prohibition And the Court upon the first Motion conceived a prohibition should pass for if the grant be without deed nothing passed and then hath not Withy cause to claim these Tithes against the said Saunders And notwithstanding that Tithes are quodam modo spiritual things and so demandable in a Court of that nature yet now in divers respects they are become a Lay-fee and lay-things for a Writ of Assise of Mortdauncester and an Assise of novel disseisin lyes of them and a Fine may be levyed of them But it hath been doubted whether Tithes be devisable by Will But at another day the matter was moved and the Court was clear of opinion that a Consultation should be awarded for whether Withy hath right or not right to these Tithes Saunders of common right ought to pay his Tithes and he ought to sever them from the nine parts and whosoever takes them whether he hath right to them or no right Saunders is discharged But Saunders may prescribe in modo decimandi without making mention of any severance and may surmise that the Tithes do belong to I. S. with whom he hath compounded to pay such a sum for all Tithes and afterwards a Consultation was awarded XXX Stacy and Carters Case Trin. 26 Eliz. in the Kings Bench. STacy brought an Action of Trespass for breaking his Close against Walter Carter And declared of a Trespass in somers-Somers-Land in Tunbridge The Defendant pleaded that heretofore he himself brought an Assise of Novel disseisin against the now Plaintiff and supposed himself to be disseised of his Free-hold in Lee juxta Tunbridge and the Land where the Trespass supposed to be done was put in view to the Recognitors of the said Assise and further averred that the Land where c. and the Land then put in view is one and the same c. upon which there was a Demurrer Exception was taken to the form of the Demurrer because in the perclose and conclusion of the Demurrer these words are omitted Averment Et hoc paratus est verificare But as to that it was said by the Court that the Demurrer was well enough with or without such Averment in the conclusion of it which see oftentimes in the Commentaries c. and in the Book of Entries 146. the greater part of the Demurrers have not any such conclusion Another Exception was taken to the bar because the Defendant pleads that heretofore Walter Carter had brought an Assise against the now Plaintiff c. and that the Land put in view to the Recognitors of the Assise per praefatum Warrhamum Carter c. and the Land where c. is all one c. here is Warrhamum for Walterum and notwithstanding that it was after demurrer and not after verdict it was adjudged amendable and as to the matter of the bar it was said by the Defendants Council that recovery of Lands in one Town by Praecipe quod reddat is not a bar for Lands in another Town but where the recovery is by Assise it is otherwise for there the Plaint is general De lib. ten̄to and the Plaintiff shall recover per visum Juratorum and the view is the warrant of the Iudgment and Execution And therefore if a recovery in an Assise be pleaded in bar Not comprised is not any Plea against it as in the Case of recoveries upon a Praecipe quod reddat but not put in view and so not comprised c. which proves that the Record doth not guid the recovery but the view of the Iurors See 26 E 3. 2. Assise brought of Lands in D. the Tenant saith that he holdeth the said Lands put in view joyntly with A. not named in the Writ c. and sheweth the deed of Ioynt-tenancy which speaks of Tenements in B. and the plea holdeth good because he alledgeth the Ioynt-tenancy and the Lands put in view See 24 E 3. It was said on the Plaintiffs side that recovery in Lee juxta Tunbridge could not extend to Lands in Tunbridge no more than a recovery of Lands in one County can extend to Lands in another County See 23 E 3. 16. Assise of Novel disseisin brought of Lands in N. the Defendant pleads recovery in Assise c. brought before by him against the now Plaintiff of Lands in H. and the same Lands put then and now in view and adjudged no bar See also 16 E 3. 16. in an Assise of Tenements in W. the Tenant pleads a Recovery of the same Lands agaist one A. by Assise brought of Tenements in C. which was found by the Assise and that C. is a Hamlet of W. and the Plaintiff notwithstanding that recovery so pleaded had Iudgment for a recovery of Lands in one Town shall not be a bar in an Assise of Lands in another Town See Br. Tit. Iudgment 66. 10 E 3. And the whole Court was clear of opinion that the plea in bar was not good for in the Assise which is pleaded in bar in the principal Case the Tenant there who is now Plaintiff in this Action of Trespass pleaded Nul tort nul disseisin which is no plea as to the Free-hold in Lee juxta Tunbridge and therefore it cannot be like to the Case which hath been put of 26 E 3. for there the Tenant pleaded that he held the said Lands put in view joyntly for there he agreeth with the Plaintiff in the Lands demanded the which Lands are put in view but if in the Case at bar the Defendant being Plaintiff in the Assise the now Plaintiff being then Tenant had pleaded to the Land put in view in bar and the Plaintiff in the Assise had recovered now in this Action of Trespass the Plantiff in the Assise being Defendant in the Action of Trespass might well plead this Recovery in bar for by his plea in the Assise he hath tyed himself to the view and to the Land put in view but it is not so in the Case at Bar where the Tenant in the Assise pleads nul tort nul disseisin for there he doth not plead expresly to the Land put in view but to the supposal of the Plaintiff sc de libero tenemento in Lee juxta Tunbridge afterwards Wray with the assent of the other Iustices awarded that the Plaintiff should recover his damages See by Wray 44 E 3. 45. in Assise of Tenements in B. the Plaintiff pleads that he himself brought an Assise of the same Tenements and his plaint was of Tenements in E. and the same Tenements put in view and recovered and holden a good Plea because the Tenant hath said that the same Tenements were put in view and that took by Assise upon which the Plaintiff said not put in view and so not comprised XXXI Benicombe and Parkers Case Trin. 26. Eliz. In the Kings Bench. IN an Action of Trespass the Iury found this special matter that the Grandfather of the Plaintiff was seised and made a Feoffment to the use of himself for life
Another Exception was taken to the Writ because here it appears upon the Plaintiffs shewing that Sir Roger Lewknor had three Daughters and that they have all taken Husbands and that they have issue and that one of the said Daughters is dead living her Husband who is not named in the Writ for which cause the Writ shall abate See 22 H. 6. 24 25. But that Exception was also disallowed for as this Case is there is not any reason that the Tenant by the Curtesy should joyn in this Action for no judgment shall be given here that the Plaintiffs shall recover the place wasted for the term is expired as it appeareth by the words of the Writ scil quas tenuerunt and the Tenant by the curtesy is in possession and where Tenant by the curtesie and the Heir joyn in an Action of Wast Tenant for life shall have Locum vastatum and the Heir the damages which see 27 H. 8. 13. As unto the matter of Law upon the Exceptions of Woods and Vnderwoods it was argued by Shuttleworth that the Action of Wast was not well brought against Ford c. for the Assignment made by Shelley to Ford was with an exception of all Woods and Vnderwoods and therefore Shelley remained Tenant and he ought to answer for the Wood and the Vnderwood in the Action of Wast for upon every demise of Lands the Woods there growing are as well demised as the Land it self for so it appeareth by the Writ of Wast in domibus boscis dimissis ad terminum annorum c. which proves that the Trees are parcel of the demise and so may be execepted See Dyer 28 H 8. 19. by Shelley and Baldwin A man leaseth a Manor except Woods and Underwoods the Lessee cuts the Trees an Action of Wast doth not lie against him for the same for the thing in which the Wast is supposed to be committed was not demised c. and therefore the Lessee shall be punished as a Trespassor and not as Farmer Fenner Serjeant contrary and that the Exception of the Woods and Vnderwoods is meerly void for Shelley who assigns his interest with the said Exception hath not any such interest in the Woods and Vnderwoods so as he can make such exception for he had but an ordinary interest in them as Farmer viz. House-boot Hedge-boot c. which interest cannot by any means upon an Assignment be reserved to the Assignor in gross of the estate no more than if one hath common appendant to his Land and he will make a Feoffment of the Land reserving or excepting the common And he who hath the inheritance of the Land hath an absolute property in the Trees but the Lessee hath but a qualified interest and therefore 21 H 6. 46. the Lessor during the term for years may command the Trees to be cut down and 10 H. 7. 3. Lessee for years hath not any interest in the Trees but for the loppings and for the shadow for his Cattle And in the Case cited where Lessee for life and he in the Reversion make a Lease for life unto a stranger and wast is committed Co. 1 Inst 42. 2. and they bring an Action of Wast the Lessee for life shall have the place wasted and he in the Reversion the treble damages for in him was the true and very property of the Trees and therefore the treble damages do belong unto him and not to the Lessee for life who joyneth with him and the reason wherefore the Lessee for life or years shall recover treble damages against a stranger who cuts down any Trees growing upon the Land to him demised is not in respect of any property that the Lessee hath in the Trees cut down but because he is chargable over to his Lessor in an Action of Wast in which he shall render damages in such proportion So see 27 H. 6. Wast 8. A lease for life is made without impeachment of wast a stranger of his own wrong cuts down Trees against whom the Lessee brings an Action of Trespass in such Case he shall not recover treble damages not for the Trees but only for the breaking of the Close and the loppings for he is not chargeable over to his Lessor for the same because that his Lease was made without impeachment of Wast and if the Lessee hath such a slender interest in the Trees where his Lease is without impeachment of wast his interest is less where it is an ordinary lease without any such priviledge And the property which the Lessee for years hath in the Trees in such Case is so appropriated to the possession that it cannot be severed from it Windham and Anderson Iustices were of opinion that the Exception above is meerly void For Ford the Assignee of Shelly is now Termer and Farmer who alone can challenge interest in the Trees against all but the Lessor and Shelley after his Assignment is meerly a stranger The interest of the Lessee and also of his Assignee in the Trees is of necessity and follows the Farm and the Land as the shadow doth the body And by him where Lessee for years by reason of his lease is to have Wind-fals yet he cannot imploy them but to the benefit and profit of his Farm for if he sell them or spend them elsewhere he shall be punished Rhodes and Periam Iustices that the exception is good as the fruits of the Trees Shovelers c. And afterwards the Case was adjudged upon another point in the pleading so as the matter in Law did not come to Iudgment See Saunders Case 41 Eliz. Where Lessee doth assign excepting the Timber Trees it is a void Exception LXIII Gray and Jeffes Case Pasch 29 Eliz. In the Kings Bench. 1 Cro. 55. Action of assault and Batterry IN an Action upon the Case by Gray against Jeffe the Plaintiff declared that where he had placed his Son and Heir apparent with the Defendant to be his Apprentice and to learn of him the Art of a Tailor That the Defendant had so beaten his Son with a Spade that he thereupon became lame by reason of which he could not have so much with his Son in marriage of him as otherwise he might have because the same lameness is a disparagement to his said son And further shewed that he himself might spend twenty pounds per annum in Lands Haulton argued for the Plaintiff The Action Quare filium haeredem cepit abduxit is given to the Father in consideration that the marriage of his Son and Heir doth appertain to him by the Law and here by the Battery the Son is become so same that he is not so commendable to a Marriage as before and if the Father had lost the whole marriage then the Father should have had the Action Quare filium haeredem c. but here he hath not lost the whole marriage but the marriage is lessened by it and therefore he shall have this Action
did not lie in the said Court. 18 Eliz. Dyer 250. F. B. 22. That upon Erronious Iudgment given in the Kings Bench in Ireland Error shall be brought in the Kings Bench in England 15 E. 3. Error 72. Fenner who was of Council with the Archbishop demanded of the Court how and in what manner the Record shall be remanded to the Iustices of Assize so as the Archbishop might have execution To which the Court said that the surest way is to have a Certiorare out of the Chancery into the Common Pleas directed to the Iudges there and then out of the Chancery by Mittimus to the Iustices of Assize But Fenner made a difficulty of it to take such course for the remanding of it for doubt they would not allow it to be a Record where it is not a Record for upon the matter the Record is not removed but remains with the Iustices of Assize Then Anderson said Sue Excution out of the said Record but because the Record came before us by Writ of Error it shall be also removed and remanded by Writ and so it was LXX Kempe and Carters Case Pasch 29 Eliz. In the Common Pleas. THomas Kempe brought Trespass Copyhold for breaking of his Close against Carter and upon pleading they were at issue if the Lord of the Manor aforesaid granted the said Lands per copiam rotulorum curiae manerii praedict secundum consuetudinem manerii praedict and it was given in Evidence that within the said Manor were divers customary Lands and that the Lord now of late at his Court of the said Manor granted the Land c. per copiam rotulorum curiae where it was never granted by copy before It was now holden by the whole Court that the Iury are bound to find Dominus non concessit for notwithstanding that de facto Dominus concessit per copiam rotulorum curiae yet non concessit secundum consuetudinem manerii praedict for the said Land was not customary nor was it demisable for the custom had not taken hold of it In the same Case it was also shewed that within the said Manor some customary Lands are demiseable for life only Evidence of customs and some in Fee and it was said by the Lord Anderson that he who will give in Evidence these several customs ought to shew the several limits in which the several customs are severally running as that the Manor extends into two Towns and that the Lands in one of the said Towns are grantable for lives only and the Lands in the other in Fee and he ought not to shew the several customs promiscuè valere through the whole Manor And he remembred a Case of his own experience scil The Manor of Wadhurst in the County of Sussex consisted of two sorts of Copy-hold scil Sook-land and Bond-land and by several customs disseverable in several manners As if a man be first admitted to Sook-land and afterwards to Bond-land and dieth seised of both his Heir shall inherit both but if he be first admitted to Bond-land and afterward to Sook-land and of them dieth seised his youngest Son shall inherit and if of both simul semel his eldest Son shall inherit But if he dieth seised of Bond-land only it shall descend to the youngest and if customary Land hath been of ancient time grantable in Fee and now of late time for the space of forty years hath granted the same for life only yet the Lord may if he please resort to his ancient custom and grant it in Fee. It was also moved in this case If customary Land within a Manor hath been grantable in Fee if now the same Escheat to the Lord and he grant the same to another for life the same was holden a good grant and warrantable by the custom and should bind the Lord for the custom which enables him to grant in Fee shall enable him to grant for life and after the death of the Tenant for life the Lord may grant the same again in Fee for the grant for life was not any interruption of the custom c. which was granted by the whole Court. LXXI Walker and Nevils Case Pasch 29. Eliz. In the Common Pleas. Dower WAlker and his Wife brought a Writ of Dower against Jervice Nevil and judgment was given upon Nihil dicit and because the first Husband of the Wife died seised a Writ of Enquiry of Damages was awarded by which it was found that the Land which she ought to have in Dower the third part was of the value of eight pound per annum and that eight years elapserunt a die mortis viri sui proximè ante inquisitionem assident damna to eight pounds and it appeared upon the Record that after Iudgment in the Writ of Dower aforesaid the Demandants had execution upon habere facias seisinam Damages so as it appeareth upon the whole Record put together that damages are assessed for eight years where the Demandants have been seised for part of the said eight years upon which the Tenant brought a Writ of Error and assigned for Error because damages are assessed untill the time of the Inquisition where they ought to be but to to the time of the Iudgment but the Exception was not allowed Another Error was assigned because that where it is found that the Land was of the value of eight pounds per annum they have assessed damages for eight years to eighty pounds beyond the Revenue for according to the rate and value found by verdict it did amount but to sixty four pounds but that Error was not also allowed for it may be that by the long detaining of the Dower the Demandants have sustained more damages than the bare Revenue c. Another Error was assigned because Damages are assessed for the whole eight years after the death of the Husband where it appeareth that for part of the said years the Demandants were seised of the Lands by force of the Iudgment and execution in the Writ of Dower and upon that matter the writ of Error was allowed LXXII Archpool against the Inhabitants of Everingham Pasch 29 Eliz. In the Common Pleas. IN an Action upon the Statute of Winchester of Huy and Cry by Archoopl against the Inhabitants of the Hundred of Everingham the Iury found that the Plaintiff was robbed 2 Januarii post occasum solis sed per lucem diurnam and that after the Robbery committed the Plaintiff went to the Town of Andover and advertised the Baylies of the said Town of the said Robbery and further found that the said Town of Andover is not within the said Hundred of Everingham and that there is another Town nearer to the place where c. the Robbery was done than the said Town of Andover within the said Hundred but the said Town of Andover was the nearest place where c. by the Kings high-way It was moved that upon this matter the Plaintiff should not have judgment
of the said Manor of Hockley seased the same to Edmund Terrel for years exceptis Reservat grossis arboribus super praemissis crescentibus existentibus Proviso Conditions that if the said Lessee his Executors or Assigns shall do any voluntary Wast in any of the Premisses before demised that then the said demise shall be void and accounted none in Law the said King and Queen after that lease grant the Reversion to the Lord Rich and his Heirs the Lessee cuts down certain great Trees which at the time of the demise were not great but little Trees but after tractu temporis became great and at the time of the cutting down were great upon whom the Lady Rich Wife and Widow of the said Lord Rich being Tenant in Dower the said Manor inter alia being assigned to her in Dower did enter for the condition broken It was moved If the exception did extend to the trees which at the time of the demise were but little trees but afterwards at the time of their cutting down were become great for if the exception do extend to such Trees then upon the matter they were not demised and if so then wast cannot be assigned in the cutting down of them and then by the cutting of them the condition is not broken But if the exception shall be construed to extend to such Trees only which were great Tempore dimissionis then those Trees in which c are demised and by the cutting down of them the condition is broken And the Lord Anderson was of opinion that the exception did extend to Trees which at any time dimissionis praedict became great Where the Tenant in Dower shall take advantage of a condition although at the time of the demise they were but little so as upon the matter such Trees were never demised and so the condition doth not extend to them otherwise it should be if the words had been modo crescentibus existentibus Another matter was moved because if the Lady Rich being Tenant in Dower and so in by the Law not by the party and so not privy nor as Assignee could enter for the condition broken And the Court was clear of opinion that because that the words of the condition are Quando dimissio praedict erit vacua c. and no clause of reentry is reserved so that privity is not requisite the Lady Rich shall take advantage of the condition 11 H. 17. Where the words of a Lease are that upon the not going to Rome that the Lease shall cease it was holden that the Grantee of the Reversion by the common Law should take advantage of such a condition contrary where the condition is conceived in words of re-entry 21 H. 7. 12. It was moved further that here is not any voluntary wast in the Lessee as to the condition Dyer 281. Owen 93. because done by a stranger and not by the Lessee himself and for that the condition is not broken only the Lessee is subject unto an Action of Wast otherwise if the Lessee had expresly commanded the Vendee to cut them down or had given to him express authority The sale was All his Woods growing c. LXXX Gill and Harewoods Case Pasch 29 Eliz. In the Common Pleas. GIll brought an Action upon the Case against Harewood and declared Assumpsit that where the Defendant was endebted to the Plaintiff in such a â—um and shewed how the Defendant in consideration that the Plaintiff per parvum tempus deferret diem solutionis c. did promise to pay And upon Non Assumpsit pleaded it was found for the Plaintiff and it was moved in arrest of Iudgment that here is not any consideration for no time is limited for the forbearance but generally parvum tempus which cannot be any commodity to the Defendant for the same may be but punctum temporis c. But the exception was not allowed for the Debt in it self is a sufficient consideration LXXXI Pasch 29 Eliz. In the Common Pleas. 2 Co. 74. 5 Co. 38. 8 Co. 155. FEnner Serjeant would have drawn a Fine which was by Dedimus Potestatem and the Fine was to two and their heirs but the Court would not receive such Fine for the incertainty of the Inheritance which always in case of Fine ought to be reposed in a person certain and not left to uncertainty of the Survivor and the said Serjeant prayed presently that the said Fine be received at the peril of the Conusees but the same was denied him by the whole Court. LXXXII Mascals Case Mich. 29 30 Eliz. In Communi Banco Covenant 2 Cro. 644. MAscal leased a House to A. for years by Indenture by which A. covenanted with Mascal to repair the House Leased and that it should be lawful for Mascal his Heirs and Assigns to enter into the House to see in what plight for matter of Reparation the said House stood and if upon any such view any default should be found in the not repairing of it and thereof warning be given to A. his Executors c. Then within four months after such warning such default should be amended the House in the default of the Lessee became ruinous Mascal granted the Reversion over in Fee to one Carre who upon view of the House gave warning to A. of the default c. which is not repayred upon which Carre as Assignee of Mascal brought an Action of Covenant against A. It was moved by Fenner Serjeant that the Action did not lye because the House became ruinous before his interest in the Reversion But the opinion of the whole Court was against him for that the Action is not conceived upon the ruinous estate of the House or for the committing of Waste but for the not repayring of it within the time appointed by the Covenant after the warning so as it is not material within what time the House became ruinous but within what time the warning was given and the default of the Reparation did happen LXXXIII Mich. 29 30 Eliz. In Communi Banco Dower IN a Writ of Dower brought by a Woman of the third part of certain Lands c. The Tenant pleaded That the Lands of which Dower is demanded are of the nature of Gavel-kind and that the custom of such Land is that Dower ought to be demanded of the moity of it and not of the third part upon which the Demandant did demur And the opinion of Windham and Anderson Iustices was That such a Woman of such Land might at her pleasure demand her Dower either according to the Custom 1 Cro. 825. Poph. 133. or according to the common Law for by Anderson the common Law was before the Custom quod quaere And by Windham if the Demandant here recover her Dower according to the common Law yet if she taketh another Husband she shall lose her Dower as if she had been endowed according to the Custom Coke an Apprentice
be a strange construction that the King should be within one part of the Statute and out of the other And 34 H. 6. 3. The Kings Attorney could not have damages which is a great proof and authority that the Iudgment for damages in such case is Error The experience and usage of Law is sufficient to interpret the same to us and from the time of E. 3. until now no damages have been given in such case Thrice this matter hath been in question 1. 3 H. 9. and the Iustices there would not give damages 34 H. 6. there the Councel learned of the King could not have damages for the King. And 7 Eliz. there was no damages And whereas it hath been said that a man shall not have a Writ of Error where Iudgment is given for his benefit that if Iudgment be entred that the Defendant be in Misericordia where it ought to be Capiatur yet the Defendant shall have a Writ of Error And he conceived also that here is but one Iudgment Clench The first President after the making of that Statute was that damages were given for the King in such case but afterwards the practice was always otherwise that the said Statute could not be construed to give in such case damages the reason was because the Iustices took the Law to be otherwise And the King is not within the Statute of 32 H. 8. of buying of Tythes nor any Subjects who buy any title of him And here in our case the Queen is not verus Patronus but hath this presentment by Prerogative And if title do accrue to the Bishop to present for Lapse yet the Patron is verus Patronus At another day the case was moved and it was said by VVray that he had conferred with Anderson Manwood and Periam who held that the Queen could not have damages in this case but Periam somewhat doubted of it Gawdy In 22 E. 4. 46. In Dower the Demandant recovered her Dower and damages by verdict and afterwards for the damages the Iudgment was reversed and stood for the Lands Clench It shall be reversed for all for there is but one Iudgment And afterwards Iudgment was given and that the Queen should have a Writ to the Bishop and damages Popham The Court ought not to proceed to the examination of the Errors without a Petition to the Queen and that was the case of one Mordant where an Infant levyed a Fine to the Queen and thereupon brought a Writ of Error and afterwards by the Resolution of all the Iudges the proceedings thereupon were stayed See 10 H. 4. 148. a good case CCVIII Chapman and Hursts Case Trin. 31 Eliz. In the Kings Bench. BEtwixt Chapman and Hurst Tythes the Defendant did libel in the spiritual Court for Tythes against the Plaintiff who came and surmised that whereas he held certain Lands by the Lease of Sir Ralph Sadler for term of years within such a Parish that the now Defendant being Farmor of the Rectory there The Defendant in consideration that the Plaintiff promised and agreed to pay to the Defendant ten pounds per annum during the Term for his Tythes he promised that the Plaintiff should hold his said Land without Tythes and without any sute for the same and thereupon prayed a Prohibition And by Gawdy the same is a good discharge of the Tythes for the time and a good Composition to have a Prohibition upon and it is not like unto a Covenant See 8 E. 4. 14. by Danby CCIX. Kirdler and Leversages Case Trin. 31 Eliz. In the Common Pleas. IN Avowry the case was Avowry 1 Cro. 241. that A. seised of Lands leased the same at Will rendring rent ten pounds per annum and afterwards granted eundem redditum by another deed to a stranger for life and afterwards the lease at will is determined Periam was of opinion that the Rent did continue and although that the words be eundem redditum yet it is not to be intended eundem numero sed eundem specie so as he shall have such a Rent scil ten pounds per annum As where the King grants to such a Town easdem libertates quas Civitas Chester habet it shall be intended such Liberties and not the same Liberties so in the principal case Also he held that a Rent at will cannot be granted for life and therefore it shall not be meant the same Rent But it was afterwards adjudged that the Rent was well granted for the life of the Grantee CCX Heayes and Alleyns Case Trin. 31 Eliz. In the Common Pleas. Cui in vita 1 Cro. 234. Poph. 13. HEayes brought a sur cui in vita against Alleyn And the case was this The Discontinuee of a Messuage had other Lands of good and indefesible title adjoining to it and demolisht and abated the said house and built another which was larger so as part of it extended upon his own Land to which he had good title And afterwards the heir brought a sur cui in vita and demanded the house by the Name of a Messuage whereas part of the house did extend into the Land to which he had no right And by Periam The Writ ought to be of a Messuage with an Exception of so much of the house which was erected upon the soil of the Tenant Demand and the manner of it in a writ as demand of a Messuage except a Chamber And it was argued by Yelverton That the Writ ought to abate for if the Demandant shall have Iudgment according to his Writ then it shall be entred quod petens recuperet Messuagium which should be Erronious for it appeareth by the verdict it self that the demandant hath not title to part of it and therefore he ought to have demanded it specially 5 H. 7. 9. parcel of Land containing 10 Feet 16 E. 3. Br. Mortdanc of a piece of Land containing so much in breadth and so much in length And the moyetie of two parts of a Messuage and 33 E. 3. br Entrie 8. a Disseisor of a Marsh ground made Meadow of it Now in a Writ of Entry it shall be demanded for Meadow Drue Serjeant contrary and he confessed the Cases put before and that every thing shall be demanded by Writ in such sort as it is at the time of the action brought as a Writ of Dower is brought of two Mills whereas during the Coverture they were but 2 Tofts but at the day of the Writ brought Mills and therefore shall be demanded by the name of Mills 14 H. 4. 33. Dower 21. 13 H. 4. 33. 175. 1 H. 5. 11. Walmesly part of a Msseuage may be demanded by the Name of a Messuage and if a House descend to two Coparceners if they make partition that one of them shall have the upper Chamber and the other the lower here if they be disseised they shall have several Assisses and each of them shall make his plaint of a Messuage and by him a Chamber may be
accordingly Vi. 9 H. 7. 23. And the clear opinion of the Court was that the Count was good notwithstanding that exception As to the matter of the Plea the Court doubted of it for the Plea was that the Bishop demanded of the clerk presented his Letters of Orders and Letters Testimonial of his good behaviour and his Letters Missive and he did not shew them but requested of the Bishop the space of a week to satisfie the Bishop in those points which was allowed unto him but he never returned for which cause the Bishop afterwards refused c. And it was said upon that Plea that the Clark who is presented ought to make proof to the Bishop that he is a Deacon and that he hath Orders otherwise by the Statute of 13 Eliz. the Bishop is not bound to admit such Clark Degg 75. but the Statute doth not compel the Clark to shew his Orders for perhaps he hath lost them but how his Orders should be proved it was much doubted Anderson The Bishop may examine him upon oath if he hath Orders or not But as to the Letters Testimonial of his good behaviour and sufficiency the Bishop ought to examine the same himself and if he give day and defer the Admission because he is not resolved therein he is a Disturber if the Clark come to him in a convenient time And the Bishop cannot refuse a Clark for the want of Letters Testimonial CCCXIII. Linacers Case Pasch 33. Eliz. in the Common Pleas. 2 Leon. 96. Co. 5. Rep. 86. IN an Audita Querela brought by Linacer It was said by Anderson chief Iustice That if a man be in execution by his Body and Lands upon a Statute If the Sheriff permit the Conusor to go at Liberty yet the Execution of the Land is not discharged But if he go at large by the consent of the Conusee then the whole Execution is discharged And the Conusor shall have his Land again presently CCCXIV Brownsall and Tylers Case Pasch 33 Eliz. In the Common Pleas. THe Case was that Tenant in tail brought a Writ of Entry Sur disseisin and the Writ was general and it was moved if the Writ was good and 21 H. 6. 26. was vouched where it is holden that the Writ ought to be special scil to make mention of the tail But it was holden by the Court that the general Writ is good enough And then the Count ought to be special Vi. Fitz. 191. CCCXV. Ward and Knights Case Trin. 30. Eliz. In the Kings Bench. IN an Action upon the case the Plaintiff declared Toll 1 Cro. 227. That whereas Lostock parcel of the Mannor of E. in the County of Suffolk is an ancient Town and ancient Demesn of the Crown of England and that time out of mind c. all the men and Tenants of ancient Demesn ought to be quitted of Toll in all places within the Realm for them their Goods and Chattels c. And whereas the Queen by her Letters Patents the tenth of September the nineteenth of her Reign commanded all Mayors Bayliffs Constables c. to permit and suffer the men and Tenants of ancient Demesn to be quit of Toll Murage and other exactions throughout the whole Realm And whereas the Plaintiff was an Inhabitant and Tenant in Lostock aforesaid and such a day and year carried his Goods to Yarmouth in the said County the Defendant not ignorant thereof had taken and carried away a Cable of the Plaintiffs goods of the value of eight pounds for Toll to dis damage c. The Defendant pleaded by Protestation that Lostock was not ancient Demesn and by Protestation that the Tenants of ancient Demesn ought not to be quit of Toll he said That the Town of Yarmouth is an ancient Borough Prescription and that they had been incorporated by the name of Bayliff and Burgesses c. And that they have had time out of mind c. an Officer called a Water-Baly and that time out of mind c. they and their Predecessors have had and taken Toll of the Tenants and Inhabitants of Lostock for any of their goods brought thither to Merchandize with and if it be not paid they have used time out of mind to distrain for it by their Water-Bayly And said that the Plaintiff such a day brought to the said Town of Yarmouth two thousand weight of Cable Ropes to sell for which there was due for Toll six pence for Murage six pence for Thronage four pence and the Defendant being Water-Bayly demanded of the Plaintiff the said sum which he refused to pay for which he took the said Cable nomine districtionis for the said Thronage c. Golding for the Plaintiff the Defendant hath not set forth in himself any authority to demand the duty For he shews that they have used to distrain by their Water-Bayly but not that they have used to demand it by him and it may be that they have several Officers one to demand it and another to distrain for it And always when a man demands a thing against common Right he is to shew authority express in the whole And as to the matter in Law scil The Prescription to have Toll of the Tenants in ancient Demesn it cannot have a lawful beginning As 21 H. 7. 40. The Lord of a Mannor says that he hath had a Pound within his Mannor time out of mind c. And that he hath used to have of every one who breaks his Pound three pounds the same is a void custom to bind a stranger for it cannot have a lawful beginning and see 5 H. 7. 9. b. One prescribed that if any Cattel be taken in such a place Damage Feasant that he might distrain them and put them in Pound until the Owner had made amends at the will of him who distrained them the same is a void Prescription for it cannot have a lawful beginning and time cannot make such a thing to be good The King may grant Tollage Pontage c. but not to the prejudice of another as 22 E. 3. 58. The King cannot grant to one Thorough-toll to pass by Highways for it is an oppression to the people for every High-way shall be common to every one see 16. E. 3. Grants 53. and here the Tenants of ancient Demesn are quit of Toll by the common Law and not by Prescription which see Fitz. 14. and such Tenants have an Inheritance in such Liberties which the King by his grant cannot take away and then if it cannot have a lawful beginning it cannot be good by Prescription also this Prescription is against the Common-wealth therefore it is a void Prescription and the Common-wealth is much respected in Law and things which in themselves are justifiable by reason are not justifiable if they be injurious to others as 21 E. 4. 8 E. 4. 18. Fishers may prescribe to dry their Nets upon the Lands of others and none can prescribe against such a Prescription so here
the Right of the Complainants come ceo c. with warranty of the said Husband and Wife for which the Complainants did render a Rent of fifty pounds per annum with clause of distress in dictis Manerijs to the said John Amy the Heirs of Amy and also rendred the Tenements aforesaid with the Appurtenances to the said John and Amy for their lives the Remainder to the said Francis their Son in tail the Remainder to the said Amy and her Heirs and that John and Amy dyed by force whereof the said Rent descendeth to the said Plaintiff as Son and Heir of the said Amy and that the said Francis entred into the said Mannors as in his Remainder and was seised in tail and was seised of the said Rent by the Hands of the said Francis and afterwards thereof did enfeoff the said Garmons the Defendant c. The Tenant pleaded That the Plaintiff was never seised so as he could be disseised and if c. Nul tor nul disseisin which was found for the Plaintiff who had Iudgment and Execution upon which the Tenant brought a Writ of Error Stephens assigned Error First the Fine is levyed of two Manors inter alia so as no other Lands passed by the Fine besides the Manors and so the Rent is granted out of the said Lands and Manors and no other Lands which passed by the Fine and then upon the Plaintiffs own shewing it appears that all the Tenants of the Lands charged with the Rent in demand are not named in the Assize Second Error This Rent is granted only out of the Estate tail for Amy hath Fee in both as well the Rent as the Land and then when the Estate tail is determined the Rent is also determined and he hath not averred the life of the Tenant in tail or any of his Issue wherefore it shall be intended that he is dead without issue and then the Rent is gone and then he hath not any cause to have Assise Bourchier As to the first conceived and argued that it is not Error for although these words inter alia c. yet it shall not be intended that the Conusor had any other Lands or that the Rent is issuing out of other Lands than those two Manors which are expressed not inter alia As to the second the continuance of the tail needs not to be averred for the Tenant in tail hath enfeoffed the Tenant of the Land by which the estate tail is discontinued And although the Tenant in tail be dead without issue yet the Rent doth remain until Recovery of the Land by Formedon in the Remainder Fenner Iustice was of opinion Vaugh. Reâ— 175. That the Per nomen should go unto the Mannors only and should not extend to the inter alia For if a man in pleading saith that J.S. was seised of twenty acres of Land and thereof inter alia did enfeoff him per nomen of Green-wead the same shall not have reference to the inter alia but only to the twenty acres And the averment of the continuance of the Tail needs not for the Estate-tail is discontinued Gawdy Iustice was of opinion That the per nomen should go as well to the inter alia as to the two Manors and then all the Ter-tenants are not named in the Assise and the same not to be pleaded for it appears of the Plaintiffs own shewing and there needs no averment of the continuance of the Tail for the cause aforesaid Clench Iustice The per nomen doth refer to all which see by the Fine which shews that other Lands passed by the Fine than the said two Manors And as to the second point he said There needed no averment Gawdy As to the first Error the same cannot be saved by any way but to say That the Conusor was not seised of any other Lands than the said two Manors and then the Fine doth not extend unto it and then no Rent is granted out of it Fenner In the Common Pleas in the great case of Fines it was holden that in pleading of a Fine it needs not to say That the Conusor was seised for if the Conusor or Conusee were seised it is sufficient for such pleading is contrary in it self for a Fine sur conusance de droit come ceo c. doth suppose a precedent Gift It was also objected That here is a confusion in this Fine for the Rent is rendred to the Husband and Wife and to the Heirs of the Wife and the Land is rendred to the Husband and Wife for their lives the Remainder to Francis in Tail the remainder to the Wife and her Heirs And these matters cannot stand together in a Fine but the one will confound the other But as to that it was said that the Law shall Marshall these two renders so as they both shall stand And it is not like unto a Rent-service for a Rent-service issueth out of the whole Estate And therefore if a Remainder upon an Estate for life Eschears the Seigniory is gone even during the life of the Tenant for life which see 3 H. 6. 1. contrary of a Rent-charge For if the Grantee of a Rent in Fee purchaseth the remainder of the Land out of which it is depending out of an Estate for life he shall have the Rent during the life of the Tenant for life And of that opinion were all the three Iustices for the Conusors took by several Acts and the Estate is charged for it cometh under the Grant. Fenner Iustice There is a difference betwixt a Rent service and a Rent-charge or Common for that shall charge only the Possession but a Rent-charge shall charge the whole Estate And therefore if he who hath a Rent-service releaseth to him in the Remainder upon an Estate-tail or for life the Rent is extinct which Gawdy denied And this Case was put The Disseisee doth release to the Lessee for years of his Disseisor nihil operatur But if the Disseisor and Disseisee joyn in a Release to such Lessee the same is good for first it shall enure as the Release of the Disseisor and then of the Disseisee c. CCCXLIV Tedcastle and Hallywels Case Mich. 32 33 Eliz. In the Kings Bench. Debt 2 Roll. 594. 1 Cro. 234 235. IN Debt upon a Bond the Defendant pleaded That the Condition was That whereas John Hallywel had put himself to be an Apprentice to the Plaintiff if the Defendant John Hallywel during his Apprenticeship or any other for him by his consent or agreement take or riotously spend any of the Goods of his said Master the Plaintiff If then the Defendant within one month after notice thereof given to him do pay and satisfie the Plaintiff for all such sums of Monies Wares c. so taken or riotously spent by the Defendant or by any other by his procurement or consent the same being sufficiently proved that then c. The Defendant by protestation Quod nec
afterwards that this murder is dispunishable notwithstanding the Statute of 2 Ed. 6. CCCLXIV The Queen and Braybrooks Case Pasch 25 Eliz. In the Kings Bench. 3 Co. 1 2 c. THe Queen brought a Writ of Error against Braybrook The Case was this That King Ed. 4. was seised of the Manor of Marston and gave the same to Lionel Lord Norris and A.M. and the Heirs of the body of the Lord the Remainder to H. Norris in Tail L and A. entermarry L. suffered a common Recovery against himself only without naming the said A. Hen. Norris is attainted of high Treason by Act of Parliament and by the same Act all his Lands Tenements Hereditaments Rights Conditions c. the day of the Treason committed or ever after c. Hen. Norris is executed Lionel dieth without issue the Queen falsified the said Recovery for one moiety by Scire facias because Anne who was joint-tenant with Lionel was not named party to the said Recovery and afterwards the Queen granted to the Lord Norris Son of the said Hen. Norris Manerium suum de Merston omnia jura in eodem and now upon the said Recovery the Queen brought a Writ of Error and it was argued by Egerton the Queens Sollicitor that this right to a Writ of Error is such a right as is transferred to the Queen by the Act of Parliament for the words are omnia jura sua quaecunque and here is a right although not a present right yet a right although in futuro so it is a right of some quality as A. Tenant in Tail the Remainder in Tail to B.A. makes a Feoffment in Fee B. is attainted of high Treason and by such Act all his Lands c. given to the King. A. dieth without issue the Queen shall have a Formedon in the Remainder and although the Queen hath granted to the Lord Norris Manerium suum de Merston omnia jura in eodem yet by such general words a Writ of Error doth not pass which See 32 H. 8. Br. Patents 98. And also this Action rests in privity of record and cannot be displaced from thence but by Act of Parliament see Br. Chose in Action 14. 33 H. 8. for when the King will grant a thing in Action he ought in his Patent to recite all the circumstances of the matter as the Right and how it became a Right and because the Queen here doth not make mention of this Right as of the Entail the Recovery and the Attainder for that cause the Right doth not pass The Case betwixt Cromer and Cranmer 8 Eliz the Disseisee was attainted of Treason the Queen granted to the Heir of the Disseisee all the Right which came unto her by the Attainder of his Ancestor nothing passed Causa qua supra And always where the King grants any thing which he cannot grant but as King that such a grant without special words is to no purpose Coke contrary he agreed the Case put by Egerton for at the time of the Attainder B. had a Right of Remainder but in our Case Hen. Norris had not any Right but a possibility of a Right of Action i.e. a Writ of Error And he said that this Writ of Error is not forfeitable for it is an Action which rests in privity no more than a condition in gross as a Feoffment in Fee is made upon condition of the party of the Feoffor who is attainted ut supra This word Right in the Act of Attainder shall not transfer this Condition to the Queen and of the Act of Attainder to Hen. Norris it is to be conceived That the makers of the Act did not intend that by the word Right every right of any manner or quality whatsoever should pass to carry a Condition to the Queen and therefore we ought to conceive that the makers of the Act did not intend to touch Rights which rested in privity And as to the Grant of the Queen to the Lord Norris of the Mannor of Merston Et omnia jura sua in eodem he conceived that thereby the Right of the Writ of Error did pass for it is not like Cranmers Case but if in the said Case the Land it self had been set down in the Grant it had been good enough as that Cranmer being seised in Fee of the Manor of D. was there of disseised and so being disseised was attainted of high Treason now the Queen grants to his Heirs totum jus suum in his Manor of D c. and so in our Case the Queen hath granted to the Lord Norris Manerium suum de Merston omnia jura sua in eodem c. at another day it was moved by Plowden that this Right of Writ of Error was not transferred to the Queen by the Act but such Right might be saved to a stranger c. the words of the Act are omnia jura sua and this word sua is Pronomen possessionis by which it is to be conceived that no Right should pass but that which was a present Right as a Right in possession but this Right to a Writ of Error was not in Hen. Norris at the time of his Attainder but it was wholly in him against whom the erroneous Iudgment was had and therefore if in a Praecipe quod reddat the Tenant vouch and loseth and Iudgment is given and before Execution the Tenant is attainted by Act of Parliament by words ut supra and afterwards he is pardoned the Demandant sueth for Execution against the Tenant now notwithstanding this Attainder the Tenant may sue Execution against the Vouchee and afterwards Wray chief Iustice openly declared in Court the opinion of himself and all his companions Iustices and also of all the other Iustices to be That by this Act of Parliament by which all Lands Tenements Hereditaments and all Rights of any manner and quality whatsoever Henry Norris had the day of his Attainder or ever after Lionel then being alive and over-living the said Hen. Norris that this Writ of Error was not transferred to the Queen And that the said Act by the words aforesaid could not convey to the King this possibility of right for at the time of the Attainder the Right of the Writ of Error was in Lyonel and Hen. during the estate tail limited to Lyonell had not to do with the Land nor any matter concerning it And Iudgment was given accordingly And it was holden That he in the Reversion or Remainder upon an Estate tail might have a Writ of Error by the common Law upon a Recovery had against Tenant in tail in Reversion CCCLXV Mich. 25 26. Eliz. In the common Pleas. Copy-holder IN Trespass brought by a Copy-holder against the Lord for cutting down and carrying away his Trees c. It was found by special Verdict That the place where c. was Customary lands of the Plaintiffs holden of the Defendant and that the Trees whereof c. were Chery Trees de
because without summons but where summons issueth and the same is entred upon the Roll there may the vouchee at the Return appear in person or by Attorny at his Election And that was the clear opinion of all the Iustices and also of the Prothonotaries CV Keys and Steds Case Mich. 29 30 Eliz. In Communi Banco IN a Formedon by Keys against Sted the Case was the Sted and his Wife were Tenants for life Formodon 2 Len. 9. the Remainder over to a stranger in Fee and the Writ of Formedon brought against Sted only who made default after default whereupon came his Wife and prayed to be received to defend her right which was denied her by the Court for this Recovery doth not bind her and it is to no purpose for her to defend her right in that Action which cannot here be impearched Whereupon he in the Remainder came and prayed to be received and the Court at first doubted of the Receit forasmuch as if the Demandant shall have Iudgment to recover he in the Remainder might falsify the Recovery because his estate upon which he prayeth to be received doth not depend upon the estate impleaded scil a sole estate whereas his Remainder doth depend upon a joynt estate in the Husband and Wife Falsifier of Recovery not named in the Writ But at the last notwithstanding the said Exception the Receit was granted See 40 E. 3. 12. CVI. Liveseys Case Mich. 29 30 Eliz. In Communi Banco Writ of Right IN a Writ of Right against Thomas Livesey of the Mannor of D. de duabus partibus Custodiae Forrestae de C. the Tenant did demand the view and he had it and return was made and now the Writ of Habere facias visum was viewed by the Court and it was Visum Manerii duarum partium Custodiae c. And it was holden by the Court not to be a sufficient view for the Forrest it self ought to be put in view scil the whole Forrest View and not duae partes tantum as where a Rent or Common is demanded the Land out of which the Rent or Common is going ought to be put in view and there a Writ of Habere facias visum de novo issued forth CVII Germys Case Mich. 29 30 Eliz. In Communi Banco GErmy brought Debt upon a Bond against A. as Executor Debt 2 Len. 119. and the Case was That the Testator of A. by his Will did appoint certain Lands and named which should be sold by his Executors and the moneys thereof arising distributed amongst his Daughters when they have accomplished their ages of one and twenty years the Lands are sold if the moneys thereof being in the hands of the Executors until the full age of the Daughters shall be assets to pay the debts of the Testator And by the clear opinion of the whole Court Assets Post 224. the same shall not be assets for that this money is limited to a special use CVIII Mich. 29 30 Eliz. In Communi Banco IN an Action of Debt upon an Obligation the Defendant saith that the Plaintiff shall not be answered for he is out-lawed and shewed the Outlawry in certain by the name of I. S. of D. in the County of c. The Plaintiff shewed that at the time of the sute begun against I.S. upon whom the Out-lawry was pronounced the said I.S. now Plaintiff was dwelling at S. absque hoc that he was dwelling at D. Vide 21 H. 7. 13. And it was holden a good Replication to avoid the Out-lawry without a Writ of Error by Anderson 10 E. 4. 12. For if he were not dwelling at D. then he cannot be intended the same person See 39 H. 6. 1. CIX Mich. 29 30 Eliz. In Communi Banco IT was agreed by the whole Court and affirmed by the Prothonotaries That if in Account the Defendant be adjudged to account and be taken by a Capias ad computandum and set to mainprize pendent the Account before the Auditors and doth not keep his day before them that now a Capias ad computandum de novo shall issue forth against him CX Glosse and Haymans Case Mich. 29 30 Eliz. In the Common Pleas. JOan Glosse brought an Action of Trespass vi armis Trespass vi armis against a Servant for carrying away his Masters goods Owen 52. Morâ— 248. against John Hayman who pleaded the general Issue and the Iury found this special matter That the Plaintiff was a Grocer in Ipswich and there held a Shop of Grocery quod illa reposuit fiduciam in the Defendant to sell the Grocery Wares of the Plaintiff in the said Shop And further found that the said Defendant being in the said Shop in form aforesaid cepit asportavit the said Wares and did convert them c. It was moved in Arrest of Iudgment that this Action vi armis upon this matter doth not lie but rather an Action upon the Case But the Court was clear of opinion that the Action doth well lie for when the Defendant was in the Shop aforesaid the Goods and Wares did remain in the custody and possession of the Plaintiff her self And the Defendant hath not any Interest possession or other thing in them and therefore if he entermeddle with them in any other manner than by uttering of them by sale according to the authority to him committed he is a Trespassor for he hath not any authority to carry the Wares out of the Shop not sold but all his authority is within the Shop And Rodes put the Case of Littleton 25. If I deliver my Sheep to another to manure his Land or my Oxen to plow his Land and afterwards he kills them I shall have an Action of Trespass against him And afterwards Iudgment was given for the Plaintiff CXI Martin and Stedds Case Mich. 29 30 Eliz. RIchard Martin Alderman of London brought an Action upon the Case against Stedd and declared That whereas the Queen by her Letters Patents dated the 27. of August anno 24. of her Reign had granted to the Plaintiff the Office of Master of the Mint through all England to exercise the said Office secundum formam quarundam Indent betwixt the said Queen and the said Plaintiff conficiendam and that in January following the said Indenture was made by which it was agreed betwixt the said Queen and the Plaintiff that the money in posterum should be made in such manner c. according to the true Standard and declared that he had duly and lawfully made all the money according to the said Standard Yet the Defendant machinans c. had slanderously spoken and given out speeches in these words Mr. Martin hath not made the money as good and fine as the Standard by an half penny in the ounce and so he hath saved four thousand pounds It was objected against this Declaration by Walmesley Serjeant that here the Plantiff hath declared upon
as in case where the Husband died seised Dy. 370. the which dying seised is not found by the Verdict In which Case it was said by the Court the Demandant might pray Iudgment of the Lands and release damages or the Demandant may aver that the Husband died seised and have a Writ to enquire of the damages quod omnes Pregnotarii concesserunt CXIX Michel and Hydes Case Mich. 29 30 Eliz. In the Common Pleas. Dower DOwer by Michel and his Wife against Lawrence Hyde who appeared upon the grand Cape And it was because that the said Hyde in truth was but Lessee for years of the Land of which c. in which case he might plead non-tenure if now he might wage his Law of non-summons so as the Writ be abated for by the wager of Law he hath taken upon him the Tenancy and affirmed himself to be Tenant 33 H. 6. 2. by Prisoit to which it was said by Rhodes and Windham Iustices that here the Tenant being but Lessee for years is not at any mischief for if Iudgment and Execution be had against him he notwithstanding might afterwards enter upon the Demandant Another matter was moved That where the Writ of Dower was de tertia parte Rectoriae de D. and upon that the grand Cape issued Cape in manum nostram tertiam partem Rectoriae and the Sheriff by colour of this Writ took the Tythes severed from the nine parts and carried them away with him And it was agreed by the said Iustices that the same is not such a seisure as is intended by the said Writ but the Sheriff by virtue of such Writ ought generally to seize but leave them there where he found them And the Court was of opinion to commit the Sheriff to Prison for such his misdemeanor CXX Hamington and Ryders Case Mich. 29 30 Eliz. In the Common Pleas. RIchard Haming Executor of Isabel Haming brought Debt upon an Obligation against Ryder Debt Savil Rep. 74. Owen Rep. 6. 1 Co. 52. 1 Andâ— 162. the Case was that Kidwelly was seised leased for years to John Hamington Husband of Isabel and afterwards John Hamington being so possessed by his will devised that the said Isabel should have the use and occupation of the said Land for all the years of the said Term as she should live and remain sole and if she died or married that then his Son should have the residue of the said Term not expired John died Isabel entred Devises to whom the said Lawr. coveyed by Feoffment the said Land in Fee and in the Indenture of the said Conveyance Lawr. covenanted that the said Land from thence should be clearly exouerated de omnibus prioribus barganijs titulis juribus omnibus alijs oneribus quibuscunque Isabel took to Husband the Son entreth If now the Covenant be broken was the question It seemed to Anderson at the first motion that this possibility which was in the Son at the time of the Feoffment was not any of the things mentioned in the Covenant scil former bargain title right or charge But yet it was conceived by him that the word bargain did extend to it for every Lease for years is a contract and although that the Land at the time of the Feoffment was not charged yet it was not discharged of the former contract And by Windham if I be bounden in a Statute-staple and afterwards I bargain and sell my Lands and covenant ut supra here the Land is not charged but if after the condition contained in the defeazance be broken so as the Conusee extends now the Covenant is broken And by him the word charge doth extend to a possibility and this possibility might be extinct by Livery as all agreed but not translated by grant Ante 33. 3 Len. 43. Covenant or extinguished by release as it was lately adjudged in the Case of one Carter At another day it was argued by Walmesley and he much relied upon the words clearly exonerated utterly discharged or altogether exonerated and without doubt it is a charge which may happen and if it may happen then the Land is not clare exonerated And also former bargains do extend to it and the Term is not extinct by the acceptance of the Feoffment aforesaid of Kidwelly and although that at the time of the Feoffment it was but a possibility and no certain interest yet now upon the marriage of Isabel it is become an actual burthen and charge upon the Land and he cited a Case adjudged 8 Eliz. A man seised of Lands grants a Rent-charge to begin at a day to come before which day he bargains and sells the Lands and covenants that the said Lands are discharged of all charges in that case when the day when the Rent ought to begin is incurred the Covenant is clearly broken for the Lands were not clearly exonerated c. At another day the Case was moved at the Bar. And Anderson openly in Court declared that he and all his companions were agreed that the Land at the time of the Feoffment was not discharged of all former Rights Titles and charges and therefore commanded that Iudgment should be entred for the Plaintiff CXXI Howel and Trivanians Case Hill. 30 Eliz. In the Kings Bench. HOwel brought an Action upon the Case against Trivanian in the Common Pleas and declared Assumpsit that he delivered certain goods to the brother of the Defendant who made the Defendant his Executor and died after which the Plaintiff came to the Defendant and spake with him concerning the said goods upon which communication and speech the Defendant promised the Plaintiff that if the Plaintiff could prove that the said goods were delivered to the Testator 2 Roll. 594. that he would pay the value of them to the Plaintiff And the Declaration was in consideration that the said goods came to the hands of the Testator and also afterwards the goods came to the Defendants hands and upon non Assumpsit pleaded It was found for the Plaintiff and Iudgment given And afterwards Error was brought in the Kings Bench and Error assigned because that the Plaintiff had not averred in his Declaration that he had proved the delivery of the said goods to the said Testator 1 Cro. 105. for the words of the promise are si probare potuisset And also it was assigned for Error that here is not any consideration upon which this promise could receive any strength for the Defendant hath not any profit or advantage thereby scil by the bailment of the said goods to the Brother of the Defendant And also it is a thing before executed and not depending upon the promise nor the promise upon it As the Case reported by the Lord Dyer 10 Eliz. 272. The Servant is arrested in London and two men to whom the Master is well known bail the said Servant and after the Master promiseth to them for their friend-ship to save them harmless from all costs
plead it specially but as our case is here is no Act to be done but a permittance as abovesaid and it is in the Negative not a disturbance in which case permisit is a good plea and then it shall come on the other side on the Plaintiffs part to shew in what Lands the Defendant non permisit Which difference see agreed 17 E. 4. 26. by the whole Court. And such was the opinion of the whole Court in the principal case 1 Co. 127. Another Exception was taken to it that the Defendant had covenanted that his brother Edward should pay to the Plaintiff the said Rent To which the Defendant pleaded that his said brother had payed to the Platntiff before the said Feast of Michaelmas in full satisfaction of the said Rent three shillings and that was holden a good plea and upon the matter the Covenant well performed for there is not any Rent in this Case for here is not any Lease and therefore not any Rent For if A. covenant with B. that C. shall have his Land for so many years rendring such a Rent 1 Roll. 847. 1 Cro. 173. Owen 97. here is not any Lease and therefore neither Rent But if A. had covenanted with C. himself it had been otherwise because it is betwixt the same parties And if the Lessee covenant to pay his Rent to the Lessor and he payeth it before the day the same is not any performance of the Covenant causa patet contrary of a sum in gross Another Covenant was that the said Humphry solveret ex parte dicti Edwardi 20 l. to which the Defendant pleaded that he had paid ex parte dicti Humfridi 20 l. and that defect was holden incureable and therefore the Plaintiff had Iudgment to recover CLXXXVII Geslin and Warburtons Case Mich. 30 Eliz. In the Common Pleas. 1 Cro. 128. IN an Ejectione firmae by Joan Geslin against Hen. Warburton and Sebastian Crispe of Lands in Dickilborough in the County of Norf. Mich. 30. 31 Eliz. rot 333. upon the general Issue the Iury found a special verdict that before the Trespass supposed one Martin Frenze was seised of the Lands of which the Action was brought in tail to him and his Heirs males of his body so seised suffered a common Recovery to his own use Devises and afterwards devised the same in this manner I give my said Land to Margaret my Wife until such time as Prudence my Daughter shall accomplish the age of nineteen years the Reversion to the said Prudence my Daughter and to the Heirs of her body Lawfully begotten upon condition that she the said Prudence shall pay unto my said Wife yearly during her life in recompence of her Dower of and in all my Lands 12 pounds and if default of payment be made then I will that my said Wife shall enter and have all my Lands during her life c. the Remainder ut supra the Remainder to John Frenze in tail c. Martin Frenze died Margaret entred the said Prudence being within the age of fourteen years Margaret took to Husband one of the Defendants John Frenze being Heir male to the former tail brought a Writ of Error upon the said Recovery and assigned Error because the Writ of Entry upon which the Recovery was had was Praecipe quod reddat unum Messuag and twenty acras prati in Dickelborough Linford Hamblets without naming any Town And thereupon the Iudgment was reversed And it was further found that in the said Writ of Error and the process upon it Hutt 106. 2 Cro. 574. 3 Cro. 196. no Writ of Scire facias issued to warn dictam Prudentiam ten existentem liberi ten praemissorum ad ostendendam quid haberet vel dicere sciret quare Judicium praedict non reversaretur The Iury further found that the said Margaret depending the said Writ of Error was possessed virtute Testamenti ultimae voluntatis dict Martini reversione inde expectant dictae Prudentiae pro ut lex postulat And they further found Error that six pound of the said tewlve pounds were unpaid to the said Margaret at the Feast c. and they found that the said John Frenze praetextu Judicii sic reversat entred into the premisses as Heir male ut supra And so seised a Fine was levyed betwixt John Frenze Plaintiff and one Edward Tindal Owen 157. Dyer 321. 1 Cro. 471. 739. and the said Prudence his Wife Deforceants and that was to the use of the said John Frenze And that afterwards Humphry Warburton and the said Margaret his Wife brought a Writ of Dower against the said John Frenze Edw. Tindal and Prudence his Wife of the said Lands The said Edward and Prudence made default and the Demandants counted against the said Frenze and demanded against him the moity of the third part of the said Lands To which the said Frenze pleaded that the default of the said Edward and Prudence idem John Frenze nomine non debet quia he said that he the said John was sole seised of the Lands aforesaid at the time of the Writ brought c. and pleaded in Bar and it was found against the said John and Iudgment given for the Demandants of the third part of the whole Land and seisin accordingly And that afterwards 17 Eliz. the said Frenze levyed the Fine to the said Tindal to the use of the said Tindal and his Heirs And they found that after the said Feast the said Henry Warburton and Margaret his Wife came to the Messuage aforesaid half an hour before Sun-set of the said day and there did demand the Debt of the said twelve pounds Dower to the said Margaret by the said Martin Frenze devised to be paid unto them and there remained till after Sun-set of the said day demanding the Rent aforesaid and that neither the said Tindal nor any other was there ready to pay the same And first it was moved if the said yearly sum of twelve pounds appointed to be paid to the said Margaret were a Rent or but a sum in gross And the opinion of the Court was that it was a Rent and so it might be fitly collected out of the whole Will where it is said that Prudence his Daughter should have the Land and that she should pay yearly to Margaret twelve pounds in recompence of her Dower c. But if it be not a Rent but a sum in gross it is not much material to the end of the case For put case it be a Rent the same not being pleaded in Bar the Dower is well recovered and then when default of payment is made if the Wife of the Devisor shall have the whole was the Question And the Court was clear of opinion that by the suit and Iudgment in the Writ of Dower the Wife of the Devisor had lost all the benefit which was to come to her by the devise For the said Rent was devised to her in recompence of
second Lessee and declared upon a Lease made for years without speaking of the Indenture And Gawdy Serjeant demanded the opinion of the Court if the Defendant might safely plead no Wast And they conceived that it should be dangerous so to do Then it was demanded if the Defendant plead that the Plaintiff had nothing tempore dimissionis whereof he had counted if the Plaintiff might estop the Defendant by the Indenture although he had not counted upon it and if such Replication be not a departure And it seemed to Periam and Leonard Custos brevium that it was not for it is not contrary to the Declaration but rather doth enforce the Declaration CCXXI Mich. 31 Eliz. In the Common Pleas. WAlmesley Serjeant demanded the opinion of the Court upon this matter Land is given to Husband and Wife in special tail during the Coverture they have issue the Husband is attainted of Treason and dieth the Wife continues in as Tenant in tail the issue is restored by Parliament and made inheritable to his Father saving unto the King all advantages which were devolded unto him by the Attainder of his Father the Wife dieth And he conceived that the issue was inheritable for the Attainder which disturbed the inheritance is removed and the blood is restored and nothing can accrue to the King for the Father had not any estate forfeitable but all the estate did survive to the Wife not impeachable by the said Attainder And when the Wife dieth then is the Issue capable to enherit the estate tail Windham and Rhodes prima facie thought the contrary yet they agreed that if the Wife had suffered a common Recovery the sâ—me had bound the King. CCXXII Mich. 31 Eliz. In the Common Pleas. IN an Action upon the Case the Plaintiff declared Assumpsit that he had delivered to the Defendant diversa bona ad valentiam 10 li. the Defendant in consideration thereof did promise to pay to the Plaintiff the Debt owing pro bonis praedictis and did not shew that the Defendant bought the said goods of the Plaintiff and so it doth not appear that there was any Debt and then a promise to pay it is meerly void which was agreed by the whole Court. CCXXIII. Seaman and Brownings Case Mich. 31 Eliz. In the Common Pleas. GEorge Seaman brought Debt upon a Bond against W. Browning and others Executors of one Marshal the condition was Debt that where the said Marshal had sold certain Lands to the Plaintiff if the said Plaintiff peaceably and quietly enjoy the said Lands against the said Marshal c. and assigned the breach in this that the said Marshal had entred upon him and cut down five Elms there upon which the parties were at issue And it was found that A. servant of the said Marshal by commandment of his said Master had entred and cut c. in the presence of his said Master and by his commandment for he is a principal Trespassor And it was so holden by the Court. CCXXIV. Mich. 31 Eliz. In the Common Pleas. IF the Kings Tenant by Knights service dieth his Heir within age 8 Co. 172. and upon Office found the King seiseth the Body and Land yet the Heir during the possession of the King may sell the Lands by Deed enrolled or make a Lease of such Land and the same shall bind the Heir notwithstanding the possession of the King but if he maketh a Feoffment in Fee it is utterly void for the same is an intrusion upon the possession of the King but where the King by Office found is entituled to the Inheritance as that his Tenant dieth without Heir whereas it is false for which the King seiseth in such case the Tenant of the King before his Ouster le mayne cannot make a Lease for years or sell the Land by Deed enrolled The Case depended in London before the Iudges of the Sheriffs Court. The King by colour of a false Office which doth falsly entitle him to the Inheritance is seised of certain Land he who hath right leased the same for years by Deed indented and then an Ouster le mayne was sued and he enfeoffed a stranger And it was holden that the Lease should not bind the Feoffee although it was by Deed indented for the Feoffee is a stranger to the Indenture and therefore shall not be estopped by it 18 H. 6. 22. A stranger shall not take advantage of an Estoppel and therefore shall not be bound by it As if one take a Lease for years by Indenture of his own Lands the same shall bind him but if he dieth without Heir it shall not bind the Lord in point of Escheat CCXXV. Gibbs Case Mich. 31 Eliz. In the Common Pleas. Trover and Conversion 1 Cro. 861. Owen 27. GIbbs brought an Action upon the Case upon Trover and Conversion of a Gelding and the Case was that one P. had stolen the said Horse and sold the same unto the Defendant in open Market by the name of Lister and the said false name was entred in the Toll-book And it was holden clear by the Court that by that sale the property was not altered CCXXVI Mich. 31 Eliz. In the Common Pleas. Owen 45. Hutton 105. 1 Cro. 734. Post 322. TEnant in Socage leased his Lands for four years and died his Heir within the age of eight years the Mother being Guardian in Socage leased the Land by Indenture to the same Lessee for fourteen years It was holden by the Court that in this Case the first lease is surrendred but otherwise upon a Lease made by Guardian by Nurture CCXXVII Kimpton and Dawbenets Case Mich. 31 Eliz. In the Common Pleas. IN Trespass the Defendant did justifie by a grant of the Land where c. by Copy The Plaintiff by Replication saith that the Land is customary Land ut supra and claimed the same by a former Copy The Defendant by Rejoynder saith that well and true it is that the Lord may grant Copies in possession at his pleasure and also estates by Copy in Reversion with the assent of the Copy-holder in possession but all estates granted by Copy in Reversion without such assent have been void It was argued that this custom is not good for it is not reason that the Lord in disposing of the customary possessions of his Manor should depend upon the will of his Tenant at will and the same is not like to the case of Attornment for there the Attendancy is to be respited which is not to be done here for the Copy-holder in possession shall continue attendant to his Lord notwithstanding such a grant in Reversion And see for the unreasonableness of the custom 19 Eliz. 357. in Dyer Sallfords Case It was moved on the other side that the Custom was good enough and 3 H. 6. 45. was vouched That every Freehold of a Manour upon alienation might surrender his Land c. It was adjourned CCXXVIII Marriot and Pascalls Case in a Writ of
upon a Deed. Hutt 102. Dy. 91. 2 Co. 61. 1 Ma. Dyer 91. and also the wife by her disagreement to it and the occupation of the Land after the death of her Husband hath made it the Lease of the Husband only CCLXXV Rockwood and Rockwoods Case Mich. 31 32 Eliz. In the Common Pleas. Assumpsit 1 Cro. 163. IN an Action upon the case the case was this The Father of the Plaintiff and Defendant being sick and in danger of death and incending to make his Will In the presence of both his Sons the Plaintiff and Defendant declared his meaning to be To devise to the Plaintiff his younger Son a Rent of 4 l. per annum for the term of his life out of his Lands and the Defendant being the eldest Son the intention of his Father being to charge the Land with the said Rent offered to his Father and Brother That if the Father would forbear to charge the Land with the said Rent he promised he would pay the 4 l. yearly to his Brother during the life of his Brother according to the intention of his said Father Whereupon the Father asked the Plaintiff if he would accept of the offer and promised of his Brother who answered he would whereupon the Father relying upon the promise of his said eldest Son forbore to devise the said Rent c. so as the Land descended to the Eldest Son discharged of the Rent and the opinion of the whole Court in this case was clear that upon the whole matter the action did well lye CCLXXVI Petty and Trivilians Case Mich. 31 32 Eliz. In the Common Pleas. Livery of seisin HUmphrey Petty brought Second Deliverance against William Trivilian and upon especial verdict the case was That A. was seised of certain Land and Leased the same for years and afterwards made a Deed of Feoffment unto B. and a Letter of Attorney to the Lessee C. and D. conjunctim vel divisim in omnia singula terras et Tenementa intrate et seisinam inde c. secundum formam Chartae c. Lessee for years by himself makes Livery and seisin in one part of the Land and C. in another part and D. by himself in another part It was first agreed by the Iustices that by that Livery by Lessee for years his Interest and Term is not determined for whatsoever he doth he doth it as an Officer or Servant to the Lessor Secondly It was agreed That these several Liveries were good and warranted by the Letter of Attorney especially by reason of these words In omnia singula c. So as all of them and every of them might enter and make Livery in any and every part And so it was adjudged CCLXXVII Rigden and Palmers Case Mich. 31 32 Eliz. In the Common Pleas. RIgden brought a Replevin against Palmer who avowed for damage feasant in his Freehold The Plaintiff said Replevin That long time before that Palmer had any thing he himself was seised until by A. B. and C disseissed against whom he brought an Assise and recovered Avowry and the estate of the Plaintiff was mean between the Assise and the recovery in it The Defendant said That long time before the Plaintiff had any thing One Griffith was seised and did enfeoff him absque hoc that the said A. B. and C. vel eorum aliquis aliquid habuere in the Lands at the time of the Recovery Walmsley Iustice was of opinion That the Bar unto the Avowry was not good for that the Plaintiff hath not alledged That A.B. and C. Ter-Tenants tempore recuperationis and that ought to be shewed in every recovery where it is pleaded And then when the Defendant traverseth that which is not alledged it is not good Windham contrary For the Assise might be brought against others as well as the Tenants as against disseisors But other real actions ought to be brought against the ter-Ter-Tenants only and therefore it needs not to shew that they were ter-Ter-Tenants at the time of the Recovery and also the traverse here is well enough Another Exception was taken because the Avowry is That the place in which conteineth an 100 Acres of Land The Plaintiff in bar of the Avowry saith that the place in which c. conteins 35 Acres c. but that Exception was not allowed for it is but matter of form is helped by the Statute of 27 Eliz. Another Exception was taken as to the hundred of Cattel and doth not shew in certain if they were Ewes Sty 71. 264. or Lambs or how many of each which also was dissallowed for the Sheriff upon Returno habendo may enquire what cattel they were in certain and so by such means the Avowry shall be reduced to certainty CCLXXVIII RUssell and Prats Case Mich. 31 32 Eliz. In the Exchequer Chamber RUsell brought an action upon the case against Prat and declared That certain goods of the Testator casually came to the Defendants hands and upon matter in Law Iudgment was given for the Plaintiff sed quia nescitur quae damna Error c. Ideo a writ of Enquiry of Damages issued and now Prat brought a Writ of Error in the Exchequer Chamber upon the Statute of 27 Eliz. cap. 8. But note That the Iudgment was given before the said Statute but the Writ of Enquiry of Damages was retorned after the said Statute Writ of Enquiry of Damages the said Statute doth not extend but to Iudgments given after the making of it And it was moved That the said Iudgment is not to be examined here but by the clear opinion of Anderson Manwood Windham Walmesley Gent and Clark Iustices of the Common Pleas and Barons of the Exchequer the Writ of Error lyeth here by the Statute 1 Cro. 235. for in an action of Trespass as this case is full judgment is not given until the Writ of damages be retorned And if before the Retorn of it any of the parties dieth the Writ shall abate and the first Iudgâ—ent which is given before Award of the Writ is not properly a Iudgment but rather a Rule and order and so in a Writ of accompt where Iudgment is given that the Defendant computet cum querente he shall not have Error upon that matter for it is not a full Iudgment See 21 E. 3. 9. So as to the Iudgment in a Writ of Trespass scil That no Writ of Error lyeth before the second Iudgment after the Return of the Writ of Enquiry of Damages are given And also it was holden by all the said Iustices and Barons That an Executor shall have an action upon the case de bonis testatoris casually come to the hands and possession of another Action de bonis Testatoris and by him converted to his own use in the life of the Testator and that by the Equity of the Statute of 4 E. 3. 7. de bonis asportatis in vita Testatoris
all Lands which are ancient Demesn are holden in Socage so as they were all Husbandmen who manured their Lands for the sustentation of the Kings Subjects to which they had such such priviledges to be the better able to follow their Husbandry and therefore to disable such profitable Subjects and to prescribe against these Liberties and Priviledges is to take away the name of ancient Demesn and to make their Lands at the common Law. Hobart contrary To shew the authority to demand is not necessary for our Prescription is not upon demand to distrain For the common Officer hath authority to demand for they ought to demand it who ought to take the thing demanded and those are the Bailiffs and Burgesses and then when their Water-bayly doth it it is as much as if it had been done by the corporation which see 48 E. 3. 17. The Mayor and comminalty of Lincoln brought an action of covenant against the Mayor and comminalty of Derby and declared that the Mayor and comminalty of Derby had covenanted with the Mayor and comminalty of Lin. that they should be quit of Murage Pontage Custom and Toll within the Town of Derby of all Merchandises of those of the Town of Lin. and further declared That I.W. and H.M. two Burgesses of the Town of Derby had taken certain Toll of certain Burgesses of the Town of Lin. c. Exception was taken to this Declaration because they had alleadged the taking of such Toll not by the corporation of Derby but by I. and H. two of the Burgesses of it in which case the Plaintiffs might have an action of Trespass against the Burgesses for the act of any of the corporation is not the breaking of the covenant made by the comminalty but it was not allowed for if the common Officer of the Town doth any thing for their common use as it is intended such thing was done by the Officer it is reason all the Town be answerable for it and the whole comminalty by intendment cannot come at one time to take c. and so in our case for as much as the corporation ought to make the demand and their common Officer doth it to their use the same is the act of the whole corporation As to the matter in Law we have pleaded specially That we took Toll only of those things which are brought by Sea by Merchants and not otherwise and I conceive that Tenants in ancient Demesn are not discharged of Toll for all things but only for such which arise out of their Tenements or are bought for their Tenements or Families there and their sustentations according to the quantity of their Tenements 9 H. 6. 25. 19 H. 6. 66. They shall be quit of Toll of all things sold and bought coming of their Lands or for the manurance of their Lands And 7 H. 4. 111. Tenants of ancient Demesn ought to be quit of Toll for Oxen or Beasts bought and sold for tillage and manurance of their Lands and for their sustenance and maintenance of their Families and for putting them to Pasture to make them fat and more vendable and so to sell them c. And see accordingly F.N.B. 224. D. See Crook 138. 139. 28 Eliz. A Iudgment was given for the said parties for the Plaintiffs but there the Plaintiff declared generally and the Defendant did demur in Law generally wherefore by common intendment the Cattel were bought for the tillage and manurance of their Lands For there it was not shewed as it is here that it was to Merchandize Also we have justified not only for Toll but also for Trouage and that they have not shewed and therefore as to the Trouage our justification is good enough for their priviledge shall not be construed to extend beyond the words of it As the priviledge of the Law is That if I leave my horse at a Smiths Forge to be shod there my horse cannot be distrained but if I or my Servant take the Saddle from the Horses back and lay it in the Smiths Forge the Saddle may be distrained Then here are two customs meeting together and to begin together and the one was not before the other then the particular custom shall stand And I conceive that by the Writ de exoneratione sect Fitz. N. B. 161. b. The Tenants in ancient Demesn have not always such priviledges for the Writ saith quod si ita sit then c. and nisi ipsi eorum antecessores tenentes de eodem manerio venire consueverunt temporibus retroactis and see the same matter in the Register 181. And afterwards Iudgment was given quod querens nihil capiat par billam for the Iustices were of opinion that the Tenants in ancient Demesn should pay Toll for their Merchandizes CCCXVI. Lancaster and Lucas Case Mich. 32 33 Eliz. in the Kings Bench. TRespass was brought for entring into the Parsonage-house of Ringhall and divers Lands appertaining to it Leasâ—â— The Defendant being Farmor of the Parsonage pleaded Not guilty and the Iury found that one Tybbin was Parson of the said Church and that one Ash and Dorothy his Wife Wivell and Drausfield were Patrons of the said Church scil Ash and his Wife in the Right of his Wife Wivell as Tenant by the Curtesie the Reversion to his Son and Drausfield also as Tenant by the Curtesie but without Issue by his Wife c. so as the Inheritance of the said Parsonage was in Wivell and Ash and afterwards the Bishop of Chester being Ordinary the Parson and Patron 4 E. 6. joyned in a Lease of the Rectory which Lease was void as to the Wife of Ash to S. who assigned it to the Defendant All the Lessors dyed and further found that Ash and Wivell were Heirs of the Patronage and that the Church being void the Presentment came to the Bishop by reason of Lapse and that the Successor of the Bishop had Collated his Clark. Cook argued And he conceived that the same now Incumbent should avoid the Lease in toto and the case is but this Three Coparceners Patrons of an Advowson or Tenants in Common the Parson three Patrons and the Ordinary joyn in a Lease where the one of them is a Feme-covert and so her Act void If the Successor of the Incumbent being presented by Lapse shall avoid it in all And he conceived that he should for all three have interest in the Parsonage and all three ought to agree but the agreement of the one is worth nothing But it hath been said that that is but matter of assent and that the assent of the one is as strong as the assent of them all Attoâ—nment As if many Ioynt-tenants hold by certain Services and the Lord granteth the Services to a stranger and one of the Ioynt-tenants attorneth to the Grant the same is as sufficient as if they had all attorned Lit. 128. 566. Otherwise it is of a Rent-charge for there all the Ioynt-tenants of the Lands charged
of her Dower of all his Lands and dyed and the said A. took to Husband the Defendant And that after betwixt the Plaintiff and Defendant colloquium quoddam habebatur c. upon which conference and communication the Defendant in consideration that the Plaintiff promised to pay to him the said one hundred pounds promised to make to him a discharge of the said one hundred pounds and also of the Dower of his Wife and shewed further that notwithstanding that the said Pett was ready and offered the said one hundred pounds and Dower also yet c. Vpon which there was a Demurrer in Law It was moved by Tan. that here is not any cause to have a prohibition for the agreement upon the communication is not any cause for it doth not appear that it was performed Coke A Prohibition lieth for the Wife cannot have both money and Dower for that was not the meaning of the Devisor and therefore it hath been holden that if a man deviseth a Term for years to his Wife in satisfaction and recompence of her Dower if she recovereth Dower she hath lost her Term Also here is modus and conventio which alters the Law scil mutual agreement So if the Parson and one of the Parishioners agree betwixt them that for forty shillings per annum he shall retain his Tithes for three years c. as it was in the Case betwixt Green and Pendleton c. it is good CCCXIX. Martingdall and Andrews Case Mich. 32 33. Eliz. In Banco Regis Action upon the case for Wast IN an Action upon the Case the Plaintiff declared that one Mildmay was seised of a House in A. and that he and all those whose estate c. time out of mind c. have had a way over certain Lands of the Defendants called C. pro quibusdam averiis suis and shewed that the said Mildmay enfeoffed him of the said House and that the Defendant stopt the said way to his damage c. And it was found for the Plaintiff and it was moved in Arrest of Iudgment that the title to the way is not certainly set forth i.e. pro quibusdam averiis suis quod omnes Justiciarii concesserunt But Gawdy Iustice conceived that the same was no cause to stay Iudgment For it appeareth to us that the Plaintiff hath cause of Action although that the matter be incertainly alleadged and of this incertainty the Defendant hath lost the advantage having surceased his time by pleading to it as 20 E. 3. Trespass for taking and carrying away of Charters the Defendant pleaded Not guilty and it was found for the Plaintiff to the damage c. And Error was brought because the Plaintiff had not set down in his Declaration the certainty of the Lands comprized in the Charters But non allocatur for the Defendant ought to have challenged that before and also 47 E. 3. 3. In a Writ of Covenant the Plaintiff declared of a Covenant by which the Defendant covenanted with the Plaintiff to assure to him all his Lands and Tenements which he had in the Counties of Gloucester and Lincoln and declared that at a certain day he required the Defendant to make him assurance of all the Lands c. And the Writ of Covenant was general quod teneat conventionem de omnibus terris quas habeat in c. And it was objected as here that the Writ wanted certainty as how many Acres or such a Mannor but non allocatur for here the Plaintiff is not to recover Land but only Damages and the Writ was awarded good Fenner Iustice the Cases are not like to the Case at Bar for in the said Cases the certainty is not needful but for the taxing of the Damages but here the certainty of the number of the Cattel is part of the title CCCXX Beale and Taylors Case Mich. 32 33 Eliz. In the Kings Bench. UPon Evidence to a Iury Leases 1 Cro. 222. it was holden by Gawdy and Clench Iustices that if a Lease for years be made and the Lessor covenants to repair during the Term if now the Lessor will not do it the Lessee himself may do it and pay himself by way of Retainer of so much out of the Rent which see 12 H. 8. 1. 14 H. 4. 316. Retainer of Rent A Lease for years by Indenture and the Lessor covenants to repair the Houses and afterwards the Lessor commands the Lessee to mend the Houses with the Rent who doth it accordingly and expends the Rent in the charges c. So 11 R. 2. Bar. 242. The Lessor covenants that the Lessee shall repair the Tenements when they are ruinous at the charge of the Lessor In debt for the Rent the Lessee pleaded that matter and that according to the Covenant he had repaired the Tenements being then ruinous with the Rent and demanded Iudgment if action Jones 242. Yelv. 43. c. and good Fenner Iustice contrary for each shall have action against the other if there be not an express Covenant to do it Quaere If the Lessor covenant to discharge the Land leased and the Lessee of all Rent-Charges issuing out of it If a Rent-charge be due if the Lessee may pay it out of his own Rent to the Lessor ad quod non fuit responsum CCCXXI. Offley and Saltingston and Paynes Case Mich. 32 33 Eliz. In the Kings Bench. OFfley and Saltingston late Sheriffs of London Escape 1 Cro. 237. brought an Action upon the Case against Payne because that he being in Execution under their custody for fifty three pounds in which he was condemned at the Suit of one Spicer made an escape the debt not satisfied by reason whereof they were compelled to pay the money The Defendant confessed all the matter but further pleaded that after the Escape Spicer had acknowledged satisfaction being after the Escape upon Record of the sum recovered upon which there was a Demurrer Owen Serjeant argued that the acknowleding of satisfaction being after the Escape was not any Plea for when the Plaintiffs Sheriffs have paid the money recovered there was no reason that Spicers acknowledging satisfaction should stop the Sheriffs of their Remedy against Payne It was holden by the Iustices that the Plaintiffs in this Action ought to shew that they had been impleaded by him who recovered for they cannot have this Action before they are sued For perhaps the Plaintiffs who recovered must be contented to hold themselves to the Defendant and to be satisfied by him It was said by Glanvil Serjeant that by the Escape the Debt was cast upon the Sheriffs and the Defendant discharged and that it was the Case of Sir Gervas Clyfton who being Sheriff suffered him who was in Execution and in his custody to go and see a Play and the same was adjudged an Escape and the party could not be in Execution again And then he said that this acknowledgment of satisfaction could not be any Bar to the
covenanteth and granteth to the others eorum utrique to make assurance and there it was holden that the word uterque doth amount to quilibet Wray Admit it shall be so taken in a Bond yet it shall not be so taken in an Indictment As if a man make a Lease for years rendring Rent payable at the day of St. Martin although there be two days of St. Martin in the year yet the reservation is good and the Rent shall be taken payable at the most usual day of St. Martin there in the Country But in an Indictment if an offence he laid to be done on St. Martins day without shewing which in certain it is not good Fenner The word uterque is matter of surplusage and therefore shall not hurt the Indictment CCCXXVII Blunt and Whiteacres Case Mich. 32 33 Eliz. In the Kings Bench. Error A Writ of Error was brought upon a Iudgment given in the Common Pleas in a Replevin where the Defendant did avow as Fermor of the Manor of F. in the County of Berks to St. Johns Colledge in Oxford and laid a Prescription there in him and his Fermors to distrain for all Amercements in the Court of the said Manor Amercement and shewed that the Plaintiff in the Replevin was presented by the Homage for not repairing of a House being a customary Tenant of the said Manor according to a pain imposed upon him at a former Court for which he was amerced by the Steward to ten shillings and was also presented for not ringing of his Swine for which he was amerced three shillings four pence and for these Amercements he distrained And upon Nihil dicit Iudgment was given for the Avowant to have return upon which a Writ of Error was brought And Error assigned in that there is not any Prescription laid in the Avowry for the Lord to amerce the Tenants and of common Right he cannot do it See 48 E. 3. And such Amercement is Extortion for the Lord cannot be his own Iudge and therefore he ought to enable himself to distrain by Prescription Another Error because the Fine is laid to be assessed by the Steward 1 Cro. 748. 886. whereas by the Law it ought to be by the Suitors for they are Iudges and not the Steward Another because that in the Avowry it is set down quod praesentatum fuit that he had not repaired a certain House but he doth not say in facto categorice c. that he had not repaired for that is matter traversable 4. Here is no offence for a Copy-holder is not bound to repair by the Common Law if it be not by Prescription for he cannot have House-boot upon the Land as a Termor may if it be not alledged a custom Fenner The Steward may assess Fines for a contempt but not Amercements if not by Prescription Gawdy The Lord of a Mannor cannot assess Amercements for a Trespass done to himself upon his own Lands but otherwise it is of a common Trespass or a Trespass done in the Land of another but for the Distress he ought to prescribe and the Iudgment was reversed CCCXXVIII Page and Fawcets Case Pasch 29 Eliz. Rot. 121. In the Kings Bench. Error 3 Cro. 227. ERror was brought upon a Iudgment given in Lyn where by the Record it appeareth that they prescribe to hold Plea every Wednesday and it appeared upon the said Record that the Court was holden 16 Feb. 26 Eliz. which was dies Dominicus and that was not assigned for Error in the Record but after in Nullo est erratum pleaded it was assigned at the Bar And Almanacks were shewed to the Court in proof of it and it was holden clearly to be Error but the doubt was if it should be tried by Iury or by the Almanacks and it was said that the Iustices might judicially take notice of Almanacks and be informed by them and that was the Case of one Robert in the time of the Lord Catline and by Coke so was the Case betwixt Galery and Bunbury and afterwards the Iudgment was reversed CCCXXIX Geofries and Coites Case Trin. 33 Eliz. In the Kings Bench. IT was found by special Verdict 1 Cro. 25â— that one Avice Trivilian was Tenant for life the Remainder to her Son in tail the Remainder over Tenant for life and he in the Remainder in tail make a Lease for life the Remainder for life rendring Rent Tenant for life dieth he in the Remainder dieth and his Son accepteth of the Rent of the Tenant for life in possession who dieth The Issue in tail entreth he in the Remainder for life entreth c. And it was conceived that this acceptance of the Rent of the Lessee for life doth affirm also the Remainder See Litt. Sect. 521. and such was the opinion of Gawdy and Fenner Iustices CCCXXX The Lord Mordant and Vaux Case Pasch 33 Eliz. In the Kings Bench. THe Lord Mordant brought an Action of Trespass against George Vaux and declared of a Trespass done in quodam loco 1 Inst 225. 1 Cro. 269. called N. parcel of the Manor of Hawarden The Case was William Lord Vaux was seised thereof and thereof levied a Fine to the use of the Lord Vaux which now is for life and after his decease to the use of Ann and Muriel Daughters of the Lord Vaux and their Assigns until Ambrose Vaux should return from the parts beyond the Seas and should come to the Age of 21 years or dye if they should so long live And after the return of Ambrose from beyond the Seas and the age of 21 years or death whichsoever of the said days or times should first happen to the use of the said Ambrose and the Heirs of his body begotten with divers Remainders over Ambrose returned Plow Com. 376. 2. Ante 18. 76. and 31 Eliz. before he came of full age for it is not pleaded that he was of full age levied a Fine to the use of George Vaux the Defendant in tail with divers Remainders over Afterwards the Lord Vaux being Tenant for life enfeoffed the Lord Mordant in Fee upon whom the said George Vaux entred for a forfeiture upon which Entry the Lord Mordant brought the Action Buck argued for the Plaintiff Amb. Vaux had nothing in the Lands in question until his return from beyond the Seas and his full age and the estate doth not begin until both be past and he said that no use did arise to Ambrose until the time incurred for the time of the beginning is uncertain and upon a Contingent as 13 Eliz. Dyer 301. A. makes a Feoffment in fee to the use of himself for life and after to the use of B. who he intendeth to marry until the Issue which he shall beget on her shall be of the age of 21 years and after the Issue shall come of such age then unto the use of the said B. during her Widowhood the Husband dieth without Issue the Wife entreth and her
barred but if the Wife enter after the death of her Husband and before the Proclamations pass the issue is not bound by the Fine And if Tenant in Tail granteth totum statum and after levieth a Fine thereof with Proclamations come ceo c. The Issue is barred contrary where the Fine is upon a Release c. CCCXLVI Henningham and Windhams Case 18 Eliz. In the Kings Bench. ARthur Henningham brought a Writ of Error against Francis Windham upon a common Recovery had against Henry his Brother Error Owen Rep. 68. and the Case was That Land was given in special tail to Thomas Henningham Father of the said Henry and the said Arthur the Remainder in general tail the estate tail in possession was to him and the Heirs Mairs of his body Thomas had issue the said Henry and three Daughters by one woman and the said Arthur and two other Sons by another woman and dyed seised Henry entred and made a Feoffnent a common Recovery is had against the Feoffee in which Henry is vouched who vouched over the common Vouchee according to the usual course of common Recoveries Henry dyed without issue Error and Attaint by him to whom the Land is to descend and Arthur brought a Writ of Error being but of the half blood to Henry And it was resolved by the whole Court That Error and Attaint always descends to such person to whom the Land should descend If such Recovery or false oath had not been As if Lands be given to one and the Heirs Females of his body c. and suffers an erronious Recovery and dyeth the Heir female shall have the Writ of Error So upon Recovery of Lands in Borough English for such Action descends according to the Land quod fuit concessum per totam Curiam But it was objected on the Defendants part That because that the Feoffee being Tenant to the Praecipe is to recover in value a Fee-simple and so Henry is to yield a Fee-simple which should descend to the heir at the Common Law if this Recovery had not been therefore he to whom the same should descend should have the Writ of Error for he hath the loss But the said Exception was not allowed And it was said That Tenant in tail upon such a Recovery shall recover but an estate in tail scil such estate which he had at the time of the warranty made c. And afterwards Iudgment was given that the Action was maintainable So if a man hath Lands of the part of his mother and loseth it by erronious Iudgment and dyeth That the Heir of the part of the Mother shall have the Writ of Error CCCXLVII Foster and Pitfalls Case 18 Eliz. In the Kings Bench. IN Ejectione firmae the Case was 1 Cro. â— Brook devised Lands to his Wife in general Tail the Remainder over to a stranger in Fee and dyed he took another Husband and had issue a Daughter The Husband and Wife levyed a Fine to a stranger The Daughter as next Heir by 11 H. 7. entred It was agreed by the whole Court That an estate devised to the wife is within the words but not within the meaning of the Statute Secondly It was resolved That no estate is within the meaning of the Statute unless it be for the Ioynture of the Wife Thirdly Resolved That the meaning of the Statute was That the wife so preferred by the Husband should not prejudice the issues or heirs of her Husband and here nothing is left in the Issues or heirs of the Husband so as the Wife could not prejudice them for the Remainder is limited over CCCLXVIII Greenes Case 18 Eliz. In the Kings Bench. Acceptance of Rent 1 Cro. 3. 3 Co. 64. b. GReene made a Lease for years rendring Rent with clause of Re-entry and the Rent due at the Feast of the Annunciation was behind being demanded at the day which Rent the Lessor afterwards accepted and afterwards entred for the condition broken and his Entry holden lawful Entry Plow Com. in Browning and Bestons Case for the Rent was due before the condition broken but if the Lessor accepts the next Quarters Rent then he hath lost the benefit of Re-entry for thereby he admits the Lessee to be his Tenant And if the Lessor distrain for Rent due at the said Feast of the Annunciation after the forfeiture he cannot afterwards re-enter for the said forfeiture for by his Distress he hath affirmed the possession of the Lessee So if he make an Acquittance for the Rent as a Rent contrary if the Acquittance be but for a sum of mony and not expresly for the Rent all which tota Curia concessit CCCXLIX 20 Eliz. In the Common Pleas. THe Case was Lessee for life the Remainder for life the Remainder in tail the Remainder in fee The two Tenants for life make a Feoffment in fee. Dyer A woman Tenant for life in Ioynture the Remainder for life the Remainder in fee the Tenants for life joyn in a Feoffment Entry for Forfeiture the Entry of him in the Remainder in fee is lawful by 11 H. 7. And if Tenant for life be impleaded and he in the Remainder for life will not pray to be received he in the last Remainder may and so in our case inasmuch as he in the Remainder for life was party to the wrong he in the Remainder in tail shall enter Which Harper and Munson granted Dyer 339. a. i. e. Manwood Although that this Feoffment be not a Disseisin to him in the Remainder in tail yet it is a wrong in a high degree as by Littleton A Disseisor leaseth for life to A. who aliens in fee the Disseisee releaseth to the Alienee it is a good Release and the Disseisor shall not enter although the Alienation was to his disinheritance Lit. 111. which Dyer granted And if Tenant for life alieneth in fee and the Alienee enfeoffeth his Father and dieth the same descent shall not avail him no more than in case of Disseisin Livery of Seism It hath been objected that this is the Livery of the first Tenant for life and the confirmation of him in the Remainder for life Dyer was of opinion That by this Livery the Remainder for life passeth and this Livery shall be as well the Livery of him in the Remainder as of the Tenant in possession and although where an estate is made lawfully by many it shall be said the Livery of him only who lawfully may make Livery Yet where an estate is wrongfully made it shall be accounted in Law the Livery of all who joyn in it And in this the Remainder for life is extinguished by the Livery in the Feoffee and the Livery of him in the Remainder for life shall be holden a void Livery especially when he joyns with such a person who hath not authority to make Livery As if the Lord and a Stranger Disseise the Tenant and make a Feoffment over the whole Seigniory is
Surrenders from the said Husband and Wife the Remainder over to the said John Buck in Fee upon condition to pay a certain sum of money c. It was moved That the Surrender is void and without warrant for the warrant was ad capiendum unum fursum redditionem and here are two several Surrenders and so the warrant is not pursued and then the Surrender is void Another matter was because the Remainder to John Buck by the words of the Deputation was absolute and without Condition and now in the Execution of it it is conditional so as this conditional estate is not warranted by the Deputation But the whole Court was clear of a contrary opinion in both the points and that all the proceedings were sufficient and well warranted by the Deputation Another matter was objected because that this Surrender and regrant is entred in the Roll of a Court dated to be holden the second of Maij and the Letter of Deputation bears date the third of June after But as to that The Court was clear of opinion that the mis-entry of the date of the Court should not prejudice the party for this Entry is not matter of Record but is but an Escape and if the parties had been at Issue upon the time of the Surrender made or of the Court holden the same should not be tryed by the Rolls of the Manor but by the Country and the party might give in Evidence the truth of the matter and should not be bound by the Roll and according to this Resolution of the Court Iudgment was given CCCXCVI Mich. 26 27. Eliz. In the Kings Bench. Fines levied THe Case was Tenant in tail leased for sixty years and afterwards levyed a Fine to Lee and Loveday Sur Conusans de droit come ceo c. with a Render to him and his Heirs in Fee And upon a Scire facias against the Conusees supposing the Lands to be ancient Demesn the Defendants made default for which the Fine was avoided and now the Issue in tail entred upon the Lessee for years and he brought an Ejectione firmae Sene facias â— Len. 117. and it was found That the Land was Frank Fee And all the question was If by the Reversal of the Fine by Writ of Disceit without suing forth a Scire facias against the Ter-Tenant should bind him or should be void only against the Conusee and not against the Lessee Atkin. It shall not bind the Lessee for years For a Fine may bind in part and in part not as bind one of the Conusees and not the other 7 H. 4. 111. A Fine levied of Lands part ancient Demesn and part at the common Law the same was by Writ of Disceit reversed in part as to the Land in ancient Demesn and stood in force for the residue 8 H. 4. 136. And there by award of the Court issued forth a Scire facias against the Ter-Tenants and the Iustices would not adnul the Fine without a certificate that the Land was Ancient Demesn notwithstanding that the Defendant had acknowledged it to be so but as to them who were parties to the Fine the Fine is become void as to the said parties and and he who had the Land before might enter i. And he said it should be a great inconvenience if no Scire facias or other Proces should be awarded against the Ter-tenant for he should be dispossessed and disinherited without privity or notice of it where upon a Scire facias he might plead matter of discharge in Bar of the Writ of Disceit as a Release c. which see Fitz. N.B. 98. And so although the Fine be reversed yet he might retain the Land and he resembled this case to the case of 2 H. 4. 16 17. In a Contra formam collationis against an Abbot a Scire facias shall issue forth against the Feoffee and so by the same reason here And for the principal matter he said That the Fine should be avoided against the parties but not against the Lessee Kingsmill The Scire facias brought against the parties only is good enough for they were parties to the Disceit and not the Ter-tenants It was adjorned CCCXCVII Mich. 26 27. Eliz. In the Kings Bench. Error Appearance by Attorney Dyer 135. b. A Writ of Error was brought upon a Iudgment in a Quid juris clamat It was assigned for Error that the Tenant did appear by Attorney whereas he ought not but in person because he is to do an Act in proper person if it be not in case of necessity where the Attorney may be received by the Kings Writ or plead matter in Bar of the Attornment as if he claim Fee c. or other peremptory matter after which Plea pleaded he may make Attorney 48 E. 3. 24. 7 H. 6. 69. 2â— E. 3. 48. 1 H. 7. 27. Another Error was because it is not shewed in the Quid juris clamat what estate the Tenant hath Another matter was If the Grantee of the estate of Tenant in tail after possibility of issue extinct shall be driven to attorn â— Len â—â— and it was said he should not for the priviledge doth pass with the grant See 43 E. 3. 1. Tenant in tail after possibility of issue extinct shall not be driven to attorn 46 E. 3. 13. 27. Ergo neither his Grantee Williams contrary As to the appearance of the Tenant by Attorney because the same is admitted by the Court and the Plaintiff the same is not Error which see 1 H. 7. 27. by Brian and Conisby 32 H. 6. 22. And he said That the Grantee should be driven to attorn for no other person can have the estate of the Tenant in tail after possibility of issue extinct but the party himself therefore not the priviledge and although he himself be dispunishable of Wast yet his Grantee shall not have such priviledge As if Tenant in Dower or by the curtesie grant over their estates the Heir shall have Wast against the Grantors for Wast done by the Grantee but if the heir granteth over his Reversion then Wast shall be brought against the Grantees See Fitz. N.B. 56. And it two Coparceners be and the one taketh a Husband and dieth the Husband being Tenant by the curtesie a Writ of Partition lyeth against him but if he granteth over his estate no Writ of Partition lyeth against the Grantee 27 H. 6. Stathams Aid If the Grantee of Tenant after possibility shall attâ—rn Tenant in tail after possibility of issue extinct shall not have Aid but his Grantee shall have Aid Clark The Grantee of Tenant in tail shall not be driven to attorn If Tenant in tail grant totum statum suum the Grantee is dispunishaple of wast so if his Grantee grant it over his Grantee is also dispunishable c. It was adjorned CCCXVIII Gravenor and Masseys Case Mich 26 27. Eliz. In the Kings Bench. GRavenor brought a Writ of Error upon a common
Williams and Powell for that the said Williams had before brought a Quare Impedit against the said Blower and the Bishop Dyer 353. b. 354. and had recovered against them by default whereupon Williams had a Writ to the Metropolitan to admit his Clerk and in the Writ of Disceit Iudgment was given for the Plaintiffs For it was found That the Summons was the Friday to appear the Tuesday after and so an insufficient Summons and in that Writ of Disceit the Defendants Williams and Powell pleaded That Blower the Incumbent was deprived of his Benefice in the Court of Audience which sentence was affirmed upon Appeal before the Delegates and notwithstanding that Plea Iudgment was given against Williams and Powell Defendants in the said Writ of Disceit And upon that Iudgment this Writ of Error is brought Beaumont assigned four Errors First 1 Cro. 65. because the Bishop and Blower joyned in the Writ of Disceit for their Rights are several 12 E. 4. 6. Two cannot joyn in an Action of Trespass upon a Battery done at one time to them So if one distrain at one and the same time the several Goods of divers persons they according to their several properties shall have several Replevins 12 H. 7. 7. By Wood. So if Lands be given to two and to the Heirs of one and they lose by default in a Praecipe brought against them they shall have several Writs the one Quod ei deforceat Joynder in Action the other a Writ of Right 46 E. 3. 21. A Fine levied to one for life the Remainder to two Husbands and their Wives in tail they have Issue and die Tenant for life dieth the Issues of the Husbands and Wives shall have several Scire facias's to execute the Fine by reason of their several Rights Lands in ancient Demesn holden severally of several Lords are conveyed by Fine the Lords cannot joyn in a Writ of Disceit but they ought to have several Writs so here the Plaintiffs in this Writ of Disceit and the Bishop claims nothing but as ordinary and he loseth nothing in the Quare Impedit and therefore by the Writ of Disceit he shall be restored to nothing The second Error was Because the Bar of the Defendants in the Writ of Disceit was good i. the deprivation c. and the Court adjudged it not good for the Clerk being deprived he could not enjoy the Benefice if the Iudgment in the Qu. Impedit had been reversed Regulâ— Post 330. and where a man cannot have the effect of his suit it is in vain to bring any Action Lessee for the life of another loseth by erronious Iudgment Cestuy que use dieth his Writ of Error is gone for if the Iudgment be reversed he cannot be restored to the Land for the estate is determined 31 E. 3. Incumbent 6. The King brought a Quare Impedit against the Incumbent and the Bishop the Bishop claimed nothing but as Ordinary The Incumbent traversed the title of the King against which it was replyed for the King That the Incumbent had resigned pendant the Writ so as now he could not plead any thing against the title of the King for he had not possession and so could not counterplead the possession of the King. And here in our Case by this deprivation the Incumbent is disabled to maintain this Action of Disceit 15 Ass 8. If the Guardian of a Chappel be impleaded in a Praecipe for the Lands of his Chappel and pendant the Writ he resign the Successor shall have a Writ of Error and not he who resigns for he is not to be restored to the Lands having resigned his Chappel So in our Case A deprivation is as strong as a Resignation The third Error because in the Writ of Disceit it is not set forth that Blower was Incumbent for the Writ of Disceit ought to contain all the special matter of the Case as an Action upon the Case 4 E. 3. Disceit 45. The fourth Error That upon suggestion made after Verdict that Blower was Incumbent and in of the presentment of the Lord Stafford Deprivation and that he was removed and Griffin in by the Recovery in the Quare Impedit by default a Writ to the Bishop was awarded without any Scire facias against Griffin for he is possessor and so the Statute of 25 E. 3. calls him and gives him authority to plead against the King 6 Co. 52. and every Release or Confirmation made to him is good 18 E. 3. Confirmation made by the King after Recovery against the Incumbent is good And 9 H. 7. If a Recovery be had in a Contra formam collationis the possessor shall not be ousted without a Scire facias so in Audita Querela upon a Statute Staple Scire facias Scire facias shall go against the Assignee of the Conusee 15 E. 3. Respon 1. See also 16 E. 3. Disceit 35. 21 Ass 13. A Fine levied of Lands in Ancient Demesn shall not be reversed without a Scire facias against the Ter-tenant Walmesley contrary The case at the Bar differs from the case put of the other side for they are cases put upon original Writs but our case is upon a judicial Writ and here nothing is demanded but the Defendant is only to answer to the disceit and falshood And in this Case the Issue is contained in the Writ which is not in any original Writ and the Iudges shall examine the issue without any plea or appearance of the Tenant and here the Defendant is not to plead any thing to excuse himself of the wrong And here the Iudgment is not to recover any thing in demand but only to restore the party to his former estate and possession and if he hath nothing he shall be restored to nothing And he put many cases where persons who have several Rights may joyn in one Action as a Recovery in an Assize against several Tenants they may joyn in one Writ of Error 18 Ass Recovery in Assize against Disseisor and Tenant they shall both joyn in Error why not also in Disceit 19 E. 3. Recovery against two Coparceners the Survivor and the heir of the other shall joyn in Error As to the second Error Williams and the Sheriff ought not to joyn in the Plea and also the Plea it self is not good for the Writ of Disceit is That Williams answer to the Disceit and the Sheriff shall certifie the proceedings and therefore he shall not plead and also the Plea it self is not good for although the interest of the Incumbent be determined in the Church yet his Action is not gone as if in a Praecipe quod reddat the Tenant alieneth pendant the Writ and afterwards the Demandant recovereth yet the Tenant although his Interest be gone by the Feoffment yet he shall have a Writ of Error and so here and as to the Scire facias there needs none here against the new Incumbent for he comes in pendant the Writ
formally expressed in the usual Terms As to the second payment Where a man bargains and sells his Lands by Deed indented to be enroled and before enrolment he makes Livery to the Bargainee and afterwards the Indentur is enroled the Court discharged Beamount from the arguing of that Point Liveâ—y where it prevents operation of an Enrolment for by Wray the Livery doth prevent the operation of the Enrolment and Sir George shall be accounted in by the Livery and not by the bargain and sale for Livery is of more worth and more worthy ceremony to pass estates and therefore shall be preferred and then the Livery being made in such part of the Mannor which was in the possession of the Feoffor in the name of the whole Mannor no more of the Mannor passeth but that which was then in the possession of the Feoffor And the Reversion of such part of the Mannor which was in Lease shall not pass without Attornment but when the Enrolment cometh now the whole passeth and then the Reversion being setled by the Enrolment the Attornment coming afterwards hath no relation See 48 E. 3. 15 16. The Iury here have found the default of payment whereby the conditional use which passed by the bargain and sale upon the condition broken shall be reduced to the Bargainor without any Entry 1. Cro. 382. and then the uses limited after are void for an use limited upon an use cannot rise quod fuit concessum per totam curiam Then Bracebridge the Father having the Inheritance of the said Mannor in his own right and the interest de futuro for years in the right of his Wife joyntly with the said A. when he sells the said Mannor by Deed indented and enroled now thereby the interest for years which he hath in the Right of his Wife doth not pass for a bargain and sale is not so strong a conveyance as a Livery As if I have a Rent-charge in the right of my Wife out of the Manor of D. which Manor afterwards I purchase and afterwards by Deed indented and enroled I bargain and sell the said Manor c. the Rent shall not pass Then the said Thomas Bracebridge the Father having the said Right of an entail to him and to the Heirs Males of his body and being Tenant for life by his own conveyance the Remainder in tail to his Son and Heir apparent the now Defendant when he levyeth a Fine and the Son enters for forfeiture before Proclamations pass and his Father dyeth in that case the Defendant is not remitted unto the first entail although after Proclamations pass in the life of the Father and so he shall not avoid the Leases for notwithstanding that the Issue in tail by that Entry hath defeated the possession which passed by the Fine yet as to the right of the old entail the Fine doth retain its force and so he entred quodam modo in assurance of the Fine As if Tenant in tail doth discontinue and disseiseth the Discontinuee and levieth a Fine with Proclamations and the Discontinuee enters within the five years now although the Fine as to the Discontinuee be avoided so as the possession which passed by the Fine is defeated yet the right of the entail doth continue bound Egerton Solicitor contrary and he conceived that all the Mannor doth pass by the Livery to Sir George and nothing of it by the Enrolment and that the meaning of the parties was that all should pass by the Livery for if the assurance should enure by the bargain and sale then the second uses limited upon default of payment should never rise for an use upon an use cannot rise and then the said uses limited for the payment of the debts of the Feoffor c. should be defeated and also where at the begining of the assurance the condition was entire the warranty entire c. and if such construction should be allowed here shall be a divided condition a divided warranty And also the meaning of the parties that the whole Mannor should pass by such construction should be dismembred and part pass by the Livery and part by the bargain and sale and we ought to make such constructions of Deeds that things may pass by them according to the meanings of the parties as if I be seised of a Mannor to which and Advowson is appendant and I make a Deed of Feoffment of the same Mannor cum pertinencijs and deliver the Deed to the party but no Livery of seisin is had the Advowson shall not pass for then it should be in gross whereas the meaning of the parties was that it should pass as appendant and that in such case cannot be for there is no Livery therefore it shall not pass at all and so it hath been adjudged So if I bargain and sell my Mannor of D. and all the Trees in the same and I deliver the Deed but it is not enrolled the Trees shall not pass for the intent of the parties was that the Trees should pass as parcel of the Free-hold and not as Chattels And as to the remitter I conceive that the Heir entring as Heir by the Law is remitted but where the Entry is given by a special Statute there the Entry shall not enure further than the words of the Statute As Land is given to the Husband and Wife and to the Heirs of the body of the Husband the Husband levieth a Fine and dieth the wife entreth this Entry shall not avail to the issue in tail for the Entry is given to the Wife by a special Law And he cited Sir Richard Haddons Case the Husband aliened the Lands of his Wife they are divorced the Husband dieth the Wife shall not enter by 32. H. 8. but is put to her Writ of Cui in vita ante divor And afterwards the same Term the Iustices having considered of the Case delivered their opinions upon the matters by Wray chief Iustice viz. That the one moyety of the Lease was extinct by the Livery viz. the moyety of Ioyce the Wife of the Lessor and as to the other moyety it is in being for here is no remitter for if any remitter had been in the Case it should be after the use raised which is not as yet raised for the Land ought to remain in Sir George until the said five hundred pounds be levyed and that is not found by the Verdict and therefore for the said moyety the Plaintiff had Iudgment XI Treshams Case Mich 25 26 Eliz. in the Exchequer SIR John Tresham seised of the Manor of D. holden of the King in Capite by Knights service 4 H. 7. enfeoffed Edmund Earl of Wilts and N. Vaux Knight who gave the said Manor to the said Sir John in tail upon condition that he should not alien c. quo minus c. John Tresham dyed seised by whose decease the Manor descended to Tho. Tresham who entred 2 Len. 55 56. and 18 H. 8. aliened with
Lands within the said Town every second year left their Lands to lye fresh and untilled and prescribed further that the Tenants of the Lands within the said Town might erect Herdals in in their Lands with the Licence of the Lord of the said Manor and not otherwise and further declared that the said Bedingfield had let to him the said Manor and that the Defendant had erected Herdals upon his Lands without Licence so as the profit of his Foldage is impaired by it And all this matter was found by Verdict And it was objected in stay of Iudgment that the prescription is not good for it is against Law and common right to abridge the Subject of the profits of his Lands But the whole Court was clear of opinion that the prescription is good enough as 15 E 2. Prescription 51. Prescription to have common appendant in other Land afte that the Hay is cut and v E. 1. Prescription 55. A. seised of Lands may Plow it and Sow it and cut and carry away the Corn and afterwards when the Corn is carried B. by prescription may have the said Land as his several and the other who sowed it cannot meddle with that land but to plow and sow it in season c. And the Cattel cannot eat and pasture in the Land when they come to plow or sow it or to carry it away nor have any profit but the Corn and yet the Free-hold of the Land is in such person c. and that was holden a good Prescription and a difference was taken by the Court where one doth prescribe to take away the whole interest of the Owner of the Land and where a particular profit is restrained And here this prescription doth not extend but to restrain the Ter-tenant to erect Herdals which is a reasonable prescription See 1 H 7 24. The Lord of the Town doth prescribe to have free Foldage of the Beasts of his Tenants in D. and see there that libera Falda is not any other but to hav the Beasts of the Tenants to manure the lands of the Lord c. And afterwards Punsany the Plaintiff had Iudgment to recover XVI Mich. 25 26 Eliz. at Serjeants Inn. IN the Dutchy Chamber the case was that King E 6. leased for years certain lands parcel of his Dutchy of Lancaster rendring rent with clause of re-entry and that a lease was made to one Bunny It was found by Office that the Rent was arrear and by another Office that the Servant of the said Lessee had tendred the rent in his absence and by the commandment of his Master and that afterwards one I. S. Receiver General of the Dutchy received the said Rent and had accounted for it and upon his account it was allowed And this matter was opened at Serjeants Inn in Fleet-street before Wray Anderson Manwood Clench Rhodes Plowden and Stanhop and it was argued by Shuttleworth that in this case of rent reserved upon a Lease for years made by the King of Dutchy-Land The King not bound to demand Rent the King is not bound to demand it but he may for default of payment of it re-enter without demand and that the Lessee is tied to tender it at his peril as well as if the Queen had been seised of the said land in the right of her Crown and as to that payment the Statute of 1 H 4. is to be considered by which it is enacted that the possessions of the said Dutchy Taliter tali modo per tales officiarios ministros in omnibus remaneant deducantur gubernentur sicut remanere deduci gubernari debuissent si ad culmen Regis Dignitatis assumpti non fuissemus and these words ought to be intended of things which concern the Lands themselves but this Act of demand is a personal thing and concerns the person of the King and toucheth the Majesty and dignity of the King and in all cases of the Dutchy the person of the King shall hold his priviledge notwithstanding that the possession of the Land be carried in the course of a private person And therefore if the Queen will alien Lands parcel of her Dutchy she ought to make Livery for now she meddles with the possession it self but if the Queen will sue for parcel of her Dutchy non omittas shall be in the Writ for she cannot sue but as Queen and the Queen hath such Prerogative that none shall execute her Writs at her own sute but the Officer of the Crown 21 E 4. 60. for Livery if it be not Land within the County Palatine and for the residue See 10 H. 4. 7. 3. Eliz. 216 217. Plowden Lessee for years of Lands of the Dutchy shall have aid of the King before Issue joyned c. And if the King make a Feoffment of Lands of his Dutchy out of the County Palatine to hold of him in Capite the Feoffee shall hold it so and a Feoffment of such Lands upon condition that the Feoffee shall not alien is a good condition and Lapses shall not bind the Queen in case of an Advowson which the Queen hath in the right of the Dutchy and if the Villain of the Queen in the right of the Dutchy purchaseth Lands in Fee and aliens yet the Queen shall seise and that hath been adjudged in the Exchequer Chamber and if the Queen make a Lease of such Land and afterwards makes another Lease of the same Land without recital of the first Lease it hath been adjudged that the second Lease is void It was argued contrary by Beamount the younger that this condition which goeth to the realty to reduce the Land again ought to be ordered and governed by the Queen as it ought to be by a Subject and therefore if the Queen will take advantage of this condition she ought to make a Letter of Attorney under the Dutchy Seal to her own Officer authorizing him thereby to make demand of the said Rent c. And by Shuttleworth here be two Offices the one contrary to the other the best shall be taken for the Queen 14 E 4. 5. in Skreens Case in the end of it And if the Rent of the Kings Farmor be behind now although that after the Receivor of the Dutchy doth receive it yet the same doth not purge the forfeiture as if the Bayliffs of a Manor receive rent of a new Feoffee the same will not change the Avowry of the Lord without notice given to him 41 E 3. 26. And if a Copy-hold escheat the Steward without a special Warrant cannot grant it over de novo XVI Rearsbie and Rearsbies Case Intrat Trinit 25 Eliz. rot 746. Mich. 25 and 26 Eliz. in the Kings Bench. REplevin by W. Rearsbie against A. Rearsbie and L. Rearsbie who avow the distress because that one W. Vavasour was seised of the Manor of Deniby whereof the place where c. is parcel in his Demesne as of Fee and so seised gave the said Manor to
extend ad veritatem facti which is set forth in the Avowry but only to reputation and so both stand together well enough Rent charge parcel of a Mannoâ— And that a Rent charge may be parcel of a Manor see 22 E 3. 13. 31. E 3. 23. in the Lord Tiptofts Case where it is ruled that title made to a Rent charge as parcel of a Manor is a good title and the Assize awarded upon it and in our Case the Reputation is enforced by the sute at the Court which was also reserved upon the said Feoffment together with the said Rent so as the intent of the parties to the Feoffment was that this Rent so reserved and accompanyed with the said sute shall be esteemed a Rent service and so parcel of the Manor and as to the continuance of Reputation it sufficeth if at the time of the bargain and sale aforesaid which was 26 H 8. it was by many reputed parcel of the Manor and he cited the Case of the Marquess of Winchester The King gave to his Ancestor the Manor of Dale and all lands then antea reputed parcel of the said Manor and in a Bill of Intrusion against the said Marquess he pleaded the grant with averment that the Land then antea reputed parcel Manerii praedict And because he did not shew certainly at what time the Land was reputed parcel of the Manor Iudgment was given for the Queen for it might be for any thing in his Plea that the said Land was reputed parcel of the said Manor before time of memory which Reputation would not serve but such Reputation ought to be within time of memory and understanding He cited also the Case of the Earl of Leicester King Edward the sixth seised of the Manor of Clibery of which a Wood was parcel granted the said Wood in Fee which afterwards escheated to the King for Treason Queen Mary granted the said Wood to another in Fee who granted it to the now Queen who granted the said Manor omnes boscos modo vel ante hac cognit vel reputat ut pars membr vel parcel Maner praedict to the Earl of Leicester and it was resolved in the Exchequer that by that grant the said Wood did pass to the Earl and Iudgment was given against the Queen Dy. 362 â— for it was part of the Manor in the time of E 6. at which time an t ' hac without the word unquam shall be extended ad quoddamcunque tempus praeteritum And Reputation needs not so ancient a Pedigree for to establish it for general acceptance will produce reputation As the house of the Lord Treasurer now called Tibould was of late a private Manor but now hath a new name by which it is known and that within these twenty years which is not so long a time as we have alleged for our Reputation and would pass in a conveyance by such name so None-such But as to Reputation I conceive that Reputation is not what this or what that man thinketh Reputation quid but that which many men have said or thought who have more reason to know it quaenam est inter illos reputatio There was a Case ruled in the Exchequer 13 Eliz. in a Bill of intrusion the Case was that King Hen. 6. was seised of a Manor to which a Neif was regardant who purchased Lands which the King seised and let by Copy as parcel of the said Manor and so continued until the time of E 6. who granted the same to Allice Hardwick and all Lands Tenements reputed parcel of the said Manor And it was adjudged that the said Land so purchased by the said Neif and demised by Copy did pass by the said grant to Hardwick And afterwards the same Term the Iustices without any solemn Argument shewed their opinions in the principal Case viz. That this Rent did not pass by the bargain and sale made as above by Anthony Wingfield to Bohan father of the Avowant for here in the premisses of the Avowry is not any matter set forth importing Reputation or by which it may appear that the Rent in question was ever reputed parcel of the said Manor but rather to the contrary and the bare averment of Reputation in the conclusion of the Avowry is not sufficient to induce Reputation But if the Avowant had set forth in his Avowry any special matter to induce the Court to conceive a Reputation upon the matter of the Avowry as to shew that the Bayliffs of the said Manor had always received the said Rent as parcel of said Manor and as Bayliffs of the said Manor had accounted for it as parcel of the Manor and that the Lessees of the said Manor had enjoyed the said Rent as parcel of the said Manor the same had been good matter to induce a Reputation to have incorporated the said Rent with the said Manor and so judgment was given against the Avowant and of such opinion as was affirmed by Wray was Anderson chief Iustice of the Common Pleas and Manwood chief Baron of the Exchequer XIX Cham and Dovers Case Pasch 26 Eliz. in the Kings Bench. Ejectione firmae IN an Ejectione firmae the Case was that one Michel was seised of the Manor of D. within which diverse parcels of Land part of the said Manor where customary Tenements demised and demisable by copy c. according to the Custom of the said Manor for one two or three lives within which Manor there was a Custom scil that the Lord of the Manor for the time being might grant Copy-hold estates for life in Reversion The Lord granted such Lands for life by copy in possession took a wife and granted the same Copy-hold to a stranger in Reversion for life and died the Copy-holder in possession died the Land demised by copy is inter alia assigned to the Wife for her Dower who had Iudgment to recover in a Writ of Dower who entred and made a Lease thereof to the Defendant who entred against whom the Lessee of the Copy-holder brought Ejectione firmae Custom ad pasturandum non ad colendum and all this matter was found by Verdict and further found that every Copy-holder of the said Manor might Lease his Copy-hold for a year ad pasturandum sed non ad colendum and that the Lease made to the Plaintiff was for a year ad pasturandum 1. Cro. 469. Wells versus Partridge Post 100. Popham Attorny General of Council with the Defendant took exception to the Declaration because the Plaintiff had declared a Lease at the common Law and the Iury have found a Lease by the custom which cannot stand together And such a Verdict doth not maintain the Declaration as if the Plaintiff had declared upon a Lease for years of Lands and the Iury found a devise for years c. but the exception was disallowed by the Court. As to the matter in Law he argued that the Tenant in Dower should
passeth and doth extend into D. and the residue which is in C. shall remain in me in gross v. 9 E. 4. 17. Catesby And if I be seised of a Manor which doth consist of services and of twenty Free-holders and one hundred Acres of Demesnes and I grant the services of my twenty Free-holders and forty or twenty Acres of the said one hundred Acres a Manor shall pass although it was not granted by the name of a Manor but if I grant the services of three four or five of my Free-holders and forty or twenty of the said one hundred Acres upon such a grant no Manor shall pass Windham Iustice contrary We are not here to speak of the creation of a Manor that is a forraign matter but we are here to consider upon the division and apportionment of a Manor They that have argued in this case at the Bar have stood much upon the words of the Conveyance manerium suum de North-kelsey and that Sir Fr. Askew at the time of that assurance had not any Manor of North-kelsey or in North-kelsey but that is not any reason for if Cestuy que use mean between the Statute of 1 E. 3. 27 H. 8. will make a Feoffment of the Manor which was in use by these words manerium suum the same had been good and yet it is not manerium suum but the Manor of the Feoffees but it may be said suum by receiving of the profits according to the trust and confidence reposed in the Feoffees so in our case in as much as Sir Fr. Askew had before this grant aswell demesnes as services in North-kelsey it may collaterally be said a Manor there and notwithstanding that tempore concessionis proprie loquendo no Manor was in North-kelsey yet now upon operation of the Law upon this grant a new Manor shall rise for in divers cases where a thing which was not in esse before upon a grant may rise As if I grant unto you out of my Land a Rent de novo And also a thing which was not in esse before may upon a grant take upon it a new nature As if I. seised of a great Wood grant to you Estovers out of it they were not before in me but as Woods and Trees now by this grant they are become Estovers in the Grantee so as they are in the Grantee in another nature than they were in me So in our case although North-kelsey was not a Manor in Sir Fr. Askew yet now upon the grant it is a Manor in Bard 9 E. 4. 17. And as to the matter which hath been objected because a Court cannot now begin the same is not any reason for the Court Baron is incident to the Manor and also to every part of the Manor and transitory through the whole Manor and if Sir Fr. Askew had sold all the demsnes of the Manor in Castord where the Court Baron for the said Manor had always been held and not else-where yet such a Court might be holden in any part of the Demeans in any other of the said Towns The Lord Anderson to the same purpose It hath been argued of the other side that the Manor doth not pass because the grant is in these words manerium de North-kelsey in North-kelsey I conceive that these words de North-kelsey are void as matter of surplusage and the grant shall be construed as if the words had been manerium suum in North-kelsey And a Manor is such a thing as may be determined divided and suspended As if the Lord of a Manor leaseth for years all the Demeans of the Manor the Manor is suspended during the term for years as lately it hath been adjudged And a warranty may be divided as if a Feoffment in Fee be made to two with warranty and the one of them releaseth the warranty vide L. 5. E. 4. 103. A. seised of a Manor which extendeth in four Towns B. C. D. and E. and he gives his Manor in B. C. and D. by this gift the Manor and all that is in the said four Towns passeth And he cited also a Case 21 E. 4. 3. The Lord of a Manor erected a Chapel within his said Manor as a Chapel of Case c. and afterwards it is a Parish-Church now it is become presentable an Advowson appendant as the soil upon the which the Church is built is parcel of the Manor See 32 H. 6. 9. One Manor may be parcel of another Manor as A. holdeth of B. twenty acres of Land as of his Manor of C. which Manor B. holdeth of D. as of his Manor of E. B. dieth without Heir so as his Manor of C. is escheated unto D. now the twenty acres are holden of the Manor of C. as they were before and the Manor of C. is by the Escheat become parcel of the Manor of E. and by Lease of the Manor of E. it shall pass Post 32. And I do not know any difference between the Case of Parceners and the Case of Ioynt-tenants for now they are both equally compellable to make partition And he cited the Case of one Estopp lately adjudged viz. the Queen was seised of the Rectory of D. which extended into the Counties of Lincoln and York and the Queen granted her Rectory of D. in Lincoln these are several grants and now upon the matter they are become several Rectories And as to that which hath been objected concerning a Court Baron which ought to belong to this new Manor and that such a Court cannot now at this day be erected and therfore here cannot be a Manor here needs not the erection of any new Court but forasmuch as the Court Baron before this grant might be by Law holden in any place within the Manor therefore every part of the Demeans of the Manor is capable of a Court to be holden there As where one is seised of a Manor to which an Advowson is appendant now is the Advowson appendant not only to the said Manor but to every part of it for if he alien an acre parcel of the Manor with the Advowson the Advowson is now appendant to the said acre See 43 E. 3. 26. So in the Case at Bar because this liberty and franchise of a Manor is throughout the whole Manor and in every part of the Services and Demesnes upon this grant of the Services and Demesnes in North-kelsey and of his Manor in North-kelsey a Manor passeth which Windham also granted and agreed unto Note at this time there were but three Iudges in this Court And afterwards Iudgment was given for the Defendant XXXIV Alington and Bales Case Pasch 27 Eliz. In the Kings Bench Rot. 584. 1 Cro. 660. 661. ALington and others Executors of Sir W. Cordel late Master of the Ross brought an Action Debt against Bales The Case was this One Bream being seised of certain Lands by Indenture bargained and sold the same to one Platt by these words give grant bargain sell and by
the said Indenture covenanted with Platt that the said Platt and his Heirs should quietly enjoy the said Lands without interruption of any person or persons And afterwards certain controversies rising betwixt them concerning the said Lands Arbitrament the said Bream and Platt submitted themselves to the award and arbitrament of Sir W. Cordel to whom they were bounden severally for the performance of such award the which Sir W. amongst other things awarded that the said Platt and his Heirs should enjoy quietly the said Lands in tam amplo modo forma as the said Land is conveyed and assured by the coveyance and assurance aforesaid And the truth was that the said Bream at the time of the said Assurance was bounden in a Recognizance of six hundred pounds to one More 15. Eliz. and afterwards More 16 Eliz. sued a Sci. fac upon the said Recognizance and 18 Eliz. the bargain and sale aforesaid was made and afterwards 19 Eliz. More sued forth Excution by Elegit and the moyety of the said Land assured to Platt was delivered in Execution to More And if upon the whole matter the Arbitrament was broken was the question It was argued by Godfrey that the Plaintiff ought to be barred and first 1 Hob. 35. Mor. 175. 3 Len. 43. Post 93. Post 179 279. 1 Inst 366. a. b. 388. Dy 42. he conceived that these words in the Indenture give and grant did not help the Action for the Lands passed with a charge and the general words Dedi concessi do not extend to this collateral charge but to the direct right of the Land only but if a stranger had put out the bargainee there upon such general words an Action would lie but as the Case is they do not give any cause of Action for the Recognizance was a thing in charge at the time of the Assurance and yet see 31 E 3. Br. Warr. Chartae 33. A. enfeoffeth B. with warranty who brings a Warrantia Chartae and recovers pro loco tempore and afterwards a stranger doth recover against him a Rent charge out of the said Land and it was holden that upon the matter B. should have execution the special words of the Aribitrament upon which the Action is brought are that the said Platt and his Heirs should enjoy the said Lands in tam amplo modo forma as it was assured and conveyed to the said Platt ergo not in more ample manner 1 Cro. 660. 661. Owen Rep. 65. 2 Cro. 571. 1 Roll. 425. and the said Land was conveyed to Platt chargeable to the said Recognizance therefore if Platt enjoy it charged there is no cause of Action And as to the Covenant in the Indenture that Platt and his Heirs should enjoy quietly the said Lands without interruption of any person the same is a Collateral surety and the words of the Award are that Platt shall enjoy it in tam amplo modo forma as it is conveyed and assured by the assurance aforesaid without interruption these are not words of assurance for the assurance doth consist in the legal words of passing the estate scil bargain sale Dedi concessi and in the limitation of the estate and not in the words of the Convenant And therefore it hath been adjudged that if I. be bounden to A. in an Obligation to assure to him the Mannor of D c. if A. tender to me an Indenture of bargain and sale in which are many Covenants I am not bound upon the peril of my Bond to seal and deliver it Also here doth not appear any interruption against the Covenant in the Indenture for here is not any lawful Execution for it appeareth here that More hath sued Execution by Elegit 4 years after the Iudgment in the Scire facias in which case he shall be put to a new Scire facias for the Sheriff in this Case ought to have returned that the Conusor after the Recognizance had enfeoffed divers persons and shewed who and upon that matter returned the Conusee should have a Sci. facias against the Feoffees vide F. N. B. 266. And the Court was clear of opinion against the Plaintiff XXXV Floud and Sir John Perrotts Case Trin. 27 Eliz. In the Kings Bench. FLoud recovered against Sir John Perrot 1 Cro. 63. Post 264. 3 Len. 240. in an Action upon the Case upon a promise eighty six pounds against which Floud and Barlow affirmed a Plaint of Debt in London and attached the said moeny in the hands of the said Sir John and had execution according to the custom of London And now the said Floud sued a Scire facias against the said Sir John who appeared and pleaded the said Execution by attachment upon which Floud the Plaintiff did demur in Law And it was adjudged no plea for a duty which accrueth by matter of Record cannot be attached by the custom of London And notwithstanding that the custom of London be layed generally in aliquo debito and damages recovered are quoddam debitum as it was urged by the Council of the Defendant Yet the Law is clear that Iudgments given in the Courts of the King ought not Judgments in the Kings Courts not to be defeated by particular custom of places nor cannot by such particular customs be defeated and avoided as it was lately adjudged in a Western Case Damages were recovered the Sheriff by virtue of a Fieri facias levyed the money which one to whom the Plaintiff was endebted did attach by the custom in the hands of the Sheriff but it was adjudged the attachment was not good for the custom of attachment cannot reach upon a thing of so high a nature as a Record is the same Law of Debt upon a Recognizance and Statute c. and it was affirmed by Wray chief Iustice that upon great deliberation it was agreed by Bromley Lord Chancellor himself the Lord Anderson Mead and Periam Iustices that where a Merchant having in an Action recovered certain damages became Bankrupt upon which issued an Commission upon the Statute of 13 Eliz. of Bankrupts that such Commissioners could not entermeddle with such damages to dispose of them to the Creditors according to the said Statute But now see the Statute of 1 Jacobi The Commissioners have power to dispose of such debts c. XXXVI Sir Walter Hungerfords Case Trin. 27 Eliz. In the Kings Bench. Grants of the King. IN a Replevin by Sir Walter Hungerford the Case was this the Queen being seised of a great Waste called Ruddesdown in the Parish of Chipnam granted to the Mayor and Burgesses of Chipnam the moyety of a Yard-land in the said Waste without certainty in what part of the Waste they should have the same or the special name of the Land or how it was bounded and without any certain description of it And afterwards the Queen granted to the said Sir Walter the said Waste and afterwards the said Mayor and Burgesses by warrant of Attorney
that one Butty was seised of the Land where c. and also of a Messuage with which Messuage the said Land had been usually occupied time out of mind c. and being seised and lying sick commanded a Scridener to be brought to him and the said Scrivener being brought to him he gave him Instructions to make his Will and amongst other things declared unto him that his meaning was that the said Messuage and all his Lands in Westerfield should be sold by his Executors and the Scrivener in making of the Will penned the matter in this manner I will that my house with all the appurtenances shall be sold by my Executors Butty died the Executors sell forty acres of the said Land to the Def. and all this matter was found by special verdict and it was moved by the Plaintiffs Counsel that the sale of this Land by the Executors is not warranted by the Will Another matter was moved scil admitting that the Executors have authority by the Will to sell the Land if the sale of parcel of the Land be good and warrantable As if I make a Charter of Feoffment of ten acres and a Letter of Attorney to make livery of them to the Feoffee if the Attorney makes several liveries of the several acres the same is void But by Cook the Cases are not like for in the Case put he hath a special Commission in which the party to whom and all the other circumstances are set down certainly contrary in the Case at the Bar there the Commission is general c. and peradventure the Executors shall never find a Chapman who will contract with them for the whole More Rep. 222. Co. Inst 113. a. And afterwards upon conference amongst the Iudges Clench Gawdy and Wray it was resolved that by this devise the Lands do pass by the sale of the Executors to the Defendant which sale also by process is warranted by the Will for by Wray these words with all the appurtenances are effectual and emphatical words to enforce the devise and that doth extend to all the Lands especially because it is found that the Testator gave to the Scrivener his Instructions accordingly And afterwards Iudgment was given against the Plaintiff See 3 Eliz. Plowd 210. Betwixt Sanders and Freeman there the Devise is pleaded in this manner Messuagium cum pertinentiis ad illud spectantibus in perpetuum in villa de Arthingworth XLIII Watkins and Astwicks Case Trin. 28 Eliz. In the Kings Bench. 1 Cro. 132. IN an Ejectione firmae it was found by special verdict that one Maynard was seised and made a Feoffment in Fee upon condition of payment of mony on the part of the Feoffor by way of Mortgage at a certain day before which day the said Maynard dyed his Son and Heir being within age Tender to redeem a Mortgage afterwards at the day of payment limited by the Mortgage a stranger at the instance and request of the Mother of the Heir tendred the money to the Mortgagee in the name of the Heir being within age who refused it And it was resolved by the whole Court that the same is not a sufficient tender to redeem the Land according to the Mortgage for it is found by the Iury that the Heir at the time of the tender was within age 2 Len. 213. generally not particularly of six or ten years c. then it might well stand with the verdict that the Heir at such time was of the age of 18 or 19 years at which age he is by the Law out of the Ward of his Mother or any other prochein amy in which Case it is presumed in Law that he hath discretion to govern his own affairs and in this Case the Mother is but a stranger for the Law hath estranged the Mother from the government of the Heir but if the Iury had found that the Heir at the time of the tender was of tender age viz. within the age of fourteen years in which Case by Law he ought to be in Ward in such Case the tender had been good XLIV Leput and Wroths Case Trin. 28. Eliz. In the Kings Bench. A Replevin by Lepur against Wroth 6 Co. 33. Replevin 3 Len. 132. and declared upon a tortious taking in Burnham in the County of Essex the Case upon the pleading was that Robert Earl of Sussex was seised of the Manor of Burnham in Fee and leased the same to the King for one and twenty years and afterwards the said Earl died by which the said Manor descended to Thomas late Earl of Sussex and he being seised 4 and 5 Phil. and Mary it was Enacted by Parliament That the Lady Frances Wife of the said Earl by virtue of the said Act of Parliament should have hold and enjoy c. during the widowhood of the said Frances for and in consideration of the Ioynture of the said Frances the said Manor Provided always and it is further enacted Construction of Statutes That it should be lawful for the said Earl by his writing indented dimissionem vel dimissiones facere pro termino 21. annorum vel infra de eodem Manerio pro aliquo redditu annuali ita quod super omnes singulos hujusmodi dimissionem dimissiones antiquus redditus consuetus vel eo major amplior reservaretur and that every such demise should be of force and effectual in Law against the said Frances for term of her life if the said term should so long continue And further the said Act gave to the said Frances Distress Avowry Covenant c. against such Lessee and for the said Lessee against the said Dame And afterwards the said Thomas the said former Lease not expired leased the said Manor to Wroth the Defendant for one and twenty years to begin at the Feast of Saint Michael next following and note the Lease was made the third of April before rendring three hundred and forty pounds per annum which was redditus amplior antiquo usuali Popham Attorney general argued that the said Lease did not bind the said Lady Frances and that for two Causes 1. because it is to begin at a day to come 2. because it was made a former Lease being in esse and he argued much upon construction of Statutes to be made not according to the letter but according to the meaning of them And he cited a Case upon the Statute of 2 H 5. 3. by which it is Enacted that in no Action in which the damages do amount to forty marks any person should be admitted to pass in trayl of it who had not Lands or Tenements of the clear yearly value of forty shillings yet the said Statute shall not be by construction extended where in an Action between an English-man and an Alien the Alien prayeth medietatem linguae and yet the Statute is general So in our Case although this private Act doth not seem to provide expresly but for two
upon the Evidence Notwithstanding that the number set down in the plaint be by the plea of the Defendant quodam modo admitted and the lesser number surmised and the contrary not proved shall go in mitigation of the damages and the Iury shall conform their verdict in the right of damages according to the proof of the number notwithstanding that the number set forth in the plaint be not by the Plea denied by the Defendant and so it was put in ure in this Case for the Plaint was of the taking of one thousand Cattle but the proof extended but to eight hundred sixty five Note also in the same Plea it was holden that whereas one Chock was returned upon several Iuries in two several Courts at Westminster and both the Iuries are adjourned to one day now in which of the said two Courts the said Chock was sworn he shall be discharged of his attendance at the other Court the same day LV. Carters Case Mich. 28 29 Eliz. In the Common Pleas. CArter brought an Action upon the Case against I.S. and declared Assumpsit that A. was possessed of certain Lands for years the Inheritance thereof being in the Wife of the Plaintiff upon which Lease a Rent was reserved The Defendant in consideration that the Plaintiff would procure the said A. to assign the said Lease to the Defendant promised to pay the said Rent to the Plaintiff for all the residue of the Term It was objected that upon this matter the Action doth not lie because that the Plaintiff hath a higher remedy scil an Action of Debt or Distress but the opinion of the whole Court was that the Action did lie for here upon the promise an Action is given to the Husband alone in his own right whereas the Rent is due to the Husband in the right of his Wife in its nature and the Rent is also to be paid for the Land. But upon this Assumpsit it is payable to the person of the Husband And afterwards Iudgment was given for the Plaintiff LVI Kimpton and Bellamyes Case Mich. 28 29 Eliz. In the Common Pleas. GEorge Kimpton brought a Replevin against Wood and Bellamy Replevin who make Conusance as Baylies to George Burgain for Damage Feasance The Plaintiff in Bar of the Conusance sheweth That he himself and all those whose estate he hath in one hundred and forty Acres of Land time out of mind c. have had common for all manner of Cattle in six Acres of Lands whereof the place where c. is parcel and so put in his Cattle c. against which the Defendants say that the Plaintiff c. had common in forty Acres of Land whereof the said six Acres are parcel all lying in Communi campo and that the Plaintiff a long time before the taking had purchased two Acres parcel of the said forty Acres c. upon which there was a demurrer in Law It was argued by Serjeant Shuttleworth that the Replication to the Bar to the avowry is not good for in the Bar to the Avowry the Plaintiff hath shewed that he hath common in six Acres and the same shall be intended common in six acres only for common in forty acres cannot be the common in six acres as 35 H. 6. 38. In Debt for Rent reserved upon a Lease for years the Plaintiff declared that he leased to the Defendant ten acres of Land rendring the Rent in demand the Defendant pleaded that the Plaintiff leased to him the said ten acres and also such a Rectory rendring the same Rent the same is no plea without traverse absque hoc that he leased the ten acres only See Dyer 29 H. 8. 32. And the whole Court was clear of opinion that for want of such traverse Traverse the plea is not good for by Periam the Common supposed in the bar to the Conusans out of the six acres cannot be intended the Common supposed in the Replication scil out of the forty acres And by him if in Trespass the Defendant justifie by reason of Common in six acres of Land upon which the parties are at issue and the Defendant in Evidence shews that he hath common in forty acres whereof the said six acres are parcel the same doth not maintain his title but the issue shall be found against him Post 80 81. But by the Lord Anderson because that this Demurrer is general the other party shall not take advantage of that defect of pleading for the want of the Traverse and that by reason of the Statute of 27 Eliz. For Traverse is but matter of form and the want of the same shall not prejudice the other party in point of Iudgment but the Iudges ought to judge upon the substance and not upon the manner and form of the pleading And as to the matter of the Common Extinguishment the Court was clear of opinion that by the purchase of the said two acres the whole Common was gone LVII Knights Case Mich. 28 29 Eliz. In the Common Pleas. KNight brought Debt against three Executors and now surmised by his Counsel that one of the Executors is dead pendant the Writ Debt and prayed the opinion of the Court if the Writ should thereby abate or not for by some it is not like where a Writ is brought against two Executors Abatement of Writ for there if any of them dieth pendant the Writ it shall abate for now the plural number is gone for there is but one Executor but in our Case the plural number continues But notwithstanding that the Court was clear of opinion that the Writ should abate Wherefore the Plaintiff seeing the opinion of the Court prayed that upon his surmise aforesaid he might have a new Writ by Iourneys Accounts which was granted to him The Queen and Middletons Case Mich. 28 29 Eliz. In the Common Pleas. Quare Imped THe Queen brought a Quare Impedit against Middleton and counted that W. Lord Say was seised of the Manor of Bedington in the County of Hertford to which Manor the advowson of the Church was appendant ad Ecclesiam praedict praesentavit Coo Clericum suum and afterwards died seised having issue two Daughters Mary married to the Earl of Essex and Ann to the Lord Mountjoy who make partition and the said Manor of Bedington inter alia was allotted to the said Mary for her part and afterwards the said Earl and Mary died having issue Ann who took to Husband the Marquess of Northampton and afterwards 33 H. 8. a Fine was levyed of the said Manor inter c. Querent and the said Marquess and Ann Deforceants by which Fine the said Manor was granted and rendred to the said Marquess for term of his life the remainder to the said Ann his Wife in tail the remainder over to Hen. the eighth in Fee the Marquess is attainted of High Treason by which the King seised and afterwards Ann died without issue after which
hands after the Iudgment and prayed execution thereof upon which the Defendant did demur in Law. Vide 2â— H. 6. 40. 41. In debt against Executors of forty marks the Defendant pleaded that he had fully administred and it was sound that the Defendant at the day of the Writ brought had of the goods of the dead twenty marks and no more and gave damges five marks There the Plaintiff had Iudgment for the twenty marks of the goods of the dead and the five marks of their own goods And as to the other twenty marks that the Plaintiff should be amerced 33 H. 6. 24. Where Executors plead that they have nothing in their hands which is found accordingly Afterwards goods of the Testator came to the hands of the Executors Now the Plaintiff upon a surmise shall have out of the same Record a Scire facias to have execution of the said goods Scire facias to have Execution of Assets come to Executors hands after â—iens enter maynes pleaded But see 4 H. 6. 4. contrary for there it is said that upon the matter the original is determined and so no Record upon which a Scire facias can be grounded And see Fitzh abridging the Case Scire facias 25. by the verdict and the Iudgment the Original is abated Vide 7 E. 4. 9. by Moile according to 33 H. 6. and so 46 E. 3. 9. by Belknap And the Lord Anderson demanded of the Prothonotaries the manner of the entry of the Iudgments given in such Cases who said that their Entry is in this manner i. e. Quod querens recuperet that which is expresly found by the verdict but nothing of the residue for of that no mention is made at all And the Court seemed to be of opinion that where upon nothing remaining in their hands pleaded It is found that some part of the sum in demand is in the hands of the Executors there the Plaintiff upon a surmise of goods come to the hands of the Executors shall have a Scire facias 3 Cro. 272. Hob 199. 1 Cro. 318. 319 592. 8 Co. 134. contrary where upon such issue it is found fully for the Defendants that they have nothing in their hands LXXXVIII Fordleys Case Mich. 29 30 Eliz. In Communi Banco Tender pleaded 9 Co. 79. Dy. 25. a. 1 Inst 207. Post 69. 70. a. FOrdley brought debt upon an Obligation the Condition was that if the Defendant viz. the Obligor deliver unto the Plaintiff the Obligee at a such a day and place twenty pounds or ten Kine at the then choice of the Obligee c. that then c. The Court was clear of opinion that the Defendant in pleading the performance thereof ought to tender to the Plaintiff as well the twenty pounds as the ten Kine and for default thereof Iudgment was given against the Defendant See the Number Roll T. 29 Eliz. 1. part 324. vide 14 E. 4 4. b. LXXXIX Barker and Pigots Case Mich. 29 30 Eliz. In Communi Banco EDward Barker brought Debt against Rich. Pigot Executor of the Will of E. Executrix of the Will of R. The Defendant pleaded that he had fully administred the goods of his Testator E. upon which they were at issue Debt which was found for the Plaintiff And it was moved in arrest of Iudgment that here is not any issue joyned which answers to the Action for the Action is brought against the Defendant in the quality of the Executor of an Executor and the verdict extends to the Defendant but is Executor of the said E. for it is found by it that the Defendant hath fully administred the goods of his Testatrix without any enquiry of the Administration of the goods of the first Testator R. in which capacity the Defendant is charged So as here the Writ charges the Defendant in the quality of an Executor of an Executor and in respect of the first Testator and the issue and verdict doth concern the last Testator Execution must follow the nature of the Action And the whole Court was clear of opinion that although that now after verdict Fee-tail be saved and no Iudgment shall be given upon it yet here the Court shall give Iudgment as upon a Nihil dicit in which case the Execution of the Iudgment shall not fall upon the goods of the last Testator according to the verdict but shall follow the nature of the Action which was brought against the Defendant as Executor of an Executor XC Thacker and Elmers Case Mich. 29 30 Eliz. In Communi Banco THacker recovered in an Assize of Novel disseisin against Elmer certain Lands in Hackney and had execution Re-disseisin and the Judgment in it 1 Cro. 323. Elmer entred upon Thacker and ousted him and Redisseised him Thacker re-entred and afterwards brought a Redisseisin And it was moved whether Thacker against his Entry might have a Redisseisin And the opinion of the whole Court was that he might well maintain the Writ for he is not thereby to recover any Land but the Defendant of that Redisseisin being convicted shall be fined and imprisoned and render double damages Vide Book of Entries 502. the Iudgment in a Redisseisin is Quod recuperet seisinam suam of the Land. XCI Blaunchflower and Fryes Case Mich. 29 30 Eliz. In Communi Banco BLaunchflower brought debt upon a Bond against Elinor Frye as Executrix of one Andrew Frye her late Husband who pleaded Debt that this Writ was brought 9 July 27 Eliz. whereof she had notice the first of October after within which time one Lawrence had brought an Original Writ against the said Elinor as Administratrix of the said Andrew And after the bringing of the Writ the Bishop of Bath and Wels committed Administration of the goods of the said Andrew to the said Elinor which Elinor confessed the Action upon which Iudgment was given for the said Lawrence beyond which she had not goods upon which the now Plaintiff did demur in Law. And by Anderson the Recovery pleaded in bar shall not bind the Plaintiff because it appeareth unpon the plea of the Defendant that the Administration was committed after the Writ purchased which matter if the Defendant had pleaded Administration granted pendant the Writ Lawrence could not have had Iudgment to recover As where there are three Executors and debt is brought against two of them if they do not plead that matter in abatment of the Writ but plead c. or confess the Action so that the Plaintiff hath Iudgment to Recover that Recovery shall not bind a stranger who hath cause of Action against them but that he may well falsify it and yet it was said that in such Case the Defendant by the obtaining of the Letters of Administration had made the Writ good against her vid. 13 H. 4. Fitz. Executors 118. Administration committed before the Writ purchased shall abate the Writ brought against the Defendant as Executor but such Administration obtained
their amendment makes alteration of the substance of the pleading or of the Verdict as 20 H. 6. 15. In Trespass the Plaintiff declared of a continuando usque diem impetrationis brevis viz. 18. die Martii where the Teste of the Writ was 2 die Januarij the Defendant pleaded to Issue which was found for the Plaintiff and that Misprision of the Teste or date of the Writ could not be amended And no amendment upon this Stat. of 27 Eliz. two things are to be considered First that the Iudges in such amendment medle not with matter nor alter the substance Secondly that they do not amend but according to their judicial knowledge Anderson to the same intent for as it hath been said before the truth of the Case doth not appear unto us according to which we can judge and I conceive that upon any amendment upon this Statute we cannot take out one Roll and put in another and as our case is we cannot amend this defect without taking out the whole Roll and therefore in the Case of Leonard which was late Custos brevium here where in a Replevin he avowed for a Rent-service and upon especial Verdict the Case was that Sir Henry Isley held of the said Leonard by Fealty and the Rent mentioned in the Avowry and was attainted of high Treason and the King seised and granted the Land to the Plaintiff upon whom Leonard avowed for the Rent-service and I and my companions were agreed that the rent notwithstanding the seisure and grant of the King remained distrainable of common right but Leonard could not have return of the Cattel because he had avowed for a Rent-service now it appeareth to us upon the Verdict that he had right to so much rent but not to such a Rent but a Rent-seck distrainable of common right so a Rent in another degree and we also agreed that the Avowry was not amendable for then upon such amendment we ought to take out a whole Roll which was not intended by this Statute And he conceived also that in debt against Executors in the Debet detinet such a Writ shall not be amended by this Statute and he conceived that his exception to the Bar quod ad medietatem 60. Messuag c. parcel medietatis c. is relieved by this Statute for the meaning appeareth And also the exception that it is not expresly shewed that the Fine was engrossed in the same Term in which it was levied And Periam moved another matter Co. 1 Inst 71. b. 72. a. if now the parties demurring in Law as to part of the Land in demand and being at Issue upon the residue if the Court shall adjudge the matter in Law before the Issue be tried or not 32 H. 6. 5 6. In Trespass for taking of his Cattel the Defendant as to parcel pleaded not guilty and as to the remnant pleaded another Plea upon which the parties did demur and there they proceeded to trial before the matter in Law determined and found for the Plaintiff and he had Iudgment thereupon for the damages but the costs were suspended until c. And the Defendant brought his Writ of Error 48 E. 3. 15. In an Action of Wast as to parcel the Defendant pleads no Wast and as to the rest pleaded matter in Law upon which there was a demurer joyned It was holden that the Issue should not be tried until the matter in Law be determined But it was said by Fulthorpe in Trespass if the Defendant to parcel plead the Enquest and to other parcel matter in Law in such case he should proceed to trial presently and damages should be taxed of the whole as well of that upon which there was a demurrer in Law as of that of which the Issue was joyned ad quod non fuit responsum See also 11 H. 4. 228. In Trespass the Defendant pleaded to Issue for part and for the residue did demur in Law Process for the trial issued before the matter in Law determined And Periam conceived that the Court might proceed in such Case the one way or the other As to the matter in Law whether the issue in tail upon this Fine should have the Averment he conceived that he should not have the said Averment for that it should be very perilous to the Inheritances of the subjects And he argued much upon the dignity of Fines out of Bracton and Glanvil whom he called Actores non Authores Legis that Fines at the common Law were of great authority until the Statute of West 2. And afterwards by the Statute of 34 E. 3. of non-claim from whence they became to be of so little value in Law that they were accounted no other than Feoffments upon Record so as thereby no assurance was of Inheritances but a general incertainty until the Statute of 4. H. 7. by which Statute they were restored to their ancient power and virtue After which Statute many shifts were devised to creep out of it So as the Statute of 32 H. 8. was made to take away all questions and ambiguities which were conceived upon the said Statute of 4 H. 7. And therefore we who are Iudges ought to frame our Iudgments for the maintaining of the authority of Fines for so the possessions and inheritances of the Subjects shall be preserved And that is the reason that if a stranger levy a Fine of my Land in my name that I have not any remedy but a Writ of Deceit against him who levyes the Fine so if a Feme-covert levyeth a Fine of her Land as a Feme-sole the same shall bind her after the coverture if the Husband do not enter upon the Conusee during the coverture and interrupt the possession gained by the Fine And 17 E. 3. and our Books are very plentiful to this purpose that the Law doth aerge admit of such allegations against such Fines A Fine was pleaded in Bar of Land in A. B. and C. he against whom it was pleaded was not received to aver against the supposal of the Fine that there was no such Town or Hamlet as A. 46 E. 3. 5. A woman Tenant in tail had Issue a Daughter who was inheritable to the tail the Daughter took a Husband they both living the Mother and during her seisin levied a Fine of the Land entailed to a stranger sur conusans de droit come ceo c. who rendred the Land to the Husband and Wife in specil tail the Husband died having Issue the Wife took another Husband had Issue and died the Husband to entitie himself to the Land as Tenant by the curtesy would in pleading have averred the seisin of the Mother at the time of the Fine levyed and he could not and yet he was a stranger to the Fine but he was privy to the estate and his claim was by her who levyed the Fine 6 E. 3. 46. Fitz. Averment 40. In a Writ of Entry sur dissei sin the Fine of the
petit quod inquiratur per patriam praedict Brett similiter It was moved that the parties should replead for this matter upon which they are at Issue scil the appearance is not triable by Iury but by the Record And the Court was clear of opinion that the parties should replead for the cause aforesaid And it was moved by the Lord Anderson that if A. be bound to appear in the Kings Bench at such a day and A. at the said days goe to the Court but there no process is returned then the party may go to one of the chief Clerks of the Court and pray him to take a Note of his appearance And by Nelson we have an acient form of entry of such Appearance in such Cases Ad hunc diem venit I. S. propter indemnitatem suam Manucaptorum suorum petit quod comparentia sua in Curia hic recordetur And see for the same 38 H. 6. 17. And afterwards the Lord Anderson inspecto Rotulo ex assensu sociorum awarded a Repleader And so by Nelson it hath been done oftentimes here before and put in ure The same Law is where at the day of appearance no Court is holden or the Iustices do not come c. he who was bound to appear ought to have an Appearance recorded in such manner as it may be and if the other party pleadeth Nul tiel Record it behoveth that the Defendant have the Record ready at his peril for this Court cannot write to the Iustices of the Kings Bench for to certifie a Record hither CXV Baxter and Bales Case Mich. 29 30 Eliz. In the Common Pleas. Debt not extinct by administration BAxter brought Debt upon a Bond as Executor of I. against Bale who pleaded that the Plaintiff after the death of the Testator was cited to appear before the Ordinary or his Commissary to prove the Will of the said I. and at the day of his appearance he made default upon which the Ordinary committed Letters of Administration to the Defendant by force of which he did administer so the debt is extinct c. but the whole Court was clear of opinion that the debt was not extinct for now by the probate of the Will the administration is defeated and although the Executor made default at the day which he had by the Citation before the Ordinary yet thereby he is not absolutely debarred but that he may resort to the proving of the Will whensoever he pleaseth But if he had appeared and renounced the Executorship it had been otherwise and the debt is not extinct by the Administration in the mean time CXVI Mich. 29 30 Eliz. In the Common Pleas. IN a Franchise the parties are at Issue upon a matter triable out of the Franchise And it was moved if now the Record should be sent into the Common Pleas and there tryed and after trial sent back into the Franchise Which Periam and Anderson utterly denied and by Periam there is no reason that we should be their Ministers to try Issues joyned before them And it is not like 2 Len. 37. where in a Liberty or Franchise a Forrein Voucher is to warrant Lands in such cases we shall determine the Warranty but that is by a special Statute of Glocester cap. 12. And Nelson Prothonotary said that such an Issue was tryed here of late Quod nota CXVII The Earl of Arundel and the Lord Dacres Case Mich. 29 30 Eliz. At Serjeants Inne PHilip Earl of Arundel and the Lord William Howard his Brother marryed the Daughters and Co-heirs of the late Lord Dacres And now came Francis Lord Dacres as heir male of the said Family and claimed the Inheritance c. And after long sute betwixt both parties they submitted themselves to the award of Gilbert Lord Talbot and of Arthur Lord Grey of Wilton and Windham and Periam Iustices And before them at Serjeants Inne the matter was well debated by the Council learned on both sides and as unto Greistock Lands parcel of the Lands in question the Case was That Tenant in tail makes a Feoffment in fee unto the use of himself for his life the Remainder in tail to his eldest Son with divers Remainders over with a Proviso that if any of the Entailees do any act to interrupt the course of any entail limited by the said Conveyance that then the use limited to such person should cease and go to him who is next inheritable And afterwards Tenant in tail dieth his eldest Son to whom the use in tail was first limited entreth and doth an Act against the said Proviso and yet held himself in and made Leases the Lessees enter the Lessor dieth seised his Heir being within age and in ward to the Queen It was holden by Shutleworth Serjeant Yelverton Godfrey Owen and Coke who were of Council with the Heirs general of the Lord Dacres that here is a Remitter for by this Act against the Proviso the use Remitter and so the possession doth accrue to the enfant Son of him to whom the use in tail was limited by the Tenant in tail Then when the Tenant in tail after his said Feoffment holds himself in this is a disseissin for a Tenancy by sufferance cannot be after the cesser of an estate of Inheritance But admit that he be but a Tenant at sufferance Hâ—b 255. Dy. 54. yet when he makes Leases for years the same is clearly a disseisin and then upon the whole matter a Remitter and although the Enfant taketh by the Statute yet the right of the tail descending to him afterwards by the death of his Father doth remit him as if Tenant in tail maketh a Feoffment in fee to the use of himself for life the Remainder in tail to his eldest Son inheritable to the first intail notwithstanding that the eldest Son takes his Remainder by the Statute and so be in â—â— force thereof yet when by the death of his Father the right of the Entail descends to him he is remitted CXVIII Butler and Ayres Case Mich. 29 30 Eliz. In the Common Pleas. Dower BUtler and his Wife brought a Writ of Dower against Thomas Ayre Son and Heir of Bartholmew Ayre first Husband of the said Margaret Wife of the Plaintiff and demanded Dower of Lands in A. and B the Tenant pleaded never seised que Dower and the Iury found that the said Bartholmew was seised during the Coverture de omnibus tenementis infra script preterquam the Tenements in sic ut dicta Margareta dotari potuit Exception was taken to this Verdict because that this preterquam c. doth confound the Verdict To which it was said by the Court that the preterquam is idle and surplusage for it is of another thing than that which is in demand and the seisin of the first Husband of Lands in A. and B. is confessed and the preterquam works nothing Another matter was objected because here the Iury have assessed damages
Kings Bench. PRowse brought an Action upon the Case against Cary for words That the Plaintiff did subborn procure and bring in false Witnesses in such a Court at Westminster c. The Defendant pladed Not guilty And it was found that he did procure and brought in false Witnesses but was acquitted of the suborning It was objected 1 Cr. 296. 554. 607. That the Action doth not lie for it may be that the Defendant did not know that he would depose falsly Thou art a forger of false Writings are not actionable and so it was adjudged for it may be understood of Letters of small importance but that Exception was not allowed for it shall be taken in malam partem and cannot be spoken of any honest man. CXXXII Pasch 30 Eliz. In the Kings Bench. A. Was bounden in an Obligation to B. upon condition that if A deliver to B. twenty Quarters of Corn the nine and twentieth of February next following datum presentium that then c. and the next February had but eight and twenty days And it was holden that A. is not bounden to deliver the Corn until such a year as is Leap-year for then February hath nine and twenty days and at such nine and twentieth day he is to deliver the Corn and the Obligation was holden good CXXXII Allen and Palmers Case Pasch 30 Eliz. In the Kings Bench. THe Case was a Copy-holder did surrender his Lands to the use of a stranger for life Copy-holder surrenders where his heir shall be in by purchase 2 Roll. 416. Co. 1 Inst 226. and afterwards to the use of the right Heirs of the Copy-holder who afterwards surrendred his Reversion to the use of a stranger in Fee died and the Tenant for life died and the right Heir of Palmer the Copy-holder entred And by Cook nothing remained in the Copy-holder upon the said surrender but the Fee is reserved to his right Heirs for if he had not made any such second surrender his Heir should be in not by descent but by purchase And the common difference is where a surrender is to the use of himself for life and afterwards to another in tail the remainder to the right Heirs of him who surrendreth there his Heirs shall have it by descent contrary where the surrender hath not an estate for life or in tail limited to him for there his Heir shall enter as a purchasor as if such use had been limitted to the right Heirs of a stranger And by him if a Copy-holder surrender to the use of his right Heirs the Land shall remain in the Lord until the death of the Copy-holder for then his Heir is known c. See Dyer 99. The Husband made a Feoffment to the use of his Wife for life and afterwards to the use of the right Heirs of the body of the Husband and Wife begotten they have issue the Wife dieth the issue cannot enter in the life of his Father for then he is not his Heir See Dyer 7 Eliz. 237. The Husband is sole seised in Fee and levieth a Fine of the Land to the use of himself and his Wife and the Heirs of the Husband and they render the Land to the Conusor for the life of the Husband the remainder to B. for life the remainder to the right Heirs of the Husband The Husband dieth B. dieth Now the Wife shall have the Land for the life of the Wife for she shall not lose her estate by that render and this remainder to the right Heirs of the Husband is void and the Land and estate in it is in him as a Reversion and not as a Remainder And a man cannot tail a Remainder to his right Heirs whilest he is living unless it begin first in himself See Br. 32 H. 8. Gard. 93. CXXXIV Pearle and Edwards Case Pasch 30 Eliz. In the Kings Bench. THe Case was that the Defendant had leased Lands to the Plaintiff rendring Rent for certain years Assumpsit Consideration 1 Cro. 94. and after some years of the Term expired the Lessor in consideration that the Lessee had occupied the Land and had paid his Rent promised the Plaintiff to save him harmless against all persons for the occupation of the Land past and also to come And afterwards H. distrained the Cattle of the Plaintiff being upon the Lands upon which he brought his Action Golding Here is not a sufficient consideration for the payment of the Rent is not any consideration for the Lessee hath the ocupation of the Land for it and hath the profits thereof and also the consideration is past Cook The occupation which is the consideration continues therefore it is a good Assumpsit as 4 E. 3. A Gift in Frank-marriage after the espousals and yet the marriage is past but the blood continues so here and here the payment of the Rent is executory every year and if the Lessee be saved for his occupation he will pay his Rent the better Godfrey If a man marrieth my Daughter against my will and afterwards in consideration of that marriage I promise him one hundred pounds the same is no good consideration 2 Len. 111. which Clench Iustice denied And afterwards the Plaintiff had Iudgment to recover his damages CXXXV Wakefords Case Pasch 30 Eliz. In the Kings Bench. Extinguishment of Copy-hold by Release THe Earl of Bedford Lord of the Manor of B. sold the Free-hold Interest of a Copy-holder of Inheritance unto another so as it is now no part but divided from the Manor and afterwards the Copy-holder doth release to the purchasor It was holden by the Court that by this Release the Copy-hold Interest is extinguished and utterly gone but if was holden that if a Copy-holder be ousted so as the Lord of the Manor is disseised and the Copy-holder releaseth to the Disseisor nihil operatur CXXXVI Docton and Priests Case Pasch 30 Eliz. In the Kings Bench. IN Trespass for breaking of his Close 1 Cro. 95. it was found by special verdict that two were Tenants in common of a house and of a close â—djoyning to the house and they being in the house make partition without deed of the house and the close see 3 E. 4. 9. 10. Partition without deed upon the Land is good enough Vide 3 H. 4. 1. And it seems by 3 E 4. Partition made upon the Land amounts to a Livery Vide 2 Eliz. Dyer 179. Partition by word out the County void 19 H. 6. 25. Betwixt Tenants in common not good without deed 2 Roll. 255. 47 E. 3. 22. being upon the Land it is good without deed Two Ioynt-tenants make partition by word make partition in another County the same is no partition for as to that matter the common Law is not altered by the Statute but as to compel such persons to make partition Wray Iustice conceived that the partition here being without deed was not good although made upon the Lands Vide 18 Eliz. Dyer 35.
the custom might be known Also it appeareth here upon the Declaration that Trespass vi armis should lye and be brought for the Declaration is that the Defendant did break and pull down the Herdels which cannot be without express force as 42 E. 3. 24. Trespass upon the case against a Miller and declared that the Plaintiff used to grind at the said Mill without Toll and that he sent his corn to the said Mill to be ground and there the Defendant came and took two Bushels of his said corn And the Writ was upon the prescription to grind sine multura and that the Defendant praedict querent sine multura molire impedivit and by Award of the Court the Plaintiff took nothing by his Writ for he hath declared that the Defendant hath taken Toll and therefore he ought to have a general Writ of Trespass Beaumont to the contrary A Market is as well for the common Wealth as a Fishing Also he is at the costs for providing of Herdels and the erecting of them so as he hath declared he hath taken divers sums of mony for it and as to any sum not certain it is well enough for peradventure sometimes he hath taken a penny sometimes two pence as the parties could agree And as to the exception of vi armis the same is not material for the Plaintiff doth not rely upon the pulling down of the Herdels only but upon the loss of the mony also which he should have had if the Defendant had not broken his Herdels And afterwards Iudgment was given for the Plaintiff CXLVIII Beverly and Bawdes Case Pasch 30 Eliz. In the Kings Bench. BEverly brought a Writ of Error to reverse an Out-lawry pronounced against him at the suit of one Bawdes and shewed Error that he was outlawed by the name John Beverly of Humby in the County of Lincoln Gent. And that within the said County there are two Humbyes scil Magna Humby Parva Humby and none without addition To which it was said of the other side that the truth is that there are two such Towns and that Humby Magna is known as well by the name of Humby only as taken for the name of Humby Magna And upon that they are at Issue And it was moved Tryal by Inquest of what County or place if the Inquest to try this Issue shall come de corpore comitatus or from Humby Magna And by Cooke it shall be tryed by an Inquest of Humby Magna and he confessed that if the Issue had been No such Town then the Inquest ought to be of the body of the County but here is another Issue to be tryed 22 E. 4. 4. In Trespass done in Fulborn and Hinton in the County of C. The Defendant said that there is no such Town nor Hamlet of Hinton within the same County Iudgment of the Writ See there by Briggs the tryal shall be de corpore comitatus See 14 H. 6. 8. Over-dale and Nether-dale and none without addition and so at Issue tryed by them of the body of the County 35 H. 6. 12. And by him wheresoever an Issue may be tryed by an Inquest out of a special Visne there it shall never be tryed by the body of the County As the case before 22 E. 4. Trespass in two Towns A. and B. The Def. as to A. pleads there was no such Town and as to B. pleaded another plea. Now the whole Inquest shall come out of B. for the Inquest in one Town may try any thing within the same County which see Fitz. Visne 27. 22 E. 4. 4. And here in our case the Issue is if Humby Magna be as well known by the name of Humby only as by the name of Humby Magna And therefore the same may well be tryed by Inquest out of the Town of Humby Magna But by Wray Iustice this Issue doth amount to no such Town for the perclose of the plea is and no Humby without addition and the book cited out of 22 E. 4. is not ruled but is only the opinion of Brian and afterwards it was awarded that the tryal was well Another matter was objected because it is not shewed in the Writ of Error betwixt what parties the first Writ did depend for otherwise how can the Plaintiff in the Writ of Error have a Scire facias ad audiendum Errores if none be named in the Writ of Error against whom it shall issue And Godfrey affirmed that upon search of Presidents it was both ways so as it is at the pleasure of the Plaintiff to do it or not And Kemp Secondary shewed divers Presidents to that purpose And afterwards the Out-lawry was reversed CXLIX Cibel and Hills Case Pasch 30 Eliz. In the Common Pleas. Debt for a Nemine pene A Lease was made of a certain House and Land rendring Rent and another sum Nomine poenae and for the Nominae poenae the Lessor brought an Action of Debt The Lessee pleaded that the Lessor had entred into parcel of the Land demised Roll. Tit. Extinguishment upon which they were at Issue and found for the Plaintiff and now the Lessor brought Debt for the Rent reserved upon the same Lease to which the Defendant pleaded ut supra scil an Entry into parcel of the Land demised And issue was joyned upon it And one of the Iury was challenged and withdrawn because he was one of the former Iury And the Issue now was whether the said Cibel the Lessor expulit amovit adhuc extra tenet the said Hills And to prove the same it was given in Evidence on the Defendants part that upon the Land demised there was a Brick-kill and and thereupon a little small cottage and that the Lessor entred and went to the said cottage and took some of the Bricks and untiled the said cottage Suspension of Rent by entry upon part of the Land. But of the other side it was said that the Lessor had reserved to himself the Bricks and Tiles aforesaid which in truth were there ready made at the time of the Lease made and that he did not untile the Brick-kill house but that it fell by tempest and so the Plaintiff did nothing but came upon the Land to carry away his own goods And also he had used the said Bricks and Tiles upon the reparation of the house And as to the Extra tenet which is parcel of the Issue the Lessor did not continue upon the Land Hob. 326. Rolls ubi supra Post 172. but went off it and relinquished the possession But as to this last point it seemed to the Court that it is not material if the Plaintiff continued his possession there or not for if he once doth any thing which amounts to an Entry although that he depart presently yet the possession is in him sufficient to suspend the Rent and he shall be said extra tanere the Defendant the Lessee until he hath done an Act which doth
amount to a Re-entry And afterwards to prove a Re-entry it was given in Evidence on the Plaintiffs part that the Defendant put in his Cattel in the Field where the Brick-kill was and that the Cattel did estray into the place where the Defendant had supposed that the Plaintiff had entred And by Anderson Iustice the same is not any Re-entry to revive the Rent because they were not put into the same place by the Lessee himself but went there of their own accord And such also was the opinion of Iustice Periam CL. Pasch 30 Eliz. In the Common Pleas. TEnant in tail covenanted with his Son to stand seised to the use of himself for life and afterwards to the use of his Son in tail the Remainder to the right Heirs of the Father The Father levyed a Fine with proclamation and died It was moved by Fenner if any estate passed to the Son by the Covenant for it is not a discontinuance and so nothing passed but during his life and all the estates which are to begin after his death are void Anderson The estate passeth until c. and he cited the case of one Pitts where it was adjudged that if Tenant in tail of an Advowson in gross grant the same in Fee and an Ancestor collateral releaseth with warranty and dieth That the same is a good Bar for ever CLI Staffords Case Pasch 30 Eliz. In the Common Pleas. THe case was Attachment upon a Prohibition More 599. that the Parson of the Church of B. did libel in the Ecclesiastical Court for Ttithe-milk of eight Kine depasturing within such a Field within his Parish The Defendant said that he and all those c. had used time out of mind c. to pay every year a certain sum of mony to the Parson c. for the Tithes of the same Field which plea the Iudges of the Ecclesiastical Court would not allow and therefore the party had now a Prohibition and an Injunction against the Iudges Doctors Proctors c. And afterwards the same Parson libelled again for the same Tithes against the same Parishioner and in both libels there was no difference but that in the later libel it was for a less number of Kine and now the Parishioner upon this matter prayed an Attachment upon the Prohibition which was granted unto him by the Court for otherwise a Prohibition should be granted to no purpose CLII. Samford and Wards Case Pasch 30 Eliz. In the Common Pleas. SAmford brought a Ravishment of Ward against Ward Ravishment of Ward and counted hat one A. Ancestor of the Infant whose Heir he is was seised of certain Lands in Fee and held the same of the Bishop of Winchester in Socage and died his Heir within the age of 14 years and that the custody of the Infant did belong unto him as his prochein Amy by force of which he seised him and was possessed c. The Defendant saith that the Land was holden of him by Knights service absque hoc that it is holden of the Bishop of Winchester as the Plaintiff hath counted And upon the Issue was joyned And it was moved by Serjant Puckering on the Plaintiffs part that the truth of the Case was that all the Land descended is holden in Socage and no part in Knights service but that part of it is holden of another in Socage And prayed the opinion of the Court if that matter shall trench to the Issue as the same is joyned And the Court was of opinion that it did not for if all be holden in Socage it is not material if part of it be holden of another so as it be holden in Socage CLIII Stamp and Hutchins Case Pasch 30 Eliz. In the Common Pleas. THe Case was the Obligor makes his Executors and dieth 1 Cro. 120. the Executors become bounden to the Obligee for the payment of the said Debt and the Obligee doth deliver back the Obligation of the Testator to them and afterwards another Creditor of the Testator sues the Executors who pleaded that they have fully administred upon which they are at issue and the said especial matter was found by verdict And by Shuttleworth and Walmesley The Iury have found for the Plaintiff and that the Defendants have not fully administred And yet they agreed the case of 20 H. 7. 2. The Executors paying to the Creditors of the Testator a Debt with their own goods they may retain so much of the goods of the Testator but that case is not like to this for here the Executors have not made any payment or satisfaction of the Debt nor disbursed any mony c. nor other things but only have made an Obligation to pay a sum of mony at a day to come before which day it may happen that the Obligation be cancelled or released but it may more fitly be compared to the case of 27 H. 8. 6. where an Executor had compounded with a Creditor of the Testator for the payment of 20 l. for a debt of 40 l. and had an Acquitance testifying the payment of the 40 l. where it was holden that the other 20 l. is Assets And by Rhodes this making of an Obligation by Executors Administration Assets although the Obligation in which the Testator was bounden be delivered to the Executors and cancelled is not any administration nor payment of the said debt due So if the Executors pledge the goods for the payment of such a debt yet they shall be accounted Assets until payment be made which Periam denied And Periam and all the other Iustices held clearly Retainer by administrations that if in such case the Executors make a sufficient Obligation to the Creditor of the Testator and sufficiently discharge the Testator without fraud or covin that they may retain the goods of the Testator for so much and the goods retained shall not be said Assets And this case is all one with the case of 20 H. 7. for here they have discharged the Testator and the Executors do remain charged with the same to the Creditor and it is so fully administred as if the Executors had expresly paid the debt And it is not like to the case of 27 H. 8. cited before for there although they have discharged the Testator yet they have not charged themselves otherwise it is in the principal case and although they have appointed ulteriorem diem for the payment of the said debt yet the same is not material But the Lord Anderson conceived that if the Creditor doth deliver unto the Executors the Obligation as an Accquittance or discharge and in consideration thereof they promise to pay the debt the same is not any administration as to the said debt And by some of the Serjants If the plea stand good to prove fully administred then Executors in such case may make an Obligation to pay the debt 40 years after and so defraud the other Creditors which is not reasonable If a Feoffment in Fee
made upon condition to pay certain mony at such a day and at the day the Feoffees make an Obligation to the Feoffor for the payment of it the same is no performance of the condition And by Periam If the Executor be taken in Execution for the debt of the Testator he may retain so much of the goods of the Testator amounting to the sum for which he is in Execution and it shall be accounted Assets in his hands Anderson If he to whom the Testator was endebted in 20 l. be endebted to the Executors in so much and the Executor in satisfaction of the debt of the Testator releaseth his debt the property shall be altered presently of the whole goods in the hands of the Executors so where the Debtor makes the Creditor his Executor And Iudgment was given for the Executors CLIV. Bears Case Pasch 30 Eliz. In the Common Pleas. Formedon A Formedon in the Discender was brought by Samuel Bear James Bear and John Bear of Lands in Gavel-kind and the Warranty of their Ancestor was pleaded against them in Bar upon which they were at Issue If Assets by discent And it was found by special verdict that Thomas Father of the Demandants was seised in Fee of the Lands supposed to be descended to the Demandants being of the nature of Gavel-kind and devised the same to the Demandants being his Heirs by the custom and to their Heirs equally to be divided amongst them Devise of Lands in Gavel-kind Owen 65. Dy. 350. 1 Cro. 431. More 594. 558. Sty 434. 3 Cro. 330. 443. 695. 696. And if the Demandants shall be accounted to be in of the Lands by descent or devise was the question for if by devise then they shall not be Assets Anderson Let us consider the devise by it self without the words equally to be divided amongst them And I conceive that they shall be in by the devise for they are now Ioynt-tenants and the survivor shall have the whole whereas if the Lands shall be holden in Law to have descended they should be Parceners and so as it were Tenants in common And although the words subsequent equally amongst them to be divided makes them Tenants in common yet that doth not amend the matter and so also was the opinion of Windham and Rhodes Iustices CLV Nash and Edwards Case Pasch 30 Eliz. In the Kings Bench. IN an Ejectione firmae by Nash against Edwards 1 Cro. 100. it was found by special verdict that one Dover Ancestor of the Plaintiff whose Heir he is being seised of certain Lands holden in Socage devised the same by word to his three Sisters And a stranger being present recited to the Devisor the said words of his Will and he did affirm them 3 Len. 79. And afterwards the said stranger put the said words in writing for his own remembrance but did not read them to the Devisor who afterwards died And it was moved If this devise being reduced in writing modo forma be good or not Spurling conceived that not for the Statute intends a Will in writing Devises but not such writing as is here without privity or direction of the Devisor and it is not like to the case of Brown and Sackvil 6 E. 6. Dyer 72. For the Notes were written by the commandment of the Devisor but here it doth not appear that the meaning of the Devisor was that the devise should be put in writing And devises in Law are favoured as the case in the Chancery was that Sir Richard Pexhal devised certain Lands to his Wife and the Scrivener inserted of his own head a condition scil that she should be chast which was disallowed by the Devisor himself for which after his death the condition although it was put in writing was void And by the whole Court the devise is void And by Wray 2 Len. 35. if he appoint A. to write his Will and it is written by B. it is void but if after he had written the Will if he had read it to the Devisor and he had confirmed it it had been a good Will which Gawdy granted And afterwards Iudgment was given that the Plaintiff should recover Stone and Withypolls Case Trin. 30 Eliz. Rot. 771. In the Kings Bench. STone brought an Action upon the Case against Dorothy Withypol the Executrix of W. Withypol her Husband 1 Cro. 126. Owen 94. 9 Co. 94. declared that where hersaid Husband for certain yards of Velvet of the value of fourteen pounds pro diversis alijs mercimonijs was endebted to the Plaintiff in the sum of ninety two pounds and made the Defendant his Executrix died that after his death he came to the Defendant and demanded of her the said debt who gave to him such answer Forbear me until Michaelmas and then I will pay it you or put you in sufficient security for the true payment thereof And declared further that at Michaelmas aforesaid the Defendant did not pay nor hath found any security and shewed a request to which the Defendant said that the said Testator at the time of the said Contracts for the Velvets and other Wares was within age Assumpsit And upon that Bar the Plaintiff did demur in Law. Egerton Solicitor for the Plaintiff As I conceive these Contracts made by the Plaintiff are not meerly void so that if an Action of Debt or upon the Case had been brought against the Testator himself he could not have pleaded upon the matter Nihil debet or Non Assumpsit or Non est factum but he ought to avoid the matter by special pleading and therefore here it is a good consideration and I conceive that if the Testator at his full age had assumed to pay the debt that that promise would have bound him 9 Eliz. it was the Case of the Lord Grey his Father was endebted to diverse Merchants upon simple Contracts and died seised of diverse Lands which descended to his Son and Heir in Fee the Creditors demanded their debts of the Heir who answered unto them if my Father were endebted unto you I will pay it and upon that promise an Action was adjudged maintainable although the Heir by the Law was not chargeable and also here the Defendant is to have ease and shall avoid trouble of Suits for perhaps if she had not made such promise the Plaintiff would have sued her presently which should be a great trouble unto her and therefore it is a good consideration Cooke contrary No consideration can be good if not that it touch either the charge of the Plaintiff or the benefit of the Defendant and none of them is in our case for the Plaintiff is not at any charge for which the Defendant can have any benefit for it is but the forbearance of the payment of the debt which she was not compellable to pay and as to the suit of the Chancery the same cannot make any good consideration for there is not any matter
otherwise it should be idle And afterwards Iudgment was given against the Queen CLXIII Piers and Leversuchs Case In Ejectione firmae Trin. 30 Eliz. In the Kings Bench. IT was found by special verdict that one Robert Leversuch Grand-father of the Defendant was Tenant in tail of certain Lands whereof c. and made a Lease for years to one Pur. who assigned it over to P. father of the Plaintiff Robert Leversuch died W. his Son and Heir entred upon P. who re-entred W. demised without other words the Land to the said P. for life the remainder to Joan his Wife for life the remainder to the Son of P. for life with warranty and made a Letter of Attorney therein to enter and deliver seisin accordingly P. died before that the Livery was executed and afterwards the Attorney made livery to Joan. W. died Ed. his Son and Heir entred upon the Wife she re-entred and leased to the Plaintiff who upon an ouster brought the Action Heale When P. entred upon W. Leversuch the issue in tail he was a disseisor and by his death the Land descending to his Heir the entry of W. Leversuch the issue in tail was taken away 3 Cro. 222. Cook contrary P. by his entry was not a disseisor but at the Election of W. for when P. accepted such a deed from W. it appeareth that his intent was not to enter as a disseisor and it is not found that the said P. had any Son and Heir at the time of his death and if not then no descent and there is not any disseisin found that P. expulit Leversuch out of the Land. And Iudgment was given against the Plaintiff And Cook cited a Case which was adjudged in the Common Pleas and it was the Case of Shipwith Grand-father Tenant in tail Father and Son The Grand-father died the Father entred and paid the Rent to the Lessor and died in possession and adjudged that it was not any descent for the paying of the Rent doth explain by what title he entred and so he shall not be a Disseisor but at the Election of another CLXIV Severn and Clerks Case Trin. 30 Eliz. In the Kings Bench. â—ts THe Case was that A. by his Deed Poll recited That whereas he was possessed of certain Lands for years of a certain Term By good and lawful conveyance he assigned the same to I. S. with divers Covenants Articles and Agreements in the said deed contained which are or ought to be performed on his part It was moved if this recital whereas he was be an Article or Agreement within the meaning of the condition of the said Obligation which was given to perform c. Gawdy conceived that it is an agreement For in such case I agree that I am possessed of it for every thing contained in the deed is an Agreement and not only that which I am bound to perform As if I recite by my deed that I am possessed of such an interest in certain Land and assign it over by the same deed and thereby covenant to perform all Agreements in the deed if I be not possessed of such Interest the covenant is broken And it was moved if that recital be within these words of the condition which are or ought to be performed on my part And some were of opinion that it is not within those words for that extends only in futurum but this recital is of a thing past or at the least present Recital 2 Cro. 281. Yyl. 206. Clench Recital of it self is nothing but being joyned and considered with the rest of the deed it is material as here for against this recital he cannot say that he hath not any thing in the Term. And at the length it was clearly resolved that if the party had not that Interest by a good and lawful conveyance the Obligation was forfeited CLXV Page and Jourdens Case Trin. 30. Eliz. In the Kings Bench. IN Trepass betwixt Page and Jourden the case was A Woman Tenant in tail took a Husband who made a Feoffment in Fee and died The Wife without any Entry made a Lease for years It was moved that the making of this Lease is an Entry in Law. As if A. make a Lease for years of the Land of B. who enters by force of that Lease A general entry amounts to a disseisin now the Lessor without any Entry is a Disseisor And it was resolved that by that Leasâ— the Free-hold is not reduced without an Entry CLXVI Havithlome and Harvies Case Trin. 30. Eliz. In the Kings Bench. Action upon the Statute of 5 Eliz. cap. 9. 1 Cro. 130. 3 Cro. Goodwin vers West HAvithlome brought an Action upon the Statute of 5 Eliz. cap. 9. against Harvy and his Wife for the penalty of ten pounds given by the said Statute against him who was served with process ad testificandum c. and doth not appear not having any impediment c. and shewed that process was served upon the Defendants Wife and sufficient charges having regard to her degree and the distance of the place c. tendred to her and yet she did not appear And it was found for the Plaintiff It was moved in arrest of Iudgment that the Declaration is not good because the Plaintiff in setting forth that he was damaged for the not appearance of the Wife according to the process hath not shewed how damnified Also it was moved that a Feme Covert is not within the said Statute for no mention is made of a Feme Covert and therefore upon the Statute of West 2. cap. 25. If a Feme Covert fail of her Record she shall not be holden disseisseress nor imprisoned Also here the Declaration is that the Plaintiff tendered the charges to the Wife where he ought to have tendered the same to the Husband To these three Exceptions it was answered 1. That although the party be not at all damnified yet the penalty is forfeited 2. Feme Coverts are within the said Statute otherwise it should be a great mischeif for it might be that she might be the only witness And Feme Coverts if they had not been expresly excepted had been within the Statute of 4 H. 7. of Fines 3. The wife ought to appear therefore the tender ought to be to her And afterwards Iudgment was given for the Plaintiff CLXVII Dellaby and Hassels Case Pasch 30 Eliz. In the Kings Bench. IN an Action upon the Case 1 Cro. 132. the Plaintiff declared that the Defendant in consideration that he had retained the Plaintiff to go from London to Paris to Merchandize diverse goods to the profit of the Defendant promised to give to him so much as should content him and also to give him all and every sum of money which he should expend there in his Affairs and further declared that he was contented to have twenty-pounds for his labour which the Defendant refused to pay And exception was taken to the Declaration because there is
not set down any place or time of the notification of his contentment for the same is traversable Gawdy The Issue here is non Assumpsit Assumpsit and therefore that matter is out of the Book Cook If one assume to pay twenty pounds to another upon request although the Defendant plead non Assumpsit yet if the place and time of request be not shewed Iudgment many times hath been stayed for no Action without a Request so here without notification of his contentment no Action therefore he ought to shew it Gawdy The ground of this Action is the Assumpsit but that cannot be certain without Declaration and thereof notice ought to be given to make certainty of the duty but not to enforce the promise but in our case without a Request Assumpsit will not lye But here it being but conveyance the certainty of the time and place is not necessary to be shewed but the general form shall serve for it is but inducement As if a man will plead a devise of goods to him and assent of the Executors to take them he need not to shew the time and place of the assent Gawdy at another day said that Iudgment ought to be given for the Plaintiff the Assumpsit is the ground and cause of the Action and the shewing of the contentment is only to reduce the Action to certainty And Iudgment was given for the Plaintiff CLXVIII Musket and Coles Case Trin. 30 Eliz. In the Kings Bench. WIlliam Musket brought an Action upon the Case against Cole 1 Cro. 13. and declared that in consideration that the Plaintiff had payed unto the Defendant forty shillings for the Debt of Symon his Son the Defendant promised to deliver to him omnes tales billas Obligationes in which his Son was bounden to him which thing he would not do and it was found by Verdict for the Plaintiff And it was moved for stay of Iudgment because the Plaintiff had not averred in his Declaration that the said Defendant had Bills or Obligations in which Simon his Son was bounden to the Defendant Averment for if there were none then no damage And see Onlies Case 19 Eliz. Dyer 356. D. in consideration that the Plaintiff had expended divers sums of money circa the businesses of the Defendant promised c. Exception was taken to that Declaration by Manwood and Mounson Iustices because it was not shewed in what businesses certain and betwixt what persons Gawdy The Plaintiff here is not to recover the Bills or Obligations but damages only and therefore needeth not to alledge any Bills in certain And 47 E. 3. 3. A. covenants with B. to assure unto B. and his Heirs omnia terras tenementa quas habet in such Counties and for not assurance an Action of Covenant was brought and the Plaintiff declared that the Defendant had broken the said Covenant and that he had required the Defendant to make a Feoffment unto him of all his Lands and Tenements in the said Counties and the plea was not allowed for the Land is not in demand but only damages to be recovered See also 46 E. 3. 4. and 20 E. 3. And in the principal case the Plaintiff had time enough for the shewing to the Iury what Bills or Obligations for the instructing of the Iury of the damages CLXIX English and Pellitary and Smiths Case Trin. 30 Eliz. In the Kings Bench. Assault and Battery 1 Cro. 139 140. IN an Action of Trespass of Assault and Battery and wounding The Defendants say that they were Lessees of certain Lands and the Plaintiff came to the said Lands and took certain Posts which were upon the Lands and they gently took them from him S. pleaded that he found the Plaintiff and P. contending for the said Posts and he to part them mollite put his hands upon the Plaintiff which is the same c. The Plaintiff replyed De injuriis suis propriis absque tali causa per ipsos P. S. allegat upon which issue was joyned which was found for the Plaintiff It was moved in arrest of Iudgment that here was not any issue for the Plaintiff ought severally to reply to both pleas aforesaid for here are several Causes of Iustification and his Replication absque tali causa Nomen Collectivum Post 139. Dy. 182. doth not answer to both Cook This word Causa is nomen Collectivum which may be referred to every Cause by the Defendants alledged reddendo singula singulis and their Iustifications are but one matter and the Defendants might have all joyned in one plea. Wray Both pleas depend upon one matter but are several causes for two justifie by reason of their Interest and the third for the preservation of the Peace And by him and the whole Court although it be not a good form of pleading yet by reasonable construction this word Cause shall be referred to every cause and so the pleading shall be maintained And afterwards Iudgment was given against the Plaintiff CLXX Cater and Boothes Case Trin. 30. Eliz. In the Kings Bench. Intrat Hill. 30 Rot. 58. or 581. IF a Writ of Covenant the Plaintiff declared that the Defendant by his deed bearing date the first of October 28 Eliz. did covenant that he would do every act and acts at his best endeavour to prove the Will of I. S. or otherwise Covenant that he would procure Letters of Administration by which he might convey such a Term lawfully to the Plaintiff which he had not done licet saepius requisitus c. The Defendant pleaded that he came to Doctor Drury into the Court of the Arches and there offered to prove the Will of the said I. S. but because the Wife of the said I.S. would not swear that it was the Will of her Husband they could not be received to prove it Vpon which it was demurred in Law. It was moved by Williams that the Action doth not lie for there is no time limited by the Covenant when the thing should be done by the Defendant for which he hath time during his life for as much as it is a collateral thing See 15 E. 4. 31. if there be not a Request before but admit that the Covenant had been to perform upon request Request then the Plaintiff in his Declaration ought to have shewed an express request with the place and time of it for that is traversable See 33 H. 6. 47 48. 9 E. 4. 22. Gawdy If the Covenant had been eypresly to do it upon request there the request ought to be shewed specially But when a thing upon the exposition of the Law only is to be done upon Request such Request alledged generally is good enough And by Wray the Covenantor hath not time during his life to perform this Covenant but he ought to do it upon request within convenient time but in some case a man shall have time during his life as where no benefit shall be to any of the
and that he would name in it one B. for special Bailiff and promised the Plaintiff that if B. arrested A. by force of the said Capias and suffered him to escape That he would not sue the Plaintiff for the escape and shewed further That he made a Warrant according to the said Capias and therein named and appointed the said B. his special Bailiff who arrested A. accordingly and afterwards suffered him to escape and the Defendant notwithstanding his promise aforesaid sued the Plaintiff for the said escape And it was found for the Plaintiff It was moved in arrest of Iudgment That the promise is against the Law to prevent the punishment inflicted by the Statute of 23 H. 6. upon the Sheriff and it is meerly within the Statute and so the promise void Cooke The same is not any Bond or promise taken of the Prisoner nor of any for him and therefore it is not within the Statute as it was in Danvers Case Wray A promise is within the Statute as well as a Bond but the Statute doth not extend but where the Bond or promise is made by the Prisoner or by any for him And after Iudgment was given for the Plaintiff CLXXXI Mounson and Wests Case Hill. 30 Eliz. In the Common Pleas. IN Trespass by Mounson against West the Iury was charged and evidence given and the Iurours being retired into a house for to consider of their evidence Owen 38. Plowd 520. Co. 1 Inst 227. Dyer 37. they remained there a long time without concluding any thing and the officers of the Court who attended them seeing their delay searched the Iurours if they had any thing about them to eat upon which search it was found that some of them had figs and others pippins for which the next day the matter was moved to the Court and the Iurours were examined upon it upon Oath And two of them did confess that they had eaten figs before they had agreed of their verdict and three other of them confessed That they had Pippins but did not eat of them Where Jurors shall be fined for eating before verdict but it shall not make void the verdict and that they did it without the knowledge or Will of any of the Parties And afterwards the Court set a fine of five pound upon each of them which had eaten and upon the others who had not eaten forty shillings And they would advise if the verdict was good or not for the Iury found for the Plaintiff And afterwards at another day the matter was moved and Anderson was of opinion That notwithstanding the said Misdemeanor of the Iury the verdict was good enough for these victuals were not given to them by any of the Parties to the action nor by their means or procurement Rhodes thought the contrary because some of the Iurors had eaten and some not contrary if all of them had eaten See 14 H. 7. 1. A Iury was charged and before their verdict they did eat and drink and it was holden that upon that Misdemeanor their verdict was void for which cause a venire facias de novo was awarded And it was prayed by the Counsel of the Defendant West That the said Misdemeanor so found by examination might be entred of Record which the Court granted And afterwards at another day the matter was moved again And upon great advice and deliberation and conference with the other Iudges The verdict was holden to be good notwithstanding the Misdemeanor aforesaid See 24 E. 3 24. 15 H. 7. 1. 2 H. 7. 3. 29 H. 8. 37. and 35 H. 8. 55. where it was holden where the eating and drinking of the Iury at their own costs is but fineable but if it be at the costs of the parties the verdict is void And see Book of Entries 251. The Iurors after they went from the Bar ad seipsos of their verdict to be advised comederunt quasdam species sci raisins dates c. at their own costs as well before as after they agreed of their verdict And the Iurors were committed to prison but their verdict was good although the verdict was given against the King. CLXXXII Hunt and Gilborns Case Hill. 30 Eliz. In the Common Pleas. IN Dower brought by Hunt and his Wife against Gilborn The Defendant pleaded That the Land of which Dower is demanded Dower of Gavelkind by Custom Ante. 62 63. 1 Cro. 825. is of the nature of Gavelkind and that the custom is That in Dower of Land of such nature The Wife ought to be endowed of the moity of such Land Tenendum quam diu non maritata remanserit non aliter upon which plea in Bar the Demandants did demur in Law and the Lord Anderson was of opinion That the Custom is strongly pleaded against the Dower in the affirmative with a Negative non aliter and that is confessed by the Demurrer That Dower out of such Land ought to be so allowed and so demanded and in no other manner And by Periam If those words non aliter had not been in the Plea yet the Demandants should not have Iudgment For Dower by moiety non maritatis is as proper in case of Gavelkind as Dower of the third part of Land at the Common Law and as the descent in such case of Lands to all the Sons And afterwards Iudgment was given against the Demandants CLXXXIII The Case of the Provost and Scholars of Queens Colledge in Oxford Hill. 30. Eliz. THe Provost Fellows and Scholars of Queens Colledge in Oxford are Guardians of the Hospital or Meason de Dieu in Southampton And they make a Lease of the Land parcel of the said Hospital to one Hazel for Term of years by the name Praepositus Socii Scholares Collegii reginalis in Oxonia Gardianus Hospitalis c. And in an Ejectione firmae upon that lease It was found for the Plaintiffs and it was objected in arrest of Iudgment That the word Gardianus ought to be Gardiani for the Colledge doth consist of many persons and every person is capable and it is not like unto Abbot and Covent But the whole Court was of opinion that the Exception was not good but that as well the Lease as also the Declaration was good for the Colledge is one body and as one person And so it is good enough Gardianus CLXXXIV Wooden and Hazels Case Hill. 30 Eliz. In the Common Pleas. IN an Ejectione betwixt Wooden and Hazel they were at issue upon Not Guilty and a Venire facias awarded returnable Tres Trinit And the Essoin adjudged and adjorned by the Plaintiff until Michaelmas Term Nisi Prips And at next Assises the Plaintiff not withstanding that Essoin and the adjorning of it procured a Nisi Prius by which it was found for the Plaintiff And now it was moved in Court for the stay of Iudgment because no Nisi Prius ought to issue in the Case Essoin For the Essoin was adjudged and adjorned
until Michaelmas Term by the Plaintiff himself And Leonard custos Brevium said That the words of the Statute of Westminster 2 cap. 27. Postquam aliquis posuerit se in aliquem inquisitionem ad proximum diem allocet ei esson Imports That the Essoin shall not be taken at the return of the Process against the Iury although the Iury be ready at the Bar. Anderson was of opinion That the awarding of the Nisi Prius ut supra is but a misawarding of the Process and then relieved by the Statute And afterwards the case being moved at another day 1 Cro. 367. the Court was clear of opinion That no Nisi Prius ought to issue forth in this case because that the Plaintiff himself by the adjorning of the Essoin cast by the Defendant until Michaelmas Term had barred himself of all Proceedings in the mean time But afterwards it was surmised to the Court on the Plaintiffs part that he the Defendant was not essoined for the name of the Defendant is Edward Hazel and it appeared upon the tryal that Edward Russel was essoined Amendment but no Edward Hazel and then if no Essoin no adjornment and then the Plaintiff is at large c. and may proceed c. But the Remembrance of the Clark was Edward Hazel as it ought to be and yet it was holden of no effect being in another Term And afterwards the Counsel of the Defendant prayed that the Roll in hac parte be amended according to the Remembrance of the Clark But the Court utterly denied that for no Statute gives amendment but in the affirmance of Iudgments and Verdicts and not in defeazance of Iudgments or Verdicts and afterwards it was resolved by the whole Court That Iudgment be entred for the Plaintiff CLXXXV Sir Henry Goodiers Case Hill. 32 Eliz. Intratur M. 29 30. Eliz. Rot. 2116. IN an Ejectione firmae the Case was Sir Ralph Rowlet possessed of certain Lands for years made his Will and ordained Sir Nicholas Bacon Renouncing of an Executorship Owen 44. Office of Executors 54. 1 Cro. 92. 9 Co. 37. Keeper of the great Seal of England Sir Robert Catline Lord Chief Iustice of England Iustice Southcote and Gerrard Attorney General his Executors and died And afterwards the said persons named Executors sent their Letters to the Chief Officer of the Prerogative Court as followeth Whereas our Loving friend Sir Ralph Rowlet Knight lately deceased made and ordained us Executors of his last Will and whereas our business is so great that we cannot attend the execution of the said Will Therefore we have thought good to move the bearer hereof Mr. Henry Goodier one of the Co-heirs of the said Sir Ralph to take upon him the execution of the said Will. And therefore we pray you to grant Letters of Administration in as ample manner as the justice of the cause doth require and afterwards an Entry was made in this manner in the same Court Executores Testamenti praedict executionem inde super se assumere distulerant adhuc distarent And upon that the said Goodier obtained Letters of Administration and granted a Lease to A. for years of which the said Sir Ralph Rowlet died possessed And afterwards Sir Robert Catline claiming as Executor granted the same Term to another c. and all the matter of difficulty was If this Letter written by the Executors be a sufficient Renunciation of the Executorship in Law so as the Executors cannot afterwards claim or use the said authority c. 2. If the Entry of the said Renuntiation be sufficient and effectual And it was argued by Ford one of the Doctors of the Civil Law That as well the Renunciation as the Entry of it is good and sufficient in Law so that none of the Executors could not after entermeddle And he said That in their Law there is not any certain form of Renuntiation but if the meaning and intention of the Renouncer appeareth it is sufficient without any formal Terms of Renunciation And he put many rules and Maximes in their Law to the same purpose Ego dico me nolle esse haeredem are sufficient words to such intent Non vult haeres esse quin ad aliam transferre debet haereditatem Qui semel repudiavit haereditatem non potest eam repetere Quod semel placuit post displicere non potest Variatio non permittitur in contractibus So that after the Executors have signified to the Officer of their Court their pleasure to renounce the Execution of the Will they cannot afterwards entermeddle nam interest reipublicae ut dominia rerum sint in certo And as to the Entry of the said Renunciation inter acta Curiae distulerint et adhuc distarent that was the error of the Clark. And it is Rule in our Law veritas rerum gestarum non vitiatur Errore factorum And the Lord Anderson demanded of the said Doctor how far those words haeres et haereditas did extend in their Law who answered That haereditas comprehends all Chattels as well real as personal Inheritance as well as Chattels for by their Law Haereditas nihilaliud est quam successio in universum jus quod defunctus habuit tempore mortis suae And afterwards the Court gave day to the other party to hear an Argument of their side but the case was so clear That no Professor of the Civil Law would be retained to argue to the contrary And afterwards Iudgment was given That the said Renunciation and the entry of it was sufficient CLXXXVI Littleton and Pernes Case Mich. 30 Eliz. In the Common Pleas. Debt LIttleton brought Debt upon an Obligation against Humphry Pernes who pleaded that the said Obligation was endorced with this condition for the performance of certain Articles and Covenants contained in certain Indentures by which Indentures the Plaintiff first covenanted that Edward brother of Humphry should enjoy such Land until the Feast of Michaelmas next following rendring such Rent at the end of the said Term and the said Humphry covenanted that the said Edward at the Feast aforesaid should surrender quietly and peaceably the said Lands to the Plaintiff and that the said Plaintiff to such of the said Lands as by the Custom of the Country tunc jacebant frisca should have in the mean time free ingress egress c. at his will and pleasure with his servants ploughs c. And as to that Covenant the Defendant pleaded Quod permisit querentem habere intrationem exitum c. in tales terras quales tunc jacebant secundum consuetudinem patriae c. And Exception was taken to this plea because he hath not shewed in certain which Lands they were which then then did lie Frecy according to the custom of the Country which Anderson allowed of but Walmsly strongly insisted to the contrary And he confessed that where an Act is to be done according to a Covenant he who pleads the performance of it ought to
Curiam the same is no offence in the Court but it was an ill act of the Master of the Rolls For we oftentimes have persons here upon Habeas Corpus who are also arrested by Process out of the Exchequer or of the Common Pleas but we will not discharge them before they have found Sureties for their appearance c. and so the said Courts use to do reciprocally and we cannot punish the Sheriff for the Hebas Corpus was first returnable before the Latitat but the party may have an action against the Sheriff but we will speak with the Master of the Rolls c. and afterwards Baill was put in But afterwards another Exception was taken to the Return scil a custodia nostra exoneratus fuit which might be intended as to the Cause in the Chancery only and not for the Cause here for he hath not alledged that he hath not alledged That he was committed to any other in custody and for that cause day was given to the Sheriff to amend his Return CCII. Upton and Wells Case Trin. 31. Eliz. In the Kings Bench. IN an Ejectione firmae by Upton against Wells Iudgment was given for the Plaintiff and upon the habere facias possessionem The Sheriff retuned that in the Execution of the said Writ he took the Plaintiff with him and came to the house recovered and removed thereout a woman and two children which were all the persons which upon diligent search he could find in the said house and delivered to the Plaintiff peaceable possession to his thinking and afterwards departed and immediately after three other persons which were secretly lodged in the said house expulsed the Plaintiff again 2 Len. 12 13. Latch 165. upon notice of which he returned again to the said house to put the Plaintiff in full possession but the other did resist him so as without peril of his life and of them that were with him in company he could not do it And upon this Return the Court awarded a new Writ of execution for that the same was no Execution of the first Writ and also awarded an Attachment against the parties CCIII Marsh and Astreys Case Trin. 31 Eliz. In the Kings Bench. 1 Cro. 175. MArsh brought an Action upon the Case against Astrey and declared That he had procured a Writ of Entry sur disseisin against one A. and thereupon had a summons for Lands in London and delivered the said Summons to Astrey being Vnder-Sheriff of the same County virtute cujus the said Astrey summoned the said A. upon the Land but notwithstanding that did not return the said Summons Astrey pleaded Not guilty And it was tryed in London where the action was brought for the Plaintiff and it was moved by Cook in arrest of Iudgment That here is a mis-trial for this issue ought to be tryed in the County where the Land is because that the cause is local but the Exception was not allowed for the action is well layed in London and so the trial there also is good Trial. Another Exception was moved because the action ought to be against the Sheriff himself and not against the Vnder-Sheriff for the Sheriff is the Officer to the Court and all Returns are in his Name and I grant that an action for any falsity or deceit lyeth against the Vnder-Sheriff as for embesseling rasing of Writs c. but upon Non feasans as the Case is here the not Retorn of the Summons it ought to be brought against the Sheriff himself See 41 E. 3. 12. And if the Vnder-Sheriff take one in Execution and suffereth him to escape debt lyeth against the Sheriff himself Another Exception was taken because the Declaration is that the said Astrey Intendens machinans ipsum querent in actione sua praedict prosequend impedire c. did not retorn the said Summons but doth not say tunc exist Vnder-Sheriff Snag contrary If a Baily Errant of the Sheriff take one in Execution and he suffer him to escape an action lieth against the Baily himself And that was agreed in the Case of a Baily of Middlesex and Sir Richard Dyer Sheriff of Huntington and his Vnder-Sheriff who suffered a Prisoner to escape the action was brought against the Vnder-Sheriff for it may be the Sheriff himself had not notice of the matter because the Writ was delivered to the Vnder-Sheriff and he took a Fee for it and therefore it is reason that he shall be punished As if a Clerk in an Office mis-enter any thing he himself shall be punished and not the Master of the Office because he takes a fee for it But if the Retorn made by the Baily be insufficient Then the Sheriff himself shall be amerced but in the principal case it is clear That the action lieth against the Vnder-Sheriff if the party will and such was the opinion of Gawdy and Clench As to the other matter because it is not alledged in the Declaration That the Defendant was Vnder-Sheriff at the time the Declaration is good enough notwithstanding that for so are all the Presidents and if the Defendant were not Vnder-Sheriff the same shall come in of the other side See 21 E. 4. 23. And afterwards in the principal Case Iudgment was given for the Plaintiff CCIV. Hedd and Chaloners Case Trin. 31 Eliz. In the Common Pleas. 1 Cro. 176. 2 Roll. 42. 176. IN an Ejectione firmae by Hedd against Chaloner upon a Demise for years of Jane Berd It was found by especial Verdict That William Berd was seised in fee made a Feoffment to the use of himself for life afterward to the use of his two Daughters Joan Alice in fee and died and Joan entred into the Land and by Indenture by the name of Jane Berd leased the same to the Plaintiff for three years And it was further found That Joan intended in the Feoffment and Jane who leased are one and the same person Wray It hath been agreed here upon good advice and Conference with Grammarians that Joan and Jane are but one Name And Women because Joan seems to them a homely name would not be called Joan but Jane But admit that they were several Names Then he and Gawdy were of opinion it should not be good But afterwards it was said by Gawdy That this action is not grounded meerly upon the Indenture but upon the Demise and that is the substance and the Indenture is but to enforce it sci the lease 44 E. 3. 42. Another matter was moved here the remainder was limited to Joan and Alice in fee by which they are Ioint Tenants and then when one of them enters the same vests the possession in them both Then by the demise of Joan a moyety passeth only to the Plaintiff Wray Here the Term is incurred and the Plaintiff is to recover damages only and no title at all is found for the Defendant and so there is no cause but that Iudgment should be given for
issues the Iury might have assessed the damages severally scil for each issue several damages but here is but one issue and it was the folly of the Defendant that he would not demur in Law upon the Declaration for one part scil the not performance of the Award and traverse the other part scil The suing of the Execution or the Assumpsit of it And in our case it may be that the Iury did assess the damages for the suing of the Execution without any regard had to the performance of the Award And note that the verdict for assessing of the Damages was in these Terms scil Et assidunt damna occasione non performationis Assumpsionis praedict c. And Cook who was of Councel in this Case put this Case The late Earl of Lincoln Admiral of England brought his Action of Scandalis Magnatum and declared That the Defendant exhibited in the Star-chamber against him a Bill of Complaint containing diverse great and infamous slanders viz. That the said Earl was a great and outragious oppressour and used outragious oppression and violence against the Defendant and all the Country also The Defendant pleaded Not guilty and found for the Plaintiff and assessed damages and it was moved in stay of Iudgment first That the Plaintiff had declared upon matter of slander for part for which an Action lyeth and for part not For the oppression supposed to be made to himself no Action lieth because every subject may complain for wrong done unto him and although he cannot prove the wrong an Action will not lye But as for the oppression done to others by the supposal of the Bill an Action lieth for what is that to him he hath not to do with it for he is not pars gravata But because the Iury assessed Damages entirement the Iudgment was arrested for the cause aforesaid And afterwards in the principal case the last day of this term Iudgment was staied CCXXXIX Palmer and Thorps Case Hill. 31. Eliz. In the Kings Bench. BEtwixt Palmer and Thorpe the Case was this 1 Cro. 152 A man demised his Manour of M. for thirty two years and the day after let the same Manour for forty years to begin from Michaelmas after the date of the first Lease and the Tenant attorned And by Cook the same is a good grant although to begin at a day to come for it is but a Chattel and so was the opinion of Wray Chief Iustice for a Lease for years may expect its commencement as a man seised of a Rent in Fee grants the same for twenty years from Mich. following and good for no estate passeth presently but only an Interest See 28 H. 8. 26. Dyer CCXL Sir Anthony Shirley and Albanyes Case Hill. 31 Eliz. In the Kings Bench. Rot. 668. IN an Action upon the Case upon Assumpsit by Sir Anthony Shirley against Albany Assumpsit 1 Cro. 150. The Plaintiff declared That he was seised of the Manor of Whittington for the term of his life the Reversion to the Earl of Arrundel in Fee and so seised surrendered all his Estate to the said Earl who afterwards by his Deed granted a Rent-charge of 40 l. per annum out of the said Mannor to him and afterwards conveyed the Manor to the Defendant in Fee. And afterwards 27 Maii 22. Eliz. upon a Communication betwixt the Plaintiff and the Defendant concerning the said Rent the Defendant did promise to the Plaintiff that if the Plaintiff would shew unto the Defendant any Deed by which it might appear that he ought to pay to the Plaintiff such a Rent he would pay that which is due and that which should be due from time to time And further declared that 27 April 27 Eliz. he shewed unto the Defendant a Deed by which it appeared that such a Rent was granted and due And for eighty pounds due for the two last years he brought the Action The Defendant pleaded that after the said promise and before the shewing of the said Deed scil 14 Jan. 22 Eliz. the Plaintiff entred into the said Land and leased the same for three years The Plaintiff Replicando said that 1 Decem. 27 Eliz. the Defendant did re-enter upon which they were at Issue and it was found for the Plaintiff It was moved by Glanvil Serjeant that by the entry the Promise was suspended and being a personal thing once suspended it is always extinct Wray The Action is brought for the Arrerages due the two last years and so at the time of his re-entry the Plaintiff had not cause of Action and therefore it could not be suspended Suspension of Rent Ante. 110. Gawdy When the Plaintiff sheweth the Deed the Defendant is chargable to arrerages due before and after the promise wherefore if the entry maketh a suspending of the Rent the suspension doth continue but I conceive here is not any suspension for this promise is a meer collateral thing and so not discharged by the entry into the Land for it is not issuing out of the Land. But if the Plaintiff before the Deed shewed had released all Actions the same had been a good Bar and I conceive that the Deed was not shewed in time for it ought to be shewn before any arrerages due after the promise but here it is shewn five years after But that was not denied by all ther other Iustices Another exception was taken that where the promise was that if the Plaintiff shewed any Deed by which it might appear that the Defendant should be charged with the said Rent and the Declaration is by which it might appear that the Plaintiff ought to have the Rent c. so as the Declaration doth not agree in the whole See 1 Ma. 143. in Browning and Bestons Case the Condition of the Lease was if the Rent should be arrear not paid by two Months after the Feast c. and the Rejoynder was by the space of two months c. And the pleading holden insufficient for per duos menses doth not affirm directly post duos menses but by Implication and Argument And here it was holden that the Condition was a good consideration Another exception was taken because the promise is layed All the Rent ad tunc debitum aut deinceps debend It was holden that this word ad tunc doth refer to the time of the shewing of the Deed and not to the promise And as to the last exception but one it was resolved that the Declaration notwithstanding the same was good enough scil ostendit factum per quod apparet quod redditus praedict solvi deberet in forma praedict Another exception was taken because here no breach of the promise is alledged for it is pleaded thath eight pounds de annuali redditu arrer fuer but it is not said de redditu praedict 8 l. ergo it may be another Rent and then the promise as to this Rent is not broken Wray Although the word praedict be wanting yet the Declaration is well enough
as a Will but as an Executory Devise Wray It is not a conditional Estate in Fee but an Estate tail Coke They who would prove the Custom to entail Copyhold Land within a Manor it is not sufficient to shew Copies of Grants to persons and the Heirs of their bodies Copyhold Estate but they ought to shew that surrenders made by such persons have been enjoyed by reason of such matter VVray That is not so for Customary Lands may be granted in tail and yet no surrenders have been made within time of memory CCXLV Matthew and Hassals Case Mich. 31 Eliz. In the Kings Bench. IN an Ejectione firmae betwixt Matthew and Hassal the Plaintiff had Iudgment to recover and the Defendant brought a Writ of Error Error 1 Cro. 144. and assigned Error in this that the Iudgment was entred Quod querens recuperet possessionem c. where it should be Terminum vent in ten praedict See 9 Eliz. Dyer 258. Coke contrary That the Iudgment is good enough for the Writ of Execution upon it is Habere facias possessionem and in a real Action the Writ is Quod perens recuperet sesinam and not terram And afterwards Iudgment was affirmed CCXLVI Tempest and Mallets Case Hill. 31 Eliz. In the Kings Bench. IN an Action of Trespass by Tempest against Mallet Iudgment was given and Eror brought and assigned for Error 1 Cro. 153 145. that whereas the Action was brought against four one of them died Mesne betwixt the Award of the Nisi prius and the Inquest taken And it was said on the part of the Defendant in the Writ of Error which was entred upon the Record that the Plaintiff shewed unto the Court the death of one of the Defendants and prayed Iudgment against the others See 4 H. 7. 2 Eliz. 175. And there is a difference where in an Action of Trespass there is but one Defendant and where many Another Error was assigned the Defendant Obtulit se per Higgins Attornat suum without shewing his Christian Name as John or VVilliam for Higgins only without the Christian Name is not any Name for it is but an addition to shew which John or VVilliam Coke The same is helped by the Statute of 32 H. 8. cap. 30. Where it is enacted that after Verdict Iudgment shall be given notwithstanding the lack of Warrant of Attorney of the party against whom the Issue shall be tried or any default or negligence of any the parties their Counsellors or Attorneys and of necessity this default here in the Christian Name ought to be the fault of one of them See also 18 Eliz. Cap. 14. for want of any Warrant of Attorney c. Glanvil The Statute provides for default of Warrant of Attorney c. Then Coke To what end was the Statute of 18 Eliz. made for the Statute of 32 H. 8. provides for defects of Warrants of Attorney Glanvil The first Statutes for Warrants of Attorneys of such persons against whom the Issue was tryed but the later Stat. is general Another Error was assigned Quod defendens Capiatur where the Offence so the Fine is pardoned by Parliament and therefore the entry of the Iudgment ought to be Et de fine nihil quia perdonatur Coke The Iudgment is well enough for in every general Pardon some persons are excepted it doth not appear if the Defendant here were one of them and then the Fine is not pardoned 1 Cro. 768. 778. 3 Cro. 22. for the Court cannot take notice of that as it was holden in Serjeant Harris Case but if the Defendant be charged with the Fine then he ought to plead the pardon and to shew that he was not any of the persons excepted And afterwards at another day the Defendant did alledge that there was a Warrant of Attorney in the Common Pleas. And also it appeareth upon Record that the Defendant did appear upon the Supersedeas by Attorney who had his full Name and therefore prayed a Certiorari de novo to certifie the same matter vide 9 E. 4. 32. VVray A Case here greatly debated betwixt the Lord Norris and Braybrook In nullo est erratum and upon Advice such a Writ of Certiorari was granted after the Plaintiff had pleaded In nullo est erratum for this Plea in nullo est erratum goes but to that which is contained within the body of the Record and not unto collateral matter scil Warrant of Attorneys And afterwards the Writ of Error was allowed and upon the day of return thereof it appeared upon the Record of Supersedeas that the Defendant did appear by such a one his Attorney But it was said by the Court that there ought to be two appearances the one upon the Supersedeas and the other when the Plaintiff declares See as to the name of the Attorney Tirrells Case 1 Mar. Dyer 93. CCXLVII. Palmer and Knowllis Case Hill. 31. Eliz. In the Kings Bench. 1 Cro. 160. PAlmer recovered Debt against Knowllis and sued Execution by Elegit upon which the Sheriff returned that he had made Execution of the lands of the Defendant by the Oath of twelve men but he could not deliver it to the party Execution for it is extended to another upon a Statute upon which the Plaintiff sued a Capias ad satisfaciendum And now came the Defendant by his Counsel and moved that after Elegit returned the Plaintiff could not resort to the Execution by Capias and therefore prayed a Supersedeas Caplas after Elegit because the Capias erronice emanavit But the whole Court was clear to the contrary for upon Nihil returned upon Elegit the Plaintiff shall have a Capias 17 E. 4. 5. See 21 H. 7. 19. A man shall have a Capias after a Fieri facias or Elegit 34 H. 6. 20. and here the special return doth amount to as much as if the Sheriff had returned Nihil Also the Statute of West 2. which giveth the Elegit is not in the Negative and therefore it shall not take away the Execution which was at the Common Law. And here is no Execution returned for after the former extent ended he ought to have a new Elegit which Wray granted And afterwards the said Knowllis was taken by force of the Capias ad satisfaciend and came into Court in the Custody of the Sheriff and the Case was opened and in the whole appeared to be worthy of favour but by the Law he could not be helped and although he instantly prayed a Supersedeas yet the same was denied unto him CCXLVIII The Church-wardens of Fetherstones Case Hill. 31 Eliz. In the Common Pleas. AN Action of Trespass was brought by the Church-wardens of Fetherstone in the County of Norfolk and declared Church-wardens 1 Cro. 145. 179. That the Defendant took out of the said Church a Bell and declared that the Trespass was done 20 Eliz. And it was found for the Plaintiffs And now it was moved by
leaving out I. S. and see Amy Townsends Case in the Commentaries where the Husband seised in the Right of his Wife makes a Feoffment in Fee to the use of himself and his wife for their lives the Remainder over to another the husband dyeth the wife refuseth the estate limited to her by the Husband she brings Sur cui in vita not against the heir but against him in the Remainder to whom the Land doth accrue by the refusal of the wife not against the heir of the Feoffor and I grant That where an estate in use or otherwise is to begin upon a condition precedent which is impossible or against the Law the estate shall never rise or begin And here the Case of the Lord Borroughs 35 H. 8. Dy. 55. was cited Where the Father covenanted in consideration of marriage of his Son that immediately after his death his eldest Son shall have the possession or use of all his Lands according to the same course of inheritance as then they stood and that all persons now seised or to be seised should be seised to the said use and intent and it was holden That upon that matter no use is changed But if the Words had bin Immediately after his death they should remain then although the words of the Limitation be In futuro the use of the Fee shall rest in the Son presently and the words In futuro ought not to be interpreted but in benefit of him to whom the use and estate is limited 9 Eliz. Dyer 261. A. Leaseth for thirty years and four years after the beginning of the said term he makes another Lease for years by these words Noverint c. dictis 30 annis finitis completis demisisse omnia praemissa to the said c. Habendum tenendum a die confectionis praesentium termino praedict finito usque ad finem 30 annorum And by the opinion of all the Iustices This new Lease shall commence in possession at the end of the former term and not before and if it should not be expounded the second Lease should be in effect an estate but for ten years which was not the intent of the parties and every grant shall be expounded most strongly for the grantee and to his advantage to which purpose he said he had vouched this Case Also by him there is not any difference where the use is limited by way of covenant or upon a Feoffment And if a man enfeoffeth B. upon condition that he shall enfeoff C. now if he offer to enfeoff C. and he refuseth the Feoffor may re-enter But if the condition were to give to C. in tail then upon such refusal of C. the Feoffor shall not re-enter See 2 E. 4. 2. 19 H. 6. 34. E. si Equitas sit adhibenda in construction of conditions a multo fortiori in case of Vses A Feoffment in Fee upon condition that the Feoffee shall grant a Rent charge to J. S. who doth it but J. S. refuseth the Feoffor shall not re-enter for that was not the intent of the condition If in the principal case Post 266. the limitation of the use had been after the expiration of twenty four years then no use should rise before the twenty four years expire but where not the time but the estate is material there if the estate be void the use shall go to him in the Remainder presently and shall not stay the time 1 Co. 154. c. Egerton Solicitor first it is to see if the use limited to William Paget be good secondly if William Paget doth not come before his time to shew his Right If this use limited to William Paget be a Remainder or an estate to begin upon a contingent or a present estate the estates formerly limited being void and he conceived that it is not a Remainder for there is not any estate upon which it may depend And the words are after the estate for twenty four years ended or expired that then and from thenceforth to the use of William Paget c. so that no use is limited to him before the particular estate is ended therefore no Remainder for a Remainder ought to begin when the particular estate begins Without doubt that was not the intent that William Paget should have the Land during the life of his Father and yet the use limited during the life of his Father was void and if the Remainder should take effect during the said twenty four years against Eusall and his companions wherefore should it not also take effect against Trentham and the others to whose use it was limited during the life of the Lord Paget And here the use limited to William Paget is to begin upon a collateral contingent upon which if it cannot rise it shall not rise at all and I conceive that the use limited to William Paget shall never rise or begin for it is limited to begin when the term of twenty four years is ended and that is never for that which cannot begin cannot end and this Term is meerly void Ergo it cannot begin Ergo it cannot end then this thenceforth cannot be and so this contingent can never fall H. 6. 7. E. 6. A Lease was made for years upon condition that if the Lessee do not pay such a sum of money that he should lose his Indenture the meaning and sense of these words is not that he should lose the Indenture in parchment but that he should lose his Term The Iudgment in an Eectjone firmae is Quod querens recuperet terminum suum that is to be understood not the time but his Interest in the Land for the Term And Coke secretly said that in that case there is not any contingent for the estates precedent never began And as to the Case cited before by Coke Br. Leases 62. If the last Lease be made by Indenture reciting the former Lease certainly the second Lessee shall not be concluded to claim the Land demised presently but shall tarry until the years of the first Term be expired by effluction of time And as to Mawnds Case cited before there is an estate upon which a Remainder may depend scil the estate tail alledged to Robert c. If such as now is limited to William Paget had been limited at the Common Law to a younger Son the eldest Brother should have the Land in the Interim discharged of any use and now after the Statute no use limited to William Paget before the contingent where therefore is it in the mean time In the Lord Paget who being attainted it accrues to the Queen and out of the possession of the Queen this use shall never rise although that the contingent be performed for now the use is locked up A use doth consist in privity of the estate and confidence of the person if these be severed the use is gone And here if the possession be in the Queen she cannot be seised to another use Note by Godfrey that
she seised of the Advowson in the Right of her Crown or of her Dutchy but when she claims by Lapse it is otherwise And afterwards Exception was taken to the Writ because it is not set forth in the Writ how the Queen claimed the Advowson as where the King had Right to present by reason of the Temporalties of the Bishop in his hands the Writ shall say Ratione Archiepiscopatus Cant. nuno Vacant or Ratione Custodiae And so because this Advowson is parcel of her Dutchy the Writ ought to say so And Anderson chief Iustice was of opinion that the Writ was good enough notwithstanding the want of that clause Ratione Ducatus for both ways it is good and sufficient generally or specially as where a man hath an Advowson in the Right of his Wife and the Husband brings a Quare Impedit the Writ shall be general ad suam special Donationem without the mentioning of his Wife See the Book of Entries 483. the Writ is general but the Count is special And there is the very case of the Dutchy of Lancaster and then the Writ is general but the Count is ratione Ducatus sui Lancastr And such an avoidance of a Church parcel of the Dutchy may be granted under the Great Seal And see the case of the Dutchy of Lancaster in Plowden to that purpose and afterwards a President was shewed in An. 32 H. 6. where the Writ was general and the Count was Ratione Ducatus CCCVIII Pasch 33 Eliz. in the Common Pleas. A Man made a Lease for years to begin at the Feast of our Lady Mary for one and twenty years Lease without shewing the certainty at which Feasts the Annunciation Purification c. yet the Lease is good enough and the Lessee may determine the certainty of the beginning of the Term by his Entry at which of the said Feasts the said Term shall begin by Anderson chief Iustice but Periam doubted of it CCCIX Blagrave and Woods Case Pasch 33 Eliz. in the Common Pleas. IN an action of Trespass brought by Blagrave against Wood Surrender to the Steward out of Court. Co. 4 Rep. 20. of Lands in Totting in the County of Surrey concerning a Surrender made to the use of Sir Thomas Holcroft by Alice Pagnam 7 E. 6. before one Forcet then Steward there The Issue was If at the time of the said surrender the said Forcet was Steward of the said Manor And the Iury found a special Verdict scil That the said Forcet circa 9 Aprilis 7 E. 6. was retained by one Elizabeth Pagnam then before and afterwards Lady of the said Manor to be her Steward there for the keeping of the Courts of the said Manor and this Retainer was only by Word in the Countrey and no Fee or Annuity given for the exercise of the said Office and that the said Forcet according to the said Retainer had kept Courts there divers times And further that such a day and year at St. Dunstans in the East the said Forcet took a Surrender which was entred in the Rolls the next Court and that before that and after he took divers Surrenders as well out of Court as in Court and had holden divers Courts there And upon this Verdict it was moved by Snagg Serjeant That Forcet upon the matter found by the Verdict is not such a Steward that may take Surrenders out of Court being retained only by word although to do other Acts in Court he be a sufficient Steward for in the Court he is as a Iudge and no body is to dispute his Authority there And there is a great difference betwixt a Steward of a Manor and a Steward of Courts and a Steward of one Manor hath not as great an authority as the Steward of another Manor for a Steward of a Manor may take Surrenders in any place otherwise it is where a Steward is retained to keep Courts for he hath no authority to keep Court and all his power is within the Court Vide Co. 4 part 30. Dame Holcrâ—fts Caso and not without See 8 Eliz. Dyer 248. Drew Serjeant to the contrary Here Forcet upon this Retainder was Steward at the Will of the Lady of the Manor which Will shall not be said to be determined until the Lady doth discharge him and the difference which hath been taken betwixt Steward of Courts and a Steward of a Manor is nothing to the purpose for there is not any reason in it and it is true an Assise cannot be brought of such an Office without a Patent of it for it cannot pass for life without a Deed and although a Steward in the Courts of Copyholders be a Iudge yet he may be appointed without Deed as where two submit themselves to the arbitration of others now the Arbitrators are Iudges as to that intent and yet they may be appointed Arbitrators and discharged without Deed 19 H 6. 6. 5 E. 4. 3. 21 H. 6. 30. but they cannot by their award transfer Free-hold from one to another 21 E. 3. 26. 14 H. 4. 18. and 17. by Culpeper and Skreen and see as to a Steward retained by word 8 Eliz. 248. and see 12 H. 7. 25 26 27. where a Bayliff of a Manor may be appointed without Deed and so of an under-Sheriff and yet he is a Iudge Owen Serjant contrary Here Forcet at the time of this Surrender was not Steward but the Retainer void 1. No Fee is allowed unto him for the exercise of the said Office 3 H. 6. A Labourer may be retained without promise of any Sallary in certain for it is appointed by the Law. 2. He is not retained by Deed and although he may be retained without Deed to hold Court pro hac vice yet if the Retainer be for life or for years it ought to be by Deed. 3. He was retained to keep the Court but not to be Steward which shall be intended to hold Court and then when that is past his authority shall cease and then all which he doth afterwards is void But if he had been retained to be Steward of the Manor then the Surrender taken out of Court had been well enough 4. There is not any custom found by the Verdict to warrant such a Surrender taken out of Court and then if the Surrender be not warranted by their custom it is void Yelverton to the contrary In all cases in real actions which concern Lands the Suitors are the Iudges but in personal actions under the sum of forty shillings the Steward is Iudge and although he be a Iudge yet he may be appointed without Deed. And whereas it hath been objected that no Fee is appointed for the exercising of the Office the same is not material as to the Grant but the party is not compellable without a Fee to do the service and a man may be constituted Bayliff of such a Manor without Deed and yet more doth appertain to the Office of the Bayliff than to the
Steward as if the Lord of a Manor be beyond the Sea * More 1 Rep. the Writ of Right shall be directed to the Bayliff of the Manor and see 21 H. 7. 36 37. Where the Sheriff or Steward of a Manor may be without Deed and here in the principal case the Retainer is not to keep one Court but to keep the Courts of the Lady of the Manor scil all her Courts until he be discharged It was adjourned CCCX Ascew and Fuliambs Case Pasch 33 Eliz. In the Common Pleas. Andita Querela 1 Cro. 233. AScew was bounden by Statute to Fuliamb and there was not two Seals put to the Statute and Execution was sued upon the said Statute the Conusor brought an Audita Querela and they were at Issue if two Seals were to the said Statute and tried for the Plaintiff in an Audita Querela by the Sheriff of the City of Lincoln And it was moved by Glanvil Serjant That the Issue ought to have been tryed by the Certificate of the Mayor of Lincoln before whom the acknowledgment was and not by Iury which was denyed for the Issue is not whether any such Statute was acknowledged or not but whether the Statute in question hath two Seals or not and that is not recorded by the Mayor as the Statute it self is Another Exception was taken It appeareth by the Margent of the Record that the Issue was tryed by the County of Lincoln where it ought to be tryed by the County of the City of Linc. for Linc. only is in the Margent But to that it was said that such is the usual form to which the Preignothories agreed and the Book of 18 E. 3. 25. was urged where execution of Lands of the Conusor was awarded upon a Statute Merchant and the Statute was to pay c. 16 E. 3. But the Original Writ which issued to take the body of the Conusor was 14 E. 3. And upon that Error brought And the Court agreed that case but these two cases do differ for there the Process was misawarded not so here And although a Writ of Error may lye yet the same doth not prove but that an Audita Querela may lye also And afterwards Iudgment was given for the Plaintiff CCCXI. Jennings and Gowers Case Pasch 31. Eliz. In the Common Pleas. IN the Case betwixt Jennings and Gower the words were 1 Cro. 219. That if the wife of the Devisor would permit one Wats to enjoy such a Term for the Term of three years next following that then she should have all the residue of his Goods and Chattels as his sole Executrix c. Anderson chief Iustice conceived That she should not be Executrix For she is to be Executrix upon a condition precedent to be performed before that she be Executrix And the condition is impossible to be performed and then she shall never be Executrix for where an estate is to be created upon a condition impossible to be performed there the estate shall never come in esse and here the condition is impossible for how can she suffer Wats to enjoy the Term for 3. years next following the 3. years ought to be past before she hath any power either to permit or resist for until the three years be encurred she cannot be Executrix nor before the three years expired can she bring any action as Executrix for her authority doth not begin before the three years be expired Walm Peri. Wind. contrary Although a grant upon a condition precedent doth not take effect until the condition be performed yet such a construction ought not to be used in this case so the intent of the Devisor in this case shall stand If the condition had been that if the wife will find meat and drink to such a person until his death That then she shall be Executrix shall not the Wife be Executrix till after the death of such party truly yes for otherwise she should never be Executrix which is utterly against the meaning of the Testator for it was not his intent that the Ordinary should commit Administration of his goods in the mean time And afterwards Anderson changed his opinion and agreed with the other Iustices Periam The subsequent words prove directly that the meaning of the Testator was to make his Wife Executrix immediately until she were disturbed by the said Wats for the words are that if she refuse to suffer the said Wats to enjoy c. Then his Son shall be his Executor which words imply that by a disturbance made by the Wife her Executor-ship should cease and that the Son should have it which cannot properly be if she was not Executrix from the beginning And it is the usual course in the construction of Wills to consider all the clauses of the Will and to judge upon all the words of the Will and not upon one part only and such construction the Iudges used in the cases of Param and Yardley and Welden and Elhing And afterwards at another day Iudgment was given for the Wife That she was Executrix presently and her authority should not expect until the three years were expired if not that any actual disturbance can be proved to be or have been made by the Wife against the Will of the Devisor and the words of the Will will receive such construction that she shall be Executrix until an actual disturbance of Wats CCCXII Palmes and the Bishop of Peterboroughs Case Pasch 33. Eliz. in the Common Pleas. Quare Impedit 1 Cor. 241. IN a Quare Impedit by Margaret Palmes against the Bishop of Peterborough who pleaded That the Plaintiff did present unto him one I. S. of whom the Bishop asked if he were within Orders and if he had his Letters of orders and because the Presentee could not shew the Bishop his Orders he refused him And commanded him to come another time and shew to him his Orders and that the Presentee did never do it nor offered to the said Bishop his said Orders without that he did disturb him in other manner And by Periam and Anderson it is no Plea for upon his own shewing the Defendant is a disturber Refusal of the Bishop Degg 75. For although that the Statute of 13 Eliz. requires that no man shall be admitted to a Benefice with cure of souls if he be not a Deacon yet the Statute doth not extend to compel the Clark to shew his Orders and therefore when he for such a frivilous cause doth refuse to admit him the same is a disturbance And afterwards exception was taken to the Count because that the Plaintiff being Tenant for life of the Advowson of the gift of her Husband Co. 5 Rep. 57. had not alleadged any Presentment in her Husband or any of his Ancestors but only in her self But that was not allowed for that point hath been lately over-ruled in this Court in the case betwixt Specot and the Bishop of Exeter 8 H. 5. 4. adjudged
was moved in arrest of Iudgment that it appeareth upon the Plaintiffs own shewing that the Plaintiff hath the Free-hold and therefore he ought to have an Assize but the same was not allowed and therefore the Plaintiff had Iudgment CCCXXXIV Kensam and Redings Case Trin. 33. Eliz. In the Kings Bench. THe Case was Grants of the King 1 Cro. 244. Hob. 170. That the Queen by her Letters Patents granted the Site of the Manor of Brokeley lying in W. and all the Lands Pastures Woods Vnder-woods and Hereditaments parcel or appertaining to the said Site exceptis omnibus grossis arboribus boscis maremio and further in the said Letters Patents there was a Proviso that the Lessee should have sufficient House-boot and Hedge-boot c. And if notwithstanding the said Exception the Lessee should have the Vnderwoods was the question And it was argued that the Lessee should have subbois i. e. Vnderwoods for that is granted by express words and the exception extends only grossis arboribus for this word grossis in the exception extends to all that which follows Gawdy Iustice If it were in the case of a common person it is clear that upon such matter the Vnderwoods are not excepted 7 E. 6. Dyer 79. A Lease is made of a Mannor except Timber and great Woods the Vnderwoods shall pass Fenner Iustice The Proviso that the Lessee should have House-boot shews the Queens intent that the Vnder-woods should not pass Wray If this word bois in the exception should not extend to Vnder-woods it should be vain and signifie nothing which should be hard in the Case of the Queen CCCXXXV Trin. 33. Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared of Trover and of a Bag of mony and the conversion of it Trover and Conversion 1 Cro. 97. 201 555 693. The Defendant pleaded that the Bag of mony was delivered to him as a pawn to keep until A. and B. were agreed which of them should have it and pleaded further that A. and B. were not yet agreed who of them should have it for which cause he kept it absque hoc that he converted it to his own use upon which the Plaintiff did demur in Law It was moved that the Conversion is never traversable Wray Generally Conversion is not traversable but upon such special matter as is here Or if A. lend money to B. and B. delivereth a thing of the value to A. in pawn now the Conversion is traversable see the same case 4 E. 6. Br. Action upon the Case 113. so here Fenner agreed with Wray CCCXXXVI The Bishop of Lincoln and Cowpers Case Mich. 33. Eliz. In the Kings Bench. Prohibition THe Bishop of Lincoln sued a Prohibition against Cowper who had libelled against him in the Spiritual Court for Tithes out of the Manor of D. Tithes 1 Cro. 216. Post 331 332. And the Bishop did suggest that he and all his Predecessors had been seised of the said Manor and that as long as it was in their possessions had been discharged of Tithes and shewed that in the time of E. 6. the said Manor was conveyed to the Duke of Somerset in Fee and afterwards was re-granted to the Bishop and his Successors It was moved That the Prescription was not good because de non decimando And admit that the Prescription be good that same is interrupted by the seisin of the Duke of Somerset and although that the Manor be re-assured to the Bishop of Lincoln yet the Prescription is not revived as Homage Ancestrel if it be once in a Forrain Seisin although it be re-assured yet it is not revived But by Wray Gawdy and Fenner The Prescription is good in the Case of a Spiritual person but not in the case of a common person And they all were clear of opinion that the Prescription is not gon by this Interruption for Tithes are not issuing out of the Lands neither can Vnity of possession extinguish them neither are they extinguished by a release of all right of Land c. See for this Case Co. 11. part of his Reports in the Case of Pridle and Napper CCCXXXVII Dethick King of Arms Case 33. Eliz. In the Kings Bench. Indictment 1 Cro. 224. Yelv. 34. Noy 250. Misnosmer in an Indictment WIlliam Dethick against Garter King of Arms was indicted upon the Statute of 5 E. 6. for striking in the Church-yard For that the said Dethick in Pauls Church-yard in London struck I.S. It was moved If Cathedral Churches be within the meaning of the Statute The Court was clear of opinion that they were And afterwards the Defendant pleaded that before the Indictment found he was created and crowned by the Letters Patents of the Queen which he shewed chief and principal King of Arms and it was granted by the said Letters Patents that he should be called Garter and that that name is not in the Indictment and demanded Iudgment The Kings Attorney by Replication said That by the Law of Arms and Heraldry every one who is made King of Arms before he receives his Dignity ought to be led betwixt two Officers of Arms by the Arms before the Earl Marshal of England or his Deputy and before him are to go four Officers of Arms whereof the one is to bear his Patent another a Collar of Esses the third a Coronet of Brass double guilt fourthly a Cup of Wine and his Patent shall be read before the Earl Marshal and afterwards his Coronet shall be set upon his Head and the Collar of Esses about his neck and afterwards the Wine poured upon his Head And that the Defendant had not received these Ceremonies for which cause he is not King of Arms nor to be called upon to which the Defendant did demur in Law. Broughton argued for the Defendant and he took Exception to the Replication because it is pleaded there that secundum legem Heraldorum Garter upon his Creation ought to receive c. of which Law this Court cannot have Conusance and therefore the Replication ought to be scil Secundum legem Angliae If in Appeal the Defendant wage Battel although that belongs unto Arms and Heraldry yet it shall be pleaded according to the Law of the Land and shall not speak of the Law of Arms. So if an Infant be made a Knight and he be to plead in discharge of his Wardship he shall plead according to the Law of the Land and yet the degree of a Knight belongs to the Law of Arms 11 E. 3. Dower against the Earl of Richmond who was also Duke of Britain who pleaded to the Writ That he was Duke of Britain and not so named in the Writ but the Court did not regard it for they cannot have knowledge of it so not here of the Law of Heraldry Also this Court cannot write to the Heralds to certifie it as they may to the Marshal of the King or to the Bishop But we have sufficiently
shewed our matter scil That we have Letters Patents of the Queen and that we were sworn in the said Office and so we are King of Heralds by matter of Record against which is pleaded only matter in defect of ceremony and circumstance which is not material An Earl is created with the ceremonies of putting a Sword broad-wise about his Body and a Cap with a Coronet upon his Head. Yet the King may create an Earl without such ceremonies And may also create an Earl by word if the same be after Recorded when a Knight is made Spurs ought to be put upon his Heels yet without such ceremony such degree may be conferred to and upon another for such ceremonies are or may be used or not used at the Kings pleasure Afterwards it was objected that the same is but a name of Office but not a name of Dignity To which it was answered that this word Coronamus always imports Dignity and this is a Dignity and Office as Earl Marquess c. Fenner Iustice The Patent is Nomen tibi imponimus and therefore Garter is parcel of his Name And therefore he ought to be Indicted by such Name And it should be hard to tye Estate and Degrees to ceremonies Gawdy was of opinion That this is but a name of Office and therefore the Indictment good as 1 Mar. Writ of Summons of Parliament issueth without these words Supream Head and the Writ was holden good for it is not parcel of the Name but addition only So here Fenner and Wray contrary for the words are Creamus Coronamus Nomen imponimus Ergo part of his Name which Clench also granted and afterwards Dethick was discharged CCCXXXVIII Strait and Braggs Case Pasch 32 Eliz. Rot. 318. In the Kings Bench. IN an Action of Trespass 2 Len. 1â—9 for breaking his Close in H. the Defendant pleaded that long before the Trespass the Dean and Chapter of Pauls were seised of the Manor of C. in the said County of H. in Fee in the Right of their Church and so seised King Edward the Fourth by his Letters Patents Dat. An. 1. of his Reign granted to them all Fines pro licentia Concordandi of all their Homagers and Tenants Resiants and Non-resiants within their Fee and shewed that 29 Eliz. A Fine was levied in the Common Pleas betwixt the Plaintiff and one A. of eleven Acres of Lands whereof the place where is parcel and the Post-Fine was assessed to 15 s. and afterwards Scambler the Forain Opposer did allow to them the said 15 s. because the said Land was within their Fee And afterwards in behalf of the said Dean and Chapter he demanded of the Plaintiff the said fifteen shillings who refused to pay it wherefore he in the Right of the said Dean c. And by their commandment took the Distress as Baily c. for the said 15 s. and afterwards sold it upon which the Plaintiff did demur in Law. It was moved that it is not averred that the Land whereof the Fine was levied was within their Fee but they say that Scambler allowed it to be within their Fee and the same is not a sufficient Averment which the Court granted And it was the opinion of the Court that the Dean and Chapter cannot distrain for this matter but they ought to sue for it in the Exchequer as it appeareth 9 H. 6. 27. In the Dutchess of Somersets Case Gawdy This Grant doth not extend to the Post Fine for Fine pro licentia Concordandi is the Queens Silver and not the Post Fine Wray All shall pass by it for it is about one and the same matter and they were of opinion to give Iudgment for the Plaintiff CCCXXXIX Sherewood and Nonnes Case Trin. 32 Eliz. Rot. 451. In the Kings Bench. Covenant IN an Action of Covenant the Plaintiff declared that Charles Grice and Hester his Wife were seised of certain Tenements calle Withons with divers Lands to the same appertaining and of another parcel of Land called Dole containing eight Acres to them and the heirs of the body of the said Charks on the body of the said Hester his wife lawfully begotten and so seised 15 Eliz. leased the same to the Defendant by Indenture for years by which Indenture the Lessor covenanted that the Lessee should have sufficient House-boot Fencing-wood and Hoop-wood upon the Lands during the Term and that further the Lessee covenanted for him his Executors and Assigns with the Lessor c. That it should be lawful for them to enter upon the Lands during the said Term and to have egress and regress there and to cut down and dispose of all the Wood and Timber there growing leaving sufficient House-boot Fencing-wood and Hoop-wood to the Lessee upon the Lands called the Dole for his expences at Withons and further that he would not take any Wood or Timber upon the Premisses without the assent or assigment of the Lessor or his Assigns otherwise than according to the Indenture and true meaning thereof And further declared That the said Charles and his Wife so seised levied a Fine of part of the Land to R. S. and his heirs to whom the Defendant attorned and that the said R.S. afterwards devised the same to I. his Wife the now Plaintiff for years the Remainder over to another and died and that the Defendant had felled and carried out of the Lands called Withons twenty loads of Wood without the assent and assignment of the Lessor or his Assigns for which the Plaintiff as Assignee brought the Action The Defendant pleaded That after the Lease John Grice and others by assignment of Hester had cut down and carried away fifty loads of Wood in the said Lands called the Dole and so they had not left sufficient Woods for his expences at Withons according to the Indenture for which cause he took the said twenty loads of Wood upon Withons for his expences upon which the Plaintiff did demur in Law. Godfrey The Plea is not good This Plea is no more but that sufficient Wood was not left upon the Dole for his expences and although there be not yet the Defendant cannot cut Wood elsewhere for he hath restrained himself by the Covenant Also the Covenant of the Lessor is That the Lessee shall have sufficient Wood upon the Dole for his expences at Withons but in his satisfaction he doth not alledge that he had need of Wood for to spend at Withons nor doth aver that he hath spent it there for otherwise he hath not cause to take c. And the meaning was that the Lessee should have sufficient Wood when he had need of it Hobart for the Defendant He would not speak to the Plea in Bar but he conceived that the Declaration was not good for here no breach of Covenant is assigned for the Covenant is in the Disjunctive scil That the Defendant should not take Wood without the assent or assignment of the Lessor or his Assigns And the Plaintiff
over the Feoffees do not pay the said mony within the said 15 days afterwards Curties attorns to the Feoffees It was moved if the Reversion of the Lands passed to Curties passeth by the Feoffment of the Manor without attornment which see Littleton 133 134. 2. Attornment If by the attornment of Curties after the 15 days the uses can rise to Bracebridge and his wife c. and it was said That the Case 20 H. 6. Avowry 11 12. If a Manor be granted for life the remainder over in Fee Tenant for life dieth if the Tenants attorn to him in the Remainder the same is good and if a Reversion be granted to two and one of them dieth attornment to the survivor is good and if a Reversion be granted to Husband and Wife in special tail the Wife dieth afterwards without issue Attornment to the Husband is good and if a Reversion be given in Frank-marriage and afterwards the Husband and Wife are divorced and afterwards the particular Tenant attorns to the Wife the same is good and by Manwood If a Man seised of a Manor the demesns of which extends into two Counties and hath issue a Son and a Daughter by one woman and a Son by another woman and dieth the eldest Son enters into the Demesns in one County only and takes the profit in one County only and dieth without issue the Daughter shall have and inherit the Demesns or Services whereof her Brother was seised and the Son of the half-blood the rest And by Manwood the attornment of Curties who was the first Lessee shall bind Moore the second Lessee for he ought to attorn against whom lieth the Quid juris clamat And if a Lease for years be made of a Manor and the Reversion of it be granted to another in fee if the Lessee for years attorneth it shall bind the Tenants of the Manor 18 E. 2. A man seised of a Manor in the right of his Wife leased parcel of it for years without his wife the Reversion thereof is not parcel of the Manor contrary if the Lease had been made by Husband and Wife And by Dyer if Tenant in tail of a Manor leaseth parcel for years and afterwards makes a Feoffment of the whole Manor and makes Livery in the Demesns not leased the Reversion of the Land leased doth not pass for by the Feoffment a wrong is done to the Lessor which the Law shall not further enlarge than appeareth by the Deed contrary in case of Tenant in fee of a Manor and that without Deed with Attornment And it was the Case of one Kellet 25 H. 8. Kellet was Cestuy que use before the Statute of 27 H. 8. of divers Lands by several Conveyances the use of some being raised upon Recovery of some upon Fine and of some upon Feoffment and he made a Feoffment of all these Lands by Deed with a Letter of Attorney to make Livery the Attorney entred into part of the Land and made Livery in the name of the whole and it was agreed by all the Iustices that the Lands passed notwithstanding in others possession i.e. other Feoffees And by Dyer If the Tenants of a Manor pay their Rents to the Disseisor they may refuse again to pay them and if a Lease be made for years the Remainder for life if the Lessor will grant over his Reversion the Lessee for years shall Attorn and his attornment shall bind him in the remainder for life and if a Lease be made to one for years the remainder over for life the remainder to the Lessee for years in Fee. Now if the Lessee for years grant all his interest c. there needs no attornment and if Grantee of a Rent in fee leaseth for life and afterwards grants the Reversion to another the Attornment of the Ter-tenant is not requisite but only of the Grantee for life It was also holden Relation That this Attornment by Curties two years after the Livery was sufficient for it shall have relation to the Livery to make it parcel of the Manor but not to punish the Lessee for waste done mean between the Livery and the Attornment but betwixt the Feoffor and the Feoffee it shall pass ab initio It was holden also That although the uses for it limited are determined by the default of payment within the 15 days yet the Feoffees shall take the Reversion by this Attornment to the second uses 2 Len. 222. and if I enfeoff one upon condition to enfeoff J.S. who refuseth now the Feoffee shall be seised to my use but if the condition were to give in tail contrary So here is a Limitation beyond the first use which shall not be defeated for want of Attornment to the first uses and here it was not the meaning of Bracebridge to have the Lands again upon breach of the condition in his former estate but according to the second use and Iudgment was given in the principal case according to the resolutions of the Iudges as aforesaid And it was said by Harper Iustice That if a Feoffment in Fee be made to J. S. upon condition that he shall grant to A. a Rent-charge who refuseth it J.S. shall be seised to his own use Antea 199. CCCLVI. 20 Eliz. In the Common Pleas. THe Case was this Lord and Tenant by service to pay every year such a quantity of Salt but since 10 H. 7. the Tenant hath always paid the money for Salt. The question was If the Lord might resort to the first service Seisin and if the money be Seisin of the Salt. And Manwood took this difference i.e. where the Lord takes a certain sum of money for the Salt the same is not any Seisin for the service is altered as at the first Socage Tenure was a work done by labor i.e. Plowing but now it is changed into certain Rent and the Lord cannot resort to have his Plowing and in Kent divers Tenants in ancient time have paid Barley for their Rent but the same afterward was paid in a certain sum of money so as now the Lord of Canterbury who is Lord of such Tenements cannot now demand his Barly c. but if the sum which hath been used to be paid be incertain one year so much according to the price of Salt then such a payment of money is a sufficient Seisin of the Salt. Quod fuit concessum per Curiam CCCLVII 20 Eliz. In the Common Pleas. IN Accompt brought by an Heir Copyholder for the profits of his Copyhold Lands taken during his Nonage the Defendant pleaded That by the Custom of the said Manor Accompt by the Heir of a Copyholder the Lord of the Manor might assign one to take the profits of a Copyhold descended to an Infant during his Nonage to the use of the Assignee without rendring an accompt and the same was holden to be a good Custom as a Rent granted to one and his Heirs Custom to cease during the
Nonage of every Heir but admitting that the Custom were void yet this Action doth not lye for the Defendant hath not entred and taken the profits as Prochein amy in which Case although he was not Prochein amy c. he is chargeable Oâ—â—â—â— Rep. 36 â—3 84. as Prochein amy according to his Claim but here he claimeth by the Custom and Grant of the Lord and not in the right of the Heir and therefore it was adjudged in this time of this Quaere that if one entreth into Lands claiming by Devise where in truth the Land devised is entailed he should not be charged in accompt c. CCCLVIII 20 Eliz. In the Common Pleas. NOte It was holden by the whole Court Exposition of the Statute of 32 and 34. Of Wills. That the Statute of 32 34 H. 8. of Wills did not extend to Lands in London but that the devise of the whole is good And if Houses in London parcel of the possessions of Abbies came to the Crown by Dissolution and he grants them over to hold in chief by Knights service these Lands are devisable But it was holden That the said Statutes as Acts executed extended to Lands in London and shall be good but for two parts And if a man hath Lands in tail and in Fee-simple which are of double the value of the Lands in tail and deviseth all his Lands all the Land in Fee-simple shall pass Dyer One seised of three Manors the one in Capite in Fee and two in Socage in tail and deviseth all his Land in Capite it is good against the King for all Capite Land and he shall be tied to have the Lands in Socage but it shall not bind the Heir And a devise of the third part where all is devised is void as well against the Heir as against the King. And he said That if a man be seised of twenty Acres in Socage and ten Acres in Capite and deviseth two parts of his Lands it is reasonable to say That all the Socage Lands shall pass but if the devise was of two parts of all his Lands it is otherwise for this word All implies that the two parts shall be per my per tout as well Capite as Socage i. e. It was argued by Fenner That the Lands in London are now devisable as they were before the Statute for if the Devisee of Lands in London be disturbed he shall have Ex gravi Querela otherwise it is of Lands at the Common Law and if an Assize of Mortdancester be brought of Lands in London it is a good Plea to say That the Lands are devisable But in an Assise of Mortdancestor of Lands at the Common Law it is not any Plea And if a man gives Lands at the Common Law i. e. not devisable by the Common Law he cannot devise the Reversion for the Statute shall not do wrong to the person i.e. to the Donee who there shall lose his Acquittal But of Lands devisable by custom it is otherwise And if Land in a Burrough was devisable for life by the Custom and afterwards came the Statute of 23 H. 8. which made all Lands devisable now that Land is devisable for life by the Custom and the Reversion by the Statute CCCLIX 20 Eliz. In the Common Pleas. IN an Action of Wast of Wast assigned in a Wood Wast the Iury viewed the Wood only without entring into it And it was holden that the same was sufficient for otherwise it should be tedious for the Iury to have had the view of every stub of a Tree which had been felled Yet Meade Iustice said That if Wast be assigned in several corners of the Wood then the Iury is to have the view of every corner but contrary where Wast is assigned in the whole Wood Vieâ— And if Wast be assigned in every Room of a House the view of the House generally is sufficient And Dyer Iustice said That if Wast be assigned in several places and of some of them the Iury had not the view of that they may find no Wast done CCCLX Sir Thomas Lees Case 20 Eliz. In the Common Pleas. IT was holden per Curiam That whereas Sir Thomae Lee was seised of a Manor Election and aliened the Manor except one Close parcel of the said Manor called Newdick and there were two Closes parcel of the said Manor called Newdick the one containing nine Acres and the other containing three Acres That the Alienee should not chuse which of the said Closes he would have but the Alienor or Feoffor should have the Election which of the said Closes should pass CCCLXI. 20 Eliz. In the Common Pleas. TEnant in tail the Remainder in tail c. Tenant in tail in possession Fines levied by Tenant in tail in Remainder 3 Cro. 211. makes a Lease for three lives according to the Statute of 32 H. 8. and afterwards dieth without issue he in the Remainder before any Entry levieth a Fine the same is good for by the death of Tenant in tail without issue the Free-hold is vested in him in the Remainder in tail And of that opinion was the whole Court. CCCLXII Ferrand and Ramseys Case 20 Eliz. In the Common Pleas. IN an Ejectione firmae brought of a House in London the Defendant pleaded That long time before the Lessor of the Plaintiff had any thing c. One Ann Ramsey was seised in Fee and died seised and that the same descended to William Ramsey as Son and Heir to the said Ann who was disseised by Israel Owen who leased to the Plaintiff upon whom the said William Ramsey did re-enter The Plaintiff Replicando That the said Ann did not die seised said That before the Ejectment one Robert Owen was seised and died seised and from him descended the said House to Israel Owen as Son and Heir of the said Robert absque hoc that the said Israel did disseise the said Ann upon which they were at issue and at Nisi prius in London it was given in Evidence of the Defendants part That Crofton and Langhton were seised in Fee of the said Messuage and by Deed indented conveyed it to one John Ramsey Robert Dakins and four others and their Heirs upon condition that the said Feoffees their Heirs or Assigns should pay to the said Ann and her Heirs six pounds thirteen shillings and four pence And also should enfeoff the said Ann if to the same they were required by the said Ann in her life or within four days next following such Request in Fee unto the use of the said Ann and her Heirs cum quando ad hoc per eandem Annam requisit fuerint and if the said Ann died before such Request that then the said Feoffees or their Heirs should enfeoff such issues of the said Ann or such other persons which the said Ann should name cum quando ad hoc per eandem Annam requisit fuerint or within four days after such
magnitudine sufficienti essendi maremium and that the place where they growed was neither Orchard nor Garden It was said by the Court That by the Custom the Copyholder could not cut down such Trees but the Lord might and that the cutting down of such Trees which were not Wast the Copy-holder might justifie without punishment but because by the Verdict it did not appear that the Trees for which the Action was brought were Timber in facto but only de magnitudine effendi maremium the Plaintiff had Iudgment CCCLXVI The Lord Staffords Case Mich. 25 26. Eliz. In the Common Pleas. Extent UPon Recovery in debt against the Lord Stafford certain Lands of the Lord were extended by Elegit The Queen because the Lord Stafford was endebted unto her by Prerogative ousted the Tenant by Elegit Fleetwood Serjeant moved the Court in the behalf of him who recovered and surmised to the Court that the Queen was satisfied and therefore prayed a Re-extent but the Court would not grant it because they were not certain of the matter but advised the party to sue a Scire facia against the said Lord Stafford to know and shew cause why a Re-extent should not issue forth the Queen being satisfied c. CCCLXVII Gibbs and Rowlies Case Mich. 25 26. Eliz. In the Kings Bench. Tithes SYmon Gibbs Parson of Beddington Libelled in the Spiritual Court against Rowlie for Tithe Milk Rowlie upon surmise of a Prescription de modo Decimandi obtained a Prohibition which was against Symon Gibbs Rectorem Ecclesiae parochial de Nether Beddington and the parties were at Issue upon the Prescription Prohibition and it was found for Rowlie Egerton Solicitor moved against the Prohibition because the Libel is against Gibbs Rectorem Ecclesiae paroch de Beddington and the Prohibition was de Nether Beddington and it was not averred that Beddington in the Libel and Nether Beddington is unum idem non diversa It was said by the Court That upon the matter there is not any Prohibition against Rectorem Ecclesiae de Beddington only and therefore said to the Plaintiffs Counsel let the Parson proceed in the Spiritual Court at his peril CCCLXVIII Russell and Handfords Case Mich. 25 26. Eliz. In the Kings Bench. RUssell brought an Action upon the Case against Handford and declared Quod cum quoddam molendinum ab entiquo fuit erectum upon such a River Nusance de quo one Thomas Russell whose Heir the Plaintiff is was seised in his Demesn as of Fee and dyed thereof seised after whose death the same descended to the Plaintiff by force of which the Plaintiff was seised in his Demesn as of Fee and so seised The Defendant upon the same River had levyed a new Mill per quod cursus aquae praedict coarctatus est and upon Not guilty It was found for the Plaintiff It was moved in Arrest of Iudgment That it is not layed in the Declaration that his Mill had been a Mill time out of mind c. And then if it be not an ancient Mill time out of mind Words of Prescription c. it was lawful for the Defendant to erect a new Mill And it was said That these words ab antiquo are not fit or significant words to set forth a Prescription but the words A tempore cujus contrarii memoria hominum non existit are the usual words for such a purpose See the Book of Entries 10 11. See 11 H. 4. 200. If I have a Mill and another levies another Mill there and the Miller hinders the Water to run to my Mill or doth any such Nusance Roll. 140. an Action lyeth without any Prescription as it seems by the Book in 22 H. 6. 14. The Plaintiff declared That he was Lord of such a Town and that he and all his Predecessors Priors of N. Lords of the same Town have had within the same Town four Mills time out of mind c. And that no other person had any Mill in the said Town but the Plaintiff and his Predecessors the said four Mills and that all the Tenants of the Plaintiff within the same Town and all other Resiants there c. ought and time out of mind c. had used to grind at the said Mills of the Plaintiff and that the Defendant one of the Tenants of the Plaintiff had erected and set up a Horse Mill within the said Town and there the Resiants grinded c. And it was holden That peradventure upon such matter an Action lyeth because the Defendant being one of the Tenants of the Plaintiff is bound by the Custom and Prescription so as he hath offended against the privity of the Custom and Prescription And as to the Case in question It was the opinion of all the Iustices Hob. 189. Ante 168. 1 Cro. 415. That if the Mill whereof the Plaintiff hath declared be not an ancient Mill that this Action doth not lye upon the matter eo quod cursus aquae coarctatur But yet at last it was holden by the Court to be good enough notwithstanding the Exception Another Exception was taken to the Declaration because that here is set forth the seisin of the Father of the Plaintiff and the Descent to the Plaintiff by force of which he was seised in his Demesn c. without shewing that after the death of the Father that he entred into the said Mill Seisin in fact and in Law. c. so as no seisin in fact is alleadged but only a seisin in Law and if the Plaintiff was not seised in fact he cannot punish this personal wrong but the Exception was disallowed for such a seisin in Law is sufficient for the maintenance of this Action And afterwards the Plaintiff had Iudgment to recover his Damages See for the Action it self contained in the Declaration 8 Eliz. Dyer 248. CCCLXIX Cleypools Case Mich. 26. Eliz. In the Exchequer Informations upon the Statute of 5 Eliz. of Tillage INformation in the Exchequer against Cleypool upon the Statute of Tillage 5 Eliz. setting forth That the Defendant hath converted three hundred Acres of arable Lands of Tillage to pasture and the same conversion hath continued from 15 Eliz. unto the two and twentieth of Eliz The Defendant as to the Conversion pleaded Not guilty and as to the Continuance the general Pardon by Parliament 23 Eliz. upon which the Attorney general did demur in Law. It was argued That that pardon did not extend to the continuance of the said Conversion And first the Barons were clear of opinion That if A. be seised of Arable Lands and converts the same to pasture and so converted leaseth it to B. who continues it in pasture as he found it he shall be charged by that Statute And it is not any good Construction where the Exception in the pardon is excepting the converting of any Land from Tillage to Pasture made done committed or permitted that the Conversion excepted
Litis contestationem the right of the Suit is so vested in the Proctor Swinburn 212. that he is a person suable until the end of the Suit and also he reported their Law to be * Bro. Devise 27. 45. Office of Exce 347. Shâ—p Touchstone c. 454. Plowd 345. Orphans Legacy 281. Note It was adjudged contrary to this Mich. An. Dom. 1653. in the Kings Bench. in Doâ—mlowes Case Poph. 11. That if a Legacy be bequeathed to an Infant to be paid when he shall come to the Age of twenty one years if such a Legatory dieth before such age yet the Executor or Administrator of such Legator shall sue for the said Legacy presently and shall not expect until the time in which if the Infant had continued in life he had attained his full age And as to the Prohibition it was argued by Egerton Solicitor General That the Grant aforesaid is not triable in the Spiritual Court As if the said Lady Lodge had suffered a Recovery to be had against her as Executor by Covin c. the same is not examinable in the Spiritual Court but belongs to the temporal Conusans and therefore he prayed a Prohibition But on the other side it was said That if the Prohibition be allowed the Legatory hath no remedy but that was denied for the party might sue in the Chancery And after the Prohibition granted the Court awarded a special Consultation quatenus non extendat ultra manus Executoris quatenus non agitur de validitate facti i. the Grant aforesaid CCCLXXVII Huddy and Fishers Case Hill. 28 Eliz. In the Kings Bench. Debt DEbt was brought upon a Bond the Condition of which was for the performance of Covenants Grants and Agreements in an Indenture And in the Indenture it was recited That in consideration that the said Huddy should build a Mill upon the Land demised by the Defendant to the Plaintiff by the same Indenture Attaint and a Water-course by the Land demised the Defendant leased the said Land to the Plaintiff and the Lease was by the words Dedi concessi And the Plaintiff assigned the breach of the said Covenant in Law in that the Defendant had stopped the said Water-course so made by the Plaintiff upon which they were at Issue and it was found for the Plaintiff upon which the Defendant brought Attaint and the false oath was found and it was moved in Arrest of Iudgment That here is no Issue and then by consequence no Verdict and then no false Oath and then no cause of Attaint for here the Issue is taken upon the stopping of the Water-course which upon the shewing of the party is not any cause of Action for in the Indenture there is not any express Covenant Clause or Agreement that the Lessee should enjoy the Water-course so to be made only there is a Covenant in Law rising upon these words Dedi concessi which cannot extend to a thing not in esse at the time of the making the Indenture Coke who argued for the Defendants in the Attaint resembled this case to the case in 23 E. 3. Garr 77. Where it is holden that the warranty knit to the Manor shall not extend to the Tenancy escheated And 30 E. 3. 14. The Recovery in value shall not be in larger proportion than the Land warranted was at the time of the warranty made So in our case this Covenant shall not extend to any thing which was not in esse at the time of the Covenant made And see 25 Ass 2. where the Court shall reject a Verdict or part of a Verdict c. And because the now Plaintiff might after the Verdict have alledged the same in arrest of Iudgment which he did not he shall not be helped by Attaint but it shall be accounted his folly that he would not for his own ease and to avoid circuity of Action shew the matter in stay of Iudgment As 9 E. 4. 12. by Littleton If a man be Indicted of Felony if the Iudgment be insufficient but he takes not advantage of it but pleads the general Issue and is acquitted he shall never after have a Writ of Conspiracy c. And for another cause Iudgment ought not to be given in this Case because it doth not appear that Execution hath been sued and then here is no party grieved And then this Action being conceived upon the Statute of 23 H. 8. Cap. 3. which gives it to the party grieved doth not lye for a party grieved cannot be intended without Execution sued See 21 H. 6. 55. by Paston False oath Iudgment and Execution do entitle the party grieved to Attaint And see the Stat. of 23 H. 8. which enacts That the party shall be restored to as much as he hath lost therefore he ought to lose by Execution before he be a person able 〈◊〉 bring this Action But as to that matter see the Statute of 1 E. 3. 6. by which it is Enacted That the Iustices shall not leave to take Attaint for the damages not paid so as before the said Statute no Attaint lay before Execution 33 H. 6. 21. by Prisoit 5 H. 7. 22. t. E. 1. Attaint 70. 8 E. 2. Assize 396. And it was moved That for another cause the Attaint doth not lye as it is pursued in Process upon it for the Plaintiff hath not pursued the Statute upon which the Attaint is grounded for the said Statute gives special Process in this case against the Petit Iury Grand Iury and the party viz. Summons Re-summons and Distress infinite but in this Case the Plaintiff hath sued otherwise which is against the direction of the Statute And that was taken to be a material Exception by Clench and Gawdy Iustices for the Verdict doth not save the matter of Process in this case by the Statute of 18 Eliz. which doth not extend to proceedings in penal Causes wâ—â—ch see by the words of the Statute by an express Proviso But Quaere If it be a penal Statute because a lesser punishment is enacted by it than that which was before inflicted upon such offenders And as to the matter of Execution Quaere If the Plaintiff be not pars gravata in hoc only that he is subject to the said Iudgment and so liable to Execution CCCLXXVIII Penruddock and Newmans Case Hill. 28 Eliz. In the Kings Bench. IN an Ejectione firmae Execution 2 Len. 49. the Plaintiff declared upon a Lease made by the Lord Morley and upon Not guilty pleaded this special matter was found that William Lord Mountegle seised of the Manor of D. whereof c. became bounden in a Statute in such a sum to A. who died the Executors of A. sued Execution against the said Lord i. upon the Extendi facias a Libertate issued forth upon which the said Manor was delivered to the said Executors but was not returned It was further found That the said Executors being so possessed of the said Manor the said Lord
commanded a Court Baron to be holden there which was holden accordingly by the sufferance of the Executors and the said Executors were also present at which time the Executors in the presence of the said Lord said these words viz. We have nothing to do with this Manor Return of the Sheriff 4 Co. 67. And upon this Verdict two things were moved If because the Liberate was not returned the Execution was good And as to that divers Books were cited 21 H. 6. 8. 18 E. 3. 25. And it was said that there was a difference betwixt a Liberate and a Capias ad Satisfaciendum and a Fieri facias for these Writs are conditional Ita quod Habeas Corpus c. Ita quod habeas denarios hic in Curia 3 H. 7. 3. 16 H. 7. 14. But contrary in the Writ of Liberate Habere facias seisinam for in such Writs there is not such clause and therefore if such Writs be not returned the Execution done by virtue of them is good enough And see 11 H. 4. 121. If the Sheriff by force of an Elegit delivers to the party the moiety of the Land of the Defendant and doth not return the Writ if now the Plaintiff will bring an Action of Debt de Novo the Defendant may plead in Bar the Execution aforesaid although the Writ of Execution were not returned and yet the Execution is not upon the Record And see the case there put by Hankford And it is not like to the case of Partition made by the Sheriff the same ought to be returned because that after the return thereof a new and secondary Iudgment is to be given i. Quod partitio praedicta firma stabilis maneat in perpetuum firma stabilis in perpetuum teneatur see the Book of Entries 114. And Egerton Solicitor cited a case lately adjudged betwixt the Earl of Leicester and the Widow Tanfeild Earl of Leicester and Tanfeilds Case That such Execution without return was good enough Another matter was moved Admit that here be a good Execution if now the Executors being in possession of the said Manor by force of that Execution and permitting and suffering the Conusor to hold a Court there in the Manor-house and saying in his presence the words aforesaid if the same doth amount to a Surrender by the Executors to the said Conusor Surrender or not And Wray chief Iustice said That here upon this matter is not any Surrender for here the words are not addressed to the said Conusor who is capable of a Surrender nor to any person certain And it is not like to the case of 40 E. 3. 23 24. Chamberlains Assize where Tenant for life saith to him in the Reversion That his will is that he enter the same is a good Surrender for there is a person certain who can take it but contrary in this case for here it is but a general speech It was adjorned CCCLXXIX Baskervile and the Bishop of Herefords Case Pasch 28 Eliz. In the Common Pleas. Quare Impedit IN a Quare Impedit by Walter Baskervile against the Bishop of Hereford c. The Plaintiff counted That Sir Nicholas Arnold was seised of the Advowson as in gross and granted the same to the said Baskervile and others to the use of himself for life and afterwards to the use of Richard Arnold his Son in tail Proviso That if the said Nicholas die the said Richard being within age of twenty three years that then the Grantees and their Heirs shall be seised to them and their Heirs until the said Richard hath accomplished the said age Nicholas dieth Richard being of the age of fourteen years by force of which the Grantees were possessed of the said Advowson and afterwards the Church became void and so it belonged to them to present And Exception was taken to the Count because the Plaintiff had not averred the life of Richard upon whose life the Interest of the Plaintiffs doth depend Averment And Gawdy Serjeant likened it to the Case of the Parson which hath been adjudged That where the Lessee of a Parson brought an Ejectione firmae and it was found for him and in arrest of Iudgment exception was taken to the Declaration because that the life of the Parson was not averred and for that cause Iudgment was stayed Anderson chief Iustice Vpon the dying of Sir Nicholas Rich being but of the age of fourteen years an absolute Interest for nine years vests determinable upon the death of Richard or rather they are seised in fee determinable upon the coming of Richard to the age of twenty three years Rhodes and Windham contrary That here is an Interest in the Grantees determinable upon the death of Richard within the Term for if Richard dieth without issue within the Term the Remainder is limited over to a stranger And as to the Exception to the Count Dyer 304. â— 2 Cro. 622 637. 10 Co. 59. it was argued by Puckering Serjeant that the Count was good enough for although the life of Richard be not expresly averred yet such averment is strongly implied and so supplied For the Count is That dictus Nicholas obiit dicto Ric. being of the age of fourteen years non amplius by force of which the Plaintiff was possessed of the said Advowson quo quidem sic possessionato existente the Church became void and possessed he could not be if the said Richard had not been then alive and the same is as strong as an Averment See 10 E. 4. 18. In Trespass for breaking his Close the Defendant pleads That A. was seised and did enfeoff him to which the Plaintiff said That long time before A. had any thing B. was seised and leased to the said A. at will who enfeoffed the Defendant upon which B. did re-enter and leased to the Plaintiff at will by force of which he was possessed until the Defendant did the Trespass and the same was allowed to be a good Replication without averring the life of B. who leased to the Plaintiff at will for that is implied by the words i. Virtute cujus 1 Cro. 766. the Plaintiff was possessed until the Defendant did the Trespass And see also 10 H. 7. 12. in an Assize of Common The Plaintiff makes title that he was seised of a Messuage and of a Carve of Land to which he and all those whose estate c. have had Common appendant c. And doth not say that he is now seised of the Messuage But this Exception was disallowed by the Court for seisin shall be intended to continue until the contrary be shewed It was adjorned CCCLXXX Caries Case Pasch 28 Eliz. In the Exchequer IN an Information in the Exchequer by the Queen against Cary Tithes More Rep. 222. the Case was this A man grants situm Rectoriae cum decimis eidem pertinent Habend situm praedict cum suis pertinentiis for twenty years the first Grantee dieth within the Term.
good as a new devise in Reversion upon the precedent Condition and not as a Remainder quod Windham concessit but Periam was very strong of opinion That it is a Limitation Two Ioyntenants of a Term A. and B. A. grants his part to B. nothing passeth by it for as a Grant it cannot be good Owen 102. 1 Cro. 314. 1 Inst 186. for as one Ioyntenant cannot enfeost his Companion no more can he vest any thing in him by grant for he cannot grant to him a thing which he hath before for Ioyntenants are seised and possessed of the whole all which was granted per Curiam and Anderson said That if Lands be granted to A. and B. and the Heirs of A. B. cannot surrender to A. for a Surrender is as it were a grant And as a Release it cannot enure for a Release of a Right in Chattels cannot be without a Deed. CCCLXXXIV Hollingshed and Kings Case Hill. 29 Eliz. In the Common Pleas. Debt HOllingshed brought Debt against King and declared That King was bounden to him in a Recognizance of two hundred pounds before the Mayor and Aldermen of London in interiori Camera de Guildhall London upon which Recognizance the said Hollingshed heretofore brought a Scire facias before the said Mayor c. in exteriori Camera and there had Iudgment to recover upon which Recovery he hath brought this Action and upon this Declaration the Defendant did demur in Law because that in setting forth of the Recognizance he hath not alledged That the Mayor of London hath Authority by Prescription or Grant to take Recognizances and if he hath not then is the Recognizance taken Coram non Judice and so void And as to the Statute of West 2. cap. 45. It cannot be taken to extend to Recognizances taken in London which see by the words De his quae recordat sunt coram Cancellario Domini Regis ejus Justiciariis qui Recordum habent in Rotulis eorum Irrotulatur c. And also at the time of the making of that Statute 1 Cro. 186 187. London had not any Sheriffs but Bayliffs and the said Statute ordains that Process shall go to Sheriffs c. But the whole Court was clear of a contrary opinion for they said We will know that those of London have a Court of Record and every Court of Record hath an Authority incident to it to take Recognizances for all things which concern the Iurisdiction of the said Court and which arise by reason of matters there depending Another matter was objected for that the Recognizance was taken in interiori Camera but the Court was holden in exteriori Camera and therefore not pursuant But as to that it was said by the Lord Anderson That admit that the Recognizance was not well taken yet because that in the Scire facias upon it the Defendant did not take advantage then thereof he shall be bounden by his said admittance of it as if one sue forth a Scire facias as upon a Recognizance whereas in truth there is not any Recognizance and the party pleads admitting such Record and thereupon Iudgment is given against him it is nor void but voidable Fleetwood Recorder of London alledged many Cases to prove that the Courts of the King are bounden to take notice Priviledges of London That they of London have a Court of Record for if a Quo warranto issueth to Iustices in Eyre it behoves not them of London to claim their Liberties for all Courts of the King are to take notice of them And at last after many motions the opinion of the Court was for the Plaintiff And it was said by Anderson and in manner agreed by the whole Court That if depending this Demurrer here the Iudgment in London upon the Scire facias be reversed yet the Court here must proceed and not take notice of the said Reversal CCCLXXXV Bedingfeild and Bedingfeilds Case Hill. 29 Eliz. In the Common Pleas. Dower DOwer was brought by Anne Bedingfeild against Thomas Bedingfeild The Tenant out of the Chancery purchased a Writ De circumspecte agatis setting forth this matter That it was found by Office in the County of Norfolk that the Husband oâ— the Demandant was seised of the Manor of N. in the said County and held the same of the Queen by Knights Service in chief and thereof dyed seised the Tenant being his Son and Heir of full age by reason whereof the Queen seised as well the said Manor as other Manors and because the Queen was to restore the Tenements tam integre Primer seisin c. as they came to her hands it was commanded the Iudges to surcease Domina regina inconsulta It was resolved per Curiam That although the Queen be entituled to have Primer seisin of all the Lands whereof the Husband of the Demandant dyed seised yet this Writ did not extend unto any Manors not found in the Office for by the Law the Queen cannot seise more Lands than those which are contained in the Office And therefore as to the Land not found by the Office the Court gave day to the Tenant to plead in chief And it was argued by Serjeant Gawdy for the Tenant That the Demandant ought to sue in the Chancery because that the Queen is entituled to have her Primer Seisin and cited the case of 11 R. 2. and 11 H. 4. 193. And after many motions It was clearly agreed by the Court That the Tenant ought to answer over for the Statute De Bigamis Cap. 3. provides that in such case The Iustices shall proceed notwithstanding such seisin of the King and where the King grants the custody of the Tenant himself 1 H. 7. 18 19. 4 H. 7. 1. A Multo fortiori against the Heir himself where he is of full age notwithstanding the possession of the King for his Primer seisin By the Statute of Bigamis after the Heir was of full age the Wife could not be endowed in the Chancery But now by the Prerogative of the King such wives may be endowed there Si viduae illae voluerint and after many motions The Court awarded That the Tenant should plead in chief at his peril for the Demandant might sue at the common Law if she pleased CCCLXXXVI Hill. 28 Eliz. In the Common Pleas. THe Case was Exchange The Husband was seised of Lands in the right of his Wif the Husband and his Wife both joyned in exchange of the Lands with a stranger for other Lands which exchange was executed the Husband and the Wife seised of the Lands taken in exchange aliened the same by Fine It was holden by Rhodes and Windham Iustices That the Wife after the death of her Husband might enter into her own Lands notwithstanding that Fine And Rhodes resembled it to the case reported by my Lord Dyer 19 Eliz. 358. The Husband after marriage assured to his Wife a Ioynture they both levy a Fine 1 Inst 36.
yet afterwards he seemed to be of other opinion And as to that which hath been objected That the Lease is void to all intents and purposes according to the words of the Statute for by some it cannot be resembled to the case cited before of the Bishop of Coventry and Lichfeild that such a Grant should bind him and not his Successors for if this Grant in our Case shall not be void presently it shall never be void for the Colledge never dieth no more than Dean and Chapter Mayor and Commonalty To that it was answered by Drew That although there be some difference betwixt such Corporations and that the words of the Statute are general void to all intents constructions and purposes yet they shall construed according to the meaning of the makers of the Act whose scope was to provide for the Successors and not for the present Incumbent and to the utter impoverishing of all Successors without any respect to the party himself as it appeareth by the preamble of the said Statute where it is observed That by long and unreasonable Leases the decay of Spiritual Livings is procured for the remedying and preventing of which long Leases this Act was made and that the Successors should not be bound thereby And these Leases are not void simpliciter sed secundum quid i. e. as to the Successors As upon the Statute of 11 H. 7. cap. 20. Discontinuances made by Women c. shall be void and of none effect yet such a Discontinuance made is good against the Woman her self So upon the Statute of 1 Eliz. concerning Bishops See now Coke Lincoln Colledge Case 37 Eliz. in the third Reports 60. A Lease made by Dean and Chapter not warranted by the said Statute shall not be void untill after the death of the Dean who was party to the Lease So upon the Statute of 13 Eliz. of fraudulent Conveyances such fraudulent Conveyance is not void against the Grantor but against those who are provided for by the said Statute and that the Lease in the principal case is not void but voidable all the Iustices agreed to be avoided by the Colledge or any other who claim by it and by Anderson If such a Lease should be void then great mischief would fall to the Colledge for whose benefit this Statute was made for if such Lease be made rendring a small Rent then if before the defect be found or espied the Rent was arrear the Colledge could not have remedy for the said Rent Also by Periam Such a Lessee might have an Action of Trespass against a stranger who entreth upon the Land which proves that the Lease is not void but voidable and afterwards notwithstanding all the Objections Iudgment was given for the Plaintiff and the chief Authority which moved Periam Iustice to be of such opinion was Lemans case cited before 28 H. 8. Dyer 27. where a Lease was made to a Spiritual person against the Statute of 21 H. 8. and a Bond or Obligation for performance of covenants and thereupon an Action was brought and the Plaintiff therein had Iudgment and recovered which could not have been if the Lease were utterly void against the Lessor and Lessee as the very words of the Statute are and although it is not alledged in the Book that that was any cause of the Iudgment yet in his opinion it was the greatest cause of the Iudgment in that case CCCCXXVIII Bighton and Sawles Case Pasch 35 Eliz. In the Common Pleas. IN an Action upon the case it ws agreed by the whole Court 1 Cro. 235. That where Iudgment is given that the Plaintiff shall recover and because it is not known what damages therefore a Writ issueth to enquire of the damages That the same is not a perfect Iudgment before the damages returned and adjudged and therefore they also agreed that after such award and before the damages adjudged that any matter might be shewed in Court in arrest of the Iudgment and by Periam Iustice the difference is where damages are the principal thing to be recovered and where not for if damages be the principal then the full Iudgment is not given until they be returned but in Debt where a certain sum is demanded it is otherwise CCCCXXIX Maidwell and Andrews Case Pasch 33 Eliz. In the Common Pleas. MAidwell brought an Action of Covenant against Andrews Covenant and the Case was this That R. was seised of Lands and leased the same for life rendring Rent and afterwards devised the Reversion to his wife for life and died Andrews the Defendant took to wife the wife of the Devisor the Devisee of the Reversion afterwards Andrews bargained and sold the said Reversion to one Marland and his heirs during his own life and afterwards granted the Rent to the Plaintiff and covenanted that the Plaintiff should enjoy the said Rent during his Term absque aliquo legitimo impedimento of the said Andrews his Heirs or Assigns or any other person claiming from the said Marland Marland died seised and the same descended to B. his heir and the breach of the Covenant was assigned in this i. in the heir of Marland who hath the Rent by reason of the Grant of the Reversion to Marland ut supra the Defendant pleaded the Grant of the Reversion to Marland per scriptum without saying Sigillo suo sigillat hic in Curia prolat absque hoc that the said Reversion and Rent descended to B. and thereupon the Plaintiff did demur in Law and the causes of the Demurrer was assigned by Yelverton Serjeant 1. The Grant of the Reversion is pleaded per sciptum and he doth not say sigillat for a Reversion cannot pass without Deed although it be granted but for years and a bare writing is not a Deed without sealing of it and therefore the pleading ought to be per scriptum suum sigillat or per factum suum for factum suum implies the ensealing and delivery 2. It ought to be pleaded hic in Cur. prolat for the Court is to see such Deed to the end they may know if it be a lawful Deed Traverse 1 Cro. 278. without razure interlining or other defects 3. The Defendant hath traversed the descent where he ought to have traversed the dying seised for of every thing descendable the dying seised is the substance and the descent is but the effect And although the Grant of the Reversion was but for the life of the Grantor yet the estate granted is descendable as 27 E. 3. 31. Tenant by the Courtesie leaseth his estate to one and his heirs the Grantor dieth his Heir entreth and a good Bar against him in the Reversion and see 14 E. 3. Action 56. Annuity granted to one and his Heirs for the term of another mans life the Grantor dieth living Cestuy que vie the Heir of the Grantor brings a writ of Annuity and it was holden maintainable and he said that were the dying seised is confessed and avoided by
that was holden by the Court clearly to be Error and afterwards at another day it was moved by Coke That a man attainted of Felony could not make Executors for he is dead in Law and as Bracton saith solus Deus facit Haeredes homo nominat Executores and therefore the Heir only shall have a Writ of Error also an Executor cannot have a Writ of Error but only upon a Iudgment given in a personal Action but this Attainder is a thing of a higher nature as where a Woman poysoneth her Husband the Heir shall not have an Appeal for Murder is changed into Treason and that offence is a thing of a higher nature so this Attainder is of a higher nature than in the personalty Also it may be mischievous to the Heir for the Executor may forthwith bring and pursue his Writ of Error by which the Iudgment shall be affirmed and so the right of the Heir shall be bound also when Error is brought to reverse an Outlawry of Felony a Scire facias ought to be sued against the Lords mediate and immediate which cannot be here at the Suit of the Executors also it was found by Enquest of the Coroner that the Testator fugam fecit so that thereby if he had been acquitted he shall lose his goods and then the Executors have not any reason to bring this Writ of Error but see 11 H. 4. Error 51. That Executors shall have a Writ of Error of an Outlawry pronounced against their Testator and if it be reversed they shall have restitution of the goods of the Testator but it doth not appear there that it was upon an Indictment of Felony Altham As well the Executor as the Heir is a person able for to sue a Writ of Error in such case as 13 E. 4. where a false oath is given against one in Assise and dieth the Heir shall have an Attaint for the Land and the Executor in respect of the damages Popham Attorney General This Outlawry is a real Iudgment therefore the Executor cannot have Error upon it Wray It is good that this case be considered for it may be mischievous for thereby the Executor shall avoid the Attainder against the King and the Lords Fenner That cannot be without a Scire facias Gawdy The Executors shall have this Action and as to that which hath been objected that the party attainted cannot make Executors the same is no reason for the Executors do pretend that their Testator was not lawfully outlawed and so by this Suit they do endeavour to take away that disability and therefore it ought not to be objected against the Executor and if the Case here be That the Testator had not lands but only goods there is no reason but that the Executors should have a Writ of Error otherwise the goods of the Testator should be lost and it was clearly holden by Wray chief Iustice That the Executor might have and pursue this Writ of Error the Outlawry of the Testator notwithstanding and afterwards the Outlawry was reversed accordingly CCCCLX Trussels Case Trin. 31 Eliz. In the Kings Bench. Habeas corpus Owen Rep. 69. ◠Cro. 213 516. Co. 3 Inst 213 215. TRussel was removed out of the Counter of London by Habeas corpus into the Kings Bench. Egerton The Queens Solicitor moved the Court that Trussel was a person attainted of Felony and so had not any lands or goods to satisfie c. and also his life was not his own and upon the Return of the Habeas corpus it appeared that Trussel was detained in Prison for an Execution and for divers Actions and it was the opinion of the Court Executions Post 329 330. that as to the Execution he ought not to be discharged for then the party should lose his debt for ever but as to the other actions it was the opinion of all the Iustices that Trussel ought to be discharged of them for a man so attainted ought not to be put to answer nor taken in Execution and so are all our Books And they said that they had conferred with the Iustices of the Common Pleas and with the Barons of the Exchequer which were of a contrary opinion in this case upon the very matter and not upon the manner of the pleading but yet we will discharge our Consciences as we have done for there is not any Book against us Egerton stetit super semitas antiquas and at last it was awarded That Trussel should be discharged of all Actions brought against him CCCCLXI Sovers Case Trin. 31 Eliz. In the Kings Bench. SOver and others were Indicted upon the Statute of 8 H. 6. Indictments upon the Statute of 8 H. 6. of forcible Entry because they had expulsed one A. out of his Land and disseised the Mayor and Commonalty of London who were in Reversion and the same being removed hither Restitution was prayed thereupon and White for the City who was in Reversion and the Lessor prayed that no Restitution might be for they had let the House to another Restitution Yelv. 81. Dy. 141 142. and that he who had procured this Indictment claimed in by a Custom of London That the Executor of the last Termor should not be put out if he shall give as much for it as any other will whereas in truth there is not any such Custom and for that cause the Restitution was stayed and it was said by the Court that Restitution shall be always made to him in the Reversion and not to the Lessee for years for he who is disseised shall be restored and then the Lessee may re-enter CCCCLXII Beal and Carters Case Trin. 31 Eliz. In the Kings Bench. IN an Action of false Imprisonment False Imprisonment Owen Rep. 98 287. the Defendant justified because the Plaintiff brought a Child of the age of six years and not above into the Parish Church of W. eundem ibidem relinquere voluisset intendisset without keeping or nourishment to the danger and destruction of the Child contra pacem for which the Defendant being Constable of the said Parish arrested the Plaintiff and put him in prison until he did agree and promise to carry the Child from whence it came upon which the Plaintiff did demur in Law. It was moved that the Iustification was good for every Subject might do it à fortiori a Constable and if in this case the Child being so exposed should be famished for want of nourishment it had been murder as it was holden at Winchester before the Lord chief Baron 20 Eliz. Another Exception was taken to the Plea because he saith quendam infantem without naming him and he ought to say Quendam infantem ignotum Antea 56. but that Exception was not allowed Another Exception ibidem relinquere intendisset but he doth not say that he did depart from it and then his meaning is not traversable or issuable or to be tried by Iurors See 22 E. 4. 45. Gawdy
Bench. WIlliam Wade brought an Action of Debt against Presthall the Defendant pleaded That he was attainted of Treason Debt Ante 326. not restored nor pardoned and demanded Iudgment if he should be put to answer upon which the Plaintiff did demur It was argued for the Plaintiff that the Plea is not good for the Defendant shall not take benefit of his own wrong A person attainted gives his goods Plea in disability of himself not aâ—loâ—ed he shall not avoid it A Woman takes a Husband thereby she hath abated her own Writ It is true That a person attainted is a dead man it is so as to himself but not as to others 33 H. 6. a person attainted is murdered his Wife shall have an Appeal so as to all respects he is not dead and although as yet the Plaintiff cannot have any Execution against the Defendant yet here is a possibility to have Execution if the Defendant get his pardon As a man shall have Warrantia Chartae although he be not impleaded and yet cannot have Execution but there is a possibility to have Execution 22 E. 3. 19. A Rent granted to one in Fee upon condition that if the Grantee die his heir within age that the Rent shall cease during the nonage the Grantee dieth his heir within age his Wife brought Dower presently and recovered and yet she cannot have Execution but yet there is a possibility to have Execution viz. upon the full age of the heir Coke contr By his Attainder he hath lost his Goods Lands Life Degree for he is now become Terrae filius and he cannot draw blood from his Father nor afford blood to his Son or his posterity so as he hath neither Ancestor nor Heir and as to the possibility the same is very remote for the Law doth not intend that he shall be pardoned and see 6 H. 4 64. A man committed a Felony and afterwards committed another Felony and after is attainted of one of them he shall not be put to answer to the other but if he obtain his Charter of pardon he shall answer to the other See also 10 H. 4. 227. tit Coronae Popham Attorney General The Defendant ought to answer for none shall have advantage of his own wrong The Plaintiff is made a Knight pendant the Writ it shall abate because his own Act but here Treasons are so heinous that none shall have ease benefit or discharge thereby And if the Defendant shall not be put to answer until he hath his pardon then the Action is now suspended and an Action personal once suspended is gone for ever and he cited 29 E. 3. 61. in the Book of Assizes where it is said by Sharp Execution upon a Statute may be sued against a man attainted and he said Execution against a person Attainted That if the Enemy of the King comes into England and becomes bounden to a Subject in twenty pounds he shall be put to answer notwithstanding that interest that the King hath in him Harris Serjeant to the same intent he conceived by 33 H. 6. 1. That Traitors are to answer for if Traitors break the Goal the Goaler shall answer for their escape for the Goaler hath remedy against them contrary of the Kings Enemies Burchets Case and he cited the case of one Burchet who being attainted of Treason struck another in the Tower for which notwithstanding his Attainder he was put to answer Egerton Solicitor General And he said That the Action is not suspended but in as much as every Action is used to recover a thing detained or to satisfie a wrong if it can appear that the party cannot be satisfied according to his case he shall not proceed And in this case the Plaintiff if he should obtain Iudgment could not have Execution by the Common Law Ante 213. for he hath no Goods nor by the Statute of Westm 2. by Elegit for he hath no Lands nor by the Statute of 25 E. 3. by his body for it is at the Kings pleasure and then to what purpose shall the Plaintiff sue and it is a general Rule Regula That in all Actions where the thing demanded cannot be had or the person against whom the thing is demanded cannot yield the thing that the Writ shall abate As in a Writ of Annuity by Grantee of an Annuity for years the term expireth the Writ shall abate Abatement of Writ Tenant in special tail brings Wast and pendant the Writ his issue dieth the Writ shall abate c. 2 E. 4. 1. A man Outlawed of Felony pleaded in dis-affirmance of the Outlawry and yet he was not put to answer until he had his pardon and then he shall answer And as to the Case of 33 H. 6. 1. It doth not appear that the Traitors were attainted and then there is good remedy enough And Burchets Case cannot be resembled to our Case for although that by the Attainder the body of the party might be at the Kings pleasure yet his body may be punished for another offence for the example of others And as to Tressels Case who in such case was put to answer I grant it for he concluded Iudgment if Action and so admitted him a person able to answer and then it could not be a good plea in Bar. And in Ognels Case the Retorn of the Sheriff shall bind them for upon Process against a person attainted they returned Cepi where they ought to have returned the special matter without a Cepi but now this general Return shall bind them and by that he shall be concluded to say that the party was not in Execution And this Plea is not any disabling of the Defendant but he informs the Iudges that he is not a person able to answer to the Plaintiff As in a Praecipe quod reddat the party pleads Non-tenure the same is no disabling of his person but a shewing to the Court that he cannot yield to the party his demand A man shall not take advantage of his own wrong i. in the same thing in which the wrong is supposed or against him against whom the wrong is supposed to be done but in other Cases he shall take advantage of his own wrong as Littleton If a Lease for life be made the Remainder over in Fee and he in the Remainder entreth upon Tenant for life and disseiseth him the same is a good Seisin Cases where a man shall take advantage of his own wrong Marbery and Worrals Case upon which he may have a Writ of Right Littleton 112. 35 E. 3. Droit 30. And yet this Seisin was by wrong And there was a Case betwixt Marbery and Worral in the Exchequer The Lessor entred upon his Lessee for life made a Feoffment in Fee with clause of Re-entry the Lessee re-entred the Lessor at the day came upon the Land and demanded the Rent which was not paid it was holden the same is a good demand of the Rent and yet
E. 4. 44. A Writ of Annuity is brought against a Prior and it appeared That the Prior and his Successors have used to pay the Annuity as Parson of D. and not as Priors which Parsonage was appointed to the said Priory time out of mind and in the Writ the Defendant was named Prior only and not Parson and therefore the Writ was abated See 14 E. 4. 4. 10 H. 7. 5. In an Action of Wast So Bracebridges Case 14 Eliz. Plowd 420. The Case put by Catiline If the Parson Patron and Ordinary make a Lease for years and afterwards the Lessee becomes there Incumbent the Term is not extinct for he hath the Term in his own Right and the inheritance in the Right of his Church which see 30 H. 8. Dyer 43. A Parson purchaseth and after leaseth his Parsonage he himself shall pay Tithes notwithstanding this Vnity and as to the reason of the other side That if such discharge of Tithes be not intended by the Statute but only a Discharge in Law the Statute should be in vain the same is not so for if the Abbot had been discharged by way of Release of Composition for the Monastery being dissolved the Appropriation had been good if it had not been supported by the Statute and then the Release and Composition of no force and the King should not take advantage of it but by this Statute and as to Whartons Case before cited the same cannot be Law for it hath been holden upon the Statute of 18 Eliz. of Confirmations That if an Infant maketh a Lease to the King the same is not made good by the Statute for the said Statute extends to imperfections in circumstances and not in substance And although the Lease be not good yet because the matter of the surmise is naught although our Bar be naught a Consultation ought to be granted also our Lease is well pleaded and if such defect be in it as hath been objected the same ought to come in by Plea on the other side and it is not like Heydons Case for there it was found by special Verdict not to Cromwells Case where such defect was in the Declaration and so no ground of Action as to the Traverse it is good enough as if special Bastardy be pleaded against one born before the marriage and so Bastard the other party shall traverse generally the Bastardy and not the special matter but for the principal matter i. this unity of possession divers rules have been 5 Eliz. in the Common Pleas the Case was An Abbot had a Manor within the Parish of D. and a Composition was made betwixt the Parson of D. and the said Abbot that the Parson should have yearly certain Loads of Wood out of thirty Acres of the said Manor for and in recompence of all the Tithes of Wood there afterwards the Parsonage was appropriated to the said Abbot and afterwards the house was dissolved and the Manor granted to one and the Rectory to another and it was holden That the portion of the Tithes was removed for he had them scil The Manor and the Tithes in several Rights And Manwood Chief Baron and Periam Iustice to whom a Case depending in the Chancery was referred concerning the discharge of Tithes by unity of possession delivered their opinions That such an Vnity is not any discharge within the said Statute It was adjorned CCCCLXVIII Hoskins and Stupers Case Mich. 32 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared Assumpsit That whereas the Plaintiff had sold to the Defendant 1000 couple of Newland Fishes to the use of the Defendant and in consideration that he should ship and should bring and carry the adventure of them from Bristol in portum of Saint Lucar and should carry back again the value of the said Fish to London or Bristoll secundum usum Mercatorum The Defendant did promise that upon the arrival of the said Fish in portum of St. Lucar he would give to the Plaintiff 112 l. and said that he arrived with the said Fish ad portum of St. Lucar and that afterwards he arrived with goods of the value of the said Fish ad portum of London secundum usum Mercatorum It was holden by all the Iudges that in portum and ad portum is all one Exposition of words as the Statute of Wast is Quod vicecomes accedat ad locum vastatum yet he ought to enter into the Land So the Writ of accedas ad Curiam in plena Curia recordari facias c. Another Exception was because he declared That he returned with goods to the value and doth not say whose goods they were but the Exception was not allowed for these words secundum usum mercatorum imply that they were the goods of the Defendant Quod fuit concessum per Curiam and afterwards Iudgment was given for the Plaintiff CCCCLXIX Walgrave and Agurs Case Trin. 32 Eliz. In the Kings Bench. SIr William Walgrave brought an Action upon the Case against Agur upon these words spoken by the Defendant to a servant of the Plaintiff Action for scandalous words 1 Cro. 191. It is well known that I am a true subject but thou innuendo the said servant servest no true subject and thine own conscience may accuse thee thereof It was moved in arrest of Iudgment That these words are not actionable for no slander comes to the Plaintiff thereby for perhaps the Party served no man but the Queen and if the words may receive such sense Sâ—vage and Cooks Case which is no pregnant proof of infamy they are not actionable as in the Case betwixt Savage and Cook These words Thou art not the Queens friend are not actionable for it might be they were spoken in respect of some ordinary misdemeanours as in not payment of Subsidies or the like Also it is not averred that the party to whom the words were spoken was the Plaintiffs servant Coke Where a man is touched in the duty of his Office or in the course of life an Action lieth although that otherwise the words are not actionable and here is set forth in the Declaration That the Plaintiff at the time of the speaking of the said words was a Iustice of Peace and Sheriff of Suffolk and Captain of a Troop of 120 Horse to attend the Preservation of the Queens person So in respect of place and dignity in the Commonwealth as 2 H. 8. The Bishop of Winchester brought an action upon the Statute of Scandal Magnatum upon these words My Lord of Winchester sent for me and imprisoned me until I made a Release to J. S. and in respect of his Place and Dignity the words were holden actionable and 9 Eliz. Dyer In an action upon the Case by the Lord Aburgaveney against Wheeler My Lord of Aburgaveney sent for us and put some of us into the Coal-house and some into the Stocks and me into a place in his house called Little
appeareth upon his own shewing as it was holden in a Hampshire Case betwixt Sutton and Dowze Sutton and Dowzes Case 2 Len. 55. 3 Len. 155 164. which see Mich. 25 26 Eliz. and in that case the Lease is void for it was made within a year after the Statute of 31 H. 8. the January before and the Statute in April after for he hath not averred that the usual Rent is reserved nor that the Land was usually let to farm for which Leases otherwise made within the year are absolutely void by the said Statute But it will be objected Ante 306. 1 Cro. 707 708. Heydons Case That this matter shall come in of our part and it is sufficient for them to plead the Case but it is not so as it was lately agreed in Heydons Case in the Exchequer where the Case was That the Warden and Canons of the Colledge of Otery leased certain Lands to Heydon for years and he in pleading of his Lease did not shew that the ancient Rent was reserved and therefore naught and so was the opinion of the Iustices of the Common Pleas Lord Cromwel and All-Souls Case in the Case betwixt the Lord Cromwel and All-Souls Colledge upon the Statute of 18 Eliz. cap. 6. upon a branch of it by which it was provided that the third part of the Rent reserved upon any Lease should be paid in Corn c. and the Leases made to the contrary should be void and in an Ejectione firmae brought upon such Lease because it was not shewed in the Declaration that the Corn was reserved according to the Statute Iudgment was arrested and we need not to plead the Statute for although the Statute be particular yet because the King hath interest in it it shall be holden in Law a general Act and the Iudges shall take notice of it although it be not alledged by the party as it was ruled in the Lord Barcklays Case 4 Eliz. Plow 231. but if such Rent was reserved yet the Lease cannot be good for the King cannot have his Rent because it is not incident to the Reversion nor passeth by the Grant of the Reversion for it is not a Rent but rather a sum due by reason of contract which see 30 Ass 6. A man leaseth a Hundred rendring Rent or grants a Rent out of a Hundred the same is not a good Rent but meerly void for a Hundred is not Manorable nor can be put in view nor any Assize lieth of such Rent See 9 Ass 24. and in 20 Eliz. in the Case betwixt Corbet and Cleer 7 Co. 5. Corbet and Cleers Case the Dean and Chapter of Norwich leased a Parsonage and common of Pasture rendring Rent 1 E. 6. they surrendred their possessions to the King and afterwards the King granted the Parsonage without speaking of the common of Pasture It was holden that the Patentee of the Parsonage should have all the Rent and no apportionment should be in respect of the Common for all the Rent issueth out of the Parsonage and nothing out of the Common So here 2 Co. 48. for Tithes are not an Hereditament which cannot support a Rent within this Statute for which cause the Lease is void Also he said that the traverse of the Defendant was not well taken for the Plaintiff hath said That time out of mind c. the Abbot and his Predecessors were seised of the Rectory and Manor aforesaid simul semel and ratione inde was discharged c. at the time of the dissolution the Defendant traverseth absque hoc that the Abbot and his Predecessors held discharged of Tithes time out of mind c. which is not good for he hath traversed our conclusion for our plea is an argument wheresoever is unity time out of mind c. there is a discharge of Tithes but in the Abbot was such an Vnity ergo he held discharged of Tithes as 21 E. 3. 22. In a Praecipe quod reddat the Tenant saith that the Land in demand is parcel of the Manor of D. which is ancient Demesn and c. to which the Plaintiff saith That it is Frank-fee and the same was not good for he denies the conclusion but he ought to plead to the nature of the Manor that it is not ancient Demesn or that the Land in demand is not parcel of it Another matter was because it is pleaded fuit in tenura occupatione of Goodman and others but he did not shew by what Title Disseisin or Lease or other Title c. Buckley contrary And he said This unity of possession is not any discharge of Tithes by the said Statute and as to the Case cited before of 3 H. 7. 12. where Tenant in tail of a Rent entreth upon the Tenant of the Land now is the Rent suspended and then after when he makes a Feoffment in fee by that Feoffment the Rent is extinguished which was but suspended at the time of the Feoffment and therefore some have holden that if after such Entry he makes a Lease for life of the Land that his Rent or Seigniory is utterly gone in perpetuum for by the Livery all passeth out of him which he said cannot be Law and so it seemed to Gawdy Iustice Then upon such Feoffment with warranty he could not vouch as of Land discharged of the Rent generally but as of Land discharged at the time of the Feoffment which proves that the suspension is not a discharge for it was suspended before the Feoffment and discharged by the Feoffment and so suspension is not a discharge à fortiori in the Case of Tithes for in the case of Common and Rent although they are suspended so as they cannot be actually taken yet they are to some intent in esse As where Lands holden of other Lords are in the hands of the King for Primer seisin by reason of Prerogative and during such seisin of the King the Lord gets seisin the same is a good seisin notwithstanding that it was suspended so as he could not distrain And also in Assize of Land damages as to the Rent out of the Land shall be recouped therefore the rent in some sort is in esse and à multo fortiori this Tithe which is a thing of common Right shall be in esse but goes with the Land A Rent in esse to some purposes and suspended to other and therefore by unity of possession shall not be suspended 35 H. 6. He who hath liberty of Warren in the Lands of another entreth into the Land the Warren is not suspended nor by Feoffment of the Land is extinct and in this Case upon the matter during the unity of possession the Tithes were paid although not in specie Also the Abbot had the Tithes as Parson of B. and the Land as Abbot and therefore no suspension for the Tithes were always in esse although not taken in the manner as Tithes commonly are but by way of Retainer 22