infant 14. Where an Infant and a Feme Covert bring a Formedon and the woman was summoned and severed And it was pleaded That where the Writ doth suppose the woman was Sole she was Covert and Judgment was demanded of the Writ and that the Infant could not gainsay it but confessed it this Confession of the Plea which abated his Writ was taken And 3. H. 6. 10. Br. Saver Default 51. An Infant shall not save his default for he shall not wage his Law See there that the Default shall not be taken against him therefore that book seems rather against it then for it Vide 6. H. 8. Br. Saver Default 50. That Error lieth upon a Recovery by default against an Infant otherwise if it be upon an Action tried so is 2 Mar. Br. Judgment 147. It was said That a generall Act of Parliament shall bind an Infant if he be not excepted The Justices did seem to incline That if Judgement be given by default that it shall bind an Infant but there was no rule given in the Case Mich. 28 29. Eliz. in the Kings Bench. 95 A Clark of the King's Bench sued an Officer of the Common Pleas and he of the Common Pleas claimed his Priviledge and could not have it granted to him for it is a generall rule That where each of the persons is a person able to have Priviledge he who first claimes it viz. the Plaintiffe shall have it and not the Defendant As if an Atturney of the Common Pleas sueth one of the Clarks of the Kings Bench yet he of the Kings Bench shall not have Priviledge although the Kings Bench be a more high Court because the other is Plaintiffe and first claimeth it Mich. 28 29. Eliz. in the Kings Bench. 96 AM Action upon the Case upon a Promise was brought but the Case was so long that I could not take it But in that Case Tanfield who argued for the Defendant said That it is not lawfull for any man to meddle in the cause of another if he have not an Interest in the thing for otherwise it will be Maintenance But if a Custome be in question betwixt the Lord of the Manor and Copy-holder all the other Copy-holders of the Manor may expend their money in maintenance of the other and the Custome and the Master may expend the money of the servant in maintenance of the servant So he in the Remainder may maintain him who hath the particular Estate Maintenance is an odious thing in the Law for it doth encrease troubles and Suites He argued also How that Bonds Obligations and Specialties might be
assigned over how not 34. H. 6. 30. Br. Maintenance 8. If J. S. be indebted to me and I be indebted to J. D. I may assign that Debt to J. D. with the assent of J. S. otherwise not as I conceive And there also another difference is taken That Damages which are to be recovered for Trespass Battery c. cannot be assigned over because they are as yet uncertain and perhaps the Assignee may be a man of great power who might procure a Jury to give him the greator Damages If a Bond be for performance of Covenants contained in an Indenture of Lease if he assign the Lease he may assign the Bond also because they are concomitants and he hath an Interest in the Lease and therefore he may sue the Bond But if the Covenants be first broken and afterwards he assign over the Lease if the Assgnee sue the Bond it is directly Maintenance but if he assign over the Lease and afterwards the Covenants are broken if he sue there it is no Maintenance But if he assign over the Bond and reserve the Lease in his own hands and then the Covenants are broken and the other sue the Bond for the performance of Covenants it is Maintenance And to all that Cook agreed The second Point An Elegit is awarded to the Sheriffe and he extends the Lands and doth not returne it Whether it be a lawfull Execution to the party or not is the question It is a good Execution unlesse the words of the Writ be conditionall for then there must be a returne of the Writ as a Fieri facias must be returned otherwise the Execution is not well done for it is conditionall viz. Ita quod habeas pecuniam in curia c. So is it of a Capias ad satisfaciendum Ita quod habeas corpus hîc But an Elegit is not conditionall Yet Kemp the Secondary said That in the end of the Elegit is Et de eo quod inde feceris nobis in dicta cancellaria tali die ubicunque tunc fuerit sub Sigillo distinctè apertè constare facias c. And so is the forme of the Writ in Fitz. Nat. Br. 266. Tanfield That is true but it doth not make the Writ conditionall but that is the Entry of the Court and the Sheriffe and not the Entry of the Party and the Sheriff 11. H. 4. 59. by Hankford who was a man of great knowledge and lived in learned times If the Recognisee of a Statute Merchant sueth Execution of it although the Writ be not returned and the Recognisee hath Execution and afterwards the Recognisor purchaseth other Lands and afterwards the Recognisee comes and saies That the Writ is not returned and sues forth another Writ the Recognisor shall have an Audita querela in that Case and shall surmise in Fact how that execution was done by the first Writ and yet there is no Record that execution was done by the first Writ So 19. E. 3. Briefe 370. A Writ issued to have Execution in forty Towns and an Extent was made and delivered of Lands in forty Towns and the Return made mention but of Execution in eight Towns and therefore the Party would have had a new Writ and the other Party was received to averre against the Record of the Returne that the Extent was in forty Towns 12. E. 3. Scire facias 117. Upon an Elegit the Sheriffe returned extendi feci and did not say deliberavi and in truth he did deliver the Lands in extent and therefore he could not have a new Execution 20. Eliz. betwixt Colsill and Hastings Colsill had an extent upon the Lands of Hastings and the Sheriffe being a friend to Hastings did not deliver full Possession to Colsill but gave him Possession in one part in the name of all the others Hastings continued Possession of all the rest and being upon Election of new Sheriffs Colsill was not over hasty to put him out for he was in hope to have a more favourable Sheriffe and the first Writ was not returned and there being a new Sheriff he sued forth a new Writ to have Execution The Defendant said That he had before sued forth the like Writ and had Execution And Colsill said That the first Writ was not returned and yet the Opinion of the whole Court was That it was a good Execution and so it was ruled but the Case was overthrown afterwards upon another Point So the Earle of Leicester had a Statute extended upon the Land of Mr. Tanfields Mother and it was not returned and yet when he would have sued forth another Execution he could not have it allowed him by the rule of the Court because the first Execution was a good Execution although it were not returned 15 Eliz. It was the Case of the Countesse of Derby who married the Earle of Kent in an Habere facias seisinam in a Writ of Dower Execution was served but not returned and therefore she prayed a new Writ but could not obtain it because the first was well executed although it was not returned So also was the Lord Morleyes Case in the Kings Bench in 28. Eliz. the Writ was not returned and yet the Execution was well done And therefore he concluded That the Execution was good although the Writ was not returned Cook contrary An Elegit ought to be returned and it is void if it be not returned As to the Case before cited of 19. E. 3. which began 9. E. 3. 450. And all the other Cases put out of the old Books They are upon extents of Statutes and there is a great difference betwixt an Elegit and Extents upon Statutes as 15. H. 7. 14. It was agreed That where a man recovers Debt or Damages or hath a Recognisance forfeit unto him his Executors shall not have Execution without a Scire facias first sued contrary upon a Statute Staple or Merchant and the like if the Defendant dieth the Plaintiffe shall not have an Execution by Fieri facias against his Executors but he must first have a Scire facias So if the Court change as if the Record cometh into the Kings Bench by Error and Judgement be affirmed the Plaintiffe who recovered shall not have a Fieri facias against the Defendant but must first have a Scire facias But otherwise it is of a Statute like the Case of 14. H. 7. 15. Br Execution 59. The Case of 12. E. 3. doth not speak of Elegit but of Statutes and Extents Also the Elegit and the Extent differ in the Entrie for the Elegit hath a speciall and precise Entry as Elegit sibi executionem c. And a man shall not have a Capias after an Elegit as 15. H. 7. is And being a speciall Entry of Record it ought to be returned for otherwise it doth not appear that Execution is done and so there shall be great mischiefe because infinite Executions may issue forth There is not any Book in the Law directly
Condition that if the Rent be behinde the Feoffor might enter and retain quousque there the estate shall be determined pro tempore and afterwards revived again Windham There the Feoffor shall have the land as a distress and the Free-hold is not out of the Feoffee Fenner The Book proves the contrary for the Feoffor had an Action of Debt for the Rent Mich. 28 29. Eliz. in the Common Pleas. 121 IN a Formedon the Tenant pleaded a Fine with proclamations The Plaintiff replyed No such Record It was moved that the Record of the Fine which remained with the Chyrographer did warrant the Plea and the Record which did remain with the Custos Brevium did not warrant the Plea and both the Records were shewed in Court and to which the Court should hold was the question Shuttleworth To that which was shewed by the Custos Brevium and he cited the Case of Fish and Brocket where the Proclamations were reversed because that it appeared by the Record which was shewed by the Custos Brevium that the third proclamation was alledged to be made the seventh day of June which seventh day of June was the Sunday and yet hee said It appeared by the Record certified by the Chyrographer that it was well done and yet the Judgment reversed Rodes Justice There is no such matter in the same case And 26. El. by all the Justices and Barons of the Exchequer in such case the Record which remains with the Custos Brevium shall be amended and made according as it is in the Record of the Office of Chyrographer Windham agreed And afterwards the said President was shewed in which all the matter and order of proceedings was shewed and contained and all the names of the Justices who made the Order And by the command of the Justices it was appointed that the said President should be written out and should remain in perpetuam rei memoriam And the reason of the said Order is there given because the Note which remains with the Chyrographer is principale Recordum Mich. 28 29. Eliz. in the Common Pleas. 122. AN Infant was made Executor and Administration was committed unto another durante minore aetate of the Executor and that Administrator brought an Action of Debt for money due to the Testator and recovered and had the Defendant in Execution and now the Executour is come of full age Fenner moved that the Defendant might be discharged out of Execution because the Authority of the Administrator is now determined and he cannot acknowledge satisfaction nor make Acquittances c. Windham Justice Although the Authority of the Plaintiffe bee determined yet the Recovery and the Judgement do remaine in force But perhaps you may have an Audita querela But I conceive That such an Administrator cannot have an Action for he is rather as a Bayliff to the Infant Executor then an Administrator Rodes agreed with him and he said I have seen such a Case before this time viz. Where one was bound to such a one to pay a certaine sum of money to him his Heirs Executors or Assignes And the Obligee made an Infant his Executor and administration was committed during his minority and the Obligor paid the money to that Administrator And it was a doubt whether the same was sufficient and should excuse him or not And whether he ought not to have tendred the money to them both Fenner That is a stronger Case then our Case One who is Executor of his own wrong may pay Legacies and receive Debts but he cannot bring an Action Windham Doth it appear by the Record when the Infant was made Executor and that Administration was committed as before Fenner No truely Windham Then you may have an Audita querela upon it Fenner said So we will Note Hil. 33. Eliz. in the Exchequer Miller and Gores Case An Infant pleaded in a Scire facias upon an Assignement of Bonds to the Queen That Saint-Johns and Eley were Administrators during his minority And it was holden by the Court to be no plea. But he ruled to answer as Executor Mich. 28 29. Eliz. in the Common Pleas. 123 SUggestion was made that a Coroner had not sufficient Lands within the Hundred for which a Writ issued forth to choose another and one was chosen It was moved by Serjeant Snag If theâ—eby the first Coroner did cease to be Coroner presently untill he be discharged by Writ Rodes and Windham Justices He ceases presently for otherwise there should be two Officers of one Coronership which cannot be Also the Writ is Quod loco I. S. eligi facias c. unum Coronatorem and he cannot be in place of the first if the first do not cease to be Coroner So if any be made Commissioners and afterwards others are made Commissioners in the same cause the first Commission is determined Snagg said That in the Chancery they are of the same Opinion but Fitz. Nat. Brevium 163. N. is That hee ought to be discharged by Writ Mich. 28 29 Eliz in the Common Pleas. 124 IN an Action of Debt brought against Lessee for years for rent he pleaded That the Plaintiff had granted to him the reversion in Fee which was found against him Walmesley Serjeant moved Whether by that Plea he had forfeited his terme or not Rodes and Windham Justices He shall not forfeit his Term and Rodes cited 33. E. 3. Judgement 255. Where in a Writ of Waste the Tenant claimed Fee and it was found against him that he had but an Estate for life and yet it was no Forfeiture Fenner and Windham It is a strong Case for there the Land it selfe is in demand but not so in our Case Rodes The Tenant shall not forfeit his Estate in any Action by claiming of the Fee-Simple but in a Quid juris clamat Walmesley and Fennèr Where he claimes in Fee generally and it is found against him there perhaps hee shall forfeit his Estate but where he shewes a speciall conveyance which rests doubtfull in Law it is no reason that his Estate thereby should bee forfeited although it be found against him Rodes 6. R. 2. Quid juris clamat 20. The Tenant claimed by speciall conveyance and yet it was a forfeiture But in the principall Case at Bar he and Windham did agree cleerly That it was no forfeiture Mich. 28 29 Eliz. In the Common Pleas. 125 AN Action upon the Case was brought because that the Defendant had spoken these words viz. That the Plaintiffe hath said many a Masse to J. S. c. Anderson Chief Justice Primâ facie did seem to incline That no Action would lie for the words although that a Penalty is given by the Statute against such Masse-Mongers For he said That no Action lieth for saying That one hath transgressed against a Penall Law Periam Justice contrary Anderson If I say to one That he is a disobedient Subject no Action lieth for the words Windham Justice That is by reason of the generality Puckering
here is not mis-joyned for if the Counties could joyne the issue were good but because that the Counties cannot joyne it cannot be well tried But the issue it selfe is well enough Windham and Rodes were of the same opinion that it was not helped by the Statute but Periam doubted it Anderson said That if an issue triable in one Countie be tried in another and judgement given upon it it is errour And afterwards Lutrich the Atturney said That it was awarded that they should re-plead Nota quia mirum for 1. The Statute of 32. H. 8. Cap. 30. speaks of mis-joyning of processe and mis-joyning of issues and admit that this case is not within any of those clauses each of them being considered by it selfe yet I conceive it is contained within the substance and effect of them being considered together Also I conceive That it is within the meaning of both Statutes viz. 32. H. 8. Cap. 30. and 18. Eliz. Cap. 14. for I conceive the meaning of both the Statutes was to oust delayes circuits of actions and molestations and that the partie might have his judgement notwithstanding any defect if it were so that notwithstanding that defect sufficient title and cause did appeare to the Court. And here the Plaintiffe hath sufficient cause to recover If any of the points of the issue be found for him For if it bee found that the matter and substance of the oath be found true which might be tried well enough by those in London the Plaintiffe hath cause to recover Wherefore I conceive that the verdict in London is good enough and effectuall And note That Rodes said that hee was of Councell in suh a case in the Kings Bench betwixt Nevell and Dent. Mich. 28 29. Eliz. in the Common Pleas. 128 IN an Action of Trespasse the Defendant pleaded that at another time before the Trespasse he did recover against the same Plaintiffe in an Ejectione firme and demanded judgement And the opinion of the whole Court was That it is a good plea primâ faciâ— and that the possession is bound by it for otherwise the recovery should be in vaine and uneffectuall And Anderson chiefe justice said That if two claime one and the same Land by severall Leases and the one recovereth in an Ejectione firme against the other that if afterwards the other bring an Ejectione firme of the same Land the first recovery shall be a barre against him Rodes said That hee can shew authority that a recovery in an Ad terminum quem praeteriit shall bind the possession Mich. 28 29. Eliz. in the Common Pleas. 129 IN Trespasse the Defendant did justifie as Bailiffe unto another The Plaintiffe replied that he took his cattell of his own wrong without that that he was his Bailiffe Anderson chiefe Justice If one have cause to distreine my goods and a stranger of his own wrong without any warrant or authority given him by the other take my goods not as Bailiff or servant to the other And I bring an Action of trespasse against him can he excuse himself by saying that he did it as my Bailiffe or Servant Can he so father his mis-demeanours upon another He cannot for once he was a trespasser and his intent was manifest But if one distrein as Bailiffe although in truth he is not Bailiffe if after he in whose right he doth it doth assent to it he shall not be punished as a trespassour for that assent shall have relation unto the time of the distresse taken and so is the book of 7. H. 4. And all that was agreed by Periam Shuttleworth What if hee distraine generally not shewing his intent nor the cause wherefore he distrained c. ad hoc non fuit responsum Rodes came to Anderson and said unto him If I having cause to distrain come to the Land and distraine and another ask the cause why I do so if I assigne a cause not true or insufficient yet when an Action is brought against me I may avow or justifie and assigne any other cause Anderson That is another case but in the principall case clearly the taking is not good to which Rodes agreed Mich. 28 29. Eliz. in the Common Pleas. 130 HOODIE and WINSCOMB'S Case IN an Attaint brought by Hoodie against Winscombe c. One of the Grand Jury was challenged because he was a Captain and one of the Petie Jury was his Lieutenant And it was holden by the whole Court that that was no principall challenge Windham It hath been holden no principall challenge notwithstanding that one of the Jurours was Master of the Game and one of the Petit Jury was Keeper of his Park And in that case it was holden by all the Justices That if a man make a Lease rendring rent upon condition that if the rent be behind and no sufficient distresse upon the Land that then the Lessor may re-enter If the Rent be behind and there be a piece of lead or other thing hidden in the Land and no other thing there to be distrained the Lessor may re-enter for the distresse ought to be open and to be come by for if it should be otherwise said a sufficient distresse one might inclose money or other things within a wall and thereby the Lessor should be excluded of his re-entry Mich. 28 29. Eliz. in the Common Pleas. 131 IN a Quare Impedit the Plaintiffe counted That the Defendant being Parson of the Church in question was presented to another Benefice and inducted 15 Aprilis and that the other Church became void c. The Defendant said That he was qualified at such a day which was after 15 Aprilis without that that he was inducted 15 Aprilis And the Court was of opinion Anderson being absent that it was no good Traverse for he ought to have said generally without that that he was inducted before the day in which he is alledged to be qualified As if one declare in Trespasse done 1 Aprilis and the Defendant plead a Release 1. Feb. he ought to traverse without that that the Trespasse was done before the Release by Periam Justice Mich. 28 29. Eliz. in the Common Pleas. 132 HALES and HOME'S Case IN an Avowry for Damage feasance one pleaded a Lease made unto him by I. S. the other said that before the Lease â— S. did enfeoff him the other replied and maintained the said Lease absque hoc quod J. S. seiâ—itus feoffavit Gawdy The Traverse is not formall for the word seisitus is idle and ought to be left out for he cannot enfeoff if that he were not seised and it hath never been seen that the seisin in such Case hath been traversed but generally in Pleading the Traverse hath been absque hoc that Feoffavit without speaking of seisin which is superfluous And so was the opinion of the whole Court Mich. 28 29. Eliz. in the Common Pleas. 133 THE Queen granted Lands unto the Earle of Leicester by her Letters Patents the Patentee made a Lease of
common law yet it is otherwise at this day For when the Statute sayes That the Lessor shall recover damages for the Wast that proves sufficiently that the property of the trees is in him as the Statute of Merton Cap. 4. enacts That if the Lessor do approve part of the Wast leaving sufficient for the Commoners and they notwithstanding that bring an Assize they shall be barred in that Case and the Lord may have an Action of Trespass against them if they break the Hedges by force of that Statute as it hath been adjudged for the intent of the Statute was to settle the Inheritance of the Land approved without interruption of the Commoners And so in this case But Note that by the Statute of Marlebridge the Lessor shall recover damages for the houses c. which are wasted c. and yet a man cannot inferre thereupon that therefore the Lessee hath no Interest or property in them and such interest hath he in the trees notwithstanding the words of the Statute which is contrary to this meaning as it seems And therefore Quaere If there be any difference betwixt them and what shall be meant by this word Property But the damages are given by the Statute in respect of the property which the Lessor is to have in reversion after the Lease determined Anderson Chiefe Justice The Lessor hath no greater property in the trees then the Commoner hath in the soile Walmesley 2. H. 7. 14. and 10. H. 7. 2. The Lessor may give leave to the Lessee to cut the trees and the same shall be a good plea in an Action of Wast and the reason of both the books is because the property of them is in the Lessor and to this purpose the difference is taken in 2. H. 7. betwixt Gravell and trees 42. H. 3. If a Prior licence the Lessee to cut trees the same shall discharge him in Wast brought by the Successour But if the Lessee cutteth down the trees and then the Prior doth release unto him the same shall not barre the Successour and so is 21. H. 6. Also he cited Culpepers case 2 Eliz. and 44. E. 3. Statham and 40. Ass 22. to prove that the Lessor shall have the Wind-falls If a stranger cutteth down trees and the Lessee bringeth an Action of Trespasse he shall recover but according to his losse viz. for lopping and topping As to that which was said That if the Lessee cut down trees that the Lessor cannot take them away that is true for that there is a contract of the Law that if the Lessee doth cut them down that he shall have the trees and the Lessor shall have treble damages for them Also he said That the trees are no part of the thing demised but are as servants and shall be for reparations As if one hath a Piscarie in the land of another man the land adjoyning is as it were a servant viz. to drie the Nets So if one have conduit-pipes lying in the land of ather he may dig the land for to mend the pipes and yet he hath no Interest nor Free-hold To that which was said That by the excepting of the trees the land upon which they stood is excepted It is true as a servant to the trees for their nourishment but not otherwise for if the Lessor selleth the trees he afterwards shall not meddle with the land but it shall be wholly in the Lessee quia sublata causa tollitur effâ—ctus And if the Lessee tieth a horse upon the land where the trees stood the Lessor may distraine the same for his rent and avow as upon land within his distress and Fee and holden of him And he said that the lessor may grant the trees but so cannot the lessee and therefore he said That the property is in the lessor and not in the lessee Also if the lessor granteth them they passe without Atturnment But contrary if the lessor had but a Reversion in them Also if the lessor cutteth them down his Rent shall not be apportioned and therefore they are no part of the thing demised For 16. H. 7. and temps E. 1. Fitz. Waste in two or three places it is holden That if the Waste be done Sparsim in a Close or Grove the lessor shall recover the whole Then admit that the trees excepted are cut down sparsim if the Exception shall be good how shall the thing wasted be recovered and against whom quod nota Anderson Chief Justice did conceive that the Exception was void and that the Action was well brought and he said It was a Knavish and Foolish demise and if it should be good many mischiefs would follow which he would not remember Windham Justice was of the same opinion and he said The lessor might have excepted them and so take from the lessee his fire wood and Plough bote c. But the lessee could not grant his estate excepting the trees because he had but a speciall interest in them viz. for his fire-bote c. which shall go with the land Periam Justice agreed That as to such a speciall property none can have it but such a one who hath the land and therefore the exception of the Wood by the lessee was void But as to the other things perhaps if they were Apple trees or other Fruit-Trees the exception had been good Also although the trees are not let directly yet they are after a sort by a mean as annexed to the land and if the Action be brought against him who made the exception he cannot plead that they were let unto him and therefore he doubted of the exception Rodes Justice also said That he doubted of the Exception And he said That the Book of 44 E. 3. is That the lessee should have the Wind-falls and he did not much regard the Opinion of Statham But Anderson Chief Justice was of opinion that the lessor should have the Wind-falls Note the Case was not adjudged at this time Hill 29. Eliz. in the King's Bench 137 EXceptions were taken by Fuller to an Indictment upon the Statute of 1. Eliz. cap. 2. for the omitting of the Crossing of a Child in Baptising of him The Case was That a Minister out of his Cure at another Church viz. at Chelmesford in Essex did Baptize a Child without the Sign of the Crosse for which he was indicted The first Exception was That the Statute speaks of Ministers which do not use the administring of the Sacrament in such Cathedrall Churches or Parish Churches as he should use to administer the same that this was not the Parish Church in which he should use the same Suit Justice was of opinion That it was good notwithstanding that for otherwise the Statute might be greatly defrauded The words of the Statute are farther Or shall wilfully or obstinately standing in the same use any other Rule Ceremony Order Forme c. 2. He took another Exception upon those words For the omitting of the Crossing only is put and
Gardian pleaded that the plaintiff was within age And the plaintiff did maintain his Declaration that by the Custome of such a place An Insant of 18. yeares might bring an Action of Account against his Gardian in Socage and it was there holden to be no Departure I conceive that an Infant cannot have an Account against his Gardian before his full age But I conceive that they held that it was by Statute That an Infant should not have an Account against Gardian in Socage until he was of the age of 21. yeares Wray Chief Justice was of opinion that it was no Departure For he said it should be frivolous to shew the whole in his Declaration viz. That he was an Infant And that by Custome he might make a Covenant which should beinde him But quaere of his opinion for that many doubt of it Vide the Case 118. R. 2. Hill 29 Eliz. in the King's Bench 144 CONEY's Case AN Action of Trespass was brought against John Coney for digging of the plaintiffs Close and killing of 18. Coneys there The Defendant Pleaded as to all the Trespas but killing of two Coneys Not Guilty And as to them he said that the place where c. the Trespass is supposed is a Heath in which he hath common of pasture and that he found them eating of the Grass and that he killed them and carried them away as it was Lawfull for him to do c. Cook The Point is Whether a commoner having common of pasture may kill the Coneys which are upon the ground and he said hemight not And first he said it is to be considered what interest he who hath the Freehold may have in such things as are ferae Naturae Secondly What authority a commoner hath in the ground in which he hath common To the first he said that although such Beasts are ferae Naturae yet they are reduced to such propertie when they are in my ground by reason of my possession which I then have in them that I may have an action of Trespass against him who takes them as 42. E. 3. 24. If one have Deer in his Park another taketh them away he may have an action of Trespas forthe taking 12. H. 8. If a Forrester follow a Buck which is chased out of the Park or Forrest although that he who hunteth him killeth him in his own ground yet the Forrester or Keeper may enter into his ground retake the Deer for the propertie and possession which he hath in it by the pursuit 7. H. 6. 38. It is holden that if a wilde Beast go out of the Park then the owner of the ground hath lost the propertie in it Brook thereupon collects that he had a propertie in it whilest it was in his Park 18. E. 4. 14. It is doubted whether a man can have propertie in things which are ferae Naturae But 10. H. 7. 6. It is holden that an Account lieth for things ferae Naturae Vide 14. H. 8. 1. The Bishop of Londons Case and 22. H. 6. 59. as long as they are in his ground they are in his possession and he shall have an Action of Trespass for the taking of them and the Writ shall be damas suas by Newton And in the Register 102. It is Quare ducent's cuniculos suos precij c. cepit But it is said that he hath common there What then Yet he cannot meddle with the Wood Sand Grass but by taking of the same with the mouthes of his Cattel If he who hath the Freehold bring an action against the Commoner for entring into his Land If he plead Not guilty he cannot give in Evidence that he hath Common there 22 Ass A Commoner cannot put in Cattel to Agist So is 12. H. 8. And of late it was holden in this Court That where the Commoners did prescribe that the Lord had used to put but so many of his Cattel upon the Lands That it was a void prescription Godfrey Contrary That it is Lawfull for the Commoner to kill them And he agreed the Cases which were put by Cook And he said that the owner of the ground had not the very propertie but a kind of propertie in them 3. H. 6. and F. N. B. If the Writ of Trespass be Quare cuniculos suos c. The Writ shall abate And yet he hath a propertie in them or rather a possession of them I grant that against a stranger he might have this Action of Trespas but not against the Commoner for he hath a wrong done unto him by their being upon the Land and therefore he may kill them although he may not meddle with the Land because he hath not an Interest in it and yet he may meddle with the profit of it as 15. H. 7. A Commoner may distrain damage feasant 43. E. 3. Coneys dig the Ground and eate the Grass of the Commoner c. I grant that it is not lawfull for the Tenant for life for to kill the Coneys of him who hath a free Warren in the ground For if a man bring an Action of Trespas Quare Warranem suum intravit cuniculos suos cepit c. It is no Plea that it is his Free-hold L. 5. E. 4. In Trespass Quare clausum fregit cuniculos cepit The Defendant said that the plaintiff made a lease at will unto such a man of the Land and he as his Servant did kill the Coneys and it was holden no Plea and yet it is there said that by the grant of the Land the Coneys doth not pass but the reason as I conceive is because it tends to his damage and therefore that he may kill them And so in this Case 2. H. 7. and 4. E. 4. If I have Common of pasture in Land and the Tenant plougheth the Land I shall have my Action upon the Case in the Nature of a quod permittat 9. E. 4. If one hath Land adjoyning to my Land and levy a Nusans I may enter upon his Land and abate the Nusans So if a man take my goods and carrie them into his own Land I may enter thereupon and retake my goods So if a Tenant of the Freehold plough the Land and sow the same with Corn the Commoner may put in his Cattel and there whit eate the Corn growing upon the Land and may justifie the same because the wrong first begins by the Tenant So if a man do falsly imprison me and put me in his house I may break his house to get forth 21. H. 6. in Trespass All the Inhabitants of such a Town do prescribe to have Common in such a field every year after harvest And one froward fellow amongst the rest will not gather in his Corn within convenient time If the Townsmen put in their Cattel and they eate the Corn he hath no remedie for it And he asked what remedie the Commoner should have for the eating of the Grass which his Cattel is to have if he
Eliz. in the Common Pleas. 146 LONDON doth prescribe to have a Custom That after Verdict given in any of the Sheriffs Courts or such like Court there that the Maior may remove any such Suit before himself and as Chancellor secundùm bonam sanam conscientiam moderate it and it was moved whether it were a reasonable custom or not because that after tryal by ordinary course at Law he should thereby stay judgment Gaudy Justice It ought to be before judgment otherwise it cannot be for the Statute of 4. H. 4. is that judgment given in any Court shall not be reversed but by Error or Attaint Vide Rastal Tit. Judgment Mich. 28. Eliz. in the Common Pleas. Rot. 2619. 147 GREENE and HARRIS Case IN an Ejectione firme upon a special Verdict it was found that one John Brenne was seised of a Manor where there were Copyholders for life and by Indenture leased a copyhold called Harris Tenure parcel of the Land in question to Peter and John Blackborow for eight years to begin after the death of Brenne his Wife and by the same Indenture leased all the Manor to them as before The Copyholder did surrender and Brenne granted a copy to hold according to the custom of the Manor Brenne and his Wife died So as the lease of Blackborow was to begin Peter entred and granted all his Interest unto a stranger and died John entred into the whole as Survivor and made a lease thereof to the Plaintiff and the Copyholder entred and he brought the action Shuttleworth for the plaintiff The question is whether the plaintiff shall have Harris Tenure as in gross or as parcel of the Manor and he conceived that because it is named by it self that it shall pass as in gross for so their intent appeareth to be In 33. H. 8. Dyer 48. A Feoffment was made of a Manor to which a Villein was Regardant by these words viz. Dedi unam acram c. And further Dedi concessi Villanum meum and there it was holden that the Villein should pass as in gross and that they were several gifts although there was but one Deed. The same Law shall be of an Advowson appendant 14. and 15. El. Dyers Husband and Wife were joint-tenants in Fee of a Manor out of which the Queen had a Rent of twenty pound per annum and she by her Letters patents in Consideration of Money paid by the Husband did give grant release and remise unto the Husband and his heirs the said twenty pound Rent habendum percipiendum to him and his heirs The Husband did devise the Rent unto another and his heirs and dyed There it is debated whether the Wife should pay the Rent or not and it was holden that she should pay it for the deed having words of grant and release it shall be referred to the Election of the Husband and for his best avail how he will take it and there is no necessity that the Rent be extinguished in his possession for it is a maxime in Law that every grant shall be taken beneficially for the grantee so is it if it contain words of two intents he may take that which makes best for him 21. and 22. H. 6. A deed comprehending Dedi concessi was pleaded as a Feoffment In 5. E. 3. A Rent issuing out of Lands in Fee was granted to Tenant by the courtesie to have and to hold to him and his heirs It shall not be taken as extinct but the Rent shall go to his heires although he himself could not have it Then in our Case because it is more beneficial for the Termor he shall have it in gross And so he shall avoid the Estate of the Copyholder afterwards and here is an Election made by Peter so to have it by the grant of his Interest over Our Case is not like unto the Case of 48. E. 3. 14. Where a Cessavit was brought supposing that the House was holden of the Plaintiff by five Shillings and the Defendant pleaded that the Ancestor of the Plaintiff by his deed which he shewed forth gave the house to him and a shop which are holden by one intire service and demanded judgment c. And there it was holden that that deed did not prove but that the shop might be parcel of the house and not a shop in gross by it self And there Finchdon saith That if a man grant the Manor of F. to which an Advowson is appendant and the Advowson of the Church of F. so as it is named in gross yet it shall pass as appendant I yeild to that for there it is not more beneficial for him the one way or the other as it is in our Case It may be perhaps objected That the Plaintiff here shall not recover at all for the cause alleadged in Plo. Comm. 424. in Bracebridges Case because that the action is brought for a certain number of Acres as one hundred Acres and it is found that the Plaintiff hath right but to a moyty of them But it hath been ruled against that viz. that he shall recover Walmesley Sergeant contrary Notwithstanding that this Copy-hold be twice named yet it shall pass as parcel of the Manor and not as a thing in gross and there is but one Rent one Tenure and one reversion of both 45. E. 3. A Fine was levyed of a Manor unto which an Advowson was appendant wherein a third part was rendred back to one for life with divers Remainders over And so of the other two parts with the advowson of every third part as abovesaid and there it is debated who shall have the first avoidance And it is holden notwithstanding the Division as aforesaid and the naming of one before the other that they are all Tenants in common of it So as if they cannot agree to present that Lapse shall incurre to the Bishop and there no Prerogative is given to him who is first named nor any prejudice to the last named for being by one Deed it shall passe uno flatu 14. H. 8. 10. A Lease was made for a year Et sic de anno in annum c. And there it was debated whether it were a severall Lease for every year and it was ruled That an Action might be brought supposing that he held for one and twenty years if in truth by force of the same Demise the Lessee occupy the Land so long And if I by my Deed grant unto A. and B. the services of I. D. and by the same Deed the services of I. S. are also granted unto them they are Joyn-tenants of the Services or Seignories So if I lease a Manor reciting every parcell of the Land of the Manor for the whole consists in severall parcels In 33. H. 8. before remembred It is said That the Advowson shall be appendant if the whole Manor be granted c. But if it be admitted that there be severall Leases and that it passeth as a thing in grosse
plain Case for the Plaintiff the reason of Estrayes was because when there is none that can make title to the thing the Law gives it to the King if the Owner doth not claim it within a year and a day and also because the Cattel might not perish which are called Animalia vagantia c. But the Defendants plea is not good because the Defendant is to keep them until proof be made unto him and the Law doth not take notice of any proof but by twelve Men which the Defendant cannot take 7. H. 2. Barre 241. But if the Owner can make any reasonable proof as if he shew the Markes c. it is sufficient and the party suo periculo ought to deliver to him the Estray Secondly It is not sufficient to keep the Estray within the Manor but it ought to be kept in a place parcel of the Manor Thirdly It ought to be in Land in the possession of Sir John Spencer and not of any other and it doth not appear that that Land was in his possession Fourthly If they do go in the Land of Sir John Spencer Yet it is absurd to maintain that the Bailff might delegate his power to another to keep them until he be satisfied Walmesley Justice agreeeth for when it is spoken generally of proof it shall be taken for judicial proof which needeth not in his Case for these Vagrant Beasts and the party shall not be his own Judge but as it hath been remembred upon the Statute of Wrecke si docere poterit if he can instruct him and give him any reason wherefore the Estray doth appertain unto him he ought to deliver it suo periculo Also it is cleer that agreement ought to be made with the party for the victual and the quantity thereof shall be tryed in this Court if it come in question as the quantity of Amends in a Replevin Warbarton agreed and said That an Estray ought not to be wrought but the party must agree for his meate also the Lord cannot put the Owner to his Oath but if the party doth tell the Marks it is sufficient and he ought to deliver it at his peril and if he require more then belongs to him for the Meate it is at his peril for this Court shall jugde of that Daniel agreed and said That the Lord ought to proclaim them and in his Proclamation ought to shew of what kinde the Estray is whether sheep Oxe Horse c. and ought to tell his name who seised them so as the Owner might know whither he might resort for his Cattel and then it ought to be kept within the Lordship and Manor which may extend into several Counties Cook said that the Owner ought not to be pressed to his Oath Pr. Cases 217. Pasch 5. Jacobi in the Common Pleas. 196 LANGLEY and COLSON'S Case AN Action upon the Case was brought by Langley against Colson for these words viz. Richard Langley is a Bankrupt Rogue I may well say it for I have payed for it and it was adjudged for the Plaintiff for by all the Justices the first words are Actionable although the word Bankrupt be spoken adjectivè because they scandalize the Plaintiff in his Trade At the same time another Action was brought by another Man for speaking these words viz. Thou art a Bankruptly Knave and canst not be trusted in London for a Groat and it was adjudged that the words were not Actionable because the words were spoken adjectivè and adverbialitèr and are not so much as if he had called him Bankrupt Knave but Bankruptly viz. like a Bankrupt Pasch 5. Jacobi in the Common Pleas. 197 BALLET and BALLE'TS Case AWarrantia Charta was brought by Thomas Ballet the younger against Thomas Ballet the elder and the Writ was of two Messuages and the moytie of an Acre of Land unde Chartam habet c. and declared whereas himself and the Defendant and one Francis Ballet were seised in the new Buildings and of one piece of Land adjoyning c. in the Tenure c. containing from the East to the West twenty foot by assize and from the North part to the South thirty foot and the said Thomas the elder and Francis did release unto him all their Right in c. the said Thomas the elder for him and his heirs did Warrant tenementa praedict ' to the said Thomas the younger and his heirs The Defendant did demand Oyer of the deed and thereby it appeared that the said Thomas and Francis and one R. did release to him all their Right in c. And that Thomas the elder for him and his heirs did Warrant tenementa praedict ' to Thomas the younger his heirs and that Francis by another clause for him and his heirs did Warrant tenementa praedict ' to Thomas the younger and his heirs upon which it was Demurred in Law and after Argument by the Serjeants some matters were unanimously agreed by all the Justices First that upon such a release with Warranty contra omnes gentes a Writ of Warrantia Charta lyeth Secondly although that every one passeth his part onely viz. a third part yet every one of them doth Warrant the whole and because they may so do and the words are general without restraint by themselves the Law will not restrain them The words are that they do Warrant tenementa praedict ' which is all the premisses Thirdly For the reason aforesaid It needs not to be shewed how they hold in jointure Fourthly that the Writ is well brought against one onely because the Warranties are several But if they had been joint Warranties then it ought to have been brought against them both so against the Survivor the heir of one of them and if they had both dyed against both their heirs so as it differs from an Obligation personal which onely binds the Survivor Fifthly that the Writ was well brought for the things as they are in truth without naming of them according to the Deed. Sixthly that if there be new Buildings of which the Warranty is demanded which were not at the time of the Warranty made and after the Deed is shewed the Defendant shall not have any benefit by Demurring upon it But if he will be aided he ought for to shew the special matter and enter into the Warranty for so much as was at the time of the making of the Deed and not for the residue Vide Fitz. Warrantia Charta 31. Seventhly that a Warrantia Charta doth not lye of a piece of Land no more then a Praecipe quod reddat nor of a Selion of Land Mich. 5. Jacobi in the Kings Bench. 198 AN Action upon the Case was brought for these words viz. Thou hast spoken words that are treason and I will hang thee for them It was adjudged by the whole Court that the words were actionable Mich. 5. Jacobi in the Kings Bench. 199 A Man was bound to pay twenty pound to another when he should
to the extinguishment of the Bond by the release of all Actions But the Court conceived That the Arbibitrament did consist of two matters which were distinct and might be severed For although that the Arbitrament be void as to one matter yet it shall stand good and shall be a good Arbitrament for the other matter And Foster Justice said That in that case the Award to make the Release might be severed viz. That it should be good for all Actions except the Bond. Cook contrary And said That it is so entire that it cannot be divided But the Court conceived That the Arbitrament was good as to the Bond to be made by the Defendant although it were void as to the Arbitrator At another day Dodderidge said That the Plaintiffe had not alledged any Breach of the Arbitrament for he hath put it That the Defendant and the Arbitrator had not entred into the Bond and although they two joyntly had not entred into the Bond yet it might be that the Defendant alone had entred into the Bond and it needed not that the Arbitrator enter the Bond for as to him the Arbitrament was void And that Exception was allowed as a good Exception by the whole Court. For they said That the Plaintiffe ought for to shew and alledge a breach according to the Book of L. 5. E. 4. 108. And they said That although it be after verdict yet it is not remedied by the Statute Pasch 8. Jacobi in the Common Pleas. 231 FOLIAMBES Case IN a Writ of Dower brought by the Lady Foliambe It was agreed by the whole Court That if the Husband maketh a Lease for years rendring rent and dieth the wife shall recover her Dower and shall have present Execution of the Land and thereby she shall have the third part of the Reversion and of the Rent and execution shall not cease And all the Justices said That the Sheriffe should serve execution of the Land as if there were not any Lease for years for it may be that the Lease for years is void And although it be shewed in pleading that there is a Lease for years the wife cannot answer to it and it may be there is not any Lease and therefore the Execution shall be generall And he who claimes the Lease for years may re-enter into the Land notwithstanding the Recovery and the Execution of the Dower And if he be ousted he shall have his Action Nichols Serjeant who was of Councell against the Demandant said That he would agree that the Case in Perkins 67. was not Law But the Justices said That there is a difference betwixt the Case of Perkins and this Case for in the Case in Perkins the Husband had but an estate in Remainder so as no rent or attendancy was due so as the wife during that Term could not have any benefit Also in this case it was agreed by the Court That after judgement for part the Demandant might be Non-suit for the residue and yet have execution of that part for which he had judgment Pasch 8. Jacobi in the Common Pleas. 232 RAPLEY and CHAPLEIN's Case IT was ruled by the whole Court That if a Custome be alledged That the eldest daughter shall solely inherit that the eldest sister shall not inherit by force of that Custome So if the Custome be That the eldest daughter and the eldest sister shall inherit the eldest Aunt shall not inherit by that Custome And so if the Custome be that the youngest son shall inherit the youngest brother shall not inherit by the Custome And Foster Justice said That so it was adjudged in one Denton's Case Pasch 8. Jacobi in the Common Pleas. 233 SEAMAN's Case BArker Serjeant prayed the opinion of the Court in this Case Lessee for an hundred years made a Lease for forty years to Thomas Seaman if he should live so long and afterwards he leased the same to John his son Habendum after the Term of Thomas for 23. years to be accounted from the date of these presents The Question is If the Lease to John shall be said to begin presently or after the Term of Thomas And the Justices were cleer of opinion That the Lease to John shall not be accounted from the time of the date but from the end of the Term of Thomas because that when by the first words of the Limitation it is a good Lease to begin after the Term of Thomas it shall not be made void by any subsequent words And Cook Chiefe Justice said That this is no new reason for there is the same reason given in 2. E. 2. Grants And he put the Case in Dyer 9. Eliz. 261. and said That if the Limitation be not certain when the Term shall begin it shall be taken most beneficiall for the Lessee Pasch 8. Jacobi in the Common Pleas. 234 WARD and POOL's Case AN Action upon the Case was brought for speaking these words Thou mayest well be richer then I am for thou hast coined thirty Shillings in a day thou art a Coiner of money c. I will justifie it It was moved in arrest of Judgment That the words were not Actionable because he might have a good Authority to coine Money for men who work in the Mint are said to coine Money and are called Coiners of Money And so it was adjudged Quod Querens nihil capiat per Billam Pasch 8. Jacobi in the Common Pleas. 235 CHALK and PETER's Case CHalk brought a Replevin against Peter the Defendant did avow the taking as Bailiff of Sir Francis Barrington in sixteen Acres of wood in Hatfield Chase and shewed that an Arbitrament was made by the Lord Burghley late Lord Treasurer betwixt the Lord Rich and the Ancestors of Sir Francis by which it was awarded That the said Ancestors of the said Sir Francis Barrington and his Heirs should have the herbage of a certain number of Acres within the said Chase and also that he should have to him and his Heirs the Trees and Bushes of the said number of Acres within the said Chase and that he might fell and cut sixteen Acres every year of the said Acres and that he should enclose them according to the Laws and Statutes of the Realm and that Assurance was made by the Lord Rich accordingly and that the same was confirmed by a speciall Act of Parliament with a saving of the right and interest of all strangers and said That Sir Francis Barrington did inclose and cut down sixteen Acres and did enclose the same and there took the Defendants cattel Damage feasants upon which the Defendant did demurr in Law The Question in the case was If by the Statute of 22. E. 4. cap. 7. or the Statute of 35. H. 8. câ—p 17. which give Authority to make inclosures of Woods the Commoner shall be excluded Harris Serjeant I conceive That the Commoner shall be excluded by the Statute of 22. E. 4. cap. 7. which gives Authority to inclose and exclude all Beasts and
10. Jacobi Râ—t 2504. The Plaintiff counted that the Defendant Cepit avena of the Plaintiff apud Occould and doth not say In quodam loco c. upon which the Defendant did demurre in Law Hutton Serjeant argued for the Plaintiffe and said That notwithstanding the many presidents which had been shewed that yet the Declaration was well enough For he said That the presidents did not prove that it was necessary that it should be therein shewed in quodam loco vocat ' because the Defendant upon the matter is the Actor and therefore he best knows the place where he took the Cattel And in 9. E. 4. In a Homine replegiando the Towne onely was named and it is not there debated whether the same were good without mentioning in quodam loco 49. E. 3. 14. and 24. 9. H. 6. and 3. H. 6. There the traverse was of the taking at Dale sans ceo c. that the same was at Sale and in quodam loco is not expressed Cook Chief Justice said That there is no book which taketh this Exception and said That notwithstanding the Presidents cited that it was well enough For hee said There is a difference betwixt Presidents which are the Inventions of Clarks and of judiciall Presidents And the effect of the Suit in this case is not the shewing of the place but the having of the Cattel and it is on the part of the Defendant to shew where hee took the Cattel for perhaps the Plaintiffe doth not know where he took them and if he did know the place where they were taken yet perhaps hee hath not witnesses to prove the same and so by this means the Plaintiffe should be at a great mischiefe and delayed in his Suit Whereas a Replevin is festinum remedium to have his Cattel again which perhaps are his plough Cattel Warburton Justice said That there is a difference betwixt Actions brought in the King's Bench and in this Court For there in an Action of Trespasse the same may be abutted because it is no Originall Writ as it is here and hee said That there although the place bee not certainly abutted yet it may be good And he compared the Case at barre to the pleading of a Joynt-tenancy for he said In case it bee pleaded of the part of the Tenant himselfe hee is to shew how the Joynt-tenancy came because it lyeth in his knowledge but contrary if it were on the Plaintiffs part And in this Case he who best knowes when the taking was ought to shew it and that is the Avowant for it is no reason that the Plaintiffe for missing of the place not being the substance should be triced Cook If one in the night drive my Cattel into his Land and afterwards doth distrein them it is no lawfull distresse At another day Cook said That in the Book Nov. Narration ' it is said That the Town place and collour of the beasts ought to bee shewed by the Plaintiffe in the Replevin and he said If the Colour had been left out he would have given credit to the Book but because it is clear that the Colour is not needfull to be shewed therefore he did not approve of the Authority for the place And he cited 4. E. 3. 13. where the Defendant said it was in the Hamlet And 18. E. 3. 10. E. 3. and 49 E. 3. 14. where the Towns only are mentioned And it was said That in an Ejectione firme brought in the Kings's Bench the usuall course is to abutt the Land yet he said It might be omitted in Trespasse although the same be the usuall forme of that Court and it may be generall but if a place be alledged then the same is materiall and the Plaintiffe doth thereby give an advantage unto his Adversary At another day Haughton Serjeant argued for the Defendant That the expressing of the place where the taking was is materiall in the Declaration and he said That as the Register is the rule for Originall Writs from which forme a man may not vary so he said The Book of Entries and Presidents of the Courts were rules for pleadings from which there ought to be no variance and therefore he cited 33. H. 6. 14. Where in a Writ of Entry in the nature of an Assize the Demandant counted How that A. gave Lands unto J. S. his Cosen whose Heir he is in tail and shewed the descent And Exception was taken unto the Count because it was not the forme of the Pleading in that Court wherefore it was awarded That he should count that ipse fuit seisitus ut de libero tenemento which is not repugnant although that he had an Estate in tail because the same was the Ancient form used in the Court So he said in the principall Case the ancient used forme of the Court ought to bee observed which was to expresse in the Count the place in which the taking was and hee cited 35. H. 6. 40. Where Exception was taken by the Defendant because the Plaintiff in the Replevin did not alledge the place where the taking was and therefore per curiam the Plaintiffe took nothing by his Writ and he denyed the opinion of 9. E. 4. 41. and said That in reason the place ought to be shewed because if the Defendant would plead any matter to the Jurisdiction of the Court the place must be shewed and he said That those Records which were shewed on the other side were but of later times and the Point in question in none of those Cases came in debate judicially wherefore he concluded for the Defendant Hutton Serjeant argued again and said That the Formes of Originall Writs are certain from which a man is not to vary but he said That Counts and Declarations are to be according to the matter And in the principall Case he conceived That it was not necessary that the place where the taking was be shewed and hee cited 4. Ed. 3. 13. in a Replevin the Plaintiff declared of the taking of his Cattel in Holme without saying In quodam loco vocat ' c. and it was holden good because the Towne or Hamlet is sufficient certain and 21. H. 7. 22. a. in a Replevin the Plaintiffe declared of a taking at D. the Defendant said That he took them at S. and not at D. and avowed and no Exception was taken thereunto for want of expressing the place in quo c. And he said That in 9. Ed. 4. 41. and 25. it is said That in a Replevin the use is to declare in a certain place but if the place be omitted yet it is good enough and that Book is after 33. H. 6. 40. and hee said That the cause of the Judgement in 33. H. 6. might be because there were Blanks left for the place and the Plaintiff had begun to alledge the certain place for the Record is In quodam loco vocat ' without expressing the place but Blank which he could not affirme and therefore it
And per Curiam a Prohibition shal be awarded And Cook chief Justice said That there were three Causes in the Bill for which a Prohibition should be granted which he reduced to three Questions 1. If a Copy-holder payeth his rent and the Lord maketh a Feoffment of the Manor Whether the Copy-holder shall be compelled to attorn 2. If a man be seised of Freehold Land and Covenants to stand seised to an use Whether in such case an Attornment be needfull 3. If a Feoffment be made of a Manor by Deed Whether the Feoffee shall compell the Tenants to attorn in a Court of Equity And for all these Questions It was said That the Tenants shall not be compelled to attorn for upon a Bargain and Sale and a Covenant to stand seised there needs no attronement And Cook in this case said That in 21. E. 4. the Justices said That all Causes may be so contrived that there needed to be no Suit in Courts of Equity and it appears by our books That a Prohibition lies to a Court of Equity when the matter hath been once determined by Law And 13. E. 3. Tit. Prohibition and the Book called the Diversity of Courts which was written in the time of King Henry the eighth was vouched to that purpose And the Case was That a man did recover in a Quare Impediâ— by default and the Patron sued in a Court of Equity viz. in the Chancery and a Prohibition was awarded to the Court of Chancery Mich. 11 Jacobi in the Common Pleas. 298 Sir JOHN GAGE and SMITH's Case AN Action of Waste was brought and the Plaintiffe did declare that contrary to the Statute the Lessee had committed Waste and Destruction in uncovering of a Barn by which the timber thereof was become rotten and decayed and in the destroying of the stocks of Elmes Ashes Whitethorn and Blackthorn to his damage of three hundred pound And for title shewed That his Father was seised of the Land where c. in Fee and leased the same to the Defendant for one and twenty years and died and that the Land descended to him as his son and heir and shewed that the Waste was done in his time and that the Lease is now expired The Defendant pleaded the generall issue and it was found for the Plaintiffe and damages were assessed by the Jury to fifty pound And in this case it was agreed by the whole Court 1. That if six of the Jury are examined upon a Voyer dire if they have seen the place wasted that it is sufficient and the rest of the Jury need not be examined upon a Voyer dire but onely to the principall 2. It was agreed if the Jury be sworn that they know the place it is sufficient although they be not sworn that they saw it and although that the place wasted be shewed to the Jury by the Plaintiff's servants yet if it be by the commandment of the Sheriffe it is as sufficient as if the same had been shewed unto them by the Sheriff himselfe 4. It was resolved That the eradicating of Whitethorn is waste but not of the Blackthorn according to the Books in 46. E. 3. and 9. H. 6. but if the blackthorn grow in a hedg and the whole hedg be destroyed the same is Waste by Cook chief Justice It was holden also so that it is not Wast to cut Quick-set hedges but it shall be accounted rather good husbandry because they will grow the better 5. It was agreed That if a man hath under-woods of Hasell Willowes Thornes if he useth to cut them and sell them every ten years If the Lessee fell them the same is no wast but if he dig them up by the roots or suffereth the Germinds to be bitten with cattel after they are felled so as they will not grow again the same is a destruction of the Inheritance and an Action of wast will lie for it But if he mow the Stocks with a wood-sythe as he did in the principall Case the same is a malicious Wast and continuall mowing and biting is destruction 6. It was said That in an Action of Wast a man shall not have costs of Suit because the Law doth give the party treble damages And when the generall issue Nul Wast is pleaded and the Plaintiff counted to his damages 100l. the Court doubted whether they could mitigate the damage But 7. It was agreed That in the principal Case although the issue were found for the Plaintiff that he could not have judgment because he declared of Wast done in 8. several closes to his damage of 300l. generally and did not sever the damages And the Jury found That in some of the said Closes there was no Wast committed Wherefore the Court said he could not have judgement through his own default But afterwards at another day Hobart then chief Justice and Warburton Justice said That the verdict was sufficient and good enough and so was also the declaration and that the Plaintiffe might have judgment thereupon But yet the same was adjourned by the Court untill the next Term. Mich. 11. Jacobi in the Common Pleas. 299 CLARK's Case NOte It was said by Cook chief Justice and agreed by the whole Court and 41. and 43. E. 3. c That if a man deliver money unto I. S. to my use That I may have an Action of Debt or account against him for the same at my election And it was agreed also That an Action of Trover lieth for money although it be not in bags but not an Action of Detinue Mich. 11. Jacobi in the Common Pleas. 300 IRELAND and BARKER's Case IN an Action of Wast brought the Writ was That the Abbot and Covent had made a Lease for years c. And it was holden by the Court that it was good although it had been better if the Writ had been That the Abbot with the assent of the Covent made the Lease for that is the usuall form but in substance the Writ is good because the Covent being dead Sons in Law by no intendment can be said to make a Lease But the Dean and Chapter ought of necessity to joyne in making of a Lease because they are all persons able and if the Dean make a Lease without the Chapter the same is not good per curiam if it be of the Chapter Lands And in Adams and Wâ—oâ—â—stey's Case Harris Serjeant observed That the Lease is said to be made by the Abbot and Covent and it is not pleaded to be made by the Abbot with the assent of the Covent Mich. 11 Iacobi In the Common Pleas. 301 The Dean and Canons of Winsor and WEBB's Case IN this Case it was holden by the Court That if a man give Lands unto Dean and Canons and to their Successors and they be dissolved or unto any other Corporations that the Donor shall have back the Lands again for the same is a condition in Law annexed to the Gift and in such Case no Writ of
Escheat lieth yet the Land is in him in the nature of an Escheat And the principall Case was That a prescription was shewed of a discharge of Tithes in an Abbot Prior and Covent and that the Corporation was afterwards dissolved because all the Monks died and the Abbot also And it was holden by the Court That he who is now Owner of it and holdeth the Lands shall pay Tithes for a Lay man cannot prescribe in Non decimando and the Prescription continues no longer then the Lands continued in the Abbot and Covents hands And in this Case it was said by Cook That there are only three manner of Escheats 1. Abjurat Regnum 2. Quia suspensus per collum 3. Quia utlagatus But because they sued for the treble value in the Spiritual Court a Prohibition was awarded but the Parson may sue for the double value in the Spirituall Court and no Prohibition will lie for that is given by the expresse words of the Statute of 2. E. 6. and so it was adjudged in Manwoods Case in the Exchequer And the word Forfeiture in the Statute doth not give the treble value to the King but to the Parson himself Also it was holden by Cook and Warburton Justices That if a Rent be granted to one and his Successors and the Corporation be dissolved that the Rent shall revert to the Donor and there is no difference as to the matter betwixt things which lie in Prender and things which lie in render Nichols Justice contrary That the Rent extinguishes in the Land it selâ— And in the principall Case because they sued in the Spirituall Coâ—â— for the treble value a Prohibition was granted 〈…〉 Mich. 11. Jacobi in the Common Pleas. 302 PORTER's Case IN a Writ of Dower brought the Defendant was essoygned and had the view and afterwards pleads tout temps prist to render Dower and they were at issue which was found for the Plaintiff and Judgment was given for the Plaintiff It was holden by the whole Court That before Execution be awarded the Plaintiff in Dower may aver That her husband was seised to have Damages and therewith agrees the books 14. H. 8. 25. 22. H. 6. 44. b. Mich. 11. Jacobi In the Common Pleas. 303 Sir DANIEL NORTON and SYMM's Case AN Action of Debt was brought upon a Bond which was conditioned to performe Covenants in an Indenture and it was shewed there were divers Covenants in the Deed some of which were Covenants against the Law and some not and for breach the Plaintiff alledged That it was covenanted by the Indenture that Chamberlain for whom the Defendant was a Surety being under Sheriff to the Plaintiffe should save the Plaintiffe harmelesse and should discharge all manner of escapes and should also save him harmeless from all Fines and Amercements to which he should be liable by reason of any escape And shewed â—ow that one was arrested in execution by the said Chamberlain evasit And another Covenant was That hee should not serve any Execution above Twenty Pounds without Warrant from the Plaintiffe and also that he should not return any Juries without his Privity Hutton Serjeant argued for the Defendant and said That this Indenture of Covenants was against the Law for it is as much as if he had said That he should not he under Sheriff And by the Statute of 27. El. under Sheriffs are â—â—orn to return Juries and process of Courts and therefore these Covenants are both against the common Law and Statute Law also the Covenants are in delay of Justice for Non constat when the Sheriffe will give him warrant to return Juries or to execute the Kings Writs Also the Covenant is too generall viz. That he shall save him harmelesse from all Escapes and of any other matters whatsoever and there the Bond taken to performe such Covenants is void Vide 7. H. 7. and 8. â— 4. 13. where a Bond taken to save â—â—man harmelesse against all men is voâ—id but contrary if it be to save â—â—rmelesse against one particular person so here to save harmeless from all matters whatsoever is void but if it had been only from Escapes then it had been good Vide 2. H. 4. 9. If a man be bound to save another harmlesse against all the world the Bond is void Vide 4. H. 4. 2. Will. Rices case And he compared these Covenants against the Law to Perpetuities which kill themselves Then he argued That although some of the Covenants were lawfull yet the Bond was void in all and that he said is the better opinion of the book in 14. H. 8. 25. And if A. be bounden to enfeoff J. S. of the Manor of D. and to disease J. N. of another Manor the Bond is void for the whole 3. He said That there was not a sufficient breach laid by the plaintiffe for it is only layed That such a one in Execution evasit and it is not said That the under Sheriff did suffer him to escape 4. It is not layed That the plaintiff did request the under Sheriffe to pay the Money upon the escape but he went and paid the Money voluntarily of himself and request and notice are needfull 46. E. 3. 27. 22. E. 4. 14. 40. E. 3. 20 Non damnificatus is a good plea generally and the other side ought to come and shew specially how he is damnified 5. It is not layed That he gave him warning to arrest the party in Execution for Fifty pounds and therefore as to that he was not under Sheriff because as Sheriff without warning by his former Covenants hee was not to serve any Executions but such as were under Twenty pounds and therefore he ought to have layed it That he gave him a Warrant to arrest the party upon this Execution otherwise there is no breach Harris Serjeant contrary and he said The Covenants are sufficient in part and ought to be performed and so the Bond good And as Kâ—ble said in 13. H. 7. 23. so he said That there are three conditions which are not allowable but the Case at Bar is not within the compasse of any of them and the words here Discharge and save harmelesse shall be meant from all escapes suffered by the under Sheriff himself and the words from all Amercements whatsoever shall be intended by reason of his Office And he said That when an Indenture of Covenants is good in part and void in part those Covenants which are good shall stand and ought to be performed and the book of 14. H. 8 by four Justices is that all legal and lawful Covenants ought to be performed and he vouched Lee and Golshills Case 39. Eliz. which Vide c. 5. part 82. to that purpose and he said that this Case is not like the case in 9. Eliz. Dyer of Raiâ—ure Also he said that the Defendant hath pleaded That he hath performed all the Covenants and if these Covenants be void and no Covenants then the Defendants plea is not good Also
And it was further said by the Court That if there were but thirty Tythe-sheafs in all that the Owner should not have them for then the Custom should be unreasonable And Day was given to the other side to shew Cause why the Prohibition should not be awarded Mich. 11. Jacobi in the Common-Pleas 325. GANDEN and SYMMON's Case NOte That where a Juror is not challenged by one party who had sufficient cause of challenge and afterwards is challenged by the other side and afterwards the party doth release his challenge in that case the first party cannot challenge the same Juror again because he did foreslow his time of challenge and he had admitted the party for to be indifferent at the first Mich. 11. Jacobi in the Common-Pleas 326. The Bishop of CHICHESTER and STRODWICK's Case IN an Action of Trespass for taking away of Timber and the Boughs of Trees felled The Defendant as to the Timber pleaded Not guilty And as to the Boughs he made a special Justification That there is a Custom within the Mannor of Ashenhurst in the County of Sussex That when the Lord fels or sels Timber-trees that the Lord is to have only the Timber and that the poor Tenants in Coscagio parte Manerii time out of mind have used to have the Branches of the Trees for necessary Estovers to be burnt in necessario focali in terris tenementis And the Opinion of the Court was That the Custom was not well expressed to have Estovers to burn in terris tenementis for that Estovers cannot be appertaining to Lands but to Houses only And therefore whereas the Defendant in the Case did entitle himself to a house and lands and gave in Evidence that the Custom did extend to Lands it was holden that the Evidence did not maintain the Issue And the Custom was alleadged to be That the Lord should have Quicquid valeret ad maremium and that the Freeholders should have ramillos Which as Hobart Chief Justice said is to be meant all the Arms and Boughs for whatsoever is not maremium is ramillum 2. It was holden in this Case That the Non-use or Negligence in not taking of the Boughs did not extinguish nor take away the Custom as it hath been oftentimes resolved in the like case And note that in this Case to confirm the said Custom the Book-case was cited which is in 14. E. 3. Fitz. t' Bar. 277. and the same was given in and avowed for good Evidence where the Case was That the Bishop of C. which shall be intended the Bishop of Chichester brought an Action of Trespass for felling of Trees and carrying them away where the Defendant pleaded That he held a Messuage and a Verge of Land of the Bishop and that all the Tenants of the Bishop within the Manor of A. ought to have all the Windfals of Trees and all the Boughs and Branches c. Which Case as Harris Serjeant conceived was the Case of the very Mannor now in question and the Tenant there as in this Case made a special Justification and there it was holden that it was good and adjudged for the Defendant Also in that Case it was adjudged That the Lord should have Maremium and that the Tenants should have Residuum which shall be intended the Boughs and Branches And the Custom in the Case was adjudged good But because the Defendant alleadged the Custom to be to have the same as Estovers to be burned in terris and gave Evidence only to the Messuage it was found against the Defendant for that the Evidence did not maintain the Issue Mich. 11. Jacobi in the Common-Pleas 327. VAUGHAN's Case IN a Formedon in the Discender the Tenant had been essoined upon the Summons and also upon the View And after was pleaded Ne dona pas the general issue and thereupon issue was joyned And if he might be essoined again after issue joyned was the Question And the Court was of opinion That in a real action the Tenant may be essioned after Issue joyned but not in a personal action by the Statute of Marlebridge And Hobart Chief Justice said That the Statute of Marlebridge gave not any Essoin but only did restrain Essoins and therefore in real Actions the same is left as it was at the Common Law and by the Common Law the Tenant might be Essoined after Issue joyned And note per totam Curiam That if an Essoin be not taken the first day it shall never after be taken Mich. 11. Iacobi in the Common-Pleas 328. CLAY and BARNETS Case IN an Ejectione Firme the Case was this Sir Godfrey Foliamb had issue James his son who had issue Francis And Sir Godfrey Foliamb was seized in Fee of divers Lands as well by purchase as by discent in sundry Towns viz. Chesterfield Brampton c. in the Tenures of A. B. C. c. and dyed James Foliamb his son 7 E. 6. made a Conveyance of divers Lands to Francis Foliamb being his younger son in haec verba viz. Omnia mea Mesuagia terras tentam in Chesterfield Brampton c. modo in tenuri of the said A. B. C. quae pater meus Galfrid Foliamb perquesivit from divers men whom he named in certain And also convey a House called the Hart to the same Francis which came to him by discent by the same Conveyance which was in the occupation of one Celie and not in the Tenures of the said A. B. C. And the great Question upon the whole Conveyance was Whether all the Lands which he had by Discent in the said Towns and in the Occupations and Tenures of the said A. B. C. did pass or only the purchased Lands And it was resolved by the whole Court That the Conveyance did pass only the Lands which he had by purchase except only the said House which was precisely named and conveyed and did not pass the Lands which he had by Discent For if all the Lands which he had by Discent should pass by the general words then the special words which passed the House which he had by Discent should be idle and frivolous and that was one reason ex visceribus causae that only the purchased Lands did pass 2. It was said by Justice Warburton That if a man giveth all his Lands in D. in the Tenures of A. B. and he hath Lands in D. but not in their Tenures that in that case all his Lands in D. passeth So if a man give all his Lands in D. which he had by Discent from his son there all his Lands whatsoever shall pass Hobart acc ' and said That if a man gives all his Lands in the County of Kent if he have Lands within the County they do pass And he said that in a Conveyance every restriction hath his proper operation and in the Conveyance in the principal case there were three restrictions 1. All his â—ands in such Towns viz. Chesterfield Brampton c. 2. All his lands in the
resolved That although the Award was void as to that part yet for the residue it stood good and therefore for not performance of the same the Bond is forfeited As if J. be bounden to perform the Award of J. S. for White-Acre and that he award that I enfeoffe another of White-Acre and that he give unto me Ten pounds If I tender unto him a Feoffment of White-Acre and he refuseth it and will not give to me the 10l. I shall have an Action of Debt upon the Bond as it is adjudged in Osborn's Case C. 10. par 131. The same Law If J. S. and J. N. submit themselves unto the Award of J. D. who awardeth that J. S. shall surcease all suits and procure J. N. to be bounden with a stranger and make a Feoffment of his Mannor of D. which is a thing out of the Submission In that case there are three things enforcing the Arbitrement the first is only good the second is against the Law and the other is out of the Submission yet being in part good it ought to be performed in that otherwise the Bond is forfeited But this Case was put If J. be bounden to stand to the Award of A. ita quod it be made de super premissis and afterwards A. maketh an Award but of part of the premises there it is void in all because it is not according to the authority given unto him And afterwards in the principal Case Judgment was given for the Plaintiffe Pasch 12 Jacobi in the Kings Bench. 353. DOCKWARY and BEAL's Case IN an Essex Jury The opinion of the Court was That Wood will passe by the name of Land if there be no other Land whereby the words may be otherwise supplied Also it was agreed That the Tenant for Years might fell Underwoods of 25 years growth if the same hath used to be felled Pasch 12 Jacobi in the Kings Bench. 354. WROTESIEY and CANDISH's Case ELizabeth Wrotesley did recover Dower 6 Jacobi in the Common-Pleas in which Writ she demanded tertiam partem Manerii de D. eum pertinaciis Nec non tertiam partem quarundam terrarum jacent in Hovelan And upon Ne unque seise que Dower the parties were at issue and the Venire facias awarded de Hovelan And it was found for the Plaintiffe and Judgment was given for her And Candish the Defendant brought a Writ of Error in the Kings Bench and assigned for Error That it was a Mis-trial For that the Venire facias ought to have been de Manerio and not of Hovelan 6 H. 7. 3. 11 H. 7. 20. C. 6 par â— 19 H. 6. 19. 19 E. 4. 17. Yet the Councel of the Defendant moved That the Trial was good for the Land in Hovelan And it being found that the Husband was seised of the Mannor of D. that now the Trial was good for the whole Pasch 12 Jacobi in the Kings Bench. 355. COWLEY and LEGAT's Case COwley brought an Audita quaerela against Legat and the Case was this Cowley and Bates bound themselves in a Bond of 200l. jointly and severally to Legat And afterwards 6 Jacobi Legat brought an action of Debt upon the Bond against Bates and had Judgment and 7 Jacobi the said Legat brought Debt against Cowley in the Kings Bench upon the same Bond and obtained Judgment and afterwards he sued forth Execution upon the first Judgment by Elegit and had the Land of Bates who was Tenant thereof only for another mans life in Execution and afterwards he took forth a Capias ad satisfaciendum against Cowley upon the Judgment in the Kings Bench And thereupon Cowley brought an Audita quaerela containing in it all the whole matter And the opinion of all the Justices was That the Audita quaerela was well brought And first it was holden That when a man may plead the matter in bar he shall not have an Audita quaerela upon the matter because it was his lachess that he did not take advantage of it by way of plea. But secondly in this Case it was said That he could not have pleaded the special matter and therefore as to that point the Audita quaerela was well brought But the onely doubt in the Case was Whether Legat the Defendant might have a new Execution by Capias ad satisfaciendum after that he had Execution against one of the Obligers by Elegit and the doubt was because the Judgments upon which he grounded his Executions were given at several times and in several Courts and against several persons For it was agreed by the whole Court That a Capias doth not lie after Execution sued by Elegit against the same person but after a Capias an Elegit is grantable And the reason of the difference is because upon the prayer to have an Elegit it is entred in the Roll Elegit sibi executionem per medietatem terrae so as he is estopped by the Record to have another Execution but upon a Capias nothing at all is entred upon Record Yet Cook Chief Justice said That it is the common practice of a good Attorney to deferre the entry in the Roll of Execution upon an Elegit until the Sheriffe hath retorned it served And in such case it was agreed That if the Sheriffe retorn upon the Elegit That the party hath not Lands c. then the party may take forth a Capias Also the Elegit is in it self a satisfactory Execution and by the Common-Law a man shall have but one Execution with satisfaction And therefore at the Common-Law if after Execution the Land had been evicted the party had no remedy And Cook said If part of the Land be evicted the party shall not have remedy upon the Statute of 32 H. 8. cap. 5. to which Crook Justice agreed And the Court held it to be no difference although that the Judgments were given in several Courts against persons several and at several times and where it is but one Judgment against one person Vide the Case 43 E. 3. 27. where in Debt the Defendant said That the Plaintiffe had another Action for the same Debt depending in the Exchequer by Bill Judgment c. And by Mowbray and Finchden cleerly it is a good plea although it be in another Court And Dodderidge Justice said That in the first case the said Legat might sue the said Cowley and Bates severally and after Judgment he might choose his Execution against which of them he pleased But he could not have Execution by Elegit against them both And therefore he said That although there be an Eviction of the Land or that the Judgment be reversed by Error after that he hath Execution against one by Elegit yet Legat could not have Execution against the other for by the first Execution he had determined his Election and he could not sue the other which Cook agreed Mich. 12 Iacobi in the Kings Bench. 356. FOX and MEDCALF's Case IN a Writ of Accompt brought in
and where not For in the principal Case notwithstanding that the Jury find the Assumpsit yet the same doth not reach to the Request and without that the Assumpsit is void Dodderidge Justice cited 5 E. 4. That if the Declaration be vitious in a point material and issue is taken upon another point there the finding of it by the Jury doth not make the Declaration to be good And so in the principal Case Judgment was given for the Defendant In this Case it was agreed That if a man bring an Action of Trover and Conversion and not alleadge a place where the Conversion was Although the issue for the Trover be found for the Plaintiff yet he shall not have Judgment Hill 16 Iacobi in the Kings Bench. 388. GODFREY and DIXON'S Case COrnelius Godfrey brought an Action of Debt upon a Lease against Dixon and declared That Cornelius Godfrey his Father being an Alien had issue Daniel Godfrey born in Flanders the Father is made a Denizen and hath issue the Plaintiffe his second son born in England The Father dieth Daniel is Naturalized by Act of Parliament and made the Lease to Dixon for years rendring Rent and dyed without issue And the Plaintiffe his brother brought an Action of Debt for the Arrearages as heire and upon that it was demurred in Law And George Crook in his Argument said That Inheritance is by the Common-Law or by Act of Parliament And that three persons cannot have heirs in travnsersali linea but in recta linea viz. 1. A Bastard 2. A person Attainted 3. An Alien see for that 39 E. 39. Plow Dom. 445. 17. E. 4. 1. 22 H. 6. 38. 3 E. 1. sitz t' Cousinage 5. Dr. Student And he said That Denization by the Kings Charter doth not make the heir inheritable 36 H. 8. Br. to Denizen and C. 7. part 77. And he said That he who inheriteth ought to be 1. Next of blood 2. Of the whole blood and 3. He ought to derive his Pedigree and discent from the stock and root Bracton lib. 2. fol. 51. And he said That if a man doth covenant to stand seised to the use of his brother being an Alien that the same is not good and the use will not rise But that was denyed by the Court. And he said That an Alien should not have an Appeal of the death of his brother And he took a difference betwixt an Alien and a person Attainted and said that the one was of corrupt blood the other of no blood and cited 9 E. 4. 7. 36 Eliz. Hobby's Case Dodderidge upon the argument of this Case said That if a man claim as Cousin and Heir he must shew how he is Cousin and Heir but not when he claims as Brother or Son and Heir The Case was adjourned Hill 16 Iacobi in the Kings Bench 389 GRAY'S Case AN Action of Debt was brought upon a Bond with Condition to stand to an Arbitrement and also that he should not begin proceed in or prosecute any suit against the Obliger before such a Feast The Obliger did continue a Suit formerly brought George Crook said That the Bond was forfeited because it is the act of the Obliger to continue or discontinue a suit and profit accrues to him therefore it shall be adjudged his act But it is otherwise of an Essoin because that that may be cast by a stranger And he cited the books of 36 H. 6. 2. 5 H. 7. 22 14 E. 41. 18 H. 6. 9. And he held That it was a good Award to continue or discontinue a suit because it is in the power of the party to do it or not Hill 16 Jacobi in the Kings Bench. 390 SLYE'S Case IN a Scire facias to have Execution the Sheriffe retorned That by vertue of a Writ of Fieri facias he took the goods in Execution ad valentiam of 11l. which remained in his custody for want of buyers and that they were rescued out of his possession Mountagu Chief Justice and Dodderidge Justice The Plaintiffe shall have an Execution against the Sheriff relyed upon the book of 9 E. 4. 50. 16 E. 4. Faulconbridge Case 7 Eliz. Dyer 241. 5 E. 3. t' Execution C. 5. par Pettifers Case And Dodderidge said That by this Retorn he had concluded himself and was liable to the value of 11l. And he took this difference where the Sheriffe by vertue of the Writ Venditioni exponas sels the thing under the value there he shall be discharged but otherwise where he sels the goods ex officio Crook and Haughton Justices The Plaintiffe shall not have a Scire facias against the Sheriffe but where he hath the money in his purse And they said That the Plaintiffe must have a Distringas directed to the new Sheriffe or a Venditioni exponas Note the Court was divided in opinion But the Law seems to be with Crook and Haughton and the books before cited prove their difference and warrant it Hill 16 Iacobi in the Kings Bench. 391 Sir JOHN BRET and CUMBERLAND'S Case IN an Action of Covenant brought by Sir John Bret against Cumberland Executor of I. C. the Case was this Q. Eliz. by her Letters Patents did demise a Mill unto the Testator for 30 years reserving Rent and these words were in the Letters-Patents viz. That the Lessee his Executors and Assignes should repair the Mill during the Term. The Lessee assigned over all his interest unto Fish who attorned Tenant and paid the Rent to the Queen and afterwards the Queen granted the Reversion to Sir John Bret and Margaret his wife The Assignee is accepted Tenant the Mill came to decay for want of Reparations and Sir John Bret brought an Action of Covenant against the Executor of the first Lessee And it was adjudged for the Plaintiffe And Dodderidge Justice gave the reasons of the Judgment 1. Because that by the Statute of 32 H. 8. all the benefit which the Queen had was transferred to the Grantee of the Reversion 2. It might be parcel of the Consideration to have the Covenant against the Lessee For a Mill is a thing which without continual Reparations will be ruinous and perish and decay And he said That the Assignee had his election to bring his Action against the Lessee or against the Assignee because it was a Covenant which did run with the Land Mountagu Chief Justice said That the reason of the three Cases put in Walkers Case is in respect of the Interest And took a difference where there is privity of Contract and where not It was adjourned Hill 16 Jacobi in the Kings Bench. 392. WEBB and TUCK'S Case IN an Action of False Imprisonment it was agreed That a Fine may be assessed for Vert and Venison And it was said in this Case by the Justices That a Regarder is an Officer of whom the Law takes knowledge and so are Justices in Eyre 2. It was agreed That such things of which the Law takes notice
ought to be pleaded 3. That if a man in his pleading is to set forth the jurisdiction of the Court of Justices in Eyre if he say Curia tent c. he need not set forth all the Formalities of it And Mountagu Chief Justice in this Case said That if a man do justifie for divers causes and some of the causes are not good the same doth not make the whole Justification to be void but it is void for that only and good for the residue Hill 16 Iacobi in the Kings Bench. 393 CULLIFORDS Case CVlliford and his Wife brought an Action upon the Case against Knight for words And declared upon these words viz. Thou art Luscombs Hackney a pockey Whore and a theevish Whore and I will prove thee to be so which was found for the Plaintiffe And in arrest of Judgment it was moved that the words were not Actionable which was agreed by the whole Court quia verba accipienda sunt in mitiori sensâ—â—â— And Judgment was staied accordingly Hill 16. Jacobi in the Kings Bench. 371. IN an Action upon the Case for Words The Plaintiffe did relate that he was brought up in the Studie of a Mathematition and a Measurer of Land And that he was a Surveyor and that the Defendant spake these words of him viz. Thou art a Cosener and a cheating Knave and that I can prove And the opinion of the Court was That the words were actionable And Montague Chief Justice said that it was ruled accordingly in 36 Eliz. Rot. 249. betwixt Kirby and Walter And a Surveyor is an Officer of whom the Statute of 5. E. 6. takes notice And he said that Verba de persona intelligenda sunt de Conditione personae And he said that the words are Actionable in regard it is a faculty to be a Measuror of Lands But Dodderidg Justice put it with a difference viz. Betwixt a Measurer of Land by the Pole and one who useth the Art of Geometrie or any of the Mathematicks for he said that in the first Case it is no scandal for that his Credit is not impeached thereby but it is contrary in the other Case because to be a Geometritian or Mathematitian is an Art or faculty which every man doth not attain unto And he put this Case If a man be Bailiffe of my Mannor there no such words can discredit him and by consequence he shall not have an Action for the words because the words do not found in discredit of his Office because the same is not an Office of Skill but an Office of Labour quod nota Hill 16 Jacobi in the Kings Bench. 395. BISHOP and TURNERS Case IN a Prohibition it was holden by the whole Court That for such things as a Church-Warden doth ratione officii no Action will lie by his successor against him in the Spiritual Court and a Churchwarden is not an Officer but a Minister to the Spiritual Court But it was holden that a Churchwarden by the Common Law may maintain an Action upon the Case for defacing of a Monument in the Church Trin. 16 Jacobi in the Kings Bench. 396. BLACKSTON and HEAP'S Case IN an Action of Debt for Rent the Case was this A man possessed of a Tearm for 20 years in the right of his Wife made a Lease for 10 years rendring Rent to him his Executors and assignes and died The Question was whether the Executors or the Wife should have the Rent Haughton and Crook Justices against Montague Chief Justice Doddridg being absent that the Rent was gon But it was agreed by them all that the Executors of the Husband should not have it But Montague held that the Wife should have it But it was agreed that if Lessee for 20 years maketh a Lease for 10 years and afterwards surrendreth his Tearm that the Rent is gon And yet the Tearm for 10 years continues And in the principal Case If the Husband after the Lease made had granted over the Reversion his grantee should not have the Rent But Montague said that in that Case the Wife in Chancery might be Releived for the Rent Mich. 16 Iacobi in the Kings Bench. 397. WAIT and the Inhabitants of STOKE'S Case WAyte a Clothier of Nubery was robbed in the Hundred of Stoke of 50l upon the Saboth day in the time of Divine Service The Question was whether the Hundred were chargeable or not for not making out Hue and Cry And 3 of the Justices were against Montague Chief Justice that they were chargeable For they said that the apprehending of Theeves was a good work and fit for the Saboth day and also fit for the Commonwealth Montague Chief Justice agreed that it was bonum opus and that it might be lawfully done But he said that no man might be compelled upon any penalty to do it upon that day For he said That if he hath a Judgment against I. S. and he comes to the Parish-Church where I. S. is with the Sheriffe and shews unto the Sheriffe I. S. upon the Saboth day and commandeth the Sheriffe to do his Office If the Sheriffe do arrest I. S. in Execution upon that day it is good but if he doth not arrest him it is no escape in the Sheriffe And he took a difference betwixt Ministerial Acts and Judicial Acts for the first might be done upon the Saboth day but Judicial Acts might not But the case was adjudged according to the opinion of the three other Justices Pasch 17 Iacobi in the Kings Bench. 398. SPICER and SPICE'S Case UPon a special Verdict the Case was this A man seised of Gavil-kind Land devised the same to his Wife for life paying out of it 3l per annum to his eldest son and also devised the Land to his second Son paying 3l per annum to his third Son and 20s to such a one his Daughter and whether the second Son had the Land for his life or in Fee was the Question And it was adjudged that he had a Fee-simple in it by reason of the payment of the Collateral Sums of 3l and 20s to his brother and sister which charge to the brother might continue af-after the death of the Devisee and if he should have but an estate for life his charge should continue longer then his own estate And so it was adjudged Mich. 17 Iacobi in the Kings Bench. 399. IN a Habeas Corpora which was to remove two men who were imprisoned in Norwich The Case was this That within Norwich there was a Custom that two men of the said place should be chosen yearly to make a Feast for the Bailiffs and upon refusal for to do it that they should be Fined and imprisoned which two men brought to the Barr by the Habeas Corpra were imprisoned for the same cause It was urged and much stood upon That the Custom was no good Custom for the causes and reasons which are delivered in Baggs Case in C. 11. part But yet at the last the Court did remand
Execution the Defendant A secretè fraudulenter vendidit amovit disposuit of all the Testators goods For which cause the Sheriffe was constrained to retorn Nulla bona c. Ley Chief Justice said That the Action would well lie because the Sheriffe could not retorn a Devastavit because the goods were secretly conveyed away so as the Sheriffe could not tell whether he had sold or otherwise disposed of the said goods and also because the Plaintiffe is destitute of all remedy by any other Action To which Dodderidge Justice did agree But Haughton Justice was against it For he said That if one be to bring an action of Debt against the Heir if the Heir selleth the Land which he hath by discent from his ancestors before the action brought an action upon the Case will not lie against him for so doing Dodderidge said That the Case which was put by Haughton was not like to this Case For in this Case if the Sheriffe had or could have retorned a Devastavit the action upon the Case would not have lien But here the Sheriffe hath not retorned any Devastavit And the sale being secretly made the Sheriffe could not safely retorn a Devastavit for so perhaps he might be in danger of an action upon the Case to be brought against him for making of such a Retorn The Case was adjourned till another day Pasch 21 Jacobi in the Kings Bench. 409. WILLIAMS and GIBB's Case NOte in this Case it was said by Ley Chief Justice That whatsoever is allowed for Divine service or whatsoever cometh in lieu of Tythes and Offerings the same is now become a thing Ecclesiastical And Dodderidge Justice also said That no Law doth appoint that the Vicar or Parson should read Divine Service in two several Parish-Churches but only the Ecclesiastical Law Pasch 21 Iacobi in the Kings Bench. 410. STEWRY and STEWRY'S Case A Bill was exhibited into the Court of Chancery for the traversing of an Office who found one to be in Ward to the King and the parties were at issue super seperales exitus And a Venire facias was awarded out of the Chancery retornable in the Kings Bench directed to the Sheriffe Quod venire faciat 12 homines triare placita traversiae super seperales exitus And it was moved That the several Issues ought to be expressed in the Venire facias Dodderidge Justice It ought not to be Placita traversiae For it shall never be called Placitum but when it is at 〈◊〉 Kings suit And the opinion of the Court was That the Venire facias should be amended and that the several Issues should be expressed therein and Young's Case 20 Jacobi was cited for a President in the very point Pasch 21 Jacobi in the Kings Bench. 411. ASTLEY and WEBB'S Case IN an Ejectione Firme the words vi armis were omitted out of the Plaintiffs Declaration And although this was the default of the Clark yet the same could not be amended but it made the Declaration not to be good Pasch 21 Jacobi in the Kings Bench. 412. WHITE and EDWARD'S Case IN Trespasse Edwards the Defendant being a Clark of the Chancery after an Imparlance could not be suffered to plead his Priviledge It was moved in this Case That the Declaration was viginti opali vocatè Wythies And it was said it should have been anglicè and not vocatè But the opinion of the Court was that vocatè was as good as anglicè Then it was moved that the Declaration was That the Defendant had felled twenty Pearches of Hedging whereas it ought to have been that the Defendant had felled a Hedge containing twenty Pearches for a man cannot cut a Mathematical Pole But the Court said That the Declaration was good notwithstanding that and cited 17 E. 4. 1. where a man sells twenty Acres of Corn and there Exception was taken to it as it is here viz. That it ought to have been twenty Acres sowed with Corn but it was no good Exception there No more was it as the Court said in this Case for it is the common speech to say Twenty perches of hedging A pint of wine An acre of corn c. And therefore the Declaration was ruled to be good notwithstanding these Exceptions which were taken to it by Serjeant Headley Pasch 21 Jacobi in the Kings Bench. 413. BRIDGES and MILL's Case AN action upon the Case was brought for speaking of these words viz. Thou inuendo the Plaintiffe hast ravished a woman twice And I will make thee stand in a white sheet for it Henden Serjeant moved in arrest of Judgment That the action would not lie for the words For he said That by the Common-Law Rape was not Felony but Trespass v. Stamford 23. 6. But now by the Statute of West 2. cap. 34. it is made Felony And he said That the later words viz. stand in a white sheet doth mitigate the former words by reason that in the former words the word Felonice was omitted as the Case is in C. 4. par 20. Barhams Case where the words Thou didst burn my Barn and did not say My Barn full of Corn nor that it was parcel of his Mansion-house and therefore the action would not lie For unlesse the Barn were full with corn or part of a dwelling-house it is not Felony Like unto Humfries Case adjudged in the Common-Pleas where an action upon the Case was brought for these words Thou hast pick'd my Pocket and taken away ten shillings And it was adjudged that the action would not lie For he did not say that he had stollen ten shillings But if he had said nothing but Thou hast pick'd my pocket then the action would have been maintainable Ley and Dodderidge Justices By the Common-Law Rape was Felony and in the said Statute the word Felony is not although it be used in the Indictment It was adjourned But the opinion of the Court seemed to be That the action would lie for the words Pasch 21 Iacobi in the Star-Chamber 414. Sir HENRY FINES Case IN the Case of Sir Henry Fines in the Star-Chamber Exception was taken to one of the Witnesses viz. to Dr. Spicer because that he stole Plate and had been pardoned for it But notwithstanding the Exception the Court did allow of the Testimony of the said Dr. Spicer And then Hobart Chief Justice of the Common-Pleas cited Cuddingtons Case Hill 13 Jacobi to be adjudged Cuddington brought an action upon the Case for calling him Thief The Defendant justified that such a day and year he stole a Horse The Plaintiffe replied That the King had given him a Pardon for all Felonies And it was adjudged that the Action did lie Afterwards at another day Jones and Dodderidge Justices put the Case more largely viz. Cuddington committed Felony 44 Eliz. and 1 Jacobi by the General Pardon he was pardoned And they said That he who procures a Pardon confesseth himself to be guilty of the offence But by the general Pardon
And if Rent be due and payable unto me by my Lessee for years the same may be taken for the Kings Debt and the special matter shall be a good barr in an Avowry for the Rent 38. E. 3. 28. A Prior Alien was indebted to the King for his Farm Rent And being sued for the same he shewed That there was a Parson who held a certain portion of Tythes from him which were part of the Possessions of the same Priory which he kept in his hands so as he could not pay the King his Farm-Rent unlesse he might have those Tythes which were in the Parsons hands Wherefore a Writ was awarded against the Parson to appear in the Exchequer and to shew cause why he should not pay the same to the King for the satisfying of the Kings Rent And there Skipwith Justice said That for any thing which toucheth the King and may turn to his advantage to hasten the Kings business that the Exchequer had jurisdiction of it were it a thing Spiritual or Temporal V. 44 E. 3. 43 44. the like Case but there it is of a Pension And the Case of 38 Ass 20. was the Case for Tythes See also 12 E. 3. Swalds Case to the same purpose If two Coparceners be in ward to the King upon a suggestion that one of them is indebted to the King the staying of his Livery shall be for his moytie untill the King be satisfied his debt but the other sister shall have Livery of the other moytie which belongs unto her Fitz. N. 5. 263. a. Mich 19 E. 3. and Hill 20. E. 3. which was one and the same Case The Kings Debtor brought a Quo minus in the Exchequer against his Debtor the Defendant appeared And the Plaintiffe afterwards would have been Nonsuit but the Court would not suffer him so to be And it was there said That a Release by the Kings Debtor unto his Debtor would not discharge the Kings Debtor as to that Debt In a Quo minus in the Exchequer upon a Debt upon a simple Contract the Defendant cannot wage his Law because the King is to have a benefit by the suit although the King be no party to the suit C. 4. par 95. The fourth Prerogative which the King hath is That the King shall have an Accompt against Executors because the Law there maketh a privity it being found by matter of Record that the Testator was indebted to the King which Record cannot be denied But in the Case of a common person an Accompt will not lie against Executors for want of privity The Accompt which the King brings is ad computandum ad Dominum Regem c. without setting forth how the party came liable to accompt But a common person in his accompt brought ought to shew how that the party was Receiver Bailiff c. If a man doth entermeddle with the Kings Treasure the King pretending a title to it he shall be chargeable for the same to the King C. 11. part 89. the Earl of Devonshire's case The Master of the Ordnance pretending that the old broken and unserviceable Ordnance belonged unto him by reason of his Office procured a Privy-seal c. and afterwards disposed of them to his own use and dyed And his Executor was forced to accompt for them Sir Walter Mildmay's Case Mich. 37. 38 Eliz. Rot. 312. in the Exchequer Sir Walter Mildmay was Chancellor of the Exchequer and suggested unto the Lord Treasurer of England That his Office was of great attendance and desired the Lord Treasurer that he would be pleased to allow unto him 100l. for his dyet and 40l. per annum for his attendance which the Lord Treasurer did grant unto him and he enjoyed it accordingly and afterwards dyed and his Executors were forced to accompt for it and to pay back the mony for all the time that their Testator received it C. 11. part 90 91. there is cited That Sir William Cavendish was Treasurer of the Chamber of King H. 8. E. 6. and Queen Mary and that he was indebted to K. E. 6. and to Q. Mary and that being so indebted he purchased divers lands and afterwards aliened them and took back an estate therein to himself and his wife and afterwards dyed without rendring any Accompt the Terre-Tenants of the land were charged to answer to Q. Elizabeth for the monies to which they pleaded the Queens special Pardon and it was in conclusion said That the Pardon was a matter of grace ex gratia but in Law the Terre-Tenants were chargeable to the said Queen for the monies v. Com. 321. 5 Eliz. Dyer 244 245. in the Exchequer Mich. 24. E. 3. Rot. 11. ex parte Rememb Regis Thomas Farel Collector of the Fifteenths and Tenths being seised of lands in Fee and being possessed of divers goods and chattels at the time when he entred into the said Office being then indebted to the King did alien them all and afterwards dyed without heir or Executor And a Writ went out unto the Sheriffe to enquire what lands and tenements goods and chattels he had at the time he entred into the said Office and Processe issued forth against the Terre-Tenants and the Possessors of his goods and chattels ad computand pro collectione predict ad respondendum satisfaciendum inde Domino Regi V. Dyer 160 50 Ass 5. A notable Case to this purpose Mich. 30. E. 3. rot 6. William Porter Mint-Master did covenant with the King by Indenture enrolled That for all the Bullion which should be delivered ad Cambium Regis pro Moneta faciend that mony should be delivered for it within eight dayes which Covenant he had broken and therefore the King paid the Subject for the Bullion And afterwards because John Walweyen and Richard Piccard duxerunt praesentaverant dict William Porter in officium illud tanquam sufficientem and that they offered to be Sureties for him but were not accepted of which they did confesse Ideo consideratum est quod predict Walweyen Piccard onerentur erga Dominum Regem And they afterwards were charged to satisfie the King for all the monies which the King had paid for the said Porter And although that none of the Kings treasure came to their hands nor they had not any benefit as appeared by any matter in the Case yet because they were the means and causers that the King sustained damage and losse they were adjudged to be chargeable to the King C. 11. par 93. this Case is there cited Upon these Cases vouched by me I make divers Observations 1. I observe That from Age to Age what care the Judges had for the Advancing and the recovering of the Kings Debts because Thesaurus Regis est vinculum Pacis Bellorum nervus And it is the slowing fountain of all bounty unto the Subject 2. I observe That the King hath a Prerogative for the Recovery of Debts due unto him 3. I observe That although the Debt due to the King be
puisne or the lesser Debt and although the Debtor be able and sufficient to pay both Debts viz. the Kings Debt and the Debt owing to the Subject yet the Kings Debt is to be first paid Now to apply these cases to the Case in question Here is a Subject who is indebted to the King And I say That the Lands which such a Debtor hath in his power and dispose although he hath not any Estate in the Lands shall be liable to pay the Debt to the King And I say That Sir Christopher Hatton had a Fee in the Mannors and Lands in this case And although he did convey them bona fide yet untill his death by reason of the Proviso of Revocation they were extendable Trin. 24. E. 3. Rot. 4. Walter de Chirton Customer who was indebted to the King for the Customs purchased Lands with the Kings monies and caused the Feoffor of the Lands to enfeoffe certain of his friends with an intent to defraud and deceive the King and notwithstanding he himself took the profits of the Lands to his own use And those Lands upon an Inquisition were found and the values of them and retorned into the Exchequer and there by Judgment given by the Court the Lands were seized into the Kings hands to remain there untill he was satisfied the Debt due unto him And yet the Estate of the Lands was never in him But because he had a power viz. by Subpena in Chancery to compell his Friends to settle the Estate of the Lands upon him therefore they were chargeable to the Debt You will say perhaps there was Covin in that Case But I say that neither Fraud Covin nor Collusion is mentioned in the Report in Dyer 160. C. 11. par 92. And that Case was a harder Case then our Case is For Walter de Chirton in that Case was never seised of the said lands But in our Case Sir Christopher Hatton himself had the lands And when he had the lands he was assured of the Office although he had not the possession of it For he was sure that no other could have it from him and no other could have it but himself And for another cause our Case is a stronger Case then the Case of Walter de Chirton For Chirton had no remedy in Law to have the lands but his remedy was only in a Court of Equity and a remedy in Consc ' onely But in our Case Sir Christopher Hatton had a time in which he might let the land to passe and yet he had a power to pull it back again at his pleasure So as he had the disposition of it but before the alteration of the uses he dyed And if he had been living being indebted to the King the King might have extended the lands because that then he had the possession of them There were two Considerations which moved Sir Christopher Hatton to Convey the Lands the first was honorable viz. For the payment of his Debts the second was natural viz. For the preferment of his Children Although the Conveyance of the Lands for payment of his Debts was but for years yet the same was too short like unto a Plaister which is too short for the sore For the Covenanters were not his Executors and so they were not liable to Debts And although he be now dead and cannot revoke the former uses yet he had the power to revoke the uses during his life And so he was chargeable for the Debt due to the King Tanfield Chief Baron agreed with Justice Dodderidge in all as before And he said That all powerful and speedy courses are given unto the King for the getting in of his Revenues and therefore he said he had the said Prerogatives as have been recited And in 25 E. 3. in libro rubro in the Exchequer there the Foundations of the said Prerogatives do appear If a common person arrest the body in Execution he shall not resort to the lands contr to Blumfields Case C. 5. par The course of the Exchequer makes a Law every where for the King If any Officer be indebted unto the King and dyeth the course of the Exchequer is For to call in his Executors or the Heir or the Terre-Tenants to answer the Debt and if he hath no lands then a Writ issueth out of the Exchequer to know what goods he had and to whose hands they be come All Inquisitions concerning Lands in the like Cases are Habuit vel seisitus and not that he was seised onely The word Habuit is a large word and in it is contained a disposing power But in this Case Sir Christopher Hatton had a power every day to revoke the uses And when he had once revoked them then was he again as before seisitus 7 H. 6. in the Exchequer the Kings Farmor had Feoffees to his use and dyed indebted to the King And upon an Inquisition it was found that Habuit for he had them in his power by compelling his Feoffees by Equity in Chancery and therefore it was adjudged that the King should have the Lands in the Feoffees hands in extent But in this case Sir Christopher Hatton might have had the Lands in him again without compulsion by a Court of Equity for that he had power to revoke the uses in the Conveyance at his pleasure Mich. 30. H. 6. rot in the Exchequer A Clark of the Court was assigned to receive monies for the King who had Feoffees of lands to his use And the lands were found and seised for the Kings monies by force of the word Habuit 32 H. 6. Philip Butler's Case who was Sheriffe of a County being indebted to the King his Feoffees were chargeable to the Kings debt by force of the word Habuit For habuit the lands in his power 6 E. 4. Bowes Case acc ' 34 H. 6. A widow being indebted to the King her Feoffees were chargeable to pay the Kings debt because she had power of the lands It being found by Inquisition that habuit 1 R. 3. the like Case And 24 Eliz. in Morgan's Case it was adjudged That lands purchased in the names of his Friends for his use were extended for a debt due by him to the King Hobart Lord Chief Justice of the Common Pleas argued to the same purpose and agreed with the other Justices and he said in this case it was not material whether the Inquisition find the Deed to be with power of Revocation For he said that the Land is extended and that the extent remains good untill it be avoided And he said that a revocable Conveyance is sufficient to bind the Parties themselves but not to bind the King but the Lands are lyable into whose hands soever they come When a man is said to forfeit his body it is not to be intended his life but the freedom of his body Imprisonment At the Common Law a Common person could neither take the bodie nor the Lands in Execution But yet at the Common Law
a Capias lay upon a force although it did not lie in case of Debt Agreement c. The King is Parens Legum because the Laws flowed from him he is Maritus Legum For the Law is as it were under Covert Baron he is Tutor Legum For he is to direct the Laws and they desire aid of him And he said that all the Land of the Kings Debtor are liable to his Debt The word Debitor is nomen equivocum and he is a Debtor who is any ways chargeable for Debt Damages Dutie Rent behind c. The Law amplifies evry thing which is for the Kings benefit or made for the King If the King releaseth all his Debts he releases only debts by Recognizance Judgment Obligation Specialtie or Contract Every thing for the benefit of the King shall be taken largely as every thing against the King shall be taken strictly and the reason why they shall be taken for his benefit is because the King cannot so nearly look to his particular because he 〈◊〉 intended to consider ardua regni pro bono publico The Prerogative Laws is not the Exchequer Law but is the Law of the Realm for the King as the Common Law is the Law of the Realm for the Subject The Kings Bench is a Court for the Pleas of the Crown The Common Pleas is for Pleas betwixt Subject and Subject and the Exchequer is the proper Court for the Kings Revenues 13. E. 4. 6. If the King hath a Rent-charge he by his Prerogative may distrein in any the Lands of the Tenant besides in the Lands charged with the Rent 44. E. 3. 15. although that the partie purchaseth the Lands after the Grant made to the King but then it is not for a Rent but as for a dutie to the King And the King in such case may take the Body Lands and Goods in Execution See the Lord Norths Case Dyer 161. where a man became Debtor to the King upon a simple Contract N. When he was Chancellor of the Augmentation received a Warrant from the Privy Councel testifying the pleasure of King E. 6. That whereas he had sold to R. c. That the said Chancellor should take Order and see the delivery of c. and should take Bond and Sureties for the King for the payment of the money By force of which Warrant he sent one T. his Clark to take a Bond of W. for the payment of the money and he took Bond for the King accordingly and brought the same to the Chancellor his Master and delivered the same to him to the Kings use and presently after he deliverd the same back to T. to deliver over to the Clark of the Court who had the charge of the keeping of all the Kings Bonds and Specialties And when T. had received the same back he practised with R. and W. to deliver them the Bond to be cancelled and so it was done and cancelled And it was holden in that Case because that the said Bond was once in the power and possession of N. that he was chargeable with the Debt But the Queen required the Debt of R. and W. who were able to satisfie the Queen for the same In Mildmay's Case cited before there it was holden That the Queen might take her Remedy either against the Parties who gave the insufficient Warrant or against Mildmay himself at her Election So a man he said shall be lyable for damages to the King for that is taken to be within the word Debita In Porters Case cited before there was neither Fraud Covin nor Negligence and yet the persons who presented Porter to the King to hold the Office were chargeable for his negligence whom they preferred to be Master of the Mint But in that Case The Bodie and goods of Porter were delivered to his Sureties as in Execution to repay them the monie which the King had levied of them These Cases prove that the word Debitor is taken in a large sence That the King shall have for the Debts due to him the Bodie Goods and Lands in Execution The word Goods doth extend to whatsoever he hath 11. H. 7. 26. The King shall have the Debt which is due to his Debtor upon a simple Contract and therein the Debtor of the Debtor shall not wage his Law For after you say that you sue for the King it is the Kings Debt and the King if he please may have Evecution of it An Ejectione firme was brought in the Exchequer by Garraway against R. T. upon an Ejectment of Lands in Wales and it was maintainable in the Exchequer as well as a Suit shall be maintainable here for an Intrusion upon Lands in Wales upon the King himself and the King shall have Execution of the thing and recover Damages as he shall in a Quo minus in satisfaction of a Debt which is due by his Debtor to the King 8. H. 5. 10. There the Kings Debtor could not have Quo minus in the Exchequer The Case there was That a man Indebted to the King was made Executor and by a Quo minus sued one in the Exchequer who was indebted unto his Testator upon a simple Contract as for his proper debt and the Quo minus would not lie because the King in that Case could not sue forth Execution and every Quo minus is the Kings Suit and is in the name of the King 38. Ass 20. A Prior Alien was arrear in Rent to the King The Prior brought a Quo minus in the Exchequer against a Parson for detaining of Tythes here is a variance of the Law and the Court for the Right of Tythes ought to be determined by the Ecclesiastical Law and it was found by Verdict for the Prior. A Serjeant moved That the Court had not jurisdiction of the Cause To whom it was answered that they had and ought to have Jurisdiction of it For that when a thing may turn to the advantage of the King and hasten his business that Court had Jurisdiction of it and divers times the said Court did hold jurisdiction in the like Case and thereupon issue was joyned there and the Reporter made a mirum of it But it seems the Reporter did not understand the Kings Prerogative For it is true That such Suit for Tythes doth not fall into the Jurisdiction of the Kings Bench or Common Pleas but in the Exchequer it is otherwise And if the Suit be by Quo minus it is the Kings Suit At a common persons Suit the Officer cannot break the house and enter but at the Kings Suit he may And a common person cannot enter into a Liberty but the King may if it be a common Liberty But for the most part when the King granteth any Liberty there is a clause of Exception in the Grant That when it shall turn to the prejudice of the King as it may do in a special Case there the King may enter the Liberty and a house is a Common Liberty and the
thing and shall he be bound by a Conveyance Anno. 16. H. 6. then in the time of Civil War Uses began and of Lands in use the Lord Chief Baron Tanfield in his Argument hath cited diverse cases where the lands in use were subject and lyable to the debt of Cestuy que use in the Kings Case and so was it untill the Statute of 27. H. 8. of Uses was made Babbington an Officer in the Exchequer had lands in the hands of Feoffees upon Trust and a Writ issued out and the lands were extended for the Debt of Babbington in the hands of his Feoffees Sir Robert Dudley having lands in other mens hands upon Trusts the lands were seized into the Kings hands for a contempt and not for debt or damages to the King And in this Case although that the â—nquisition do find the Conveyance but have not found it to be with power of Revocation yet the Land being extended it is well extended untill the contrary doth appear and untill the extent be avoided by matter of Record viz. by Plea as the Lord Chief Baron hath said before Ley Chief Justice of the Kings Bench argued the same day and his Argument in effect did agree with the other Justices in all things and therefore I have forborne to report the same at length And it was adjudged That the Extent was good and the Land well decreed accordingly Pasch 21 Jacobi in the Exchequer Chamber 417. The Lord SHEFFIELD and RATCLIFF'S Case IN a Writ of Error brought to reverse a Judgment given in a Monstrans de Droit in the Court of Pleas The Case was put by Glanvile who argued for Ratcliffe the Defendant to be this 2 E. 2. Malew being seised of the Mannor of Mulgrave in Fee gave the same to A. Bigot in tail which by divers discents came to Sir Ralph Bigot in tail Who 10 Jannarii 6 H. 8. made a Feoffment unto the use of â—is last Will and thereby after his Debts paid declared the use unto his right heirs in Fee and 9. H. 8. dyed The Will was performed Francis Bigot entred being Tenant in tail and 21 H. 8. made a Feoffment unto the use of himself and Katherine his wife and to the use of the heirs of their two bodies Then came the Statute of 26 H. 8. cap. 13. by which Tenant in tail for Treason is to forfeit the Land which he hath in tail Then the Statute of 27 H. 8. of Uses is made Then 28 H. 8. Francis Bigot did commit Treason And 29 H. 8. he was attainted and executed for the same Anno 31 H. 8. a private Act of Parliament was made which did confirm the Attaindor of Francis Bigot and that he should forfeit unto the King word for word as the Statute of 26 H. 8. is saving to all strangers except the Offendor and his heirs c. 3 E. 6. The heir of Francis Bigot is restored in blood Katherine entred into the Mannor and dyed seised 8 Eliz. their Issue entred and married with Francis Ratcliffe and had Issue Roger Ratcliffe who is heri in tail unto Ralph Bigot And they continue possession untill 33. Eliz. And then all is found by Office and the Land seised upon for the Queen who granted the same unto the Lord Sheffield Francis Bigot and Dorothy die And Roger Ratcliffe sued a Monstrans de Droit to remove the Kings hands from off the lands and a Scire facias issued forth against the Lord Sheffield as one of the Terre-Tenants who pleaded all this special matter and Judgment was thereupon given in the Court of Pleas for Roger Ratcliffe And then the Lord Sheffield brought a Writ of Error in the Exchequer-Chamber to reverse the said Judgment And Finch Serjeant argued for the Lord Sheffield that the Judgment ought to be reversed And now this Term Glanvile argued for Roger Ratcliffe that the Judgment given in the Court of Pleas ought to be affirmed There are two points The first If there were a Right remaining in Francis Bigot and if the same were given unto the King by the Attaindor and the Statute of 31 H. 8. Second If a Monstrans de Droit be a proper Action upon this matter which depends upon a Remitter for if it be a Remitter then is the Action a proper Action The Feoffment by Ralph Bigot 6 H. 8. was a Discontinuance and he had a new use in himself to the use of his Will and then to the use of his Heirs Then 9 H. 8. Ralph Bigot dyed And then Francis Bigot had a right to bring a Formedon in the Discendor to recover his estate tail 21 H 8. then the point ariseth Francis Bigot having a right of Formedon and an use by force of the Statute of 1 R. 3. cap. 1. before the Statute of 27 H. 8. by the Feoffment he had so setled it that he could not commit a forfeiture of the estate tail When a man maketh a Feoffment every Right Action c. is given away in the Livery and Seisin because every one who giveth Livery giveth all Circumstances which belongs to it For a Livery is of that force that it excludes the Feoffor not only of all present Rights but of all future Rights and Tytles v. C. 1. par 111. and there good Cases put to this purpose 9 H. 7. 1. By Livery the Husband who was in hope to be Tenant by Courtesie is as if he were never sised 39 H. 6. 43. The Son disseiseth his Father and makes a Feoffment of the lands the Father dyeth the hope of the heir is given away by the Livery It was objected by Serjeant Finch 1. Where a man hath a right of action to recover land in Fee or an estate for life which may be conveyed to another there a Livery doth give away such a Right and shall there bind him But an estate in tail cannot be transferred to another by any manner of Conveyance and therefore cannot be bound by such a Livery given I answer It is no good Rule That that which doth not passe by Livery doth remain in the person which giveth the Livery 19 H. 6. Tenant in tail is attainted Office is found The estate tail is not in the King is not in the person attainted but is in abeyance So it is no good Rule which hath been put When Tenant in tail maketh a Feoffment Non habet jus in re neque ad rem If he have a Right then it is a Right of Entre or Action but he cannot enter nor have any action against his own Feoffment 19 H. 8. 7. Dyer If Discontinuee of Tenant in tail levieth a Fine with proclamations and the five years passe and afterward Tenant in tail dyeth his issue shall have other five years and shall be helped by the Statute for he is the first to whom the right doth accrue after the Fine levied for Tenant in tail himself after his Fine with Proclamations hath not any right But if Tenant in tail be
then the Court is to abate the Petition but after Judgment to find such a fault he must have a Scire facias and not a new Petition and in our Case there was none who gave in such matter for the King Now I come to the Statute of 31. H. 8. The particular Act for the Attainder of Francis Bigot and that he should forfeit all such Lands c. Conditions Rights c. in Fee and Fee tail saving c. and as the lands of Francis Bigott stood stated at the time of the making of this Act of 3. H. 8. the Statute did not extend to him to make him forfeit any thing In the Statute of 33. H. 8. Cap. 20. there were as many words as in this Statute of 31. H. 8. and many Cases upon the Statute of 33. H. 8. are adjudged upon the words shall lose and forfeit There is a difference betwixt an Act of Assurance and an Act of Forfeiture If the words be That the King shall enjoy and have it is then an Act of Assurance and the lands are given to the King without Office but by an Act of Forfeiture the Lands are not in the King without Office found Exceptio firmat regulam but our Case is out of the Rule Savings in Acts of Parliaments were but of late days 1. E. 4. there was a private Act A Petition was preferred against divers in Parliament for sundry misdemeanours and it was Enacted that they should forfeit unto the King and his heirs c. in that Act there was no exception of saving for it was but a forfeiture of their Rights and Savings were but of late times Trin. 8. H. 8. Rot. 4. A Petition of Right in the Chancery upon that was a plea which was after the Attainder of the Duke of Suffolk That the Duke did disseise him it was shewed that the Attainder was by Parliament and he shewed no saving to be in the Statute in the Petition and yet it was well enough Com. 552. Wyat Tenant in tail of the Gift of the King made a Feoffment and by Act of Parliament 2 Mariae was attainted of Treason by which he was to forfeit c. as in our Case I answer That within two years after that Judgment upon solemn argument it was adjudged contrarie Com. 562. It was objected that in that Case a Writ of Error was brought Com. 562. and that the Judgement was affirmed in the Case of Walsingham I answer that the same was by reason of the Plea in Barr And Com 565. there Plowden confesseth that the Judges were not agreed of the matter in Law and the Lands in question in Walsingams Case do remain with Moulton and at this day are enjoy'd contrary to the Judgment given in Walsinghams Case It was objected That although this Act of 31. H. 8. was made after the Attainder yet that it should relate to all the Lands which Francis Bigot had at the time of the Treason committed I answer That this Act of 31. H. 8 is but a description what Lands he shall forfeit viz. all the Lands which he had at the time of the Treason committed The second Point is upon the Remitter of Roger Ratcliff before the Inquisition for there was a discent to Roger Ratcliff When Tenant in Tail is attainted of Treason his blood is not corrupted C. 9. part 10. Lumleys Case And the Statute of 33. H. 8. is the first Statute which vests Lands forfeit for Treason in the King without Office found So as according to the Lord Lumley's Case C. 3. part 10. before this Statute of 33 H. 8. the Land did discend to the issue in tail The Rule of Nullum tempus occurrit Regi is to be meant for the preserving of the Kings Right but not to make the King to do wrong Com. 488. there the Remitter is preferred before the King 49. E. 3. 16. there the Devise of a Common person was preferred before the Right of the King 3. H. 7. 2. the Lord Greistock's Case The Dean of York did recover against him and before Execution the Lord died his heir within age the Dean shall have his Execution notwithstanding that the King hath right to have the Ward A fortiori a Remitter shall be preferred before the Kings Title C. 7. part 28. The Rule Nullum tempus occurrit Regi is to be intended when the King hath an Estate or Interest certain and permanent and not when his Interest is specially limited when and how he shall take it and not otherwise The third Point was Whether Ratcliff hath brought his proper Action The words of the Act of 2 E. 6. cap. 8. which giveth the Monstrans de Droit are to be considered A Remitter is within the words of the Act. Divers Errors were assigned by the other side for matter of Form 1. Because the Venire facias want these words tam milites quam alios Sheffield being a Noble man and a Peer of the Realm It appeareth by the Register 7. that the same was the ancient Form in every common persons Case but of late that Form was left 2. Admit that it were a good Exception then it ought to have been taken by way of Challenge as it appeareth 13. E. 3. Challenge 115. Dyer 107. 208. 3. The Statute of 35. H. 8. Cap. 6. makes a new Law and prescribes a Form Precipimus c. quod Venire facias coram c. 12 Liberos Legales homines c. and then if it ought to be by the Register tam milites quam alios yet here is a new Statute against it And by the Statute of 2. E. 6. Cap. 32. this Statute of 35 H. 8. is made perpetual And by the Statute of 27. Eliz. Cap. 6. the Statute of 35. H. 8. is altered in parvo and augmented in the worth of the Jurors and by the Statute of 18. Eliz. Cap. 14. It is Enacted That after Verdict c. the Judgment thereupon shall not be stayed or reversed by reason of any default in Form or lack of Form or variance from the Register The second Error assigned was because that there are two Venire facias and two Distringas after that Issue was joyned The Lord Sheffield sueth unto the King to have the first Venire facias and first Distringas quashed and it was quashed with Ratcliff's consent Secondly admit there were two Venire facias yet it ought to be intended that the proceedings was but upon one of them and that the best M. 17. Jacobi in the Common Pleas Bowen and Jones's Case In Error upon a Recovery in Debt there were two Originals certified and there the one was good and the other naught the Judges did take it that the Judgment and proceedings were upon the good Original and the Judgment was affirmed in the Kings Bench M. 15 H. 8. Rott 20. the same Case Two Originals one bearing date after the Judgment the other before the Judgment and upon a Writ of Error brought the
Cestuy que use when he entreth and maketh a Lease he hath no reversion nor shall punish waste And as it is in the Creation so is it in the Continuance 4 H. 7. 18. If Cestuy que use for life or in tail maketh a Lease for life it is warranted during his own life by the Statute of 1 R. 3. but if Tenant for life at the Common Law maketh a Feoffment or a lease for life there the first Lessor ought to avoid this forfeiture by entrie and it is not void by the death of the second Lessor viz. the Tenant for life 27 H. 8. 23. A Feme Covers is Cestuy que use the husband maketh a Feoffment and dieth the Feoffment is void by his death Br. Feoffments to Uses 48. If Cestuy que use for life levieth a fine it is no forfeiture but good by the Statute of 1 R. 3. during his own life And if in such case Proclamations pass there needeth no claim nor entrie within five years but the Law is contrarie of Tenant for life by the Common Law for if Tenant for life at the Common Law levieth a fine it is a forfeiture Dyer 57. Cestuy que use for life or in tail maketh a Lease for life the Lease is determined by the death of Cestuy que use and the Lessee is become Tenant at sufferance but a Lease for life by Tenant for life at the Common Law is not determined by the death of Lessee for life who was Lessor and his Tenant is tenant for life and not at sufferance as in the Case before and the first Lessor ought to avoid it by entrie Br. Feoffments to Uses 48. A Recovery by Cestuy que use in tail or in fee is ended by his death By these Cases appears a main difference betwixt the validitie of a Feoffment by Cestuy que use and the Feoffment at the Common Law The Statute of 27 H. 8. of Uses doth not execute Uses which are in abeyance C. 1. part Chudleigh's Case 9 H. 6. by the Common Law the Devise to an Enfant in ventre samier is good but by the Statutes of 32 and 34 H. 8. of Wills such a Devise is not good for the Statute Law doth not provide for the putting of lands in abeyance By the Statute of 1 R. 3. All Feoffments and Releases c. shall be good and effectual to those to whom they are made to their uses And this Feoffment in our Case was not made to a man in Nubibus Cestuy que use by this Statute of 1 R. 3. makes a lease for years the remainder over to the right heirs of I. S. the remainder is not good for the Statute doth not put it in abeyance for the remainder ought to be limited to one in esse 21 H. 8. cap. 4. giveth power to Executors to sell that Executor who proveth the Will shall sell and when he selleth if he have any right to the land the right of the said Executor is not gone by that Statute So if Commissioners upon the Statute of Bankrupts sell the Lands of the Bankrupt and one of the Commissioners hath right to the land so sold his right is not extinct And so in this Case the Statute limits what shall pass Upon the Statute of â—3 Eliz. cap. 4. which makes the lands of Receivers liable for their debts if the King selleth the right of the Accomptant passeth but not the Kings right 17 E. 3. 60. An Abbot having occasion to go beyond the Seas made another Abbot his Procurator to present to such Benefices which became void in his absence That Abbot presents in the name of him who made him Procurator to one of his own Advowsons the right of his own Advowson doth not pass but yet it is an usurpation of the Abbot which went beyond sea to that Church What is the nature of this right All rights are not giâ—en away by Feoffments at the Common Law Lit. 672. Land is given unto husband and wife in tail the husband maketh a Feoffment and takes back an Estate to him and his wife both of them are remitted Which Case proveth that the husband hath left in himself a right notwithstanding the Feoffment 41 E. 3. 17. 41 Ass 1. John at Lee's Case So at the Common Law a Feoffment doth not give away all the right This right doth stick so fast in the issue as the Statute of West 2. cap. 1. can back it unto him 2 E. 3. 23. 22 E. 3. 18. At the Common Law if Tenant in tail had offered to levie a fine the Judges ought not to receive it but ought to have refused it if it had appeared unto them that the Conusor was Tenant in tail the same was before the Statute of 4 H. 7. which gave power to Tenant in tail to levie a fine for the Statute of West 2. Cap. 1. saies Quod finis sit nullus 2. E. 2. age 77. 2 E. 3. 33. 3 E. 3. 1. 24 E 3. 25. If Donee in tail levieâ—h a Fine yet there is no remedie against his Tenant for he shall not be compelled to attorn for that the right is in the Donor â— E. 2. Avowry 181. 48 E. 3. 8. Avowry was made upon the Donee in tail notwithstanding that he made a Feoffment and Avowry is in the realtie and right 4 E. 3. 4. 4 H. 6. 28. 10 H. 7. 14. In a Replevin ancient Demesne is a good plea because the Avowry is in the realtie The Donor shall know for homage upon the Donee after that the Donee hath made a Feoffment 7 E. 4. 28. the Donee shall do homage And Litt. 90. saith That none shall do homage but such as is seised in his own right or in the right of another 2 E. 2. Avowry 85. 7 E 54. 28. 15 E. 4. 15 Gard. 116. the issue shall be in Ward notwithstanding a Feoffment by Tenant in tail Com. 561. Tenant in tail maketh a Feoffment yet the right of the tail doth remain in the Tenant in tail 21 H. 7. 40. Tenant in tail of a Rent grants the same in Fee if an Ancestor collateral releaseth with Warranty the same bindeth the Tenant in tail There is a common Rule That a Warranty doth not bind when a man hath not a right The Cases cited in C. 1. part Albonies Case where Feoffments give Rights I agree Barton and Ewers Case A man made a Feoffment of Land of which he had cause to have a Writ of Error he gave away his Writ of Error by the Feoffment I agree all those Cases for that is in Cases of Feoffments at the Common Law but in our Case the Feoffment is by the Statute of 1 R. 3. In our Case there is Jus habendi possedendi recuperandi It is like unto a plant in Winter which seemeth to be dead yet there is in it anima vegitativa which in due time brings forth fruit So the right in our Case is not given away nor is it in abeyance
be quashed and exonerated and discharged in the possession of the King For it is out of the Rule which is in C. 10 part 48 for the cause of quieting and repose of the Terre-Tenants otherwise it would be a cause of Suits But all Rights Tythes Actions c. might for the same reasons viz. for the quiet of the Terre-Tenants and the avoidance of Suits and Controversies be released to the Terre-Tennants By the same reason here the right of Action of Francis Bigot shall be discharged and exonerated by this forfeiture viz. for the quiet and repose of the Terre-Tenants for the Law delights in the quiet and repose of the Terre-Tenants If Francis Bigot had granted a Rent the ancient right of the tail had been charged C. 7. part 14. Where Tenant in tail makes a lease for life and grants a Rent charge and Tenant for life dieth he shall not avoid his charge although he be in of another Estate because he had a defeisible possession and an ancient right the which c. so as they could not be severed by way of conveyance and charge and no lawfull act Then I admire how he will sever this from himself by his unlawfull act viz. the Feoffment the discontinuance Lit. 169. If a man commit Treason he shall forfeit the Dower of his wife yet he doth not give the dower of his wife but it goes by way of discharge in those Lands 13 H. 7. 17. Tenant by the Curtesie in the life of his wife cannot grant his Estate of Tenant by the Curtesie to another but yet he for Felony or Treason may forfeit it viz. by way of discharge A Keeper of a Park commits Treason there the King shall not have the Office of Keeper for a forfeiture because it is an Office of trust but if he had been Keeper of the Kings Park and had been attainted there he should forfeit his Office by way of discharge and exoneration This Statute of 26 H. 8. hath been adjudged to make Land to revert and not strictly to forfeit Austin's Case cited in Walsingham's Case Tenant in tail the reversion in the King the Tenant makes a Lease for years and dies the issue accepts of the Rent and commits Treason the Lease is avoided for the King is not in by forfeiture by the Statute of 26 H. 8. but by way of Reveter by the Statute of 26 H. 8. It was objected that if Tenant in tail maketh a Feoffment and takes back an Estate for life and is attainted of Treason that he shall not forfeit his old right I agree that Case For indeed it is out of the Statute of 26 H. 8. which speaks of Inheritance and in that Case the Tenant hath but a Freehold The Statute of 26 H 8. saith that it shall be forfeited to the King his heirs and Successors And if in our Case the old right should remain then it should be a forfeiture but during the life of the Testator When the Common Law or Statute Law giveth Lands it gives the means to keep them as the Evidences So here the King is to have by force of this Statute of 26 H. 8. the Evidences The forfeiture of right is expresly within the Statute of 26 H. 8. as the forfeiture of Estate as by any right title or means for the old Estate tail is the means of Estates since 6 H. 8. And if you will take away the Foundation the Building will fall For all the Estates are drawn out of the old Estate tail The Statute of 26 H. 8. is not an Act of Attaindor for none in particular is attainted by the Act but the Act of 31 H. 8. doth attaint Francis Bigoâ— in particular It was objected that here in this case there needed not to be any express Saving I answer that there are divers Statutes of Forfeitures yet the Statutes have Savings in them so as it seems a saving in such Acts were not superfluous but necessary The Act of 33 H. 8. for the attainder of Queen Katharine there is a saving in the Act and yet an Act of Forfeiture Dyer 100. there the land vested in him in the Remainder by force of a saving in the Act so the saving is not void but operative C. 3. part Dowlies Case vid. the Earl of Arundels Case there the saving did help the wife so it appears savings are in Acts of Parliaments of Forfeiture and Acts of Attaindor Dyer 288 289. The Bishop of Durham had Jura Regalia within his Diocese and then the Statute of 26 H. 8. came now whether the Forfeiture for Treason should be taken away from the Bishop by reason of that Statute and given to the King was the doubt It was holden that of new Treasons the Bishop should not have the Forfeitures for those were not at the Common Law as the Forfeitures of Tenant in tail but that he should have the Forfeitures of Lands in Fee within his Diocese and that he had by force of the saving in the Statute so that a Saving is necessary and operative Com. Nichols's Case there Harpers opinion that there needs no saving to strangers but yet a saving is necessary for the Partie and the Issue if they have any thing as well as strangers vid. C. 3. part Lincoln Colledg Case It is the Office of a good Interpreter to make all the parts of a Statute to stand together Com. 559. By these general words Lose and Forfeit and by excluding of the heir in the saving the heir is bound So the Judges have made use of a Saving for it is operative 2 Ma. Austin's Case cited in Walsinghams Case Tenant in tail the Reversion in the Crown Tenant in tail made a Lease for years and levied a Fine to the King the King shall not avoid the Lease for the King came in in the Reverter but in such Case if he be attainted of Treason then the King shall avoid the Lease So a Statute of Forfeiture is stronger then a Statute of Conveyance By this Statute of 26 H. 8. Church Land was forfeited for so I find in the Statute of Monasteries which excepts such Church Lands to be forfeited for Treason Dyer Cardinal Poole being attained did forfeit his Deanary and yet he was not seised thereof in jure suo proprio for it was jus Ecclesiae 27 E. 3. 89. A writ of Right of Advowson by a Dean and he counteth that it is Jus Ecclesiae and exception that it is not Jus suae Ecclesiae But the Exception was disallowed for the Jus is not in his natural capacitie but in his politique capacitie and yet by this Statute of 26 H. 8. such Church Land was forfeited for Treason this is a stronger Case then our Case Vide C. 9. part Beaumont's Case Land is given to husband and wife in tail and the husband is attainted of Treason the wife is then Tenant in tail yet the Land is forfeited against the issue although it be but a possibility for the whole estate
Iacobi in the Kings Bench. 430. OWFIELD against SHIERT A Writ of Error was brought to reverse a Judgment given in an Action of Debt The Action of Debt was upon a Concessit solvere c. pro diversis summis pecuniae and the opinion of the Court was That Debt doth not lie upon Concessit solvere pro diversis summis c. because it is incertainty But the same Term in another Case viz. Stacies Case That by Custom of London it was holden that Debt doth lie upon a Concessit solvere pro diversis summis And it was then said That in an Action upon the Case it was good to say That in consideration de diversis summis Concessit solvere and so it hath been adjudged Trin 21 Jacobi in the Kings Bench. HAWKSWITH and DAVIES Case Intratur 431. Pasch 19. Jur. Rot. 83. LEssee for years of divers parcels of Lands reservant Rent and for not payment a reentrie The Lessee assignes part of the Land to A. and other part to B. and keeps a part to himself afterwards the Lessee levies a Fine of all the Lands unto the use of the Conusee and his heirs afterwards the Lessee paies the Rent for the whole unto the Conusee and afterwards the Rent becomes behind and the Conusee enters for the Condition broken and made a Lease to the Plaintiffe who thereupon brought an Ejectione firme and all this matter was found by special Verdict and it was moved that by the assigning of the Lessee of part of the lands to one and part to another that the Condition was gone and destroyed but notwithstanding it was agreed by all the Justices that the Condition did remain and was not gone nor destroyed And they said that this Case was not like unto Winters Case in Dyer 308 309. where the Lessor did assigne over part of the Reversion to one and part unto another for that in that Case the Lessor by his own Act had destroyed the Condition but in this Case it is the Act of the Lessee and therefore no colour that the Condition be gone and destroyed And so it was resolved for the Plaintiffe and Judgment given accordingly Trin. 21 Jacobi in the Kings Bench. 432. KILLIGREW and HARPER'S Case HArper in consideration of 100l. doth assume and promise to Killigrew That the Lady Weston and her Son shall sell to Killigrew such Lands Proviso that Killigrew such a day certain pay to the said Lady and her Son 2000l At which time the Lady and her Son shall be ready to assure and convey to Killigrew the said lands And for want of payment of the said 2000l at the said day that Killigrew shall lose the said 100l. and that the Contract for the Land shall be void Killigrew brought an Action upon the Case sur Assumpsit against Harper and all this matter was found by special Verdict Athow Serjeant argued that the Action would lie because the Lady and her Son were to do the first act viz. to make the Assurance 22 H. 6. 57. Rent is reserved upon a Lease for years in which are divers Covenants and a Bond is given for the performance of all the Covenants within such Indenture of Lease the Rent is behind the Bond is not forfeited unlesse the Lessor doth make a demand of the Rent because the Lessor is to do the first act viz. to demand the Rent Yelverton contr ' That the Action will not lie The question is Of whose part is the breach The Assumpsit is grounded upon the Consideration and not upon the Promise The Jury find that Killigrew was not ready to pay the 2000l. and that the Lady and her Son were not ready to assure the land The Agreement was for which not time is expressed That the Lady and her Son should convey such lands Then the Agreement was That Killigrew should pay at such a day certain at which day the Lady should be ready c. and if Killigrew made default of the payment of the 2000l. then he was to lose the said 100l. which he gave to Harper to procure the Bargain and also that the Bargain should be void Ley Chief Justice If Killigrew had paid or tendred the 2000l. at the said day and the Lady and her Son had not been ready at that time to have assured the lands Killigrew should have had an Action upon the Case for the 100l. and recovered damages If the Lady had been to have done the first action then the Action would have been maintainable but in this Case Killigrew is to do the first act and therefore the Action will not lie Dodderidge If it had been indefinite then the Assurance and Conveyance is to be before the Payment but here the bargain is to pay the mony first Harper promiseth to Killigrew in consideration of 100l. that Killigrew shall buy such lands then comes the time of payment and assurance of the land at that time shall be made Proviso that if he do not pay the 2000l then Killigrew to lose the 100l. and the Contract to be void so there are two penalties so as of necessity the 2000l must first be paid for otherwise how can the Contract be void for not payment For if the Conveyance shall be first made then it was present before the mony paid and so the clause viz. Then the Contract to be void should be of no effect Haughton Justice agreed Chamberlain Justice You have bound your self with a penalty and the bargain ought to be performed as it was made And so being made that the mony should be first paid at which time the conveyance shall be made and for want of payment that Killigrew should lose the 100l. and also the Contract to be void The opinion of the whole Court was against the Plaintiffe that the Action would not lie and so Judgment was given Quod nihil capint per Billam Trin. 21 Jacobi in the Kings Bench. 433. Sir ARTHUR GORGE and Sir ROBERT LANE'S Case AN Action of Debt was brought upon a Bond for not performance of Covenants The Case was Lane did marry with the daughter of Gorge and in consideration of marriage and also of 3000l portion given in marriage by Gorge Lane did covenant That he within one year would make a Jointure of lands within England then of the value of 500l per annum over and above all Reprises to his said wife so as Sir Henry Yelverton and Sir John Walter Councellors at Law should devise and advise In Debt for the breach of these Covenants Lane pleaded That he did inform Gorge of lands which he was determined should be for her Jointure but neither Yelverton nor Walter did devise the Assurance Paul Crook did demur upon the Plea and first shewed That Lane did not give notice to Yelverton and Walter as he ought to have done by law For in this case it is not sufficient to give notice to Gorge but the notice ought to be to the Councellors otherwise how could
Billam Trin. 21 Jacobi in the Kings Bench. 435. SHOETER against EMET and his WIFE THe plaintif being a midwife the Defendants wife said to the plaintif Thou art a Witch and wert the death of such a mans child at whose birth thou wert Midwife In an Action upon the Case in Arrest of Judgment it was moved that the words were not actionable Hill 15 Jacobi in the Common Pleas Stone and Roberts Case adjudged That an Action upon the Case doth not lie for saying thou art a Sorcerer 9 Jac. Godbolds Case in the Kings Bench Thou art a Sorcerer or an Inchanter 30 Eliz. betwixt Morris and Clark for saying Thou art a Witch no Action will lie for of the words Witch or Sorcerer the Common Law takes no notice but a Witch is punishable by the Statute of 1 Jacobi cap. 12. Pasch 44 Eliz Lowes Case Thou hast bewitched my cattel or my child there because an Act is supposed to be done an Action upon the Case will lie for the words 1. Jacobi Sir Miles Fleetwoods Case He was Receiver for the King in the Court of Wards and Auditor Curle said of him Thou hast deceived the King and it was adjudged that an Action upon the Case would lie for the words because it was in his calling by which he got his living Chamberlain Justice Since the Statute 1 Jacobi for calling one Witch generally an Action will lie For for the hurting of any thing a Witch is punishable by shame viz. Pillory in an open place Dodderidge Justice Thief or Witch will bear Action and the reason of the Case before cited by the Councel is because that the common Law doth not take notice of a Witch But punishment is inflicted upon a Witch by the Statute of 1 Jacobi and by that Statute a Witch is punishable Trin. 21 Jacobi Betwixt Mellon and Herâ— Judgment was stayed where the words were Thou art a witch and hast bewitched my child because that the words shall be taken in mitiori sensu as thou hast bewitched him with pleasure And in that sense Saint Paul said Who hath bewitched you O Galatians That case was adjudged in the Common Pleas. Trin. 21 Iacobi in the Kings Bench. 436. KNOLLIS and DOBBINE'S Case KNollis did assume and promise apud London within such a Parish that he would cast so much Lead and cover a Church in Ipswich in Suffolk and one Scrivener promised him to give him 10l for his costs and pains Scrivener died Knollis brought an Action upon the Case against Dobbins who was Administrator of Scrivener and declared that he such a day did cast the Lead and cover the said Church apud London The Defendant pretended that the Intestator made no such promise and it was found for the Plaintiffe and in arrest of Judgment it was moved That the Declaration was not good by reason that the Agreement was to cover a Church in Ipswich and he declared he had covered such a Church apud London which is impossible being 60 miles asunder and so the Declaration is not pursuing the promise Dyer 7 Eliz. 233. In Avowry for Rent upon a Lease for life c. That the Prior and Covent of c. at Bathe demiserunt Lands which was out of Bathe it was void for they being at Bathe could not make Livery of Land which was out of Bathe Vi. Dyer 270. The second Exception to the Declaration was That the Commissary of the Bishop of Norwich apud London did commit Administration of the Goods and Chattels of Scrivener to Dobbins apud London which was said not to be good because he had not power in London to execute any power which appertained unto him at Norwich Dodderidge Justice The plaintiffe declares that apud London he did cover the said Church that is not good and makes the Declaration to be insufficient because it is not according to the promise The place where the Commissary of the Bishop of Norwich did grant the Administration is not material For if the Bishop of Norwich be in London yet his power as to granting of Letters of Administration and making of Deacons and Clarks in his own Diocese doth follow the person of the Bishop although his other Jurisdiction be Local to which the Court agree And it was adjudged that the Declaration was not good and therefore Judgment was given Quod querens nihil capiat per Billam Trin. 21 Iacobi in the Kings Bench. 437. BULLEN and SHEENE'S Case SHeene brought a Writ of Error upon a Judgment given in the Common Pleas. The Case was Bullen being a Commoner intituling himself by those whose Estate he had in the Land brought an Action upon the Case against Sheene because he had digged clay in the land where the Plaintiffe had Common and had carried away the same over the Common per quod he lost his Common and by that could not use his Common in as ample manner as he did before Sheene entitled himself to be a Commoner and have common in the said land also and so justified the Entrie and set forth a prescription That every Commoner had used to dig clay there and the first issue was found for the Defendant Sheene viz. that he was a Commoner but the other issue was found for the Plaintiffe Bullen viz. that there was no such prescription That a Commoner might dig clay And the Jury did assesse damages to the Plaintiffe generally and the same was moved to be Error because that the Plaintiffe had not damage by carrying away of the clay because the same did not belong to him for that he was but a Commoner and so the Judgment given in the Court of Common Pleas was Erroneous Ley Chief Justice By the digging of a pit the Commoner is prejudiced by the laying of the clay upon the Common the Commoner is prejudiced and so the damages are given for the digging and carrying away of the clay per quod Commoniam suam amisit and the damages are not given for the clay Chamberlain Justice If he had suffered the clay to lie by the pit it had been damage to the Commoner If the Owner of the soil plough up or maketh conyburies in the Land an Action upon the case lyeth against him by the Commoner for thereby the Common is much the worse and the Commoner prejudicedS If the pit be deep it is dangerous to the Commoner and so a damage unto him for it is dangerous lest his cattel should fall into it and it will not suddenly be filled up again and so no grass there for a long time and the longer because that which should fill up the pit is carried away Haughton Justice The proceedings are Erroneous both Plaintiffe and Defendant are Commoners The wrong is in two points First That the Defendant had with his cattell fed the Common Secondly That the Defendant had digged clay there and carried the same away The Defendant makes Title to both First he prescribes to have Common there Secondly That the Commoners
Bill Obligatory and doth not shew that it was delivered Dyer 156. Per scriptum suum gerens datum and doth not say Primò deliberatum is not good The fourth Error was That in the Replication the Plaintiffe saith dixit whereas it ought to be dicit in present tense 10 H. 7. 12. The title to the Assise took Exception to the Plaintiffs title because that he said fuit seitus of a Messuage whereas he ought to have said est seitus But yet it was there holden good because he saith that all those whose title he hath c. by which words the possession shall be intented to continue 35 H. 6. 11. 85. vi 268. A Writ a False Judgment directed to the Sheriffe Recordare loquelam que est and the form and the presidents are quae fuit 9 H. 6. 12. The Sheriff retorns Non est inveni whereas it ought to be Nom est inventus and adjudged Error And he said That Detinue is only to be brought when it self is to be recovered in as good plight and no other Action It doth appear by the Record that in this Case at Trial 18 were only retorned upon the Pannel wheras there ought to have been 24 retorned By the Statute of West 2. cap. 38. 24 ought to be retorned on the Pannel 8 H. 4. 20. More then 24. shall not be retorned 2 H. 7. 8. The Sheriffe retorned but 12. and it was ruled to be an insufficient retorn because 24 ought to have been retorned 36 H. 6. 27. Trespass is brought for a Box and Charters which concerned the Plaintiffs lands and damages were given entirely and there it was adjudged not to be good because the Plaintiffe did not make any title to the Box nor did shew that the same was locked or sealed For the Box may belong to one and the Charters to another as the Evidences to the heir and the Box to the Executors unless the Box be first locked Note The opinion of the whole Court was because that the issue was particular That he was not guilty of the Trespass and detaining untill the Plaintiff had entred into a Bond. And the Jury found him guilty of the Trespass generally That the Verdict was not good to make the Defendant guilty by implication And Justice Dodderidge said That the Plaintiff hath brought his Action of Trespass and doth not lay any possession of the Box And Trespass is a possessory Action Also he said That the Plaintiff did not set forth the Quality of the Evidences viz. Whether they were Releases Deeds of Feoffments or other particular Evidences And for these causes and for the causes before alleadged the Judgment given in the Court at Lincoln was reversed Pasch 3 Caroli in the Kings Bench. 461. Sir WILLIAM FISH and WISEMAN's Case JUdgment was given in the Common-Pleas against Sir William Fish and after the year and day Execution was awarded by Capias where it ought to have been by a Scire facias first And the Plaintiff was taken in Execution and brought a Writ of Error in this Court where the Judgment was affirmed but the Execution was reversed because the Execution was not warrantable the Process being erronious And out of the Kings Bench another Execution was awarded by Capias sicut alias within the year of the affirmance of the Judgment in the Kings Bench. And it was moved by Banks That the Execution was erronious because he ought to have a Scire facias because the year is past after the Judgment in the Common-Pleas and although that the Court be changed yet the Plaintiffe ought to have the same Process for Execution as he ought to have in the first Court 14 H. 7. 15. The first Process was reversed for Error and then he cannot have a Sicut alias but ought to have a new Original We pray a Supersedeas of the Execution for Sir William Fish the Plaintiffe and that he may be delivered out of Execution Sir William Fish had a Release and that was the cause that Wiseman would not take a Scirefacias Sir William Fish upon the Judgment in the Common-Pleas was taken in Execution and upon a Writ of Error brought Bail was put in to proceed with effect and then he was delivered out of Execution And then he cannot now be taken in Execution again upon the same Judgment 16 H. 7 2. per Curiam If one be in Execution upon Condemnation in the Common-Pleas and the Record and the body is removed into the Kings Bench by Error then the party shall find collateral Securities by their Recognisance to pay the Condemnation in case the Judgment be affirmed and further to proceed with effect In this case the body is discharged of Execution as to any Process to take the body unless he render himself to prison of his own accord to discharge his Sureties And if he will not do it he who recovereth hath no remedy but to make the Sureties to pay the Condemnation by reason of their Recognisance 2 E. 4. 8. A man is condemned in London tempore Vacationis and hath Execution in the Term and the Defendant sueth a Corpus cum causa and had his priviledge in the Common-Pleas Danby The Plantiffe shall not have Debt for at the beginning when the Defendant was in Execution the Action of Debt was gone and then he being discharged here the Action of Debt doth not lie To which Needham agreed And Choke said He did not know any remedy that the party had and conceived that he could not have a new Execution 14 H. 7. 1. If one escape out of Execution the Plaintiffe cannot take him again in Execution but his remedy is against the Gaoler The Court may supersedeat this Execution because it is erronious 34 H. 6. 45. b. An Action of Debt was brought against an Executor who pleaded that he had fully administred And it was found that he had Assets and Judgment was given against the Defendant and a Capias was awarded against him and after that an Exigent And the Court granted a Supersedeas to supersede that Erronious process For a Capias doth not lie against an Executor where he pleads c. but a Fieri facias And therefore in the principal Case Banks prayed a Supersedeas Jones Justice If Error be brought within the year of the Judgment in the Common-Pleas and the Judgment be affirmed here the party shall have a Capias although the Judgment be affirmed two years after the bringing of the Writ of Error For he shall take the same Execution in the Kings Bench as in the Common-Pleas and the altering of the Court makes no difference in it And so was Garnon's case The Writ of Error was brought within the year of the Judgment in the Common-Pleas but it was not affirmed in two years after and yet there he had the same Process in the Kings-Bench as he was to have had in the Common-Pleas Dodderidge Justice If the Execution be lawfull and upon lawfull Process
of Ely and divers Errors were assigned First that he did not shew in the stile of the Court how Ely hath power to hold plea either by Charter or by prescription Secondly because he said That at such a place in Ely he did promise but did not shew that it was within the Jurisdiction of Ely Thirdly that it was upon a Consideration to â—urâ—ease a Suit in the Chancery that the Defendant did promise but did not shew that at the time of the promise there was a Suit depending Fourthly it was said That the Defendant did promise to surrender certain Customary Lands and it is not shewn what the Lands were and so no certainty for the Jurie to give damages Jermyn argued for the Defendant in Writ of Error and said The Declaration is good in substance Diversas terras Customarias proxim adjacend lib. tenem ' of the Defendant and the Defendant pleaded that he had offered predict tenem ' Customaria and so no difference is betwixt them for that Tenement is sufficiently known and although it be not so certainly laid as it ought to be in a real Action yet it is certain enough in an Action upon the Case Dyer 355 356. Only who was Sollicitor to the Councel of D. did spend 1500l circa diversa secta negotia there the Declaration was sufficient by two Judges there the Lands are certain viz. proxim ' lib. tenem ' Secondly Ely is in the Margent which is as much as the County in the Margent and then when no County is named in the Declaration wherein the land doth lie it shall be intended to lie in the County which is in the Margent Hetley Our Case differs from Onlyes Case in Dyer 355. for there 1500l was received But if I bring an Action upon the Case pro diversis merchandisis the same is not good but if I bring the Action for 10â— pro diversis merchandisis then it is good Jones Justice Chester and Durham are generally known and therefore it is good to say Placita tent apud Chester c. and the party need not shew how Chester hath Jurisdiction but it is not so of Ely Whitlock Justice Ely hath Jura regalia and we read in our books that they have had Conusans of Pleas. Hyde Chief Justice In all particular and private Jurisdictions if they come to be certified here in a Writ of Error you must set out their power But if they have their power by a Statute as Wales then it need not be set forth A Writ of Error doth not lie upon a Judgment in London but when the Plea is before Commissioners Curia We cannot grant a new Certiorare to an inferior Court but only to the Common-Pleas or Wales The writ of Error to remove the Record out of the Court of Ely is directed Justiciario nostro which proves that this Court takes notice of him as the Kings Justice And in other Courts it is Senescallo Curiae and not Senescallo nostro Whitlock Justice It is since the Statute of 27 H. 8. that it is directed Justiciario nostro de Ely for before it was Justiciario Episc Hyde Chief Justice It is a Book-Case If Midd. be in the margent and you say apud D. and name no County D. shall be intended to be in Midd. The Judgment was reversed Pasch 3 Caroli in the Kings Bench 467. WATERMAN and CROPP's Case Intratur M. 2 Car. Rot. 419. AN Action of Trespass for Battery and Imprisonment The Defendant did justifie the Imprisonment c. If it be not a Court of Record they cannot fine and imprison but if it be a Court of Record then they may for it is Curia Domini Regis 468. IN a Writ of Error Error was assigned That an Action was laid in Lanceston and the Venire facias was awarded de vicineto de Lanceston And it was said That the neighbourhood might be of those of which the Maior and Bailiffs had no power over viz. those out of their juridiction And therefore Error was assigned in the mis-awarding of the Venire facias 10 Jacobi in the Common-Pleas Buckley's case There the Venire facias was de vicineto civitatis Eborum and well enough for vicineto shall imply those within the jurisdiction and not the neighbours 10 Jacobi Procter and Cliffords case adjudged contrary where it was That the Venire facias was de vicineto civitatis Coventry and adjudged not good for it ought to have been de civitate Coventry Dodderidge Vicineto goeth about the Precinct When I was a Councellor then I moved for Bristol and to maintain it good de vicinetâ— de Bristol but it was ruled not good but ought to be de civitate Bristol Pasch 3 Caroli in the Kings Bench. 469. TOLLYN and TAYLOR's Case AN Action upon the Case was brought in the Common-Pleas by an Enfant who declared by Attorney The Defendant brought a Writ of Error in the Kings Bench and assigned the same for Error For he ought to have declared per Prochyn amy and not by Attorney If an Action be brought and the Defendant plead that he is an Enfant the Enfancie is to be tryed where the Writ is brought Here he assigns the Error in fact that he was an Enfant and shewed no place where he was an Enfant and so no place set where to prove it To this Error the Plaintiffe pleaded That he was at full age And upon that they are at issue upon this matter in fact And it was tryed at Halsworth in Suffolk whereas it ought to have been in this Court where the Enfancie is pleaded because he names no place where he was of full age And notwithstanding that it was found that he was of full age yet the Trial was not good The first Action was brought before the Statute of 21 Jacobi cap. 13. Hitcham Serjeant Age or not age is not local and a place must be set down for formalitie sake and so it is no matter of substance And the Venire facias might be awarded from the place where the first Action was viz. at Halsworth in Suffolk For that is a matter dependant and pursuant the first Action and now since the Statute is helped Denny contrary It hath no dependance upon the first Action but is a new thing sprung up If any place had been set down and the Venire facias had been mistaken that is helped by the Statute and not where no place is set down at all Whitlock Justice Every Venire facias properly is to be from the place where the Writ is brought unless it be drawn away by Plea He ought to have alleadged a place For this is a new matter in this Court and not helped by the Statute of 21 Jacobi nor any other for the Venire facias is totally mistaken Dodderidge Justice The Statute of Jeofaites have ever been taken strictly according to the letter For if they had been taken by equity what need had there been of more Statutes to have been made
The want of a letter out of a word is out of the Statutes C. 8. part You should have alleadged some place The Statute of 21 Jacobi is not of any Venire facias which is misawarded generally but the Statute helpeth when there are two places and the visne ought to come from both places and the visne comes but from one place and when there is but one place and the visne comes from two places If Enfancie be to be tryed sc If he were at such a time within age it ought to be tryed by the Country This matter is collateral to the first Record and it is a new Record sc upon Error The whole Court was of opinion that it was out of the Statute and a Repleader was granted Whitlock Justice There is no Trial at all for there is no Venire facias at all Dodderidge Justice If the Defendant in Error plead an ill plea he shall replead But if in this Action he had alleadged a place of his Enfancie sc at Dale and the Venire facias had been of Sale there it had been good trial and there he should not replead for that he hath pleaded well but there he shall have a Venire facias de novo Pasch 3 Caroli in the Kings Bench. 470. DAY 's Case DAY was Indicted for erecting of a Cottage It was moved that the Indictment was insufficient for that the words of the Statute of 31 Eliz. cap. 7 are Shall willingly uphold maintain and continue And the Indictment is only That he continued and so wants the words voluntarily upheld according to the Statute 2. It did not appear in the Indictment that it was newly erected for it is only that he continued but not that he erected The Indictment was quashed because being a penal Law it was not pursued Pasch 3 Caroli in the Kings Bench. 471. MAN's Case MAN was Indicted That he fuit adhâ—â—c est a common Barrettor and no place is expressed where he was a Barrettor so as no trial can be Dodderidge Justice If he be a Barrettor in one place he is a Barrettor in all places The Indictment was Per quod he did stir up contentions Jurgia And no place alleadged where he did stir up Jurgia contentions And it was said that in that case the place was very material And so the Indictment was quashed for want of setting forth the place where he did stir up many Contentions Jurgia c. Pasch 3 Caroli in the Kings Bench. 472. GREEN and MOODY'S Case AN Action of Debt was brought for Rent and it was found for the Plaintiff Thyn Serjeant moved in arrest of Judgment and set forth the Case to be That a Lease was made for years to begin at Michaâ—lmaâ— after And the Plaintiff in the Action of Debt for the Rent did declare Virtuâ—e cujus the Lessee did enter and did not shew what day according to Cliffords Case 7 E. 6. Dyer 89. But the Court said It is said in this Case Virtute cujus dimissionis he did enter and was possessed and that must be intended at Michaelmas Alexander and Dyer's Case 33 Eliz. was resolved accordingly And Cliffords Case Dyer 89. is not virtute cujus dimissionis And the Court held a difference betwixt Debt and Ejectione firme Cliffords case was an Ejectione firme but here it is Debt Jones Justice If he did enter before Michaelmas yet Debt will lie for the Rent upon the privity of contract for the Lessee cannot destroy the contract unless he make a Feoffment It was adjudged for the Plaintiff Quaere If when the Lessor in the case which Jones put hath brought his action and recovered when the Lessee hath entred before the day If the Lessor shall put him out as a Disseisor by reason of the Recovery in the action of Debt in which he hath admitted him to be Lessee for years Or if the Lessor after he hath recovered in Debt dyeth whether his heir shall be estopped by the Record to say otherwise then that he is in by the Lease Or whether the Recovery in Debt hath purged the wrong Like unto the Case 14 H. 8. 12. by Carret If one entreth into my lands and claims 20 years therein and I suffer him to continue there and accept of the Rent and afterwards he committeth Waste I shall maintain an action of Waste and declare upon the special matter If one entreth into my Land claiming a Lease for years per Curiam he is a Disseisor and he cannot qualifie his own wrong Dyer 134. Traps case But Sir Henry Yelverton said That I may admit him to be Tenant for years if I accept of the Rent or bring Waste as Carret said 14 H. 4. But he hath not but for years in respect of his claim But I am concluded by acceptance of the Rent or by bringing of the action of Waste So here by the bringing of the action of Debt the Lessor is concluded But Quaere if it shall bind his heir It was conceived it shall because it is by Record the strongest conclusion that is Pasch 3 Caroli in the Kings Bench. 473. SMITH's Case A Lease for years was made of Lands in Middlesex and the Lessor brought Debt in London against the Assignee The opinion of the whole Court was that it was not well brought but the Action ought to have been brought in Midd. Jones Justice Debt for Rent upon the privity of Contract may be brought in another County but if it be brought upon the privity of Estate as by the Grantee of the Reversion or against the Assignee of the Lessee then it ought to be brought in the County where the Land is Quod nota Pasch 3 Caroli in the Kings Bench. 474. CREMER and TOOKLEY's Case AN action of Debt was brought for suing in the Court of Admiralty against the Statutes of 13 R. 2. cap. 5. 15 R. 2. cap. 3. whereby it is enacted That of manner of Contracts Pleas and Complaints arising within the body of the Counties as well by land as by water the Admiral shall in no wise have conusans And the Statute gives damages part to the party and part to the King And the Plaintiff in the action of Debt did declare That the Defendant Tookley did implead Cremer the Plaintiff in the Court of Admiralty And in his Declaration set forth That one Mullâ—beck was Master of a Ship c. and that the Contract was made in London And that Tookley the Defendant did force the Plaintiff to appear and prosecuted the suit upon the Contract in the Admiral Court And by special Verdict it was found That a Charter-party was made betwixt Mullibeck and Cremer at Dunkirk And that Tookley did prosecute Cremer in the Admiral Court by vertue of a Letter of Attorney and so that he as Attorney to Mullibeck did prosecute the suit there The Case was argued by Andrewes for the Plaintiff There are two points The first upon the Jurisdiction of the Admiralty the Contract
and for these causes he prayed Judgment for the Defendant Observe Reader the Argument of Calthrope he doth not speak to the point where part of the thing or Contract is upon the Sea and part upon the Land as it was urged by Andrews who argued on the other side The Case was adjourned Pasch 3 Caroli rot 362. in the Kings Bench. 475. IT was cited to be adjudged That if a man purchase the next Avoidance of a Church with an intent to present his son and afterwards he present him that it is Symony within the Statute Pasch 3 Caroli in the Kings Bench. 476. SUTTON the Chancellor of Gloucester's Case IN the Case of Sutton who was Chancellor of Gloucester and put out of his place for insufficiency in the Ecclesiastical court Trotman moved for a Prohibition to the Spiritual Court and said that the Bishop had power to make his Chancellor and he only hath the Examination of him and the allowance of him as it is in the Case of a Parson who is presented to the Bishop and said that if his sufficiency should be afterwards reexamined it would be very perilous Doddridg Justice If an Office of Skill be granted to one for life who hath no skill to execute the Office the grant is void and he hath no Frank-tenement in it A Prohibition is for two causes First to give to us Jurisdiction of that which doth belong unto us And secondly when a thing is done against the Law and in breach of the Law then we use to grant a Prohibition Jones Justice Brook had a grant of the Office of a Herald at Arms for life and the Earl Marshal did suspend him from the execution of his Office because he was ignorant in his profession and full of Error contrary to the Records and it was the opinion of the Justices that because he was ignorant in such his Office of Skill that he had no Freehold in the Office In the Principall Case the Prohibition was denyed And afterwards Sutton was put out of his Office by Sentence in the Spiritual Court for his insufficiency Pasch 3 Caroli in the Kings Bench. 477. SYMM'S Case TWo men having speech together of John Symms and William Symms one of them said The Symmses make Half-crown peeces and John Symms did carrie a Cloak-bag full of clippings And whether the Action would lie was the Question because it was incertain in the person For he did not say these Symmses but The Symmses Like unto the Case where one Farrer being slain and certain persons being Defendants in the Star-Chumber one having speech of them said These Defendants did murder Farrer and it was adjudged that the Action would not lie for two causes First because the words These was uncertain in the person And secondly it was incertain in the thing For it might be that they had Authority to do it as in Mills Case 13 Jac. in the Kings Bench Thou hast Coyned Gold and art a Coyner of Gold Thirdly a Cloakbag of clippings that is also uncertain for it might be clippings of Wooll or other things or it might be clippings of Silver from the Goldsmith For the Goldsmith that maketh Plate maketh clippings And fourthly It is not shewed any certain time when the words were spoken And for these causes it was adjudged that the Action would not lie Pasch 3 Caroli in the Kings Bench. 478. WHITTIE and WESTON'S Case AN Action of Debt was brought upon the Statute of 2 E. 6. and the Plaintiff declared That at the time of the Action brought he was Parson of Merrel and that Weston the Defendant did occupie such Lands and sowed them with corn Anno 21 Jac. and that he did not fet forth his Tythe-corn c. The Defendant pleaded in barr of the Action That W. W. Prior of the Hospital of St John of Jerusalem was of the Order of Hospitalers c. and that he held the said Lands free from the payment of Tythes and that the Priory came by the Statute of 32. H. 8. to the King By vertue of which Statute the King was seised thereof and that the same descended to Queen Elizabeth who granted the Lands unto Weston to hold as amply as the late Prior held and that he was seised of the Lands by vertue of that grant Et propriis manibus suis excolebat Upon this Plea the Plaintiff did demurr in Law Noy argued for the Plantiff There are three points in the Case First If these Lands the possessions of the Hospitalers of St John which they held in their own hands were discharged of Tythes Secondly If there be any thing in the Statute of 32 H. 8. by which the Purchasor of the King should be discharged Thirdly Admitting that it shall be a discharge if the Defendant hath well entitled himself to such discharge or Priviledg First it is not within the Statute of 31 H. 8 cap. 13. for that Statute did not extend to the Order of St John Secondly the Statute of 31 H. 8. cap. 13. doth not discharge any but what was then dissolved Thirdly The Statute of 32 H. 8 cap. 24. gives the possessions of the Hospitalers of St Johns to the King and not the Statute of 31 H. 8. Note that the Defendant did recite the branch of the Statute of 31 H. 8. cap 13. That as well the King his heirs and successors as all and every such person and persons their heirs and assignes which have or hereafter shall have any Monasterie c. or other Religious or Ecclesiastical houses or places shall hold c according to their Estates and Titles discharged and acquitted of the payment of Tythes as freely and in as large and ample manner as the said Abbots c. had or used Also he recited the Statute of 32 H. 8. cap. 7 which Enacts that none shall pay Tythes who by Law Statute or Priviledg ought to be discharged The Statute of 31 H. 8. recites that divers Abbies c. and other Religious and Ecclesiastical houses and places have been granted and given up to the King The Statute enaâ—ts that the King shall have in possession for ever all such late Monasteries c. and other Religious houses and places c. And also enacts that the King shal have not only the said Monasteries c. but also all other Monasteries c. and all other Religious and Ecclesiastical houses which hereafter shall happen to be dissolved suppressed renounced relinquished forfeited given up or by any other means come to the King and shall be deemed adjudged vested by Authority of this present Parliament in the very actual possession and seisin of the King for ever in the state and condition they now be Vi. The Statute And shall have all priviledges c. in as ample manner and form as the late Abbots c. had held or occupied c. The Question then is Whether the men of the Hospital of St John at Jerusalem are intended to be within the
taking be before the Action brought R. is excused We say That postea antè the purchasing of the Bill and I suppose we need not lay down any day but the postea antè makes it certain enough If the viz. be repugnant to our allegation it is surplusage 41. Eliz. in Communi Banco Bishops Case Trespass is brought for a Trespass supposed to be done 4. Maii 39. El. It is ruled in that Case That the videlicet doth not vitiate the premises because it is surplusage Trinit 34. El. in the Kings Bench Garford and Gray's Case In an Avowry it was shewed That such an Abbot surrendred 32. H. 8. and that the King was seised of the possessions of the said Abby and that postea scilicit 28. H. 8. the King did demise and that the same descended to King Ed. 6. there it was ruled that postea had been sufficient though he had not shewed the year of the demise of the King so here postea ante do expresse that he was taken before the Bill brought Dodderidge Justice If the day had been certain at the first and then he cometh and sueth that postea videlicet such a day and alledgeth another day which is wrong there the videlicet is not material but if the first day be uncertain then the videlicet ought to be at a certain day otherwise it is not good Curia If you had left out your time your videlicet it had been good for you must expresse a certain time for when the time is material it ought to be certain If you had layed down a certain day of the purchase of his Bill then the ante would have been well enough Dodderidge Justice If a thing is alledged to be done in the beginning of the Term quaere if that shall be intended the first day of the Term if you can make it appear that it must be intended of necessity of the first day of the Term then you say somewhat and then the videlicet is void and surplusage Judgement was given for the Plaintiff Pasch 3. Caroli in the Kings Bench. 498 DEAN and STEELE's Case AN Action upon the Case for words was brought for words spoken in the Court of Sudbury and it was layed That he did speak the words at Sudbury but did not say Infra jurisdictionem curiae 2. The Judgement in the Action upon the Case was capiatur And for these two Errors the Judgement was reversed Pasch 3. Caroli in the Kings Bench. 499 GOD and WINCHE's THIS Case was put by Serjeant Astley A Lease is made for life by Husband and Wife and the Covenants were That he should make such reasonable assurance as the Counsel of the Lessee should advise and the Counsel advised a Fine with warranty by the Husband and Wife with warranty against the Husband and his Heirs and the Defendant did refuse to make the assurance in an Action of Covenant brought it was moved That it was not a reasonable assurance to have a Fine with Warranty because the Warranty did trench to other Land But the Court did over-rule it and said That it is the ordinary course in every Fine to have a Warranty and the party may rebut the Warranty Pasch 3. Caroli in the Kings Bench. 500 IT was cited to be adjudged That if a man purchase the next avoidance of a Church with an intent to present his son and afterwards he doth present his son that it is Symony within the Statute of 31. Eliz. Ter. Mich. 4. Caroli in the King 's Bench. 501 HILL and FARLEY's Case IN Debt brought upon a Bond the Case was A man was bound in a Bond That he should perform observe and keep the Rule Order and finall end of the Councel of the Marches of Wales And in Debt brought upon the Bond the Defendant pleaded That the Councel of the Marches of Wales nullum fecerunt ordinem The Plaintiffe replied That Concilium fecerunt ordinem that the Defendant should pay unto the Plaintiffe an hundred pound The Defendant did demurre in Law upon the Replication And the only Question was If the Plaintiffe in his Replication ought to name those of the Councel of Wales who made the Award by their particular names Jermyn who argued for the Plaintiffe said That he ought not to name the Councellors by their proper names and therefore he said That if a man be bounden to perform the Order that the Privy Councel shall make or the Order which the Councel should make That in Debt upon the same Bond If the Defendant saith that he hath performed Consilium generally of the Councel without shewing the particular names of the Councellors it is good And he vouched 10. H. 7. 6. 10. E. 4. 15. and Com. 126. Sir Richard Buckleys case That the number of the Esliors ought not to be particularly shewed But in an Action brought upon the Statute of 23. H. 6. he may declare generally that he was chosen per majorem numerum and that is good And 10. E. 4. 15. In debt upon a Bond That the Defendant shall serve the Plaintiffe for a year in omnibus mandatis suis licitis The Defendant said That he did truely serve the Plaintiff untill such a day as he was discharged And it is there holden that he is not compellable to shew the certainty of the services Banks contrary and said That he ought to name the Councel by their particular names And therefore in this case he ought to have pleaded specially as in 9. E. 4. 24. If a man will plead a Divorce Deprivation or a Deraignment he ought to shew before what Judge the Divorce Deprivation or Deraignment was So 1. H. 7. 10. If a man will plead a Fine he must shew before what Judges the Fine was levied although they be Judges of Record And he took this difference That the Judges ought to take notice of the Jurisdiction of generall Courts which are Courts of Record and of the Customes of those Courts but of particular Courts which have but particular Jurisdictions and particular Customes the Judges are not to take notice of them nor of the Lawes and Customes of such Courts if they be not specially shewed unto them And therefore although it was alledged That it was the generall usage to plead Awards or Orders made before the Councel of the Marches of Wales as in the principall Case yet he held that the Judges were not to take notice thereof And therefore the Councellors who made the Order ought to be particularly named 2. He said that the Replication was not good because the Plaintiffe in his Replication doth not shew that the Order was made by the President and the Councel for by the Statute of 34. H. 8. it ought to be made by the President and the Councel 3. He said That the Replication was not good because the Plaintiffe doth not shew within the Record that the matter of which the Order was made was a matter which was within their
to Thomas Spence and his Wife and the Survivor the Rent of seventeen Pounds yearly and every year during the terme Proviso that if the Rent be arrere by forty daies that Thomas and his Wife or the Survivor of them should enter Thomas Spence died his Administrator did demand the Rent and being denied entred for the Condition broken Calthrope argued That the reservation to the Wife was void because she had not any interest in the Land and also never sealed the Indenture of Assignment but was as a stranger to the Deed and so he said that the Wife could not enter for the condition broken nor make any demand of the Rent The 2l l Point was Admitting that the wife could not enter nor demand the Rent Whether the Administrator of the Husband might demand it and enter for the condition broken because the words are Yeilding and paying to Thomas Spence and Jane his Wife and the Survivor of them during the term and no words of Executors or Assigns are in the Case and he conceived the Administrator could not and so he said it had been resolved in one Butcher and Richmonds Case about 6. Jacobi Banks contrary and he said It was a good Rent and well demanded and the reservation is good during the Term to the Husband and Wife and although the word Reddendo doth not create a rent to the Wife because the Husband cannot give to the Wife yet the Solvendo shall gain a good rent to the Wife during the life of the Wife and the reservation shall be a good reservation to him and his Administrators during the Survivor Vide C. 5. part Goodales Case 38. E. 3. 33. 46. E. 3. 18. and admitting that the rent shall be paid to the Wife yet the condition shall go to the Administrator 2. The word Solvendo makes the Rent good to the Wife and amounts to an agreement of the Lessee to pay the Rent to them and the Survivor of them and that which cannot be good by way of reservation yet is good by way of grant and agreement and many times words of reservation or preception shall enure by way of grant Vide 10 E. 3 500. 10. Ass 40. 8. H. 4. 19. Richard Colingbrooks Case 41. E. 3. 15. 13. E. 2 Feasts and Fasts 108. Richardson Justice The Reservation being during the term is good and shall go to the Administrator Jones Justice contrary It is good only during the life of the Lessor and so was it adjudged in Edwyn and Wottons Case 5. Jacobi Crook Justice accorded The Administrator hath no title and the Wife is no party to the Deed and therefore the Rent is gone by the death of the Husband If it had been durante termino generally perhaps it had been good but durante termino praedicto to him and his Wife it ceaseth by his death And the words durante termino couple it to him and his Wife and the Survivor and it cannot be good to the Wife who is no party nor sealed the Deed neither can it inure to the Wife by way of Grant And the words Reddendo and Solvendo are Synonima and the Administrator is no Assignee of the Survivor for she cannot assign because she hath no right in the Rent Barkley Justice The intention of the parties was That it should be a continuing Rent and Judges are to make such Exposition of Deeds as that the meaning of the parties may take effect I do agree That the Wife could not have the Rent neither by way of Reservation nor by way of Grant if she were not a party to the Indenture but here she is a party to the Deed for it is by Deed indented made by the husband and wife and the husband hath set his Seal to it And 2. The Solvendo doth work by way of Grant by the intent of the parties The Reddendo shall go and relate as to the husband and the Solvendo to the wife and he agreed the Case 33. H. 8. Br. Cases because there expressum facit cessare tacitum but in case of a Lease for years the words Reserving Rent to him shall go to the Executor who represents the person of the Testator and 27. El. it was adjudged in Constables Case and Littleton agrees with it That the Executor shall be possessed and is possessed in the right of his Testator And therefore if an alien be made an Executor in an Action brought by him the Tryal shall not be per medâ—â—tatem lâ—nguae And this Case is the stronger because the Reservation is during the Term. And C. 3. part in Malleries Case That the Law shall make such a construction Upon reservation of Rent upon a Lease as may stand with the intent and meaning of the parties and therefore in that where an Abbot and Covent made a Lease for years rendring Rent yearly during the Term to the Abbot and Covent or to his Successors it is all one as if it had been to him and his Successors and although the words be joint or in the Copulative yet by construction of Law the Rent shall be well reserved during the terme for if the reservation had been only Annually during the terme it had been sufficient and his Successors should have had the Rent Quaere the principall Case for the Judges differed much in their opinions Hill 8. Caroli in the Kings Bench. 517 The KING against HILL AN Information was by the Kings Atturney against Hill and others upon the Statute of 32. H. 8. of Maintenance Where the Point was A man was out of Possession and recovered in an Ejectione firme in May 2. Car. and Habere Possessionem was awarded and 29. Sept. 4. Car. he sold the Land And whether he might sell presently or not was the Question And it was determined That he being put in possession by a Writ of Habere facias possessionem that he might sell presently Vide Com. Crookers Case and C. Littl. acc and so was it holden in Sir John Offley's Case 7. Car. in this Court Barkley Justice If a Disseisor doth recover in an Ejectione firme if he afterwards sell the Land it is a pretended Title Jones Justice It was adjudged 36. El. in the Common Pleas in Pages Case in the Case of a Formedon That if a man be out of Possession for seven years and afterwards he recover that he may sell the Lands presently Crook Justice There is a difference where the recovery is in a reall Action and where it is in an Ejectione firme It was Master Browneloes Case in the Star-Chamber resolved by all the Judges of England That a Suit in Chancery cannot make a Title pretended nor Maintenance Barkley Justice put this Case If Husband and Wife bargaineth and selleth whereas the Wife hath nothing in the Land and afterwards a Fine is levied of the same Lands by the Husband and Wife it shall have a relation to conclude the Wife and to make the Wife to have a Title ab initio It was
adjourned Pasch 10. Caroli in the Kings Bench. 518 BARKER and TAYLOR's Case IN an Ejectione firme the Case upon the Evidence was this Two Coparceners Copy-holders in Possession the one did surrender his reversion in the moity after his death Charles Jones moved That nothing did passe because he had nothing in Reversion Vide C. 5. part Saffyns Case If a man surrendreth a Reversion the Possession shall not passe 2. It is not good after his death so was it adjudged in C. 2. part Buckler and Harvey's Case Curia The Surrender is void and the same is all one as well in the Case of Copy-hold as of Free-hold and so was it adjudged 26. El. in Plats Case and so also was it adjudged in this Court 3. Caroli in Simpsons Case Pasch 13. Caroli in the Kings Bench. 519 HUMFREYS and STUDFIELD's Case IN an Action upon the Case for words the Plaintiff did declare That he was Heir apparant to his Father and also to his younger Brother who had purchased Lands but had no Issue either Male or Female and that the Defendant with an intent to bring him in disgrace with his Father and also with his younger brother and thereby to make the Father and younger Brother to give away their lands from the Plaintiff did maliciously speak these words to the Plaintiff Thou art a Bastard which words were spoken in the presence of the Father and younger Brother by reason of speaking which words the Father and younger Brother did intend and afterwards did give their Lands from the Plaintiff And by the opinion of the whole Court it was adjudged That the words were Actionable and Judgement entred accordingly FINIS I have perused this Collection of Reports and think them fit to be printed Per me JOHANNEM GODBOLT Unum Justiciar ' de Banco 18. Jun. 1648. An Alphabetical TABLE A ABatement of Writs 9 34 64 By Death 66 68 For Surplusage 380 Abeyance 313 314 319 443 Accâ—ptance 47 39 384 385 425 When a man is bound to accept c. 39 Accessary 65 Accusation before a Justice 444 Acts which purge the wrong before 384 Act subsequent where lawfull 28 29 First Act 337 Action 337 Another Action hanging 258 In what County 42 See County there where it bears date 388 Possessory 34 Before Seisin c. Special 186 Accord see Arbitrament Account 30 43 56 90 291 155 122 123 210 As Baiâ—y ad Merchandizandum 58 Against Executors 291 292 Acquittal 19 Acquittance 104 Addition de Parochia 203 Administrator is found to be an Executor 26 Surety in debt is Administrator c. 149 Administrator counts of his own Possession before he be possessed 34 see 40 Retains for his own debt 217 Administration 33 34 2 Durante minori c. 30 Sues to Execution the Executor comes of age 104 Admiralty upon a stipulation or bill there the body of the stipulators who are for the most part Masters of ships and Merchants transeuntes may be taken no execution can be upon lands It s jurisdiction 260 261 Admiralty Court its jurisdiction things partly done on land 386 387 388 389 390 Advâ—wson 17 38 128 129 passes in Grants 425 Equity in Statutes 308 Agreement disagreement 180 After an arâ—est 360 After Assumpsit 361 Alien 275 Amendment 57 286 103 Amercement 49 135 Distress for it without Presentment 190 Annuity 4 144 Ancient Demesn pleaded 64 320 Appeal 275 Appendant Appurtenant 40 352 353 Apportionment of rent 95 118 139 Apprentices bound by Covenants though Infants 122 Appropriation 1â—4 Approvement of common 116 Arbitrement 13 241 25 276 165 185 in part good 256 Arreers 12 Array triers of it 429 430 Arrests 125 358 lawful 360 Assault and battery 251 Assent of parties 429 430 Assets 29 30 31 averred 176 Assignment 18 of Debts 81 c. Assignee 3 16 70 271 277 120 162 Assize 4 for erecting houses 189 Assurance as counsel shall advise 435 bound to assure 445 446 Assumpsit 13 31 274 72 73 94 159 the arrest is void 360 337 338 350 138 144 358 to the servant 361 Attachment of Debts by custome 297 196 401 402 403 404 Attainder 267 275 303 325 376 Attaint 271 378 279 Atturnment 19 25 320 142 Atturney for livery 39 Atturney must not do acts unlawful 387 what he may do 389 Receipt by him 217 Audita querela 257 104 155 377 Averment of uses 269 214 in a devise 131 432 that Cestuy que vie is alive 195 Avowry 24 302 320 upon whom 368 Authority must be persued 39 84 195 389 naked 307 to recover a debt without more 358 359 Ayde 318 B BAil 148 339 Debt against them 354 Bailment of Goods 160 403 Bankrupts one Commissioner hath right to the land 319 division where but one bond 195 196 Bargain and sale 270 156 Bar Pleas in Bar 253 434 Insufficient 138 two bars 397 Barretor 384 Bastard 275 281 Battery a base fellow strikes a man of dignity 207 Benches 246 247 Bill Suits by bill 389 Bill for oppression or extortion 438 By-Lawes 50 Bishops their Acts 342 Borough English 3 C CApias 39 257 83 372 373 Case Action of c. 13 40 54 55 58 64 240 241 73 285 98 155 160 381 412 liâ—s 329 330 338 344 346 137 176 200 362 426 against an Inn-keeper 42 See Slander Vi armis c. 426 Trover c. 267 274 Challenge 234 110 193 428 429 to the Sheriff and Coronets 357 Chancery 262 Chaplains 41 Charge 3 Charters 370 Things in point of Charter 93 Church-Wardens 279 Cessavit 84 Certainty incertainty 14 93 336 220 once in a deed 198 Certiorari Certificate 14 356 404 Citation out of the Diocess 190 Claim 333 389 of the Lessee 105 Clark of a Parish 163 Colledges are Corporations 394 Collusion Covin 78 298 Colour 159 Commission Commissioners 105 193 High Commissioners 58 Common 4 21 96 97 185 168 169 170 171 Surcharged 182 Digging in the Common c 343 344 making Coney Boroughs 327 Where woods are inclosed 267 What the Commoner may do upon the ground 123 12â— Conclusion by the word praetextu 344 Condition assignee 162 c. 3 9 29 38 39 75 99 101 against Law 250 void 293 Lessee assignes Rent 336 broken acceptance by rent after 47 performance 299 that neither A. B. or C. shall disturb c. 60 61 not to implead A. 72 to assure lands as Councel shall advise 338 339 360 Confession 80 to save harmlesse c. 134 Confirmation 25 Consideration 13 31 32 94 134 159 437 against Law 251 to forbear a debt 303 306 See assumpsit 428 Conspiracy 76 206 447 Consultation 446 447 Contract 31 98 176 intire 154 Continuance to some intents 309 in Courts 195 Contribution for one surety against another 243 Conviction before it lands not to be begged 206 nor seised there 365 366 Copy-hold 2 11 47 233 268 129 130 140 Admittance 269 143 extinguished 101 Statutes extend to it 15 369 tailed 20 21 367 Fines 265 Leases
yet in the interim during the life of Brenne and his wife it is one entire Manor For if Blackborow had levied a Fine thereof before entry his Interest in the Land had not passed And if a Fine be levied of the Manor and the Conusee render back part to one for life and another part to another for life the remainder of the whole to a third until the Two enter it is one entire Manor in the hands of the Conusee If I devise that my Executors shall sell such Lands which are parcell of a Manor and dye untill they sell it remains parcell of the Manor So if the heir selleth the Manor that Land shall passe for it is but executory and remains parcell untill it be executed Wherefore in the principall Case here the Copy-hold is good The reason of the Case 33. H. 8. Dyer 48. is because before the grant the advowson was not appendant to that acre onely but to the whole Manor and to that acre as parcell of it Also he said that the Copy-hold shall be good against the Lessee being granted before execution of his term when as the Manor was entire For he who hath a Manor but for one year may grant Copies and the grant shall be good to bind him in the Reversion And if one recovereth an acre parcell of a Manor before execution it is parcell of the Manor and by grant of the Manor shall passe Periam Justice But yet now being executed by the death of the Lessor and his wife it is no part of the Manor if they be severall Leases Walmesley But the Defendant is in by Custome by one who is Dominus pro tempore Anderson Chief Justice The Case of 48. E. 3. is like our Case And I conceive clearly here is no severance but if there had been any severance it had been otherwise but I doubt of the other point Periam Justice In 13. H. 4. the difference is taken betwixt a grant of a Manor una cum advocatione and a grant of a Manor et ulterius a grant of the Advowson In 14. Eliz. Dyer 311. in the Case of the Lord Cromwell and Andrews it is moved If a man bargain and sell give and grant a Manor and Advowson to one and afterwards levieth a Fine or inrolleth the Deed Dyer held that the Advowson shall passe by the Bargain and Sale as in gross before that the Deed be enrolled But I conceive that it cannot pass if the Deed be not enrolled and then it shall pass as appendant by reason of the intent of the parties and so in this Case And for the last matter I conceive very strongly that when the Lease which is executory takes effect that it shall avoid the Copy-hold for although at once viz. during the expectancy of the said Lease to begin at a day to come the Copy-hold be not extinct yet now he may say That all times as in respect to him the Copy-hold Custome was broken I hold That a Tenant in Dower shall not avoid a Copy-hold made during the Coverture and so it hath been adjudged in the Kings Bench. But I conceive there is a difference betwixt that Case and the Case in question for in that Case the title of the wife to have Dower is not consummate till the death of the Husband Anderson Chief Justice I can shew you an Authority That if I grant unto you such Land and the Manor of D. there the Land shall pass as parcell of the Manor Periam True there for it doth enforce the first grant But here the intent of the parties doth appear and the same is to be respected Anderson But their intent ought to be according to the Law as in 19. H. 8. it is holden it shall be in a Devise Anderson upon the Argument of this Case said That if a Warranty be to a whole Manor and also to an Advowson the party cannot have Two Warrantia Chartae Periam If he had further said in the Deed That his intent was that it should be severall the same had altered the Case Anderson No truely because his intent did not stand with the rule of Law As if a man devise that his Lands shall be sold and doth not say by whom it is void and yet the intent is expressed If the Lease had been by severall Deeds Periam said The Copy-hold had beene severed Windham denied that If both the Deeds bee delivered at one time It was adjourned Hill 29. Eliz. In the Common Pleas. 148 AN Information was upon the Statute of 5. 6. E. 6. for buying of seed Corn having sufficient of his own and not bringing so much unto the Market of his own corn and a generall issue was found upon it And it was delivered for Law to the Jury by the Justices That a Contract in Market for corn not in the Market or which was not there that day is not within the Branch of the Statute But if corn or graine be in the Market although that the Contract be made in a house out of the Market and delivered to the Vendee out of the Market yet it is within the Statute And in the Argument of that Case Anderson said That the Market shall be said The place in the Town where it hath used to be kept and not every place of the Town And a Sale in Market overt in London ought to be in a Shop which is open to the street and not in Chambers or inward rooms otherwise the property is not altered And so it is of all Statutes in open Markets And the Recorder of London said That such was their Custome in London Hill 29. Eliz. in the Common Pleas. 149 It was holden by Anderson chiefe Justice That if one deviseth Lands to the heirs of I. S. and the Clerk writes it to I. S. and his heirs that the same may be holpen by averrment because the intent of the Devisor is written and more And it shall be naught for that which is against his intent and against his will and good for the residue But if a Devise be to I. S. and his heirs and it is written but to the heirs of I. S. there an averrment shall not make it good to I. S. because it is not in writing which the Statute requires anâ— so an averrment to take away surplusage is good but not to encrease that which is defective in the Will of the Testator Mich. 29. Eliz. in the Common Pleas. 150 A Feoffment was made unto A. unto the use of him and his wife dis-punishable of Wast during their lives one died and the Survivor committed Wast It was the opinion of the whole Court that an Action of Wast would not lie by him in the Reversion for it is a Priviledge which is annexed to the Estate which shall continue as long as the Estate doth continue Mich. 29 Eliz. in the Common Pleas. 151 A. grants annualem redditum out of Lands in which he hath nothing The opinion of
the Court was That it is a good grant of an Annuity by these words annualem redditum But whether the Husband shall have a Writ of Annuity after the death of the wife for an Annuity during the Coverture they were in some doubt because it is but a thing in Action as is an Obligation Otherwise were it of a Rent which she had for life Note in pleading for a Rent he shall plead That he was seised c. Mich. 29. Eliz. in the Common Pleas. 152 WINKFEILD'S Case Winkfeild devised Land in Norfolk to one Winkfeild of London Goldsmith and to his heirs in Fee And afterwards he made a Deed of Feoffment thereof to divers persons unto the use of himselfe for life without impeachment of waste the Remainder unto the Devisee in fee. But before he sealed the Deed of Feoffment he asked one if it would be any prejudice to his Will who answered No. And the Devisor asked again if it would be any prejudice because he conceived that he should not live untill Livery was made And it was answered No. Then he said that he would seale it for his intent was that his Will should stand And afterwards Livery was executed upon part of the Land and the Devisor died Rodes and Periam Justices The Feoffment is no Countermand of the Will because it was to one person but perhaps it had been otherwise if it had been to the use of a stranger although it were not executed Anderson Chiefe Justice and others the Will is revoked in that part where the Livery is executed And he said It would have been a question if he had said nothing And all the Justices agreed That a man may revoke his Will in part and in other part not And he may revoke it by word and that a Will in writing may he revoked by word Periam said It is no revocation by the party himselfe but the Law doth revoke it to which Windham agreed But he said That if the party had said nothing when he sealed the Feoffment it had been a revocation of the party and not of the Law Periam If the Witnesses dye so as he cannot prove the words spoken at the sealing of the Feoffment the Feoffment will destroy the Will and so he spake to Anderson who did not deny it All this was delivered by the Justices upon an Evidence given to a Jury at the Barre Mich. 29. Eliz. in the Common Pleas. 153 NOte That it was said by Anderson Chiefe Justice That if one intrude upon the possession of the King and another man entreth upon him that he shall not have an Action of Trespasse for he who is to have trespasse ought to have a possession and in this case he had not for that every Intruder shall answer the King for his time and therefore he shal not answer to the other party To which Walmesley and Fenner Serjeants agreed Periam doubted of it for he conceived That he had a possession against every stranger Snagg Serjeant conceived That he might maintain an Action of Trespasse but Windham and Rodes Justices were of opinion that he could not maintain Trespass Walmesley he cannot say in the Writ Quare clausam frâ—git c. Rodes vouched 19. E. 4. to maintain his opinion Mich. 29. Eliz. in the Common Pleas. 154 NORRIS and SALISBURIE'S Case IN an Action of Debt upon a Bond the Case was this Norris was possessed of wools for which there was a contention betwixt the Defendant and one A. And Norris promised A. in consideration that the goods were his and also that he should serve processe upon Salisbury out of the Admiral Court that he would deliver the goods to A. And afterwards he delivered the goods to Salisbury the Defendant who gave him Bond with Condition to keep him harmlesse from all losses charges and hinderances concerning and touching the said wools Afterwards A. served processe upon him and he did not deliver to him the goods for which A. brought his Action upon the Case against Norris who pleaded That he made no such promise which was found against him And afterwards Norris brought an Action of Debt upon the Bond against Salisbury because he did not save him harmlesse in that Action upon the Case And the opinion of the whole Court was That the Action of Debt would not lie because that the Action upon the Case did not concern the wools directly for the Action is not brought but for breach of the promise And that is a thing of which the Defendant had not notice and it was a secret thing not concerning the wools but by circumstances and so out of the Condition Anderson Chiefe Justice said That if A. promise B. in Consideration that B. is owner of goods and hath them to deliver them to C. the same may be a good consideration yet he somewhat doubted of it But Walmesley did affirme it to be a good Consideration Mich. 29 Eliz in the Common Pleas. 155 IT was holden by the whole Court That in an Action of Trespasse It is a good plea in barre That the Plaintiffe was barred in an Assize brought by him against the Defendant and issue joyned upon the Title But otherwise if it were upon the generall issue viz. Nul tort nul disseisin For then it might be that the Plaintiffe was never ousted nor disseised and so no cause to recover In which case it was no reason to put him from his Writ of Right Mich. 29. Eliz. in the Common Pleas. Intratur Mich. 27. Rot. 1627. 156 BRAGG'S Case A Woman having cause to be endowed of a Manor in which are Copy-holders doth demand her Dower by the name of certain Messuages certain Acres of land and certain Rents and not by the name of the third part of the Manor and she doth recover and keeps Courts and grants Copy-holds It was holden by the whole Court that in such Case that the Grants were void for she hath not a Manor because she hath made her demand as of a thing in grosse Otherwise if the demand had been of the third part of the Manor for then she had a Manor and might have kept Courts and granted Copies And the pleading in that Case was That she did recover the third part of the Manor per nomen of certain Messuages and Acres and Rents which was holden to be no recovery of the third part of the Manor Hill 29. Eliz. in the Common Pleas. 157 NOte it was holden for Law That the Justices may increase but not decrease damages because the party may have an Attaint and so is not without remedy But note contrary by Anderson and Periam Justices Hill 39. Eliz. in the Common Pleas. 158 SErjeant Fenner moved this Case That the Lord of a Manor doth prescribe That if the Tenant do a Rescous or drive his Cattel off from the Land when the Lord comes to distrain that the Tenant shall be amerced by the Homage and that the Lord may distrain for the same Anderson