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land_n	case_n	lord_n	rent_n	1,405	5	9.6433	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A47716	The second part of Reports and cases of law argued and adjudged in the courts at Westminster in the time of the late Q. Elizabeth, from the XVIIIth to the XXXIIId year of her reign collected by that learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases and of the matters contained in the book.; Reports and cases of law argued and adjudged in the courts at Westminster. Part 2	Leonard, William.	1687 (1687)	Wing L1105; ESTC R19612	303,434	242

made the Reservation and he relied much upon the last Reason urged by Harper upon the Statute of 27 H. 8. that this was limited to the Executors Co. 13. Rep. and not to him who limited it and therefore the possession shall be executed to the Executors to whom the use was limited and this term shall not be Assets in the hands of the Executors And he said That he had seen a Record 2 H. 8. setting forth That A. having Feoffees to his use devised that his Feoffees should sell his Lands who did accordingly now the money coming by the sale shall be Assets c. but it is not so limited in our case therefore it shall not be Assets A Lease is made to A. for life the Remainder to the right Heirs of B. B. purchaseth the Estate of A. the Estate in Remainder is not executed for it is not conveyed by the Grant of the first Grantor but by the Act of another person after the Grant. A Lease for life to A. the Remainder to a Feme sole for years they entermarry Waste is committed the Lessor brings an Action of Waste he shall recover as well the Estate for years as for life A. Leaseth unto B. for life the Remainder unto the Executors of A. for years the Remainder over in Fee to a stranger the Remainder for years is good for the Lessor cannot limit such an Estate to himself and the Executors shall take the Estate as Purchasors and the term shall be in abeyance untill the death of A. There was a case before the Lord Brook in the time of Queen Mary viz. A Lease was made for life Proviso that if the Lessee dieth within the term of sixty years that the Executors shall have the Lands as in the Right and Title of the Lessee pro termino totidem annorum which do amount to the number of sixty years to be accounted from the said Indenture The Opinion of the Iustices of the Common Pleas upon the Case was That the term was not in the Lessee for life So this future term in the principal Case was not in Tho. Cranmer But see that Case cited by Dyer reported by himself 4 Ma. 150. and there the opinion of the Court was That the same was not a Lease but a Covenant And afterwards in the principal Case Iudgment was given for the Plaintiff That the future term was not forfeited by the Attainder of Cranmer VIII 7 Eliz. In the Common Pleas. THE Case was Dyer 317. b. 318. a. J. S. is seised of a Close adjoyning to the Close of J. D. and J. S. ought to enclose against J. D. J. S. leaseth his Close to another for years rendring Rent J. D. puts in his cattle into his own Close who for want of enclosure escape into the Close of J. S. and before that they be levant and couchant Distress for Rent J. S. distrains them for his Rent It was said by Manwood Iustice that the distress was not well taken Doctor Student 150. 1 Inst 476. Brown 1 part 170. Roll Tit. Distress 1 part in toto for there is a difference when the cattel come upon the Lands of another in the default of the owner of the cattel as by escape or stray and where in the default of another For in the first case the Lord may distrain them before they be levant and couchant but in the latter case not Also a Rent reserved upon a Lease for years is a new Rent and not like unto an ancient Rent due upon an ancient Tenure betwixt the Lord and the Tenant For for a Rent reserved upon a Lease for years Roll 1 part 672. acc Hob. 265. Brown part 2 170. or for a Rent charge a man cannot distrain the cattel before they be levant and couchant upon the Lands although they come upon the Lands by escape estray c. Dyer The Lord cannot distrain the cattel which escape into the Land of his Tenant for want of enclosure of his Tenant before they be levant and couchant and yet the seignory is favoured for the antiquity of it But here is new Rent not in respect of any seignory but of reservation upon a Lease for years and therefore no distress before the cattel be levant and couchant upon the Lands Quod Harper Mounson concesserunt and Iudgment was given accordingly IX 17 Eliz. In the Common Pleas. Writ of Entry in the Per. THE Case was In a Writ of Entry in the Per against A. and B. A. pleaded several tenancy It was holden by Dyer chief Iustice that it is not any plea. Harper Iustice In Assise it is no plea for here the Land is not in demand Several Tenancy where no good Plea. but here it is a good plea and the Demandant ought to maintain his Writ Manwood In no action founded upon disseisin is this good For although the Demandant by policy will bring his Writ against the Tenant of the Land and another who he will name in the Writ upon trust and confidence and that he will not agree with the Tenant of the Lord in Dilatories for the Tenant of the Lands shall not be received to plead Dilatories Yet in that case several Tenancy is no plea for the Tenant but in a Formedon or other such like action which is not grounded upon disseisin if the Writ be brought in such manner as above the Tenant by policy that he may have the view and other reasonable delay may plead several Tenancy and so enforce the Demandant to maintain his Writ but contrary in the Case at Bar and so it was adjudged per Curiam X. Creswell and Cokes Case 19 Eliz. In the Common Pleas. Dyer 351. CReswell brought Debt against Coke and demanded 200 Marks upon the Statute of 13 Eliz. of fraudulent Deeds Gifts c. upon the second clause of the Statute Debt viz. That all parties or privies to such fraudulent Deed willingly putting in ure avowing c. as true simple Custome and given bona fide shall forfeit c. And shewed that one A. held of the Plaintiff 12 acres of customary Lands and died seised And that by the custome of the Manor Heriot the Lord was to have for a Heriot the best beast whereof his Tenant died possessed and farther shewed that the said A. in his life time and a little before his death being possessed of 30 Horses of the value of 200 Marks gave the said Horses to the Defendant with intent to defraud the Plaintiff and other Lords of their Heriots and that he went to the Defendant's house to seise his Heriot and the Desendant then strained the said Horses by reason of the Gift aforesaid for which the Action is brought To which the Defendant pleaded that the Plaintiff had seised one of the Horses nomine Herioti and as to the rest he did demurr in Law. Mounson Iustice was of opinion that the Plaintiff should recover the whole 200 Marks

And the Statute doth not respect the way of carriage but that altogether and to all intents it be the distance of four miles betwixt the place where c. and the said Town of Rye and here it is not material which is the common and usual way to Rye for carriages but the nearness of the place where c. Quomodocunque is the matter and therefore the Defendant ought to have pleaded That the place where c. is every way distant four miles from Rye and as to that that he hath answered four miles with 4000 paces the same is well enough for although he doth not answer the direct the words yet if he doth answer in effect it is well enough for 1000 paces and a mile are all one in substance Wray The distance shall be accounted the nearest way not as a Bird may fly CLII. Wellock and Hammon 's Case Trin. 31 Eliz. In the King's-Bench 3 Co. 20. 1 Cro. 204 205. THis Case is reported by Sir Edw. Coke in his 3 Reports See the principal case there Here is a Limitation and not a Condition for if it should be a Condition it should descend to the Heir at the Common Law which is the Devisee and so shall be extinct in his person and then the restraint is of no effect for there shall be then no means to compell the Heir who hath the Land to pay the Legacies nor have the Legatories any remedy to compell the son to pay the Legacies which shall not have effect if it be not taken by way of Limitation and to that intent Scholasticas Case was cited 15 Eliz. Dyer 317. And this word paying in a Devise shall never be construed to be a Condition And it was holden by the Iustices That where a man deviseth lands to his younger son paying such a sum unto such the Devisee hath a Fee-simple and if he do not pay the monies accordingly his Estate shall determine by the same Limitation and shall go to the heir without any other limitation and the quantity of the monies be it great or small is not material And they were of opinion also that here the monies were not payable but upon request Coke 2 Cro. 56 57. 1 Roll 439. If a man be bound to perform Covenants and one Covenant is to pay Legacies there he needs not pay them without a demand But where one is expresly bounden to pay such a Legacy there he must pay it at his peril And he said That the Case 28 H. 8. Dyer 33. is not Law for there it is holden by Fitz-herbert and Baldwin That where land was devised unto the Prior and Convent of S. Barthol Ita quod reddant annuatim Decano Capitulo Sancti Pauli 5 l. and they fail of payment of it that their Estate shall cease and the Dean and Chapter c. shall have c. such conditions void And that upon one Fee-simple another Fee-simple cannot be limited For by Coke Common experience is otherwise That upon a Fee-simple determinable another Fee-simple may be limited which Gawdy Iustice granted And as to the principal Case Iudgment was given with the limitation CLIII Parker and Harrold 's Case Pasc 28 Eliz. Rot. 485. In the King 's Bench. 3 Len. 142. IN Debt upon an Obligation The Condition was That whereas the Plaintiff and Defendant be now joyntly seised of the Office of the Register of the Court of Admiralty If the Defendant shall permit the Plaintiff to use the said Office and take the profits of it wholly to his own use during his life without lett or interruption done by him that then c. The Defendant Pleaded That the custome of the Realm of England is That the Lord Admiral for the time being might grant the said Office and that such grant should be good but for the life of the Grantor antea 103. and shewed farther That the Lord Clinton Lord Admiral granted the said Office unto the Plaintiff and the Defendant and died and that the Lord Howard was appointed Lord Admiral and that he 27 Eliz. granted the said Office to one Wade who ousted and interrupted him before which time the Defendant did suffer the Plaintiff to enjoy the said Office and to take the profits of it upon which the Plaintiff did demur in Law Coke argued for the Plaintiff That the Plea of the Defendant is not good for he hath not entitled the Lord Admiral to grant the Office for he hath said That the custome of the Realm of England is and that cannot be good for it cannot be tried for a Visne cannot be from the Realm of England Also if it lie through all the Realm then the same is Common Law and not custome which see Br. Custome 59. and see 4 5 Ph. Ma. 152 153. an express Case of the same Office and there he prescribed Per consuetudinem in Curia c. and also that such grant is good but during the life of the Admiral who granteth it Also he doth not answer to any time after the grant of the Admiral Howard for if we were lawfully put out by Wade yet the Defendant against his Bond shall not put us out or interrupt us As 5 E. 4. 115. In a Quare Impedit against an Abbat and the Incumbent who make default upon the distress upon which a Writ was awarded to the Bishop for the Plaintiff upon which the Bishop retorned That the Incumbent had resigned of which he hath given notice to the Prior and lapse incurred and the Bishop collates the former Incumbent and then this Writ came to him Now although the Incumbent be in by Title yet he is bound by the Iudgment So here although the Defendant hath another Title and the former Title of the Plaintiff be determined yet against his own Bond and Deed he shall not put out the Plaintiff c. And the Court was clear of opinion That Iudgment should be given for the Plaintiff but afterwards the Cause was compounded by order of the Lord Chancellour CLIII Bedel's Case Trin. 32 Eliz. In the King's-Bench THE Case was 3 Len. 159. That A. leased to B. certain Lands for 40 l. per ann and a stranger covenanted with A. that B. should pay unto him the 40 l. for the Farm and occupation of the said Lands A. brought an Action of Covenant the Defendant pleaded That before the day of payment the Plaintiff ousted B. of his Farm It was moved by Godfrey that it was no Plea because this is a collateral sum and not for Rent issuing out of Land Also the Defendant is a stranger to the Contract for the Farm But the opinion of the Court was to the contrary for the Defendant hath covenanted that the Lessee shall pay for the said Farm and occupation 40 l. so it is as a conditional Covenant and here is Quid pro Quo and here the consideration upon which the Covenant is conceived scil the Farm and the occupation

The Queen gave and granted the Reversion in Fee to Sir Thomas Henage c. and after it was found by Office that the Rent was arrear ut supra Sir Thomas Henage entred and leased for years to Sir Moil Finch who being ejected brought a Quo minus in the nature of an Ejectione Firmae c. It was argued by Coke That this Lease upon the matter aforesaid is avoidable by the Patentee and that without Office for the conclusion of the Proviso is not that the Queen shall re-enter but that the Lease shall cease and be void and the Queen is not driven to demand her Rent as in such case a Subject is tied And he compared it to the Case of a common person If a common person leaseth for years upon condition that if the Lessee doth not build upon the Land demised a House within a year after that the Lease shall be void and afterwards grants the Reversion to a stranger the Grantee shall have advantage of this Condition be it broken before or after the Grant for the Lease in such case is void not onely voidable and the reason is because the Condition is collateral which see 11 H. 7. 17. A Lease for years is made upon Condition that if the Lessee doth not go to Rome before such a day that the Lease shall be void the Lessor grants the Reversion over the Lessee attorns and doth not go to Rome within the time appointed the Grantee may re-enter contrary if the conclusion of the Condition had been by way of re-entry for then it should run in privity by the Common Law But where a Lease with such Condition was made for life with this conclusion of the Condition that the Lease shall be void the Grantee shall not take advantage of that by the Common Law for there the Estate is not void untill re-entry for there is a Freehold which ought to be avoided by Entry But in our Case the Condition is upon the matter collateral for no demand is requisite to take advantage of the Condition And he said it is a general Rule where in the Case of a common person an Estate may be devested without Entry there in the Case of the Queen there needs not any Office but here in our Case if it had been a Case of a common person the Estate should be devested without Entry therefore in the Case of the Queen without Office See Stamford for the Major Proposition 55. but it doth not vest to have Trespass before Entry and he vouched the Case of Browning and Beston Plow 136. where such Lease after such Condition broken is merely void and dissolved And he said That it was the Opinion of the Iustices of the Common Pleas now late That by a Release to such Lessee after the condition broken nihil operatur for after the Condition broken he is but Tenant at sufferance and a Lease for years being but a Cattel may begin without ceremony and end without ceremony 2 H. 7. 8. If the King make a Lease for years with clause of Re-entry for not payment of the Rent although the Rent be behind yet the King shall not re-enter before Office found and there ought to be a Seisure for the Lease is not void by the non-payment of the Rent but onely voidable but if the Lease be void for not payment as in our case it is to what purpose shall an Office be for by the mere contract the Lease ceaseth without re-entry or without Office But admit that the Lease shall not cease without Office and before Office the Queen grants the Reversion over yet an Office found after the Grant shall avoid the Lease as well as if it had been found before the Grant. A Lease is made upon condition that if the Lessor build a House upon the Land leased and pay to the Lessee 20 l. that then the Lease shall be void the Lessor builds the House and afterwards grants the Reversion the Grantee pays the 20 l. now the Lease is void although the Condition be partly performed in the time of the Lessor and partly in the time of the Grantee So here although the Grant of the Queen be Mesn between the non-payment of the Rent and the Office for the Queen is not entitled by the Office to the Land but by the Condition broken and the Office is onely to inform the Queen of her Title and when the Office is once found it shall relate unto the time of the Condition broken and shall be of such force as if then it had been found H. 3. H. 7. f. 3. Cro. 221. and here in our case an Office was necessary for to entitle the Queen to the mean profits due betwixt the Rent arrear and the Grant of the Queen with which the Queen by her Grant hath not dispensed and without Office he could not have them for the arrearages of the Rent do not pass to the Patentee no more than if the Queen be seised of an Advowson and the Church become void if the Queen Grant the Advowson unto another the avoidance shall not pass The King seised of a Rent which is arrear grants the said Rent the arrearages shall not pass So here of the mean profits for they are flowers faln from the stalk c. Godfrey contrary and he said That the Lease is in being not impeached by the Condition or the Office and he said That notwithstanding that the words of the Lease are That the Lease shall be void yet before that an Office be found the Lease shall not be avoided In all cases where the Queen is entitled to any thing or to defeat the Estate of another an Office is necessary and that ground is taken in the case of the Lord Berkley Plow Com. 229. by Brown therefore here it ought to be found by Office See also the case of the Bishop of Chichester Fitz. Abridg. Forfeiture 18. 46 E. 3. The Bishop leased for life certain Lands given by the Progenitors of the King as parcel of the Barony of the Bishoprick rendring 30 l Rent and afterwards by assent of the Dean and Chapter released a great part of the said Rent the Lease and the Rent ought to be found by Office. So an Alienation in Mortmain ought to be found by Office because the interest of another is to be defeated So where the King's Tenant ceaseth c. the Villein of the King purchaseth Lands or but a Lease for years So where the King is but to have annum diem vastum Waste committed by the Committee of the King Lessee of the King for years makes a Feoffment in Fee in all these cases the King without Office shall not be entitled The same Law is in case of a Condition broken which see 2 H. 7. 8. Plow 213. Frowick in his Reading puts this case A Subject leaseth for years upon condition which is afterwards broken and afterwards the Lessor becomes King here needs no Office for at the time

Tho. Henage Hungate's Case the Queen leased for years unto Hungate provided that he should not do Waste Waste is done the Queen granted the Reversion to Sir Tho. Henage Office is found the Grantee entred and his entry was adjudged lawfull and that the Queen should have the mean profits from the time of the Waste done untill the time of the Grant. Some say Sir Walter Mildmay's Case that that case was not adjudged but compounded And he vouched Sir Walter Mildmay's Case The Lord Sturton held Lands of the Queen in Knights-service and was attainted of Felony by which the Lands escheated to the Queen who granted those Lands and it was holden that the Queen should have the mean profits betwixt the time of the Felony committed and the Grant. And after in the principal Case Iudgment was given for the Plaintiff scil the Patentee of the Queen against the Lessee who cast in a Writ of Error and by his Council prayed That the Writ of Error be not broken open untill the Iudgment be entred Manwood The Iudgment hath reference and relation unto the first day of this Term and therefore do not doubt of that CLXXIX Sted 's Case Mich. 32 Eliz. In the Exchequer 3 Len. 259. STed of Great Melton in the County of Oxford was assessed to 7 s. for Fifteens and upon refusal to pay it the Collectors distrained the Beasts of Sted and sold them Sted brought Trespass thereupon in the King's-Bench and the Collector exhibited his Bill into this Court against Sted who shewed by his Council That the Statute of 29 Eliz. which enacted this Fifteen provideth That the said Fifteen shall be levyed of the movable Goods and Chattels and other things usual to such Fifteens and Tenths to be contributary and chargeable and shewed farther that the Cattel distrained were tempore districtionis upon the Gleab Land of a Parsonage presentative which he had in Lease which Gleab Land is not chargeable usually to Fifteens granted by the Temporalty nor the Chattels upon it But it was the Opinion of the whole Court Although that the Parson himself payeth Tenths to the King yet the Lay-Farmor shall pay Fifteens and his Cattel are distrainable for it even upon the Gleab Land of the Parsonage and therefore it was adjudged that in the principal Case the Distress and Sale were good and lawfull CLXXX The Dean and Chapter of Winsors Case Mich. 32 Eliz. In the Exchequer 3 Len. 258. IN this Case it was moved If one hath a Rectory impropriate and by the Statute of 26 H. 8. cap. 3. is to pay an annual Rent for the same in the name of a Tenth and by that is discharged of Tenths and first fruits If he shall have the Privilege of the Exchequer for he is to pay the same sum yearly And the Barons were of Opinion that he should not for so every one who is to pay any Tenths or first fruits should draw another who sueth him into the Exchequer and so all Controversies concerning Tithes and Parsonages should be drawn hither which should be a great prejudice to the Spiritual Courts But Egerton Conier's Case Solicitor vouched a Case scil Conier's Case where the King gave a Parsonage to a Priory in Frankalmoign and the Tithes thereof being withdrawn the Prior impleaded him who withdrew his Tithes in the Exchequer and in that Case it was holden that the Prior should have the Privilege for the King is in danger to lose his Patronage or rather his Foundership if the Rectory be evicted Gent Baron The Tenant of the King in chief or he who pays first fruits or he who holds of the Queen in Fee-Farm shall not have in such respect the Privilege here Quaere CLXXXI Cony and Beveridge 's Case Mich. 30 Eliz. In the Common Pleas. 3 Len. 216. IN Debt upon a Bond the Case was That the Plaintiff leased unto the Defendant certain Lands lying in the County of Cambridge rendring Rent and afterwards the Defendant became bounden to the Plaintiff in a Bond for payment of the said Rent upon which Bond the Plaintiff brought an Action of Debt in the County of Northampton to which the Defendant pleaded payment of the Rent without shewing the place of payment and upon payment they were at issue and found for the Plaintiff by Nisi prius in the County of Northampton In Arrest of Iudgment it was moved that the issue was mis-tryed for here the payment of the Rent being pleaded without shewing the place of payment it shall be intended that the Rent was paid upon the Land which is in the County of Cambridge See 44 E. 3. 42. Anderson was of opinion that no Iudgment should be given for the cause aforesaid Rhodes and Windham contrary for it doth not appear that the issue is mis-tried because that no place of payment is pleaded and it might be for any thing is shewed that the Rent was paid in the County of Northampton CLXXXII Berry and Goodman 's Case Trin. 30 Eliz. In the King's-Bench IN an Ejectione Firmae upon a special Verdict the point was Ow. 95 96. One intruded upon the possession of the Queen into Lands in Kisgrave in Suffolk and during this Intrusion the Queen granted these Lands to A. B. by her Letters Patents and the Patentee before any Entry made in the said Land granted the same over Some held that the Grant was good for the Intruder had gained nothing against the Queen and by the Grant of the Queen and the assignment over nothing accrued to him and where a man hath possession of Lands his continuance therein cannot gain to him any interest or increase his Estate without some other act done of later time If the Guardian do continue in possession after the full age of the Heir he is not a Disseisor nor hath any greater Estate in the Lands and upon the Book of 21 E. 3. 2. this Case was collected The Tenant of the King dieth his Heir within age a stranger intrudes the Heir at full age sueth his Livery out of the King's hands the Intruder dieth in possession the same descent shall not take away Entry Coke contrary The Intruder cannot be Tenant at sufferance for at first he enters by wrong and none can be Tenant at sufferance but he who comes in by Title And it is clear That the Intruder by his first Entry doth not gain any Estate in possession upon which he can have an Action of Trespass but after the Grant of the Queen he hath presently Fee by wrong 8 H. 4. 129. A stranger enters upon the King to which he hath right in the right of the Ward yet the Freehold doth remain in the Heir And he said that if A. levyeth a Fine to B. sur Conusans de droit c. now the Conusee hath possession in Law but not in fact and if before the entry of the Conusee W. entreth and dieth seised he hath no remedy for he had not possession

being void he presents he may repeal his presentment and he vouched divers presidents of Grants of the King of such lands to hold of him as of his Dutchy and sometimes of others And the King by his Dutchy seal may give lands in Mortmain and the King under his Dutchy-seal hath made divers Corporations within his Dutchy And although this Rent be a new thing never parcel of the Dutchy yet because it is issuing out of the Dutchy lands and reserved thereout shall be of the same nature and accounted parcel of the possessions of the Dutchy If before the Statute of West 3. one seised of lands on the part of his mother made a Feoffment in Fee Tenend by such services and died the Seignory should go to the heir on the part of his mother and should be descendable as the land it self in lieu of which it came And if Tenant in tail now after the Statute of 32 H. 8. makes a Lease for years according to the Statute rendring Rent to him and his heirs it shall be expounded such heirs which are inheritable to the land according to the entail Manwood chief Baron Demanded of Plowden this Question The King makes a Feoffment in Fee of lands of his Dutchy Is the same a matter of Record who answered yes Manwood Truely no for then there needed not any livery Egerton Solicitor argued to the contrary and he argued much upon the Statute of 1 H. 4. and 1 H. 7. of the separation of the Dutchy of Lancaster from the Crown which see in the Comment 215. in the Case of the Dutchy of Lancaster by which Acts the possessions of the Dutchy were devested out of the body Politick of the King and vested in his body natural and are as their corporal holding in the King as they were in the Duke of Lancaster being a Subject who if he had made a Feoffment the Feoffee should not hold of him but of the King Ergo so shall it be in the case where the King himself makes a Feoffment and he cited a Case put in the end of the Dutchy Case 4 Eliz. 223. The Queen made a Feoffment of lands of the Dutchy out of the County Palatine to hold of her in Capite the Feoffee shall hold of her in Capite as of her Crown of England The case went farther the King after this Feoffment granteth the Fee-farm the Question is If the Rent reserved upon this Feoffment shall pass by such grant or not and he said That this Rent is not parcel of the Fee-farm but rather a collateral charge upon the land for in all cases where there is a Tenure expressed in fait or implyed in Law there the rent reserved after shall not be parcel of the Tenure but a Rent in gross by it self As in our case Tenend in feod firm makes a Tenure therefore the Reddend after shall not make the sum reserved parcel of it 33 E. 3. Annuity 52. before the Statute of Quia Emptores terrarum a man makes a Feoffment in Fee Tenend de Dominis Capital rendring the rent of 20 l. that Rent is a Rent in gross and not parcel of the Tenure King E. 6. granted to Cranmer Archbishop and his heirs Tenend by the fifth part of a Knight's-fee Reddend 6 l. per ann Cranmer in Feoffment in Fee to the use of himself for life the remainder to the use of his son in tail the remainder to the use of the right heirs of Cranmer made a Fee who is attainted of Treason by which the remainder to his right heirs Escheats to the King and so the Seignory is extinct but it was adjudged That the Rent was in esse and not extinct by the Escheat of the remainder for it was not parcel of the Seignory So here in our case Another matter was moved If this Rent being a new thing created de novo and not parcels of the possessions of the Dutchy 1 H. 4. nor 1 H. 7. shall be accounted in Law in the right of the Crown or of the Dutchy and if of the Crown then it cannot pass by the Dutchy-seal and the Statute of 1 H. 4. speaks of such Lands and Tenements which were to his Ancestors Dukes of Lancaster but this Rent never was in them c. and the Queen cannot enlarge the possessions of her Dutchy by her own Act and therefore if J. S. being Tenant in Fee-simple be impleaded in a Praecipe quod reddat and saith that he holdeth for life the remainder to the King in Fee in the right of his Dutchy now this remainder is vested in the King in the right of his Crown and not in the right of his Dutchy for it is onely an Estoppel So the Villein of the King in the right of his Dutchy purchaseth lands the King seiseth he shall have the lands in the right of his Crown and not in the right of the Dutchy If the King giveth Common out of his lands parcel of his Dutchy and afterwards makes a Feoffment in Fee of the lands out of which the Common is granted and afterwards the Commoner dieth without heir the King shall have the same in the right of his Crown and not in the right of the Dutchy So although the rent doth follow the nature of the lands out of which it is issuing yet it is not so to all intents and he said That by the Statute of 2 3 Phil. Ma. the King could not enlarge the possessions of the Dutchy and therefore by the said Act authority is given for to annex possession unto the Dutchy by Letters Patents And there is another clause in the said Statute That if any part of the possessions of the Dutchy have been aliened or granted unto any subject and are reverted to the Crown by Escheat attainder forfeiture purchase c. they shall be deemed and accepted parcel of the Dutchy which case proves That if the King makes a Feoffment of such lands the same is a Tenure in chief for if it were a Tenure of the Dutchy then upon Escheat it should be parcel of the Dutchy again without the help of that Statute Now this Rent being a Rent in gross and not parcel of the Seignory Reddendo Domino Regi haeredibus successoribus suis aut Domino aut Dominis feodi when the King grants the Seignory to the Lord Audley it hath been moved that it was in the Election of the Feoffee to pay the Rent to the King or to the Lord Audley but that is not so for although the Law be so betwixt Subjects yet in case of the King it is otherwise for the King shall never be over-reached by an Election and therefore he shall pay the Rent to the King. It was adjourned CLXXXV The Executors of Sir William Cordel and Clifton 's Case Hill. 18 Eliz. In the Common Pleas. 3 Len. 59. THE Case was The Earl of Westmerland seised of a Manor whereof the Demeans were usually let for three lives by Copy

in which was parcel demised and demiseable according to the custome of the said Manor by Copy in Fee whereof Langley was a Copiholder in Fee c. and the said Earl so seised enfeoffed divers persons of the said Manor unto the use of himself for life and afterwards to the use of the Lord Lumley and Elizabeth his wife daughter of the said Earl and the heirs of their two bodies begotten who made a Lease of the said Customary lands by Indenture unto the Plaintiff for 100 years and the question was If by this Lease the lands be so severed from the Manor that the Copihold is extinct Walmesly took exception to the pleading for that Langley pleads That the custome within the Manor is That if any Copiholder seised of Customary lands of the said Manor dieth thereof seised having many sons That the youngest son shall inherit and he sheweth That the Lord of the said Manor granted to his father and his mother the said customary lands by Copy to have to his said father and mother and the heirs of his father c. And that his father died and that his mother survived him and died and he as youngest son according to the custome entred and he said That this custome set forth by the Defendant doth not maintain his entry For the custome intendeth but a general and immediate descent upon a Copy made unto a man and to his heirs but such is not the descent here for the wife surviveth during whose life the heir cannot enter nor is there here such Estate in the father of the Defendant unto whom the custome set forth in the Avowry can extend For the custome is alledged Where a Copyholder hath a Copyhold Estate to him and his heirs And here the Title of the Defendant is That a customary Estate was granted to the father and the mother and the heirs of the father so as this Estate is not within the Letter of the custome And to that purpose he cited the Case of Sir John Savage Sir John Savage's Case ante 109. late adjudged Where one entitled himself to a Copihold in this manner That within the Manor there is such a custome that if one taketh to wife any customary Tenant of the said Manor in Fee and hath issue by her he if he over-live such wife should be Tenant by the Curtesie and the Case in truth was That he married a woman who at the time of the marriage had not any Copihold but afterwards during the coverture a Copihold descended to her In that Case it was holden That no Tenancy by the Curtesie did accrue by that custome which did not extend but where the wife is a Copiholder at the marriage and a custome shall be in construction taken strictly and shall not be extended beyond the words of it And as to the matter in Law he said That by this Lease the custome was gone and then by consequence the customary Tenancy as to that land is determined for the Estate of the Copiholder is Secundum consuetudinem Manerii ad voluntatem Dom. And now by the Lease Langley cannot hold Secundum consuetudinem Manerii for now the services reserved upon the Copy and the advantages of Waste and other forfeitures are extinct so that if notwithstanding the Lease the customary interest should endure then such a Copiholder should hold this land discharged of all services c. in better Estate than any Freeholder at the Common Law and because the services in Law are discharge and cannot be recovered for that cause the customary interest is determined For the Case is 7 E. 4. 19. by Danby That the Copiholder shall have remedy against his Lord if he put him out for he payes a Fine when he enters but here during this Lease no Fine can be paid upon any descent c. and the Fine is the cause for which the Copiholder shall maintain his possession against the Lord But here no descent or surrender can be presented for there is not any Tenant who can do it See 21 E. 4. 80. by Brian As long as the Copiholder payeth unto the Lord the customs and services If the Lord putteth him out he shall have an Action of Trespass 42 E. 3. 25. If the Copiholder will not do his services the Lord shall seize the lands Dyer 100. 1 Cro. 35. And he resembled this Case to the case where the King grants lands probis hominibus de D. the same is a good Grant and that onely in respect of the Rent and for the reason of that it is a good Corporation But if the King releaseth the Rent the Corporation is dissolved and the Grant is become void Fenner Serjeant contrary and he said That by this Lease being the act of the Lord himself the customary interest is not determined c. And the whole Court was of clear opinion with Fenner That the Copihold did remain for otherwise by such practices of the Lords all the Copiholders in England might be defeated and if any prejudice be grown to the Lord by this act it is of his own doing and against his own act he shall not be relieved And by Periam Iustice The Lord by his act i. e. the making of the Lease hath destroyed his Seignory and lost the services as to this land And Windham Iustice said That the Lord himself had destroyed the custome as to the services but not as to the customary interest of the Tenant but the Lord Anderson was of opinion That the Rents and services do remain and if the Copiholder after such Lease committeth Waste that it is a forfeiture to the Lord and that will fall in evidence upon a trial although such Waste cannot be found by an ordinary presentment and the same Law which alloweth the Copiholder his Copihold interest against this Lease will allow unto the Lord his Rents and services and he said That the Lord shall have the Rents and services and not the Lessee Quod mirum against his own Lease See 33 Eliz. between Murrel and Smith now reported by the Lord Coke in his 4 Report fol. 20. CCLVIII. Russel and Broker 's Case Trin. 29 Eliz. In the Common Pleas. RUssel brought Trespass against Broker 3 Len. 218. for cutting down of four Oakes The Defendant pleaded That the place where c. and that he is seised of a Messuage in D. And that he and all those whose Estate he hath c. Habere consuerunt rationabile estoverium suum for fuel ad libitum suum capiendum in boscis subboscis arboribus ibidem crescentibus and that in quolibet tempore anni but in fawning time The Plaintiff by Replication said That the place where is within the Forrest of c. and that the Defendant and all those whose Estate c. Habere consueverunt rationabile estoverium suum de boscis c. per liberationem Forrestarii vel ejus Deputati prout boscus pati potest non ad exigentiam

of the Hundred upon this Statute and it seemed hard to the Inhabitants there that they should answer for the Robberies done at Gadds Hill because Robberies are there so frequent that if they should answer for all of them that they should be utterly undone And Harris Serjeant was of Councill with the Inhabitants of Gravesend and pleaded for them that time out of mind c. Felons had used to rob at Gadds Hill and so prescribed and afterwards by award they were charged And note That the Case was that three men were robbed and they three joined in the Action against the Inhabitants XX. Colshil and Hasting 's Case 20 Eliz. In the Common-Pleas AN Extent was sued forth upon a Statute-Merchant by Colshil against Hastings for Lands in his possession in the County of Southampton The Sheriff put the Plaintiff the Conusee in possession of parcel of a House and of Lands and suffered Hastings to continue in the rest of the House Execution executed 1 Leon. 145. by reason whereof Hastings kept the possession of the whole and held the Conusee out The Conusee to the intent that he might have full and perfect possession of the whole caused the Sheriff that he did not retorn the Writ of Extent upon which it is entred on the Roll Quod Vice-Comes nihil inde fecit nec misit breve Whereupon issued an Alias extendi facias upon which the new Sheriff did retorn That in the time of the old Sheriff a Writ of Extent issued forth c. and that the said Sheriff had extended the Lands by reason whereof the now Sheriff could not extend them upon the new Writ It was moved for the Conusee That the retorn was not good For although that the Lands be extended by the first Writ Yet because it is not retorned it is not any Execution in Law nor could the Conusee have an Assise which Manwood Iustice denied Loare Preignothory Our course is when no retorn of such Writ is made to grant an Alias at the prayers of the party and to enter upon the Roll That the Sheriff upon the first Writ Nihil inde fecit nec misit breve And that was taken by the Court to be a good and lawfull course in such Case for upon such surmise that no Execution hath been done and that upon such entry on the Roll an Alias Breve might be well awarded And afterwards this second Writ of Extent was not filed by order of the Court And note that the new Sheriff was examined upon his Oath by the Court of the Action and he said that he made the retorn by the advice of Master Plowden who told him that he might safely retorn that the Land was formerly extended and although that the said Extent was not retorned yet it is an Execution for the Party Manwood Certainly this is an insufficient retorn But perhaps Master Plowden did not know of this entry in the Roll as aforesaid for now it appeareth upon Record that no Execution was done If this entry had not been I should well agree with Master Plowden that the same is an Execution for the party although it be not retorned XXI Steward 's Case 19 Eliz. In the Common-Pleas THE Case was A. seised of certain Lands in Fee granted a Rent-charge out of the same to another and afterwards aliened the Lands to a stranger The Grantee in a Replevin did avow for the Rent and the other party pleaded that nothing passed by the Deed It was holden by the whole Court to be no plea nor can any issue be joined upon it but the Plaintiff ought to have said That he did not grant by the Deed For the same is a Rent newly created and which had not his essence before the grant and it cannot properly be said That nothing passed by the Deed but not of a thing that is in esse but of things not in esse That he did not grant is the most natural issue for a thing not in esse non potest transire XXII 19 Eliz. In the King's-Bench IN an Action upon the Case upon a Trover and Conversion to his own use per venditionem quibusdam hominibus ignotis Trover and Conversion the Defendant pleaded That the goods were bailed to him to bail over to J. S. to whom he had delivered them absque hoc that he did convert them to his own use per venditionem hominibus ignotis It was moved by Egerton that that matter is not traversable quod Wray concessit for the conversion to his own use is the cause and ground of the Action and not the selling of the goods c. XXIII Mich. 19 and 20 Eliz. In the Common-Pleas A Man was outlawed in the Court of Hustings of London and the Hustings in which the Iudgment of Outlawry was given Outlawry was holden two Weeks next after the last Hustings so as there was but two Weeks betwixt the two Hustings whereas commonly the Hustings is holden but every three Weeks and now the Sheriffs of London were in doubt if they might safely retorn the Outlawry without danger of an Action upon the Case brought against them by the party outlawed It was holden by Dyer and the whole Court that they ought and might safely retorn the said Outlawry for the Lord Dyer said That there is a Record in the time of R. 2. whereby it appeareth that in London they might hold their Hustings every Week if they pleased and afterwards he commanded Mosley and Christopher Secondaries to retorn the Outlawry which was done accordingly XXIV Lovelesse 's Case 19 Eliz. In the Common-Pleas Debt upon Recognizance 1 Cro. 608. 817. LOvelesse Serjeant brought a Scire facias upon a Recognizance and had Iudgment upon default Quod habeat Executionem and afterwards he brought an Action of Debt upon the said Iudgment and exception was taken to the Action for that he ought to proceed upon the Iudgment given upon the Scire facias and ought to sue Execution according to the said Iudgment by Elegit or Scire facias but not by Capias but the Exception was not allowed For the Recognizance is a Iudgment in it self and an Action of Debt will lie upon it without any Iudgment in the Scire facias And Debt lieth as well upon the Iudgment as upon the Recognizance it self and so was the opinion of the whole Court. XXV Eliz. In the Common-Pleas Brent 's Case Dyer 340. b. THE Case was That Robert-Brent being seised of Lands in Fee made a Feoffment thereof unto the use of himself and Dorothy his Wife for their lives and if he do survive his said Wife then to the use of him the said Robert and such a Woman as he should after marry for the Iointure of such Wife the Remainder over to a stranger in Fee And afterward with the privity and assent of the Feoffor he in the Remainder and the Feoffees join in a Feoffment to divers persons Note both Feoffments were

and that is by reason of the privity betwixt them and because they are compellable to make Partition and in our Case they are compellable by Subpoena in Chancery to make Partition and notwithstanding that the Lands entailed be allotted to one Coparcenor onely and the fee to the other three yet thereby the Partition is not void but voidable As an Exchange by Tenant in tail is not void but if the Issue in tail accept of it it shall bind him during his life So here and also by the death of the Husbands the Partition is not void but voidable onely Clench Iustice How shall the Heir be said seised of the Lands entailed which was allotted to his Father and Mother after acceptance and agreement Atkinson Of certain part as Issue in tail and of other parts by force of the Partition and acceptance Quaere of that for if it be not of the whole as Issue in tail then the Lease is not void but for so much whereof he was seised in tail and then the Lessee is Tenant in common with Weston and then the Conusance is not good Cooper Serjeant elect Here wants certainty for the words of reference are too general and therefore void ad usum rectorum haeredum without shewing of the Donor or of the Donee and they are not helped by the subsequent words secundum antiquam Evidentiam ante hac factam for that also is incertain for it appeareth upon the Record That there are divers Evidences of the said Lands as the Charter of Gift the Recovery and the Conveyances made 4 H. 7. and which of them is intended by the Devise non constat and the said defect is not helped by any of the Averments i. That the Devisor was possessed of the said Charter of Entail at the time of his death and it is also not to the purpose for it may also be that he was possessed of other Evidences as ancient as the said Charter of Entail It is said that there is no other ancient Evidence of the Lord Scroop but it is not averred That there was not other ancient Evidences of the said Lands But admit that the limitation be good by that reference yet there was not any Estate-tail for every Estate-tail ought to be limited in certainty which see in the Statute of West 2. secundum formam in Charta Doni manifesto expressam c. and here it doth not appear upon the words of the Charter if the Estate-tail be limited to the Heirs of the Donor or unto the Heirs of the Donee and he said Admit that the same is an Estate-tail then the Question is If Jeofry be a Purchasor and if he be then by his death without issue the Estate-tail is spent And he said that the Estate for life in Jeofry is drowned by the Estate-tail limited to him for they are united together Egerton Solicitor-General Reasonable and favourable construction ought to be made of this Devise according to the intent of the Devisor As 35 Ass 14. Lands are given to B. and his Heirs if he hath issue of his body and if he die without issue of his body that the Lands shall revert to the Donor and his Heirs the same is a good Entail and upon the death of the Donee without issue the Donor shall re-enter And so here although that rectorum haeredum be incertain words yet the same is supplied by the subsequent words viz. secundum antiquam evidentiam As where the King grants to a Mayor and Commonalty such Liberties as London hath the same is a good Grant 2 H. 7. 13. 1 Leo. 245. And he conceived That this Estate-tail shall be said to begin in Henry although he was dead before and that all his Issues should inherit it and that it should not be determined by the death of Jeofry without issue and in proof thereof he vouched the Case before cited Littl. 81 82. for in that case the condition could not be holden to be performed if the Heir to whom the Gift was made in facto should be in by purchase and so the Estate-tail spent by his death without issue and also he vouched the Case of one Shelley That although the Heir took that which was not ever in his Ancestors yet he did not take it as a Purchasor but as in course of a descent and he also cited Robridge's Case And afterwards the same Term by award of the Court Iudgment was entred for the Plaintiff for the incertainty of these words secundum antiquam Evidentiam to what Evidence it should refer and also rectorum haeredum without shewing whose Heirs i. of the Donor or of the Donee And Wray chief Iustice said It shall be intended upon this Will That the meaning of the Testator was That the Lands should go unto his Heirs according to the Law according to all his Evidences which he had of his Lands and that is a Fee simple and it shall not be intended That the Testator had such a special remembrance of one Deed made two hundred years before viz. 25 E. 3. XXX Perry and Some 's Case Mich. 30 Eliz. In the King's-Bench Rot. 482. SOme Parson of the Church of Sherring in Essex 1 Cro. 139. libelled in the Spiritual Court against Perry for the Tithes of green Tares eaten before they were ripe and for the Tithes of the Herbage of dry Cattel and for Tithes of Sheep bought and sold and for Churchings and Burials Perry prayed a Prohibition and in his surmise as to the green Tares he said That they had used time out of mind c. in the same Parish In consideration that they had not sufficient Meadow and Pasture for their milch Kine and draught Cattel to pay for the Tithes of the ripe Tares the tenth shock but for their green Tares which are eaten up before they are ripe in consideration that they gave them to their Cattel they had used to be discharged of any Tithes thereof and the truth was That 400 Acres of Lands within the said Town had used to be plowed and sowed every year by the labour of draught Cattel and industry of the Inhabitants in consideration of which and that in the said Parish there was not sufficient Meadow nor Pasture for their draught Cattel they had used to be discharged of the Tithes of green Tares eaten before they were ripe It was holden by the Court that the same was a good custome and consideration for the Parson hath benefit thereby for otherwise the said 400 Acres could not be plowed for without such shift to eat with their draught Cattel the green Tares they could not maintain their plough Cattel and so the Parson should lose his Tithes thereof and for the Tithes of the green Tares he hath the Tithes of 400 Acres There was a Case lately betwixt the Lord Howard and Nichols where the suit in the Spiritual Court was for the Tithes of Rakings and a surmise to have a Prohibition was made that the

ratione calumniae praedict ac praedict jurament tenebat proficua inde provenientia diutius quam aliter si praesens Triatio habita fuisset sine aliqua calumnia tenere potuisset See the Statute of 5 Eliz. against Perjury the words are grieved letted or molested c. LIV. George ap Rice 's Case Mich. 30 Eliz. In the King's-Bench George ap Rice Tenant in Tail after possibility of Issue extinct assigned his Estate to one A. against whom he in the Reversion brought a Quid juris clamat and it was adjudged that he should Attorn for although Tenant in Tail after possibility of Issue extinct himself is not compellable to attorn yet his Assignee shall attorn for the privilege is knit to the person who is in truth Tenant in Tail after possibility of Issue which cannot be the Assignee for by the Assignment the privity and the privilege are destroyed 1 Len. 290.291 And where the Defendant in a Quid juris clamat is adjudged to attorn Distress infinite shall issue forth against him to compell him to attorn and if he when he appears doth refuse to attorn he shall be imprisoned until he doth attorn And this Iudgment That the Assignee of Tenant in Tail after possibility should attorn being given in a Court in Wales was afterwards affirmed in a Writ of Error brought upon it in the King 's Bench. LV. Lucas and Picrost 's Case 30 Eliz. In the Common Pleas. THE Case was 3 Len. 137. That an Assise of Novel disseisin was brought in the County of Northumberland of two Acres of Land and as to one Acre the Defendant pleaded a Plea tryable in a Foreign County upon which the Issue was adjourned into the Common Pleas and from thence into the Foreign County where by Nisi prius it was found for the Plaintiff And now Snag Serjeant prayed Iudgment for the Plaintiff and cited the Book of 16 H. 7. 12. where Assise is adjourned in Bank for difficulty of the Verdict they there may give Iudgment But the whole Court is of contrary Opinion for here is another Acre the Title of which is to be tryed before the Iustices of the Assise before the Tryal of which no Iudgment shall be given for the Acre for which the Title is found And the Assise is properly depending before the Iustices of the Assise before whom the Plaintiff may discontinue his Assise And it is not like unto the Case of 6 Ass 4. 8 Ass 15. where in an Assise a Release dated in a Foreign County is pleaded which was denyed for which cause the Assise was adjourned in Bank and there found by Inquest not the Deed of the Plaintiff now the Plaintiff if he will release his damages shall have Iudgment of the Freehold presently But in our Case Postea 199. 14 H. 7. part 118. parcel of the Lands put in view doth remain not tryed which the Plaintiff cannot release as he may the damages And therefore the Court awarded That the Verdict should be sent back to the Iustices of the Assise LVI Povye 's Case Mich. 30 Eliz. In communi Banco POvy an Attorny of the King's Bench brought an Action of Trespass there against the Warden of the Fleet who came into the Common Pleas and demanded the Advice of the Court because he is an Officer of this Court and therefore ought not to be impleaded elsewhere But it was said by the Court 3 Cro. 180. That because that the Plaintiff hath also his Privilege in the King's Bench as well as the Defendant hath here this equality of Privilege shall render the parties at liberty and he shall have the benefit of the Privilege who first begins Suit and so the Warden of the Fleet was advised to answer LVII Inchley and Robinson 's Case Hill. 29 Eliz. In the Common Pleas. IN an Ejectione Firmae it was found by special Verdict Owen Rep. 88. 3 Len. 165 That King E. 6. was seised of the Manor and hundred of Fremmington and by his Letters Patents granted the same to Barnard in Fee rendering 130 l. per annum and also to hold by Homage and Fealty and afterwards Queen Mary reciting the said Grant by E. 6. and the Reservation upon it granted to Gartrude Marchioness of Exeter the Manor of Fremmington and the said Rents and Services and also the Manor of Camfield and other Lands and tenements to be holden by the twentieth part of a Knight's Fee Gertrude so seised devised to the Lord Montjoy the Manor of Fremmington the Manor of Camfield c. and also bequeathed divers sums of money to be levied of the premisses and they farther found That the said Rent of 230 l. was the full third part of the yearly value of all the Lands and Tenements of the Devisor The Question was If by those words of the Devise Of the Manor of Fremmington the Rent and Services of the Manor did pass i. the Rent and the Homage and the Fealty reserved the Grant of King E. 6. of the Manor and Hundred of Fremmington and if the said Rent and Services are issuing out of the Manor for if the Rent doth not pass then the same is descended to the Heir of the Marchioness and then being found the full and third part of the value the King and the Heir is fully answered and satisfied and then the Inheritance of the residue discharged and settled in the Devisee And if the Rent doth not pass then is the Heir of the Marchioness entitled by the Statute to a third part of the whole Shuttleworth Serjeant If the Marquess had devised by express words the said Rent and Services they could not have passed for as to the Services they are entire things as Homage and Fealty and they cannot pass by Devise in case where Partition is to follow for such things cannot receive any Partition or Division therefore they are not divisible for the Statute doth enable the Proprietor or Owner to devise two parts of his Inheritances in three parts to be divided i. as Catalla Felonum cannot be devised for the reason aforesaid which was granted by the whole Court. And as to the Devise he argued much upon the grounds of Devises and put a ground put by Fineax 15 H. 7. 12. where every Will ought to be construed and taken according as the words do import or as it may be intended or implyed by the words what the meaning of the Testator was out of the words of the Will. See thereof a good Case 19 H. 8. 8. and 9. and he relied much upon the Case of Bret and Rigden Plow 342. So he said in this case because the intent of the Devisor doth not appear upon the words of the Will that this Rent should pass it shall not pass for there is not any mention made of any Rent in all the Will. Fenner contrary and he argued much upon the favorable construction which the Law gives to Wills 14 H. 3. Reversion for Remainder

è contr 17 E. 3. 8. A man may make a Feoffment of a Manor by the name of a Knights Fee à fortiori in case of the Devise and in our case the Marquiss conceived That the Rent and Services reserved out of the Manor of Fremmington was the Manor of Fremmington and the Law shall give strength to that intention Walmsly conceived That the Rent did not pass by the name of Manor c. for this Rent nec in rei veritate nor in reputation was ever taken for a Manor Also the words Of the Manor and Hundred of Fremmington are put amongst others which are Manors in truth by which it seemeth That the Devisor did not intend to pass but one Manor and no other Hereditaments by that Manor of Fremmington It is a Rule in Law That in the construction of a Will a thing implyed shall not controul a thing expressed But here if by implication the Rent shall pass then the Manor of Camfield shall not pass which it was the intent of the Devisor to pass and that by express words See 16 Elizab. Dyer 330. Clatche's Case and see 16 Eliz. Dyer 333. Chapman's Case But in our Case here there are not any sufficient words to warrant any implication for neither in truth nor in reputation was it taken to be a Manor 22 H. 6. 2. Green Acre might pass by the name of a Manor although it were but one Acre of Land because known by the name of a Manor See accordingly 22 H. 6. 39. And see where before the Statute of Vses a man had Recoverors to his use and he wills by his Will That his Trustees should sell his Lands they may sell And he said That if a man seised of a Manor parcell in Demesne and parcell in service and he grants the Demesnes to one and his Heirs and afterwards deviseth his Manor peradventure the services shall pass but this Rent hath no resemblance to a Manor Gawdy This Rent shall pass by the name aforesaid Favourable construction is to be always given to Wills according to the intent of the Devisor and no part of a Will shall be holden void if by any means it may take effect then here it appeareth that his meaning was that upon these words every thing should pass to the Devisee concerning the said Manor of Fremmington for otherwise the words of the Manor of Fremmington should be void and frivolous which shall not be in a Will if any reasonable construction can be for it is found expresly by the Iury That neither at the time of the Will made nor at the time of the death of the Devisor the said Devisor had any thing in the said Manor of Fremmington but onely the said Rent of one hundred and thirty pounds And it may well be taken that the Devisor being ignorant what thing a Manor is though that the Rent was a Manor because that he had Rents and services out of the Manor For in construction of Wills the words shall serve the intent of the party and therefore if a man deviseth That his Lands shall be sold for the payment of his debts his Executors shall sell them for the intent of the Testator naming the Vendors is sufficient And see Plowden 20 Eliz. 5. 24. L. after the Statute of 27 H. 8. deviseth that his Executors shall be seised to the use of A. and his Heirs in Fee whereas then there was no Feoffees to his use the same was holden a good Devise of the Lands of A. and the Iudges conceived that the Devisor was ignorant of the operation of the Statute in such case and therefore his ignorance was supplied See Br. Devises 44. 29 H. 8. A. had Feoffees to his use and afterwards after the Statute of 27 H. 8. willed that his Feoffees should make an Estate to B. and his Heirs it was holden by Baldwin Shelley and Mountague Iustices that it was a good Devise See 26 H. 6. Feoff 12. A Carve of Lands may pass by the name of a Manor Ergo à multo fortiori Rent for Rents and Services have more nearness and do more resemble a Manor than a Carve of Lands and it cannot be intended that the meaning of the Testator was to grant the Manor it self in which she had nothing especially by her Will for covin collusion or indirect dealing shall not be presumed in a Will Also the Marchioness for four years together before her death had the Rent and Services of the said Manor and she well knew that she had not any other thing in the said Manor but the said Rent and Services and therefore it shall be intended that that was her Manor of Fremmington A. seised of a Capital Messuage and great Demesnes lying to it leaseth the same for years rendring Rent and afterward deviseth to another all his Farm lying in such a place It was rated in that case that by that Devise the Rent and the Reversion should pass See the Case betwixt Worselie and Adams Plowd 1 Eliz. 195. by Anthony Brown and Dyer Periam Iustice was of opinion that this Rent might be divided well enough But by Anderson It is but Rent-seck but Periam said it was a Rent distrainable of common Right but all of them agreed that the Rent might be divided but there should not be two Tenures And the Lord Montjoy being advised that this Rent did not pass by the Grant but descended to the Heir being the full part of the whole entred into all the residue of the Lands and made a Lease of the Manor of Camfield unto the Plaintiff upon which entry the Ejectione firmae was brought and afterwards the Plaintiff seeing the opinion of the Court to be against him and for the Devisee of the Rent by the name aforesaid did afterward discontinue his suit c. LVIII Costard and Wingfield 's Case Trin. 30 Eliz. Intrat T. 28 Eliz. Rot. 507. In the Common-Pleas 6 Co. 60. IN a Replevin the Defendant did avow for damage-feasant by the commandment of his Master the L. Cromwel The Plaintiff by way of Replication did justifie the putting in of his cattel into the Land where c. by reason that the Town of N. is an ancient Town and that it had been used time out of mind c. That every Inhabitant of the said Town had had common for all manner of cattel levant and couchant within the said Town and so justified The Defendant said that the house in which the Plaintiff did inhabit in the said Town and by reason of residency in which House he claimed common was a new house erected within 30 years and that before that time there had not been any house there upon which the Plaintiff did demurr Shuttleworth Serjeant argued for the Plaintiff That he should have common there by reason of resiancy in the said new house and he said that the Resiancy is the cause and not the Land nor the person thereof and thereupon he put the Case of

15 E. 4. 29. And he agreed the Case That if the Lord doth improve part of the common that he shall not have common in the residue of the Land for the Lands improved because That he cannot prescribe for that which is improved as the Book is in 5 Ass But here in the principal Case he doth not prescribe in any person certain or in or for any new thing but he sets forth that the use of the Town hath always been that the inhabitants should have common there And this common is not common appendent or appertinent but common in gross See Needham 37 H. 6. 34. b. And he said That if the house of a Freeholder which hath used to have such common doth fall down and he erecteth a new house in another place of the Land that he shall have common to that new erected house as he had before And he took a difference betwixt the case of Estovers where a new Chimney is erected and this Case and he stood much upon the manner of the prescription Gawdy Serjeant contrary And he took exception to the prescription For he said that it is said therein That it is Antiqua Villa but he doth not say that it hath been so time out of mind c. and so it ought to be said as the Book is in 15 E. 4. 29. a. And then if it be not an ancient Town time out of mind the parties cannot prescribe as Inhabitants of the said Town to have common time out of mind c. And he said That if such a prescription as is said in this Case be good in Law viz. That every one who erected a new house within the said Town should have common to his said new house the same should be prejudicial to the ancient Town and to the utter overthrow and manifest impairing of the common there and it might so happen that one who had but little Lands in the said Town might erect twenty new houses there and so an infinite number of houses might be newly erected there and there should be common allowed to every Inhabitant within the said new erected houses which should be inconvenient and unreasonable Anderson chief Iustice He who erects a new house cannot prescribe in the common for then a prescription might begin at this day which cannot be and he insisted much upon the general loss which should happen to the ancient Tenants if such a prescription for new erections should be good Periam If it should be Law That he should have common in this Case That all the benefit which the Statute gives to the Lord for improvement should be taken away by such new edifications and erection of new houses which were not reasonable And such was the opinion of the other Iustices and therefore they all agreed that in the principal Case the Plaintiff should not have common to this new erected house but the entry of the Iudgment was respited untill the Court had seen the Record and after they had seen and considered upon the Record Anderson and Periam were of opinion as before But Windham did not encline to the contrary but they all agreed That he who set up again a new Chimney where an old one was before should have Estovers to the said new Chimney and so if he build a new house upon the foundation of an old house That he should have common to his said house new erected So if a house falleth down and the Tenant or Inhabitant sets up a new house in the same place Also if a man hath a Mill and a Water-course to it time out of mind which he hath used time out of mind to cleanse if the Mill falleth and he erecteth a new Mill there he shall have the Watercourse and liberty to cleanse it as it had before and afterwards the same Term Iudgment was given for the Defendant to which Windham Iustice agreed LIX Rous and Artois Case Hill. 29 Eliz. In the King's-Bench THE Case was large but the points in this Case were but two Owen Rep. 27. 4 Co. 24. The first was If Tenant per auter vye after the death of Cestuy que vye holdeth over If he be a Disseisor or not The second point was If Tenant at will or at sufferance be such a Tenant of the Manor as he may grant Copyhold Estates to Copyholders For the first point It was agreed by Godfrey and he held that the principal Case was That if Tenant pur auter vye holdeth over the life of Cestuy que vye that he thereby gaineth the Fee But he granted the Cases That where a man holdeth at the will of another that after the Estate determined if he holdeth over he hath not thereby gained fee for he is Tenant at sufferance and as Littleton saith in his Chapter of Releases 108. Tenant at sufferance is where a man of his own head occupieth the Lands and Tenements at the will of him who hath the Freehold and such an occupier claims nothing but at will But he said That in the principal Case he otherwise claimed than at the will of the Lessor for that it appeareth that he hath granted Copy and he said that this difference doth give answer to the Case which is t. H. 8. br t. per Copy 18. where it is said for Law That none is Tenant at sufferance but he who first enters by authority of Law As if a man makes a Lease for years or for the life of another and he holdeth the Lands after his term expired or after the death of Cestuy que vye If he claim nothing but at the will of him who hath the Freehold he is a Tenant at sufferance But if he holdeth in the Lands against the will of his Lessor then he is a Disseisor and so if he do act after such continuance of possession contrary to the will of his Lessor he is a Disseisor 10 E. 4. If an Infant maketh a Lease at will and the Lessor dieth and the Lessee continueth in possession and claims Fee the Heir shall have Mortdancester 18 E. 4. If Cestuy que vye dieth and the Tenant hold in and was impleaded The Lessor shall not be received and he conceived the reason of the Case to be because that the reversion was not in him but that the Fee was gained and rested in the other 22 E. 4. 39. g. by Hussey If a Termor holdeth over his term there an Estate in Fee is confessed to be in him because he holdeth the possession of the Lands by wrong but there is a Quaere made of it if he be a Disseisor or not but I conceive that he is for Trespass doth not lie against him before the Lessor hath made his entry and therefore if the Lessee doth continue in the possession of the Lands by reason of the first entry that is the reason as I conceive that the Writ of Entre ad terminum qui praeteriit lieth against such a Termor who holds so over his Term and

that Writ is a Praecipe quod reddat which doth not lie but against a Tenant of the Freehold And such is the opinion of Tilney 7 H. 4. 43. That if the Guardian holds in the Lands at the full age of the Heir or if the Tenant for years after the term expired holdeth over the Lands their Estates shall be adjudged a Fee. And in our Case here he doth not claim to hold in at the will of the Lessor for he hath done an act contrary to the will of the Lessor For he being Lord of the Manor in manner as aforesaid 3 Cro. 302. hath granted Estates by Copy and it is holden 12 E. 4. 12. by all the Iustices That if Tenant at will or Tenant at sufferance at will makes a Lease for years that the same is a Disseisin to the Lessor and the Tenant at will thereby gains the Freehold and the reason of the Book seems to be because he claims to hold a greater Estate than of right belongs unto him The second point was If Tenant at sufferance might grant Copies and he said that he might and such grant should be good because he is in by lawfull means and an Assise doth not lie against him as in the Book of 22 E. 4. 38. before and he is Dominus pro tempore And this Case is not like to the Cases where Copies are made by Abators or Disseisors for the Law doth adjudge that Copies made or granted by them are void and his act here as a Tenant at sufferance of making and granting of the Copies stands with the custome of the Manor which warrants them as in the Case of Grisbrook and Fox if an Administrator made by the Ordinary sells the goods of the Intestate and with the money thereof arising payeth the debts of the Intestate and afterwards he who was made Executor proves the Will he shall not avoid such sale of the goods because he hath made it according to Law and hath done no more than an Executor is compelled to doe So 12 H. 7. 25. b. If a Baily cut down trees to repair an ancient pail the same is good So 4 H. 7. 14. b. If he payeth a Quit Rent it is good And note 4 Mariae Br. Tenant by Copy 27. That the Lessee of a Manor in which there are Copyholds after the death of the Copyholder may admit the Heir of the Copyholder to the Land and so he may doe who hath but an Estate in the Manor durante bene placito and yet it seems by the Book that such a Tenant of the Manor cannot reserve and lessen Rent but he ought to reserve the ancient Rent or more Coke contrary And first he said that he who holdeth over the life of the Cestuy que use doth not gain any Fee where he comes in first by right for that he is but Tenant at sufferance 35 H. 8. Dyer 57. in the Case of the Lord Zouch Cestuy que use for life the remainder over in tail makes Lease for life of the Lessee he dieth the Lessee continueth his Estate and the opinion of the Iustices of the Common-Pleas and of others was that he is but a Tenant at sufferance for the Lease was not any discontinuance of the Remainder because he had authority by the Statute of Rich. 3. to make a Lease and that is intended of such Estate which he might lawfully doe and this is our Case and so it is adjudged already As to the second point I grant that Tenant for years or at will or at sufferance is Dominus pro tempore but there is a difference as unto granting of Copies by them For it was adjudged 25 Eliz. that they might grant Copies which are to be granted upon surrenders made by Copyholders As if a Copyholder doth surrender to the use of another they may accept of such a surrender and grant the Lands by Copy to him to whose use the surrender is made But if a Copyholder dieth they cannot grant voluntary Copies de novo And he said that Popham who argued the said Case in 25 Eliz. That this difference was agreed and so adjudged in one Sleer's Case And so 17 El. in the Case of one Stowley where the Case was That a Manor was devised to one and the Devisee entred and granted Copies and afterwards it was found that the Devise was void and it was there holden that Copies made by such Devisee upon surrenders were good and were not to be avoided but contrary of Copies made after the death of Tenants upon voluntary grants I grant that when Cestuy que use dieth the Estate for life is utterly void and gone and therefore he is in by wrong but he cannot thereby gain so great an Estate as a Disseisor because he came in at the first by right Atkinson put a difference betwixt Tenant at will and Tenant at sufferance for Tenant at will shall have aid but contrary of Tenant at sufferance as the Book is 11 H. 4. a Release to Tenant at will is good contrary to Tenant at sufferance when after the death of Cestuy que use he holdeth over he hath some interest scil to this purpose that he shall not be a wrong doer for he is neither Abator nor Desseisor therefore not a wrong doer and then if he be in by a right or rightfully he is then Dominus pro tempore and then the grants made by him by Copy are good 7 H. 7. 3. Tenant at sufferance was to justifie the distraining the cattel of another damage feasant Coke True it is the beasts of a stranger but not of the Tenant of the freehold Gawdy Iustice The Lessor cannot have Trespass against him before entry not because he is not a wrong doer but because it is his folly that he doth not enter All the Iustices did hold with the Plaintiff against the Copy granted and that he which granted it was but Tenant at sufferance and not a Desseisor nor had gained the Fee because he came in first by right And therefore they awarded that if the Defendant did not shew better cause that Iudgment should be entred for the Plaintiff LX. Trin. 29 Eliz. In the Exchequer IN the Exchequer Chamber there was this Case An Indenture Tripartite was betwixt three A. was one of them and he covenanted with them Et quolibet eorum And the Covenant was that the Land which he had aliened to one of them was discharged of all incumbrances and he to whom the limitation of the Lands was but a Writ of Covenant sole Buckley argued that it was well brought and cited the Case of 6 E. 2. Br. Covenant 49. where one covenanted with twenty to repair the Sea-banks and he did not repair against two of them and they two brought a Writ of Covenant solement and the Writ holden maintainable because they onely were damnified and so he said in this Case But notwithstanding this it was afterwards 5 Co. 18. viz. M. 30 Eliz.

14. but contrary in a Writ of Habere facias seisinam or in a Liberate for in these Writs there are not such words and therefore although they be not retorned Execution done by virtue of them is good enough See 11 H. 4. 212. If the Sheriff by force of an Elegit doth deliver the moyety of the Land and doth not retorn the Writ if the Plaintiff will plead a new Action of Debt the Defendant may plead in Bar the Execution aforesaid although the Writ be not retorned nor doth remain upon Record and it is not like unto the Case of Partition made by the Sheriff for that must be retorned because that after the Retorn of it a secondary Iudgment is to be given scil Quod Partitio praedict firma stabilis remaneat in perpetuum firma stabilis in perpetuum tenetur says the Book of Entries 114. And Egerton the Solicitor-General cited a Case to be lately adjudged betwixt the Earl of Leicester and the Lady Tanfield Earl of Leicester and Tanfields case That such an Execution was well enough although the Liberate was not retorned The second point was Admitting that it be a good Execution If the Executors being in possession of the Manor and suffering the Conusor to hold a Court there and saying the words aforesaid in the presence of the Lord who is Conusor if the same do amount unto a Surrender or not And it was the Opinion of Wray chief Iustice That it was not a Surrender for that here the words are not addressed to the Conusor who was capable of a Surrender but to other persons And it is not like unto the Case of 40 E. 3. 23 24. Chamberlains Assise where Tenant for life saith to him in the Reversion That his Will is that he enter upon the Land the same is a good Surrender because here is a person certain who may take the Land But in our case it is but a general speech and therefore it shall not be a Surrender LXVI Baskervile and Bishop of Hereford 's Case Mich. 29 Eliz. In the Common Pleas. IN a Quare Impedit brought by Walter Baskervile against the Bishop of Hereford and others the Plaintiff counted That Sir Nicholas Arnold Knight was seised of the Advowson 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 died his Heir being within the age of twenty three years that then the Grantees and their Heirs should be seised to themselves and their Heirs until the said Richard had accomplished the said age Sir Nicholas died Richard being but of the age of fourteen years by force whereof the Grantees were possessed of the said Advowson c. and afterwards the Church became void and so it appertained to them to present Exception was taken to the Count by Serjeant Gawdy because the Plaintiff had not averred the life of Richard upon whose life the interest of the Plaintiff did depend and he compared the same to the Case of the Parson which had been adjudged 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 the life of the Parson was not averred and for that cause the Iudgment was stayed Anderson Vpon the dying of Sir Nicholas Richard being but of the age of fourteen years an absolute Interest for nine years vested in the Grantees not determinable upon the death of Richard or rather they are seised of a Fee determinable upon the coming of Richard to the age of 23 years Rhodes and Windham Iustices contrary and 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 it was argued by Puckering Serjeant That the Count was good enough for although the life of Richard be not expresly added yet such an averment is strongly implied and so supplyed For the Count is Quod dictus Nich. obiit dicto Richardo being of the age of fourteen years non amplius by force of which the Plaintiff was possessed of the said Advowson quo quidem Nich. sic possessionato existente the Church voided and possessed he could not be if not that the said Richard had then been alive and that is as strong as an Averment See 10 E. 4. 18. In Trespass for breaking of his Close the Defendant pleaded 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 whom B. re-entred and leased to the Plaintiff at will by force whereof he was possessed untill the Defendant did the Trespass and that was allowed to be a good Replication without averring the life of B. who leased to the Plaintiff at will for that is supplied by the words scil virtute cujus the Plaintiff was possessed untill the Defendant did the Trespass See also 10 H. 7. 12. In an Assise of Common The Defendant made Title that he was seised of a House and a Carve of Land to which he and all those whose Estate he hath c. had common appendant and doth not say That he is now seised of the House but the exception was disallowed for seisin shall be intended to continue untill the contrary be shewed LXVII Morgan and Chandler 's Case Trin. 29 Eliz. In the King's-Bench IN Debt for Arrerages of Rent by Morgan against Chandler It was found by special Verdict That the Land out of which c. was assured by an Act of Parliament to the Marchioness of Northampton for the term of her life the remainder to the Lady Bourcher her daughter and the heirs males of her body the remainder to King H. 8. in Fee And it was ordained by the same Act Quod omnes concessiones dimissiones Anglice Grants and Leases factae vel in posterum fiendae by the said Marchioness of the Lands aforesaid per script Indentat dict Marchio bonae validae in Lege erunt durante termino c. The Marchioness made a Lease for 21 years to Kenelm Throgmorton rendring 10 l. Rent who assigned the same to the Defendant The Lady Bourcher died without Issue the Marchioness died and if the Lease should now bind the Queen was the Question And it was moved by Clark of Lincoln's-Inn That it should for the King was party to the Act of Parliament and those Estates for life in Tail and in Fee are all as one Estate and derived out of one Estate and the Estate of the King is bound with the Lease and it was moved by Broughton That the Lease should not bind the Queen and so by consequence not her Patentee and he

Disseisor the Disseisee entereth in the life of Tenant in tail who afterwards dieth the warranty works nothing for the cause aforesaid And also he put this Case Tenant in tail of Land grants a Rent-charge in Fee and an Ancestor collateral releaseth to the Grantee with warranty and dieth the Tenant in tail dieth now the issue is bound but if Tenant in tail dieth before him who maketh the Release now the Rent is determined by the death of Tenant in tail and then the warranty cannot attach upon it At another day the Case was moved and conceived in these words scil Tenant for life the Remainder in tail Tenant for life leaseth for years a Recovery is had against him in the Remainder in tail living Tenant for life the Recoverors enter and oust the Lessee for years the Son and Heir of him in the Remainder in tail releaseth with warranty to him to whom the Recoverors have assured the Lands the Lessee enters he against whom the Recovery was had dieth the Releasor dieth c. It was holden that the Entry of the Lessee before that the warranty had attached upon the possession which passed had avoided the warranty And the Lord Anderson conceived That the Recovery should not prejudice the issue in tail but that the issue shall Fauxifie the same And if Tenant in tail be disseised and so disseised suffereth a common Recovery his issue shall not be barred quod fuit concessum per omnes And afterwards another matter was moved scil That the Release is pleaded to be made to Lincoln College by the name of Custodi sociis Scholaribus Lincolniensis Collegii in Oxonia where the true name of the College as is confessed by the Record in the Plea pleaded is Custos sive Rector Socii Scholares Lincolniensis Collegii in Oxonia c. It was adjourned See this Case reported 3 part Lincoln College Case LXXXIII Hall and the Bishop of Bath 's Case Mich. 32 Eliz. In the Common Pleas. HAll brought a Quare Impedit against the Bishop of Bath and others The Incumbent pleaded Quod ipse nihil habet nec habere clamat c. nisi de praesentatione Georgii Sidenham militis not named in the Writ and demanded Iudgment of the Writ upon which the Plaintiff did demur in Law And it was argued by Drew Serjeant for the Plaintiff That the Writ was well brought without naming the Patron for if a Quare Impedit be brought against the Patron and Incumbent and the Patron dieth 1 Leon. 45. pendant the Writ the Writ shall not abate 9 H. 6. 30. It might be that the Plaintiff did not know nor could tell who presented the said Incumbent but he findeth the Incumbent a Disturber by his Incumbency and if of necessity such Patron ought to be named then if such a Vsurper should die before the Writ brought he which hath cause of Action should be remediless And by Anderson and Periam the Writ is good enough for the reason aforesaid And Anderson put this case If A. wrongfully by Vsurpation doth present and his Clark is received and afterwards A. having gained the Patronage grants it over to B. Against whom shall the Quare Impedit be brought Walmsley Against B. which Anderson doubted LXXXIV Hughe 's Case Mich. 32 Eliz. In the Common-Pleas IN a Formedon the Writ was That A. Dedit Aliciae filiae suae and to J.S. and to the Heirs of their two bodies begotten and it was shewed in abatement of the Writ That the name of the Wife is put before the name of the Husband To which it was said by the Court that if such a Writ be brought against the Husband and Wife and the name of the Wife be put before the name of the Husband the Writ shall abate and if in the Case at Bar it had appeared That the Donees at the time of the Gift were Husband and Wife upon such a matter disclosed the Writ should abate but that doth not appear plainly to the Court. LXXXV Mich. 32 Eliz. In the Common-Pleas NOTE It was holden by the Court 1 Cro. 567. 3 Cro. 224. Post 189. That if a Writ of Dower be brought against an Infant who loseth by default at the Grand Cape that he may reverse the same by a Writ of Error but where an Infant appeareth by Guardian and afterwards loseth by default there he shall never avoid it for if any default be in the Guardian the Infant shall recover against him in a Writ of Deceit And afterwards the Iudgment in the first case was reversed LXXXVI Mich. 32 Eliz. In the Exchequer-Chamber NOTE In the Exchequer-Chamber before the Lord Chancellour The two chief Iustices and the chief Baron a Writ of Error was cast upon a Iudgment given in the Court of Exchequer and it was agreed Quod propter absentiam Dom. Thesaurarii Angliae They ought not nor could receive the said Writ and the Statute of 31 Eliz. doth not help the matter for that extends but to discontinuances which before the Statute many times hapned for the not coming of the Chancellour or Treasurer and not to give Conusance in a Writ of Error in the absence of the Treasurer c. LXXXVII Lacy and Fisher 's Case Mich. 32 Eliz. In the Common-Pleas IN a Replevin by Lacy against Fisher The Defendant pleaded that the place where c. is called Spicold and holden of the Manor of Easthall by certain Rent and made Conusance as Bailiff of the Lord of the said Manor and issue being joined hereupon It was tried by the Iury of the Visne of Spicold and it was moved in arrest of Iudgment that the issue was mis-tried For the Visne ought to have been of Spicold and Easthall also Web and Richmond's Case And a Case was cited to have been adjudged accordingly betwixt Webb and Richmond M. 31 Eliz. in the same Court. LXXXVIII Corbet 's Case Mich. 32 Eliz. In the Common-Pleas THE Case was That an Action of Debt was brought by original Writ against an Administrator in another County than where the Administrator was dwelling and before notice of that suit he paid divers other debts of the Intestate due by specialties so as he had not Assets to pay the debt in demand having Assets at the day of the Teste of the original and now the Defendant appearing pleads the same special matter and concluded And so nothing remained in his hands And it was holden per Curiam to be a good Plea See 2 H. 4. 21 22. LXXXIX Sir William Pelham 's Case Pasch 31 Eliz. In the Exchequer 1 Co. 41. THE Case short put was this A. Tenant for life of a Messuage c. the remainder in tail to B. with divers remainders over A. by Deed indented and enrolled bargained and sold the Messuage c. so conveyed to Sir William Pelham in Fee who afterwards suffered a common Recovery thereof in which A. is vouched and so a common Recovery is had and executed and

Son living his Father cannot take as heir i. by limitation as Heir to his Father because that none can be said or held Heir to his Father as long as the Father be alive yet by way of Devise the Law shall favour the intention of the party and the intent of the Devisor shall prevail But all the Court was strongly against it and held that as well in Case of Devise as of Grant all is one Whereupon the Tenant produced Witnesses who affirmed upon their Oaths That the Devisor declared his meaning concerning the said Will That as long as his eldest Son had issue of his body that the Daughters should not have the Land but the Court utterly rejected the matter and Iudgment was given for the Plaintiff XCV the Countess of Linnox Case 29 Eliz. In the Exchequer IN this Case it was said by Manwood chief Baron That whereas the Cistercians c. had a Privilege that they should not pay Tithes for their Lands quas propriis manibus excolant but their Fermors should pay Tithes and now by the Statute of 31 H. 8. they are dissolved That the Queen and her Fermors should be discharged of such Tithes as the spiritual persons were for the Queen cannot excolere ergo her Fermors shall be discharged and so long as the Queen hath the Freehold her Fermors shall have such Privilege although she Leaseth for years or at Will But if the Queen granteth over the Reversion then the Fermors shall pay Tithes More Rep. 915. XCVI Golding 's Case Mich. 29 Eliz. In the King's-Bench IN an Action upon the Case against Gloding the Case was 1 Len. 296. 1 Cro. 50. Noy 18. A Feme sole being Tenant for life by Devise of Lands Leased the same for years to begin after her death and afterwards made another Lease 18 Octob. for twenty one years to the same Lessee to begin at Michaelmas before and the Pleading was Virtute cujus quidem dimissionis and the Lessee entred Crast Sanct. Mich. which was before the making of the Lease And upon the Grant of these two Leases the consideration of Assumpsit was grounded in an Action of the Case thereupon and six hundred pounds damages given And now this was moved in Arrest of Iudgment Coke for the Plaintiff Where two Considerations are laid down in the Declaration although that the one be void yet if the other be sufficient the Action upon the Assumpsit lieth and damages shall be taken accordingly And the Grant upon the Assumpsit was That both the Leases should be assigned to the Defendant and the Plaintiff hath declared accordingly although that one of the Leases be void And the Agreement was That the Plaintiff should assign totum statum titulum interesse suum quae habet in c. It appears here in the Pleading That the Lease was made the eighteenth of October and the Lessee did enter and was thereof possessed Crast Mich. which was before and so the Lessee then entering was a Disseisor But by Coke the same is not a Disseisin although that the Lessee entreth before the Lease made for there was a communication of a Lease although the Lease was not made before the eighteenth of October and peradventure it was by assent of the Lessor in which case it cannot be a Disseisin but be it a Disseisin yet in as much as he hath assigned all his interest quod ipse tunc habuit the Consideration is answered and he hath also delivered both the Indentures of Demise and hath granted all that which he might grant be such Grant void or good it is good Consideration enough as to us Egerton Solicitor contrary In every Action upon the Case upon a Promise there are three things considerable Consideration Promise and Breach of Promise As to the Consideration in our Case the Grant of the Lease which is to begin after the death of the Lessor is merely void And as to the second Consideration it appeareth That the Lessor at the time of the making of the Lease had but a Right for he was disseised for he who was afterwards the Lessee entred before he had any Lease made unto him and so here is not any consideration to ground the Assumpsit upon But admit that there be a consideration yet the Action doth not lie For 19 Eliz. a difference was taken by the Iustices scil When in the Declaration in an Action upon the Case two or more considerations are laid and are not collateral but pursuant As if I owe you an hundred pounds and I say That in consideration that I owe you 100 l. and in consideration that you shall give me 10 l. I promise to pay unto you the said hundred pounds which I owe you If you bring an Action upon the Case against me for the hundred pounds and lay in your Declaration both considerations although you do not pay me the ten pounds yet the Action lieth But where the considerations are not pursuant but meerly collateral and do not depend the one upon the other As in consideration that you are of my Councel and you shall ride with me to York I promise to give to you an hundred pounds there both considerations ought to be performed or otherwise the Action doth not lie and so here in the principal Case the considerations being collateral they both ought to be performed Afterwards upon consideration had of the Case by the Court Iudgment was given for the Plaintiff and it was said by Coke That there was not any Disseisin in the Case but he who entred was Tenant at sufferance by reason of the precedent communication XCVII Curtise and Cottel 's Case Trin. 28 Eliz. In the King's-Bench THE Case was this That one Bonham was seised of a Manor within which there were divers Customary Lands demisable by Copy for three lives The Lord of the Manor did demise some of those Lands to three Sisters Habendum to them for their lives successive for the Fine of 100 l. by them paid and they being seised accordingly the eldest Sister who was Tenant in possession took to Husband one Chapman after which the said Lord by Indenture leased the same Land to the eldest Sister the Remainder to the Husband the Remainder to the second Sister and no Agreement was made thereunto by the second Sister by Deed before or after the making of the Indenture but four days after the Lease made she agreed to it in the Country and then took to Husband Curtise and they entred claiming the said Land upon which Entry the Action was brought The point was That when the Lease by Indenture was made to the eldest Sister at which time no agreement was made by the second Sister who was in Remainder yet when after she agreed If by that Agreement her Right to the Copihold were extinct or not so as the interest of the eldest Sister being gone by the acceptance of the Estate by the Indenture the second Sister might come and claim

upon the floor there so as vi ponderis it fell down To which the Defendant hath said That the walls were ruinous in occultis partibus and doth not answer to the surcharging scil Absque hoc that he did surcharge it Clark Baron It is a general Rule That every material thing alledged in the pleading ought to be traversed confessed and avoided which the Defendant hath not done here but he would excuse himself through the default of another and answer nothing to that with which he himself is charged And afterwards Iudgment was given in the Court of Exchequer for the Plaintiff Whereupon afterwards the Defendant brought a Writ of Error in the Exchequer Chamber where the Case was argued again But there the Iudgment given in the Court of Exchequer was affirmed See this Case reported short in Popham's Reports lately published CXVII Linacre and Rhode 's Case Trin. 31 Eliz. In the Common Pleas. Co. Rep. Blomfield's Case 3 Len. 230. THE Case was That Linacre was bound in a Statute and his body taken in Execution and the Sheriff voluntarily set him at large and afterwards the Conusee sued Execution of the Lands of the Conusor who thereupon brought an Audita Querela It was moved by Yelverton Serjeant That by that voluntary discharge of him by the Sheriff the whole Execution was discharged for the Execution is intire See 15 E. 4. 5. Where the Conusee in a Statute Merchant hath the body and lands of the Conusor in Execution and afterwards the Conusee surrendreth his Estate which he hath by Extent now the Execution of his body is discharged and the Conusor shall have a Scire facias or Audita Querela to discharge his body So if three Conusors be in Execution and the Conusee doth discharge one of them the same is a discharge of them all and in the principal Case the body is the principal and therefore the discharge of the principal part of the Execution is the discharge of the whole Hammon Where the Conusee himself dischargeth the Execution in part it is good for the whole but where discharged by the Sheriff Nihil operatur Anderson If the Conusor dieth in Execution yet the Conusee shall have Execution against his Heir of his land for the having of the body in Execution is not any satisfaction to the party for his body is but a pledge untill the money be paid and there is no reason that the act of the Sheriff should discharge the Execution Windham to the same intent And if the Conusee sueth Execution and hath the body of the Conusor in Execution this day he may the next day sue Execution of the lands and the next day after of the goods and if the Conusee doth discharge the body the whole Execution is discharged and it is true That if A. recovereth against B. in an Action of Debt and B. is taken by a Capias ad satisfaciendum and afterwards the Sheriff permitteth B. voluntarily to escape here B. is discharged although it be not the act of the party for there the Plaintiff had a full Execution which is not here for in Case of Execution upon a Statute-Merchant the Execution by the body is not the full Execution and therefore although the Sheriff hath discharged the body yet the Conusee may have Execution of the goods and lands but not of the body and afterwards Iudgment was given against the Plaintiff That the Audita Querela did not lie and that Execution might be sued of the goods and lands but not of the body CXVIII Webbe and Mainard 's Case Trin. 32 Eliz. In the Common Pleas. IN Ejectione firmae The Case was Walter Goldsmith seised of certain lands made a Feoffment to the use of himself for life and after to the use of John his eldest son in Fee Proviso That after his death his said son shall pay unto his younger son William 30 l. by 3 l. per ann at the Feast of St. Michael untill the entire sum be paid and if he fail of payment then to the use of the said William and his heirs Will. Goldsmith the Feoffor dieth the money is not paid but afterwards the said younger son makes an Acquittance and thereby acknowledgeth the Receipt of the said money according to the Proviso John dieth Now if the younger son may enter And first if the younger son be concluded by that Acquittance to say that the 30 l. was not paid And if he be not concluded Then if because that the words are but words of limitation the younger brother hath Title of Entry and then if this Entry be bound by the descent from John to his Heir or if John by continuance of the possession after the breach of the Proviso be a Dissesor or not were Questions propounded to the Court which the Court took time to consider of yet it was then said That the use was settled in William and the possession executed unto it but not such a possession upon which an Assise or Trespass lieth CXIX Willis and Jermine 's Case Hill. 31 Eliz. In the King's Bench. Rot. 647. IN Ejectione firmae It was found by special Verdict 1 Cro. 167. Roll Tit. Estate 830. That the Dean and Chapter of Exeter Leased the Land where c. to Jermine rendering Rent to be paid at their Chapter-house at Exeter and for default of payment that such Lease shall be void and cease and that the said Jermine conveyed his interest to the Defendant and afterward the Rent was demanded at the Chapter-house but not paid and afterwards The Dean and Chapter by the name of Dean and Chapter of St. Mary of Exeter where they are incorporate by the name of Dean and Chapter of St. Mary in Exeter make an Indenture of Lease for forty years in their Chapter-house to Willis and thereunto put their seal in the Chapter-house and made a Letter of Attorney to another to enter and to make Livery of the said Deed which was done accordingly it was moved by Harris Serjeant That this Lease made in manner c. is not good for the Corporation is misnamed i. of Exeter for in Exeter but the Court disallowed that Exception for there is not any material variance and so it was said it hath been ruled And he said that for another cause the Lease is not good for when the Dean and Chapter in their Chapter-house make this Indenture of Lease Davis Rep. 42. and set their Chapter-seal to it It was their Deed presently without other delivery and then Jermine being in possession at the time of the putting of the seal to it they were out of possession thereof and so the new Lease void because they were not in possession at the time of the making of it for no delivery is necessary to the Deed of a Corporation but the date of the sealing of it makes it a perfect Deed and then the delivery of the same by the Attorney is of no effect Wiat to the

contrary This Lease is good For Jermine was but Tenant at sufferance at the time of this Lease but if Jermine had been a Disseisor then delivery in the Chapter-house was void and then the second delivery upon the land good And Harris agrees That if Jermine be but Tenant at sufferance then the second Lease made of the land was good enough But it was agreed by the whole Court That the Lease is good enough for the manner and there is not other form or means for a Corporation to make a Lease than this here And it was moved That the first Lease was not utterly ceased without entry and then the new Lease being made before entry is void But Wray was clear of a contrary opinion and said That the Dean and Chapter might make such a Lease before entry But Gawdy Iustice doubted of it Vide 28 H. 8. 6. Dyer and Com. 2. and 3. Ph. and Ma. 132. Browning and Beston's Case Harris The Attorney hath not pursued his Authority for his Warrant is to enter into the Land in the name of the Corporation and claim it to their use and then to deliver the Lease made upon the land but the Iury have not found such matter but have found onely that he came by virtue of the said Letter of Attorney and delivered the same upon the land but do not find that he entred and claimed the same to the use of the said Dean and Chapter But the Court held the same good enough for in a special Verdict every particular circumstance need not to be found and in pleading it ought to be and because it is found That the Attorney by virtue of the said Warrant of Attorney hath delivered the Deed upon the Land he hath pursued his Warrant in all Gawdy Delivery of the Deed is as necessary in case of a Corporation as it is in the case of other persons CXX Rymersly and Cooper 's Case Trin. 31 Eliz. Rot. 768. In the King 's Bench. 1 Cro. 168 169. IN an Action upon the Case for slanderous words the Plaintiff declared That where by the custome of the City of London it hath been used If the Mayor Recorder or any Alderman being a Iustice of Peace there might take the Deposition of any person produced before them or any of them to be deposed in perpetuum rei memoriam ex parte alicujus personae which Depositions are there recorded in perpetuam rei memoriam and are good matter to be given in Evidence to any Iury there to inform their consciences of the truth of the thing in Question and declared farther That he himself was produced before one Bond as a Witness to testifie his knowledge in quadam causa ibid. ex parte Edw. Stapleton before whom he deposed c. The Defendant spake these words in scandal of the Plaintiff Rymersly was forsworn in the said oath before c. The Defendant pleaded That the Plaintiff made not any such oath and upon that the Plaintiff did demur in Law. George Crook prayed Iudgment for the Plaintiff for the same is no plea for the oath is but an Inducement and therefore not traversable for the ground of the Action is the speaking of the words and admit there were not any such Oath taken by the Plaintiff the offence of the Defendant was the greater Nam peccavit in utroque tam in juramento quod nullum omnino fuit quam in perjurio quod sine juramento esse non potuit for if one saith A. Murdravit J. S. whereas there never was any such J. S. yet the Action lieth for the scandalous words Also this Plea doth amount but to the general issue See 4 E. 6. Action Sur le Case 113. 34 H. 6. 28. And as to the words they are Actionable for forsworn amounts to purjured being spoken upon on oath taken in a Court of Record and so was it lately holden in the Case betwixt Brook and Doughty Brook and Doughtie's Case Godfrey Contrary The Declaration is not good for the custome in London is not well laid or pursued and therefore upon the matter it is but an oath taken before a private man for he hath declared That in the City of London it hath been used c. but doth not say That the City of London is Antiqua Civitas as he ought See the Case of the Prior of Lantony 12 E. 4. 8. and 22 H. 6. Prescription 47. If a man alledgeth a custome within a Town he ought first prescribe That the said Town is an ancient Town Also it is not set forth in the Declaration That Bond at the time of the Deposition taken was a Iustice of Peace in London and then the custome is not well persued But afterwards the Record was looked upon and allowed to be good by the Court and the Court conceived that the Plea of the Defendant was good enough as 13 E. 4. 8. In Debt against an Abbat the Plaintiff counted upon a borrowing by the predecessor c. the Defendant pleaded That he did not borrow and it was holden a good Plea and yet the Plaintiff in such Case might plead the general issue See 26 H. 8. and 34 H. 6. Br. Action Sur le Case 103. 3. Ma. Dyer 121. The Lord Mounteagle's Case 34 H. 6. 43. by Moile In Trespass Quare servientem suum verberavit c. It is a good Plea to say That he was not the servant of the Plaintiff and if in the principal the Defendant plead Not guilty he should thereby confess that the Plaintiff was sworn Wray chief Iustice The Plea of the Defendant is good And it was moved by Egerton Solicitor general That the custome to take Oath as is alledged is not allowable because it is not a reasonable custome that such Depositions should be taken in perpetuam rei memoriam If there be not a suit depending in the Cause and because that such custome not alledgable it is not reasonable and then the Plaintiff ought not to have Iudgment and such also was the opinion of Wray and Gawdy Iustices But for the default in the Declaration That it is not alledged That London is antiqua Civitas Iudgment was given against the Plaintiff CXXI Alexander and Dyer 's Case Trin. 31 Eliz. Rot. 901. In the King's-Bench IN Debt for Rent reserved upon a Lease for years 1 Roll. 605. 1 Cro. 169. The Plaintiff declared That he leased to the Defendant 37 Sept. certain Lands to have and to hold from the Feast of St. Michael next ensuing for a year rendring 10 l. Rent Virtute cujus 29 Sept. the said Lessee entred and enjoyed the said land from the Feast of St. Michael all the said year and because the Rent was behind c. And upon Nihil debet pleaded it was found for the Plaintiff It was moved in Arrest of Iudgment that upon the Plaintiffs own shewing here is no Rent behind and then no cause of Action for it appeareth in the Declaration that

the Lessee entred 29 Sept. which is before the Term begins For the words of the Habendum are From the Feast of St. Michael therefore the Feast of St. Michael is no part of the Term and then was the Defendant a Disseisor and the day after the Term began which cannot alter his Estate but that he continueth a Disseisor and then he is not in by force of the said Lease and so no Rent can be due Williams As the Declaration is here the same is not any disseisin for the Plaintiff set forth in his Declaration That the Lessee the Defendant hath occupied the Land demised the whole year and so hath not admitted any Disseisin it being in his election to make it a Disseisin or not Clench Iustice Be it a Disseisin or not or be it that the Defendant entreth or not he is to pay the Rent Gawdy The Lessee is a Disseisor and continueth a Disseisor and yet Debt lieth against him for the Rent by reason of the privity of Contract which see Rysden's Case 24 H. 8. Dyer 5. And so in our Case Quod fuit concessum per totam Curiam and afterwards Iudgment was given for the Plaintiff CXXII Monings and Worley 's Case Hill. 32 Eliz. In the King's-Bench Rot. 561. Error IN Debt upon an Obligation brought by Mary Worley against Monings in the Common-Pleas The Condition was That if Mary Worley the Plaintiff in the said Action doth not depart out of the service of the Defendant without license of the Defendant Monings nor marry her self but with his consent Then if the Defendant shall pay to the said Mary within twenty eight days after demand by her made of Monings at his house at Waldersey 100 l. That then c. And the Defendant in the said Action pleaded That the said Mary the Plaintiff in the said Action 4 Maii 30 Eliz. departed out of his service without licence The Plaintiff Mary by Replication said That 6 Septemb. the same year she departed out of his service with licence and that 4 Octob. after she demanded the said 100 l. at Waldersey aforesaid and he refused to pay it Absque hoc that she departed out of his service 4 Maii 30 Eliz. without licence and the Writ bare date 18. of October next after the demand And it was found for the Plaintiff and Iudgment given for her in the Common-Pleas and now a Writ of Error is brought by Monings Tanfield The Iudgment ought to be reversed for always the Replication in such cases ought to contain sufficient Cause of Action and sufficient breach of the Condition or otherwise the Plaintiff shall not have Iudgment although that the Issue be found for him as 7 E. 4. 31. In trespass for taking of goods of A. and B. A. pleads Not guilty B. justifies the Plaintiff makes Title to the goods by a gift B. traverseth the gift and it is found for him against the Plaintiff A. is found guilty Now although A. be found guilty yet the Plaintiff shall not have judgment against him for it is found that he hath not any Title to the goods As in Debt upon a Bond against A. and B. A. pleads Non est factum B. pleads the release of the Plaintiff and it is found the Deed of A. and that the Plaintiff hath released to B. the Plaintiff shall never have Iudgment for upon the Verdict it appears that he hath not cause of Action And here in the Replication there is not a sufficient breach shewed of the Condition for although that Mary hath not departed from the service of the said Defendant yet the same is not material but the Defendant had twenty eight days after the demand to pay the 100 l. but the same is not so here for the Plaintiff hath prevented the Defendant for the demand is alledged to be 4. Oct. and the Writ bears date 18. Octob. the same year and so the Defendant had not his time allowed him Gawdy The issue is taken upon the departure out of his service so as the demand is not now material and therefore the alledging of the same is surplusage and shall not hurt And the Defendant hath pleaded in Bar the departure of the Plaintiff out of his service upon which he relieth and the demand set forth in the Replication is not to be regarded as to prejudice the Plaintiff As 3 Ma. Dyer 115. Lessee for years covenants that he will not cut any Trees The Lessor assigns the breach of the Covenant in succidendo twenty Oaks The Lessee pleads that he did not cut the twenty Trees nor any of them The Iury found that the Defendant had cut down ten Trees The Plaintiff upon that Verdict shall have Iudgment for the rest is but surplusage and more put in issue than there needs to be Fenner It is not any full Plea to say That the Plaintiff did not depart out of the service of the Defendant 4 Maii for if she departeth at any other time she shall not recover for which cause she ought to have pleaded That she continued in his service untill such a day and then she departed with his licence and the inducement to the traverse ought to be sufficient matter otherwise it is not a full Plea nor the Traverse is not good And if it be surplusage yet if it be not matter against her self it makes the Plea naught which see 1 H. 7. 29. 6 H. 7. 16. Gawdy conceived that the Iudgment was well given for the Defendant was at his liberty to plead the departure of the Plaintiff without his licence or to stand upon the demand And now although he pleads the departure yet the demand is not confessed And afterwards the Iudgment given in the Court of Common-Pleas was affirmed CXXIII Bashpool 's Case 27 Eliz. In the King's-Bench THE Case was this The Father seised of Lands Stiles Rep. 148. is bound in an Obligation and deviseth his Lands to his Wife untill his Son cometh to the age of twenty one years the remainder to the Son in Fee and dieth and no other Lands descend or come to the Son from his Father It was moved by Godfrey That the Heir in that case at his Election might wave the Devise and take by descent or è contra See 9 E. 4. 18. by Needham But Gawdy and Shute Iustices 3 Len. 118. were of opinion That the Son should be adjudged in by Descent Clench contrary CXXIV Bennet and Shortwright 's Case Trin. 30 Eliz. In the King's-Bench THE Case was 1 Cro. 206. The Defendant sued the Plaintiff in the Spiritual Court for Tythes in kind and now the Plaintiff prayed a Prohibition and suggested That they had used in the said Parish time out of mind c. to take the tenth Sheaf in satisfaction of Tythe of Corn c. and in those years in which the Plaintiff had supposed the subtraction of his Tythes he had severed the tenth Sheaf from the nine parts and the Parson would not take

Williams and Linford 's Case Trin. 30 Eliz. In the King 's Bench. WIlliam's brought an Action upon the Case against Linford 3 Len. 177. for standerous words spoken of the Plaintiff's land viz. Williams is worth nothing and do you think that the Manor of D. is his It is but a compact between his brother Thomas and him And farther declared That at the time of speaking of the words he was in speech with one J. S. to give to the said J. S. the said Manor of D. for his Manor of K. and that by reason of the said slanderous words 1 Cro. 346 787. the said J. S. durst not proceed in the said intended exchange It was objected That upon this matter an Action upon the Case doth not lie For the scandalous words were not spoken to him who was to be the Purchasor of the said Manor Smith and Johnson's Case but to a stranger For in the Case betwixt Smith and Johnson Johnson was in speech with another to sell his lands to him and Smith said to him who was to purchase them Will you buy Johnson's land Why it is troubled with more charges and incumbrances than it is worth Wray Iustice There is no difference whether words be spoken to the party or unto a stranger for in both cases the Title of the Plaintiff is slandered so as he cannot make sale of his lands Iudgment was given for the Plaintiff CXLVIII Barefoot and Luter 's Case Trin. 30 Eliz. In the King 's Bench. THE Case was A. B. and C. Ioynt-tenants in Fee C. granted his part unto D. and afterwards A. B. and D. Leased for years rendring Rent and afterwards A. died and they brought an Action of Debt for the Rent reserved and declared generally and upon the Evidence the special matter appeared that two parts of the Rent did belong to B. and but the third part to D. And the opinion of the Court was That the Declaration ought to have been special upon the whole matter For Prima facie it was conceived that each of the Plaintiffs ought to have had the moiety of the Rent and that is a supposal of the Declaration But now upon the Evidence it appeareth to the contrary So as the Defendant nil debet in that form Another matter was The Plaintiff declared of Rent of a whole year ended at the Feast of St. Michael last past whereas the Rent was not due at Michaelmas as the Plaintiff had declared but the thirtieth day after CXLIX Brown and Ordinacre 's Case Trin. 32 Eliz. In the King 's Bench. HEnry Brown and Joice his wife Executors of Thomas Brown brought an Action upon the Case against Van Ordinacre Alien and declared That where A. and B. were indebted to the Testator The Defendant in consideration that the Testator respectuaret the said A. and B. pro solutione debiti praedict per spacium unius septimanae tunc proxime sequen to pay the Debt to the said Plaintiffs modo sequent viz. one moyety within one week after and the other moiety at the end of the said week and farther declared That the Testator did forbear by the space of a week and after Imparlance Joice was summoned and severed The Defendant pleaded That he did not promise modo forma prout pra●dict Brown allegavit and that it was alledged by both Executors And by a Iury De medietate Linguae it was found for the Plaintiff It was objected by Coke That here is not any issue prout Brown querens allegavit where in truth it was alledged by both the Executors before severance and not by Brown onely Also here is not any sufficient consideration alledged for the Plaintiff hath declared That he hath forborn by a week without saying next following as the consideration is laid in the Declaration But that was not allowed for so it shall be intended It was also objected That the Declaration is contrary to it self for it shewed That in consideration that the Testator should forbear for a week he promised to pay him within a week but that exception was not allowed For the week in the Assumpsit shall be construed the week after the week in the consideration Another exception was against the trial for the Defendant being an Alien The Venire facias was to summon twelve persons Quorum quilibet eorum habeat 4. l. in lands of annual Rent and that cannot be for Aliens cannot have lands not being made Denizens By the Common Law before the Statute of 27 E. 3. An alien by the Grant of the King might have an Action depending betwixt him and a Denizen per medietatem Linguae which see 22 E. 3. 14. and afterwards to make the same a general Law the Statute of 27 E. 3. was made but the same doth not extend to cases where the King was party which defect was supplyed by the Statute of 28 E. 3. cap. 13. Afterward came the Stat. of 2 H. 5. by which it is enacted That where the debt or damages amount to 10 marks every Iuror retorned for the trial should be able to expend lands of the value of 40 s. which was mischievous as to aliens and for the remedy of that The Statute of 8 H. 6. cap. ult was made which took away the effect thereof as unto aliens Then came the Statute of 27 Eliz. which enacted That every Iuror c. should expend 4 l. lands but that is where 40 s. was required onely and doth not extend to our Case and therefore the Venire facias in our Case was not well awarded To which it was said by the Clarks That after the Stat. of 27 Eliz. It had always so been to make the Venire facias generally according to the Statute but that is not a thing material and the Sheriff needs not regard that Wherefore it was holden That the Venire facias in the principal Case was well awarded CL. Mingey and Earl 's Case Pasc 32 Eliz. In the King 's Bench. IN Debt upon an Obligation The Defendant pleaded 1 Cro. 212 267. That the Obligation was with condition That whereas the Defendant had sold to the Plaintiff certain wood growing upon certain lands called S. in the County of Sussex If the Plaintiff might quietly take and enjoy the said woods and if the ground whereupon it groweth be four miles from the Town of Rye that then c. And for plea he said That the Plaintiff had quietly taken and enjoyed the said wood and that the said land by the next high and usual way for carriages is 4000 paces from the Town of Rye reckoning to every pace five foot upon which the Plaintiff did demur in Law. Gawdy Iustice For the computation of a mile in common understanding it is 1000 paces and if it shall be counted by the common way is the doubt but the meaning of the Parties was That the Plaintiff by felling of that wood should not encur the damage of the Statute of 23 Eliz. cap. 4.

take effect by way of use in the Bargainee and after the Statute to draw the possession to the use But the Court utterly rejected that Exception was dangerous Note Pasch 30 Eliz. it was adjudged for the Plaintiff in the Replevin scil the Conveyance of the Prioress was not well pleaded for it ought to be plead as a Bargain and Sale and not as a grant and Judgment was given accordingly for such was the Conveyance of the greater part of the possessions of Monasteries And by Shuttleworth Serjeant Although such a Corporation cannot take an Estate to the use of another yet they may charge their possessions with an use to another CLXIX Venable 's and Serjeant Harris 's Case Mich. 28 29 Eliz. In the King 's Bench. Quaeries Hughs R. 13. 3 Len. 185. 4 Len. 112. THE Case was a Lease was made to A. and B. for their lives the Remainder to Thomas Venables in tail who 3 Eliz. was attainted of Felony 23 Eliz. was a general pardon Thomas Venables 24 Eliz. levied a Fine and suffered a common Recovery to the use of Harris Serjeant An Office is found Harris traverseth the Office and upon that there is a demurrer Leke argued That traverse doth not lie in this Case 4 H. 7. 7. where the King is entitled by double matter of Record the party shall not be admitted to traverse nor to his Monstrans de Droit but is put to his Petition which see 3 E. 4. 23. in the Case of the Earl of Northumberland 3 Len. 75. where the Tenant of the King is attainted of Treason and the same found by Office See also 11 H. 4. in the Case of the Duke of Suffolk and that is not helped by the Statute of 2 E. 6. cap. 8. For the words are untruly found by Office but here the Office is true By this Attainder Thomas Venables is utterly disabled to do any Act for by Bracton a person attaint shall forfeit Patriam Regnum Haereditatem suam 11 H. 4. one was attainted of Felony and before Office found the King granted over his Lands Also he is not helped by the general pardon for before the general pardon he had a special pardon so as the general pardon non operatur But the Iustices said The forfeiture did remain untill the general pardon Harris contrary And he put the case of Sir James Ormond 4 H. 7. 7. where the King is entitled by matter of Record and the subject confesseth the King's title and avoids it by matter of as high nature as that is for the King Traverse in that case lieth and if the King be entitled by double matter of Record if the party doth avoid one of the said Records by another Record he shall be admitted to his traverse and so here we have the pardon which is a Record and that shall avoid the Record of the King See 3 E. 4. 24. in the Earl of Northumberland's Case and here the pardon hath purged the forfeiture in respect of the offence and he said Tenant in tail being attainted of Felony shall not lose his lands but the profits onely for he hath his Estate by the Will of the Donor and there is a confidence reposed in him as in Walsingham's Case he cannot grant his Estate over and see Wrothe's Case An annuity granted pro Consilio impendendo cannot be granted over or forfeited for there is confidence And see Empson's Case and Dyer 2. 29 Ass 60. If the issue in tail be outlawed of Felony in the life of his father and getteth his Charter of pardon in the life of his father after the death of his father he may enter but by Thorp If the issue in tail getteth his Charter of pardon after the death of his father then the King shall have the profits of the lands during the life of the issue And the Case of Cardinal Pool was debated in the Parliament Cardinal Pool's Case 27 Eliz. That he being Dean of Exeter was seised of Lands in the right of his Church and was attainted of Treason It was holden That he should forfeit the profits of such Lands But admit that by this Attainder the Land be forfeited yet the party hath the Freehold until Office found See Nicols's Case on the Commentaries and see also the Case of the Dutchy in the first Commentaries And here the Pardon hath dispensed with the Forfeiture Tenant of the King alieneth in Mortmain before Office found the King pardons it this is good The Lord Poynings conveyed all his Lands to Sir Adrian Poynings who was an Alien and afterwards is made a Denizen and the King pardons him and releaseth unto him all his right in the said Lands without any words of Grant and it was adjudged the same shall bind the King. And he said that he had found a good precedent 14 H. 7. where a general pardon before seisure into the King's hands was allowed contrary after seisure without words of Grant. See Br. 29 H. 8. Charter of Pardon 52. If a man be attainted of Felony and the King pardons him all Felonies executiones eorundem the same shall not serve for life and Land if no Office be found but it shall serve for the Goods without words of Restitution and Grant for the King is entituled to them by Outlawry without Office but the King is not entituled to the Lands untill Office be found See ibid. 33 H. 8. 71. The Heir intrudes and before Office found the King pardons now the Heir is discharged as well of the issues and profits as of the Intrusion it self and also of Livery But a pardon given after Office is available for the Offence but not for the issues and profits And he cited the Case of Cole in the first Commentaries where a pardon was granted Mesne betwixt the stroke and the death See 35 H. 6. 1. 1 E. 4. 1. 8 Eliz. Dyer 249. Brereton's Case 11 Eliz. Dyer 284 285. Egerton Solicitor to the contrary This Traverse is not good for he that traverseth hath not made Title to himself as he ought upon which the Queen may take Issue for it is at the Election of the Queen to maintain her own Title or traverse the Title of the party At the Common Law no Traverse lay but where the Livery might be sued but that is helped by the Statute of 34 E. 3. cap. 14. but where the King is entituled by double matter of Record as in our case he is no Traverse is allowed until 2 E. 6. cap. 8. And in such case two things are requisite 1. That the Office be untruly found 2. That the party who is to be admitted to his Traverse have just Title or Interest of Estate of Freehold c. But in our case The Office is confessed by the Traverse to be true although that the Conveyance be not truly found Also Harris at the time of the Office found had not just Title but an interest came unto him long time after

the Office found Also the Traverse is not good for he traverseth the matter of the Conveyance which is not traversable for if the King hath Title non refert quomodo or by what Conveyance he hath it As to the matter in Law scil Tenant in tail in Remainder is attainted of Felony if the King during the life of Tenant in tail shall have the freehold and he conceived that he should for it shall not be in abeyance and it cannot be in any other for when he is attainted he is dead as unto the King. The chief Lord cannot have it for Tenant for life is alive and also he in the Remainder in Fee c. the Donor shall not have it for the Tenant in Remainder is not naturally dead but civilly and the Land cannot revert before the Tenant in tail be naturally dead without issue but if there were any other in whom the Freehold might vest and remain then the King should not have the Freehold but onely the profits So if the Tenant be attainted the Lord shall have the Lands presently 3 E. 3. 4 E. 3. The Husband seised in the right of his Wife is attainted of Felony the King shall have but the profits for the Freehold vests in the Wife and if the Lord entreth the Wife shall have an Assise And Tenant in tail may forfeit for his life as he may grant for his life See Old N. B. 99. If Tenant in tail for life dower or by the curtesie be attainted of Felony the King shall have the Lands during their lives and after their deceases he in the Reversion shall sue unto the King by Petition and shall have the Lands out of the King's hands and there it is farther said That the Lord by Escheat cannot have it for the party attainted was not his very Tenant nor he in the Reversion for the term yet endures But now it is to see if the Freehold be in the King without Office and he conceived and argued that it was Where the King is entituled to an Action there the King ought to have an Office and a Scire facias upon it as where the King is entituled to a Cessavit Action of Waste c. 14 H. 7. 21. where the Entry in case of a common person is necessary there it is requisite that there be an Office for the King As if a Villain of the King purchaseth Lands or an Alien born c. so for a condition broken Mortmain c. And in some cases an Office is onely necessary to instruct the King how he shall charge the Officer for the profits which may be supplied as well by Survey as by Office as if the King be to take by descent or as the Case is here And true it is that a person attainted of Felony may during his Attainder purchase Lands and yet he cannot hold it against the King and it is clear that by the Common Law in such cases the Land was in the King but not to grant for the Statute of 18 H. 6. was an impediment to it but now that defect is supplied by the Statute of 31 H. 8. cap. 20. So that now the King may grant without Office See Doughtie's Case 26 Eliz. And in our Case an Office is not necessary to entitle the King but for explaining of his Title and see 9 H. 7. 2. The Lands of a man attainted of High Treason are in the King without Office so where the King's Tenant dieth without Heir or Tenant in tail of the Gift of the King dieth without issue See Br. Office before the Escheator 34. and see 13 H. 4. 270. A man is attainted of Treason the King before Office grants his Lands and Goods Things which lie in Grant as Advowsons Rents Remainder such things upon Attainder are in the King without Office. As to the general pardon of 23 Eliz. he said That that doth not extend to this Case and that this interest of the Queen by this Attainder doth not pass by that pardon out of the Queen so if the Queen had but a Right or Title onely Popham Attorney General By this Attainder the Estate of him in the Remainder in tail accrueth unto the Queen for the life of him in the Remainder for by our Law Felony is punished by the death of the Offendor and the loss of his Goods and Lands for the examples of others therefore nothing is left in the party Tenant for life is attainted of Felony the King pardoneth him his life yet he shall have his Lands during his life and he may dispose of the same for his life And so is it of Tenant in tail for he may forfeit all that which he hath and that is an Estate for his life which is a Freehold If Lands be given to one and his Heirs for the term of the life of another and the Donee be attainted of Felony the King shall have the Land during the life of Cestuy que vie for the Heir cannot have it because the bloud is corrupt and there is not any occupancy in the case for 17 E. 3. the Iustices would not accept of a Fine for the life of another because there might be an Occupant in the case But for a Fine of Land to one and his Heirs for the life of another they would take a Fine for there is no mischief of occupancy Land is given to A. for life the Remainder to B. for life the Remainder to the right Heirs of A. who is attainted of Felony B. dieth now the King hath the Fee executed And here in our Case If the Tenant for life had been dead no Praecipe had lien against him in the Remainder being in possession but the party who hath right is to sue unto the King by Petition 4 E. 3. If one seised of Lands in the right of his Wife for life be attainted the King shall have exitus proficua but he conceived that Case not to be Law For see F. N. B. 254 D. The Husband seised in the right of his Wife in Fee is outlawed for Felony the King seiseth the Husband dieth now shall issue forth a Diem clausit extremum the words of which Writ in such case are Quia A. cujus Terr Tenement quae ipse tenuit de jure haereditate N. uxoris suae adhuc superstitis occasione ejusdem Utlagar ' in ipsum pro quadam Felonia unde indictatus fuit c. in Man. Domini H. patris nostri extiterunt c. therefore the King had not the issues onely but also the Lands See to the same purpose the Register 292. b. Stamford's Placita Coronae 186 187. affirms That Tenant in tail being attainted of Felony shall forfeit his Lands during his life And he said that the Estate of Thomas Venables was in the King without Office not to grant for that is restrained by the Statute of 18 H. 6. but it is in him before Office so as he who hath right ought

to sue to the King by Petition if he will have his Land yet he conceived that before the Statute of 18 H. 6. the King might grant the Land before Office as it appeareth by Thirning 13 H. 4. 278. who was before the said Statute So if the King's Tenant makes a Lease for years the Remainder over to another in Fee who dieth without Heir the Remainder is in the King without Office because a common person in such case cannot enter but a claim is sufficient and therefore it shall be in the King without Office. As to the pardon he said That it doth not extend to this Estate for this is a Freehold ergo not within the pardon As if the King's Tenant be attainted of Felony and the King pardons him all offences and all things which he may pardon these words shall not go nor extend to Freeholds but onely unto personal matters and such punishments and peins which do concern Chattels But it may be objected That by this pardon Title of Quare Impedit and Re-entries for Conditions broken are excepted and therefore if they had not been excepted they had been remitted by the pardon and therefore this pardon shall extend to Inheritances and Freeholds As to that I say That such Exceptions were not in use in the time of H. 4. and yet Inheritances and Freeholds were not taken to be within such pardons and such Exceptions did begin 5 Eliz And he said he had been of Council in such Cases where it hath been taken that such pardons did not extend to Freeholds As an Abbat was disseised and afterwards during the Disseisin the Abby is dissolved the King makes such pardon the same doth not transfer the Right of the King and in that Pardon are divers Exceptions of Goods and Chattels in many cases and therefore it cannot be intended that the pardon doth extend to Freeholds And see the said Act of pardon The Queen grants all Goods Chattels Debts Fines Issues Profits Amercements Forfeitures Sums of Moneys which word Forfeiture shall be intended of a personal Forfeiture non aliter for it is coupled with things of such nature And as to the Traverse he said It did not lie in this Case for the Office is not untrue but true in substance although void in circumstance And also the King here is entituled by double matter of Record scil the Attainder and the Office and he said that the Statutes of 34 and 36 E. 3. which gave Traverse are to be intended of Offices found virtute Officii and not virtute Brevis for then Efcheators were very troublesome And the Statute of 2 E. 6. doth not give Traverse but where the Office is untruly found as if Tenant of the King be disseised and the Disseisor be attainted the Queen seiseth the Land Now the Disseisee hath not remedy by Traverse upon the Statute of 2 E. 6. but is put to his Monstrans de Droit for the Office is true But if I be Tenant of the King and seised of Land accordingly and it was found that J. S. was seised of my Land and attainted c. whereas in truth he had not any thing in my Land there Traverse lieth for the Office is false and so in our Case for the Traverse it is at the Common Law and it was true that Venables was seised Coke to the contrary and he said That by the Attainder the Queen hath gained but a Chattel and that notwithstanding this Forfeiture if Venables had been in possession a Praecipe should be brought against him And where it hath been said by Mr. Attorney That Writs set down in the Register are the best Expositours of our Law the same is not so for the Register saith That Waste lieth notwithstanding a Mesn Remainder which is not now Law but it hath been clearly ruled to the contrary and see accordingly 50 E. 3. the Register therefore and the Writs are subject to the Iudgment of our Law and the Writ of Diem clausit extremum is not to the contrary for I confess that in such case the Land shall be seised into the hands of the King but the King shall not have but a Chattel therein It hath been argued It may be granted Roll. Tit. Grant. 4 Len. 112. ac Godb. 351. a. therefore it may be forfeited Nego Consequentiam for a man seised in the right of his Wife may grant but not forfeit Gardian in Socage may grant but not forfeit the Husband may grant a term for years which he hath in the right of his Wife but he cannot forfeit it A woman Inheretrix taketh a Husband who afterwards is attainted of Felony the King pardons him they have issue the Husband shall be Tenant by the curtesie which proveth that the King hath not the Freehold by that Attainder Before the Statute of Westm 2. Tenant in tail post prolem suscitatam might forfeit his Lands but now the Statute hath so incorporated the Estate tail to the Tenant in tail that it cannot be devested even a Fine levied by him ipso jure nullus although as to the possession it be a Discontinuance and that is the reason wherefore Tenant in tail shall not be seised to another's use See Stamford 190. The Husband seised in the right of his Wife is attainted of Felony the King shall have the profits of the Lands of the Wife during the life of the Husband c. So if Tenant in tail be attainted of Felony and that is but a Chattel in the Lands of the Wife and also in the Lands of the Tenant in tail and if the possessions of a Bishop be seised into the Queen's hands for a Contempt in such case the Queen hath the possession and not the profits onely the same Law of the Lands of Tenant in tail or for life being attainted of Felony so of seisure for Alienation without license or of the possessions of Priors Aliens See Brook Reseiser 10. So where the Seisure is for Ideocy And he said That in the principal Case nothing is in the King until Office and as to the Case of 13 H. 4. 6. he confessed the same for at that time many and amongst them Lawyers and Iustices were attainted by Parliament and so was Sir John Salisbury whose Case it was and their Lands by Act of Parliament given expresly to the King and therefore I grant that their Lands were in the King before Office. Tenant in Fee of a common Lord is attainted of Felony his Lands remain in him during his life until the Entry of the Lord and where the King is Lord untill Office be found but in the Case of a common person after the death of the person attainted they are in the Lord before Entry and in the Case of the King before Office for the mischief of abeyances And see the Lord Lovel's Case 17 and 18 Eliz. 485 486. Plow where it is holden That upon Attainder of Treason by Act of Parliament the Lands were

extend ad onerand personam of the Grantor for here the Proviso is rather an Exception than a Condition A Lease for years without impeachment of Wast Proviso that he shall not do voluntary Wast the same is a Qualification of the liberty for doing Wast Grant of a Manor Proviso that it shall not extend to wood growing upon the Manor the same is an Exception not a Condition See the Bishop of York's Case 5 Eliz. Dyer 222. The said Bishop made a Lease for certain years of certain Lands Proviso quod tempore vacationis the Rent shall be paid to the Chapter It was holden that the Proviso was not a Condition And here in this Case the Will of George Scott was That the Recoverors should make to the said Hugh a favourable Lease which cannot be if it be a conditional Lease Another point was because the Rent is not well demanded for he hath demanded the whole Rent of the year whereas but half a years Rent was onely due Coke contrary where the Proviso is parcel of one sentence which contains a Covenant or abridgeth the Covenant there it shall not amount to a Condition but to an Exception as a Grant of a Rent-charge Proviso that he shall not charge the person abridgeth the force of the Grant so a Lease without impeachment of Wast Proviso that the Feoffee shall not do voluntary Wast the same abridgeth the liberty But in our Case this Proviso makes a Condition and not a Qualification of the sentence or of any Covenant contained in the sentence nor doth it participate altogether with the sentence but stands substantively for it was a full sentence before A Feoffment in Fee with Warranty Proviso that when he is impleaded he shall not vouch J. S. the same is a good Condition for J. S. is a stranger contrary that he shall not vouch the Feoffor And a Proviso never makes a Covenant and therefore it shall be either a Condition or void And he said That by the devise Hugh Scott had a Lease without any Lease to be made by the Recoverors As unto the demand of the whole Rent where but half a years Rent was due the same is good enough And so was it adjudged in a Case betwixt Andrew's and the Lord Cromwell for he is at his peril to pay the one moyety and in as much as he denieth the whole he denieth every part It was adjorned CLXXI. Hawkins 's Case Mich. 29 Eliz. In the King's-Bench ONE Hawkins was seised of three Messuages in Bury in his Demesit as of Fee and had issue Robert Christian and Joan Postea 193. 1 Cro. 53. 3 Len. 180. and devised all his said Messuages to his wife for life the remainder of one of the said Messuages to his son Robert and his heirs the remainder of another of his said Messuages to his daughter Christian and to her heirs and the remainder of the third Messuage to Joan and her heirs And farther by his Will devised That if any of his said issues die without issue of his body that then the other surviving shall have totam illam partem c. between them equally to be divided The Devisor dieth the wife of the Devisor dieth Joan dieth having issue Robert dieth without issue Christian entreth into all the house of Robert and dieth and her husband holds in as Tenant by the Curtesie Coke The surviving child shall have the whole and the issue of Joan shall have nothing and he said That by this Devise they have an Estate in tail for the Fee doth not vest in any of them for it is written Who shall survive But when one overlives he shall have in Fee for these words totam illam partem go to the whole Estate as well as to the whole Land. I devise my Land wholy to one he hath Fee thereby And he said that the three Devisees have Fee-tail and Fee expectant each severally as to the Messuage to him limited Golding contrary Each hath an Estate tail in the house devised to him and but an Estate for life expectant upon the death of the other without issue for there are no words by which it may appear what Estate he shall have by the survivorship I grant the Case which Perkins denies but Littleton affirms scil A Devise to one of lands in perpetuum for there the intent appeareth But where there are not words of Inheritance nor words amounting to so much then it shall be but an Estate for life And as to the words totam partem illam the same is all one as if he had said partem illam without the word totam And also he said That where one onely survives no farther the Estate vests for there ought to be two to take by the survivor for the words are Equally to be divided betwixt them And then if it cannot accrue by survivor then it shall descend and if it had accrued to two by the survivor they shall be thereof Tenants in common not Ioynt-tenants by reason of these words Equally to be divided Clench Iustice The words Totam illam partem go to the house and not to the Estate in it Shute Iustice accordingly and he said If both daughters had survived they should have Fee in the house of Robert but not by the Will but by descent in coparcenary Also when two are dead the son and one daughter then it cannot be divided therefore the Will as to that is void and then the common Law shall take place and put the house to the issue of one daughter and of the other daughter surviving Gawdy Iustice Here is but an Estate for life in the survivor It hath been objected That then having but an Estate for life the same Estate is drowned by the descent of the Fee-simple so as now the Estate limited by the Will is void To which it may be answered That although now upon the matter it be void yet Ab initio it was not so for it became void by matter of later time scil by the descent of the Fee-simple for if one of the daughters had died without issue before the death of Robert so as the house of such daughter should have come to the said Robert and the other sister there is no coparcenary for the son hath all the Fee and the moyety of the same is executed and the other moyety expectant and the sister hath a moyety for life and then the Devise not void Also here are not two survivors so nothing is to be divided and therefore the Law shall say that the house of Robert is descended scil the Fee of it to the daughter of Christian and Joan and so Iudgment was given against the husband who claims to be Tenant by the Curtesie of the whole Messuage CLXXII Wye and Throgmorton 's Case Pasc 27 Eliz. In the Common Pleas. IN Debt upon a Bond by Wye against Throgmorton The Condition of the Obligation was to perform Covenants in a pair of Indentures And the

of the breach of the Condition the Lessor was not King. Forbisher and Bunny's Case The Case betwixt Sir Martin Forbisher and one Bunny was that the Queen made a Lease of Dutchy Land upon Condition which was broken It was holden that here there needs not any Office for the Queen had those Lands severed from the Crown by Parliament and they passed by the Dutchy Seal by Livery and attornment of the Tenants The Queen leaseth for years Proviso that the Lessee shall not alien such alienation against such a Condition ought to be found by Office and therefore at this day where a Forfeiture is given to the King c. by Statute the words are That the King shall be seised without Office And as to the Relation of an Office he said That an Office may have a Relation as to mean profits but not as to vest the interest from the time of the Title accrued And although that in the Grant of the Queen to Sir Thomas Henage there be these words Non obstante the not finding any Office yet in this case an Office is necessary for the Queen cannot dispense with the Law so to alter or change the Law as to make Lands in Borough-English descendable at the common Law So if the King make a Lease for years with clause of re-entry and afterwards grants the Reversion over to a Subject and farther grants that if the Rent be behind that the Lessor may re-enter without demand yet the Grantee ought to demand the Rent And as our case is here there needs not any Office to entitle the Queen to the Mean profits for although that the Rent was not paid at the day yet it was paid after and all Rent due afterwards and Acquittances given for the same which matter we have specially pleaded to the intent aforesaid upon which the other side have demurred and thereby have confessed it c. But this Office doth not give any interest to the Queen in the thing leased for she hath granted them over before by which she hath disabled her self to take advantage of the Condition aforesaid for she hath surceased her time 8 H. 5. Traverse 47. Tenant for life forfeits his Estate and before the King seiseth The Tenant for life dieth he in the Reversion may enter and the King shall not seise for the King hath surceased his time And if the Queen should have advantage of this Condition she should avoid her own Grant which should be a great inconvenience The Queen leaseth for years Proviso that the Lessee shall not do Waste the Queen grants over the Reversion after Waste done Office is found the Queen gains nothing by it It was agreed in the Case betwixt Knight and Beech 28 Eliz. That the Grant of the Queen Mesn between the award of the Commission and the Retorn of it was good for the Title of the Queen appeareth of Record although that the Commission was not retorned before the Grant made And if an Office should relate unto the time of the Condition broken it should be in vain to argue that point for in the said case it was holden a Record when the Iurors had put their Seals to it before that it be enrolled The acceptance of the Rent and the Acquittances thereof are pleaded 1. To prove that there is no cause to find an Office in this case for the Queen is answered the Mean profits 2. To prove that the Queen hath waved and refused to take the benefit of the Condition but not to conclude the Queen and then you cannot force her to take the benefit of the Condition As the King Lord and Tenant the Tenant dieth his Heir within age the King accepteth of the Services of the Heir and afterwards grants over the Seignory after Office is found the King shall not have the Wardship c. At another day it was argued by Popham Attorny General for the Plaintiff and he said That upon not payment of the Rent the Lease is ipso facto void without any Office found thereof and that by reason of these words shall not be void for he said it is not a Condition but rather a limitation As if the King make a Lease to three for eighty years si tam diu vixerint one of them dieth the Lease is determined without Office So a Lease made vy the Queen for years so long as the Lessee shall pay the Rent reserved or so long as the Lessee shall there inhabit In these cases upon a Lease made by a common person the Lessor before Entry might grant over and the Grantee shall have advantage of it for it is a limitation and by the limitation the Lease is determined before the Grant contrary if it had been by words of re-entry A Lease for sixty years Proviso that if the Lessee shall die within the term that the Lease shall cease the Lessor grants the Reversion over the Grantee shall take advantage thereof by the common Law See the Case 11 H. 7. 17. it is a limitation and not a Condition And he said in this case an Office is necessary not to avoid the Lease for that was void before nor to punish the Lessee as a Trespassor or to fine him for the continuance of his wrongfull possession but to make him responsable as an Accountant In the Lease of a common person where the clause is That the Lease shall cease If after the Rent behind the Lessee continueth his possession yet the Lessor shall not punish the Lessee as a Trespassor before his Entry for the Lessee by his continuance is but Tenant at sufferance for his first Entry was lawfull And he agreed the Books 14 H. 8. and 2 H. 7. That such advantages that a common person cannot have without Entry the Queen cannot have without Office But a common person before Entry cannot punish another by way of Trespass therefore neither the Queen without Office shall punish one as an Intruder And as to the Case now lately adjudged betwixt Knight and Beech the same doth not extend to our Case Knight and Beech's case for there an Office was requisite before the Grant of the Queen because the per-close of the Condition was That the Prior should re-enter and it is very clear That Chattels vest in the Queen without Office. And in this Case an Office is necessary for two purposes 1. To make the Grant good 2. To make the Occupier accountable for the Mean profits and to give recompence which the Queen is not enabled unto without Office. And here the Patentee shall have advantage of the cesser of this Lease For 1. He hath the Inheritance lawfully and 2. The Lease is determined If there were no Non obstante in the Letters Patents the said Lease ought to have been recited if it had not been determined and if it be determined as this case is it ought to be recited if there were not a Non obstante for non constat to the Queen if it

be determined or not And he said That Leases which are of Record are to be recited in Patents of the King but not those which are not of Record for Leases on Record may be easily found but contrary of Leases in Fait but in our case all is helped by the Non obstante for the words of the Letters Patents are Non obstante That no office be thereof found misrecital or non-recital of the former Leases c. It hath been objected That because that the Law of the Land is That in Grants of the King all former Estates ought to be recited the Non obstante of the Queen shall not help it To that he said That where the Law makes for the Queen there the Queen for a particular respect may dispense with the Law. If the Queen be deceived by the not recital that makes the Letters Patents naught but if the Queen be not deceived by the not recital the same shall not hurt And it is clear That the Queen may dispense with a Statute Law although perhaps not with the common Law The Queen grants upon suggestion if the suggestion be false the Patent is void because the Queen is deceived in her Grant and if the suggestion rest in Articles and some of the Articles be false the Patent for that is void but if in the Patent such clause be That be the suggestion true or false the Patent shall be good If the King seised of a Manor to which an Advowson is appendant grant the Manor cum pertinentii● the Advowson shall not pass But if the Grant be in tam amplis modo forma c. prout ipse Rex tenuit the Advowson shall pass And he said That the Office here is not necessary to determine the Lease but to enable the Queen to punish the Lessee for the continuance of his possession And if the conclusion of the Condition had been by way of re-entry for non-payment of the Rent and after the Rent is behind and afterwards the Queen accepts the Rent due after the Queen is not bounden by that but upon an Office found she shall avoid the Lease Drew Serjeant contrary and he said That here is a condition but not a limitation for here is the natural word of a Condition scil Proviso Some Cases put by Popham are Conditions and not limitations As a Lease for years Proviso that if the Lessee die within the term that then the Lease shall be void the same is a Condition And in many Cases many words less apt than these in our Case shall make a Condition As a Feoffment dummodo solvat c. And he said That without an Office the Lease is not void See 35 H. 6. 57. The King giveth to Religious use certain Lands ad effectum to find a certain number of Monks to hold in Frankalmoign the King in that case cannot have Cessavit for the Services are not certain but if it be found by Office that they have not their number or do not make their Prayers the King shall cease by Br. Tit. Offic. 4. And he said that this was often done in the time of Hing Henry the eighth Lands given Habend pro erectione Collegii Cardinalis Eborum c. Where the King is to have Lands but as a pledge as for an Alienation without licence Office ought to be found of such Alienation So of a Feoffment made to an Alien otherwise it is in case of necessity because the Freehold cannot be in abeyance Tenant of the King is attainted of Treason before 33 H. 8. the King shall ha●●●●e Land in point of common Escheat untill Office be found and afterwards by force of the Attainder So if the Tenant of a Subject be attainted of Treason before Office found the Land shall be in the Lord but after Office it shall be in the King 7 H. 4. If the King's Tenant dieth his Heir within age the King may seise the Body and grant it over without Office but not the Lands See for the same 5 E. 6. Br. Office 55. in the Case of Charles Brandon 35 E. 3. Villainage 22. The Villein of the King purchaseth Goods and Chattels the property of them is in the King before Office or seisure but in the case of lands he ought to seise If this had been the case of a common person the Lease should not be avoided without demand therefore neither in the Case of the King without Office For as the Lease it self was made by matter of Record so it ought to be avoided by matter of Record otherwise it shall not be taken void in Law notwithstanding that the words are That the lease shall be void By the Statute of 11 H. 7. Alienations and Discontinuances by Women are made void the same ought not to be holden altogether void as betwixt such Women and the Alienee but onely betwixt the Woman and the Heir the Statute of 1 Eliz. enacts That all Leases made by a Bishop above the term of twenty one years shall be void the same shall not be construed to be void but onely as to the Successor for it shall bind the Lessor himself as it was adjudged 5 Eliz. in the Case of the Bishop of Bath As unto the Office here in our case the same shall not enure to avoid the Lease but onely to enable the Queen to punish the party for the Mean profits after the breaking of the Condition But in our case nothing is due to the Queen for the Mean profits for we have shewed the payment of all the Rents and the Arrearages thereof after the breach of the Condition and before the Grant of the King and therefore this Office being for no use shall be void unless it had been found that the Land was of more yearly value than the Rent c. As in the case of common experience of Chantries the Lands shall not be intended to be of greater value than the Rent to be paid out of it if not that it be found by Office When the Queen hath after received the Rent and granted over the Reversion now the Forfeiture is purged not by way of conclusion but it amounts to as much as if the Queen had said That she would not take benefit of it 4 H. 6. Champernoun's Case The King by taking in Ward of the Heir of the Donee hath waved the Heir of the Donor See Plow in the Lord Barkley's Case 3 Eliz. 237. and F. N. B. 143. And here in our Case when the Queen grants over the Reversion here the whole use of an Office is gone for no Office shall be found for the benefit of a Subject and as to the Queen no benefit shall accrue unto her by such Office for if she by such Office shall be entituled to the possession she should avoid her own Grant of the Reversion for she ought to have as great an Estate by the breach of the Condition as she had at the time of the Condition And in this Case

the Office comes too late for the Queen c. as in the Lord Lovel's Case Plow 18 Eliz. 482. A Lease for years is made unto an Alien upon condition that if the Alien pay such a sum of Money to the Lessor at any time during the Lease that he shall have Fee the Alien is made a Denizen the Money is paid and all that is found by Office The Queen shall not have the Fee for at the time of the vesting of the Fee the Lesse was Denizen and the Office shall not relate to the time when the Fee vests and no farther but to avoid incumbrances and so in such Case the Office comes too late And if the King's Villain purchaseth Lands and the King make him free and afterwards Office is found the same shall not entitle the King but the Villain manumitted shall hold the Land So in our Case the Queen after this Grant shall not take the benefit of this Office or breach of the Condition found by it And afterwards Manwood chief Baron gave order That those who do argue after shall speak but to two points 1. Where the Queen Leases for years rendring Rent payable at the Receipt at West in which Lease there is a Proviso That if the Rent be behind the Lease shall be void If now the Rent not being paid the Lease shall be void without any Office 2. To what effect an Office now shall be being found after the Queen hath granted the Inheritance over At another day Owen Serjeant argued to the contrary and he said the Lease is void without any Office for as a Lease for years may be made by contract so it may be avoided by words of contract otherwise it is of Freehold So that a Lease shall be avoided without entry 6 E. 6. 137 138. Plow Browning and Beston's Case Offices are of two sorts First entituling the Queen as purchase of an Alien purchase of Villain alienation in Mortmain and Offices informing the Queen where she hath interest in the Land before as in our Case here Admit that the Office was necessary to find the breach of the Condition the Patentee shall take the benefit of it for being found by Office that the Queen hath made such a Lease with condition to be void for non-payment of Rent and that at such a day the Rent was behind now being of Record every Subject shall take advantage of it As where a Husband makes a Feoffment in Fee upon condition of the Land of his Wife and dieth If the Heir enter for the Condition broken now may the Wife enter upon him for now the discontinuance is avoided See 11 H. 7. 17. Where the Grantee of the Reversion shall take advantage of a condition ut supra concluding That the Lease shall be void And see 136. Plowd Browning and Beston's Case And although after the default of payment the Rent due afterwards was accepted yet that shall not conclude the Queen for this acceptance is not under the great Seal but onely done by the Office Also the Lease being void for the non-payment cannot be made good by acceptance afterwards Atkinson contrary Although that the Lease be void de facto yet until it appeareth to the Court the Court cannot say it is void or not void therefore Office is necessary to ascertain the Court The Queen is a body Politick and the chief body Politick above others because she is the Maker Authour and Creatour of all other Corporations and that is the reason that the King cannot speak without writing and this is the most solemn writing i. Writing of Record So she cannot take but by Record And in our Case it doth not appear by any writing of Record the Rent was behind and it is agreeable to the Majesty of a King to do nothing without matter of Record which see 4 Eliz. in the case of the Dutchy And he said there is no difference betwixt the Case in 2 H. 7. and our Case In each Case it is a Lease for years Rent reserved in this onely differing that there is a clause of re-entry and here the conclusion of the Condition is that the Lease shall be void but in both Cases none can say that the Rent is behind untill it be found by Office therefore none can say that the Lease is void untill Office found See by Thorp 35 E. 3. Chattels personals of the King's Villains are in the King without office for such things may be lost or worn contrary of Chattels Reals as a Lease for years for Land cannot but continue and such things which may be in the King without writing he may grant without writing as a chain of Gold or a Horse Deodands Felons goods Wreck c. vest without Office because Chattels personals See 20 E. 4. 11. contrary when they are Chattels reals and permanent for there an Office is necessary In the Case of year day and waste an Office ought to be found Ergo à multo fortiori in case of a Lease for years which is a greater interest c. 49 E. 3. 11. There is a general Rule Quo modo quodque ligatur eo modo dissolvitur That which passeth by Livery ought to be reduced by re-entry that which begins by Record ought to be determined by Record and here in our Case the Land cannot depart from the King without Record therefore it shall not revert without Record although that the breach of the condition be but matter of fact yet the proof of that ought to be of Record And here in our Case is a condition and not a limitation And he said that in the Case often cited before of 11 H. 7. 17. it is a limitation and not a condition For if it were a condition the Grantee by the Law could not take advantage of it because not privy and he was clear of opinion that where the words are That the Lease shall cease or shall be void yet in such cases there ought to be an Office for in Leases of the King there needs no re-entry because the King to speak properly cannot re-enter And the words That the Lease shall be void do amount to words of re-entry and he said That in the Case of a common person upon such a condition broken the Land shall not be in the Lessor without re-entry no more shall they be here in the Case of the Queen without an Office Also the Rent reserved upon this Lease was behind and the Lessee continuing the possession the Queen by acceptance of the Rent hath affirmed the party Tenant and afterwards granted the Reversion over before any Office found of that matter Now the Lessee is discharged and shall never be impeached for the said Rent behind and the Grant Ex certa scientia c. after found shall not defeat this Grant by any relation And the Queen by her Grant hath included all the advantage which accrued unto her by the breach of the Condition and as to that which hath

been objected That in the Letters Patents there are these words Notwithstanding the not finding of any Office c. truly the same makes the matter more clear for us for by these words it is apparent that the Queen would not have an Office found if so then the Land passeth as in Reversion and the Queen may dispense with a thing concerning her self as of late it was adjudged in the Case of one Michel The Queen makes a Lease for years rendring Rent Si petatur It was holden in such case that the Rent in such case ought to be demanded by the Queen's Officer and in such case the Queen may well enough dispense with her Prerogative and here the Queen conceived that she should not have an Office nor have her Title found by it Manwood chief Baron The Queen leaseth for years upon condition That if the Lessee doth not marry within two years that the Lease shall be void whether here there ought to be an Office or not Atkinson said That here ought to be an Office. At another day It was argued again by Godfrey This Lease is not void Ipso facto for the not payment of the Rent which is but matter in fact and as this Lease hath his beginning by matter of Record so also his end shall be by matter of Record In cases of a common person there ought to be a demand therefore in case of the King an Office Hob. 331. 3 Co. as in the Case of a common person demand ought to be as well where the Condition is by way of re-entry as that the Lease shall be void therefore in both Cases in the Case of the King there shall be an Office and he said That if the Lease and the Condition be in the Case of a common person that the Lease shall be void without any demand of that Rent then there needs no demand for demand is a part of Contract and here before Office found the Lease is not merely void for a Release unto the Lessee before Office is good and the Queen is not entituled to the profits before office found It was argued by Coke to the contrary The Lease is void without any demand without any Office for it is parcel of the Contract to be so void and he said That this Lease before Office is void in interest and property but not in possession Where a common person shall not have the Land without Action the King shall not have it without Office and Scire facias as Cessavit Wast contra formam donationis c. and where a common person shall not have before Entry the King shall not have before Office for Office is in the place of Entry Wardship Mortmain It is clear in the Case of a common person That if the Condition be that the Lease shall be void without any demand that there demand is not requisite therefore nor in the Case of the King See Browning and Beston's Case Plowd Com. 136. That such a Lease with such a Condition after the Rent behind cannot be made good And it is a general rule That where the certainty of the term appears by Record and the King is to have but a Chattel in it there the King upon matter in fait shall have it without Office as the Temporalties of the Bishop upon his death which is matter in fait See F. N. B. 174. The Widow of the King marries her self without licence of the King the King shall seize the Lands and that without Office and there the marriage is matter in fait The King leaseth for years upon condition that if the Lessee marry that then the Lease shall be void If the Lessee marry her self the Lease is void without any Office and if so then every stranger in the world shall have advantage of it as the Case is 11 H. 7. as was the Case of Ralph Thomas Ralph Thomas's Case The Husband seised of Land in the right of his Wife leaseth for years and afterwards he and his Wife levied a Fine to a stranger the Husband dieth the Conusee shall avoid the Lease because it was merely void by the death of the Husband So of a Rent charge granted by the Husband c. But although this Lease be merely void yet a Bill of Intrusion doth not lie against the Lessee before Office for in such case a common person shall not have Trespass before entry but yet if the Lessee dieth after the Rent behind ut supra the Lease shall not be said Assets to the Executors for the not payment of the Rent is a nullity of the Lease by the intent of the original Contract And also the Lessee is not become Tenant at sufferance after the Condition broken for Tenant at sufferance takes the profits to his own use also none can be Tenant at sufferance to the Queen for then he should have the profits of the Lands by Laches which shall never be imputed to the Queen Now it is to see To what purpose this Office is A common person makes a Lease upon condition that if the Lessee alien part and that be found by Verdict that the Lease shall be void the Lessee alieneth part the Lessor grants the reversion over after the alienation is found by Verdict the Grantee shall have advantage of it if the Case had been That if the Rent be behind and Office found of it that the Lease should be void the Rent is arrear and the King grants the reversion and afterwards Office is found now the Lease shall be void against the Grantee Also this Office shall have relation and comes in as good time as if it were found before the Grant Tenant of the King alieneth in Mortmain the King grants over the Seignory Office is found now by this Office the King is entituled not unto the Land but unto the profits before the Office And although the Queen hath granted the reversion over yet she hath not granted inclusive the mean profits A common person hath a Rent which is arrear he grants the Rent the arrearages do not pass As where the King is seised of an Advowson which becomes void and afterwards grants the advowson to another the avoidance shall not pass thereby Giles's Case and that was Giles's Case See 16 H. 7. 7 8. And in our Case This Office doth not entitle the Grantee for how can an Office entitle a common person If the Lease were but voidable perhaps so long as the Lease should continue unavoided the Queen should not be answered the profits contrary where it is void And a common person shall have advantage of it Egerton Solicitor general to the same intent And he said that this Lease is altogether void in privity property right and term In the Case of a common person after the Rent behind in such case the Lessee should be Tenant at sufferance which cannot be in the King's Case and if Tenant at sufferance then no privity for a Release

by the Lessor to the Lessee cannot enure and that for want of privity Lit. 109. And such Lessee cannot attorn and if the Lessor after that accepts of the Rent the same doth not make the Lease good and all for want of privity therefore here is no privity As to property such a Lease shall not be said Assets in the hands of an Executor nor shall be sold upon an Extent nor forfeited by outlawry And here in this Case the Queen cannot be said to take any thing by the breach of the Condition but hath her reversion discharged of the Lease and he said That the Office is found well enough for time and it shall relate to the time when the title accrued that is when the Rent was behind and the arrearages of the Rent do not pass by the grant of the Land or the reversion The Queen hath a Rent-charge out of Lands which is behind the Lands come to the Queen and she grants the same over yet she shall charge the Lands with the said arrearages but contrary in case of an injury done upon the Land of the Queen As the Tenant of the King aliens without licence and afterwards the Lands so aliened came to the King's hands who grants them over the Grantee nor the Land shall be charged but onely he who was party to the alienation his Lands and his Executors So of an Intrusion Tenant for life of the King makes a Feoffment in Fee the King grants over the reversion and afterwards the tortious Feoffment is found by Office this Office is soon enough for time and the Grantee of the reversion shall have advantage of it and the King the mean profits from the time of the alienation and afterward in Mich. Term 33 Eliz. the Case was argued by the Barons Clark Puisne Baron The Lease is conditional and with a limitation also so conditional and limitation mixt together 3 Ass 10. Land given to one untill he come from foreign parts Lands given to one so long as he shall continue sole is an Estate for life with limitation upon her marriage so during the coverture c. and these limitations are not collateral but begin with the Estates when the Estates are limited but conditions always come when the Estate is settled as it is in our Case yet if the intent and substance of the Contract betwixt the King and the Subject be well considered there shall not be any difference c. Lands devised to one Proviso That if the Devisee shall disturb the Executors of the Devisor his Estate shall be void and the land remain over c. the same is a good remainder for it is a limitation conditional See Scholastica's Case Plowd Com. 14 Eliz. 413. concerning an Estate tail with a limitation And Fitz. James Case there put by Dyer See Browning and Beston's Case before cited and Martin Dockra's Case where a condition is conceived in words of Covenant c. Gent Baron argued to the same intent Manwood chief Baron to the same intent The Rents reserved upon the Leases of the Queen are to be paid to Receivors Baileys or at the Receipt of the Exchequer The Queen shall not make any demand of her rent for she hath an infinite number of Farmors and if demand be necessary she were to send an army of Receivors or Baileys to receive and demand her rents If the Rent of the King be to be paid at the Exchequer if the King 's Fermor be there and tender the rent at due time and none be there to receive it he hath saved his Lease for he hath done his possible endeavor although the words of the Condition in the Lease be behind and unpaid yet not tendred shall be understood as in the common case of Mortgages and Obligations But in all the Record before us there is no words of any tender therefore according to the words of the condition the Lease is meerly void and determined in right in privity and in tenure for so is the pleasure of the Prince expressed in her Letters Patents under the great Seal of England That it shall be then void and of no effect Then i. whensoever the Rent shall happen to be behind and therefore as soon as the Rent was behind the Lease was determined so that if after the non-payment a stranger had entred upon him scil the Lessee upon which he brings Ejectione Firmae the Defendant might have pleaded the special matter against him Iudgment if Action so as the Lease is void in Right It is also void in Privity and Tenure for a Release to such Lessee after the Rent is behind is altogether void for he was not then Lessee and so the privity is gone and no acceptance can make such Lease good And if such a Lessee after his Rent would surrender and in consideration of such Surrender obtain a new Lease from the Queen this new Lease is also void for here upon the matter is no surrender Also such a Lease is void in property for if the Lessee in such case dieth his interest such as it is shall not be accounted Assets in the hands of his Executor upon the breach of this Condition for the Rent although that the Lease be become void yet the possession of the land is not resetled in the Queen without Office and although the Office doth not make the Lease void which was void before for non-payment of the Rent yet before Office found the possession is not vested in the Queen for before Office found we cannot award Process against such a Lessee for his continuing the possession after the Rent behind and untill Office found the Lessee cannot be found an Intruder and Tenant at Will he cannot be for no other Will appears of the Queen but that in the Letters Patents and that is to have the Lease void whensoever the Rent shall be behind and that Estate is gone because the Rent is behind Tenant at sufferance he cannot be in this case In case of a common person when Lessee for years holds over his term he is become Tenant at sufferance and such a Tenant shall not pay Rent for it is the folly of his Lessor to suffer his Lessee at sufferance to continue possession of the Land after his term so as every Tenancy at sufferance is made by the Laches of the Lessor which Laches cannot be imputed to the Queen therefore here this Lessee when the Condition is broken is not a Tenant at sufferance nor shall have the profits of the Lands to his own use but the Law shall account him to be a Bailiff of his own wrong and so be accountable to the Queen but no Intruder till Office be found and that appears in our Books 1 H. 7. 17. The King's Tenant dieth his Heir within age if any entreth into the Land of the Heir he shall not be an Intruder untill Office found but the Heir or a stranger who entreth before Office and takes the profits

shall be brought by Process into the Exchequer to make their Accounts and to answer the issues and profits but if he intermeddle after Office he shall be an Intruder Tenant of the King alieneth without licence by that the King is to have the profits untill he compound with the King and purchaseth his pardon and if the Feoffee taketh the profits after the Alienation he is a Pernor of the profits and shall answer for them but he is not an Intruder untill Office found Tenant of the King is attainted of Felony the King is entitled to the Land from the time of the Felony committed yet if he take the profits untill Attainder he is not an Intruder but he taketh the profits without Title therefore he is Bailiff of his own wrong and so accountable to the King. And it is not a new thing that a Conveyance or an Estate shall be void as to the Right onely and not as unto the Possession The Statute of Doms West 2. finis ipso jure sit nullus i. as to the right of the Entail yet as unto the possession the issue in tail is bound untill he hath recovered it by a Formedon Vpon the Statute of 21 H. 8. cap. 13. by acceptance of another Benefice against the said Statute the first Benefice shall be void c. yet the same shall not be construed so as to possession but that the same shall remain with him untill it be taken away from him The Queen leaseth for years Proviso that if the Lessee commit Waste the Lease shall be void when first Waste is done the Lease is determined in Right but not as to the possession before Office finding the Waste So if the Condition be for the building of a House for by the breach of the Condition the Lease as unto the right and interest is determined and after Office found it shall revest the possession also And if a Lease of the King expire by effluction of time and such effluction appeareth here of Record if the Lessee in such case continueth his possession he shall be an Intruder Sir Robert Chester's Case Dyer 4. Eliz. 211. Sir Robert Chester was Receivor of the King by Patent upon condition to render Account yearly at such a day and before such a day to pay the arrearages the condition is broken the Patent was void without Office thereof found but yet it is not altogether void for a Scire facias shall be brought against the Patentee The King leaseth unto A. his Manor of D. and after he leaseth also to the said A. his Manor of S. Proviso that if the Lessee doth not surrender his first Lease of the Manor of D. at such a day that then the latter Lease of the Manor of S. shall be void The Surrender is not made now the Lessee if he continue his possession in the Manor of S. after he is an Intruder Now is to see of what effect the Office is not to make the Lease void but to vest the possession in the King again It hath been objected That as the case is the Office is not to any purpose for the Queen hath granted the inheritance over so as the possession cannot be revested in the Queen by that Office against her own Grant nor can the Queen punish the Lessee as an Intruder for his continuance of the possession after the Office nor can seise the Land by such Office and there is not any such Office for the benefit of a Subject therefore the Office is meerly void Let us compare our Case unto the Case of Cessavit The Tenant of the King ceaseth for two years the King grants the Seignory over in fee the Cesser is found by Office the Grantee of the Seignory gains nothing by it but that is not like unto the Case in question for there when the Office is found the Tenant may tender the arrearages for the King is not absolutely entitled by the Cesser because by tender of the arrearages the Tenant may save his Tenancy But in this case after the Condition is once broken there is not any means for the Tenant to save the Forfeiture also the King by his Grant after the Cesser hath not granted the thing which accrued unto him by the Cesser scil the Tenancy but onely the Seignory but in our case the King hath granted the thing forfeited i the land demised and here is a full forfeiture contrary in the case of Cesser And in our Case the King hath granted onely the land demised and not the profits encurred mean between the breach of the Condition and the Grant of the King but these remain to the Queen and to that purpose the Office is good scil to entitle the Queen to these profits And as to that which hath been objected That the Lessee hath always paid the Rent unto the Queen after the Condition broken and hath an Acquittance of the Receipt of it therefore no profits due to the Queen for she hath the Rent in lieu of the profits and it is not reason that the Lessee shall pay an annual Rent and also shall be accountable for the mean profits and so the Office as unto the mean profits which in truth upon the matter aforesaid are not due unto the Queen is void and then altogether void quia nihil operatur To that he answered That the King shall not be bound off the mean profits in that case by the payment of the said Rent for by intendment the true annual value of the Land is more than the Rent reserved and it is not reason but that the Queen shall be answered of the surplusage or overplus above the Rent and therefore the Office entituling the Queen to part of the profits is good enough Tenant of the King for life or for years makes a Feoffment in Fee although that by this Act he cannot pluck any thing out of the King yet because he hath attempted to do such a wrong it is a forfeiture and the Lease for years utterly extinct by it for it cannot be in the Feoffor against his own act by which he hath departed with all his Interest c. And the Feoffee cannot have it for if he hath any thing it ought to be a Fee-simple or nothing at all and a Fee-simple he cannot have for that remains in the King and so neither have Estate then is all in the King and the King hath Title to have the profits c. But put case that after the Feoffment the King grant over the Land in Fee and after that tortious Feoffment is found by Office he who accupieth the Land after the forfeiture untill Office be found shall be occountable to the King for the issues and profits c. as Pernor of the profits or Baily of his own wrong and he who occupieth the Land after the Office shall be punished as an Intruder There was a Case very late in this Court betwixt Sir Tho. Henage and one Hungate which was thus Sir

in fact so as he might have an Assise or an Action of Trespass Antea 210 1 Cro. 920. Ow. 96. So the Law is now taken A. deviseth his Lands to B. and dieth and a stranger entreth and dieth seised before any Entry by the Devisee now is the Devisee without remedy And here in our Case the Intruder hath not gained any possession in the Lands by his intrusion no more than if the King gives Lands to one in Fee and before the Patentee enters a stranger enters now cannot the Patentee grant it over if he doth not reduce the Estate by Entry See Dyer 9 and 10 Eliz. 266. P. 20 Eliz. in Curia Ward Garbery's Case acc The Queen seised of the Manor of Beverley a stranger erected a Shop in a vacant plat of the Manor and afterwards took the profits of it without paying any Rent for the same to the Queen and afterwards the Queen granted the Manor to the Earl of Leicester and he never entred into the said Shop nor took any Rent for the same and afterwards the Occupier of the Shop died in possession and his Son and Heir entred and the better opinion was that the same was not a descent against the Patentee because at the first it was not a disseisin against the Queen Another Question was moved as to a path-way then in question And the Iury found that one side of the path-way was the Land of the Parson of the Church and the other side the Church-yard and prayed the opinion of the Court therein to whom the interest of the path-way did belong to which it was said by the Court That that ought to be found by the Verdict For although that both be the Freehold of the Parson yet the soil of the path-way might be conveyed by an express Grant unto another But the Court seemed to incline that the soil of the path-way did belong to him who had the Lands on both sides and that is the Case as well of a high-way as of a path-way And it is also good Evidence to prove such matter Who hath used to cut down the Trees or to cleanse the way CLXXXIII Wiseman 's Case 24 Eliz. In the Court of Wards 6 Co. Weeden Baldwin's Case IN the Court of Wards before the Lord Treasurer Master of the Wards Wray chief Iustice Anderson and Periam Assistants to him the Case was That Wiseman was seised of certain Lands holden by Knight's-service in Capite had issue by a former Wife who died and made a Feoffment in Fee to the use of her who should be his Wife for life and afterwards to the use of himself and of his issue of the body of such Wife to be begotten the remainder over Wiseman took a Wife and had issue and died If now living the Wife the issue shall be in Ward was the question It was argued by Coke That he shall not be in Ward And first it was agreed of both sides and also by the Iustices That it was a remainder and not a reversion and that at the Common Law the descent of a remainder during the Estate for life doth not entitle the King unto Wardship and there we are to see if upon the Statute of 32 H. 8. the last branch of it where two or more persons hold any Lands of the King by Knights-service jointly to them and the heirs of one of them and he that hath the Inheritance thereof dieth his heir being within age in every such Case the King shall have the Ward and marriage of the body of such heir so being within age the life of the Freeholder or Freeholders of such Lands notwithstanding See 33 H. 6. 14. That the father to prevent Wardship may alien and take to him and his son and the heirs of the father which mischief was intended to be remedied by the said Statute But these words shall not in construction thereof extend farther than the words especially because they cross the Common Law and go to charge the Inheritance of others and therefore they shall be taken strictly and not by equity as the Statute of West 2. cap. 40. Cum quis alienat jus uxoris suae concordat est Quod de cetero secta mulieris aut ejus haeredis non differatur propter minorem aetatem haeredis qui warrantizare debuit that Statute is taken strictly for if the Vouchee voucheth over the second Vouchee shall have his age Quod vide 18 E. 4. 16. Also the Stat. of West 1. enacts That where the Disseisor dieth seised the Disseisee shall have his Writ upon the Disseisin against the heir of the Disseisor of what age soever he be So the heirs of the Disseisee yet it is holden 9 E. 3. If the Disseisor leaseth for life and dieth and the Lessee be impleaded and makes default after default upon which the heir of the Disseisor prayeth to be received being within age he shall have his age notwithstanding the said Statute which shall be taken strictly because it controlls the Common Law and chargeth the Inheritance of the Subject So upon the Statute of West 1. cap. 39. That none shall vouch out of the line upon that Statute although the Tenant to the Action against whom the Praecipe is brought is bound by the Statute yet Tenant by receit is at large and he may vouch at the Common Law 2 H. 7. 2. 16 H. 7. 1. for these Statutes go in abridgment of the Common Law and therefore shall be taken strictly Now according to this Statute it is of the same nature as the other before remembred and therefore shall not be extended in construction beyond the Letter As Sir Rowland Hill's Case Grandfather father and son the grandfather seised of Land ut supra makes a Feoffment in Fee to the use of himself for life and afterwards to the use of the son in Fee The grandfather dieth the father dieth the son shall not be in Ward Causa qua supra For this Statute shall not be construed by equity and by it the words thereof Preferment of children shall not extend unto the childrens children but to the children onely of the King's Tenant who makes the Conveyance And the words in this Statute or otherwise shall not be intended to other persons than are remembred in the Statute There was a Case late where the Statute was construed in such a manner Quod vide 18 Eliz. 345. Thornton's Case A Lady seised of Lands in chief made Conveyance of her Lands for the advancement of her bastard-daughter the same Conveyance is not within the Statute See also the Lord Powes's Case 14 Eliz. Dyer 313. So in the Case of Sir Hugh Calverley the Law was taken That where the Husband dieth seised in the right of his Wife and they levy a Fine unto the use of the Husband and Wife for the advancement of the Husband such Conveyance and disposition is not within the Statute of 32 H. 8. Popham contrary And as to

the Case of making this Statute it was not to overthrow a foundation as it hath been said but it was rather a gratuity of the Subjects to the King for his bounty towards them for whereas by the Statute of Vses Vses were executed in possession so as the Subjects could not dispose of their Lands by their Wills as before the Vses Now by this Statute the King was pleased to give his Royal assent to an Act by which Lands might become devisable in respect of which the Subjects added to this Act the last clause to give him Wardship where it did not lie before by the Common Law and that as a recompence from the Subjects for the King's bounty and therefore it ought to be construed beneficially for the King. And to prevent covin and fraud was not the scope of this Statute For if three purchase Lands unto them and to the heirs of two of them now it is uncertain whose heirs shall inherit for non constat which of them shall survive and therefore no covin is averrable in such case and yet if the survivor of two to whom the Fee is limited dieth his heir within age such heir shall be in Ward So if such Lands be given to two and to the heirs of him of those two who shall first come to the Church of Paul Now it is uncertain which of them shall first come to the Church of Paul yet if he who first cometh to the Church of Paul dieth his heir within age he shall be in Ward which Cases prove that covin and fraud were not the cause of making this Statute but onely the thankfulness of the Subjects unto the King for his bounty as abovesaid for if this Act had not been made the Subjects should not have power to dispose of their Lands for the advancement of their children but all should descend So as now the King hath lost the Wardship and Primer seisin of two parts of the Lands of his Tenant and hath also lost the averment of covin which he had by the Common Law where Estates were made by the King's Tenant for advancement of their children In respect of which losses the Subjects gave unto the King Wardship in case where the Lands continue in jointure as to that which hath been said That this Statute shall not be taken by equity I conceive the contrary the words of the Statute are In every such case i. e. In every like case not onely where two or more persons hold jointly to them and the heirs of one of them but also in every the like Case as the Case now in question and in every Case where the life of him who hath the Freehold is the sole impediment quo minus the heir hath not the Land by descent in Demesne And it may be resembled unto the Statute of Marlbridge of Collusion which speaks of Leases for years Quas tradere voluerint ad terminum annorum and yet a Lease for life or Lease for years is within the said Statute for the Statute was made in restraint of an ill liberty that the Tenants had by the Common Law in prejudice of their Lords which see 4 E. 6. 53. Plow 59. And as to the word otherwise that may be construed for payment of his Legacies And as to equity enlarging the Statute speaks where many hold and to the heirs of one yet if two hold to them and the heirs of one of them the same is within the Statute And as to Equity restraining he puts this case Land is given to the Husband and Wife and the heirs of the body of the Wife who have issue the Wife dieth the issue within age he shall not be in Ward and yet he is within the Letter of the Statute but because that other matter That the Estate for life in the Husband is an impediment Quo minus he shall be in Ward It is a maxim of the Common Law That the father shall have the Wardship of the son and heir apparent therefore he shall not be within the meaning although he be within the Letter of the Statute So if Lands be given to my Villain and to another and to the heirs of my Villain who dieth seised his heir within age I seise the Villain and claim the remainder he shall not be in Ward and yet he is within the Letter of the Statute But I conceive in our Case the King shall have two Wards Simul semel the heir general of Wiseman and the issue in tail the heir general by the Common Law by reason that his father was the King's Tenant who disposed of his Lands for the advancement of his children and therefore the Queen shall have the third part in Ward And also the heir special shall be in Ward for that part of the Statute And it is no new thing to have two Wardships for one and the same Lands As 14 H. 8. of the heir of Cestuy quae use and also of the Feoffee and if the Tenant dieth seised having issue a daughter who is his heir the Lord seiseth the daughter and marrieth her and afterwards a son is born he shall have the Wardship also of him So of the heirs of the Disseisor and Disseisee and he said If Lands holden in chief be leased for life the remainder to A. in Fee A. dieth his heir within age he shall be in Ward and that by reason of these words in the Statute In every such case it is not the same Case but the like Case for if he who hath the Fee dieth so as the Freehold survives to the other now the Estate becomes as an Estate for life the remainder over It was adjourned CLXXXIV The Lord Howard and the Town of Walden 's Case 24 Eliz. In the Exchequer More Rep. 159. Post 162 163. BEtwixt the Lord Howard and the Town of Walden the Case was That the King made a Feoffment in Fee of Lands parcel of his Dutchy of Lancaster Tenend in feodi forma reddend inde sibi haeredibus suis aut illi cui de jure reddi debet 10 l. The question was How and of whom the Tenure should be It was argued by Plowden That it should be holden of the King as of his Dutchy he said The King is not bounden by the Statute of Quia emptores terrarum but here upon this Feoffment the Feoffee shall hold of the King as of his Dutchy All Grants of the King notwithstanding that they be of Lands yet they savour of the person of the King and his Prerogative being wrapt up in his person shall guide the disposition of the land and he said that this Tenure shall be implyed by reason and in respect of his person And the Statute of Quia emptores terrarum extends to Tenants onely Libere tenentes magnatum aliorum but the King is not Libere tenens alicujus magnat 32 H. 6. 21 22. The King hath an Advowson in the Right of his Dutchy to which

first Fine doth not make any discontinuance and yet he conceived it is not altogether void against the issues before that they enter for no Right remains in the Conusor against his Fine and he conceived also that this clause ex uberiori gratia nostra did extend to pass more than passed before for he conceived that the Queen intended more liberally viz. the Reversion for this same is not any matter of Prerogative but this is a matter of interest which might even in the Case of the King pass out of the King by general words And see 3 H. 6. 6 and 7 Br. Patents A Grant of the King ex insinuatione shall not hinder the force of the words ex mero motu And the opinion of the Court was That the Reversion which was in the King did not pass by this Grant For the scope of the whole Patent was as was conceived to grant the same onely which the Queen had ratione attincturae Anderson held the Patent insufficient because that the Prohibition was not full and certain Also he said That ex speciali gratia c. would not help this Case if it were well argued for the Estate tail is not well recited but onely that he was seised de Statu haereditario c. so as the Queen was deceived Periam contrary The Queen was apprised well of the mischief and Grant aforesaid viz. of such Estate with which he departed by the Fine And as to the other point it was the opinion of Walmsley That the Fine with Proclamation did bind the Entail And as to the Objection which hath been made That the Conusor at the time of the Fine levied was not seised by force of the Entail the same had been good matter to avoid a common Recovery to alledge such matter in the Tenant to the Praecipe but not to this purpose for if Tenant in tail levieth a Fine although he was not seised at the time of the Fine levied by force of the Entail yet such a Fine shall bind the issues So if the Tenant in tail doth discontinue and disseiseth the Discontinuee and so levieth a Fine And he conceived That the issue in tail is bound by the Statute of 4 H. 7. even of the Gift of the King. And see 19 H. 8. 6. and 7. where it is holden That the issue in tail is bound by the Act of 4 H. 7. And whereas it hath been objected That it doth not extend but to such Fines which make a discontinuance at the Common Law the same is not so for if Tenant in tail of a Rent or Common levieth a Fine with Proclamation it is very clear that the issues shall be barred thereby And he relied much upon the Book of 29 H. 8. Dyer 32. Tenant in tail of the Gift of the King levyeth a Fine or suffereth a common Recovery although it be not a discontinuance because the Reversion is in the King yet it is a bar unto the issue But note That that was before the Statute of 34 H. 8. And see now Wiseman's Case 27 Eliz. Co. 2. part and see the Lord Stafford's Case 7 Jacob. Co. 8 Reports fo 78. CXCII Pleadal 's Case 21 Eliz. In the King's-Bench THe Case was That a man seised of Lands in fee took a Lease by Indenture of the Herbage and Pawnage of the same Land It was the Opinion of the whole Court that the same was no Estoppel to him to claim the Soil or the Freehold And it was said by Plowden and agreed by the Court That if the Father and Son be Ioint-tenants for an hundred years and the Son takes a Lease of his Father of the Lands for fifteen years to begin c. the same shall conclude the Son to claim the whole term or parcel of it by Survivor CXCIII 21 Eliz. In the Star-Chamber NOte That in the Star-Chamber it was resolved by the Advice of many of the Iustices That an Infant having levyed a Fine may declare the uses upon it and such Declaration is good notwithstanding his Nonage and Mr. Plowden affirmed 2 Co. 10 42 57. that so it was adjudged in his own Case by which he lost Lands of the yearly value of 40 l. So a Declaration by a man in duresse is good which Anderson denyed CXCIV The Lord Awdley 's Case 21 Eliz. In the Court of Chancery THE Lord Awdley 12 H. 7. enfeoffed Hoddy and others of certain Lands in the County of Sommerset Dy. 166 324 325. and afterwards by Indenture reciting the said Feoffment and the date of it and also that it was to the intent that his Feoffees should perform his Will as follows in effect viz. My Will is 6 Co. Sir Ed. Cloer's Case That my said Feoffees shall stand seised to the use That the said Hoddy shall receive of the yearly Profits of the said Lands one hundred pounds which he had lent to the said Lord Awdley and also stand seised to pay all his Debts upon Bills signed with his Hand and after the Debts paid That the said Feoffees shall make Estate of the said Lands unto him the said Lord Awdley and Ioan his Wife and to the Heirs of their Bodies c. with divers Remainders over The said Lord had issue by the said Joan and also had issue by a former Wife a Daughter The Feoffees never made any Estate to the said Lord and his Wife And it was the Opinion of divers of the Iustices and Sages of the Law That upon this matter no use was changed for it is not a last Will but an intent And although that the Feoffees shall be seised unto the use of the Feoffor and his Heirs because that no consideration was for which they should be seised to their own use yet the same cannot make a new use unto the said Lord and his wife in tail without conveying an Estate for the wife is a stranger unto the land and also to the other use And it cannot be a Testament or last Will for the Estate mentioned in the said Writing ought to be made to the said Lord and his wife who cannot take by his own Will. And this matter was depending in the Chancery and the advice of the Iustices being there required they did deliver their opinions That by this Writing no use was changed nor any Estate vested in the said Lord and his wife and a Decree was made accordingly untill proof might be made of such an Estate made CXCV. Borough and Holcroft 's Case 21 Eliz. In the King 's Bench. Co. 3. Inst 31. 4 Co. 45. IN an Appeal of Murther by the son of the Lord Borough of the death of his elder brother Henry Borough against Thomas Holcroft who pleaded That heretofore he had been indicted of the Murther of the said Henry Holcroft before J. S. Coroner of the Verge and also Coroner of the Country of Middlesex within which County the Verge was and upon that indictment he was arraigned and confessed the

Statute and it was moved If it should not be a good Indictment for the assault so as he might be fined for it and by Sands Clerk of the Crown and the whole Court The Indictment is void for the whole for the conclusion of the Indictment is contra formam Statuti and there the Iury cannot enquire at the Common Law. CCXXXV Mead and Cheney 's Case Mich. 32 Eliz. In the King's-Bench MEad brought an Action of Debt upon a Bond against Cheney Executor of one Skipwith and recovered and upon a Fieri facias the Sheriff did retorn Devastavit and it was moved to have an Elegit and the Iustices would advise of it and afterwards at another day a Precedent was shewed to the Court of 17 Eliz. and thereupon the Elegit was granted CCXXXVI Tompson and Trafford 's Case Trin. 32 Eliz. In the King's-Bench Rot. 910. Poph. 8 9. IN an Ejectione firmae the Case was That the Warden and Fellows of New College in Oxford 8 Eliz. leased a Mansion house in the Burrough of Southwark to one Standish for 21 years and afterwards 25 Octob. 21 Eliz. they demised the same Mansion house to the said Standish for 21 years to commence the Michaelmas after And the Stat. of 14 Eliz. cap. 11. and 18 Eliz. cap. 11. were also found And if this second Lease shall be said a Lease in Reversion and so be void by the Statute of 14 Eliz. was the Question Foster moved That it is a Lease in Reversion for the first Lease doth continue untill Michaelmas and so was the opinion of the Iustices of Assise at the trial Towse contrary For when Standish accepteth the second Lease the same is presently a surrender of the former Lease for he giveth power unto the Lessor for to contract for the house presently and to that purpose he cited Corbet's Case 8 Eliz. Coke It is a surrender presently for you cannot apportion the Term. It was adjourned CCXXXVII Wood and Avery 's Case Mich. 32 Eliz. In the King's-Bench DEBT upon a Bond by Wood against Avery the Condition was That where the Plaintiff had demised to the Defendant for term of years two Messuages c. If the Defendant at all times during the term shall maintain sustain and repair the said two Messuages with good and sufficient reparations that then c. And the Defendant pleaded That he had performed the Conditions in all but as to one Kitchin which was so ruinous at the time of the Demise that he could not maintain or repair and therefore he took it down and rebuilt it again in so short a time as he could possible in the same place so large and so sufficient in breadth length and heighth as the other Kitchin was and that the said Kitchin all times after the re-edifying of it he had sustained and maintained and well repaired and demanded Iudgment c. upon which Plea the Plaintiff did demurr in Law and by the Court the Plea were a good Plea if it were in an Action of Waste but here where he hath by his own Act tied himself to an inconvenience he ought at his perill to provide for it And here it was said That if the Condition be impossible the Bond is single contrary where a man is charged by an Act in Law. CCXXXVIII Bostwick and Bostwick 's Case Mich. 32 Eliz. In the Common-Pleas DOrothy Bostwick brought Dower against Bostwick an Infant Ante 59. and the Case was That the Husband of the Demandant was seised of certain Lands holden by Knight's-service of M. C. and by his last Will devised two parts of the Premisses to his Executors during the non-age of his heir and died his heir within age after whose death M. C. entred into the third part descended as Guardian in Knight's-service and the Executors into the other two parts upon which the Demandant brought one Writ of Dower against the Guardian to be endowed of the third part and another Writ of Dower against the heir within age in whom the Freehold of the two parts was The heir appearing by Attorney pleaded to issue which was found for the Demandant but the Iudgment was afterwards reversed because the heir being within age did not appear by Guardian but by Attorney for which cause she again brought a Writ of Dower against the heir and the Sheriff did retorn him summoned but the heir made default for which cause the Court was moved in the behalf of the Demandant to have the aid of the Court in this Case for if upon default of the Tenant a Grand Cape should issue forth and so a Recovery by default should follow the same would be Error which see 6 H. 8. Br. Liver Defaul 50. And therefore it was prayed that some person be appointed Guardian to the heir who may appear and plead for him for otherwise the Demandant is at great mischief for the Guardian now will not suffer the heir to appear in person And if the Widow now Demandant should stay for her Dower untill the heir should come of full age it would be a great mischief But by Walmesley Periam and Windham We cannot appoint a Guardian to the heir for his appearance here unless the heir be here in person in Court before us and he was appointed to be brought in person into Court. CCXXXIX Sir Anthony Denny 's Case Mich. 32 Eliz. In the Common-Pleas SIR Anthony Denny seised in Fee of the Manor of Chessam extending into Chessam and in the Town of Hertford and also of other Lands in Hertford by his last Will devised the Manor of Chessam to Henry Denny his son and heir in tail and his Lands in Hertford to Edward Denny his younger son c. It was holden by Walmsley Periam and Windham absent Anderson That the younger son should have that part of the Manor of Chessam which lieth in the Town of Hertford Another point in the Case was That upon the death of Sir Anthony and Office was found without any mention of this Devise for which cause the Queen seised and leased all the Lands so devised to a stranger during the minority of the heir The heir comes of full age and hath Livery of the whole and without any express entry leaseth the Lands for years rendring Rent the Lessee entreth and payeth the Rent to the heir the heir dieth the Lessee assigns over his term and the Rent is yearly paid to the right heir of Sir Anthony And how Edward Denny entred and per Curiam his entry is lawfull for if the heir entreth in this Case and many descents follow yet the Devisee may enter at any time for his entry doth not make any abatement or wrong but may well stand with the Devise for if the Devise be waved or the Devise doth defer the execution of the Devisee 1 Inst 111. a. 240. b. 3 Cro. 145. Ow. 86 87. it is reason that the heir enter and take the profits untill the Devisee entreth But if

a stranger abateth after the death of the Devisor and dieth seised the same shall take away the descent CCXL The Case of the Town of Leicester for Toll Trin. 28 Eliz. In the King's-Bench 2 Inst AN Action of Trespass Tam pro Domina Regina quam pro seipso and shewed That the Town of Leicester is an ancient Town and ancient Demesne and the Inhabitants there have used to be discharged of Toll and that the Queen by her Letters Patents gave command to all Bailiffs Sheriffs Mayors c. That those of Leicester should be discharged of Toll and notwithstanding that That the Defendant took Toll c. Exception was taken because that the suit was prosecuted Tam pro Domina Regina quam pro seipso whereas the party grieved was onely to have the information See the Case 49 E. 36. Where the Writ is ad respondend tam pro nobis quam c. and no exception is taken to it Another exception The Plaintiff declares That Leicester is an ancient Town and ancient Demesne and doth not shew that it is parcel of a Manor See 20 E. 3. Ancient Demes 25. such exception is taken but after the Defendant pleads That all such Towns whereof the Land in question is parcell is ancient Demesne and such plea was holden good See 30 E. 3. 12. parcell of a Manor which is ancient Demesne and the Plaintiff replied Absque hoc that it is parcell of the Manor Another exception That Lands holden in Socage onely and no other ought to be discharged of Toll and here it is not shewed in the Declaration that the place where c. is holden in Socage To which it was answered That the same needs not to be set down in the Declaration for that is implied in these words Ancient Demesn for otherwise it cannot be but Socage Land onely and of no other Tenure A fourth Exception The Letters Patents here shewed in discharge are of no value for the King by his Letters Patents cannot disinherit any one Erg. nor discharge one of Toll wich is a kind of disinheritance To which it was said That the Plaintiff doth not declare of any Grant but of an usage or custome for those of ancient Demesn and farther hath commanded by the said Letters Patents that such customs and usages should hold place and upon the custome and the contempt this Action is grounded A fifth exception because the Plaintiff hath not shewed that the Toll whereof the Plaintiff hath counted was concerning things for provision for their houses manurance of their lands c. 7 H. 4. 111. In an Action upon the Case for not paying of Toll The Defendant said That he held certain lands of R. Lord of the Manor of H. which Manor is ancient Demesn of which Manor all the Tenants have been free to sell or buy beasts or other things for the manurance of their lands and maintenance of their houses without paying Toll in any Market or Fair c. And so justifies that he came to the same Market and bought certain beasts as the Plaintiff had declared and that some of them he used about his manurance of his lands and some of them he put into pasture to make them fat and more fit to be sold and afterwards he sold them at such a Fair c. and the opinion of the Court was with the Defendant And by Godfrey and Coke Such Tenants shall be discharged of Toll not onely for buying of things which concern their sustenance provision and manurance of their lands but also for all things bought as common merchandizes 28 Ass ult by Thorp Green and Seton of all things bought by any for his own use they shall be quit of Toll and then If the privilege of Tenants in ancient Demesn shall not be quit of Toll but for things bought for their sustenance provision and manurance of their lands they have no more favor than ordinary Subjects See 19 H. 6.66 Some are of opinion That such Tenants shall not pay Toll for things sold and bought coming upon their lands and touching their sustenance See F. N. B. 228. D. such Tenants are discharged of Toll for all things by them sold and bought by way of merchandize as also of things of necessity as sustenance And see Crook in the cases of Itiner 138. he conceives that such Tenants for merchandizes shall pay Toll as other merchants but see the Writ of F. N. B. 228. the words are De bonis rebus suis And Coke said That he had found the reason wherefore such Tenants should be quit of Toll throughout the Realm in an ancient Reading viz. That all the lands in the hands of Edw. the Confessor and Wil. the Conqueror set down in the Book of Doomsday were ancient Demesn and so called Terrae Regis and they were to provide victuals for the Kings Garrisons for then they were troublsome times and for those causes and because they made provisions for others they had many privileges amongst which this one Ut quietius aratra sua exercerent terram excolerent The Lord himself in ancient Demesn shall not have such privilege for his Seignory is pleadable at the Common Law Vid. F. N. B. 228. B. And he said That the Plaintiff ought to alledge that his lands are parcel of such a Manor for there cannot be ancient Demesn if there be not a Court and Suitors c. And he granted that such a Town might be ancient Demesn of the Crown but yet they shall not have the privileges and liberties which the Tenants in ancient Demesn have Towns were before Manors London hath the name of ancient Demesn and yet they have not such liberties nor the lands in it pleadable by Writ of right Close 7 H. 6. 31 32. Shute Iustice was of opinion That an Inhabitant within ancient Demesn although he be not Tenant shall have the privileges See for that F. N. B. 228. B. Tenants at will in ancient Demesn shall be discharged of Toll as well as Tenants of the Freehold for life or for years 37 H. 6. 27. by Moile London is ancient Demesn for they prescribe that a Villein who hath there dwelt c. shall not be taken from thence by Capias or Attachment Billing London is not in the Book of Doomsday Moile They make their Protestation in a Writ of Right Patent Littleton That is used in divers places and at this day in Exeter And by Clench If a Tenant in ancient Demesn levyeth a Fine of his lands then he shall not have the privilege untill the Fine be reversed Quod fuit concessum If the Lord of a Manor in ancient Demesn purchaseth all the Tenancies the whole privilege is gone which Coke denyed The Case was adjorned CCXLI. Lennard 's Case Trin. 28 Eliz. In the Common Pleas. 2 Roll. 787. 3 Len. 128. IN the Case of Lennard Custos Brevium who was Plaintiff in an Action of Trespass for breaking of his Close The Defendant pleaded

good answer for they are Pleas onely before the Auditors and not in an Action upon Accompt and farther he said That although the Verdict be found but for part yet it is good for no damages are to be recovered in an Accompt In trespass it is true if one issue be found and not the other and joint-damages be given the Verdict is not good for any part but if several damages be given then it is good as it is ruled in 21 H. 6. Coke 26 H. 8. is That the Plaintiff cannot declare generally of an house Curam habens administrationem bonorum but he must farther say Twenty quarters of Corn or the like c. In the principal Case it is a joint-charge and but one for the shop and goods and he answers unto one onely but he ought to answer to all or else it is no answer at all But Coke found out another thing viz. That there is a thing put in issue which is not in the Verdict nor found nor touched in the Verdict and that was the Verdict of all which is found not to be good and it is not helped by the Statute of 32 H. 8. of Jeofailes I grant that discontinuances are helped by the Statute of 32 H. 8. but imperfect Verdicts are not helped thereby Vid. 205. It was a great Case argued in the Exchequer Chamber and it was Brache's Case An information was against Brache for entring into a house and an hundred Acres of Lands in Stepney He pleaded not guilty The Iury found him guilty for the hundred acres but said nothing as to the house upon which a Writ of Error was brought and Iudgment was reversed and he said it was not a discontinuance but no verdict for part Daniel That was the default of the Clerks who did not enter it and it hath been the usage to amend the defaults done by the Clerks in another Term All the Iustices said That is true if the Postea be brought in and not entred but here it is entred in the Roll in this form Daniel Where I charge one in Accompt with so much by the hands of such a one and so much by the hands of such a one although there be but one Absque hoc to them all yet they are as several issues The Court answered Not so unless there be several issues joined to every one of them But by Gawdy Iustice If there be several issues and the one be found and the other not no Iudgment shall be given Clench Iustice In the principal Case It is not a charge of the goods but in respect of the shop therefore that ought to be traversed Shute Iustice The Traverse of the shop alone is not good Egerton the Queen's Solicitor said That the Books might be reconciled and that there needed not a Traverse to the goods for the Traverse of the shop Prout is an answer to all But now he takes issue upon the goods onely which issue is not warranted by the Declaration and he said That if one charge me as Bailiff of his goods ad Merchandizandum I shall answer for the increase and shall be punished for my negligence But if he charge me as his Receiver ad computandum I shall not be answerable but for the bare money or thing which was delivered CCXLVI Mich. 29 Eliz. In the Common-Pleas Postea 215. IN Trespass for taking of goods the Defendant justified as Bailiff to J. S. The Plaintiff by Replication saith That the Defendant prest his Cattel of his own wrong Absque hoc that he is Bailiff to J. S. And by Anderson 1 Leon. 50. If one hath good cause to distrain my Cattel and a stranger of his own head without any warrant or authority takes my goods not as servant or Bailiff to another and I bring Trespass against him he cannot excuse himself by saying that he did it as Bailiff c. for once he was a Trespassor but if one do distrain as Bailiff although that in truth he be not Bailiff if afterwards he in whose right he justifies assents to it he shall not be punished as a Trespassor for this assent shall have relation unto the time of the distress taken which Periam concessit and also Rhodes A. distrains and being asked for what cause he distrains and he assigns a cause which is not sufficient and afterwards an Action is brought against him 3 Co. 26. he may avow the distress for another cause CCXLVII. Mich. 29 Eliz. In the Common-Pleas THE Case was That the Queen gave Lands in tail to hold in Capite and afterwards granted the Reversion Windham In this Case the Tenure is not incident to the Reversion but is in respect of the person and therefore the Tenure in Capite doth remain and the Donee shall hold of the Queen as in gross And also the Grantee of the Reversion shall hold of the Queen in Capite and so two Tenures in Capite for the same Lands See 30 H. 8. Dyer 45. If the Queen in this cause had reserved a Rent upon the Gift in tail the same should go with the Reversion CCXLVIII Dighton and Clark 's Case Mich. 29 Eliz. In the King's-Bench DIghton brought Debt upon a Bond the Condition of which was That whereas the Plaintiff was in quiet possession of such lands If now neither J. S. nor J. B. nor J. G. did not disturb the Plaintiff in his possession of the said lands by any indirect means but by due course of Law That then c. that Defendant pleaded That neither J. S. nor J. D. or J. G. did disturb the Plaintiff by any indirect means but by due course of Law upon which there was a demurrer Godfrey The Plea in Bar is not good for there is a Negativa pregnans scil a Negative which implies an Affirmative See 21 H. 6.9 In a Writ of Entry Sur Disseisin the Defendant saith That the Demandant by his Deed after the Darrein continuance did confirm and ratifie the possession of the Tenant c. The Demandant said Not his Deed after the Darrein continuance and the same was holden to be Negativa pregnans See more there and see also 5 H. 7. 7. And see farther 39 H. 6. 8 9. Another Exception was taken to the Plea in Bar because he hath pleaded That neque J. S. neque J. D. neque J. G. had disturbed the Demandant by any indirect means but onely by due course of Law and that issue cannot be tried not by the Countrey for they cannot know what is a due course of Law and by the Court it cannot be tried for the Defendant hath not certainly shewed by what due course of Law the Demandant hath been disturbed which see 22 E. 4. 40 41 c. The Lord Lisle's Case In Debt upon a Bond the Condition was That if the Defendant before such a day or any other for him and in his name come to B. and there shew unto the Plaintiff or one of his

6. All the Inhabitants of a Town do prescribe to have common in such a field every year after Harvest If one particular man who hath Freehold land with the said field sowed will not within convenient time gather in his Corn but suffer the same to continue there of purpose to bar the Inhabitants of their Common The Inhabitants of the Town may put in their Cattel into the said field and therewith eat his Corn and he shall have no remedy for their so doing and he put the Question What remedy the Commoner should have for the eating and destroying of his Common which his Cattel should have for that he can neither distrain them damage-feasance nor impound them for a Replevin doth not lie of Conies and therefore he said he hath no other remedy but to kill and destroy the Conies See 19 E. 3. and F. N. B. If the Lord doth surcharge the Common the Commoner may have an Action against him but in this Case he can have no Action Gawdy Iustice The Commoner cannot destroy or kill the Conies because he may have other remedy Shute Iustice A Commoner cannot take or distrain the beasts of the Tenant of the land for damage-feasance therefore he cannot take or destroy the Conies which are upon the land because he may have other remedy for he may have an Action upon the Case or an Assize for putting of the Conies upon the land if the owner of the land leave not sufficient Common for the Cattel of the Commoner and afterwards Iudgment was given for the Plaintiff CCLV. Manwood and Burston 's Case Hill. 29 Eliz. In the Exchequer-Chamber MAnwood chief Baron of the Exchequer brought an Action upon the Case against Burston and declared That whereas Agnes Griffin was possessed of the third part of the Manor and Rectory of Higham for term of years by Demise of the Master and Fellows of St. John's College in Cambridge made to Worthington and whereas John Sutton was possessed of another third part of the said Manor and Rectory by the same Demise and whereas John Palmer was possessed of another third part of the said Manor and Rectory for the same term The said Burston 20 Aprilis 28 Eliz. in consideration that the said Plaintiff Obtinuisset de praed Agnet totum terminum suum assurari ipsis Rogero Manwood and the Defendant scil Unam medietatem dictae tertiae partis dicto Rogero alteram medietatem unto the said Defendant apud London in such a Ward Assumpsit eidem querent Quod si idem querens procuraret dictam Johannem Palmer to assent and sell his third part the one moyety to the Plaintiff and the other to the Defendant for 320 l. That the Defendant solveret aequam portionem inde scil 160 l. And licet the Plaintiff had procured the said Palmer 22 Aprilis an supradict to assent and sell the third part for 320 l. to be paid 3 Maii the same year and the rest at another day and licet the said Plaintiff was ready to pay his part and offered the same scil 160 l. And licet the said Palmer was ready and offered to sell and convey his term aforesaid c. yet the said Defendant solvere aequam partem suam scil 160 l. Non fuit paratus sed recusavit for which the said Palmer Noluit vendere his part or interest by which the Plaintiff was damnified c. The Defendant pleaded That after the Assumpsit the Plaintiff did discharge the Defendant of the said promise upon which they were at issue and it was found for the Plaintiff who had Iudgment to recover Vpon which Burston brought a Writ of Error in the Exchequer Chamber And divers Errors were assigned 1. It is not shewed at what time the term of Agnes Griffin did begin 2. The Lease of the College is not shewed to be by writing 3. It is not shewed for what term Palmer was possessed 4. It is not shewed at what time the Plaintiff had obtained the part of Agnes 5. The Assumpsit is laid to be apud London in Warda de Farrington extra and so apud London and extra London which is repugnant 6. The Plaintiff hath declared That the Colledge had leased to Worthington and that A. and B. were possessed Virtute dimissionis praed To these Errors the chief Baron put in his answer in writing As to the two first they are in the recital and but matter of induction to the consideration and not traversable nor otherwise material to be alledged for the commencement of them or for the Rent but onely the ending of the term to come is sufficient As in an Action upon the Case That whereas the Defendant was indebted unto the Plaintiff in divers sums of money amounting to 40 l. the Defendant in consideration thereof promised c. the Plaintiff needs not to shew any certainty of the Contract or other circumstance how or in what manner the Debt did accrue or begin As in an Action upon the Case The Plaintiff declares That whereas he hath married the daughter of the Defendant the Defendant in consideration that the Plaintiff would assure to his said Wife Land to the yearly value of 20 l. for her jointure as shall be advised by the Council of the Defendant That he will pay unto the Plaintiff 100 l. And licet the Plaintiff hath made such a jointure of Land in S. unto such yearly value for the use of his Wife by the advice of the Council of the Defendant c. Here the Plaintiff needs not to shew what manner of Conveyance or Assurance was advised for it is sufficient if the consideration recited be proved in evidence with the circumstances but in pleading it is not traversable nor issuable The third Error is mistaken The fourth is answered as the two first for it is but matter of recital and the consideration past and executed before the Assumpsit and not at the time of the Assumpsit and but an Induction or conveyance to the Promise The fifth matter is mis-construed for there are two Wards of Farrington infra extra infra the Walls and extra the Walls and yet both apud London and extra is to be referred to Farrington and not to London and there ought to be made a point after extra as Farrington extra London The sixth is mistaken for there is no Error in that for the Assignee is possessed Virtute dimissionis for the original Lease is the virtue and strength of the possession of the Assignee But if these exceptions had been material yet forasmuch as the issue is not upon the Assumpsit for that is confessed by the Defendant and by that the recital consideration and all the special matters confessed to be true But the Defendant hath pleaded a new matter after the Assumpsit in discharge of the Assumpsit which discharge is found against him all the particulars in which the Errors are assigned are out of the Book and now the matter of

discharge is onely material As in debt for arrearages of Rent reserved on a Lease for years if the time and place of the making of the Lease be not set forth in the Declaration the Declaration is not good But if the Defendant plead a collateral matter as release of the arrearages or other such matter now all the imperfections of the Declaration are waved c. At another day the matter was argued again There are three manner of considerations upon which an Assumpsit may be grounded 1 A debt precedent 2 Where he to whom such a promise is made is damnified by doing any thing or spends his labour at the instance of the Promiser although no benefit cometh to the Promiser As I agree with a Surgeon to cure a poor man who is a stranger unto me of a sore who doth it accordingly he shall have an Action 3 Or there is a present consideration c. The first Exception was because the Assumpsit being laid to procure such a Lease which another had i. e. one A. it is not shewed in the Declaration in facto That A. had such a Lease and if he had not any such Lease then there cannot be any consideration to procure it For Ex nihilo nihil fit Secondly the Declaration is That A. was possessed of a Lease for years to be ended and determined in An. 1606. without shewing any beginning of it and although that Lease be but matter of Conveyance and inducement yet because it is the ground of the Action it ought to be certainly and sufficiently set forth Thirdly the Lease to be procured is laid to be made by a College in Cambridge and it is not shewed for what term of years i. e. for 21 years or under for if it be above then such Lease is void Fourthly It is not laid in the Declaration that the Lease was by writing and then void for a College cannot make a Lease without writing and it shall be intended it was made without Deed because it is not laid to be by Deed As if a Corporation makes a Lease for life and afterwards granteth the Reversion for years he that will entitle himself to the said Reversion ought to say in pleading That he made the Lease for life by Deed although the Lease for life in such case be but matter of Conveyance Fifthly It is not laid in the Declaration That the Lease to be assured was in esse and had continuance at the time it was to be assured for although it be laid to be in esse at the time of the promise yet being a particular interest it shall not be intended to continue if it be not specially shewed As 10 H. 7. 26. Sixthly Here the Plaintiff hath not cause of Action but Palmer for the Assumpsit upon which the Action is grounded the money is to be payable to Palmer not to the Plaintiff 2 E. 4. 5. My Bailiff lets my Land to Farm rendring Rent he shall not have an Action for the Rent but I my self in whose right he leased 25 Eliz. It was the Case of one Crewe I promised unto J. S. 25 Eliz. Crew 's Case That in consideration that he will make unto me a Lease for years of such Lands I will assign the same to his servant If he will not make the Lease not J. S. but his servant shall have Action upon the promise and although the Defendant hath pleaded collateral matter by which the promise is confessed yet the same doth not amend the matter for if the Declaration be insufficient the Court ex Officio ought to stay Iudgment As 6 H. 7. 10. In trespass the Defendant pleads That there was an Accord betwixt them that in satisfaction of the said Trespass he should pay to the Plaintiff such a sum and make two Windows the which sum he had paid before the day without speaking any thing of the Windows The Plaintiff pleaded No such Accord and it was found for the Plaintiff and although the Plaintiff doth admit the Plea as good yet the Court ex Officio shall stay the Iudgment See the Book of Entries 4. A Carpenter brought an Action upon the Case and declared generally upon the Assumpsit Pro diversis rebus vocat Carpenters wares pro diversis laboribus per querent at the instance of the Defendant in arte lignaria c. and holden good without any particulars It was adjourned CCLVI. Payne 's Case Mich. 29 Eliz. In the Exchequer-Chamber A Writ of Error was brought by Payne 3 Len. 144. Treasurer of the Records of the King's-Bench in the Exchequer-Chamber upon a Iudgment given in the Court of Exchequer upon an assignment of a Lease for years by the Earl of Oxford to the Queen One Error is assigned That whereas the issue was joined upon intrusion in taking of the profits and so two matters put in issue The Iury have found Payne guilty of intrusion but have said nothing of the taking of the profits and so the verdict doth not fully meet with the issue But the great matter of the Ease was upon this point The Information is That the Assignment to the Queen was 16 Maii the Intrusion 17 Maii the Inrollment of the Deed of Assignment the 18. of May. So it appeareth upon the Record That the intrusion is supposed to be done before the Queen have any interest in the Lands in which the intrusion is supposed for nothing was in the Queen before the Inrollment For the Queen is a Corporation of State of such prerogative and excellency that she cannot give or take interest in any Lands without matter of Record and this Lease is a Chattel Real and interest in Lands See as to the Inrollment 1 H. 7. 30 31. 5 E. 4. 7. 7 E. 4. 16. But I grant that if the Lessee for years be outlawed the Lease shall be in the King without Office for the Outlawry it self is a sufficient Record to entitle the King to it If the Queen makes a Lease for years of Land rendring Rent with clause That if the Rent be behind that the Lease shall cease if the Rent be not paid it was agreed here in Sir Moile Finche's Case Sir Moile Finches Case That the Lessee continuing his possession shall not be accounted an intruder before Office thereof found but he shall be accountant to the Queen for the profits as Bailiff of his own wrong But here we are charged with intrusion It hath been doubted if personal things be in the King without Office 37 H. 6. but now it is clear that it is as 35 E. 3. Br. Praerogat 113. The Villain of the the King purchaseth goods the property thereof is in the King without seisure and so of all personal Chattels because transitory 1 H. 7. 17. 4 H. 7. 1. 39 H. 6. 26. And here it appeareth upon Record that this Deed of Assignment was delivered to Baron Clark the 16 of May at Westminster and to that we say That the

moved the Case That the Plea is good and Iudgment was entred accordingly CCLXXI. Richmond and Butcher 's Case Mich. 33 Eliz. In the Common-Pleas 1 Cro. 217. IN a Replevin the Case was this A man made a Lease for years reserving Rent to the Lessor his Executors and Assigns where the Lessor had a Fee-simple in the Lands it was holden by the Court That the Rent should go to the heir notwithstanding the special Reservation because the words of the Reservation are During the term and the other words To his Executors and Assigns shall be void and then the Rent shall go with the Reversion to the heir which see 27 H. 8. 19. by Awdley And it was said by some That a Rent reserved during the term shall go to the heir with the Reversion and 12 E. 4. was cited where a Rent reserved to the Lessor and his Assigns should not go to the heir and that these words During the term did not mend the matter for the Lessor might well overlive the term But in the principal Case it was said by Periam Iustice That the Executors should not have the Rent for they have not the Reversion but if the Lessor grants over the reversion the Grantee shall have the Rent And afterwards Iudgment was given against the Plaintiff for it was in a Replevin and Iudgment was given for the Avowant who was heir to the Lessor CCLXXII Mich. 30 Eliz. In the Common-Pleas IN an Action of Trespass brought by a poor woman for breaking of her Close she declared of a Continuando of the Trespass by six years and upon Nihil dicit pleaded she had Iudgment to recover upon which issued forth a Writ of Enquiry of Damages and now came the poor woman and shewed to the Court That the Iury had found too little damages i. e. but 10 s. whereas the Land is worth 4 l. per ann and the Trespass had continued by six years together and prayed that the said Writ might not be received and that the Court would grant her another Writ to have a Melius inquirendum of the damages but the whole Court denied to grant any such Writ for so there might be infinite enquiries But sometimes at the prayer of the Defendant when excessive damages are found or any misdemeanors alledged in the Plaintiff procuring or using such a Writ of Enquiry of damages we use to relieve the Defendant by granting and issuing forth of a new Writ but to the Plaintiff never because the suing forth of the Writ is his own act And by Rhodes Iustice The late Countess of Darby brought a Writ of Dower and had Iudgment to recover and she surmised that her husband died seised and prayed a Writ of Enquiry of damages and had it granted unto her and because too small damages were found she would have suppressed the said Writ and procured a new Writ but she could not obtain it and at last she was driven to bring in the first Writ and so it was done CCLXXIII Scrog 's and Griffin 's Case Hill. 30 Eliz. In the King 's Bench. IN an Action upon the Case upon a promise by Scrogs against Griffin The Plaintiff declared That whereas such a day one Brown and another did run for a wager from Saint-John-Street to High-gate That he of the said two that first got thither and came again should have 5 l. which wager the said Brown did win and whereas after the said match so performed the said Plaintiff affirmed that there was deceit and covin in the performance of the said match upon which the Defendant in consideration of twelve pence to him delivered by the Plaintiff promised that if the Plaintiff can prove that any deceit or covin was used or practised in the performance of the said match that then upon request he should pay to the Plaintiff 5 l. And upon Non Assumpsit pleaded it was found for the Plaintiff and it was moved by Foster in arrest of Iudgment That here is not any request set forth in the Declaration and also that this deceit is enquired of in London whereas it ought to be in Middlesex where the Race was run and it was agreed by all the Iustices That the proof ought to be made in this Action as in the common Cases of voyages and that request now is but matter of conformity and not of necessity Wray Iustice It is clear That always proof ought to be as it is here if not that the matter be referred to a special proof before a person certain And as to the trial The deceit is not in issue but onely the promise and therefore the issue is well tried in London Also this Action here includes proof and request for there cannot be made any other proof and the proof is the effect for which cause he concluded that Iudgment should be entred for the Plaintiff which was done accordingly CCLXXIV Fuller and Trimwell 's Case Pasch 29 Eliz. In the Common Pleas. IN a Replevin by Fuller against Trimwell who made Conusance 1 Roll 46. ●… as Bailiff to one house for damage fesance The Plaintiff in Bar of the Conusance shewed That one A. T. did pretend right to the land where c. and the Defendant in the right of the said A. T. took the cattel c. Absque hoc that he took them as Bailiff to the said House upon which the Defendant did demur in Law and it was argued by Shuttleworth Serjeant That the traverse is not good which see 26 H. 8. 8. 5 H. 7. 2. Not his Bailiff but if the truth of the Case be so he may plead of his own wrong without such cause c. And see also 28 H. 6. 4. The Commandment is not traverseable but in special Cases where the Commandment determines the interest of the other party which see 13 H. 7. 12 13. Antea 196. in the Case of the Earl of Suffolk in Trespass the Defendant pleaded That before the trespass the Plaintiff was seised and thereof enfeoffed one B. by whose commandment he entred to which the Plaintiff said That after the Feoffment and before the trespass the said B. leased to the Plaintiff to hold at will Absque hoc that the said B. did command him and that was holden a good traverse for the commandment determines that Lease at will and in the principal Case all the Iustices were of clear opinion That the traverse is good and they all said That the Custos Brevium had shewed to them many presidents thereof See 15 H. 7. 17. and see also 7 H. 4. 101 102. In trespass for taking of cattel the Defendant did justifie as servant to such a one for Rent arrere due to his Master The Plaintiff Replicando said That the Defendant was not Bailiff at the time of the taking where it is said by Gascoigne That if the Defendant takes the cattel claiming property as a Heriot due to himself although that afterwards the Lord agrees to the distress

although he was defrauded but of one Heriot onely as if a man be indebted to me in 20 l. and he makes such a fraudulent Deed of his goods of the value of 2000 l. although I be defrauded but of the 20 l. yet he shall forfeit the whole value of the goods so conveyed Manwood Iustice was of opinion that the Plaintiff should recover the value of one of the Horses and the Gift by the first branch is void as to the Plaintiff but for one of the Horses onely and not for all the Horses contained in the Gift for no more than one Horse was fraudulently given And as by the first branch the Gift is void but for one Horse so by the second branch the penalty extends but unto one Horse for the fraud extends but to one Horse and no farther And this Action is not a popular Action but extends onely to the party grieved And of the same opinion was Dyer chief Iustice and he confessed the Case put by Mounson Iustice where the Debtor of 20 l. makes a fraudulent Deed of his goods of 3000 l. c. for the person of the Debtor is chargeable and peradventure goods of the value of 2000 l. may be put in execution for 100 l. but here the person is not charged for the Heriot Barham Serjeant the fraud goes to the whole scil to all the Horses for although the Plaintiff is to have but one Horse yet he is to have the choice of all the Horses which of them he will have for the best Beast and because the choice goes to all the thirty Horses and by this fraudulent Gift he is defrauded of his election which of the Horses he would have therefore he shall have the value of the whole thirty Horses But Dyer and Mounson said to the Serjeant set a price upon any of the thirty Horses as the best Horse in your election and demand the value of that Horse as forfeit by the Statute and then your election is saved to you XI Gregory 's Case 19 Eliz. In the common Pleas. IN the Assise against Arthur Gregory and his wife at Warwick Assise 1 Len. 86. Key 's steds case cont before Dyer and Barham Iustices of Assise the husband made default and the Assise was awarded by default and the wife came and prayed to be received and the opinion of the said Iustices was that Receipt lay in that Case as in other cases of Praecipe quod reddat Receipt of the wife and therefore the wife was received And now Dyer in Banco demanded of his companions the other Iustices if the Receipt was well granted And by Manwood and Mounson Iustices clearly the Receipt lies For although that the Statute doth not give Receipt but where the Lands in demand are to be lost by such default of the husband and in an Assise the Land shall not be lost by the default of the husband but the Assise shall by taken by default Yet because the husband and wife lose their challenges to the Iury because the Assise is taken by default It seemed to the Iustices and also to the Preignothories that Receipt did well lie in this Case XII 19 Eliz. In the Common Ples IN an Action upon Escape the Plaintiff is nonsuit It was holden No costs upon Nonsuit in an Action upon Escape that the Defendant should not have costs by the Statute of 23 H. 8. Note the words of the Statute i. Upon any Action upon the Statute for any offence or personal wrong supposed to be done immediately to the Plaintiff notwithstanding this Action is Quodam modo an Action upon the Statute i. by the equity of the Statute of West 2. which gives expresly against the Warden of the Fleet yet properly it is not an Action upon the Statute for in the Declaration in such actions no mention is made of the Statute which see in the Book of Entries 169 171. And here is not supposed any immediate personal wrong or offence to the Plaintiff And an Action upon the Case it is not for then the Writ ought to make mention of the Escape and that it doth not here and yet at the Common Law before the Statute of West 2. An Action upon the Case did lie for an Escape and so Dyer Manwood and Mounson costs are not given in this Case And by Manwood upon the Nonsuit in an Action upon the Statute of 8 H. 6. the Defendant shall not have costs for that is not a personal wrong for the Writ is dissesivit which is a real wrong Mich. 19 and 20 Eliz. In the King's-Bench Prescription Townsend Table 96. Hern. 709. Tit. Trespass ib. 803. 1 Cro. 898. Rectory quid Jones Rep. 230. IN Trespass for breaking of his Close the Defendant iustified to have a way by prescription over the Land in which the trespass is supposed for carrying of such Tithes Usque ad Rectoriam de D. from such a place And it was holden by Wray and the whole Court that the plea was not good for in pleading such a way there ought to be set forth terminus a quo terminus ad quem And this word Rectory which ought to be terminus ad quem is incertain for a Rectory is a thing which consists of divers things as Glebe Tithes c. But he ought to have said the Parsonage House or other place certain And afterwards it was shewed to the Court that the said Rectory did consist onely of Tithes and so there is not any place certain as Parsonage House Barn c. to which the Tithes have used to be carried for the Tithes have used to be let to farm to divers persons who have carried such Tithes to their own houses and the Defendant is one of the Farmers of the Tithes Wray If your case be such you are to plead in this manner That J. S. is seised in Fee of the Rectory of D. and that time out of mind he and all those c. have used for them and theirs formerly to have a way to carry their Tithes from such a place over the Land where c. unto such a high way and name a way which is the next to the place where the trespass was done the which cause the Defendant pleaded so according to the direction of the Court. XIV Wingfield and Seckford 's Case Hillar 20 Eliz. In the Common Pleas. Debt for Rent Co. 3. Rep. 24. IN Debt for arrerages of Rent upon a Lease for years the truth of the case was That before any arrerages incurred the land Leased was evicted upon an Eigne Title The Defendant pleaded that he owed him nothing If now he might give in Evidence the said eviction was the Question and it was the opinion of Dyer Manwood and Mounson Pleadings that he could not but he ought to have pleaded it especially and they denied the opinion of the Preignothories who said that the Defendant ought to have pleaded the Eviction and concluded

Iudgment of Action and not rein luy doit and the Court advised the Defendant to plead accordingly XV. Beamont and Dean 's Case Hillar 20 Eliz. In the Common-Pleas Dower Dyer 361. IN Dower brought by the wife of Beamont Master of the Rolls in the time of E. 6. The Defendant said that he himself before the Writ brought did assign a rent of 10 l. per ann to the Demandant in recompence of her Dower upon which the Demandant did demur in Law and the cause was because the Tenant had not shewed what Estate he had in the Lands at the time of the granting of the Rent as to say that he was seised in Fee and granted the said Rent so as it might appear to the Court upon the plea that the Tenant had a lawfull power to grant such a Rent which was granted by the whole Court and the demur holden good XVI Hinde and Sir John Lyon 's Case Hill. 20 Eliz. In the Common-Pleas IN Debt by the Plaintiff against the Defendant as Heir Dyer 124. a. 3 Len. 70. 3 Len. 64. he pleaded That he had nothing by Descent but the third part of the Manor of D. The Plaintiff replied Assets and shewed for Assets that the Defendant had the whole Manor of Dale by descent upon which they were at issue and it was given in evidence to the Iury That the Manor was holden by Knight's-service and that the said Sir John the Ancestor of the Defendant Devises by his Will in writing devised the whole Manor to his Wife until the Defendant his Son and Heir should come to the age of 24 years and that at the age of his said Son of 24 years the Wife should have the third part of the said Manor for term of her life and her Son should have the residue and that if his said Son do die before he come to his age of 24 years without Heir of his body that the Land should remain to J. S. the Remainder over to another The Devisor died the Son came to the age of 24 years and the Question was If the Son hath an Estate-tayl for then for two parts he is not in by Descent And by Dyer and Manwood Iustices here is not any Estate tayl for no tayl was to rise before his said age and therefore the tayl shall never take effect and the Fee-simple doth descend and remain in the Son unless he dieth within the age of 24 years and then the Entail vests with the Remainders over But now having attained his said age he hath a Fee-simple and that by Descent of the whole Manor and a general Iudgment shall be given against him as of his own Debt And an Elegit shall issue forth of the moyety of all his Lands as well those which he hath by descent from the same Ancestor as any else and a Capias lieth against him But Manwood conceived That if general Iudgment be given against the Heir by default in such a case a Capias doth not lie although in case of false Plea it lieth Dyer contrary and the Writ against the Heir is in the Debet Detinet which proves that in Law it is his own Debt and he said that he could shew a precedent where such an Action was maintainable against the Executors of the Heir XVII Hil. 20 Eliz. In the Common-Pleas A Man made a Lease of Lands by Indenture Roll. 1. part 870. to begin after the expiration of a Lease thereof made to one Duffam and in an Action of Covenant brought by the second Lessee against the Lessor Covenant the Lessor said That there was no such Duffam in rerum natura at the time of the supposed Lease made to Duffam it was argued Estoppell That this Plea doth not lie for the Lessor for he is estopped to say against the Indenture That there is no such Duffam c. And also if no such person was then the first Lease was void and then the second Lease shall begin presently which Manwood and Mounson granted and by Manwood the Defendant shall be estopped by the Recital of the first Lease to say That there was no such Duffam And although the common Ground is That a Recital is not an Estoppel yet where the Recital is material as it is here it is otherwise for here the second Lease is to begin upon the expiration of the recited Lease and therefore in this case it shall be an Estoppel XVIII Mich. 20 Eliz. In the King's-Bench Action upon the Stat. of 5 Eliz. for Perjury 3 Len. 68. IN an Action upon the Statute of 5 Eliz. for a Perjury by three the Plaintiffs declared That the Defendant being examined upon his oath before Commissioners If a Surrender was made at such a Court of a Copyhold to the use of A. and B. two of the Defendants The Defendant swore there was no such surrender made c. Exception was taken to the Declaration because that the certainty of the Copyhold did not appear upon the Declaration for the Statute requires that in such Case the party grieved shall have remedy so as it ought to appear in what thing he is grieved quod fuit concessum per totam Curiam Another Exception was taken because the Action is given in this Case to the party grieved and it appeareth upon the Declaration that the Surrender in the negative deposing of which the Perjury is assigned Abatement of Writ was made to the use of two of the Plaintiffs onely and then the third person is not a party grieved for he claims nothing by the Surrender and therefore forasmuch as the two persons grieved have joined with the party not grieved the Writ shall abate against them all which Wray and Southcote granted XIX 19 Eliz. In the Common-Pleas Action upon the Stat. of 13 E. 1. of Winchester 2 Inst 569. IN an Action upon the Statute of Winchester 13 E. 1. against the men of the Hundred of A. Barham Serjeant took Exception to the Declaration because it appeareth upon it that the half year after the Robbery is not yet come for by the said Statute it is ordained that the Countrey have no longer time than half a year after the Robbery done within which time facent-gree of the Robbery or respondent the body of the Misfeasors And here the Action is brought within the half year And for this cause the Declaration was holden to be insufficient by the whole Court. And the Lord Dyer spake much in commendation of that Statute being made for the publick benefit of the whole Commonwealth for the Law intends when a Robbery is done That if the Countrey will not pursue the Malefactors that some of them are Receivers or Abettors of the Felons Manwood Iustice said When I was a Servant to Sir James Hales one of the Iustices of the Common-Pleas one of his Servants was robbed at Gadds Hill within the Hundred of Gravesend in Kent and he sued the men

after the Statute of 27 H. 8. and afterwards Robert Brent the Husband levyed a Fine to the same uses and took a second Wife and died The second Wife by the assent and commandment of the first Feoffees after the five years past after the Fine entered to raise the uses mentioned in the first Feoffment limited to the second Wife This Case was argued by all the Iustices of the Court of Common-Pleas and Mounson Iustice conceived that the Entry of the Wife was lawfull and that without the assent or commandment of the Feoffees An use may be limited to one who is in esse or in posse and the second Wife here was in esse when the use was limited and she was also in posse for by possibility the first Wife might die and also by possibility the Feoffor might take to Wife this Woman A Gift to one who is not in esse or in posse is void A Gift to J. S. primogenito filio suo if he have a Son alive at the time of the Gift he shall take jointly with his Father but if not Co. 1 Rep. Shelley's Case yet after his death he shall take by way of Remainder A use is nothing else but a trust and confidence and was not any Inheritance by the course of the Common Law for no mention is made of uses in our ancient Books when the Common Law greatly flourished as in the time of E. 1. and E. 3. and also uses are not subject to the grounds of Law And although divers Statutes have been made for the avoiding of divers policies for the gaining of Lands in Mortmain yet the makers of the said Statutes could not find out any such conveyances to uses See the Statute of Religiosis 7 E. 1. and see 29 H. 8. tr Mortmain 39. There is a glance at uses 44 E. 3. 25. b. the words are En foy demist c. and the Feoffees sued Livery And the first mention of Vses in our Books is 30 H. 6. Br. Title to Uses 49. and the same case Devise Fitz. 22. In the time of E. 4. Vses were more frequent for 5 E. 4. 8. divers cases concerning Vses are there put c. and afterwards 1 R. 3. a new Statute was made for the benefit of Cestuy que use and afterwards the Statute of 4 H. 7. for the Wardship of Cestuy que use and afterwards the Statute of 27 H. 8. which made an end of Vses These Vses at the first were of no value but afterwards by continuance Communis error fecit jus so as they were taken and esteemed as Inheritances And they cannot be more fitly resembled to any thing as to Copyholds which at beginning were but Tenures at will and were not known at the Common Law but now they are in the same reputation in Law as Inheritances and they are not guided by the Rules of the Common Law but by the intent of the parties which appeareth in this Case at Bar to be That she who should be the second Wife of Robert Brent the Feoffor should have the Lands ut supra and therefore this Vse shall rise and the Statute of 27 H. 8. shall draw the possession after it Manwood Iustice As to the commencement of Vse it hath been as long as mankind hath been guided by Reason and although no mention is made of Vses in our ancient Books yet that is no argument that Vses have been but of late times Vses were not common therefore were not at all is a Non sequitur As long as Wills have been Trust and Confidence hath been and also as long as Marriage hath been See the Writ of Causa Matrimonii prolocuti and see the Statute of Marlbridg cap. 6. there is mention of falsa Feoffamenta And note by other words of the said Statute there was a Trust but it was a false trust to deceive another and therefore such a mis-shapen Trust is not called a Trust by the said Statute but a Collusion And Mr. Littleton saith That Cestuy que use shall be sworn upon Enquests which was not enacted by any Statute but practised and put in ure by reason of Common Law. And I have seen divers ancient Deeds of Vses and in ancient time you shall not find that any would purchase Lands to himself alone but had two or three joint Feoffees with him and he who was first named in the Charter of Feoffment was Cestuy que use although that no Vse was declared unto him upon the Livery and so it was known by the occupation of the Lands And the reason why no mention is made in our ancient Books of Vses is because men were then of better Consciences than now they are so as the Feoffees did not give occasion to their Feoffors to bring Subpoena's to compell them to perform the Trusts reposed in them As to that which hath been said That Vses have taken their beginning after the Statute of West 3. For before the said Statute if a man had made a Feoffment in Fee without declaring any use it should be to the use of the Feoffee because there is a sufficient consideration betwixt the Feoffor and Feoffee to raise the use i. the Seignory created by the Law betwixt them but now by the said Statute such consideration is taken away and then upon such Feoffment without consideration or declaration of use it is to the use of the Feoffor himself the same is no reason against them for although that an Vse implied was not before the said Statute of West 3. yet a Vse expressed was and if before the said Statute the Feoffor had declared an Vse the same had been good as at this day a Gift in tail or a Lease for life is made to another use yet notwithstanding that the Law doth create a Tenure upon the Lease or Gift yet the use expressed shall be good And although Vses are of such Antiquity yet they are not directed by the Rules of the common Law but by the Will of the Owner of the Lands For the Vse is in his hands as clay is in the hands of the Potter which he in whose hands it is may put into what form he pleaseth And notwithstanding that now the possession be executed to the Vse yet the property and quality as abstracted from the possession shall not be drowned in the possession and so for as much as Vses were by permission of Law guided at the wills of the parties so also shall be the possessions And so because That an use as abstracted from the possession might have been well limited to the Wife which should be notwithstanding that at the time of such limitation such a one was not in esse in the same manner it shall be now when the possession is presently executed to the use and so in this case the second Wife shall be capable of this use according to the will and direction of the Owner If a Feoffment in Fee be made to the use of

interest in the Lands than strangers and they Uses have been in such reckoning and account since that an Vse hath obtained the name of an Inheritance and is now reputed amongst the Estates of Lands in our Law and therefore we say in Speeches and in penning of Statutes Estates in possession and Estates in use and a Vse cannot be limited to Parishioners no more than the Land it self so as there is a great affinity betwixt the words Lands and Use It is to be granted That the Statute of 27 H. 8. doth devest all out of the Feoffees yet it doth not devest it before that the use be vested in Cestuy que use for the words of the Statute are That the possession shall be executed in such manner quality and degree as was the Vse therefore the vesting of the Vse ought to precede the execution of the possession to it And he was of opinion That this future Vse in the principal Case limited to the second Wife did remain in the Feoffees at the first but that they had destroyed it by their Feoffment for the second Wife at the time of the Feoffment was not known and therefore it shall now accrue and he was also of opinion That this limitation to the second Wife was void at the beginning for the second Wife was not a person able to take when the Estate and Vse limited to the first Wife was determined and therefore she shall not take at all and if such an Estate had been limited in possession it should not have vested no more than now Mounson Iustice When the Feoffor and the Feoffees joyn in a Fine of that Land within which the use in future is wrapped he conceived That the Vse being in abeyance and consideration of the Law could not be touched by the Fine It is to be confessed That an Vse may be discontinued See 4. H. 7. 18. A Feoffment made to the use of A. for life and after to the use of B. in tail c. A. makes a Feoffment in Fee and dieth the same is a discontinuance of the other Vses and see 27 H. 8. 29. And in our Case the Vse might arise without any Entry of the Feoffees for the Vse is not discontinued but the Feoffees are barred by the Fine And he was also of opinion That this Vse might take effect without any Entry and take effect according to the limitation Manwood This Estate which is limited in use to the second Wife because it cannot vest in her because not known the Feoffees are yet content with it and this Vse is to grow out of their Estates at the seasonable time Then when they joyn in a Feoffment their Estate which was the root of the Conveyance and the Vses which are the branches spring not till she dieth and therefore if the Estate of the Feoffees which is the root of the Vses be destroyed by alienation of the Land before the Vses have their being as in our Case it is because that then the second was not known no use can afterwards rise for by the Feoffment they are destroyed and also every possibility of them But if the Vses had been in esse so as the persons to whom they are limited are known then the Statute shall execute the possession to such uses And as to that which hath been objected by my Brother Mounson That the Law shall keep and preserve the Vse and that notwithstanding any thing done by the Feoffees at its due time it shall rise That cannot be for the Statute of 27 H. 8. doth not speak of such Vses as this in our Case but of such Vses onely of which one may say such a use is limited to such a person and such to such a person c. and such Vses are onely executed by the Statute It may be demanded What Estate the Feoffees have in the Lands until such uses be executed It may be answered A Fee simple determinable as the Lord hath when he entereth upon his Villein Donee in tail And I conceive That this use was not in Custodia Legis quia de minimis non curat Lex and the use was such a thing of which the Law took no knowledge and in case of an Estate in possession such an use in abeyance should be bound As a Lease for life unto A. the Remainder to the right Heirs of B. A. suffers a common Recovery in the life of B. who afterwards dieth and afterwards A. dyeth the Heir of B. is bound for he had not right at the time of the Recovery This Fine levied by the manner shall not destroy the uses limited to the second Wife for as to the Feoffees they have nothing to doe with the Lands to transfer any Estate against the former limitation for the Statute leaves nothing in the Feoffees but vests all in Cesty que use and that which cannot vest in him to whom it is limited shall return to the Feoffor As if I make a Feoffment in Fee to the use of my self for life and after to the use of my second Wife all the Fee is now in me and when I take a second Wife then the Feoffees shall be seised to the use of such Wife in Remainder for her life but in the Case at Bar the Feoffees at the time when this second Wife was in esse had not any thing in the Lands for they had departed with all their Interest before by their Feoffment and Fine Note That by the first Feoffment the use was limited to D. the first Wife of the Feoffor for term of her life the Remainder in tail to A. Brent the Remainder in Fee to one Broughton and all these uses were executed by the Statute but these persons were not parties to the Livery but onely the Feoffees which had not any thing Then when they make their Letter of Attorney to make Livery of seisin not being seised of the Land the Attorney onely is a Disseisor and so nothing passed from the Feoffees if any right had been in them and for another reason nothing passed by this last Conveyance out of the Feoffees for the parties to the latter Conveyance had notice of the use and so it appeareth by the second Indenture the which makes mention of the first uses c. Dyer Here in our Case the Founders of these uses i. the Feoffor and the Feoffees have an intent to overthrow these uses for at the Common Law the Feoffees might doe it of themselves As if the Feoffees had made a Feoffment in fee in consideration of Money to others who had not notice of the uses now the uses are gone and the second Feoffees in such Cases were seised to their own uses I well know That by this Feoffment all is devested out of the Feoffees which might vest in the person to whom the use is limited but here this use which was limited to the second Wife could not upon the limitation of it vest in any person and therefore it shall

remain in the Feoffees who are put in Trust with it and therefore have interest in the Lands until all the Trusts be performed and therefore the second Wife was advised by her Council to make her Entry in name of the surviving Feoffee and the interest which the Feoffees have in the interim untill the execution of all the uses is a Fee-simple determinable for the whole interest is not devested or driven out of the Feoffees untill the whole Trust be accomplished i. untill all the uses limited upon the Feoffment are executed and have their full perfection And whereas it hath been alledged on the other side That upon the second Feoffment nothing passed out of the Feoffees for which it shall not be said in Law their Livery but that the Attorney shall be said the sole Disseisor As to that I conceive That whatsoever was lost in the Feoffees passed by that Livery If he in Reversion upon an Estate for life makes a Charter of a Feoffment and a Letter of Attorney to make Livery of seisin without words ad expellendas omnes c. if Livery be made by force thereof the Fee-simple shall pass And he cited a Case which was argued before all the Iustices of England reported by himself 2 and 3 Ma. 131. Divers Leases for years were made of the Demeans of an Abby after which the Reversion was granted to the Countess of Richmond for life after which King Edw. 6. granted the Reversion in Fee to the Earl of Warwick who made a Feoffment of all to certain persons to the use of his eldest Son and his Wife for her Iointure with a Letter of Attorney to make Livery and seisin the Attorney made Livery accordingly and by that Feoffment and Livery it was adjudged that the Fee-simple did pass So in our Case upon this second Feoffment a Disseisin is done to D. the first Wife and yet the right of the Feoffees doth pass thereby and although it shall not be taken in Law their Livery yet it shall be adjudged their confirmation because they have joined in the Deed and that shall bind their right to establish the same in the new Feoffees as if the Disseisee join in a Feoffee by Deed with the heir of the Disseisor And as to that which hath been objected that because at the time of the Feoffment the Feoffees had not any thing c. and therefore nothing shall pass and they have likened to the Case where the Father is disseised and the Son and heir doth release to the Disseisor the same shall not bind the heir after the death of his Father The same is not like our Case for there is a great difference betwixt a Release and a Feoffment for if the Son disseise the Father and maketh a Feoffment in Fee in the life of his Father notwithstanding that he had not any right at the time of the Feoffment yet he is bound XXVI Thurkettell and Tey 's Case Trin. 29 Eliz. In the King's-Bench Rot. 342. 1 Cro. 110 111. IN Debt by John Thurkettell against Edw. Tey and Mary his Wife Executrix of Robert Thurkettell the Case was That Agnes Thurkettell Mother of Robert the Testator devised certain Lands to Robert and afterwards devised 40 l. to the Plaintiff John upon condition that the said John Cum requisitus esset acquietaret retaxaret praedict Roberto omnes actiones reales personales querelas c. praedict 40 l. per dict voluntat legatis tantummodo exceptis Agnes died Robert made two Bonds to John The first was endorsed to pay 20 l. parcell of the said Legacy within a year after the death of the said Agnes so as the Plaintiff release according to the will of the said Agnes The second Obligation was with the same condition to pay 20 l. residue of the said Legacy within two years after the death of the said Agnes upon condition to release ut supra and all this matter was pleaded in barr And farther That Robert required the said John to make the Release c. which he refused and they were at issue upon the request and it was found for the Plaintiff i. Quod dict Robert. non requisivit c. upon which Verdict Iudgment was given for the Plaintiff upon which the Defendants brought Error because it appeareth upon the Record here quod Billa praedict prosecuta fuit infra duos annos post mortem dict Agnet sic ante diem solutionis For the second Bond see 46 E. 3. 28. by Finchden and Persay and see there by Persay That if my Writ be brought before the day of payment and doth depend in suit till after the day of payment that my Writ is made good for at all times the Defendant was my Debtor And afterwards in the principal Case the Iudgment was affirmed in the Exchequer-Chamber and note that the day of payment did incurr pendent the Writ XXVII Lightfoot and Butler 's Case 29 Eliz. In the Exchequer IT was said in this Case by the Solicitor General That if one holdeth of the Queen as of her Manor he shall not have the privilege of the Exchequer for that cause But if the King grants Tithes and thereupon reserveth a Rent nomine decimae and a Tenure of him there he shall have the privilege The principal Case was Co. 4. Inst 118 119. that one of the parties claimed the Lands in question as his Freehold but holden of the Queen as of such a Manor and the other claimed it as Copyhold holden of the same Manor And the Freeholder did suggest in the Exchequer That the demands of the Manor are not indifferent Clark Baron If it be so this Court shall have jurisdiction Manwood If the matter pass against you wrongfully wherefore may you not have an Assise And the Case of Beaumorris was cited but I remember not to what purpose i. The Mayor and Commonalty of Beaumorris were Patrons of a Chantry and they and the Chantry Priest made a Lease for years by Indenture in the end of which was this Clause In cujus rei testimonium tam the Priest quam the Mayor and Commonalty have put their common seal and it was moved that there was not any seal for the Priest for he could not have a common seal with the Mayor and Commonalty Clark Twenty men may seal with one seal and they may also seal with one seal upon one piece of Wax onely and that shall serve for them all if they all lay their hands upon the seal together Manwood They may all seal with one seal but upon several pieces of Wax Gent when many are parties to a Deed the words are Sigilla omnia which cannot be aptly said in this Case where all seal upon one piece of Wax XXVIII Barns and Smith 's Case 29 Eliz. In the Exchequer EManuel Barns Executor of Barns late Bishop of London 3 Len. 171. brought Debt for arrerages of Rent reserved upon a Lease for years of certain Mines demised

entred upon Ross the Plaintiff and enfeoffed Rockwood who enfeoffed Weston Coke for the Plaintiff The Case is no more but where a man hath issue a son and a daughter by several women and Deviseth his Lands to his son and the heirs of the body of the Father lawfully begotten in which case if the Son dieth without issue the Tail is extinct and the Daughter shall never have the Land for she doth not take by way of Reversion or Remainder and she doth not take in possession because the possession was in Jeofry who was the Heir of Henry c. And these Cases were vouched 1 Roberge's Case 2 E. 3. 1. to Tail John Mandevile took to Wife Roberge and Mandevile gave land to Roberge haeredibus ipsius Johannis quos ipse de corpore praedict Robergiae procreaverit there the Book is That the Formedon was Quae M. dedit Robergiae haeredibus dict Johannis quos ipsae de corpore dictae Robergiae procreaverit Et quae post mortem praefat Robergiae R. filii haeredis dict Johannis Mandevile haeredis ipsius Johannis de corpore dicto Robergiae per dict Johannem procreat c. and the same Writ awarded good which Coke denyed to be Law. And he cited the Case of Dyer 4 and 5 P. and Ma. 156. A. gives Lands to one for life the Remainder thereof rectis haeredibus masculis de corpore dict A. legitime procreat remanere inde rectis haeredibus dict A. who hath issue two Sons and dieth A. dieth the eldest Son hath issue a Daughter and dieth without issue male And he conceived first That in this case the limitation of the Remainder in Tail to the right Heirs of the body of the Donor is void for the Donor cannot make his own right Heir a Purchasor without departing with the Fee-simple of his person But admitting the limitation is good he said we are to consider If this entail to the Son once vested and commenced in the possession of the Son when he dieth without issue male The Estate be spent or that the same shall go to the younger Son And he said that it was the opinion of Dyer in that case That the younger Son was inheritable to the said Estate-tail as in the Case of Littleton 82. where the condition is That the Feoffee shall give the Lands to the Son and Heir of the Husband and Wife and to the Heirs of the body of the Father and Mother lawfully begotten and the Husband and Wife before any such Gift die having issue and afterwards the Feoffee gives the Land to the Son and Heir of the Husband and Wife and to the Heirs of the body of the Father and Mother begotten the condition is well performed and if the eldest Son to whom the Gift is made dieth without issue the youngest Son shall inherit And in a Formedon in the Reverter upon such a Gift the Writ shall be Et quae post mortem of the eldest Son ad ipsum reverti debet because the Husband and Wife obierunt sine haerede de corpor suis inter eos exeunt And such was also the Opinion of Saunders But Brook Brown and Catlin were clear contrary And he said that Bendloes Serjeant who reporteth that Case doth affirm That Iudgment was given in that case That the Estate-tail was spent and that the Daughter should have the Lands and not the second Son and so he said That in the Case at the Bar the Estate-tail was spent But he said That he conceived that in the principal case at Bar there is not any Estate-tail at all because the words upon which the Estate-tail is conceived are incertain and too general viz. secundum antiquam Evidentiam for there might be many ancient Evidences for the words may extend to Evidences which cut off the Estate tail as well as to the Entail of Guntwardy He also argued That the Partition was void and then the Lessee had a good interest for certain parts of the Lands for Partition cannot be made of an Vse and he said that he agreed That Partition betwixt Husband and Wives of Lands if it be equal should bind the makers because they are compellable to make Partition of them but contrary of an Vse for that they are not compellable to do Also in the principal Case the Land entailed is allotted to one of the Coparcenors which is not good but during the Coverture and afterwards void and then the Lease is void but in part and so the Conusance is not good Atkinson contrary and he said I conceive that by words of Relation a Fee may pass without the word Heirs See 39 Ass 12. The Father seised of Lands in fee doth enfeoff his younger Son in fee and the Father continues the possession of the Lands claiming to hold them at the will of the Son and the Son coming into the Town where the Lands do lie in the hearing of his Neighbours saith to his Father You have given to me these Lands naming them As fully as you have given them to me I give them back to you again and the same was holden to be a good Gift to the Father 43 E. 3. 22. The King seised of a Manor to which an advowson is appendant by Escheat or Conveyance gives the said Manor as entirely as such a one held the said Manor before the Escheat or Conveyance the Advowson shall pass without special mentioning of it And so here in our Case at Bar This Will hath reference to the ancient Evidence and it shall be as strong as if he had set down the special words of Entail and to ancient Evidence before the Entail it cannot extend for then a fee should pass and then the Devise should be void because to his Heir and the word Antiqua Evidentia shall have reference to the Charter which was made by Guntwardy for that was an ancient Evidence made two hundred years past and he cited the Case of 40 E. 3. 8. the Provost of Beverley's Case and conceived that the Estate was not spent for that the Estate-tail was in Jeofry as the fee was in him Lands are given to the Father for life the Remainder to the Son in Tail the Remainder to the right Heirs of the Father the Father dieth the Tail and the fee are in the Son but yet after the death of the Son without issue the Lands shall be in the Brother's Son by descent and not as Purchasor And in our Case Jeofry was in in the Tail as right Heir of Henry and if Jeofry dieth without issue his Brother of the half bloud shall have the Lands as in the Case before cited of 40 E. 3. but that shall be in Tail by force of the Devise And he said That in this case here the Partition was made good enough although it were of Lands in use for a man might contract for an Vse without Deed 11 H. 4. Partition 156. Partition of an Advowson without Deed

Inhabitants had used to till and sowe their Lands c. and they had used to be discharged of their Tithes of rakings after that the shocks were carried away And Coke who was of Council with the Parson durst not demurr upon it but traversed the Prescription Wray Chief Iustice The want of Meadow and Pasture in the Parish is the great matter here and there is not any mischief here as if they had surmised that for want of Meadow and Pasture they had eaten their Meadows with their Cattel And it was held by the whole Court that it was a good Prescription XXXI The Queen and Partridge 's Case Trin. 30 Eliz. In the King's-Bench 1 Cro. 125. IN a Quo Warranto brought against Partridge It was holden by all the Iustices That a man might prescribe to hold a Leet oftner than twice in a year and at other days than are set forth in the Statute of Magna Charta Cap. 35. because the said Statute is in the affirmative But Popham Attorney General said That one cannot prescribe against a Statute And it was moved by him If a general Pardon be granted with general Exception in it he which will have advantage of it ought to plead it and shew that he is not any person excepted for otherwise the Iudges cannot allow him the benefit of it because they do not know if he be a person excepted or not But if there be special persons excepted by name and no others excepted but so many persons there he need not to plead it for the Court may discern J. D. from J. S. 8 E. 4. 7. vide 26 H. 8. 7. If a man commits Felony and also Treason and afterwards comes a general pardon for Felony but Treason is excepted and the party is arraigned for Felony By Coke he shall have the benefit of the pardon Popham contrary For he is disabled by the Treason See Coke's Case 13 Eliz. Plowd 401. he pleaded to the Felony the general pardon by Act of Parliament and added that neither himself nor the said offence was excepted And it was agreed by the whole Court That in a Quo Warranto it is not sufficient for the Defendant to say That such a Subject hath lawfull interest to hold Leets without making title to himself for the Writ is Quo Warranto he claims them And afterwards Iudgment was given for the Queen XXXII Woodward and Bugg 's Case Trin. 30 Eliz. In the King's-Bench WOodward libelled in the Spiritual Court against Bugg and Nelson for Tithes of certain Lands called Christian-Hill 1 Cro. 188. Owen Rep. 103. 2 Roll. 63. 3 Len. 257. The Defendant sued a Prohibition and surmised That one Prettiman was seised of the said Land and in consideration of 5 l. by him paid to the said Parson it was agreed betwixt them That the said Prettiman and his assigns should be discharged of the Tithes of the said Lands during his life And afterwards the said Prettiman leased the same to the Defendants upon which a Prohibition was granted and it was holden that the party need not to make proof thereof within six months for it is not within the Statute because a composition with the Parson But now a consultation was granted in the same Cause because the agreement is shewed but no need of it the which cannot be any discharge but if it had been for a time i. Unica vice it had been good but contrary being for life Also there is not any express Grant of Tithes but onely a Covenant and agreement that he should be discharged upon which he may have an Action but no Prohibition It was said on the other side That although without Deed Tithes cannot pass in point of interest yet by way of discharge they well may Coke It was holden betwixt Pendleton and Green That upon such words of Covenant and agreement the party should hold the Lands discharged of Tithes which was denied For if the Grantee of a Rent-charge will grant it to the Lands without Deed it is not good And there was of late a Case betwixt Westbed and Pepper where it was agreed betwixt the Parson and one of his Parish that for twenty shillings Rent per ann the Parishioner should be discharged of Tithes for twenty years if he lived so long and it was holden that no Prohibition did lie thereupon a Fortiori where the Estate is for life Gawdy In a Case of grant of Tithes for life a Deed is requisite but here it is but a Covenant for money See 21 H. 6. 43. Wray If it had been for years it had been good but here it is not any Contract but onely a discharge for life which cannot be during his life without Deed And afterwards the Record was read which was Concordatum agreatum fuit between the two parties pro omnibus decimis during the time that one should be Parson and the other occupier of the said Lands that in consideration of 5 l. the said Prettiman and his assigns should hold the said Lands discharged of Tithes Wray The same is not a Contract but Promise for he doth not grant any Tithes c. XXXIII Devered and Ratcliff 's Case Pasch 32 Eliz. In the King's-Bench IN Debt the Plaintiff declared 1 Cro. 185. That he himself had brought an Action in London against one A. and had Iudgment to remove and a Capias was awarded and issued forth to take the said A. in execution upon which Non est inventus was returned upon which one of the sureties of A. being in prison in London under the custody of the Defendant upon a Plaint against him was detained in Prison for the said Debt so recovered against A. Secundum consuetudinem Civitatis praedict prout per record ejusdem Curiae apparet and after the Defendant suffered the surety to escape upon which there was a demurr The matter was If the said surety was a Prisoner in Law for the said Debt as surety of A. for in the Declaration it is not expresly laid that there was such a custom in London ut supra but onely Secundum consuetudinem c. And secondly there were two sureties of A. and the one of them onely is detained in execution Also the custome as it is here laid is not reasonable For a Scire facias ought to issue out against the sureties and they ought not to be taken or detained in execution presently For the condition of the Recognizance of sureties is That they bring in the Defendant if he be condemned or to pray the Debt and now by this custome the party who is surety being taken cannot plead the release of the Plaintiff or the death of the Defendant in his discharge as he might upon a Scire facias which was agreed per Curiam and adjudged accordingly XXXIV Clark and Green 's Case Trin. 30 Eliz. In the King's-Bench AN Action upon the Case was brought for these words He liveth by Charming Sorcery and Witchcraft It was moved

well in the case of a Subject as in the case of the Queen That nothing can be an Inducement to a Traverse but such a thing as is Traversable and here the Descent induceth the Traverse being not Traversable in this case Also it was holden That the place where the party dieth seised needs not to be shewed in pleading a Descent And afterwards Manwood at another day mutata opinione conceived That as to plurima Recorda there needed no Traverse although there were many presidents to the contrary Diu ante transgressionem fieri sup is a good Plea in Trespass in Case of a common person not in the King's Case diu ante Intrusionem c. XXXVIII Robinson and Robinson 's Case 31 Eliz. In the Exchequer Chamber IN the Case betwixt Robinson and Robinson in the Exchequer-Chamber by English Bill concerning the Manor of Draiton Basset The Defendant pleaded in Bar a special Plea to which the Plaintiff replyed and afterwards the Defendant when he should have Rejoyned would have relinquished his special Plea and pleaded the general Issue Manwood In the Common Pleas and King's Bench and in the Court of Common Pleas in the Exchequer before the Issue joyned the Defendant might relinquish his special Plea and plead the general Issue for the Pleadings there are in paper until Issue be joyned and therefore at any time before Issue joyned the Plea might be withdrawn But in the Chancery Court of Requests and here all Pleas put in are in Parchment and filed and therefore it cannot be so done and therefore here if the Plea be once ingrossed into Parchment and filed the Defendant cannot relinquish his Plea and plead the general Issue contrary where the Plea is yet in Paper Gent Baron That if upon the Plea in Paper an Issue be offered with an Absque hoc c. the other party cannot relinquish it although it be but in Paper But afterwards the Barons asked the Clarks what was their course in such cases who answered That if the Plea be in Parchment and upon the File it shall never afterwards be taken from off the File but with the consent of the parties and Order of the Court. And afterwards Manwood with the assent of the rest of the Barons gave a Rule That the Defendant should rejoyn to the Replication or otherwise a Nihil dicit to be entred XXXIX The Lord Cromwel 's Case 31 Eliz. In the Exchequer IN the Case of the Lord Cromwel upon the Statute of 33 H. 8. for levying of the King's Debts A Debt came to the Queen by Attainder of the Creditor upon which an Extent issued against one of the Ter-tenants liable to the Debt and not against all It was moved That upon a branch of the said Statute all the Ter-tenants ought to be charged But it was the Opinion of divers that such a Debt which cometh to the King by Attainder is not within the said Statute for although the Attainder is by a Iudgment yet Debt by Iudgment it cannot properly be said but where a Debt is recovered by Iudgment And that was the Case of the Lord Norris for a Debt due to Heron by the Lord Williams which Heron was attainted XL. Machel and Dunton 's Case Hill. 29 Eliz. Rot. 631. in the Common Pleas. IN Ejectione Firmae the Case was That one Machel 1 Crō 288. Owen 54 92. Poph. 8. Alderman of London was seised and Leased for years with clause of re-entry for non payment of Rent and in the Indenture of Lease there were divers Covenants on the parts of the Lessee And afterwards the said Machel by his Will willed That the Lessee should retain the Land-demised for thirty one years reckoning the years of the first term not expired as parcel of the said term of thirty one years yielding like Rent and under such Covenants as the Lessee held the former Lease and by the same Will devised the Inheritance over to a stranger It was first moved If here the Lessee for years had a new interest accrued to him by the Will If it shall vest in him as an interest by it self or that both Estates as well the former Lease as the Estate for years devised by the Will should be united by way of Surrender Another matter was because that the Devise is yielding such Rent and under such Covenants c. Now because the meaning of the Devisor was That the Devisee should hold over the Land for the term encreased as he held before if here the Law shall give construction to this Devise as near the intention of the Devisor as it may be and so construe the words of the Will to amount to a condition But by the Opinion of the whole Court the words of the Devise cannot make a Condition for a Condition is a thing odious in Law which shall not be created without sufficient words Another matter was moved If the Fee-simple should pass by this Devise in point of Reversion or Remainder And by the better opinion of the Court it shall pass in point of Reversion for if it should be a Remainder then the Rent which is reserved upon the Lease by the Will shall not be incident to such Remainder and therefore the Law shall qualifie it into a Fee-simple Another matter was moved Admitting that the words of the Devise ut supra are Condition If here in this Case there be a Grantee of the Reversion intended within the Statute of 32 H. 8. As A. seised of Lands in Fee deviseth them to B. for years rendering Rent with clause of Re-entry and by the same Will deviseth the Reversion to another If because that it was never in the Devisor a Reversion or a Condition If the Devisee be within the said Statute to take advantage of it And the Opinion of the whole Court was That the Devisee of the Fee-simple should take advantage of this Condition XLI Trin. 29 Eliz. In the Common-Pleas Postea 210. A Justicies issued forth to the Sheriff of H. for the Debt of 40 l. and the same Plea was held and determined before the Vnder-Sheriff in the absence of the Sheriff It was moved by Puckering Serjeant If a Writ of Error or a false Iudgment lieth in this Case And it was resolved by the Iustices That the Sheriff himself in his person ought to hold Plea of a Justicies and if he make a Precept or Deputation to another it is meerly void 34 H. 6. 48. See the Case there abridged Fitz. Bar. 161. And a Justicies is not an Original Writ but a Commission to the Sheriff to hold Plea above 40 s. And upon a Iudgment given upon a Justicies a Writ of false Iudgment lieth and not a Writ of Error See 7 E. 4. 23. And it was the Opinion of the Lord Anderson That the Iudgment given in the principal Case was utterly void coram non Judice XLII The Queen and Jordan 's Case Trin. 29 Eliz. In the Exchequer 11 Co. 89 90 c.

AN Information was exhibited in the Exchequer for the Queen against the Executors of William Jordan Surveyor of the Ordinance c. and the Executors of John Bowland Deputy of Ambrose Earl of Warwick Master of the Ordinance c. In which was set forth for the Queen That certain Powder Pellets and other furniture of War came unto the hands of the said Jordan and Bowland in respect of their said Offices to the value of 400000 l. and shewed how much came to each of them and the special charge incertain per quod onerabiles computabiles Dominae Reginae devenerunt nec tamen computum unquam inde reddiderunt nec reddere voluerant sed bona catalla praedicta ad usus suos proprios converterunt in deceptionem dictae Dominae Reginae c. The Defendants pleaded Not guilty upon which the Queen's Attorny did demur in Law because the Defendants have answered onely to the Conversion in which case although they have not converted yet if the said Goods have come to the hands of their Testator it is sufficient for the Queen and the Defendants are chargeable to the Queen for the same And the Opinion of all the Barons was clear that the Defendants ought to answer to the Charge c. XLIII Collet and the Bailiffs of Shrewsbury 's Case Pasc 29 Eliz. In the Common Pleas. IN a false Imprisonment the Defendants justified by Prescription scil that they have used if any person within their Town contemptuose se gesserit against the Bailiffs of the said Town or any Warden of any Trade there to commit such a person to Prison for the space of a day or more at the least at their discretions And shewed farther That the Plaintiff did mis-behave himself tam factis quam verbis against the Wardens of such a Mystery in the said Town c. And when the Bailiffs super Querimoniam eis inde factam sent for the Plaintiff he would not come to them but mis-behaved himself against them tam dictis quam factis for which they did commit him to Prison c. upon which there was a Demurrer And afterwards Iudgment was given for the Plaintiff because their Prescription is not good for it is too large to imprison Subjects at their discretion Also they have set forth the offence of the Plaintiff generally i. Misbehaviour tam factis quam dictis without alledging any special Misdemeanor in certain XLIV Pasch 29 Eliz. In the Common-Pleas 3 Leu. 79. IT was holden by the whole Court That where a man makes his Will in this manner I will and bequeath my Land to A. and the name of the Devisor is not in the whole Will yet the Devise is good by averment of the name of the Devisor 1 Cro. 100. 1 Leo. 113. and by proof that it was his Will. And if one lying sick in extremis having an intent to devise his Land by word makes such a Devise but doth not command the same to be put in writing but another without his knowledge or command puts the same in writing in the life of the Devisor it is a good Devise for it is sufficient if the Devise be reduced in writing during the life of the Devisor XLV Leonard Lovelace 's Case Trin. 27 Eliz. In the Common-Pleas IN Waste the Case was 1 Anders 132. More Rep. 371. Savile Rep. 75. 1 Cro. 40. That Lands were devised to the Father of the Defendant and to his eldest Issue male de corpore suo exeunti And upon Demurrer it was adjudged That by this Devise no Estate passed but an Estate for life unto the Father of the Defendant the Remainder to his eldest Son for life so as no Estate of Inheritance passed thereby and therefore punishable for Waste XLVI Cobb and Prior 's Case Postea 48. Hill. 33 Eliz. In the Common-Pleas THE Case was A man deviseth his Lands to his Wife during the minority of his Son upon condition That she shall not doe Waste during the min●●●●y of her said Son and dieth The Wife takes a Husband a●● dieth the Husband commits Waste It was holden by the whole Court That the same is not any breach of the Condition XLV Salway and Luson 's Case Mich. 30 and 31 Eliz. In the Common-Pleas 1 Leon. 169. MAtthew Salway brought a Writ of Right against Luson and the Writ was Messuagium 200 acr jampnor bruerae and exception was taken to the Writ because that jampnor bruerae were coupled together where they ought to be distinctly severed and so many acr jampnor and so many acr bruerae although it was objected on the part of the Demandant in maintenance of the Writ That in the Register fol. 2. the Writ of Right is Redditu unius librae Mac. Obed. i. Mace and Cloves together without distinction or severance And it was said in a Writ of Right we ought to follow the Register and therefore a Writ of Right was abated because the word Pomarium was put in the Writ for in the Register there is no such Writ and the word Gardinum comprehends it But in other Writs as Writs of Entry c. it is otherwise See the Case of the Lord Zouch 11 Eliz. 353. In a Writ of Entry Sur Disseisin mille acr jampnor bruerae But the exception was not allowed for it may be that jampnorum bruerae lie so promiscuously that they cannot be divided And see 16 H. 7. 8. and 9. The respect which the Iustices there had to the Register so as they changed their opinions conformable to the Register Another exception was taken to the Writ because the Demandant demands duas partes custodiae de Hay in the Forest of C. and the opinion of the whole Court was that the Writ ought to be Officium custodiae duarum partium de Hay and not duas partes custodiae As Advocatio duarum partium Ecclesiae not duas partes advocationis another exception was because the Writ was duas partes c. in three to be divided whereas it should be divisus non dividend for dividendum is not in any Writ but a Writ of Partition And by Windham the parts of this Office are divided in right Quod Curia Concessit another exception was taken because in the Writ it is not set down in what Town the Forest of C. is so as the Court doth not know from whence the Visne should come for no Venire shall be de vicineto Forestae as de vicineto Hundredi Manerii and that was holden to be a material exception Another exception was taken because a Writ of Right doth not lie of an Office for at the Common Law an Office did not lie of it but now it doth by the Statute of West 2. For it was not liberum tenementum but the party grieved was put to his Quod permittat And of this opinion was the whole Court. XLVIII Johnson and Bellamy 's Case Hillar 31 Eliz. In the Common-Pleas

Postea 82 83. IN Ejectione firmae It was found by special Verdict That Mr. Graunt was seised of the Lands c. and by his Will devised the same to Joan his Wife for life and farther he willed That when Richard his brother shall come to the age of 25 years he should have the Lands to him and the heirs of his body lawfully begotten Mr. Graunt died having issue of his body who is his heir Richard before he had attained the age of 25 years levied a Fine of the said Lands with Proclamations in the life and during the seisin of Joan to A. Sic ut partes ad finem nihil habuerunt and if this Fine should bind the Estate-tail was the Question And the Iustices cited the case of the Lord Zouch which was adjudged M. 29 and 30 Eliz. Tenant in tail discontinues to E. and afterwards levieth a Fine to B. although the partes ad finem nihil habuerunt yet the Fine shall bind the entail But the Serjeants at Bar argued That there is a great difference betwixt the Case cited and the Case at Bar for in that Case the said Fine was pleaded in Bar but here the Fine is not pleaded but found by special Verdict To which it was said by the Court that the same was not any difference For the Fine by the Statute is not any matter of Estoppel or conclusion but by the Statute doth bind and extinguish the Estate-tail and the right of it and Fines are as effectual to bind the right of the entail when they are found by especial Verdict as when they are pleaded in Bar And by Periam Collateral Warranty found by Verdict is of as great force as if it were pleaded in Bar And afterwards Iudgment was given That the Estate-tail by the Fine was utterly destroyed and extinct XLIX Jay 's Case Trin. 29 Eliz. In the Common-Pleas JAY brought an Action of Debt before the Mayor of Shrewsbury c. and declared upon an Obligation which was upon condition to pay money at London and issue was there joined upon the payment And it was moved how this issue should be tried viz. 4 Inst 205. If it may be removed by Certiorare into the Chancery and thence by Mittimus into the Common-Pleas and from thence sent into London to be tried and when it is tried to be remanded back to Shrewsbury to have Iudgment See 21 H. 7. 33. Vpon voucher in the County Palatine of Lancaster the Law is such in matters real for real actions cannot be sued but in the said County Palatine but in personal matters it is otherwise for such actions may be sued elsewhere at the pleasure of the party And thereunto agreed the whole Court and although such matters have been removed before yet the same were without motion to the Court or opposition of the other party and so not to be accounted Precedents See 3 H. 4. 46. abridg'd by Brook Cause de remover Plea 41. Where he saith That a Foreign Plea pleaded in London in Debt goes to the jurisdiction but upon a Foreign Voucher in a Plea real the Plea shall be removed in Bank by the Statute to try the Warranty and afterward shall be remanded L. Sands and Scagnard 's Case Trin. 29 Eliz. In the Common Pleas. IN an Action upon the Case The Plaintiff declared that he was possessed of certain Chattels which came to the Defendant by Trover The Defendant pleaded That heretofore the Plaintiff brought Debt against the now Defendant and demanded certain moneys and declared that the Defendant bought of him the same goods whereof the Action is now brought for the summ then in demand to which the then Defendant waged his Law and had his Law by which Nihil Capiat per breve c. was entred And demanded Iudgment if c. And by Windham and Rodes Iustices The same is no bar in this Action for the waging of the Law and the doing of it utterly disproves the Contract supposed by the Declaration in the said Action of Debt and then the Plaintiff is not bound by the supposal of it but is at large to bring this Action and so Iudgment was given for the Plaintiff LI. Spittle and Davie 's Case Trin. 29 Eliz. In the Common-Pleas Owen Rep. 8 55. IN a Replevin the Case was That one Turk was seised of certain Lands in Fee and by his Will devised parcell of his said Lands to his eldest Son in tail and the residue of his Lands to his younger Son in Fee Provided that neither of my said Sons shall sell or make Leases of the Lands given or bequeathed unto them by this my Will or doe any Act with any of the said Lands to the hindrance of their children or mine by any devise or means before they come to the age of 30 years and if any of my Sons doe so then my other Son shall have the portion of my Lands so devised to his Brother the eldest Son before his age of 30 years leased the Lands to him devised ut supra for years against the intent of the said Proviso The younger Son entred 2 Cro. 398. and he leased the same Land for years before his age of 30 years Vpon which the eldest Son did re-enter and the opinion of the Court was that here is a Limitation and not a Condition and here the re-entry of the eldest Son was holden unlawfull for this Proviso did not extend but to the immediate Estate devised expresly to them and not to any new Estate which did arise upon the limitation and when the younger Son enters upon the eldest Son by the said Limitation he shall hold his Estate discharged of the Proviso or any limitation contained in it LII Martin Van Henbeck 's Case Trin. 30 Eliz. In the Exchequer AN Information was exhibited in the Exchequer against Martin Van Henbeck Merchant-stranger upon the Statute of 18 H. 6. Cap. 17. concerning the gaging of vessels of Wine and shewed That the Defendant had sold to such a one so many pipes of Wine and that none of them did contain as they ought 126. gallons and although they were so defective yet the Defendant had not defalked the price c. according to the want of measure for which he had forfeited to the Queen all the value of all the Wine so defective Exception was taken to the Information because there is not set down how much in every pipe was wanting as one or two gallons c. To as a ratable defalcation might be made according to the proportion of the want of measure But if the Informer had set forth in his Information that no defalcation was at all such general allegation of want of measure without other certainty had been good And the Case was cited 32 E. 4. 40. Lysle's Case Where the plea wants certainty or where he pleads that he was ready to shew to the Council of the Plaintiff his discharge of an Annuity c. and doth not shew

what manner of discharge as release c. So 2 H. 7. 6. in Dower against the heir who pleads in Bar Detainment of Charters without shewing what Charters in certain also there is time enough of defalcation when the time of payment comes and not upon the Contract and it is not shewed that the Vendee had paid for the Wine Egerton Solicitor contrary When the thing demanded is to be recorded there it ought to be certainly shewed but contrary where it goeth onely to the point of Conveyance of the Office and here the thing to be abated is not in question for be it more or less the Defendant is to lose the value of all the Wine and that which is to be defalked is but an Induction or Conveyance tending to the payment of the forfeiture As in Partridge's Case 7 E. 6. Plow 85. Whereupon the Statute of 32 H. 8. Maintenance The Plaintiff charges the Defendant with a Lease for years made to a stranger without shewing for what term certain and yet it was there holden well enough notwithstanding that the Lease was not to be forfeited but was a Conveyance to the point of forfeiture i. the value of the Lands 38 Ass 12. A Steward of a Leet was presented for that he had suffered many Brewers and Bakers to ba●● and brew contrary to the Assise pro redemptione inde capiend without shewing in certain what Bakers or of whom he had taken redemption but notwithstanding that the Defendant took issue upon the matter c. And it is impossible for the Informer to know the quantity of the full measure of every pipe of Wine which doth not belong to him but to another and if the Law should compel him to this impossibility the Statute should be of none effect 3. E. 3. 363. In Nusance for drowning of his Lands exception was taken because it was not set forth what quantity of land but it was not allowed for it is impossible to know to what depth the land was drowned and how much of the land was drowned So here the Informer cannot know every spoonfull c. And he said that the defalcation ought to be at the time of the Contract or within convenient time after Coke contrary Here is a great incertainty which is not tolerable in an Information for the quantity of the want is uncertain and so likewise the quantity of the defalcation for the want must be fourty twenty ten five or one gallon pottle quart or pint and in such Information upon penal Laws the matter of it ought to be certainly shewed Oportet ut res certa deducatur in judicium so as the Court may judge thereof as where an Information is exhibited upon the Statute of Vsury That Statute is that if any take above 10 l. for the loan of 100 l. for one year he shall forfeit the whole value of the principal here there ought to be an usurious Contract for above 10 l. in the hundred and also there ought to be a taking and it is impossible to discover the subtilty of an Vsurer But if Information be exhibited here against an Vsurer and chargeth that he took more then 10 l. in the hundred without shewing how much such Information is utterly insufficient for the Informer ought to set forth the quantity of the interest received and yet the same is not to be recovered Also if the Informer setteth for an usurious Contract Cum quodam homine ignoto it is insufficient 5 H. 7. 17 18. If an Information be exhibited upon the Statute of Liveries as well the giver as the taker ought to be certainly shewed c. Another exception was taken because the words of the Information are Quae quidem dolia vel eorum aliquod c. did lack c. But by Manwood the same is well enough Wherefore Coke did not speak to it And he said that the time of the defalcation of the price is upon the payment and not before If J. S. lend to one 100 l. for a year and upon the loan contract with me to give me 20 l. for the loan of the same for one year If now when I pay him he taketh but 10 l. he shall not be punished for the Contract but perhaps the Bond shall be void And upon the Statute of 5 E. 6. of Ingressors If the Information be that the Defendant hath bought Corn c. it is not sufficient for the words of the Statute are Get into his hands c. Owen Serjeant to the same purpose He hath not alledged Quantum vel in quanto defecit If there had been but a Pint it had been sufficient The Information goes farther Non defalcavit tantum de pretio quantum defecit and so tantum quantum is incertainly laid 22 H. 6. If A. be bound to B. to make him a sufficient Estate in such Lands in an Action brought upon such an Obligation it is no plea to say That he hath made unto him a sufficient Estate c. but he ought to shew what Estate So 7 E. 4. If one be bound to repair such a house It is not sufficient to say that he hath repaired it but he ought to shew in hoc vel in illo Egerton The abatement shall be upon the Contract And afterwards Iudgment was given against the Informer because it is not shewed in the Information in how many Vessels there was want but if he had alledged but the want of one Pint it had been good for the value of all the Wine And by Manwood that might have been well enough known by the Gauging how much every Vessel wanted LIII Green and Everard 's Case Mich. 30 Eliz. In the Exchequer IN Ejectione Firmae against Everard by Green the parties were at issue and the said Green challenged one of the Iurors and assigned for cause because the said Iuror held Land under the same Title as the Defendant did To prove which one Lancelot Chandler was produced as a Witness for the said Green who deposed upon the said Challenge the same for which the Iuror challenged was drawn and so there was no Inquest and so the Plaintiff was delayed of his Trial whereupon he sued the said Lancelot tam pro Domina Regina quam pro seipso and it was found for the Plaintiff And now Exception in Arrest of Iudgment was put into the Court engrossed in Parchment viz. Ad Judicium pro Domina Regina praefat Querente Curia procedere non debet quia manifeste apparet per informat dict Querent quod ipse non fuit pars gravata quod per calumniam in dicta informatione specificat ac per jurament dict Lancelot super inde fact dictus Querens non fuit damnificat sed in calumnia praedict jurament praedict super inde factum tendebat in commodum ipsius Everardi propter quod ipse idem Everardus tempore calumniae praedict existens tenens Tenementorum praedictor per dict declarat specificator eadem Tenementa

adjudged by the whole Court that the Covenant did not lie by one of them onely but ought to be brought by them both LXI Carter 's Case Mich. 33 Eliz. In the Common Pleas. A Being seised of the Manor of Staple in Odiham 1 Cro. 208. Owen Rep. 84. 8 Co. 119. and of divers other Lands in Odiham suffered a common Recovery of the whole and by Indenture expressed the uses in this manner viz. of all his Lands and Tenements in Odiham to the use of his wife for life the remainder over c. And of the Manor of Staple to the use of his youngest son in tail but by the clear opinion of the whole Court although the Manor of Staple was in Odiham yet the wife shall have nothing therein for the intent of the party was that the son should have the same and his wife the residue and accordingly Iudgment was given LXII Cobb and Prior 's Case Mich. 33 Eliz. In the Common Pleas. THE Case betwixt Cobb and Prior was this A man seised of Lands in Fee devised the same to his Wife during the minority of his Son upon condition that she should not do Waste during the minority of the said Son and died The Wife married a Husband and died the Husband committed Waste It was holden by all the Iustices That the same was not any breach of the Condition and Iudgment was entred accordingly LXIII Taylor and Brounsal 's Case Trin. 33 Eliz. in the Common Pleas. IN an Information upon the Statute of 32 H. 8. by Taylor against Brounsal the Case was That John Brounsal was seised and gave the Lands to T. B. and the Heirs of his body c. the Remainder to R. B. and the Heirs male of his body the Remainder to the right Heirs of J. B. T. B. died having issue a Daughter and R. B. made a Lease for years of the Lands And it was holden by the Court to be no maintenance within the said Statute for he in the Remainder might make a Lease for years Then it was given in Evidence That a common Recovery was had against the Husband and Wife with a single Voucher and so the Remainder limited to R. B. destroyed and that after that Recovery R. B. made the Lease To which it was said by the other side That the said Recovery was never executed and no discontinuance of the Remainder and then the Lease made by R. B. was good and the truth of the Case was That such a Recovery was had and an Habere facias seisinam awarded and retorned but no Execution was in truth had upon it nor the Recoveror never entred And if R. B. who is a stranger to the said Recovery shall be admitted against the Recovery to say That no Execution was thereof was the Question and therefore all the matter was found by special Verdict It was also given in Evidence That the Land was given to T. B. and the Heirs males of his body and then when the Daughter which is not in truth inheritable entereth if that Entry she being privy in bloud to R. hee Vncle shall be a Disseisin or Abatement c. as in the Case of Littleton where the youngest Brother entreth after the death of the Father for in such case the youngest Son doth not get any Freehold but is but a Tenant at sufferance Anderson When the Daughter enters and takes a Husband who leaseth for years and the Lessee entreth the same is a Disseisin Periam doubted it for he said When the younger Son entred the Freehold was in him which Anderson doubted LXIV Maunsel and Vernon 's Case Trin. 33 Eliz. In the Common Pleas. IQ Debt by Maunsel against Hen. Vernon Esquire who came in by Capias i. compulsary Process and pleaded That he was Hen. Vernon Lord Powis and so a Baron of the Parliament and demanded Iudgment of the Writ Note some said That if the Defendant had come in by Issue joyned or gratis and not by compulsary Process he could not have pleaded this Plea or any other Misnosmer The Plaintiff replyed That the Defendant is an Esquire absque hoc that he is Lord Powis and a Baron of the Parliament and as the Iury was ready at the Bar to try this Issue this matter was objected And Anderson conceived That this Plea to the Writ was not good for the name of Lord is not any degree as Knight Duke Earl nor is it parcel of the name nor parcel of addition and therefore it is no Plea in abatement of a Writ and all the Writs of Parliament directed to Barons to summon them to Parliament shall have their Names Sirnames and Additions as if they be Knights Knights and if Esquires they shall be named Esquires and if a Bond be made by J.S. Lord R. the Writ shall not be so for the King by his Writ doth not name any one Lord but otherwise it is of Duke Earl c. for these are Offices of Dignity and parcel of their Names and not onely Additions Windham and Periam contrary and they conceived that there was no difference in this point betwixt a Lord and an Earl for which cause the Court being in doubt although that the Exception was entered of Record would have saved the same to the party and taken the Iury de bene esse but afterwards because it appeared it was joyned in the prejudice of Sir Edward Herbert who was a stranger thereunto and whose Title was concerned therein and there was none on his part to inform the Iury the Iury was at last dismissed by the Court. LXV Penruddock and Newman 's Case Trin. 28 Eliz. In the King's-Bench IN an Ejectione Firmae by Penruddock against Newman 1 Leon. 279 the Plaintiff declared of a Lease made by the Lord Morley and upon Not-guilty pleaded the Iury found this special matter scil That W. Lord Mounteagle seised of the manner of D. whereof c. became bound in a Statute in such a sum of Money to A. who died the Executors of A. sued Execution against the said Lord scil Extendi facias a Liberate issued upon which the said Manor was delivered to the Executors but the said Liberate was not retorned and it was farther found That the Executors being so possessed of the Manor the Lord commanded a Court Baron to be holden there which was done by sufferance and permission of the Executors and in their presence at which time the Executors said to the Lord the Conusor We have nothing to do with this Manor And upon this Verdict several matters were moved 1. If the Execution were well done because the Writ of Liberate was not retorned and as to that divers Books were cited 21 H. 6. 8. 18 E. 3. 25. And there is a difference betwixt a Liberate and a Capias ad satisfaciend and Fieri facias these Writs are Conditional Ita quod habeas corpus c. Ita quod habeas denarios hic in Curia 32 H. 8. ca. 28. 16 H. 7.

cited a Case adjudged upon a like Act scil the Statute of 35 H. 8. by which it was enacted That the Lady Katharine Wife of the said King should be as a Feme sole and that she might make Leases c. In that case the Leases should not bind the King or his successours for the said Act did not extend to make the Leases good but onely against Coverture And it was observed by Clench Iustice that in the Act of Parliament now in question It is expresly provided that the Rent reserved by the Marchioness should go to the lady Bourcher but no provision made that it should go to the King and therefore it is not reason that the King should be bounden But another matter arising upon the pleading the point did not fall in judgment LXVIII Backhouse and Spencer 's Case Trin. 29 Eliz. In the King's-Bench SAmuel Backhouse brought a Writ of Annuity against Alderman Spencer of London 1 Roll. 228. and declared upon a Grant of an Annuity for term of years and depending the Action the term expired And it was the clear opinion of the whole Court that the Plaintiff could not have Iudgment for the Iudgment in this Writ is Quod querens recuperet annuitatem praedictam and now there is not any Annuity in being See 34 H. 6. 20. 6 Co. Higgin's Case 1 Inst 285. a. 14 H. 7. 31. 19 H. 7. 16. LXIX Mich. 29 Eliz. In the Common-Pleas IN a Writ of Partitione facienda The Defendant prayeth Aid and the Plaintiff counterpleads the Aid upon which counterplea they are at issue and it is found for the Plaintiff It was adjudged that same is peremptory to the Defendant and the Iudgment shall be Non quod respondeat sed quod Partitio fiat c. LXX Rolston and Chamber 's Case 1 Leon. pa. 282. Mich. 29 Eliz. In the Common-Pleas ROlston brought an Action of Trespass upon the Statute of 8 H. 6. of forcible entry against Chambers and upon issue joined it was found for the Plaintiff and damages assessed by the Iury and costs of suit also and costs also de incremento adjudged and all were trebled in the Iudgment with this perclose Quae quidem damna in toto se attingunt ad c. and all by the name of damages and it was objected against this Iudgment That where damages are trebled no costs shall be given as in Wast c. But afterwards it was clearly agreed that not onely the costs assessed by the Iury but that which was also de incremento adjudged should be trebled and so were all the Presidents as it was affirmed by all the Prothonotaries and so are many Books scil 19 H. 6. 32. 14 H. 6. 13. 22 H. 6. 57. 12 E. 4. 1. Book of Entries 334. and Iudgment was given accordingly It was also agreed that the party so convicted of the force at the suit of the party should be fined notwithstanding that he was fined before upon an Indictment for the same LXXI Wren and Bulman 's Case Mich. 29 Eliz. In the Common-Pleas 1 Len. 282. Rolston and Chambers WRen brought an Action upon the Statute of 1 and 2 of Phil. Ma. for unlawfull impounding of Distresses against Bulman and was Nonsuit and it was moved by Shuttleworth Serjeant If the Defendant should have costs upon the Statute of 23 H. 8. and it was adjudged that he should not and that appears clearly by the words of the Statute c. For this Action is not conceived upon any such matter which is comprised within the Statute And also the Statute upon which this Action is conceived was made after the said Statute of 23 H. 8. which gives costs and therefore the Statute of 23 H. 8. and the remedy thereof cannot extend to any Action given by 1 and 2 Phil. Ma. And so Rhodes Iustice said it was adjudged 8 Elizabeth LXXII Mery and Lewes 's Case Mich. 29 Eliz. In the Common-Pleas MEry brought an Action upon the Case against W. Lewes 3 Len. 91. Executor of David Lewes late Master of St. Katharine juxta London and declared That the said David in consideration that Quaedam pars domus fratrum sororum Sanctae Katharin fuit vitiosa in decasu The said Mery ad requisitionem dicti Davidis repararet eandem assumed to pay to the said Mery all such moneys that the said Mery expenderet in such reparations And farther declared That eandem partem Domus praedict reparavit c. and upon Non assumpsit it was found for the Plaintiff In arrest of Iudgment it was objected That the count was too general Quaedam pars domus For the Plaintiff ought to have shewed specially what part of the house in certain as Hall Chamber or other Rooms but the same was not allowed Another objection was because it is set forth in the consideration that the Plaintiff Ad requisitionem dict Davidis repararet and the Plaintiff declared Quod reparavit generally without saying 2 Cro. 404. ad requisitionem dict Davidis reparavit and that is not the reparation intended in the Declaration scil Reparatio ad requisitionem but a reparation of his own head and at his pleasure and for that Case judgment was reversed LXXIII Brasier 's Case Mich. 29 Eliz. In the Common-Pleas NOTE It was agreed in the Case by all the Iustices and by the Prothonotaries That if the Disseisor levy a Fine and the Disseisee in the preservation of his right against the said Fine enter his claim in the Record of the Foot of the Fine that the same is not any such claim as shall avoid the Statute of 4 H. 7. See for this Case of the Lord Zouch in Plowden's Commentaries LXXIV Ralph Morris 's Case Trin. 29 Eliz. In the King's-Bench RAlph Morris and his Wife libelled in the Spiritual Court for that the Defendant called the Wife of one of the Plaintiffs Veneficam Sortilegam Incantatricem Daemoniorum and now came the Defendant into this Court and surmised that the matter of the Libell is determinable by the Common Law and thereupon prayed a Prohibition and it was holden by the Court That although the offence of Witchery be in some cases triable by Law yet the same doth not take away the jurisdiction of the Spiritual Court and therefore to call one a Witch generally an Action will not lie at Law as it hath been adjudged But to say that he hath bewitched such a one an Action will lie at Law. Wray Such Witchcraft as is made Felony by any Statute is not punishable in the Ecclesiastical Court but in case of slander of such Witchcraft upon such slanderous words of Witchcraft which is not Felony the Ecclesiastical Court shall punish the same and afterwards in the principal Case a Consultation was awarded LXXV Bardens and Withington 's Case Trin. 29 Eliz. In the Common-Pleas A. Is bound in a Statute to B. and sows the Land. B. extends the Lands which are delivered unto him

in execution it was adjudged in this Case that the Conusee should have the Corn sowed The same Law in case of a Recognizance LXXVI Smalman and Lane 's Case Trin. 29 Eliz. In the Common-Pleas THE Case was a Capias upon an original Process was delivered to the new Sheriff of Warwick against Lane at the suit of Smalman And the Sheriff informed the Court that before that the Process was directed to him That the said Lane was taken in Execution by the old Sheriff upon a judgment given against him in the King's-Bench and that the said old Sheriff had imprisoned the said Lane by force of the Execution in his own house and there he remained and prayed the advice of the Court what retorn he should make upon that matter because the said Lane was never in his possession for all the other prisoners which were in the Gaol and in the ordinary Prisons were delivered to him and the old Sheriff would not bring Lane to the place where the other Prisoners were delivered And it was the opinion of all the Iustices That by the Law the old Sheriff ought to deliver the body of him who is in his custody by view to the new Sheriff and such Prisoners ought to be brought unto him to view and from that time the Law shall adjudge such Prisoners to be in the possession of the new Sheriff and not before for he is not bound to go to them not being in the ordinary Prison of the County Anderson The new Sheriff may retorn That the said Lane is in Execution in custodia sua and so charge himself For although the Office of the old Sheriff be determined yet it is not an escape so long as the party be in custodia and not at large Periam contrary It is an escape in the old Sheriff as soon as his authority is determined the Prisoner not delivered See now C. 3. part 71. Wesby's Case LXXVII Megot and Broughton and Davie 's Case Mich. 29 Eliz. In the King's-Bench 1 Cro. 105. IN an Action upon the Case upon Assumpsit it was found by Nisi prius for the Plaintiff and afterwards before the day in Bank one of the Defendants died and after Iudgment given the other Defendant brought a Writ of Error in the same Court where the Iudgment was given and assigned an Error in fact scil the death of one of the Defendants pendant the Writ Roll 798. b. 3 Len. 96. Vide 2 E. 3. 21. It was said that the Case is not like the Case of an Action of Trespass for every Trespass done by many is several by each of them but every Assumpsit is joint and not several Another point was moved If the Court could reverse their own Iudgement Quaere LXXVIII Farrington and Fleetwood 's Case Trin. 29 Eliz. In the Exchequer THE Case upon the Statute of 31 H. 8. of Monasteries was this 3 Len. 164 165. ante 333. Plus The Abbat and Convent of A. c. 29 H. 8. made a Lease of certain Lands for three lives to begin after the death of one F. if they so long live and afterwards 30 H. 8 within a year before the dissolution they make another Lease to Fleetwood If the first Lease in the life of the said F. be such an Estate and Interest as by virtue of the said Statute shall make the second Lease void was the Question for it was not in esse but a future Interest Manwood All the reason that hath been made for the second Lease is because the first Lease is but a possibility for F. by possibility may survive all the said three and so it shall never take effect But notwithstanding be it a possibility or otherwise it is such a thing which may be granted or forfeited and that during the life of F. And note the words of the Statute If any Abbat c. within one year next before the first day of this present Parliament hath made or hereafter shall make any Lease or Grant for years life or lives of any Manors c. whereof and in which any Estate or Interest for life or years at the time of the making of any such Lease or Grant then had his being or continuance and hereafter shall have his being or continuance and then was not determined c. shall be void c. And here is an Interest and that not determined at the time of the making of the Lease to Fleetwood And of such Opinion were all the Barons and divers other Iustices and therefore a Decree was made against the Lease c. LXXIX Beaumont 's Case Trin. 29 Eliz. In the Exchequer NOte it was holden by all the Barons in the Exchequer Owen Rep. 46. That a Duty which is not naturally a Debt but by circumstances onely as Debt upon a Bond for performance of Covenants or to save harmless may be assigned over to the Queen for a Debt but in such case a present Extent shall not issue but a Scire facias shall issue forth to know if the party hath any thing to plead against such Assignment LXXX Goddard 's Case Trin. 29 Eliz. In the Exchequer IT was moved in the Case of Goddard concerning the Manor of Staple in Hampshire 11 Leon. 8. If the Tenant of the King of Lands holden in Capite be disseised and the Disseisor aliens the Lands and afterwards the Disseisee doth re-enter Manwood said That the Land shall not be charged with a Fine for alienation without licence because the Title of the Alienee grew under the wrong of the Disseisor but the person of the Disseisor shall be charged with such Fine Tenant of the King in Capite makes a Lease for life the Lessee for life makes a Feoffment in Fee without licence the Lessor re-entreth neither his person nor the Land shall be charged But if my Feoffee upon Condition maketh a Feoffment without license and I re-enter for the Condition broken now my Land shall be charged with the Fine upon Alienation for the Feoffee was in by me by good and lawfull Title because he had power to make a Feoffment over although subject to the Condition So if Tenant in tail or the Husband seised in the Right of his Wife make a Feoffment in Fee and afterwards the Land is recontinued the Fine accruing for Alienation without licence shall bind the Land And if Tenant for life loseth issues and dieth the Lands shall be charged with the same LXXXI The Lord of Northampton and Lord St. John 's Case Trin. 29 Eliz. In the Exchequer 2 Roll. 195. Co. 12. 1 2. Co. 4. 95. Dyer 262. THE Lord of Northampton had by ancient Letters Patents bona catalla felonum fugitivorum within the Isle of Ely and one dwelling within the Island was attainted of Felony to whom another was indebted by Obligation and the money by the Condition of the Bond was to be paid at a Manor of the Lord St. John's who within his Manor

had also bona catalla felonum fugitivorum and at the payment the Lord St. John claimed the money But all the Barons of the Exchequer were clear of Opinion That the Lord St. John could not have the money for the place of payment nihil operatur but the Obligation is the substance which came to the Lord of Northampton within the Isle of Ely. Popham the Queens Attorny claimed the money for the Queen for the Lord of Northampton cannot have it for by the general words of bona catalla felonum things in Action do not pass but by express words they well pass otherwise not And therefore day was given to the Lord of Northampton to shew his Letters Patents LXXXII Ards and Smith 's Case Mich. 30 Eliz. Rot. 2737. In the Common Pleas. 3 Co. 8. EDward Ards brought a Replevin against Smith and Reading the Defendants made Conusance as Bailiffs to Robert Chamberlain and shewed That one A. was seised of the Manor of Keney in Fee whereof the place where is parcel and so seised gave the said Manor to Richard Chamberlain and Sibil Fowler and to the Heirs males of the said Richard Richard and Sibil intermarry and have issue Edward Richard dieth Sibil dyeth Edward hath issue Leonard and dieth Leonard hath issue Francis and dieth Francis hath issue Robert in whose Right the Conusance is made and dieth Robert entreth The Plaintiff in bar of the Conusance sheweth That one B. was thereof seised and thereof enfeoffed one Cottesford then Master of Lincoln College and the Fellows thereof after which the said Leonard Son and Heir male of the said Edward 25 H. 8. did release to the said Master and Fellows with warranty the said Robert in whose Right the said Conusance is made being Heir male of the said Robert and demanded Iudgment if against that warranty c. The Defendants confess the Gift before to the said Richard and Sibil and that they had issue the said Edward but farther shewed That after the death of the said Richard Sibil and Edward her Son leased the said Manor for years to one Mascal who entred and was possessed Edward suffered a common Recovery unto the use of the Recoverors who entred and ousted the Lessee and enfeoffed the said B. who enfeoffed the said Master and Fellows the Lessee re-entred Sibil died Leonard Son and Heir apparent of Edward released to the said Master and Fellows with warranty Edward died Leonard died and thereupon a Demurrer was by the parties and the matter was If this Recovery being suffered by him in the Remainder in tail upon an Estate for life the Recoverors entring upon the Lessee for years of the Lessee for life and putting him out and afterwards the Lessee for years re-entring If now any Estate did remain in the College after the Re-entry which might work a Release Snag Serjeant argued That a sufficient Estate did remain in the College upon which a Release might enure i.e. an Estate to begin after the death of Sibil and the expiration of the term for years and although rei veritate Edward was not Tenant of the Freehold at the time of the Recovery yet such an exception doth not lie for the Issue and to that purpose he cited the Opinion of Fairfax 12 E. 4. 14. Shuttleworth Serjeant contrary This Recovery works nothing but by way of Estoppel and Conclusion and therefore the issue in tail may well disclose the matter and avoid such Recovery and the better Opinion in the Case cited before 12 E. 4. is That such a Recovery against such a person is utterly void which see there by ●ittleton Choke and Brian 14 E. 4. 2. and also 28 Ass 17. and Dyer 8 Eliz. 252 253. Land conveyed to the Husband for life the Remainder to the Wife in tail the Remainder to the Right Heirs of the Husband and Wife The Husband and Wife suffer a common Recovery the Husband hath issue and dieth and afterwards the Wife dieth the issue shall avoid the Lease and Recovery See also the Case betwixt Hare and Snow Plow 20 Eliz. 514. where a common Recovery was had against Tenant in tail and his Wife whereas in truth the Wife had nothing in the Land whereof the Recovery was suffered It was holden that the issue in tail or any other person might shew the truth of the matter for he shall not be bound by any Estoppel which his Father hath admitted by joyning in Voucher with his Wife for he is not subject to the Estoppel and therefore it was holden That if the Wife in such case might sue Execution to have in value yet the Son in tail might oust him of it So 8 H. 4. 122. a Praecipe is brought against Tenant in tail who prays in aid of a stranger as Tenant for life who enters into the aid and bars the Demandant and afterwards the Tenant in tail dieth his issue is at large to claim the Estate-tail although the mouth of his Father was estopped as to it So Tenant in tail brought a Quod ei deforceat and counted upon an especial tail whereas in truth it was a general tail and recovereth and dieth the said Recovery shall not conclude the issue See 33 H. 6. 18. And in our Case when the Recoverors enter by force of the recovery the same is a wrong to the Lessee for years and also to the Tenant for life for the one is ejected and the other disseised and therefore the Re-entry of the Lessee doth defeat all the Estate which was in the College under that Recovery and here the Entry of the Lessee for years shall avoid all the Estate which was conveyed to the College by the Recoverors See 44 E. 3. 30 31. Bassingborn's Assise Land is given to A for life the Remainder to B. for life the Remainder to C. in Fee A. aliens in Fee the Ancestors collateral of him who hath the Fee doth release to the Alienee with warranty B. enters here the whole warranty is lost and all the first Estate is recontinued So in our Case by this Entry of the Lessee the whole Estate of the College under the Recovery is defeated so as nothing remains in the College upon which the Release can enure and then there is no warranty in the Case And as the Case is here Edward who suffered the Recovery dieth before the descent of the warranty by the death of Leonard by whom the Release with warranty was made by the death of which Edward the Interest which the College had in the said Manor by the said Recovery and the Estoppel of it was determined and utterly gone and then the warranty descending afterwards cannot attach upon the possession which was at the time of the warranty made which was by the conclusion which by the death of Edward is determined and removed by an Eign Title i. the Entail As if Tenant in tail doth discontinue the Discontinue is disseised Tenant in tail releaseth with warranty to the

forfeiture because it is not any discontinuance It will be objected That the words of the Statute of 32 H. 8. are That such Recoveries shall be utterly void and if so then he in the Reversion cannot be damnified and then no cause of forfeiture To that it was easily to be answered That where Tenant for life doth any thing which sounds to the disinheriting of him in the Reversion by matter of Record although it doth not devest or otherwise prejudice the Inheritance yet it is a forfeiture Coke contrary Here in our Case there is not any Covin Sir William Pelham the Bargainee he was deceived by the Bargainor for he did not know but that the Bargainor was seised in tail at the time of the Bargain and it was lawfull for him to doe other act in the farther assurance of his bargain and it was also lawfull for him to vouch his Bargainor and although the Bargainor vouched a stranger yet it is not a forfeiture 39 E. 3. 16. Aid prayer of a stranger is a forfeiture and the reason thereof is because he acknowledgeth the Reversion to be in a stranger and that is the cause of the forfeiture See Book of Entries 254. Where upon aid prayer the party to have aid sheweth special matter but in our Case Sir William Pelham hath vouched his Bargainor and that not without cause for he hath a Warranty from him and the Demandant could not counterplead it for he had seisin by force whereof he might make a Feoffment As unto the Case of 14 E. 3. Tit. Receit 135. Lesse for life in a Praecipe against him without aid prayer pleaded to the Enquest at the first day in that case it is said that he in the Reversion may enter It is true that he may enter in the Receit but not into the Land for forfeiture for then Fitz. would have abridged the Case in title of Entry Congeable and not in the Title of Receit and the Book of 5 E. 3. is good Law for there the Tenant doth confess the Reversion to be in another but in our Case the Tenant voucheth which is a lawfull act done and according to the Covenants of his purchase And although the Recovery be by agreement yet it is not therefore a forfeiture for if the Tenant for life voucheth truly it is no forfeiture Before the Statute of West 2. cap. 3. which gave Receit to the Wife and to those in the Reversion where the particular Tenant is impleaded and maketh default vel reddere noluerit there was no remedy in such cases but by Writ of Right but no entry and that was for the reason of the credit which the Law gave to Recoveries for if they might enter wherefore is Receit given but that was in two cases onely But afterwards because it was found that many particular Tenants being impleaded would plead faintly the Statute of 13 R. 2. gave receit in such cases And upon what reasons were these Acts and Statutes made if in such cases the entry was congeable But after these two Statutes another practice was devised for such particular Tenants would suffer Recoveries secretly in such sort that those in the Reversion could not have notice thereof so as they could not before Iudgement pray to be received to remedy which mischief the Statute of 32 H. 8. was made by which all Recoveries had against Tenant by the Curtesie or otherwise for life or lives by agreement of the parties of any Lands whereof such particular Tenant is seised shall be void as Tenant by the Curtesie c. should be void against him in the Reversion and yet there was an evasion to creep out of that Statute for such particular Tenants would make a Feoffment with Warranty and then the Feoffee should be impleaded in a Writ of Entry and he vouch the Tenant for life who would aver and such Recovery was holden to be out of the Statute of 32 H. 8. For the Recovery was not against such particular Tenants c. For the remedy of which mischief the Statute of 14 Eliz. was made by which it is provided That such Recoveries had where such particular Tenants are vouched shall be void if such Recovery be by Covin betwixt them And he conceived That the forfeiture is not in respect of the Recovery it self but of the Plea pleaded by the Tenant And here in our Case there is not any Covin found or that Sir William Pelham knew that he was but Tenant for life but it is found that this Recovery was with their assent and that was lawfull as the case is for they might agree to have such a Recovery for farther assurance and so Sir William Pelham hath not vouched any but his Bargainor and that according to their Covenants and this Bargainor was not a bare Tenant for life but he had also a Remainder in tail although not immediately depending upon the Estate for life which he had cut off there it was not meerly a feigned Recovery See 5 E. 4. 2. and 24 H. 8. br Forfeit 87. where Tenant for life being impleaded in a Praecipe voucheth a stranger the same is no Forfeiture for the same doth not disaffirm the Reversion but contrary of Aid prayer for a stranger may release with warranty to Tenant for life upon which he may vouch And he reported in his Argument That Bromley Chancellor of England sent him to both the chief Iustices to know their Opinions upon this point and they were of Opinion That the Voucher of a stranger was not any Forfeiture and also that after the Recovery was executed he in the Remainder could not enter but they conceided that the Right of him in the Remainder was not bound And he said That after the Recovery was executed that he in the remainder could not enter See 24 H. 8. Br. Forfeit 87. For if Entry in such Cases should be lawfull infinite Suits would follow thereupon which would be much to the Discredit of common Recoveries which are now the Common Assurances of the Land. As to the objection of the Enfancy the same will not help the matter Br. Sav. Default 50. 6 H. 8. A Recovery had against an Infant in which he voucheth and loseth is not erroneous contrary of a Recovery upon a default And if an Infant Tenant in tail suffer a common Recovery the same is a discontinuance for in such Recoveries Infancy is not respected And in a Scire facias upon a Iudgment had against the Father the Heir shall not have his age And he cited a case out of Bendloe's Reports 5 Eliz. Tenant for life the Remainder over to a stranger in Fee Tenant for life is disseised by Covin in a Praecipe quod reddat against the Disseisor he voucheth the Tenant for life who enters into warranty generally and voucheth over the common Vouchee It was adjudged That the Recovery was out of the Statute of 32 H. 8. for the Recovery was not had against the particular Tenant for he

was both against the common Law and also against all Conscience These matters coming to the knowledge of the Iustices and the mischiefs thereupon following being very frequent and it appearing that the Tenant in tail was a dangerous fellow and that there was no safe dealing with him they took consideration of them and considering also with themselves That Lineal Warranty and Assets and Collateral Warranty without Assets did bar the Entail upon this consideration they grounded the practice and usage of common Recoveries So as by that means Tenant in tail hath Potestatem alienandi as he hath at the Common Law and by this means right was done to the Common Law because its authority was restored and thereby injury was done to no man But as for Tenant for life he never had Potestatem alienandi And as to that which hath been said That the recovery shall stand in force untill after the death of Tenant for life and in our Case here Tenant in tail is alive Truly if the Law should be such great mischiefs would follow For then great Iointresses the Widows of great persons having assurances to them of great and stately Houses and of Lands furnished with Timber of great yearly value might suffer such Recoveries and so having plucked the Fee out of the Heirs might commit waste and the same should be dispunishable which would be an intolerable mischief and so he concluded that the suffering of a Recovery was a forfeiture and Iudgment Trin. 21 Eliz. was given and entred accordingly XC Noon 's Case Trin. 31 Eliz. In the Exchequer DEBT was brought in London against one as Executor and upon fully administred pleaded it was found for the Plaintiff who assigned the same to the Queen whereupon a Scire facias issued out of the Exchequer against the Defendant into the County of Dorset The Serhiff retorned Nulla bona c. which Scire facias was upon a Constat of goods in another County It was agreed by all the Barons that the Debt was well assigned to the Queen And also that the Scire facias might issue forth of another Court than where the Record of the Iudgment remained and that upon a Constat of goods in another County than where the Writ is brought or where the party is dwelling he may well have a Scire facias in another County But the Retorn was challenged because contrary to the verdict As in a Replevin No such beast is not a good Retorn but Averia elongata or Nullus venit ex parte querentis ad monstrand averia And here the Sheriff might have retorned Devastavit which well stands with the Verdict 5 H. 7. 27. But as to that it was said by the Barons That it is true that the Sheriff of the County where the Writ was brought is concluded by the Verdict to make any retorn contrary to it but the Sheriff of another County shall not so be but the Sheriff of the County where the Writ is brought ought to retorn Devastavit c. and thereupon the Plaintiff shall have Process into another County But the Question farther was If a Scire facias upon Testatum shall issue into another County before that the Sheriff of the County where the Writ is brought had retorned a Devastavit for some conceived That a Devastavit where the Writ was brought ought first to be retorned and then upon a Testatum Process should issue forth into any County within England But others were of opinion That without a Devastavit retorned upon a Testatum Process might be sued forth immediately into any other County Williams said If I recover goods by Action brought in Midd. I may upon a Testatum have a Capias into any foreign County XCI Western and Weild 's Case Trin. 31 Eliz. In the Exchequer IN a Writ of Accompt brought in London the Defendant pleaded Never his Receiver c. which was found for the Plaintiff and Iudgement given that the Defendant should accompt Afterwards the Defendant brought his Writ of Privilege and if the same should be allowed after Iudgment was the Question Coke It shall be allowed for the Defendant hath not surceased his time This Iudgement to accompt is not properly a Iudgment for no Writ of Error lieth upon it before the accompt be ended Manwood Regularly after Iudgment no privilege shall be allowed but that is to be intended of a Iudgment ended but here notwithstanding this Iudgment the Action is depending and therefore he conceived that the privilege should be allowed in this case It was objected That then the Plaintiff should be at great mischief for he should lose the advantage of his Trial for he must begin again and plead again and have a new Trial. Clark the Plaintiff shall have benefit of his former Trial by way of Evidence XCII Brian and Cawsen 's Case Trin. 27 Eliz. In the Common-Pleas Rot. 1353. 3 Len. 115. IN an Action of Trespass by Brian and his Wife and others against Cawsen That William Gardiner was seised in Fee according to the custome of the Manor of C. of certain Lands and surrendred them to the use of his last Will by which he devised them in this manner i. I bequeath to John Th. my House and Land in M. called Larks and Sone To Steph. Th. my House and Land called Stokes and Newmans and to Roger Th. my House and Lands called Lakins and Brox. Moreover If the said John Stephen or Roger live till they be of lawfull age and have issue of their bodies lawfully begotten then I give the said Lands and Houses to them and their Heirs in manner aforesaid to give and sell at their pleasure but if it fortune one of them to die without issue of his body lawfully begotten Then I will that the other brothers or brother have all the said Houses and Lands in manner aforesaid and if it fortune the three to die without issue in like manner Then I will that all the said Houses and Lands be sold by my Executor or his Assigns and the money to be given to the poor The Devisor dieth John Stephen and Roger are admitted according to the intent of the Will Roger dieth within age without issue John and Stephen are admitted to his part John comes of full age and hath issue J. and surrenders all his part of the whole and his Estate therein to the use of Stephen and his heirs who is admitted accordingly Stephen comes of full age John the father dieth Stephen dieth without issue John the son as cosin and heir of Stephen is admitted according to the Will and afterwards dieth without issue The Wives of the Plaintiffs are heirs to him and are admitted to the said Lands called Larks and Sone and to the moyety of the Lands called Lakins and Brox parcell of Lands where c. by force whereof they enter into all the Lands where the Trespass is done and it was found That A. sole Executor died intestate and that Cawsen

the Defendant is cosin and heir of the Devisor and that he as heir entred and did the Trespass First it was agreed by all That by the first words of the Will the three Devisees had but for their lives But Fenner and Walmesley who argued for the Plaintiffs conceived that by force of the latter words scil If the said John Stephen and Roger live till they be of lawfull age and have issue of their body lawfully begotten Then I give the said Lands and Houses to them and their heirs in manner aforesaid c. that they have Fee and the words in manner aforesaid are to be referred not to the Estate which was given by the first words which was but for life but to make them to hold in severalty as the first Devise would and not jointly as the words of the second Devise do purport And Fenner said It had been resolved by good opinion That where a Fine was levied to the use of the Conusee and his Wife and of the heirs of the body of the Conusor with divers Remainders over Proviso That it should be lawfull to the survivor of them to make Leases of the said Lands in such manner as Tenant in tail might make by the Statute of 32 H. 8. Although those Lands were never devised before the Fine yet the Wife survivor might demise them by force of the Proviso notwithstanding the words in manner c. So if Lands be given to A. for life upon condition the remainder to B. in manner aforesaid these words in manner aforesaid shall refer unto the Estate for life limited to A. and not to the Condition nor to any other collateral matter The words If they live untill they be of full age and have issue are words of Condition and shall not be construed to such purpose to give to them by implication an Estate tail for the words subsequent are That they shall have to them and their heirs to give and sell at their pleasures by which it appeareth that his intent was not to make an Estate tail for Tenant in tail cannot alien or dispose of his Estate c. And as to the latter words And if it fortune they three to die without issue c. these words cannot make an Estate tail and the express limitation of Fee in the former part of the Will shall not be controlled by implication out of the subsequent words As if Lessee for fourty years deviseth his term to his Wife for twenty years and if she die the remainder of the term to another although she survive the twenty years she shall not hold over And here the second sale appointed to be made by the Executor shall not take away the power of the first sale allowed unto the Devisees after issue Snagg and Shuttleworth Serjeants to the contrary And they said that the Defendant hath right to two parts for no Inheritance vesteth in the Devisees until full age and issue and because two of the Devisees died without issue they never had an Inheritance in their two parts and so those two parts do descend to the Defendant as heir to the Devisor no sale being made by the Executor These words If John Stephen and Roger are to be taken Distributive viz. If John live c. are to be taken Distributive scil If John live untill c. he shall have Inheritance in his part Et sic de reliquis As if I have right unto Lands which A. B. and C. hold in common and I by Deed release unto them all the same shall inure to them severally 19 H. 6. And here these latter words If they three die without issue it seems to be but an Estate tail See to that purpose 35 Ass 14. 37 Ass 15. For a man cannot declare his intent at once but in several parts all which make but one Inheritance and so it is said by Persay 37 Ass 15. we ought to adjudge upon all the Deed and not upon parcell And see Clatche's Case 16 Eliz Dyer 330 331. And it was said That if I give Lands to one and his heirs as long as J. S. hath heirs of his body the same is a Fee-simple determinable and not an Estate tail Quaere of that Then here the Fee-simple is determined by the death of the Devisees without issue and therefore the Lands shall revert to the heir of the Devisor especially there being no person in rerum natura who may sell for the Executor before any sale by him made died intestate and if he had made Executors yet the Executor of the Executor could not sell which see 19 H. 8. 9 10. And afterwards the Iustices resolved That no Estate tail is created by the Will but that the Fee-simple is settled in them when they came to their lawfull age and have issue so as the residue of the Devise is void And Iudgment was given for the Plaintiffs XCIII Hil. 29 Eliz. in the Common Pleas. THE Case was this viz. By the Civil Law the Parson ought to have his Tythe by the tenth Ridg And in a great Field there was Corn upon the Arable Land Roll. 646. and Grass upon the Head Lands and in a Suit for Tythe Hay and Rakings of the Corn the Defendant did prescribe to pay the tenth Shock of Corn for all the Corn Hay and Rakings of the Corn and the Prescription was challenged not to be good for it is upon the matter a Prescription of Non Decimando for the tenth Shock is due of common Right and so nothing is for the Hay and Rakings It was holden by all the Iustices That for tying of Horses upon the Head Lands and eating of the Grass and Corn together that the Prescription was good But the doubt was when the Grass is made into Hay which is upon the Head Lands If it be a good Prescription then and discharge for the Hay because it is another thing than what is growing upon the Land But in the end all the Iustices agreed That by the Civil Law ut supra the tenth Ridg is due for Tythe Corn 1 Cro. 446. 475. therefore for the reaping binding and shocking it is a reasonable Prescription that the party shall have the Hay upon the Head Lands in recompence of the said other things and the Hay upon the Head Lands is but of little value XCIV 29 Eliz. Challoner and Bowyer 's Case IN Assise of Novel Disseisin by Challoner against Bowyer it was given in Evidence at the Assise That William Bowyer was seised and having issue two Sons and two Daughters devised his Lands to his younger Son in tail and for want of such issue to the Heirs of the body of his eldest Son and if he die without issue that then the Land shall remain to his two Daughters in Fee William Bowyer dieth the younger Son dieth without issue living the eldest Son having issue him who is Tenant in the Assise It was moved That notwithstanding that by way of Grant the

her customary interest as it were paramount the interest of the eldest Sister which she claimed by the Indenture Glanvil The customary interest of the eldest Sister is extinct upon this matter by reason of her agreement to it afterwards Where an Estate is given to one by a lawfull act it shall be adjudged in the party before agreement until it be disagreed unto and if the party do once agree he cannot afterwards disagree unto it If an Estate be lawfully made to a Copyholder but for years his whole interest in the Copyhold is determined and that a Freehold cannot be waived in pais but onely by matter of Record See 13 R. 2. Joynt-tenants 13. A Charter of Feoffment was made to four and Seisin was delivered to three of them in the name of them all and afterwards the fourth Feoffee came and saw the Deed and said That she would not have any thing in the Lands but altogether disagree unto it and it was that that disagreement by word in pais did not devest the Freehold out of her But when the party doth disagree in a Court of Record there the Freehold is out of the party ab initio and if he once agree he shall not disagree afterwards See Littl. Sect. 648. Tenant in tail enfeoffeth his Son and Heir apparent and another and Livery and Seisin is made to the other according to the Charter of Feoffment in the name of the Son also the Son not knowing of it nor disagreeing to the Feoffment the other Feoffee dieth the Son neither occupies the Lands nor takes the profits of them during the life of his Father the Father dieth the same is a Remitter to the Son because the Freehold is cast upon him and there is no default in him and therefore he is remitted But upon an illegal act is otherwise for if A. disseise B. to the use of C. in such case nothing is in C. before an express Agreement for the Disseisin was an unlawfull act And in this Case at Bar it doth not appear that the eldest Sister is dead and therefore the Right of the second Sister cannot now come in question Shute Iustice If the second Sister at the time of the making of the said Indenture had agreed unto it then it had been a full extiguishment but by an agreement afterwards it is not good Gawdy Iustice The remainder is in consideration of the Law and the Estate of the first Sister is not so determined that any can take advantage of it for the Lord against this Lease by Deed indented cannot enter or claim any thing and the second Sister although she hath not agreed yet she cannot enter during the life of her elder Sister for her Remainder takes effect in possession after the death of her said Sister But if any should take advantage of it it should be the Lord if his Deed indented did not stand against him And afterwards Iudgment was given against the younger Sister Clench Iustice was of another Opinion viz. That the Entry of the younger Sister notwithstanding that her elder Sister was alive was lawfull Quaere of that XCVIII Wellock 's Case Trin. 28 Eliz. In the King's-Bench A Parson in consideration of twelve pence granted to one of his Parishioners That he should hold his Lands discharged of Tithes It was holden by the whole Court That the same was no good Discharge being without Deed as a Lease of his Tithes But it was holden If the Parson afterward sueth the Parishioner for Tithes against the same Grant and Promise the Parishioner may have an Action upon the Case against the Parson upon his Promise although he cannot plead the Grant as a Lease XCVIII Lawson and Hare 's Case Trin. 28 Eliz. In the Common Pleas. 3 Len. 178. A Replevin by Lawson against Hare who avowed for a Leet Fee and shewed how that he and all those whose Estate he hath in the Hundred of C. have used to hold a Leet once every year and that at each time when such Leet hath been holden the Inhabitants within the said Leet have used to pay to the Lord of the Leet 16 d. for a Leet Fee and that the Lords of the said Leet have used to distrain for the same and shewed farther that 5 Julii 26 Eliz. he held there a Leet c. The Plaintiff replied Absque hoc that they had used to distrain and issue being joyned it was found for the Defendant It was moved in Arrest of Iudgment because that the Defendant had entitled himself to a Leet by an Estate in the Hundred and did not shew a Deed of it which was said he ought to have done as is 11 H. 4. 48. And of such opinion was Anderson and Windham Iustices Periam and Rhodes Iustices contrary as this case is and that the Avowant need not shew a Deed But if the hundred it self had been in question then a Deed ought to have been shewed But here the Avowant entitles himself to one thing scil a Leet and a Leet Fee by reason of the Hundred and it is sufficient for him to say That he is seised of the Hundred c. although it be by disseisin for if he hath possession of the Hundred be it jure vel injuria he shall have also all things incident thereunto for the possession of the Hundred draws to him the Leet and the Leet the Leet Fee. But admit in this case a Deed ought to be shewed 1 Cro. 217. 245. we are to see if the same be helped by the Statute of Jeofailes which extends to defaults in form in Writs Original or Iudicial Counts Declarations Plaints Bills c. 18 Eliz. cap 14. and such defects are thereby helped And by Anderson although that the Avowant be Quasi an actor yet in Rei veritate he is Defendant For although that he is to have retorn of the Cattel if it be found for him yet he who fueth the Replevin is the Plaintiff and if the Defendant will justifie the distress and not avow he is meerly Defendant and not a Plaintiff or Actor no more than in a Pra●cipe quod reddat The Tenant voucheth and recovereth in value he cannot be said Plaintiff or Defendant and the Avowant cannot be Nonsuit as the Plaintiff But Windham and Periam were of a contrary opinion For Avowry is in lieu of a Declaration and the Plea of the Plaintiff to the Avowry is not called a Replication but a bar to the Avowry But admit the Avowry be within the Statute then if the Statute of Jeofailes there extend to help it And Anderson conceived that it did But the Plaintiff might have demurred upon the Avowry for the not shewing the Deed and Iudgment should have been given for him but when he hath traversed and the issue found against him now it shall be intended that Avowant hath a Deed although he hath not shewed the same Another Exception was taken because it is said in the Avowry That the said Leet

Law doth admit the oath of the party in his own cause as in Debt the Defendant shall wage his Law Periam That 's an ancient Law but we will not make new Presidents for if such oath be accepted in this Case by the same reason in all cases where is secrecy and no external proof upon which would follow great inconveniencies and although such an Oath hath been before accepted of and allowed here yet the same doth not move us and we see no reason to multiply such Presidents The Declaration is that the Plaintiff was robbed of 10 l. de denariis ipsius querentis and upon the Evidence it appeareth That the Plaintiff was the Receiver of the Lady Rich and had received the said money for the use of the said Lady and exception was taken to it by Shuttleworth but it was not allowed for the Plaintiff is accomptable to the Lady Rich the said money And it was agreed that if he who was robbed after he hath made Hue and Cry doth not farther follow the thieves yet his Action doth remain CX Large 's Case Mich. 29 Eliz. In the King's-Bench 3 Len. 182. THE Case was A. seised of Lands in Fee devised the Lands to his wife until William his son should come to the age of 22 years and then the Remainder of part of the Lands to his two sons A. and John The Remainder of other part of his Lands to two others of his said sons upon condition That if any of his said sons before William should come to the age of 22 years shall go about to make any sale of any part c. he shall for ever lose the Lands and the same shall remain over c. And before his said son William came to the age of 22 years one of the other sons Leased that which to him belonged for 60 years and so from 60 years to 60 years until 240 years ended c. Bois A. and J. are joynt-tenants of the Remainder and he said That the opinion of Audley Lord Chancellor of England is not Law scil where a man deviseth Lands to two and to their heirs they are not joynt-tenants as to the survivor but if one of them dieth the survivor shall not have the whole but the heir of his that dieth shall have the moyety See 30 H. 8. Br. Devise 29. And he said That this Lease although it be for so many years is not a sale intended within the Will and so is not a Ioynture 46 E. 3. One was bounden that he should not alien certain Lands and the Obligor did thereof enfeoff his son and heir apparent the same was held to be no alienation within the Condition of the Obligation Of the other side it was argued The remainder doth not vest presently for it is incertain if it shall vest at all for if William dieth before he cometh to the age of 22 years it was conceived by him that the Remainder shall never vest for the words of the Will are Then the Lands shall remain c. 34 E. 3. Formedon 36. Land is devised to A. for life and if he be disturbed by the heir of the Devisor that then the Land shall remain to D. Here D. hath not any remainder before that A. be disturbed It was farther argued that here is a good Condition and that the Devisee is not utterly restrained from sale but onely untill a certain time scil to the age of William of 22 years And it was said that this Lease is a Covenous Lease being made for 240 years without any Rent reserved As such a Lease made for 100 years or 200 years is Mortmain as well as if it had been an express Feoffment or Alienation But it was said by some Antea 36 37. that here is not any sale at all nor any lease for the Lessor himself hath not any thing in the Land demised As if a man disseiseth a Feme sole and seaseth the Lands and afterwards marrieth the disseisee he shall avoid his own Lease 5 E 3. One was bound that he should not alien such a Manor the Obligor alieneth one Acre parcell of it the Obligation is forfeit See 29 H. 8. Br. Mortgage 36. A. leaseth to a religious house for 100 years and so from 100 years to 100 years untill 800 years be encurred the same is Mortmain Vide Stat. 7 E. 1. Colore termini emere vel vendere And in the principal Case if the Devisee had entred into a Statute to the value of the Land leased by the intent of the Will the same had been a sale and such was the opinion of the whole Court and by the Court the word in perpetuum shall not be referred to the words precedent but unto the words following scil in perpetuum perdat the Lands And if a custome be in the case that the Infant of the age of 15 years may sell his Lands if he make a Lease the same is not warranted by the custome And afterwards it was adjudged by the whole Court that the Lease made as before was a sale within the intent of the Will of the Devisor CXI Brooke 's Case Hill. 29 Eliz. In the King's-Bench APpeal of Burglary was brought against Brooke who was found guilty and before Iudgment given the Plaintiff died And now Egerton moved that Iudgment should be given for the Queen upon that verdict or at least that the Declaration in the Appeal should be in lieu of an Indictment and that the Appealee be thereupon arraigned and put to answer the same For if the Appellant had been Nonsuit or released the Defendant should be arraigned at the suit of the Queen Coke God hath now by the death of the party delivered the Defendant and it is not like where the Plaintiff releaseth for there it is the default of the Act of the party but here it is the Act of God and he held it for a rule That where auterfoits acquit is a good Plea there also auterfoits convict shall be a good Plea And it was holden in Sir Tho. Holcroft's Case Sir Thomas Holcroft's Case That where the party is convicted at the suit of the Queen there the Appeal doth not afterwards lie Wray If the Appellant dieth before Verdict the Defendant shall be arraigned at the suit of the King But if his life hath been once in jeopardy by Verdict he conceived that it shall not again be drawn into danger and some were of opinion that the Defendant should be arraigned at the suit of the Queen upon the whole Record and plead auterfoits acquit and that they said was the surest way CXII Ognel and Paston 's Case 29 Eliz. In the Exchequer .. 1 Cro. 64. CLement Paston was Defendant in an Action of Debt brought against him by George Ognel upon an Escape and the Case was this Francis Woodhouse was bound in a Recognizance to the said Ognel Whereupon Ognel sued forth a Scire facias and upon two Nihils retorned had

the Reign of King H. 8. And if the Common Law doth not warrant such Executions Truly the presidents cannot make such imprisonments lawfull without Act of Parliament It hath been said that Executions ought to be favoured that is true but also Liberty to which the Law hath special respect See the Statute of Magna Charta Nullus liber homo capiatur vel imprisonetur nisi per legale judicium parium suorum vel per legem terrae and this is not Lex terrae but usage onely and Malus usus est abolendus 26 Eliz. Error was brought upon a Iudgment given in Curia de Woodstock which is a Court of Record and Error assigned for that they had awarded Execution secundum consuetudinem Villae against one who had bailed the Defendant without a Scire facias first sued forth against him i. the bailee and it was adjudged Error and the custome could not maintain it for the Bailee might have a release or other matter of discharge to plead And he cited the Case of 13 and 14 Eliz. Dyer 306. That upon a Scire facias out of a Recognizance in Chancery Iudgment was given for the Plaintiff and the Warden of the Fleet was commanded to detain the Conusor in his custody in Execution for the Plaintiff and afterwards the Conusor escaped the Plaintiff not satisfied And it was holden no escape for his body was not liable in case of a Recognizance to the Execution and see also the book of Entries 500 there is a Rule put If the Recognizee will have execution within the year he may have a Fieri facias or Elegit but not a Capias ad satisfaciendum And he conceived that this Process is not onely erroneous but also utterly void As a Capias in a Formedon antea 77. contrary where in Debt a Capias is awarded after the year where it ought to be Scire facias the same is but erroneous for such Process lieth upon such Iudgment if he had not surceased his time Another matter he moved because this issue is not well tried for it was tried by Nisi prius out of the Exchequer and the Statute of West 2. cap. 30. Mar. 14 E. 3. cap. 1. do not give Nisi prius in Causes out of the Exchequer but onely out of both Benches but Causes out of the Exchequer are tried by Commission and here their Commission was insufficient for it was directed Chr. Wray and Williel Periam without saying Et eorum alteri so as it was joynt and not several and Wray at the time of the trial was as the Parliament at London and so the cause was tried before Periam onely and therefore coram non Judice At another day The Case was argued by the Barons of the Exchequer And Clark Baron conceived that the Plaintiff ought to recover and he said That upon the escape the Common Law gave an Action upon the Case against the Sheriff and the reason why the Sheriff shall be charged is that one cannot be in Execution but once and then if the Sheriff should not be charged the party Plaintiff should by negligence of the Sheriff lose his Suit and also his Debt And admit that a Capias doth not lie in the Case yet the Execution by force thereof is not void but voidable onely and Error may be assigned as well in the Execution as in the Iudgment which see 17 Ass 24. where the Recognizor in a Statute Merchant aliened the Land and afterwards the Conusee sued forth Execution so as the Land was extended supposing the payment i. Solvend 14 E. 3. whereas in truth it was 16 E. 3. and the Feoffee brought a Writ of Error thereupon and it was allowed but the Sheriff shall not take advantage of the same And truly the common course is That a Capias lieth upon a Recognizance and 7 H. 4. 101. upon a Recognizance acknowledged for the Peace a Capias lieth for the King and a Recognizance is but an Obligation of Record and wherefore should not a Capias lie thereupon as well as upon an Action brought upon an Obligation The Statute of West 2. cap. 45. Si recens sit Cognitio statim habeat Querens Breve de Executione illius Recognitionis and the Statute doth not speak in certain what manner of Writ or what manner of Execution therefore we ought to resort to the Common Law for it as that is a Capias Gent Baron argued and agreed in every point with Baron Clark. Manwood chief Baron argued That the Plaintiff should recover and he put the Case of Recognizance The Plaintiff sueth two Scire facias's upon which two Nichel's are retorned and afterwards a Levari facias and upon that also Nihil is retorned and then issueth a Capias ad satisfaciendum for to take the said Francis Woodhouse who then was in Prison for Felony upon which Capias the Sheriff did arrest him and he being afterwards convicted of Felony escaped upon this matter Debt is brought against the Sheriff A Recognizance taken in the Chancery is a thing upon Record in a Court of Record an Obligation of Record and a Debt upon Record It hath been objected where no Capias lieth in the Process upon the Original there no Capias lieth upon the Execution but it is good to examine the Reason thereof for Lex plus laudatur quando ratione probatur The Capias upon a Recognizance is not by 25 E. 3. but by the common Law for here is a Debt upon Record wherefore shall not this body be subject to it as well as in the case of a Debt upon a bare Obligation I do admit the Rule That where there is no Capias ad respondendum there is no Capias ad satisfaciendum but that ought to be intended in cases where there is an Original and Mesn Process before Iudgment but here is no Original nor Mesn Process before Iudgment ergo our Case is not within the same Rule But I will put a good Rule It is Debt upon Record ergo a Capias lieth In the King's Bench If the Defendant comes in by Latitat if the cause whereof the Action is brought be of importance he is to put in special Bail and those who bail him shall be bounden in a Recognizance c. The Defendant is condemned in the Action Now if the Defendant cannot be found so as Execution may be sued forth against him then a Scire facias shall issue forth against the Sureties which bailed him and upon that a Capias and that is very frequent therein use So also is the course of the Court of Common Pleas ergo it shall be so in the Chancery in case of a Recognizance If one be taken in Execution upon a Statute Staple and sueth an Audita Querela upon a Release or other matter and be bound with Sureties in the double value c. to the King and to the party If he be condemned in the Audita Querela c. and cannot be found a

Scire facias shall issue forth against the Sureties and thereupon a Capias And this question If the Capias in this case lieth or not is to be decided either by Audita Querela in the Chancery or by Error in the King's Bench for the said Courts have authority to affirm the proceedings or to disaffirm them And here the Question was If Woodhouse were imprisoned or no and not if the Capias erronice emanavit or not And he took a difference where Process is awarded out of a Court which hath not authority of the Principal cause there it is coram non judice and the Process is void and if the Sheriff taketh the party by force of such Process it is meerly void and he a Trespassor but contrary if the Court hath authority of the principal cause there if the Process be misconceived it is onely erroneous 10 Co. 76. An unskilfull man in Chancery makes an Appeal of Murther retornable in the Common Pleas and there an unskilfull Clark makes a Capias upon it the same is coram non-judice and not all together void But if in a Writ of Entry in the nature of an Assise the Demandant hath Iudgment to recover Debt and Damages and thereupon issueth a Capias the same is not void for it is but a misawarding of the Process provide emanavit If out of the Common Pleas immediately a Writ issueth to the Sheriff of Chester which is a County Palatine where the King 's Writ doth not run the same is void and false imprisonment lieth upon such a taking A Formedon brought in the King's Bench and upon that a Capias is void coram non judice and the Sheriff is bound to take notice of the Law in such cases that those of the King's Bench have not authority to hold plea in real Actions As to that That Woodhouse was convict of Felony the same shall not avoid the Execution but I grant that the King shall be satisfied before the subject c. And he relied much upon the said Case cited before 13 E. 3. Bar. 253. as to the matter of the Capias 19 H. 9. In Escape the Defendant pleaded a Release of him who recovered to the Prisoner being in Execution and it was holden no Plea. And in the principal Case Iudgment was given for the Plaintiff CXIII Bridget Clark 's Case Antea 30 31. Mich. 29 Eliz. In the Exchequer THE Case was Clark was indebted to Archdel by Obligation and afterwards delivered to Andrews certain Hogsheads of Wine to satisfie the said Archdel the said Debt and afterwards the Obligation of Clark is assigned to the Queen for the Debt of Archdel And if the property of the said Hogsheads of Wine were altered by the delivery of them to Andrews before the Assignment was the Question Egerton Solicitor The property is not altered for the Bailor might have an Action of Account against Andrews before that he hath delivered the same over according to the Bailment but if he hath delivered them over the same is a good bar in an Account But if one be accountable to me upon a Bailment and afterwards I do require him to deliver the Goods over to A. the same is not in bar of Account but is good in discharge of account before Auditors for the same is matter after the Bailment not upon the Bailment If Goods be bailed to bail over upon a consideration precedent of his part to whom they ought to be bailed the Bailor cannot countermand it otherwise it is where it is voluntary and without consideration but where it is in consideration of a Debt not countermandable contrary if it be to satisfie the Debt of another Manwood Where the Debtor of the King is sufficient there a Debt due to him ought not to be assigned to the King but onely where the Debt of the King is doubtfull and that was the ancient course but now at this day multi videntur habentur divites qui tamen non sunt and therefore omnis Ratio tentanda est for the Recovery of the King's Debts But as to the Case before us The Wife is Executrix to her Husband who was indebted to Archdel and she delivers the Goods to Andrews to satisfie Archdel and all that is before the Assignment And I am of Opinion That the property of the said Goods is altered for as the case is Andrews was Surety for Clark and hath a Counter-Bond of Clark to save him harmless If I borrow 100 l. and deliver unto the Lender Plate for the security of it the property general of it is in me yet the Bailee hath a special interest in it untill he be paid If Goods be delivered to A. to pay unto B. A. may sell them An Executor hath Goods of the Testators and he with his own Monies payeth the Debts of the Testator he shall retain the Goods and the property is altered And here in our case Andrews may by virtue of this Bailment sell the Goods and with the Monies arising thereof pay the said Archdel And afterwards Iudgment was given accordingly that the property of the Goods by the delivery over by Andrews was altered CXIV Foskew 's Case Mich. 29 Eliz. In the Exchequer FRancis Foskew seised of the Manor of Foskew in his Demesn as of fee in consideration of a Marriage to be had with Francis his Son with M. Daughter of Sir Edw. Huddleston 9 Feb. 25. Feb. covenanted to levy a Fine of the Manor aforesaid and that the said Fine should be to the use of himself and his Wife for their lives and after their deaths to the use of the said Erancis their Son and M. and the Heirs of their bodies begotten with remainders over The Fine was levied accordingly afterwards 19 Octob. 27 Eliz. Francis the Father acknowledged a Recognizance to the Queen and died his Wife died and now this Manor is extended for the Debt to the Queen by force of the Statute of 33 H. 8. And now Coke came into Court and prayed that the said Manor might be discharged of the Debt to the Queen because it is not chargeable by the said Statute the words of whicih Statute are All Manors Lands Tenements c. which hereafter shall descend remain or revert in Fee-simple tail general or special by from or after the death of any his or their Ancestor or Ancestors as Heir or by Gift of his Ancestor whose Heir he is which said Ancestor or Ancestors was is or shall be indebted to the King or any other person or persons to his use by Judgment Recognizance Obligation c. In every such case the said Manors c. shall be charged c. This Statute was made for the benefit of the King in two points 1. To make Lands entailed liable to the King against the issue tail for the Kings Debts in the cases aforesaid where they were not liable 2. To make Bonds taken by the Officers of the King to the use of the King as

also of Statutes We cannot deny but that we have Lands of the Conusor and of the Gift of the Conusor our Ancestor whose Heir we are who was indebted to the Queen and yet we are not within this Statute Was or shall be indebted shall not be intended after the Gift made for if he first convey his Land and afterwards becomes indebted the same is not within the Statute and where a mischief is to be remedied by a Statute the remedy in exposition of the Statute is to be applied according as the mischief doth require Shall be is to be intended of future Debts after the Statute and in our case the Father was not Receivor or other Officer to the Queen And if this Statute should be so construed the Father might take 10000 l. for the Marriage of his son and assurance of Lands unto him and then if he will acknowledge a Debt to the Queen he should defeat the whole which should be a very great mischief The words are By Gift after the Debt acknowledged to the Queen And he cited the Case 19 Eliz. Plow 191. betwixt Ludford and Gretton upon the Statute of 18 H. 6. the words of which are That whatsoever Warrant hereafter to the Chancellor of England addressed the day of the delivery of the same it be entred of Record in the Chancery and that the Chancellour make Letters Patents upon the same Warrants bearing date the day of the said delivery in the Chancery and not before and all Letters Patents made to the contrary shall be void And the Case was That a Warrant was directed to the Chancellour for the making of Letters Patents and delivered to him before the making of them but the day of the delivery was not entred of Record c. And it was holden that notwithstanding that the Letters Patents were good for the mischief at the Common Law intended to be reformed by that Act was not the post-dating of the Letters Patents but the ante-dating and therefore that ought to be principally taken into consideration which mischief being understood the words of the said Statute are to be applied to it ipsae etenim Leges cupiunt ut jure regantur i. with an Equity according to the Mischief and not always according to the precise words and in that case it is sufficient if the Letters Patents bear date after and not before the delivery of the Warrant and that was the matter intended to be reformed Also as our Case here is we are not within this Statute for the words are Of the Gift of his Ancestour but here the Son hath not the Lands of the Gift of his Ancestour but rather by the Statute of Vses and so he is in the Post and not in the Per by his Ancestour for here the Fine was levied to divers persons unto the Vses aforesaid and here the Gift was not a mere gratuity to his Son but in consideration that he should marry the Daughter of Sir Edw. Huddleston and also the Father was the King's Debtor after the Gift and not before Popham Attorney-General to the contrary The letter of the Statute is with us for he comes in of the Gift of his Ancestour who was indebted to the Queen and although that the Gift was by way of use yet the precedents in the Common-Pleas and other Courts are That he may declare of the Feoffment of such a one although it was by way of use and he said If A. be bound to enfeoff B. of such Lands if he maketh a Feoffment to the use of B. and his Heirs he hath well enough performed the Condition and if the Case should not be within the Statute then should that branch of the Statute be idle and to no purpose For if the Ancestour be seised and becometh indebted to the Queen and after makes a conveyance ut supra the same is provided for by the first branch of the Statute For the Land is liable to the Recognizance or Obligation made to the King and that they shall be as effectual as a Statute Staple and reason requires that the son who comes in by mere gratuity of his Ancestour should be charged And it was a common practice before the making of that Statute That the King's Officers would convey their Lands to their children and then become the King's Debtors for the remedy of which mischief the Statute was made and the Statute of 27 Eliz. doth not respect the Heir because he is Heir but as a purchasor onely and that upon good consideration Coke If any fraud can be found in our Case then without doubt we should be within the Statute but being upon good consideration it is out of the Statute nor was there any purpose in the father when he made the said Conveyance to become the King's Debtor or Officer to him for if there were then he is within the Statute also the Gift had been a mere gratuity c. And afterwards at another day the Case was moved by Coke and he said That here is not any Gift because it was in consideration of Marriage and then no gift for it is an old Proverb What is freer than gift Egerton The father giveth to his son and heir the same is within the Statute and yet here is consideration scil of blood Coke contrary Where the father giveth to his younger son or to his daughter which is not his heir and of that opinion was Manwood chief Baron And afterwards as Coke reported the son and his Lands were discharged CXV Amner and Luddington 's Case Mich. 26 Eliz. In the King's-Bench Error 3 Len. 89. 8 Co. 96. ERror was brought in the King's-Bench by Amner against Luddington Mich. 25 and 26 Eliz. Rot. 495. The Case was That one Weldon was seised and leased unto Pierpoint for ninety nine years who devised the same by his Will in this manner I bequeath to my Wife the Lease of my House during her life and after her death I will that it go amongst my Children unpreferred Pierpoint died his Wife entred and was possessed virtute legationis praedict and took Husband one Fulshurst against whom one Beswick recovered in an Action of Debt 140 l. upon which Recovery issued forth a Fieri facias and upon that a Venditioni Exponas upon which the Sheriff sold the said term so devised to one Reynolds Fulshurst died his Executor brought Error to reverse the Iudgment given against the Testator at the Suit of Beswick the Wife did re-enter and sold the Land and died Alice an unpreferred Daughter of Pierpoint did enter and upon that matter found by special Verdict in the Common-Pleas the entry of Alice was adjudged lawfull upon which Iudgment Error was brought in the King's-Bench And it was argued upon the words of the Devise because here the House is not devised but the Lease it self scil all his interest in the thing devised And it is not like unto the Case betwixt Welchden and Elkington 20 Eliz. Plow 519.

where the Case was That Davis being Lessee for years devised that his Wife should have and occupy the Land demised for so many years as she should live nor unto the Case of Paramour and Yardley 21 Eliz. Plow 539. for there the Lesse devised That his Wife shall have the occupation and profits of the Lands untill the full age of his Son For in these two Cases the Land it self is quodam modo devised but in our Case all the Estate is devised i. the Lease it self And also in those two Cases a certain person is assigned and named in the Will who should take the residue of the term which should be expired after the death of the Wife But in the Case at Bar there is not any person certain appointed c. but the Devise as to that is conceived in general words to Children unpreferred therefore neither any possibility nor Remainder in any person certain therefore all the term is wholly in the Wife and then she might well dispose the whole But all the Court was to the Contrary and that in this case the possibility should rise well enough to the death of the Wife to that Daughter unpreferred Another matter was moved If the said term being sold in the possession of the Wife of the Devisor by force of the Execution aforesaid If now the judgment being reversed the sale of the term be also avoided for now the party is to be restored to all that which he had lost And it was argued by Coke That notwithstanding the reversal of the Iudgment the sale did stand good for the Iudgment for the Plaintiff in a Writ of Error is That he shall be restored to all that which he hath lost Ratione judicii praedict and the Iudgment was That the Plaintiff should recover 140 l. and therefore by the Iudgment in the Writ of Error he shall be restored to so much but the mean act scil the sale of the Lease shall stand and shall not be defeated or avoided As 7 H. 6. 42. A Statute Staple is bailed in Ouster le main the Conusee brings Detinue against the Bailee and hath Iudgment and recovers the Statute and upon that hath Execution The Baylee brings a Writ of Error and reverseth the Iudgment given in the Detinue yet the Execution shall stand and Audita Querela doth not lie for the Conusor And see 13 E. 3. t. Bar. 253. Accountant found in Arrearages committed to the next Gaol escapes and reverseth the Iudgment given against him in accompt by an Ex parte talis yet the Action upon the escape lieth and the Court as to that point all agreed but that point did not fall in Iudgment for by the sale nothing shall pass but the interest in praesenti which was in the Wife of the Devisor but the possibility to the children unpreferred was not touched thereby And afterwards the Iudgment was affirmed CXVI Edwards and Halinder 's Case Mich. 36 Eliz. In the Exchequer RIce Edwards brought an Action upon the Case against Halinder See the Case reported in Popham's Reports fol. 46. very short but not with the Arguments and declared That whereas one Banister had demised unto the Plaintiff a Cellar to have from week to week Quandin ambabus partibus placuerit And also whereas the said Banister had leased to the Defendant a Shop directly over the said Cellar there the Defendant had laid so great a burthen upon the floor of the said Shop that there by the said floor fell down and brake certain vessels of the Plaintiff's full of Wine by reason whereof the Plaintiff lost his Wine to the value of c. to his damages c. The Defendant said That before the charging of the floor ut supra The said floor had sustained greater weight and farther that the said Banister let unto him the said Shop for to lay there the weight of 30 Tun and he had laid there but the weight of 12 Tun and also that the Walls of the said Cellar are so weak that the floor of the said Shop fell by reason thereof upon which there was a Demurrer in Law. It was argued by Godfrey for the Plaintiff Where injury or wrong is done unto any the Law gives remedy to the party grieved and although that the Shop was let unto him to lay wares there which he hath done and that it was not his intent to surcharge the said Warehouse although the event be contrary yet forasmuch as by the laying of wares there a wrong and damage follow to the Plaintiff the Defendant shall be punished for the rule is Sic utere tuo ut alienum non laedas If I have a house and another buildeth so high over me that rain-water descends and falls from his house upon my house an Action upon the Case lieth See F. N. B. 184. So if by his building he stops my light as it was lately adjudged in the King's-Bench in the Case betwixt Bland and Mosely See 6 E. 4. 7. 8. Damages recovered for a wrong done against the will of the party and see other Cases upon this Learning 13 H. 4. t. Action upon the Case 48. The Plaintiff had sold certain trusses of Hay to the Defendant within such a Meadow to be carried away from the said Meadow within a certain time but the Defendant let the Hay lie there without carrying the same away so it putrified the Meadow by reason whereof the Plaintiff lost the profit of his Meadow for a great time and thereupon brought an Action of the Case against the Defendant and the Action was adjudged maintainable See 22 E. 4. 8. where the owners of the Plough in turning of the Plough according to the custome in the common fields upon the Land of another one of the Plough Cattel against the will of the driver takes a mouthfull of Grass the same is justifiable but if the driver of the Cattel suffereth the same to continue an Action will lie against him So 22 E. 4. 49. Where I am bound to enclose my Land against another and in default of enclosure the Cattel of the other escaped into my Land and Close I shall not punish him but if he after notice doth suffer them to continue there he shall be punished although it be through my default Also it is alledged in our Declaration That the Defendant intending to hurt and spoil the Plaintiff's Wines did lay such a weight c. And the Defendant answers thereunto That the floor fell in default of repairing of the walls of the Cellar or for the ruinousness of them where he ought to have pleaded farther Absque hoc that the Shop was surcharged with the intent to hurt the Plaintiff's Wines In an Action upon the Case upon a Trover The Defendant pleads that the goods whereof c. were pawned unto him for the security of certain money not yet paid The same is no plea without saying farther Absque hoc that he did convert c. See

43 E. 3. 33. In an Action brought against a Smith for his negligence in curing of a Horse which he took upon him to cure the Defendant was driven to traverse Absque hoc that the Horse perished in default of his care Dalton contrary Where in doing of a lawfull Act by a mishap a damage cometh to another against the will of the doer no punishment shall follow See the Case cited by the other side in 6 E 4. 7. 8. If he might have done more than he had done to have prevented the mischief he should be punished but if he could not have done more than he hath done or otherwise than he hath done to prevent it he is dispunishable and he may Uti jure suo although it be to the prejudice of another See 12 H. 8. 2. 3. Harcourt's Case If I cannot otherwise let the water out of my Land I may justifie the letting of it in your Land which is adjoining although that your Land be drowned thereby Sometimes ignorance of the party shall excuse the offence As if my Dog worry your Sheep if I do not know of such ill quality in him I shall not be punished for the same And it doth not appear that the Defendant had notice of the ruinousness of the walls although now it appeareth that they were ruinous and for that cause the floorfell for the Defendant said That the walls were ruinous in occultis absconditis partibus ipsorum And here needs not any Traverse For it is confessed That the floor of the Shop was surcharged but the same is avoided and excused because that the walls were ruinous in occultis absconditis ipsorum partibus And forasmuch as our Landlord who is also the Landlord of the Plaintiff hath let to us the Shop to lay there the weight of 30 Tun therefore the Defendant hath good right as to such weight against the Lessor of the Plaintiff and all others claiming under him And here the Plaintiff hath declared of a Lease from week to week Quamdiu ambabus partibus placuerit and hath not averred the continuance of his Lease c. Godfrey A Lease is made from year to year ut supra c. The Lessor brings Debt for the second year he need not to aver the continuance of the Lease for when the second year doth begin the Lessor cannot put him out that year But we upon the matter have averred the continuance for we have said Et sic possessionatus existens c. Manwood The Declaration is That the Defendant Nequitur malitiose intendens c. tantum ponderis was laid upon the floor Ita quod vi ponderis dirupta fuit contabulatio And the Plea of the Defendant is Quod muri in partibus occultis absconditis ruinosi fuerunt c. ideo corruerunt So as the Plaintiff speaks of the floor and the Defendant of the walls and so the Defendant doth not answer the Plaintiff for the Shopman ought not to go into the Cellar nor the Cellar-man into the walls But Dalton said That the Plea was Quod diruptio fractio contabulationis fuit ex eo quod muri ruinosi fuerunt in partibus occultis absconditis At another day it was argued by Flemming for the Plaintiff A voluntary and unlawfull act is laid to the charge of the Defendant who pleads special matter to excuse himself but doth not answer the point of the Action but onely that the fall was sudden Et quia muri fuerunt ruinosi in partibus occultis c. whereas we have declared that the weight was the cause thereof 3 H. 6. Double Plea 31. In an Action upon the Case for negligent keeping of fire the house of the Plaintiff was burnt he ought to take a Traverse without that that it was burnt by the ill keeping of the fire of the Defendant and he needs not to aver the continuance of the Tenancy at will 38 H. 6. 27. A Lessee for life assigns his Estate to B. who Leases at will to C. B. is disseised by D. and C. ousted C. re-enters and brings Trespass he must aver the Life of A. but not of B. nor the continuance of the will. Atkinson contrary I conceive there needs no Traverse for the matter of the Declaration is expresly confessed and avoided 5 H. 7. 12 13. where one makes Title to common or Rent by prescription if the other pleaded unity of possession he needs not traverse so where he claims B. for his Villain c. B. saith that he is a Bastard there needs no Traverse We have confessed in pleading Quod gravitate ponderis the floor fell down but we say farther that the cause was because the walls were ruinous c. and here is matter in Law Who ought to repair them The Lease was made unto the Defendant 29 Julii and the floor fell 30 Julii the day following and if by Law the Defendant ought to repair them it was impossible for him to do it and that shall excuse him If one hath a Shop and another a Cellar under it and the Shop minatur rainam there is a Writ in the Register De reparatione facienda 153 c. And it lieth against him who ought to repair by prescription or by the Law. And we who are the Lessee are not bound to repair for if the ground Timber be in decay and so the house ruinous at the time of the Lease it is a good Plea in an Action of Waste if the house fell in such defect for the Lessee is not bound to such reparation scil for great timber which was rotten at the time of the Lease But if after the Lease it becomes rotten for want of covering it is otherwise See 12 H. 8. 1. And here the Plaintiff hath remedy against his Lessor for he is bound to the reparations by the Law and not the Lessee And as he may have the said Writ De reparatione facienda before the mischief so he may now have after the mischief and therefore no Law binds the Defendant to repair Nor is there any custome pleaded to that purpose and also for as much as the occasion of the Cause of action was the ruinousness of the walls the Defendant shall not be charged with the same And also he shall not be charged with a thing he could not prevent Manwood The Defendant hath pleaded that the fall of the floor was eo quod the walls were ruinous in partibus occultis which was a secret thing and unknown unto the Defendant upon which the Plaintiff hath demurred and so confessed the plea of the Defendant to be true and that he was ignorant of the feebleness of the walls and therefore he needs not any Traverse And here the Defendant hath pleaded That the Shop was demised to him for greater carriage Gent Baron was of opinion That the Defendant had not fully answered to the Declaration for he is charged with the laying of so much weight

's Case Mich. 31 Eliz. In the King 's Bench. IN an Action upon the Case the Plaintiff declared 1 Cro. 291. 1 Len. 247. 3 Len. 174. That whereas he was possessed of a parcel of Land called the Parsonage lying adjoyning to a certain River from the 29 of May 29 Eliz. untill the day of the bringing of this Writ the Defendant had the said twentieth day of May stopt the said River with certain Loads of Earth and so it continued untill the fourteenth day of February by which his land was drowned and so he had lost the profit of it by that time And it was moved in Arrest of Iudgment That upon the Declaration there doth not appear any cause of Action for the Plaintiff hath made Title to the Land drowned from the twentieth of May so as that day is excluded and the Nusance is said to be made the twentieth day and so it appeareth the Nusance was before the possession of the Plaintiff and if it were so then cannot he complain of any wrong done before his time To which it was answered That although the stopping was made before his possession yet the continuance of the same is after and a new wrong for which an Action lieth as 5 H. 7. 4. It was presented That an Abbat had not cleansed his Ditch c. by reason of which the Highway is stopt The Successor shall be put to answer to the said Indictment by reason of the continuance of it And see that continuation of a Nusance is as it were a new Nusance 14 and 15 Eliz. 320. And it may be that the Plaintiff was not damnified untill long time after the twentieth day of May scil after the stopping And the words of the Writ here are satisfied and true And afterwards Iudgment was given for the Plaintiff CXXX Trusto and Ewer 's Case Pasc 31 Eliz. In the King's-Bench 1 Cro. 23. IN this Case it was agreed for Law That if a Controversie be betwixt two for the Title of a Lease for years and they submit the matter to Arbitrement and the Arbitrators award that one of them shall have the term the same is a good Gift of the interest of the term See 12 Ass 25. 14 H. 4. 19. 24. But if the Award be that the one shall permit the other to enjoy the term the same is no Gift of the interest therein See as to the Arbitrement 9 E. 4. 44. CXXXI Andrew 's Case Pasc 32 Eliz. In the King 's Bench. 1 Cro. 214. IN the Case of Andrews of Grays Inn it was holden by Gawdy and Fenner Iustices That if a Lease for years be made by Deed indented with these words demisi ad firmam tradidi That upon that Writ of Covenant lieth against the Lessor if he himself entreth upon the Lessee but contrary if a stranger enter if it hath not clause of Warranty For by Fenner when Covenant is brought upon that word Demisi the Plaintiff shall recover the term it self but not damages and that cannot the Plaintiff do when a stranger entreth and that was holden for clear Law See 9 Eliz. Dyer 257. A covenant against the Heir in such case CXXXII Bigg and Clark 's Case Hill. 32 Eliz. Rot. 549. In the King 's Bench. IN an Action upon the Case in the Court of Hertford the Plaintiff declared How that the Defendant hired a Horse of the Plaintiff to carry three Bushels of Coals from Ware to his House in Hertford and that the Defendant in consideration thereof did promise the Plaintiff quod ipse in via praedicta nollet onerare the said Horse aliter than with the said three Bushels of Coals And the Plaintiff said That the Defendant had loaded the said Plaintiff's Horse with a greater weight than with the said Coals and so had hurt his Horse upon which the Plaintiff recovered And Error was brought and the Error assigned was this That it is not specially shewed how the Defendant aliter loaded the said Horse with what thing As 19 H. 6. In Debt against Executors they plead That they have onely expended such a sum of the Goods of the Testator in Funeral expences absque hoc that they have administred aliter vel alio modo the Plaintiff cannot Reply and say that they have administred aliter vel alio modo without shewing how Another Error was assigned because it is not certainly shewed how the Horse was hurt but that Exception was not allowed for it is not the point of the Action but for the first matter the Iudgment was reversed CXXXIII Toley and Windham 's Case Trin. 32 Eliz. In the King 's Bench. IN an Action upon the Case the Plaintiff declared 1 Cro. 206. 3 Len. 150. That whereas certain controversies were betwixt the Plaintiff and Defendant for the profits of certain Lands which the Father of the Defendant had taken in his life time and whereas he had brought a Writ of Subpoena out of the Chancery against the Defendant for the said profits taken by the Father of the Defendant in his life intending to put in a Bill against the Defendant in the said Court The Defendant in consideration that the Plaintiff would stay his intended Suit promised That if the Plaintiff can prove that the Father of the Defendant took the profits or had the possession of the said Land under the Title of the Father of the Plaintiff that he should pay to him for all the said profits And farther declared That he had proved that his Father had taken the profits under the Title of the Father of the Plaintiff Coke took up Exception to the Declaration because it is not shewed How and by what means under the Title of the Father of the Plaintiff he took the profits as by Lease for that is traversable Gawdy Iustice The Son hath not any cause of Action or Suit for the profits taken in the time of the Father therefore the staying of Suit arising from such matter is not any consideration But as to the other Exception because it is not shewed how and by what Title he took the profits it is well enough As unto the other Exception it was moved at another day that there was a Case betwixt Stone and Withypool An Infant promiseth to pay a simple Contract Stone and Withypool's Case and thereupon there was a Suit in the Chancery but it was holden that it was not maintainable for the promise was void because there was no consideration And it was agreed by all the Iustices that this Action would not lie for the Plaintiff hath declared That where certain Controversies were betwixt the Father of the Defendant and him scil the Plaintiff himself for the profits of certain Lands which the Father of the Defendant had taken in the time of the Father of the Plaintiff c. and he doth not shew that he himself is Heir or Executor of his Father and therefore the Chancery cannot give him any remedy And on the other

side if the Plaintiff had any remedy the same ought to be against the Executors of the Father of the Defendant and the Plaintiff hath not allowed that the Defendant is Executor to his Father and therefore he hath not any colour of Suit against him nor therefore is there any consideration Fenner The Defendant by the Law is not chargeable nor in conscience upon this matter he shall be charged for by the same reason he should be charged for the simple Contract of his Father and a promise to pay it will not bind him And afterwards Iudgment was given against the Plaintiff CXXXIV Veal and Robert 's Case Trin. 32 Eliz. In the King 's Bench. IN an Ejectione Firmae the Plaintiff declared 1 Cro. 199. How that John Veal leased to him 30 Eliz for twenty one years ten Acres of Land called M. The Defendant pleaded That before the Demise and Ejectment one John Roberts was seised of the said ten Acres called M. in Fee and 14 Eliz. demised the same to one John Cox for life and afterwards 25 Elizab. John Roberts dyed and the Reversion descended to the now Defendant Cox demised the Land to John Veal for thirty years who leased unto the Plaintiff as in the Declaration of which he was possessed quousque c. Cox dyed 30 Eliz. after whose death the Defendant entred and ejected prout was lawfull for him to do c. The Defendant by replication saith That before John Roberts had any thing one Wall of P. of Glocester was seised of the said ten Acres inter alia and 29 H. 8. demised to John Veal Father of the Lessor of the Plaintiff the said Land inter alia by the name of two Messuages and two Yard Lands in the County of Glocester nuper in tenura J. S. and of two other Houses in a Yard Land tunc in tenura E. H. nec non de ten acres vocat M. lying inter C. I. tunc in occupatione E. W. for term of years yet during Habendum dict four Messuages and three Yard Lands in tenura I.S. E.H. nec non the said ten acres to the said John Veal à tempore mortis sursum redditionis forisfactur vel determinationis status vel terminor praedict I.H. W. in eisdem for sixty years by force of which he was possessed of the interest of the term aforesaid and afterwards 14 Eliz. the Estate of the said E. W. in the said ten acres ended for which the said John Veal entred and 25 Eliz. dyed intestate and Administration was committed to J. S. Lessor of the Plaintiff by force of which he entred and Leased to the Plaintiff and so he was possessed untill ejected The Defendant did rejoyn and said That long before John Roberts had any thing William Roberts was seised in Fee and enfeoffed the said John Roberts before the Ejectment supposed who demised unto John Cox and so as in the Bar absque hoc That the said Abbat demised to the said John Veal modo forma prout the Plaintiff replicando allegavit the which matter he is ready to aver petit Judicium The Plaintiff said That the Abbat demisit ut supra hoc petit quod inquiratur per patriam and it was found for the Plaintiff And it was objected by Snag That this issue was not well taken for the Estate of John Veal was not to begin before all the Estates being in esse at the time of the making of the Lease by the Abbat of Glocester are expired Coventry contrary and that the Estates do begin severally and singulatim as the Estates precedent shall end and shall not expect untill the other Estates be determined which see Iustice Needham's Case now reported by Coke 5 part 37 Eliz. and see Pollard's Case there cited At another day it was objected by Snag That the new Estate could not begin in any part untill all the former Estates be determined for if this new Lease be made reserving Rent and one part thereof is now come in possession then he should pay for that part all the Rent But the Court was clear of Opinion That the Lease in the ten Acres did begin presently without having regard to the other Estates in demand for the intent of the Lessor was That no mean time should be betwixt the expiration of the Lease for ten years and the beginning of the new As in the Case betwixt Wrotesley and Adams 1 Eliz. Plo. Com. 198. A Lease is made to begin after the expiration of a former Lease for years the first Lessee takes a new Lease of the Lessor which was a Surrender of the former Lease If the Lease scil the second Lease shall now begin was the question or should expect untill the first Lease shall end by expiration for the former Lease is ended but not expired i. by effluction of time And it was holden that the said second Lease should begin presently for the intent of the Lessor was that no mean time should be betwixt the end and beginning of the said Estates And afterwards Iudgment was given for the Plaintiff CXXXV Pasch 32 Eliz. In the King's-Bench NOTE If a Record be removed out of the Common-Pleas into the King's-Bench by Writ of Error and the Plaintiff shall not assign his Errors then a Scire facias shall issue forth quare executionem habere non debet and upon summons or two Nichels retorned the Plaintiff shall have Execution yet the Plaintiff may assign his Errors And to such a Scire facias Exception was taken because the Writ was coram nobis apud Westm where it should be ubicunque fuerimus in Anglia and for that cause a Supersedeas was granted It was also holden That although a Writ of Error doth not lie here upon a Iudgment given in London yet upon a Iudgment given at Newgate which is upon Commission in their Sessions Error lieth here CXXXVI Bows and Vernon 's Case Pasch 32 Eliz. In the King's-Bench DEBT upon an Obligation was brought by Bows against Vernon and Hennington who pleaded the Statute of 23 H. 6. and shewed that Vernon was in Execution and that the Bond was made for his deliverance against the Statute The Plaintiff replied and said That at the time of the making of the said Bond the said Vernon fuit sui juris and at large absque hoc that he was in Prison tempore confectionis scripti praedict modo forma c. Egerton Solicitor moved that the Traverse was not good for if a man be in Prison in Execution and makes a promise to make a Bond for which he is inlarged and within an hour after he makes the Bond the same is within the Statute and therefore this issue is not well joined but it ought to be absque hoc that it was pro deliberatione c. and of such opinion was Fenner and Gawdy Iustices See Dive and Manningham's Case 4 E. 6. Plo. Com. 68 69. acc CXXXVII Hunt and Sone 's

Case Hill. 29 Eliz. In the Common-Pleas IN an Action upon the Case the Plaintiff declared Owen Rep. 42. 1 Cro. 118. 1 Roll. 30. 4 Len. 13. That whereas the said Plaintiff was seised in his Demesn as of Fee of certain Land and shews the certainty of them the Defendant Sone in consideration that the said Plaintiff permitteret the said Sone occupare terras praedictas ab eodem die scil 20 Julii 27 Eliz. usque ad secundum diem Novembris quod esset in Anno Dom. 1589. super se assumpsit quod ipse idem W. Sone ad festum omnium Sanctorum proxime sequen 10 l. 2 s. 6 d. ac abinde annuatim durante termino dicto 20 l. 5 s. at festa Annunciationis beatae Mariae ac omnium Sanctor per aequales portiones solvend eidem Hunt the Plaintiff bene fideliter contentare vellet Ac licet praedict W. Hunt permisit praefat Sone occupare terras praedict à dict 20 die Julii 27 Eliz. usque ad secundum diem Novemb. 28 Eliz. Licetque post dictum 20 diem Julii 27 Eliz. ante praedict diem 2 Novemb. Anno 20 Eliz. dictum festum omnium Sanctor Anno 27 Eliz. supradict ac festum Annunciationis beatae Mariae Virginis ac festum omnium Sanctor 28 Eliz. praeterierunt praed tamen W. Sone dict 10 l. 2 s. 6 d. ad praed festum omnium Sanctor proxime sequent post permissionem assumptionem praed ac aliud 10 l. 2 s. 6 d. ad festum Annunciationis 28 Eliz. ac alia 10 l. 2 s. 6 d. ad fest omnium Sanct. Anno 28 Eliz. supradict nondum solvit c. The Defendant pleaded That the Plaintiff entred into parcel of the premisses ultimo Octob. 28 Eliz. eadem occupare eidem W. Sone non permisit upon which they were at issue and it was found for the Plaintiff And now it was moved in Arrest of Iudgment That the Plaintiff had not cause of Action before the whole Term be expired for it is an intire Assumpsit and cannot be by Action severed and therefore it was said That if I promise to pay you 20 l. viz. at such a Feast 5 l. and at such a Feast other 5 l. c. there before the last day of payment no Action lieth for the sum of 20 l. is one and entire but if I promise to another at Easter next 10 l. and at Midsummer as much c. here are several Assumpsits and upon default of payment of the first sum Actio oritur without respecting the last payment But at the last the Court was agreed That Iudgment notwithstanding the said Exception should be given for the Plaintiff and said That the Declaration was well enough as well in respect of the Exception aforesaid as also that this word licet is effectual enough for the setting down the permission CXXXVIII Roper 's Case Trin. 30 Eliz. In the King's-Bench Stamf. 166 167. Terms of the Law 75 76. Inst 131. ROper was robbed by Smith and within a Week after the Robbery he preferred an Indictment against him and within a Month after the Robbery he sued an Appeal against Smith and prosecuted the same untill he was out-lawed and thereupon Coke moved to have restitution of the Goods taken And B. of the Crown-Office said That the Fresh-suit was not enquired for upon an Appeal one shall not have restitution without Fresh-suit Coke The Books are That if the Defendant in an Appeal of Robbery be attainted by Verdict the Fresh-suit shall be enquired of but here he was attainted by Outlawry and not by Verdict and so the Fresh-suit cannot be enquired and here the Indictment within a Week and the Appeal within a Month after the Robbery is a Fresh-suit Wray Fresh-suit in our Law is to persue the Felon from Town to Town but the suing of an Appeal is not any Fresh-suit See 21 E. 4. 16. Restitution granted upon an Outlawry in an Appeal of Robbery without Fresh-suit enquired 1 H. 4. 5. if he confess the Felony See 2 R. 3. 13. CXXXIX Piggot and Russel 's Case Trin. 30 Eliz. In the Common-Pleas 1 Cro. 124. 1 Co. English his Case NOTE it was agreed per Curiam in this Case That if Tenant for life being of full age and he in the Remainder within age levy a Fine and afterwards the Infant reverseth the Fine as to him for the Inheritance he shall not enter for forfeiture because he joined in the Fine and so assented to it CXL Sir John Savage 's Case Trin. 29 Eliz. In the King's-Bench IN Trespass the Defendant justified because Sir John Savage was seised of the Manor of D. within which Manor the custome is That if any man taketh to Wife any customary Tenant of the said Manor and hath issue and shall overlive his Wife he shall be Tenant by the Curtesie and pleaded farther That he took to Wife one Ann to whom during the said coverture Postea 208. a customary Tenement of the said Manor did descend and that he had issue by the said Ann and that she is dead and so c. and it was adjudged That the Husband by this custome upon this matter should not be Tenant by the Curtesie for Ann was not a customary Tenant of the said Manor at the time of the marriage CXLI Stainsby and Hales 's Case Trin. 29 Eliz. In the King's-Bench IN a second Deliverance by Stainsby against Hales Challenge was taken for the Hundred and it was shewed and confessed That the Hundred of Feversham in Kent was and is within the Lathe of Seray and that there is not nor ever had been any Court holden in the said Hundred of Feversham but that all the Inhabitants within the said Hundred have used to go to the Court of the Lathe of Seray and it was holden by all the Iustices that in this Case Challenge ought to be taken for the Lathe and not for the Hundred for no Court had been holden in the Hundred See 2 H. 4. 6. 11 H. 4. 2. A Iuror was challenged for the Hundred and the Triors said That the party challenged was not of the said Hundred where c. but they farther said that there were six Hundreds all which came to one Court and the same was holden a good answer to the challenge and the party challenged was sworn CXLII Sands and Hempston 's Case Trin. 27 Eliz. Rot. 1201. In the King's-Bench IN a Replevin The Case was That Henry Earl of Westmerland Dy. 270. 2 Brownl 26. 3 Len. 59. 1 Leon. 4. 16. Postea 15. 2 Roll. 157. was seised of the Manor of Kennington in Fee and granted a Rent-charge to William Cordel afterwards Master of the Rolls for life and afterwards made a Feoffment thereof to Sir John Clifton who granted a Copihold to Sands for life according to the custome of the said Manor the same being an ancient Copihold Sir John died seised the Rent is behind Sir William Cordel died

of it is taken away by the act of the Plaintiff himself CLIV. Heal 's Case Pasch 30 Eliz. In the King's-Bench HEal a Bencher of the Inner Temple being at the Bar Wiat another Apprentice at Law informed the Court against the said Heal and shewed That where his Client had obtained a Iudgment in the King's-Bench The said Heal being of Council with the other part did advise his Client to bring the party who had obtained the Iudgment into the Chancery and he procured an Order against him Co. 3 Inst 12. 123 124. 4 Inst 86 91. by which he was cast into Prison Which matter Heal could not excuse but submitted himself to the Court saying That he had seen a precedent which induced him so to doe and that was the Case of one Prince Princes Case where a Iudgment given in this Court was drawn into question and examined in the Chancery But the Iustices said That the same was an ill precedent and against the Statute of 4 H. 4. which is That no Iudgment be undone but by Error or Attaint CLV Gray and Constable 's Case Pasch 30 Eliz. In the King's-Bench SIR Thomas Gray covenanted with the Lady Constable That where he is possessed of a Lease for twenty one years of certain Lands That he will assure convey and assign the said Lease to one Nevil excepting the two last years of the said twenty one years and he said Sir Tho. Gray was bound in a Bond to perform the Covenants of the said Indenture upon which Indenture the Lady brought Debt against the said Sir Tho. Gray who pleaded the Conditions and the performance of them The Plaintiff replicando said That the Defendant non assuravit conveiavit transposuit Anglice set over the said Lease upon which they were at issue And at the day of the Nisi Prius it was moved by Cooper and Beaumont That the Issue was misjoined for the Defendant pleads as the Covenant it self is That he had assured conveyed and assigned the Lease and so pleaded the performance of other Covenants c. The Plaintiff assigned the breach in this Quod non assuravit conveiavit transposuit Anglice set over which word transposuit is not in the Covenant nor in the pleading of the performance thereof and the English word set over although it sounds the same with assigning doth not help the matter and if the Latin word doth not agree with the matter non refert of the English word although in the Plea there be this word Anglice set over Note the Covenant was ut supra The Plaintiff assigned the breach Quod non assuravit conveiavit transposuit Anglice set over c. And the Defendant pleaded Quod assuravit conveiavit transposuit Anglice set over c. And the Court was clear of opinion That the Issue for that cause was not well joined And afterwards by the assent of the parties it was amended CLVI Doghead 's Case Pasch 30 Eliz. In the King's-Bench Hutt 35. Hob. 250. Antea 110. 1 Cro. 177. And. 116. AN Information was upon the Statute of 27 Eliz. cap. 4. by the party grieved which Statute gives unto the King one moyety of the value and the other moyety to the party grieved The Plaintiff was nonsuit It was holden by the Court that he shall not pay costs and damages by the Statute of 18 Eliz. for the Statute as the Title of the same doth imply is to redress Disorders in common Informers and so is the Preamble and the words also of the clause of costs and damages are Every such Informer and so by Ive Secondary of the Crown-Office An Action given to the party grieved is not a popular Action and the Statute of 18 Eliz. extends onely to popular Actions CLVII Cony and Chomley 's Case Pasch 30 Eliz. In the King's-Bench IN an Ejectione Firmae after Verdict in Arrest of Iudgment it was moved That the Plaintiff had declared in Ejectione Firmae Quod cum Robertus Diggon per Indenturam suam gerent dat 20 Maii 1 Cro. 773. 890. dimisit c. where he ought to have said iisdem die anno For although the Indenture bear date ut supra yet it may be that it was delivered at another day and then it doth begin to be a Demise And if in an Action upon the Case upon Assumpsit to pay money upon request although it be found for the Plaintiff yet if no day be put in the Declaration when the request was made but onely licet saepius requisitus in case where a request ought to be made there the Plaintiff shall not have Iudgment as it hath been oftentimes adjudged Quod omnes Justiciarii concesserunt But yet afterwards notwithstanding the Objection aforesaid Iudgment was given for the Plaintiff CLVIII Marsh and Jones 's Case Mich. 29 and 30 Eliz. In the Common-Pleas IN a Replevin the Case upon the Evidence was 3 Len. 114. That before the Statute of Quia Emptores terrarum a man made a Feoffment in Fee to hold of him by the service solvendi post quamlibet vacationem sive alienationem the value of the annual profits of the Lands And it was holden by the Court That the value shall be intended such a value as was the value at the time of the Feoffment made and not as it is improved by succession of time CLIX. Willoughby 's Case Mich. 29 and 30 Eliz. In the King's-Bench WIlliam Willoughby and two other were indicted 1 Cro. 3 Len. 216. That whereas the Parson of the Church of D. and all his predecessours have used to have Common in such a place the said Willoughby c. vi armis c. had inclosed it and the Inclosure was upon their own Lands It was moved That upon this matter they ought not to be indicted but the party grieved is put to his Action as where a Presentment is made of a Disseisin See 27 Ass 20. And it was the Case of one Morden Morden's Case 1 Cro. Madox Case 29 Eliz. upon the stopping of a Way upon his own Land And it was said That if it should be upon the Lands of another it were not material for it is but a hindrance from the taking of Common which cannot be vi armis Also it was said That the Indictment is recorded and certified as found before the Iustices of Assise and Gaol-delivery and they cannot take such Presentments And although the said Iustices of Assise and Gaol-delivery were in rei veritate also Iustices of the Peace yet the Indictment being recorded and certified to be taken before them in quality of Iustices of the Peace will not help it for the Court shall not respect any other authority but that which appeareth upon Record and therefore for the causes aforesaid they were discharged by the Court. CLX Collet and Robston 's Case Error Hill. 30 Eliz. In the King's-Bench 3 Len. 149. COllet and Andrews recovered in a

Writ of Account against Robston Hil. 29 Eliz. Rot. 1. and now Robston brought a Writ of Error and assigned for Error That whereas the said Writ of Account was brought against the said Defendant as Receiver of Monies for to render Account quando ad hoc requisitus fuerit the said Writ ought to have been more special But the opinion of the Court was That the Writ in his generalty was holden good And so it was adjudged in the Case of one Gomersal scil quod reddat ei rationabilem computum suum de tempore quo fuit Receptor Denariorum ipsius A. Another Error was assigned That the Iury had assessed damages which ought not to be given in an Action upon Account which see 2 R. 2. Acco 45. and 2 H. 7. 13. But see the Book of Entries fo 22. In a Writ of Account against one as Receivor to Account render damages were given For if my Bailiff 1 Leon. 302. by imploying of my Moneys whereof he was the Receivor might have procured to me profit and gain but he neglects it he shall be chargeable to me in right and shall answer for it And here in our case damages shall be given and afterwards notwithstanding all objections made to the contrary the Iudgment given before was affirmed CLXI Yates 's Case Hill. 30 Eliz. In the King ' s-Bench 3 Len. 231. A Writ of Error was brought by Yates and others upon a Iudgment given in a Writ of Partition and it was assigned for Error that the Writ of Partition was not sufficient for it is there set forth That the Plaintiffs insimul pro indiviso tenent cum defendente c. and do not shew of what Estate or whose inheritance See F. N. B. 61. 5. and 62. a. insimul pro indiviso tenent de haereditate quae fuit A. matris of the Plaintiff and the Defendant 1 Cro. 759 760. And yet see F. N. B. 62. A. A Writ of Partition betwixt strange persons without naming haereditate in the Writ And see also that a Partition of Lands in London without shewing of what Estate Courtney and Polewheel's Case Finch and Firrel's Case L. Cheney and Bell's Case See Register 76. 6 Eliz. in a Partition by Courtney against Polewheel no Estate shewed in the Writ so betwixt Finch and Firrel and betwixt Fry and Drake 14 Eliz. Devon. 26 Eliz. betwixt the Lord Cheney and Bell and Mich. 4 and 5 Ph. and Ma. Rot. 208. It was holden That it is not necessary in such a Writ to shew the Estate and such also was the opinion of the Court in the principal Case but Tenants in common ought to shew it in the Count And the Iudgment given was affirmed CLXII Phillips and Stone 's Case Mich. 29 and 30 Eliz. In the King's-Bench IN Debt upon an Obligation the Defendant pleaded the Statute of 32 H. 6. upon which this special matter was found That one J. S. had heretofore recovered against him 100 l. in an Action of Debt and upon the Capias ad satisfaciend he was taken and committed to the Plaintiff who was Gaoler c. to the Sheriff and so being in Execution he escaped and afterwards he was re-taken by the Plaintiff and kept in prison and so being in prison made the Bond upon which the Action is brought It was said by the Court That if a Prisoner being in Execution escapes with the permission of the Gaoler the Execution is utterly gone and extinguished and the Plaintiff at whose Suit he was taken in Execution shall never resort to him who escapes but shall hold himself to the Goaler for his remedy but if such a Prisoner escapeth of his own wrong without the privity or consent of the Gaoler the Gaoler may well take him again for his indemnity untill the Plaintiff hath determined his Election whether he will have his remedy against the Gaoler or that he will maintain his Execution 13 H. 7. 1 and 2. But as unto the Statute of 23 H. 6. the Court was of Opinion That posito that the party who escapes cannot be taken again yet being taken the Bond which is taken colore Officii is within the said Statute because the party was retaken colore Executionis and so the Bond was void CLXIII Gering 's Case Mich. 29 30 Eliz. In the King 's Bench. IN Debt upon an Obligation against one as Executor 1 Len. 87. the Case was That the Testator of A. by his Will appointed certain lands and named which should be sold by his Executor and the monies thereof coming to be distributed betwixt his daughters when they have accomplished the age of one and twenty years The lands are sold and if the monies thereof being in the hand of the Executor untill the full age of the daughters shall be Assets to pay the debts of the Testator was the question and it was the opinion of the whole Court that the said monies should not be Assets for they said that that money is limited to a special use Quaere of this Case For I have heard that it was afterwards resolved in another Case that the monies in the like Case remaining in their hands should be Assets CLXIV Davies and Percie 's Case Mich. 29 30 Eliz. In the Common Pleas. BEtween Margaret Davies and one Perce the Case was 2 Roll 284. Goldb 58. That one Anth. Perce upon speech of a marriage to be had betwixt the said Anthony and the mother of Margaret covenanted by Indenture with certain friends of the mother to pay to all the daughters of the mother 20 l. a piece at their several ages of four and twenty years and to perform the Covenant was bound to the said friends in an Obligation Anthony Perce made his Will and willed that his Executors should pay to each of the daughters 20 l. at their several ages of four and twenty years in discharge of the said Covenant and died Now the said Margaret sued the Executors in the Spiritual Court for the 20 l. bequeathed to her and upon this matter the Executors prayed a Prohibition And by the Lord Anderson a Prohibition will lie for here is no Legacy but the Will refers to the Covenant and is in discharge of the Covenant As if A. be indebted to B. in 20 l. And if A. by his Will willeth that his Executors shall pay to the said B. 20 l. in discharge of the said debt the same is not any Legacy but a Declaration that the intent of A. is that the debt shall be paid Periam Iustice was of the same opinion as the Lord Anderson and Anderson said If a Legacy be bequeathed to me and the Executor covenants to pay me the said Legacy and afterwards J. sueth the Executor in the Spiritual Court he shall have a Prohibition Quod caeteri Justiciarii negaverunt See F. N. B. 44 Br. If the Testator by his Will charge his Executors to pay his debts and his creditors they do

not pay them and the creditors sue them in the Spiritual Court they shall not have a Prohibition Vide 6. H. 3. Prohib 17. which Anderson Vehementer negavit and afterwards the Iustices looked and advised upon the Indenture and found that the indenture and Obligation were made to the friends of the mother of the daughters and not to the daughters themselves to whom the Legacies were give and bequeathed and therefore were of opinion that a Prohibition did not lie CLXV Thorp and Tomson 's Case Hill. 30 Eliz. In the Common Pleas. Rot. 336. IN Ejectione firmae It was found by special Verdict That one Thimblethorp was seised of the lands where c. and by Contract sold the same to Thorp but no assurance was yet made and afterwards Thorp before any assurance made sold likewise the said lands to Tomson and afterwards Thimblethorp made assurance thereof to Tomson and afterwards Tomson being seised devised the Lands to his younger son Dyer 376. by these words I bequeath to R. my son all the lands which I purchased of Thorp whereas in speaking the truth according to Law he purchased them by immediate assurance of Thimblethorp although he did contract with Thorp for the same And the opinion of the whole Court was without argument either at Bar or at the Bench That the Devise was good for in the repute of the people they preseised of Thorp for Tomson paid the monies for the same to Thorp and the Court commanded Iudgment to be entred accordingly And afterwards Exception was taken to the Verdict because it is not found by what service the land devised was holden Socage or Knight-service nor that the Devisor is dead and these were holden to be material Exceptions and for that cause the Iudgment was stayed and afterwards the Verdict was rejected and a Venire facias de novo awarded CLXVI Grove and Sparre 's Case Hill. 30 Eliz. In the Common Pleas. AN Action of Trespass was brought by Grove against Sparre Process continued untill Sparre was outlawed and now it was moved unto the Court to avoid the Outlawry That the original Writ and all the Iudicial Process thereupon are directed Vice-Com Wigorn. and in the Filazar's Roll in the Margent is written Hereford and in the body of the said Roll is written Et praedictus Grove obtulit se quarto die post Et Vicecomes modo mandat quod praedictus Spar non est inventus c. Ideo praeceptum est Vicecom c. and at the Capias retorned it is entred in the Roll as before Hereford whereas the Capias is directed Vicecom Wigorn. as of right it ought to be and the Roll was perused by the Court and it was ut supra and that without any suspicion of Rasure for which the Court gave day to the Queens Serjeants to advise themselves to maintain the Outlawry and the Defendants Council prayed That a Recordatur be made in what Estate the Roll now is for doubt of amendment by way of Rasure or otherwise which was granted by the Court. CLXVII Rushton 's Case Mich. 33 Eliz. In the Exchequer RUshton was indebted to the Queen in 200 marks See this Case vouched in C. 4 part in Palmer's Case 3 Len. 204. upon which issued an Extent against him out of the Exchequer to levy the said sum to the Sheriff of Suffolk and it was found by Inquisition That Rushton 22 Junii 22 Eliz. was possessed of a Lease for the term quorundam annorum adhuc venturorum and the debt of the Queen did begin 12 Febr. 17 Eliz. Exception was taken to this Office because that the term is not certainly found but generally quorundam annorum and it was said by Coke That the Office was good notwithstanding that Exception for the Queen is a stranger to the Lease and therefore ought not to be forced to find the precise certainty which see in Partridge's Case in Plowd The Defendant had made a Lease Pro termino quorundam annorum contra formam statuti Also Rushton came not to the Lease by Contract but by compulsary means as by Execution c. And here we are not in the Case of pleading but of an Office where such precise form is not requisite As if it be found by Office that J. S. was seised in tail without shewing of whose gift the same was it is good so an Indictment De morte cujusdam hominis ignoti the same is good but such Endictment taken before the Coronor is not good And that a Lease for years may be extended see 21 Ass 6. If a man be indebted to the Queen being a Lessee for years and afterwards before any Extent comes sells his term the same cannot be extended after And here it appears That this Lease was to begin at a day to come and that the Lessee did enter before the day by which he was a Disseisor and so he said he had lost his term Tenant for the life of another is disseised and dieth he remains a Disseisor and the occupancy doth not qualifie such disseisin And afterwards the Inquisition for the incertainty aforesaid was holden void and a new Commission was awarded CLXVIII Holland and Boin 's Case Mich. 29 Eliz. In the Common Pleas. IN a Replevin by Thomas Holland against William Boin's 3 Len. 175. 1 Len. 183. Ow. 138. who made Conusans as Bailey to Thomas Lord Howard and shewed that the Prioress of the late dissolved Priory of Hollywell was seised of the Manor of Priors in the County of Hertford and granted the same by words of Dedi Concessi pro certa pecuniae summa to Thomas Audley Chancellor of England and his Heirs who entred and died seised and that the said Manor inter alia descended to Mary daughter and Heir of the said Thomas Audley who entred and also died seised by force whereof the said Manor descended to the said Thomas Lord Howard c. and shewed that the said conveyance by the prioress to Audley bore date 4 Novemb. 29 H. 8. and then enrolled in the Chancery The Plaintiff in Bar of the Avowry shewed that after the making and enrolling of the said Conveyance the said Prioress Leased the said land to Sir H. Parker for 99 years and conveyed the said land to him and shewed farther That the said Conveyance specified in the Conusans was primo deliberatum 4 Nov. 31. H. 8. Absque hoc that the said Prioress the said 4 Novembris 29 H. 8. dedit concessit the said Manor to the said Audley upon which it was demurred in Law and the Court was clear of opinion That the averment of primo deliberatum against a Deed enrolled ought not to be reversed for by the same reason it may be averred never delivered and so upon the matter Non est factum And it was farther objected That bargain and sale by a Corporation is not good for a Corporation cannot be seised to another use and the nature of such Conveyance is to

not in the King without Office in the life of the party attainted upon the words of the Act shall forfeit See Stamford Prerogat 54 55. acc He said That this interest which came unto the King by this Attainder is but a Chattel and then it is remitted by the Pardon and so he conceived if it be a Freehold For the words of the general Pardon are large and liberal Pardon and release all manner of Treasons c. and all other things Causes c. and here Forfeitures are pardoned and this word things is a transcendent c. and although it be a general word yet by the direction of the Act of general Pardon it ought to be beneficially expounded and extended as if all things had been specially set down Also the words are Pardon them and their Heirs therefore the Pardon extends to Inheritance for otherwise there is no use of that And he conceived That by the first branch of this Act that the same extends to Inheritances and to acquit the Lands of all incumbrances for every Offence not excepted for there is the word Heirs and the third branch concerns onely Chattels and that is by the word Grant where the first is by words of acquittal See 33 H. 8. br Charter of Pardon 71. Tenant of the King dieth seised the Heir intrudes Office is found by Pardon of Parliament all Intrusions are pardoned in that case the Offence is pardoned but not the issues and profits of the Lands but by a Pardon before all is pardoned But here in our case the Office is not void for the Statute makes all Precepts Commissions c. void being awarded upon such forfeiture See also in the second branch Vexed or inquieted in Body Goods or Lands and see also among the Exceptions That persons standing indicted of wilfull Murther and Forfeiture of Goods Lands Tenements grown by any offence by such person By which he said that if such Exception had not been the Land of such person if he had been attainted upon such Indictment should be forfeited as to the Traverse he said That because the Office is true our Plea is in the nature of Monstrans de Droit although it concludes with a Traverse We vary from the Office in number of the persons and in the day of Feoffment and every circumstance in case of the King is to be traversed and our Plea in substance confesseth and avoideth the Offence Although that here the King be intituled by double matter of Record scil the Attainder and the Office yet one of the said Records scil the Attainder is discharged by another Record scil the Pardon and then but one Record remains scil the Office and therefore our Traverse well lieth And he said that by the common Law there was a Traverse as where it was found by Office that the Lessee of the King had committed Waste or had cessed for two years and that in such case the Lessee and Tenant in an Action brought against them may traverse the Offence therefore there was a Traverse at the common Law where the King was entitled by single matter of Record So upon Office finding Alienation without Licence there was a Traverse by the common Law See Traverse in such case in the Case of William de Herlington 43 Ass 28. See Br. Traverse of Office 54. Petition is by the common Law and Traverse by the Statute Frowick in his Reading See Stamf. Prerogat 60. That Traverse in case of Goods was at the common Law but for Lands by Office by 34 E. 3. 14. for before the remedy was by Petition See Co. 4. part the Sadler's Case 55 56. Traverse was at the common Law concerning Freehold and Inheritance but that was in special Cases scil when by the Office the Land is not in the King's hands nor the King by that is in possession but onely by the Office is entitled to an Action and cannot make a Seisure without Suit for there in a Scire facias brought by the King in the nature of such Action to which he is entitled the party may appear to the Scire facias and traverse the Office by the common Law. It was adjourned CLXX Scott and Scott 's Case Mich. 29 Eliz. In the King 's Bench. 1 Cro. 73. 3 Len. 225. 4 Len. 70. IN a Replevin betwixt Scott and Scott the Case was George Scott 2 H. 8. being Tenant in tail of certain lands suffered a common Recovery to the use of his last Will and 15 H. 8. made his Will by which he did declare That the Recoverors should make a good and favourable Lease to Hugh Scott his younger brother and 25 H. 8. they make a Lease of the same land to the said Hugh for 199 years according to the Will of the said George Scott rendring Rent 11 l. 6 s. 8 d. payable at the Feast of the Annunciation and S. Michael by equall portions and that to the Recoverors their Heirs and Assigns and there was a Covenant that after the death of the Recoverors the said Rent should be paid to Cestuy que use his Heirs and Assigns any thing in the said Indenture notwithstanding Proviso That if the Lesse make his Heir male his Assignee of that term that then he shall pay the said Rent to the Recoverors their Heirs and Assigns and the Lessee shall not pay the Rent to the Heirs of Cestuy que use upon which a Distress is taken and thereupon a Replevin brought Drew argued for the Plaintiff When a Condition is created the Law saith That it shall be taken and construed favourably in the behalf of him who is to perform it As if one be bounden to appropriate such a Church to such a house before such a day at his own costs and the Obligor grants a Pension out of the said Parsonage and afterwards appropriates the said Church it was holden that the Condition was well performed 3 H. 7. 4. A Lease for years upon condition to scowre the Ditches if the Lessee scowreth them once it is well enough And as to this word Proviso It is to see If here it be a word conditional In some Cases this word Pro makes a Condition as 45 E. 3. 8. Grant of a Ward pro bono servitio if the Grantee departeth out of his service the Grant is void So if an Annuity be granted unto a Physician pro consilio impendendo the same is a Condition 41 E. 3. 6. For the Grantor hath not means to compell the Grantee to give his Council but in some Cases this word Pro doth not make a Condition As if before the Statute of West 3. Land was given pro homagio suo there if the Homage be not done the Feoffor could not re-enter but he ought to distrain And I conceive that in our Case Proviso doth not make a Condition 7 H. 6. 44. A Feoffment in Fee with Warranty Proviso that the Feoffee shall not vouch So a Grant of a Rent-charge Proviso that the Grant shall not

Covenant wherein the breach was assigned was That if R. W. Brother of the Plaintiff should say Make assurance of such a Manor to the Defendant as the Council learned of the said Defendant should advise Then if the Defendant pays unto the Plaintiff 50 l. the Obligation to be void The Defendant by advice of Council demanded a Release with Warranty c. And by Periam and Windham The same is not any Assurance but a means to recover in value Anderson contrary That it was a Collateral Warranty c. CLXXIII Cropp and Hambleden 's Case Hill. 28 Eliz. In the King 's Bench. 1 Cro. 48. IN Trespass by Cropp against Erasmus Hambleden upon the special Verdict the Case was That one Martin Hastings was seised of the lands where c. in the right of his wife for the life of the wife and that they both did Lease unto the Defendant for years rendring Rent payable at the Feast of S. Michael and the Feast of the Annunciation c. with clause of re-entry if the Rent be behind by a Month after any of the said Feasts and after the feast of S. Michael 26 Eliz. and before the Month expired the Lessee the now Defendant sent his servant unto the house of the Lessor for to pay to him the Rent then due the servant went unto the house of the Lessor and there asked for him to whom it was answered by one Mary Briggs daughter of the wife of the Lessor who there dwelt in the said house with her mother that the Lessor was not at home for which the said servant delivered the said Rent to the said Mary requiring her to deliver the same over to the Lessor upon his retorn to the house in the name of his servant Mary reserved the said Rent and upon the retorn of the Lessor at his house told him all the matter aforesaid and that the servant of the Lessor the Defendant had required her to tender the said Rent to the Lessor in the name of the Defendant and thereupon offered and tendered to him the said Rent and the Lessor refused it And the Iury found That the third half year before the tender mentioned before the Lessor commanded the said Mary to receive the Rent then due who did accordingly and that the next half year then following the said Mary did receive the said Rent without commandment of the Lessor but after the Lessor agreed unto it and that the immediate half year before this tender in question the Defendant paid the Rent then due to the Lessor himself who received it And it was the opinion of Wray chief Iustice that this tender was good and it is not like unto the case of an Obligation for there the Obligee cannot have an Action of Debt before the last day but here the Lessor might have distrained or have had an Action of Debt before the Month expired and so the Lessor is bound by this tender and by Gawdy Iustice This tender cannot be said a tender by a stranger for here Mary came in privity of the servant of the Lessee and as it is found by Verdict Mary tendered it to the Lessor as being requested by the servant of the Lessee And afterwards upon consideration had betwixt the Iustices themselves the Iustices viz. Clench Gawdy and Wray for Shute was then sick it was clearly resolved against the Plaintiff and that the said tender as it is found in the Verdict is a good and sufficient tender and the Lord Wray delivered the reason as before and farther said That if the said Rent had been reserved payable at the feasts aforesaid or within a Month after each of them there the tender as above had not been good nor should bind the Lessor for in such case the Lessor could not distrain or have an Action of Debt for the said Rent before the Month expired And this is a case of extremity and deserves no favour and here is no mischief to the Lessor for he might have had his Rent in due time if he would and his captious refusal shall not avail him And Iudgment was given accordingly CLXXIV Bostock and Covert 's Case Trin. 33 Eliz. In the Common-Pleas BOstock and his Wife brought a Writ of Dower against Covert son and heir of her former Husband who pleaded That the Husband of the Demandant was seised of Lands amounting to the number of 300 Acres and held the same by Knights-service and died seised after whose death by virtue of the Statute of 34 and 32 H. 8. he entred into 100 Acres of the said Lands as the third part of the said Lands descended and held the same in severalty being the third part of the clear yearly value of the whole discharged of a Dower and that the Wife ought to have all her Dower out of the two parts devised And Anderson said That the Plea was not good for the heir who will take advantage of the Statute in that point ought to enter generally as Tenant in common with the Devisee and then in a Writ of Dower it is a good Plea so if after his entry as Tenant in common Partition be made betwixt him and the Devisee such a Plea is good but here he hath entred severally into a third part distinct from the residue and so hath ousted the Devisee of a third part severally for which cause he cannot have advantage of this Plea To which the rest of the Iustices Non contradixerunt CLXXV Sir John Southwel 's Case Pasch 37 Eliz. In the Exchequer 3 Len. 147. SIR John Southwel of the County of Lancaster 7 Julii 19 Eliz. made a Conveyance of his Lands to divers Feoffees and their Heirs upon condition that they should find him and his Wife and so many persons in his house c. prefer his Daughters in marriage pay his debts c. And if there fell out at the years end upon accompt made by the Feoffees any surplusage that then at the end of every such year they should answer such surplusage as should then remain in their hands unexpended of the Rents and profits of his said Lands with clause of revocation c. Afterwards the said Conveyance being in force came the Statute of 23 Eliz. concerning Recusants upon which Statute the said Southwel is now endicted and afterwards upon a Commission issuing out of the Exchequer to the Sheriff of Lancaster to enquire of the Lands of the said Southwel although against the said Conveyance it was given in Evidence That after the said Conveyance the said Sir John Southwel had granted Trees from off the said Lands and had received Fines and Incomes for Leases c. yet the Iurors charged to enquire would not find that the said Sir John Southwel had any Lands c. And by special command from the Queen it was referred out of the Exchequer to all the Iudges of England If the Lands of the said Sir John Southwel conveyed as aforesaid were subject to the said

Statute and the penalties thereof And upon a great deliberation it was by them all resolved and agreed That notwithstanding the said Conveyance the said Lands were liable to the said Statute And as to the Iurors who against the Evidence given to them for the Queen gave their Verdict ut supra Process was awarded against them out of the Court of Exchequer for to appear before the Lord Treasurer and the Barons And for their said contempt they were committed to the Fleet and each of them fined 50 l. CLXXVI Moore and Savil 's Case Trin. 27 Eliz. In the Exchequer IN an Ejectione firmae by Moore against Savil the Case was That Tenant in tail leased the Land to the father mother and son for their lives by Indenture in which it was comprehended That forasmuch as the Lessor is but Tenant in tail and so cannot by Law limit these Estates by way of Remainder but jointly in possession and his intent was That because this Lease was procured and obtained at the special suit and costs and charges of the father That the said son should suffer his father and after him his mother to take the profits of the said Lands demised and to occupy and hold the said Lands to their onely profit without interruption of the said son notwithstanding his joint Estate in possession with them Provisum igitur est That if the said son shall challenge claim demand or take any profits of the Lands so demised or enter into the same during the life of his said father or mother That then the Estate to him limited by the said Indenture should cease and be utterly void And it was the clear opinion of the whole Court That this Condition and Proviso was utterly void for it is contrary to the Estate limited before as in the Case cited by Coke at the Bar. If I lease to you my Lands for 20 years Proviso that you shall not occupy the same the two first years the same Proviso is void and contrary and repugnant to the Estate CLXXVII Lord Cromwel and Townsend 's Case Mich. 28 Eliz. In the Star-Chamber HEnry Lord Cromwel exhibited a Bill in the Star-Chamber against Roger Townsend Esquire for that the said Roger Townsend in an Action betwixt James Taverner Plaintiff and James Cromwel Farmor of the said Lord Cromwel Defendant in Trespass in the favour and unlawfull maintenance of the said Taverner did procure a partial Iury to be retorned And upon the hearing of the Cause the matter given in Evidence was That the said Taverner was a Copiholder of the said Lord Cromwel and that the said Lord Cromwel pretending that the said Taverner had forfeited his Copihold caused the said James Cromwel to make an Entry in the right of the said Lord upon the said Taverner upon which Entry Taverner brought an Action of Trespass against the said James Cromwel in which Action the parties were at Issue upon the forfeiture And before any Venire facias issued forth Taverner hearing that one Steward who was Bailiff of the Franchize under the Earl of Arundel and who ought to make the Pannel c. was purposed to have made the said Pannel not duly viz. to retorn therein great Gentlemen of the County who were Lords of Manors in favour of the said Lord Cromwel went unto the said Roger Townsend who was then one of the principal servants and agents of the said Earl and shewed to him that if those great persons and Lords of Manors be retorned for the trial of that Issue peradventure they would not so easily appear for the expedition of the parties as people of lesser condition and also many of them being Lords of Manors and having customary Tenants and therefore not indifferent to try that Issue and prayed his Order to the said Steward for the making of an indifferent Pannel where upon a conference with the said Steward for the making of an indifferent Pannel and shewing to him the making of the said Pannel was not convenient or any equal course to retorn Knights Esquires or Lords of Manors but rather such sufficient persons for the greater expedition of Iustice and indifferency of the trial And afterwards the said Taverner exhibited a Petition shewing all the special matter and praying him to give Order for the making of an indifferent Pannel for the trial of that Cause which Petition was delivered to the said Earl by the said Townsend in the name of the said Taverner Vpon which the Earl did refer the said matter to three of his chiefest agents and Counsellours i. Dicksey Townsend and Carrel and delivered to them the Book of Freeholders within the said Franchise who according to their Commission made a Pannel which was retorned and the Iury passed with the said James Cromwel in the right of the said Lord And if this intermedling of Townsend with this matter as abovesaid c. especially his conference with the Bailiff be maintenance or not was the Question And by the Lord Anderson and the Lord Wray chief Iustices It was delivered for Law That because the said Townsend was in manner a servant of the said Earl who had retorn of Writs and one of his principal Counsellours and agents and hearing Ex insinuatione of the said Taverner the misdemeanour of the Bailiff of his Lord could not do better than to shew to the Bailiff his duty for it concerned the honour of his Lord and also his Inheritance in the Franchise But if the said Townsend had been a mere stranger to the said Earl so as no such privity had been betwixt them it had been clearly maintenance in Townsend as it was lately adjudged in this Court in the Case of one Gifford Gifford's Case where the parties being at Issue and a Venire facias was to the Sheriff to retorn a Iury a stranger wrote to one of the Iurors who was retorned in the Pannel praying him to appear at the day and to doe in the Cause according to his Conscience and that was adjudged Maintenance And afterwards upon the full hearing of the cause the said Townsend by the sentence of the said Court was acquitted of every Maintenance with great allowance and approbation of many Lords of the Council there present Bromley Cancellario tantum exclamante CLXXVIII Sir Moil Finch 's Case 33 Eliz. In the Exchequer 2 Roll 184. 1 Cro. 220. Poph. 25. 1 Roll 215. THE Case was this The King and Queen Philip and Mary leased for seventy years for certain Rent payable at the Feasts of Saint Michael and the Annunciation Proviso that if the Rent be behind and not paid by the space of forty days after any of the Feasts aforesaid that the Lease shall cease and be void At Mich. 9 Eliz. the Rent was not paid according to the Proviso but a Month after the said forty days it was paid and Acquittance given for it and so the Rents due after unto 30 Eliz. were duly paid and Acquittances given for the same

according to the custome of the Manor granted a Rent-charge to Sir William Cordel 2 Roll 157. Pro concilio impendendo for the term of his life and afterwards conveyed the Manor to Sir William Clifton in tail The Rent is behind 12 Brownl 208. Sir William Cordel dieth Sir William Clifton dieth the Manor descends to John Clifton who grants a Copihold to Hempston the Executors of Sir William Cordel distrain for the Rent It was agreed by the whole Court Antea 109. That the Copyholder should hold the land charged Windham Iustice It hath been adjudged that the wife of the Lord shall not be endowed against the Copyholder Dyer 270. which Periam granted but gave the reason of it for the Title of the Dower is not consummated before the death of the husband so as the Title of the Copyholder is compleated before the Title of Dower More 94. but the Title of the Grantee of the Rent is consummated before the Dower Fenner conceived That the Executors could not distrain upon the possession of the Copyholder and he argued that this case is not within the Statute of 32 H. 8. of Wills For by the preface of the said Statute he conceived That the said Statute did extend but to those cases for which by the Common Law no remedy was provided but in this case the Executors by the Common Law might have an Action of debt ergo But Periam and Windham contrary For this Statute doth intend a farther remedy for that mischief scil not onely an action of debt but also distress and avowry See the words of the Statute Distrain for the arrearages c. upon the lands c. which were charged with the payment of such rents and chargeable to the Distress of the Testator or in the seisin or possession of any other person or persons claiming the said lands onely by and from the same Tenant by purchase gift or descent in like manner and form as their Testator might or ought to have done in his life time And it was moved by Fenner That here the said land charged doth not continue in the seisin or possession of the Tenant and here Sir John Clifton was issue in tail and therefore he doth not claim onely by the father but per formam Doni and therefore he is not liable therefore neither his Copyholder Shuttleworth Serjeant contrary That Sir John Clifton was chargeable and he claims onely from them who immediately ought to have paid the Rent and the Copyholder claims by purchase from Sir John Clifton so he claims from Sir William Clifton the Tenant c. although he doth not claim immediately from him For if the Tenant ought to have paid it and dieth and the land descendeth to his heir and the Heir maketh a Feoffment in Fee the Feoffee shall be charged within this Statute although he doth not claim immediately so where land descends from the Tenant which ought to have paid it and so from Heir to Heir The Statute of 1 R. 3. wills that all grants c. shall be good against the Donor his Heirs c. claiming onely as Heirs to Cestuy que use c. Yet if Cestuy que use granteth a Rent-charge and the Feoffees are disseised the Grant shall be good against the Disseisor and yet he doth not claim onely by Cestuy que use And although Sir John Clifton be Tenant in tail and claims per formam Doni Yet because the Estate tail cometh under the Estate of him who grants the Rent he shall be subject to the charge And this Statute extends not onely to him who claims by the Tenant but also to the Heir of him who grants c. And by Windham and Rhodes The Copyholder doth not claim onely by the Lord but he claims also by the custome but the custome is not any part of his Title but onely appoints the manner how he shall hold c. The possession continues here in Sir John Clifton for the possession of his Copyholder is his possession so as if the Copyholder be ousted Sir John Clifton shall have an Assise And so the strict words of the Statute are observed for the seisin and possession continues in Sir John Clifton who claims onely by Sir William Clifton who was the Tenant in demean who ought to pay the Rent But Fenner said to that that the seisin and possession intended in the Statute is the very actual possession scil Pedis dispositio and such a possession in which the distress may be taken and that cannot be taken in a Freehold without an actual possession CLXXXVI 19 Eliz. In the Common-Pleas 3 Len. 65. A. Seised of land in Fee by his Will in writing granted a Rent-charge of 5. l. per an out of it to his younger son towards his Education and bringing up in Learning and if in pleading the Devisee ought to aver that he was brought up in Learning was the Question And it was holden by Dyer Manwood and Mounson that such averment needs not for the Devise is not conditional and therefore although he be not brought up in Learning yet he shall have the Rent and the words of the Devise are Towards his bringing up and he well knew that 5 l. per an would not nor could extend to maintain a Scholar in Learning Dy. 329. a. in diet apparel books c. and this Rent although it be not sufficient to such purpose yet he shall have it And Dyer said That such a case was here Two were bound to stand to the award of certain persons who awarded that the one of them should pay unto the other 20 s. per an during the term of six years towards the education and bringing up of such a one an Infant and within the two first years of the said term the Infant died so as now there needed not any supply towards his education yet it was adjudged that the yearly sum ought to be paid for the whole term after for the words toward his education are but to shew the intent and consideration of the payment of that sum and no word of condition c. CLXXXVII West and Stowel 's Case Mich. 20 Eliz. In the Common Pleas. 1 Cro. 870. Townsend 17. 1 Roll 28. More 549. Sty 353. a. IN an Action upon the Case by Thomas West against Sir John Stowell The Plaintiff Declared That the Defendant in consideration that the Plaintiff promised to the Defendant that if the Defendant shall win a certain match at shooting made between the Lord of Effingham and the Defendant then the Plaintiff should pay to the Defendant 10 l. and promised to the Plaintiff That if the said L. Effingham shall win the same match of the Defendant that then the Defendant would pay to the Plaintiff 10 l. And farther declared That the Lord Effingham won the match for which the Action is brought It was moved that here is not any sufficient consideration for the promise of the Plaintiff to

who 37 H. 8. levied a Fine of the said Manor without Proclamations to two strangers to the uses according to the said agreement and before any assurance made by the said Lord the said Lord was attainted of Treason by which all his Lands were forfeited to the King And afterwards the said Andrew Bainton made a suggestion to Queen Mary of all this matter and upon his humble Petition the said Queen by her Letters Patents reciting the said mischief c. Et praemissa considerans annuens Petitioni illius granted to him the Manor aforesaid and farther De ampliori gratia sua did release to the said Andrew Bainton all her right possession c. which came to her Ratione attincturae praed vel in manibus nostris existant vel existere deberent after which 5 Eliz. Andrew Bainton levied a Fine to the Plaintiff with Proclamations and died without issue and the Defendant as issue in tail entred Puckering Serjeant First it is to see if by the words of the Patent of Queen Mary viz. De ampliori gratia c. the Reversion in Fee which the Queen had shall pass or not Secondly Admitting that the Reversion doth not pass then if the Fine levied by Andrew Bainton 5 Eliz. to the Plaintiff the Reversion being in the Queen be a bar unto the issue in tail For as unto the first Fine levied 37 H. 8. which was without Proclamations the same shall not bind the issue in tail neither as to the right nor as to the Entry for it is not any discontinuance because the Reversion is in the King as of things which do not lie in discontinuance as Rent Common c. for such a Fine is a Fine at the Common Law and not within the Statute of 4 H. 7. and such Fine is void against the issue But if such a Fine without Proclamation be levied of a thing which lieth in discontinuance then such a Fine is not void but voidable by Formedon and therefore this Fine in the Case at Bar being levied without Proclamation of Lands entailed whereof the Reversion is in the King at the time of the Fine levied shall not bind the issue and by such Fine the Conusee hath nothing but a Fee determinable upon the life of Tenant in tail which Fee was forfeited to the Queen by the Attainder of the Lord Seymore and that the Queen moved of pity did restore the same to A. B. in recompence for the Indentures of themselves were not sufficient to raise any use See 1 Mariae Dyer 96. As to the first point it seems that nothing passed of the Reversion for the Grant hath reference to the words All her Right Possession c. which came to her ratione attincturae and all the residue of the Grant ought to have reference to that to the ratione attincturae which was the foundation of the whole Grant and here the intent of the Queen was not to any other intent but onely to restore A. B. to the said Manor or to his former Estate in it and nothing appears in the Letters Patents by which it may appear that the Queen was knowing of her Reversion which she had by descent and therefore the same cannot pass by general words If the Queen grants the Goods and Chattels of all those which have done any Trespass for which vitam amittere debent the Goods of him who is attainted of Treason shall not be forfeited to the Grantee by such general words 8 H. 4. 2. The King grants omnia Catalla Tenentium suorum qualitercunque damnatorum the same shall not extend to the Goods of him who is condemned of Treason See 22 Ass 49. So in our Case the Patent shall not serve to two intents but to a restitution of the Manor and then nothing passed by this Patent but the Fee determinable which was conveyed to the Lord Seymore and forfeited by his Attainder Then we are to see how after this grant the said A. B. is seised And he said That he shall be in of the said Fee determinable and not of the Estate tail against his own Fine and then if he be not seised by force of the Entail at the time of the Fine levied 5 Eliz. the same Fine cannot bind the tail But admit that at the time of the second Fine levied he was in of an Estate in tail yet the same Fine shall not bar his issue For first this Fine cannot make any discontinuance because that the Reversion in Fee is in the King which is not touched by the Fine See the Case of Sanders where A. makes a Lease to begin at a day to come and afterwards levies a Fine to a stranger with Proclamations the five years pass and afterwards at the day of the Commencement of the Lease the Lessee enters his entry is lawfull and he shall not be bound by the non-claim And so it was adjudged 21 Eliz between Sanders and Starky After the making of the Statute of 4 H. 7. of Fines it was much doubted if the issues of common Tenants in tail should be bound by a Fine with Proclamation forasmuch as upon the death of their Ancestours they were as new purchasors per formam doni and therefore it was provided by the Statute of 32 H. 8. that the said Statute of 4 H. 7. should extend to such common Entails but there was no doubt of the Estate tail of the Gift of the King and see betwixt Jackson and Darcy Mich. 15 and 16 Elizab. Rot. 1747. in a Partitione facienda the Case was Tenant in tail the Remainder to the King after the Statute of 32 H. 8. levied a Fine with Proclamations and adjudged that that should bind the issues and the Act of 32 H. 8. doth not extend but where the Reversion is in the King but no mention is there of a Remainder because the words of the said Act are general of all Tenants in tail the makers of the said Act perceiving that it might be a doubt that the generality of the said words might exclude Estates tail of the Gift of the King they have restrained the words in a special manner as appeareth by the last words of the same Act Nor to any Fines heretofore levied or hereafter to be levied by any person or persons of any Manors c. before the levying of the said Fine to any of his or their Ancestors in tail by Letters Patents or Act of Parliament the Reversion whereof at the time of the levying of such Fine was in the King and so such Estates are excepted and that in such Cases where such Fines are levied they shall be of such force as they should have been if the said Act had not been made and therefore he conceived it appeared at the said Parliament That such Estate tails of the Gift of the King were not bound b● 4 H. 7. for otherwise that Proviso or Exception had been frivolous Walmsley Serjeant to the contrary and he agreed That the

for the abatement of a Writ As in a Praecipe quod reddat the Tenant acknowledgeth himself to be Villein to a stranger the Writ shall abate without any averment if Frank and of Frank Estate for the Law presumes that the Tenant would not enthral his condition Wray to the same intent But the Demandant may confess and avoid the Fine as to say That he that levyed the Fine was his disseisor upon whom he had before entred c. And if Tenant in Fee-simple be impleaded and he saith that he is Tenant for life the remainder over to A. in Fee and prayes in aid of A. the Demandant shall not take averment that the Tenant the day of the Writ purchased was seised in Fee. Note that in this fine Ioynt-tenancy was pleaded but to parcel It was holden by Wray and Southcot that the whole Writ should abate As in a Writ the misnosmer of one shall abate the whole Writ against all the Defendants and so where the Demandant enters into parcel of the land in demand if the thing in demand be one intire thing it shall abate the whole Writ In this Case the Demandant ought to have in his Writ de Forsprise of the land in demand whereof the Ioynt-tenancy by Fine is pleaded per availe and under the gift of which the Formedon is conceived and therefore in respect of the title of the Demandant it remains in right parcel of the Manor and therefore ought to be demanded accordingly with an Exception But if A. give to B. a Manor except ten acres in tail there if after upon any discontinuance the issue in tail have a Formedon in such case there needs no exception for the said ten acres were never after the gift parcel of the Manor which was given in tail for they were severed from the Manor upon the gift but if land in demand was several as twenty acres except two an exception is not good for he might demand eight acres See E. 1. F. N. B. 866. Praecipe unam bovat terrae except a Seleon and the Writ was abated for every demand ought to be certain but a Seleon is a parcel of land uncertain as to quantity in some places an acre in some more in some less Another point was That because the Tenant hath admitted and accepted this averment scil sole Tenant as the Writ doth suppose If the Court notwithstanding the admittance of the Tenant ought without exception of the party Ex officio to abate the Writ and Wray conceived that they should for it is a positive Law as if a woman brings an appeal of murther upon the death of her brother and the Defendant doth admit it without challenge or exception yet the Court shall abate the appeal 10 E. 4. 7. And see the principal Case there Non ideo puniatur Dominus and if an Action be brought against an Hostler upon the common custome of the Realm and in the Writ he is not named common Hostler and the Defendant doth accept of such Writ without exception to it yet the Court shall abate the Writ Ex officio 11 H. 4. 198. and 38 H. 6. 30. CXCVII 24 Eliz. In the King 's Bench. Antea 150. More Rep. Saffron Walden's Case THE Case was this King Henry the 8. seised of certain lands in the right of his Dutchy of Lancaster Granted them unto another Tenend in Fee-farm Reddend dicto Dom. Regi haeredibus suis aut illi cui de jure reddi debet 10 l. And if this land should be holden of the King in Capite or holden of the Dutchy was the question Egerton Solicitor general argued much upon the Statute of 1 H. 4. by which the Dutchy and possessions thereof were severed from the Crown See Plowden in the Case of the Dutchy of Lancaster 213. And see ibid. the Statute of 1 H. 4. Entituled Charta Regis Hen. 4. 1. De separatione Ducatus Lancastr à Corona by which it is enacted That the Dutchy of Lancaster taliter tali modo deducatur gubernetur pertractetur c. ac si ad culmen dignitatis Regiae assumpti minime fuissemus So as by that Act the Dutchy is dis-joined from the Crown and in such point as to possession as it was in a common person But the possession of the Dutchy doth not bind the person of the King as 10 H. 4. 7. The King brings an Action for certain Lands to him descended from his Vncle the Duke of Lancaster and the Writ was Non omittas propter aliquam libertatem and exception was taken to the Writ because that such clause ought not to be in the King 's Writ but where the King sueth as King but that Writ he sueth as Duke of Lancaster but the exception was not allowed The King cannot sue otherwise but as King for the person of the King ought not to be measured according to his possession so as it was a severance in order survey government and process and not in respect of the person But after the Statute of 1 H. 4. The said Act of Separation was repealed and farther enacted that the said King should hold the said Dutchy to him and his heirs Kings of England so as thereby the Dutchy is settled in the politick Body of the King afterwards came the Statute of 1 H. 7. by which it is enacted That the King shall hold the said Dutchy and the possessions thereof in such manner and form and so separated from the Crown as King Henry the fourth and King Henry the fifth did hold the same so as the Dutchy was devested out of the Body politick of the King where it was setled 1 H. 4. and vested in the Body natural of the King so as the possession of the Dutchy as to their government c. are in the King as they were in the Duke of Lancaster before he was King and if the Duke of Lancaster had made a Feoffment c. the Feoffee should not hold of him but of the King So if the King himself maketh a Feoffment of Lands of the Dutchy the Feoffee shall hold of the King c. which see in the Dutchy of Lancaster's Case in the end of it And he conceived That notwithstanding the union of the Crown and the Dutchy yet the privity of the Tenure doth remain being preserved by the said Act of 1 H. 4. Another matter was That here the Tenure reserved is Tenend in feodi firma Reddend 10 l. c. And he said that this Rent is not parcel of the Tenure but rather a Rent-charge collateral to the Tenure For in all Cases where there is a Tenure expressed in suit or implied in Law before there Reddendo following shall not make the thing rendred parcel of the Tenure 3 Cro. 210 211. but it shall be a Rent in gross and here Tenend in feodi firma makes the Tenure c. and the Reddendo after shall not make the Rent reserved parcel of the Tenure See the

Case 33 E. 3. Annuity 52. before the Statute of Quia Emptores terrarum a man makes a Feoffment in Fee Tenend de Dom. Capital Feod c. Reddend 10 s. Rent here because that the Tenure was reserved Capital Dom. feodi illius this Rent reserved is not parcell of the Tenure but a Rent in gross King Edward the sixth gave certain Lands to Cranmer Archbishop of Canterbury Tenend by the fifth part of a Knight's Fee Reddend inde 6 l. per ann Cranmer made a Feoffment in Fee to the use of himself for life and afterwards to the use of his eldest son in tail the remainder to the right heirs of Cranmer who is attainted of Treason by which the remainder in Fee escheated to the King by which the Seignory is gone But it was adjudged that notwithstanding that escheat the Rent did remain for the Rent was not parcel of the Seignory Now this Rent being a thing newly created and not parcel of the possessions of the Dutchy in 1 H. 4. nor ever descended from any Ancestor of the King being Duke of Lancaster shall be accounted to be in the King in the right of his Crown and so cannot pass by the Dutchy-seal See the said Statute of 1 H. 4. and the King cannot enlarge the said Dutchy nor the possessions thereof beyond the possessions which were of the Dutchy at the time of the making of the said Acts As if J. S. seised in Fee is impleaded and he saith that he holds the Lands in demand for life the remainder to the King in the right of his said Dutchy now the said remainder is vested in the King not in the right of the said Dutchy but in the right of his Crown The Villain of the King in the right of his Dutchy of Lancaster purchaseth Lands the King seizeth he shall be seised thereof in the right of his Crown and not of the Dutchy The King grants Common out of certain Lands parcel of his said Dutchy and afterwards makes a Feoffment of the said Lands to another the Grantee of the Common dieth without heir so as the Common escheats to him now he shall have the Common in the right of the Crown and not of the Dutchy so although it is said That the Rent shall follow the nature of the Land out of which c. yet the same is but to some intents and not to every intent See the Statute of 2 and 3 Phil. Ma. cap. 20. by which it is enacted That all the Lands which have been granted or severed from the Dutchy to any person or persons and after such grant have come or reverted to the King in possession reversion or remainder or otherwise by attainder escheat forfeiture c. shall for ever be united to the said Dutchy and shall be adjudged and esteemed as part and member of the same which proves that such Lands were not holden of the King as Duke of Lancaster but as King for if they had been holden of the Dutchy upon the escheat they should be parcel of the Dutchy again without help of that Statute See the special Reservation Reddendo Domino Regi haeredibus suis aut illi cui de jure reddi debet c. Now when the King grants the Seignory to the Lord Audley it was in the Election of the Ter-tenant to whom he would pay the Rent if it had been in the Case of a common person but it is otherwise in the Case of the King As if A. holdeth of two several Lords by owel Feoffment and dieth his heir within age the Lord which first gets the Ward shall have him but in the Case of the King it is otherwise Plowden The King is not bound by the Statute of West 3. But in this Case in the making of this Feoffment with this Tenend Reddend the Feoffee shall hold of the King as of his Dutchy for all grants of the King savour of the person of the King and then his Prerogative wrapt in the person shall guide the same and see the Statute of West 3. extends to all who make Feoffments Tenend de Feoffatoribus but the King is not Tenant to any one And if the King be seised of an Advowson in the right of his Dutchy and the same becomes void and the King presents to the same he may repeal his presentation and he vouched divers precedents of Patents made to many great Lords to hold of the Dutchy and also to hold of others And the King by his Dutchy-seal may give Lands in Mortmain And he argued That this Rent although newly created yet in so much as it came and accrued in respect of the Land which was parcell of the Dutchy it should be accounted also parcel of the Dutchy as if before the Statute of West 3. A. seised of Lands in Fee of the part of his father makes a Feoffment in Fee Tenend by such services c. the same Seignory shall go to the heirs of the part of the father in lieu of which the Seignory is come Tenant in tail after the Statute of 32 H. 8. makes a Lease for years according to the said Act rendring Rent to him and his heirs it shall be intended heirs in tail It was adjourned CXCVIII. Forster and Walker 's Case Pasch 26 Eliz. In the King's-Bench IN an Ejectione firmae by Foster against Walker the Case was 3 Cro. 106. Shepherd's Touch-ston● of Conve●…ances 416. That Richard Meager was seised of a house in London and 6 E. 6. he devised the same to his Wife for life the remainder to John his son in tail the remainder to the Master and Wardens of the Cordwaynors in London and died the Wife entred and died John died The Master Wardens and Commonalty of the Cordwaynors entred and leased the Plaintiff upon whom the heir general of the Devisor did enter The onely question was inasmuch as the Cordwaynors of London are incorporated by the name of Master and Wardens and Commonalty of Cordwaynors If this devise made to them by the name of Master and Wardens of the Cordwaynors of London be good or not It was argued by Daniel that the Devise by the manner was good enough and he insisted much upon the favour which the Law gives to Wills and to Legatees in the Devises and construction of them even in Devises and Grants to Corporations and as to Grants to Corporations he cited the Case of the Dean and Chapter of Norwich Decanus Capitulum sanctae individuae Trinit and they make a Lease leaving out these words sanctae individuae and yet held the Lease was good notwithstanding that for the words left out are not words of substance of the name but for the beauty and ornament of it But in the Case of Devise if the name be mistaken in matter of substance yet if upon the Devise the intent of the Devisor sufficiently appeareth it is good enough for the intent of the Devisor shall guide the Devise and

therefore by Devise the Fee-simple shall pass without the word Heirs And he said that the opinion of Wray chief Iustice was in the Case of the Dean of Pauls If I devise that my Executors shall assign my Lands to J. S. the same implicative is a Devise of the Lands themselves to my Executors for otherwise they could not assign So if I will and devise That A. shall pay yearly out of my Manour of D. to J. S. 10 l. the same is a good Devise of the Lands to A. So if in the Case at Bar this house had been devised to the Cordwaynors by the name of the Society of Cordwaynors such Devise had been good enough Cooper contrary and he said That the intent of the Devisor ought to agree with the Law otherwise the Iudges are not to regard it in point of Iudgment and he put the Case of 39 H. 6. 10. 1 Rolls 616. A. deviseth his Lands and afterwards is disseised and before any entry dieth now notwithstanding the intent of the Devisor the Devise is void and he said The defect of a Will in words in making of an Estate shall be supplied by intent but the defect in words in naming of the Devisor or Devisee shall never be supplied See 49 E. 3. 3. 4. the Case of Whitavers And he cited a Case 25 H. 8. A stranger of the Low-countries being made a Denizen in England returned into his Countrey and dwelling there became sick and in making of his Will he was advised by Council that by Devise of all his goods his lands deviseable would pass and therefore by such words he declared his Will with the intention aforesaid scil to pass his Lands and died and afterwards the States of the Low-countries wrote unto King Henry the 8. acquainting him with the intention of the Devisor and also of the opinion of their Laws there upon the said Will and all in favour of the Devisee whereupon the King referred the consideration of the matter to Norwick then Lord chief Iustice who declared his opinion to the King to be That by that Devise the Lands did not pass notwithstanding the intent of the Devisor CXCIX Crabdell 's Case Pasch 26 Eliz. In the King's-Bench CRabdell was bound by Recognizance to his good behaviour upon which the Queen brought a Scire facias and surmised that after the Recognizance acknowledged the said Crabdell was arrested and taken by the Constable for suspicion of Felony and of his own wrong escaped It was objected on the part of Crabdell because it is not alledged by matter in fact that a Felony was committed But the whole Court was of a contrary opinion For it is not material if the Felony were committed or not for if a Subject be arrested by a lawfull Officer it is not lawfull for him to escape but he ought to stand to the Law and to answer unto the matter with which he is charged And so Crabdell was forced to answer CC. Basset and Prowe 's Case Pasch 26 Eliz. In the King's-Bench IN Debt upon a Bond the Case was That Basset was bound with Prowe as his surety to one Preston in a Bond of 500 l. and that was upon a corrupt and usurious contract against the Statute and Prowe was bound unto the Plaintiff in a Bond as a counter-bond to save the Plaintiff harmless from the said Bond of 500 l. Basset is sued by Preston upon the said Bond and so damnified and thereupon sued Prowe upon the counter-bond 1 Cro. 588 642 643. 3 Len. 63. Goldsb 174. who pleaded against Basset the Statute of Vsury pretending that all assurances depending upon such usurious contract as void by the Statute but by the opinion of Wray chief Iustice the same is no Plea for the Statute is That all Bonds collateral assurances made for the payment of Money lent upon usury shall be utterly void But the Bond here upon which the Action is brought was not for the payment of the Money lent but for the indempnity of the surety CCI. The Vicountess Bindon 's Case Pasch 26 Eliz. In the Exchequer More 213. 1 Cro. 250 251 252. THE Executors of Thomas late Viscount Bindon brought Detinue in the Exchequer against the Widow of the said Viscount and declared upon the detainer of certain Iewels The Defendant did justifie the detainer of them as her Parophornalia And it was said by Manwood chief Baron That Parophorn ought to be allowed unto a Widow having regard unto her degree and here the Husband of the Defendant being a Viscount 500 Marks is a good allowance for such matter CCII. Offley and Johnson 's Case Pasch 26 Eliz. In the King's-Bench More 136. OFfley and Johnson were bound as sureties with one A. to B. who recovered against Johnson in London and had Execution against him and now Johnson sued Offley to have of him contribution to the said Execution ut uterque eorum oneretur pro rata according to the custome of London Offley removed the cause by privilege into the King's-Bench whereupon came Johnson and prayed a Procedendo and because upon this matter no Action lieth by the course of the Common Law but onely by custome in such cities The cause was remanded Hob. 264. More 135. 3 Len. 148. for otherwise the Plaintiff should be without remedy See the Book of Entries 160. CCIII Litchfield and Cage 's Case Pasch 26 Eliz. In the King 's Bench. IN an Ejectione firmae the parties were at issue 3 Len. 100. and by the order of the Court the Trial was stayed and yet the Plaintiff against the Order did privily obtain a Nisi prius of which Gawdy Iustice being informed of it after the Term awarded a Supersedeas unto the Iustices of Assise before whom c. and yet notwithstanding that the Enquest at the instance of the Plaintiff was taken and found for the Plaintiff and all this matter was shewed to the Court in the King's-Bench and there examined and proved and it was ordered by the Court that the Verdict should not be entred of Record nor any Iudgment upon it And so it was put in ure in a Case between Vernon and Fowler And then the Plaintiffs Council took exception to the Supersedeas because it was not subscribed with the hand of Gawdy but non allocatur for the Seal is sufficient CCIV. Scott 's Case Pasch 26 Eliz. In the King 's Bench. WIlliam Scott was indicted upon the Statute of 23 Eliz. of Recusants by the name of William Scott of Southwark Gent. and upon that Indictment Iudgment given for the Queen upon which Scott brought a Writ of Error and assigned for Error That in the Indictment Scott is not named of any Parish but generally of Southwark for within Southward there are divers Parishes and by the said Statute it is ordained that the penalties accruing by the said Statute ought to be divided in three parts whereof one part is to be applied to the

relief of the poor resident in the Parish where the offence was committed and therefore it ought to appear upon the Indictment of what Parish the party Indicted is or otherwise Non potest constare Curiae to which Parish the third part of the Penalty doth belong so that full execution may be made according to the Statute But the whole Court was clear of opinion That the Indictment is good enough notwithstanding that Exception for all the penalty which accrues by the said Statute belongs first to the Queen viz. a third part thereof to her own use another third part for the relief ut supra to be delivered by Warrant by the Officers of the Receipt of the Exchequer And afterwards the Inhabitants of the Parish in which the offence was committed are to sue in the Exchequer for their third part of the penalty and surmise in their Bill that the offence was committed within their Parish and Rule was entred accordingly CCV Gerrard 's Case Pasch 26 Eliz. In the Common Pleas. 3 Len. 98. GErrard Master of the Rolls presented Chatterton Bishop of Chester to the Church of Bangor to which Church one Chamber 's also presented his Clerk by which several presentments the said Church became Litigious The Archbishop of York being loci illius Ordinarius awarded a Jure Patronatus c. depending which the Archbishop admitted the said Bishop whereupon Chambers Libelled in the Spiritual Court against the said Bishop because the said Archbishop Dicto Episcopo plus aequo favore admisit dictum Episcopum pendente the Jure Patronatus in which case by the Law of the Church the admittance is void For Lite pendente nihil movetur and now came the said Bishop and prayed upon that matter a Prohibition which was granted because that the right of the Patronage came in debate after which came the said Chambers and prayed a consultation because he did not meddle with the right of the Patronage but onely with the tortious admittance To which it was said by the Court That the awarding of the Jure Patronatus is not a thing of necessity but at the will of the Ordinary and so for his better instruction but if he will at his peril take notice of the right of the Patronage he may admit which of them he will without a Jure Patronatus awarded And it may be in this Case that after the Jure Patronatus awarded and before any Verdict given upon it the Archbishop was satisfied of the right of the now Plaintiff in the Prohibition to the Patronage and thereupon admitted the Clerk c. and if he was deceived to subject himself unto a Quare Impedit whereof he had discharged himself if he had attended the Verdict in the Jure Patronatus and by the clear opinion of the Court the Consultation was denyed CCVI. Barker and Taylor 's Case Mich. 29 30 Eliz. In the Common Pleas. THE Case was That a woman Tenant in tail within the Statute of 11 H. 7. accepted of a Fine Sur Conusans de droit come ceo c. and by the same Fine rendred back the lands to the Conusor for 100 years It was moved If this conveyance and disposition be within the penalty of the said Statute for the Statute speaks of Discontinuances c. And it was the clear opinion of the whole Court That it is within the Statute for by such practice the meaning of the Statute might be defeated 3 Co. 51. and if such a render for 100 years should be good by the same reason it might be for 1000 years which is like mischievous and as dangerous unto him in the reddition as a Discontinuance And by Rhodes Iustice It hath been adjudged That if a woman who hath Title of Dower before that she be endowed will enter and levy a Fine that the same is within the said Statute and yet she is not Tenant in Dower See Dyer 5. Ma. 140. Penycock's Case and see now 36 Eliz. Sir George Brown's Case adjudged accordingly CCVII. Morris and Webber 's Case Trin. 29 Eliz. In the Common Pleas. IN an Ejectione firmae by George Morris against Webber alias Turnor 5 Co. 98. the Plaintiff declared upon a Lease by Humphrey Bury c. And upon Not guilty the Iury found this special matter That Hen. Bury was seised Et cepit in uxorem quandam Willmottam Gifford 4 Mariae And afterwards 1 Eliz. she Libelled in the Spiritual Court against the said Henry in causa divortii de nullitate matrimonii and found upon the Libel In haec verba and all the sentence upon it viz. In Dei Nomine Amen Per depositiones examinationes Medicorum aliorum fide dignorum honestarum expertarum matronarum comperimus invenimus Quod praedict Henr. Willmotta legit aetatis plenae pubert exist per duos annos integros simul cohabitaverunt in uno lecto concubuerunt licet dict Willmotta operam liberis dare cupierit nunquam tamen per carnalem copulam cum dicto Henrico conjungi aut ab illo cognosci potuit aut potest idque propter vitium perpetuae frigiditatis naturae impotentiae generandi Quae nulla medicorum opera curari pot idque praedict Humphrid saepius confessus est se nunquam cum praedicta Willmotta tanquam virum cum uxore conjunctum fuisse aut conjungi potuisse Igitur invocato primitus Dei nomine Matrimonium praedict irritari cessari quatenuscunque de facto processit cassum irritum nullumque in Lege Juribus juris omnino carere carere debere decernimus declaramus ipsosque quatenus sunt de facto matrimonialiter ad invicem conjuncti a vinculo Matrimonii separamus c. Humphry made a Feoffment in Fee unto the use of himself for life and after to the use of the first or eldest son of the body of the said Henry in tail Willmot married Cary Henry took to wife Phillippam Mountjoy scientem Matrimonii praedict definitivae sententiae praedict durantibus ambobus Matrimoniis tam inter dict Cary Willmotta quam inter dictos Henricum Phillippam dicta Phillippa exitum habuit per dict Henricum Humphrey the Lessor upon which Lease the Plaintiff declared Humphrey died Henry entred and leased to the Plaintiff Shuttleworth Serjeant argued for the Plaintiff That this Divorce not reversed or undone by appeal or otherwise should stand in force and according to it the Law of the Land should judge See 47 E. 3. 17. Casu ultimo Five manner of Divorces are mentioned 1 Causa professionis 2 Praecontractus 3 Consanguinitatis 4 Affinitatis 5 Frigiditatis upon a Divorce Causa professionis the wife shall be endowed and the heir shall inherit but in the other not And the principal Cause is reported by the Lord Dyer 2 Eliz. 179. where Cary and Willmott levying a Fine of the lands of Willmott as husband and wife and it was moved That such Fine ought not to be

Hundred and that the one side of the said Lane is within the Parish of S. and the other side within the said Parish of D. and that the Robbery was done in the side of the said Lane which was in the Parish of S. and prayed the opinion of the Court upon that matter And the Court was clear of opinion That notwithstanding that Exception the Plaintiff should have Iudgment for here is the right Hundred which ought to be charged and the mistaking of the Parish is not to any purpose But then it was moved on the part of the Plaintiff that for as much as the Verdict aforesaid was special by reason of the doubt which the Iurors conceived upon the mistaking of the Parish in the Plaintiff's Declaration That the charges of the Iurors should be indifferently born by both parties as the course is in cases of special Verdicts but the whole Court was clear against that and commanded that the Plaintiff alone should pay the said charges for the matter here found specially is not any doubt but out of all question for it is clear that the Action is well brought for as much as the Hundred is charged the mistaking of the Parish shall not hurt CCXIII. Hellyard 's Case Trin. 29 Eliz. In the Common-Pleas A Habeas Corpus was to the Warden of the Fleet to bring the body of one Hellyard who retorned the Writ That the said Hellyard was committed to the Fleet Per mandatum Francisci Walsingham Militis unius principalium Secretariorum Dominae Reginae c. And because the Warden did not shew in his Retorn for what cause the said Hellyard was committed the Court gave him day to amend his Retorn or otherwise the prisoner should be delivered CCXIV. Mich. 30 Eliz. In the Common-Pleas UPon a Recovery in a Writ of Entry Sur disseisin of two acres of land Habere facias seisinam was awarded The Sheriff as to one acre retorned Habere feci as to the other tarde And the Retorn was shewed to the Court and all the Iustices but Periam held that the Sheriff should be amerced for that Retorn contrary and repugnant in it self But by Periam it may be That the acre of which no seisin is had was so far distant from the other acre whereof seisin was that the Sheriff for want of time could not make execution of both being so remote the one from the other To which it was answered That if the truth of the Case was such then might the Sheriff make execution in one acre in the name of both acres And if upon a Capias ad satisfaciend against two the Sheriff doth retorn as to one Cepi and to the other tarde he shall be amerced for those several Retorns cannot stand together CCXV Edgar and Crispe 's Case Mich. 30 Eliz. In the Common Pleas. Edgar recovered against Crispe in Debt and afterwards released to Crispe and afterwards notwithstanding the release Edgar sued for a Capias ad satisfaciend against Crispe and pursued the same untill Crispe was outlawed and it was the opinion of Anderson cheif Iustice That Crispe should have an Audita Querela notwithstanding the Outlawry and if the Audita Querela passeth with Crispe the Outlawry also should be avoided CCXVI Frankwell 's Case Trin. 30 Eliz. In the King 's Bench. IN Trespass for carrying away of Tithes the Case was That Frankwell Parson of the Church of D. was accused in forma Juris before the high Commissioners who pleaded that the same cause and crime was prosecuted against him in the Arches and prayed that he might not be doubly vexed for one and the same offence and notwithstanding that he was deprived and another Clerk presented to the same Church by the Patron and was admitted instituted and inducted and upon entry brought Trespass against the former Incumbent And note the manner of the Deprivation as it was found by Verdict That the Bishop of London with the assent of the other Commissioners gave sentence of Deprivation against him and it was shewed That the high Commissioners had not power by 1 Eliz. to give sentence of any thing which is dependant in another Court For it was not the intent of the said Act to take away the jurisdiction of the other Ecclesiastical Courts for then it is in vain to have such Courts It was also moved because the pleading is That the Bishop of London ex assensu of the other Commissioners gave sentence the same is a void sentence for it ought to be the sentence of all the Commissioners for they shall have equal authority And to this purpose he cited the Case 29 H. 8. Dyer 40. where a Lease is made of Lands whereof the Dean and Chapter are seised in common per nomen Decani ex assensu consensu totius Capitul but it was holden a void Lease for the Chapter ought to be party to such Lease contrary where the Lease is made of the Land which is the proper and peculiar Inheritance of the Dean But that Exception was not allowed for the form of Entries in all cases hath always been so Coke posito That the Commissioners ought not to proceed in this Case yet because they have so done the same ought not to be examined here for the Iudges here ought to think that this Deprivation was duly ma●e for cuique credend in sua arte which Wrey granted And it was said by him That the Court was created for two causes 1 For the expedition of the causes depending in the spiritual Courts Co. 4. Inst 326 327. 2 To give to such Iudges authority to punish offences in more high degrees for before they could not but onely excommunicate but now they may imprison and if the party had Libelled against him in the spiritual Court of the Arches it is no reason but that the party for his own expedition and for to procure due punishment against the offender may send the cause into the high Court and after Iudgment was given according to the Deprivation And afterwards Error was brought thereupon and the Error assigned upon the matter in Law whether the said Deprivation was lawfull or not Coke I remember the reason of the Iudgment given by the Court was That admitting that the sentence of the high Commissioners was erroneous yet it shall bind untill it be reversed by appeal Fenner If the party grieved might be restored by appeal I agree that such sentence should bind untill it were reversed but in our Case no appeal lieth from the high Commissioners wherefore we ought to be helped here or otherwise we are without remedy Coke If the Delegates give sentence no appeal lieth and yet the party grieved shall not be helped here Fenner 16 Eliz. One Foxe was deprived the last day of the Parliament for incontinency which offence was pardoned by the same Parliament and that sentence of Deprivation was holden void Anderson In your Case the offence it self was pardoned and discharged Also it is

against a general Statute of which every one ought to take notice Periam When the Case was in the Common Pleas it was moved If of a sentence given by the high Commissioners an Appeal did lie and it was certified by Clark Doctor of the civil Law that it did for the Commissioners are as the Delegates of the Queen And as by the Canon Law one might appeal from the Delegates of the Pope unto the person of the Pope so now one may appeal from the high Commissioners to the person of the Queen See for that 24 H. 8. 12. Another Error was assigned because that the Commission gave authority to the Commissioners to adjudge upon confession of the party or upon the witnesses but here none of these two ways is found by the Verdict but sentence was given upon his Plea That he was sued in the Arches for the same cause and so they have not pursued their authority for the Act is That such Commissioners shall have authority by vertue of the said Act and of the said Letters Patents to exercise c. And they are directed by the Letters Patents that they shall proceed upon due proof had by confession or true witness to give sentence Periam Although they have not observed the due form prescribed unto them by the Letters Patents yet such sentence is not void Anderson If the party appeareth and will not answer it shall be taken pro confesso and he shall be condemned CCXVII Sir John Sand 's and Packsal Brocas 's Case Trin. 38 Eliz. In the Common Pleas. SIR John Sands brought an Action upon the Case against Packsal Brocas upon a Trover of goods and houshold-stuff The Defendant pleaded as to parcel that they were fixed to his Freehold in S. in Hampshire Absque hoc that he found them in other manner as to the part that the Plaintiff gave them to him at D. in Hampshire and as to the other part he pleaded Not guilty For the first part the Plaintiff caused it to be entred Non vult ulterius prosequi and took issue upon the two other and it was found for the Plaintiff by several Iuries in several Counties and damages and costs assessed by the Iuries and now the Defendant brought Error and assigned Error i. because the Plaintiff as to the first had entred Non vult ulterius prosequi which is a Non-suit and Non-suit in part is Non-suit in all Anderson It is a Question if this be a Non-suit The entry is Querens venit gratis concessit that as to the goods mentioned in the first Pleas Non vultulterius prosequi Ideo consideratum est quod nihil de iisdem versus the Defendant fiat est ille pleg in miseric the Defendant eat inde sine die Periam A Non-suit is when the Plaintiff is demanded and doth not appear but when he comes into Court and saith Quod non vult ulterius prosequi the same is a Retraxit Nelson Prothonotary Non-suit is upon default but here the Plaintiff appears and this is the usual form of entry of a Retraxit Another Error was assigned because both Iuries have assessed costs and Iudgment given according whereas the last Verdict ought to do it And where two Iuries are to try the issue the form of the entry after the first Verdict is Cesset executio untill the other issue be tryed Vid. 21 H. 6. 51. 36 H. 6. 13. Anderson Several issues cannot sever the costs although they may the damages for it is but one suit therefore but one costs and that is the reason that Iudgment shall not be given untill the last issue be tryed because that costs shall be but once assessed which was granted by the whole Court And by Periam The first Iury may assess costs for the whole suit Quod fuit concessum Coke Here are several Iudgments for the costs and although it be void for the later issue yet it is good for the first Periam How shall it appear unto us which Verdict was the first and which the last although that the one Verdict be entred of Record before the other the same doth not make that it was first given wherefore the whole shall be reversed CCXVIII Mich. 31 Eliz. In the Common Pleas. 2 Len. 224. A Man 30 Eliz. made a Feoffment in Fee to the use of himself for life and afterwards to the use of his first son and his heirs The father and the Feoffees before issue for money by Deed give grant and enfeoff J. S. and his heirs who hath not notice of the use The Tenant for life hath issue and dieth the issue entreth Glanvile The use limited to the first son is destroyed for without regress of the Feoffees it cannot rise and that the same is gone by their Livery See Plowden's Com. 340. And also he vouched the case of the Earl of Kent whereby the release of the surviving Feoffee a sleeping use was destroyed and could not afterwards be revived Harris The use may rise without entry of the Feoffees And he put a difference between uses created before the Statute and uses created after for in the first case they ought to enter and if they be disabled by any Act as in the case betwixt Gascoign and the Earl of Kent they shall never rise but in the later case all the authority and confidence is by the Statute out of the Feoffees and the uses contingent shall rise without aid of the Feoffees by the operation of the Law for the land is bound to the uses and charged with them As upon a Recovery in a Warrantia Chartae the land of the Defendant is charged pro loco tempore and according to the common experience in Conveyances for the payment of the Debts of the King as in the case betwixt Breden and Dennis The Debtor of the King makes a Feoffment in Fee to the use of himself and his heirs untill he makes default of payment of such a sum unto the King at such a day and upon default to the use of the King and his heirs Cooper There needs no entry of the Feoffees and he put the difference put before by Harris betwixt an use created before and an use created after the Statute And now the Feoffees have not any power to revive or destroy such cases but are onely as instruments to convey the uses for the use is created upon the Livery and is transferred by the Statute if the person to whom the use is limited be capable thereof at the time of the limitation thereof but if not the Law shall preserve the same and it cannot by any means be prevented And he put the case of Bro. Feoff to Uses 50. 30 H. 8. And there is a great difference betwixt an Vse limited before the Statute and after the Statute for now after the Statute the Feoffees have not any seisin whereof they may make a Feoffment And he put the case between Cheney and Oxenbridge Cheney leased to Oxenbridge for

argued for the Plaintiff in the Writ of Error alledged the general Error viz. That Iudgment was given for the Plaintiff where it ought to be found for the Defendant And he said That Erigere stagnum est de novo facere exaltare is erectum majoris altitudinis facere Deexaltare est ad pristinam altitudinem adducere Prosternere stagnum est penitus tollere And in every Action upon the Case such apt and precise words are to be in the Writ according as his Case requires unto the end that Iudgment may in such Action be given to the Plaintiff according to his plaint and his damages In 7 E. 3. 56. In Assise of Nusans Quare exaltavit stagnum ad nocumentum liberi tenementi sui The Defendant pleaded that he had not inhanced it after it was levied and there it was said by Drew Serjeant That there is not any other Writ in the Chancery but Quare exaltavit stagnum But that was denied by Herle For that he said that the Plaintiff might have a Writ out of the Chancery Quare levavit stagnum And there by that Book it is assigned That Levare stagnum exaltare stagnum do differ and therefore he said that in this Case the Writ should abate for the using of one word for another 8 E. 3. 21. Fitz. Nusans 5. by Chauntrel In a Writ of Nusans Quare levavit if it be found that he levied it to the Nusans c. the whole shall be destroyed but in a Writ Quare exaltavit nothing shall be pulled down if it be found for the Plaintiff but that which is enhaunced onely So 8 Ass 9. Br. Nusans 17. the same Case is put And see 16 E. 3. Fitz. Nusans 11. If the Nusans be found in any other form than the Plaintiff hath declared he shall not recover And in 48 E. 3. 27. the Writ was Quare divertit cursum aquae c. and the Plaintiff shewed that the Defendant had set piles and such other things in the water by reason whereof the course of the water was straitened and because the Plaintiff might have had a Writ Quare coarctavit cursum aquae the Writ was abated Another Exception was taken viz. That the Assise of Nusans ought to be brought against the Tenant of the Freehold and therefore it would not lie in this Case it not being shewed that the Defendant was Tenant of the soil Vid. 33 H. 6. 26. by Moile If a way be straitned and impaired an Action upon the Case lieth but if it be altogether stopped up then an Assise must be brought But there it is said by Prisoit That if the stopping up of the way be done by the Tenant of the Land then an Assise lieth if by a stranger then an Action upon the Case But for common Nusances no Action lieth but they ought to be presented in the Court-Leet or Turn and there redressed and such was the opinion of the whole Court in this Case Then it was moved 6 Co. 25. That one of the Plaintiffs in the Writ of Error had released and the Question was whether that release should bar his companion to which nothing was said At another day the Case was moved again and Drew Serjeant said That Exaltare and Erigere are all one but all the Iustices were against that for that Erigere is de novo facere and Exaltare is in majorem altitudinem attollere and afterwards judgment was affirmed CCXXIII. Freeman and Drew 's Case Trin. 30 Eliz. In the King's-Bench IN an Action upon the Case by Freeman against Drew The Defendant pleaded That after the Assumpsit whereof the Plaintiff had declared There was an agreement betwixt them That the Defendant and two others should be bound in a Bond to the Plaintiff for the sum promised and that they entred Bond accordingly The Plaintiff confessed the agreement and that the Bond was made according to the agreement and that the parties bound did deliver the same as their Deed cuidam ignoto to the Plaintiff The Defendant said That they did deliver the Deed to one J. S. and gave notice thereof unto the servant of the Plaintiff and that they are now ready to deliver it to the Plaintiff upon which there was a Demurrer Godfrey argued That the said Plea of the agreement specially executed ut supra was good as in a Case lately adjudged between Alford and Leigh 1 Cro. 54. Ante 110. Tr. 29 Eliz Where the Arbitrament was made That Leigh should release unto Alford before the Feast Petri ad vincula and before the said Feast Leigh sealed and delivered such a release unto the use of the said Alford and after the Feast he tendred it to Alford but he refused it and brought Debt upon the Bond for performance of the Arbitrament and it was adjudged That the Action would not lie for if he do recover upon that Action he also should take advantage of the release Coke In Alford's Case a tender was to the Plaintiff himself which is not in this Case and although that it was after the Feast yet it was before the suit commenced and also in our Case the tender is depending the suit Gawdy If the Plaintiff should recover in this Action he might plead the recovery in Bar of the suit upon the Obligation Wray Let the Plaintiff release the Bond and take Iudgment here which was done accordingly CCXXIV. Somers and Sir Richard Buckley 's Case 32 Eliz. In the Common-Pleas IN the Case betwixt Somers and Sir Rich Buckley Where the Plaintiff prayed a Prohibition to the Court of Admiralty The Case was That the Defendant sued in the Admiral Court for the moyety of a Ship and prize taken by them upon Letters of Reprizal 2 Inst 205. for the Civil Law is That if two Ships meet at Sea together although they do not go forth as consorts and the one Ship in the presence of the other taketh a Ship with goods in it the other Ship which was present shall have the moyety 2 Roll. 205. or one half of the Ship and goods taken for although it did not take the Ship yet the presence thereof there at the time of the taking was a terrour to the other Ship which was taken Sine quo the other Ship could not be so easily taken And now the Plaintiff for the Prohibition did surmise That after they were arrived in England 2 Roll. 171. they did agree amongst themselves That the Plaintiff should have four parts of the said Ship and goods so taken and the other five parts And the Plaintiff said that he had pleaded this matter in the Court of Admiralty and they would not allow the Plea and thereupon he prayed a Prohibition which was granted but afterwards it was moved on the other side That the said Court of Admiralty would allow the Plea and there trie it and thereupon a conditional consultation was granted by the Court so that that Court allow that Plea and trie

it there And it was said If the Court there should not allow the Plea that they should incur the offence of contempt of this Court and the other party should have a Prohibition CCXXV. Sir Richard Buckley 's Case Mich. 32 Eliz. In the King's-Bench SIR Richard Buckley was indicted upon the Statute of Praemunire of 13 and 15 R. 2. and the effect was That whereas one Griffeth Matthew had murthered one Robert Footman at Beaumarris and whereas one Owen Wood prosecuted the said Griffeth Matthew for the said murther The said Griffeth Matthew Praemissorum non ignarus sed intendens the said murther a Curia Dominae Reginae ad aliud examen c. pro quodam supposito contemptu Curiae Admiralitatis traxit in placitum the said Owen Wood coram Julio Caesar in the Court of Admiralty holden at Islington supposing the said murther to be done upon the high Sea and thereupon caused him to be arrested and being under arrest to enter Bond unto the Lord Admiral that he should not prosecute the said murther against the said Griffeth Matthew nor examine any witnesses concerning the said murther and that the said Sir Richard Buckley was abettor and procurator of the said Griff. Mathew therein To this Indictment many Exceptions were taken by Coke In placitum pro quodam contemptu and doth not shew the contempt in certain for it is too general and so not good See 18 Ass for the stealing of certain Sheep without shewing what Sheep they were is not a good Indictment And here he doth not say concerning the said murther or concerning the premisses 2 Although that the matter of the Indictment be true yet the Stat. of Praemunire doth not extend to it for the Statute inflicts a punishment as well upon the Iudge scil the Admiral as upon the party See 10 H. 4. 164. If one Libelleth in the Court of Admiralty for a thing done upon the Land and it appeareth upon the Libel that the thing was done upon the Land and they notwithstanding that hold Plea of it A Praemunire lieth upon it But if the same doth not appear within the Libel then it is not within the Statute but a Prohibition shall onely issue So in the case of Tithes If the Parson sueth for Tithes severed from the nine parts and that appeareth in the Libel the same suit is within the Statute of Praemunire and that was Cardinal Woolsey's Case 3 It is alledged That Sir Richard Buckley procured him to do it but it is not shewed any place where the procurement was had And that was resolved in the Case of the Lord Paget 1 Len. 5. and the Bishop of Coventrey and Lichfield where the Bishop was indicted That he commanded J. S. to enter into the Close of the Lord Paget and to do a trespass there and because the place of the commandment was not set forth in the Indictment the Bishop was discharged M. 25 and 26 Eliz. Another matter was objected because that the words are That the said Sir Richard Buckley did abet and procure in hac parte without shewing what thing As to this last Objection The Court was of opinion that the words in hac parte did refer to the whole offence contained in the Indictment Wray It is hard That the matter of the Indictment should be within the Statute of Praemunire for by the suit it is supposed That the offence was done upon the sea and the Admiral hath jurisdiction to punish murthers committed upon the sea so in some degree the Admiral hath Conusance to enquire of Murther but if they hold plea of any thing of which in no degree they have Conusance it is otherwise And as to the place where the commandment was made the Court was clear of opinion that it ought to be shewed CCXXVI Hooper 's Case Mich. 32 Eliz. In the King 's Bench. JOhn Hooper 1 Cro. 198. alias Bartholomew of D. c. was indicted upon the Statute of 8 H. 6. Of forcible Entry and Exception was taken to the Indictment in default of addition of the place c. For the addition is here after the alias dict and so there is no addition and therefore the party was discharged and it was holden in this Case That Uxor is a good addition and where the husband and wife are indicted and the husband be indicted of such a place although the wife hath no addition of place yet the same is good enough but Ive said That in that case there needs not any place CCXXVII Mich. 32 Eliz. In the King 's Bench. A. Was Indicted for not repairing of a Bridge lying in such a high-way which A. is bound to repair by reason of his land adjoyning and the Indictment was That the Bridge was so ruinous Ita quod Ligei Dominae Reginae per eam transire non possunt and concluded ad nocumentum eorund c. and that was challenged because it doth not say Ad nocumentum omnium subditorum for otherwise it may be intended a private way of which a man cannot be indicted but the party grieved shall have his Action upon the Case But the Exception was not allowed but the Indictment is good enough For the words of the Indictment are Sic quod Ligei Dominae Reginae illuc pertransire non possunt i. e. all the Liege people and Subjects of the Queen and then ad nocument eorund amounts to as much as ad commune nocumentum c. and for that cause the Indictment was holden good enough CCXXVIII Ashpernon 's Case Mich. 32 Eliz. In the King 's Bench. ONE Ashpernon was Indicted at the Sessions in the County of Sussex for an unlawfull assembly and entry into the Close of one A. called The Parsonage land before two Iustices of Peace there and exception was taken to it because it is not set down in the Indictment that one of the Iustices was of the Quorum but that the exception was disallowed for the Indictment is sufficient if none of them be of the Quorum for they may enquire but not determine Another exception was because the contents of the Close is not set down in the Indictment scil the number of the acres nor if it be arrable pasture or Meadow but that was disallowed also for this is but an Indictment of trespass contrary it is upon an Indictment upon the Statute of 8 H. 6. Postea 186. for there the party grieved is to have restitution but so he is not here Another exception was taken because that in the Indictment no time is set down when the trespass was done but onely of the assembly but that was disallowed also for both shall be taken to be done together all at one time CCXXIX Leveret and Townsend 's Case Mich. 32 Eliz. In the King 's Bench. 1 Cro. 198. 3 Len. 263. IN an Action upon the Case for disturbing him of his common The Plaintiff declared That he was seised in Fee of a Messuage and certain

land and that he and all those whose Estate c. have common of pasture in 16 acres of land called D. from the time that the corn was reaped untill it be sowed again and also common of pasture in lands called R. omni tempore anni as appendant to the said Messuage and land and that the Defendant had plowed the said lands and so disturbed him of his common and found for the Plaintiff and it was moved in stay of Iudgment That here it appeareth that the Plaintiff was seised in Fee and so he ought to have an Assize and not an action upon the Case but the exception was disallowed per Curiam See 2 H. 4. 11. 8 Eliz. Dyer 250. 11 H. 2. Action upon the Case 36. CCXXX Hore and Wridlesworth 's Case Mich. 32. Eliz. In the King 's Bench. HOre brought an Action of trespass against Wridlesworth Quare clausum domum suam fregit The Defendant pleaded and put the Plaintiff to a new assignment i. a House called a Stable a Barn and another house called a Carthouse and Garnier and that was assigned for Error for that Assignment is not warranted by the Declaration Gawdy The same is good enough for Domus in the Declaration contains all things contained in the new Assignment But if the Declaration had been of a Close and the new Assignment of a Barn it had not been good Wray Domus est nomen collectivum and contains many buildings as Barns Stables c. and so was the opinion of the whole Court. CCXXXI Savacre 's Case Mich. 32 Eliz. In the King 's Bench. A Writ of Error Ante 4. was brought by Savacre and the Bishop of Gloucester M. 31 and 32 Eliz. upon a Iudgment given in a Quare Impedit for the Queen And Error assigned 1. An Attachment was awarded against the Defendant in the Quare Impedit retornable Quind Pasch at which Savacre appeared and cast an Essoin and notwithstanding that a Distringas was awarded against them both retorned Crast Trin. and the awarding the Distringas was erronious for the Essoin was as an appearance for to save c. and therefore against him no Distringas ought to have been awarded And upon alledging of Diminution the Record of the Essoin was certified for the same did not appear upon the Plea Roll. 2 The Record is Ipsi in Misericord and so both of the Defendants are amerced for the default of appearance Quind Pasch whereas Savacre was then Essoined and so no cause of amerciment of him Coke The original Writ was here sued Mic. 26 Eliz. retornable Quind Hillar and then both the Defendants made default for which an Attachment was awarded retornable 15 Pas and then Savacre appeared and Iudgment was given Quod ipsi sint in Misericord in which point the Error is assigned But I conceive that it is not Error for upon the Attachment the parties ought to put in sureties for their appearance and the said sureties took upon them that the Defendants and each of them should appear and if they or one of them maketh default the sureties should be amerced and so here this Iudgment Ideo ipsi in Misericord shall refer to the sureties not to the parties for the Defendants shall not be amerced untill the end of the suit and but once onely in one action which see Book of Entries 464. where there was but one Defendant and therefore If the amerciment shall refer to the Defendant then it should be Ideo ipse not ipsi c. and that is the reason wherefore neither the Queen nor an Infant shall find pledges for no amerciament shall be upon their default therefore in vain for them to find pledges c. And if the pledges be amerced where they ought not to be amerced by the Law yet the Defendant shall not have Error upon it for he is not the party grieved by that amerciament And upon this reason it is That in a Scire facias against the bail if erronious Iudgment be given against him the Defendant in the Action shall not have a Writ of Error The awarding of the Distress upon the Roll against both where the one of them onely makes default is not error especially as this case is for though that one of them was Essoined untill the day aforesaid yet at the said day they make default and so the Distress is well awarded against him and although that the Writ were ill awarded yet when they appear Cr. Trinit at the day of the retorn of the Distress all mean defaults in the Process are saved and so the misawarding of the Distress by appearance afterwards is supplyed As 39 E. 3. 7. The Law requires that in an action grounded upon the Statute of Praemunire 27 E. 3. the Defendant hath warning by two Months yet if the Defendant having not had such warning appeareth the Process is well enough So 9 E. 4. 18. Where upon any Process the Defendant appeareth although the day of appearance be not lawfull yet the parties shall be put to answer and see many cases there to the same purpose and such was the opinion of the Court in the principal Case And as to the second Error that the Iudgment Ideo ipsi in Miseric shall be referred to the sureties onely and not unto the party and that the Defendant shall be but once amerced in one action the same is true that he shall be but once amerced for one default but if many defaults be the Defendant shall be severally amerced for every default And it should be unreasonable that the sureties should be amerced and that the Defendant who is as principal should go free See the Book of Entries 193. Ipsi plegii sui in Misericordia c. CCXXXII Farnam 's Case Mich. 32 Eliz. In the King's-Bench FArnam Schoolmaster and others were Indicted upon the Statute of 8 H. 6. for entring In domum Rectoriae de Putney ac in cert terras eidem domui part jacen in Putney c. Exception was taken to the Indictment because it recited the two parts of the Statute 1 Expulsion and Disseisin with Force 2 Holding out and there is not any offence in it contained as to one of them scil Holding out and although it was not necessary to recite the Statute yet the party meddles with it and doth not apply it to the special matter the same is naught See for that the Case between Strange and Partridge Plow Com. 2 The entry is supposed In domum certas terras eidem domui pertinen jacen in Putney which is incertain as to the lands and it is naught for the house also for it is not shewed in what Town the house is for this clause ac certas-terras eidem domui pertin jacen in Putney is a distinct clause by it self and refers onely to the lands and doth not extend to the house As to the first exception is was disallowed for it is not like unto Partridge's Case for there the

Statute is recited which needs not and therefore being misrecited made the Indictment insufficient but here the Statute is well recited and therefore as unto that matter the Indictment is sufficient As to the second exception the Iustices were of opinion That the Indictment in that respect Antea 184. was too general and incertain The third exception was not allowed for the latter words i. e. in Putney do refer to the whole and extend as well unto the house as unto the lands But as to these words Lands to the said house belonging See the Case between Partridge and Croker 7 E. 6. 85. where it is good enough because that the number of the acres is set incertain And it was holden by the Court That a Schoolmaster is a good addition for it is a mystery as a Scrivener and afterward the Indictment for the house onely was holden good CCXXXIII Gray a Bencher of the Temple 's Case Mich. 32 Eliz. In the Chancery GRay a Bencher of the Temple's Case was this It was found by Office That one H. was seised in Fee of certain lands called Drayners and Codred alias Codreth in the County of Hertford in his Demesne as of Fee and thereof enfeoffed certain persons unto the use of himself and Anne Capel with whom he afterwards intermarried and of the heirs of their two bodies begotten and of such Estate died seised and farther it was found that the said H. was also seised of other Lands in Barmesden in his Demesne as of Fee and therefore died seised and now came Gray into the Chancery and shewed that the said H. was seised of the said Land called Drayners in his Demesne as of Fee and thereof enfeoffed certain persons unto the use of himself and the said Anne Capel for the term of their lives and afterwards by his Indenture dated the 23. of Decemb. and enrolled bargained and sold the Reversion thereof to the said Gray c. by force whereof c. Absque hoc that he was seised in tail and absque hoc that he thereof died seised in his Demesne as of Fee-tail as it is found by the said Office and for the Land in Barmesden he said that the Lady Judde was seised thereof for the term of her life the Reversion to the said H. in Fee who granted to him the said Reversion in Fee c. absque hoc that he died seised in his Demesne as of Fee c. And upon that the Queen's Attorney joined issue and the Venire facias issued De Cottred Barmesden and the Iury found That H. did not make the Feoffment to the use of himself and Anne his Wife in tail and farther found for Gray in all c. And it was objected here That the same is not a good and lawfull trial For the Land is alledged to be in Codrett and the Venire facias is of Codred c. And although the Venire facias be well awarded as unto Barmesden yet being naught in part it is naught in all which was granted by the whole Court And then a new Venire facias shall issue forth for the whole Another Objection was because he pleads that the Lady Judde was seised of that Land for the term of her life in which Case Gray who is in Reversion ought not to be admitted to this Traverse because that Tenant for life for any thing that is pleaded to the contrary is yet alive and it is clear that none shall be put to his Traverse but the party grieved and here he in the Reversion upon an Estate for life cannot be restored to the possession and by consequence shall not have Traverse See for that 6 H. 7. 15. and 37. Ass 11. c. 2. The seisin in tail ought to be traversed and not the descent or dying seised for if they were seised and disseised and so died the Queen shall have the Ward Coke contrary For Codred and Cottered idem sonant c. And although that it be found by Office that H. was seised of Lands in Codred alias Codreth yet the Defendant supplies the said matter for he saith thus as unto the Land in Codred praedicta which words import that the said Land was known by the one name or the other for this word praedicta is as an Averment which see 33 H. 8. Br. Averm 42. And so here this word praedicta is an Averment that Cottered and Codred are one And if so then the Venire facias is well awarded The Statute of 18 H. 6. gives Traverse to those who find themselves grieved by such Offices or which are put out of their Lands or Tenements and we are within the words of it for upon the whole matter we are out of possession as it was ruled in the Case of one Stukely in the Court of Wards the last Term. If it be found by Office That A. died seised of my Manor and that he held the said Manor of the Queen Now I am out of possession and for that cause the bargain and sale of Dorrel to Sir Francis Walsingham was holden void by the whole Court And 4 H. 6. 12. Traverse is given in lieu of Petition but he in the reversion may have Petition therefore he shall be also admitted to Traverse and this Case may be resembled to the Case of 2 E. 3. 23. where a Praecipe was brought against Tenant for life and he in the Reversion for life prayed to be received It was said by Thorp That is not within the Case of the Statute for he is Tenant onely in the Remainder and it is possible that neither shall have any thing and the Statute speaks onely of Reversion and yet it was awarded That he should be received otherwise great prejudice would follow And here we are at prejudice for now by reason of this Office we cannot have our Action of Waste Also here we need not to Traverse the dying seised in tail but it is sufficient to Traverse the gift in tail for if there be not a gift in tail it is not possible that he should die seised in tail which see 2 E. 4. 15. by Laicon Gawdy Iustice conceived that the trial is not good for the Venire facias is not from the place where the Land is and this word praedicta doth not amount to an Averment and the Case cited before is but the opinion of Brook. Wray said That as to the first exception that it was good enough for both the names idem sonant and as to the Office by that the Queen hath gained possession so as he who traverseth cannot have an Action of Waste and so he is prejudiced by the Office c. CCXXXIV Perchall 's Case Mich. 32 Eliz. In the King's-Bench PErchall was Indicted upon the Statute of 5 E. 6. cap. 4. for drawing of his Dagger in the Church against J. S. without saying That he drawed it to the intent to stick the Plaintiff and therefore the Indictment was holden void as to the

Council by him assigned a sufficient and lawfull discharge of an annual Rent which the Plaintiff claims out of two houses of the Defendant in B. aforesaid That then the said Bond shall be void and the Defendant said That he at the day assigned contained in the Condition that A. and B. by assignment of the Defendant came to B. and tendred to shew to N. and W. of the Plaintiff's Council a sufficient discharge of the said annual Rent and that they did refuse to see it upon which there was a demurrer in Law and Iudgment was given for the Plaintiff and that the Plea was no Plea for the Defendant ought to have shewed in his Plea what manner of discharge he would have shewed as a release unity of possession c. But as the Case is here If the Plaintiff shall traverse the Plea in Bar the issue joined upon it cannot be tried for the Iury cannot know which is a lawfull and sufficient discharge but the same shall be tried by the Court for if the Defendant had tendered to the Plaintiff a discharge by unity of possession the Iury cannot know if it be a sufficient discharge and as the Plea is here he hath not shewed what discharge he would have shewed to the said Council and therefore we cannot judge of the same If one be bound to plead a sufficient Plea before such a day in such a Court in such an Action it is not sufficient that he hath pleaded a sufficient Plea but he ought to shew what Plea he hath pleaded otherwise the Court cannot judge if the Plea be sufficient or not Vid. 35 H. 6. 19. and 37 H. 8. Br. Cand. 16. where a man will plead that he hath saved the party harmless he ought to shew how Shute Iustice and Clench Iustice If the Defendant had pleaded not disturbed by any indirect means such a Plea had been good enough Gawdy Iustice If he had pleaded not disturbed contra formam Conditionis praed it had been a good Plea In a Writ of Entry Ne entra pas contra formam Statuti He did not alien within age is a Negative pregnant but the party may say he did not alien Modo forma all the part to this Plea which comes after the But is surplusage and Negation Gawdy It is a Plea which is pleaded with all the words of the Condition intirely Clench The Case put by Godfrey 22 E. 4. differs from the Case at Bar For there he pleaded all in the affirmative therefore in such a Case he ought to plead specially but in the Case at Bar all is in the Negative in which Case such special pleading is not necessary If I be bounden that I shall not go out of Westminster-hall untill night but tarry in the Hall till night In an Action against me upon that Bond I may plead in iisdem verbis If I be bound upon Condition That I will not return to Serjeant's-Inn the direct way but by St. Giles I shall plead in totidem verbis Godfrey I agree those Cases for the matter which comes after the But is triable by the Countrey but so it is not in the principal Case Clench But is but a word of surplusage and if that and all which follows had been left out it had been well enough It was adjourned CCXLIX Courtney and Kelloway 's Case Mich. 26 Eliz. In the Common-Pleas COurtney brought an Action upon the Statute of 5 Eliz. concerning Perjury against Kelloway and declared That where Sir Gawen Carew had heretofore brought an Action upon the Case against the now Plaintiff for slanderous words viz. because that the said now Plaintiff had affirmed that the said Sir Gawen had had the Pocks To which Declaration the now Plaintiff had pleaded that Kelloway the now Defendant reported to the said now Plaintiff That he himself i. e. Kelloway had heretofore healed the said Sir Gawen of the Pocks Absque hoc that he spake them simply of his own head upon which they were at issue and the said Kelloway was produced as a witness on the part of the said Courtney and the said Kelloway upon his oath deposed at the Trial of the said issue That he never had reported to the now Plaintiff That he himself had healed the said Sir Gawen of the Pocks for which the Iury found for Gawen and also assessed greater damages in respect that they found That Courtney spake the said words of his own head c. and not of the report of Kelloway It was the opinion of the whole Court that the now Plaintiff should have this Action For notwithstanding that that oath doth not trench much unto the proof or disproof of the issue yet because that by reason of the oath the Iury have aggravated the damages the Action doth lie as in case of Trespass of breaking his Close and spoiling his grass the Defendant pleads Not guilty and at the trial of the issue a witness is produced on the Plaintiff's part who deposeth upon his oath That the Land where c. was so rich in grass that it was ready to be mowed whereas in truth none or very little grass was there growing yet if the Iury find upon other evidence the Defendant guilty it is an occasion to induce the Iury to tax the greater damages all which the Court granted CCL Holland and Drake 's Case Mich. 26 Eliz. In the Common Pleas. IN an Ejectione firmae brought by Holland against Drake and five others Drake pleaded Not guilty the other five Quoad 20 acres pleaded Not guilty also and as to the residue that long time before that Andrews Lessor of the Plaintiff had any thing in the land That Hen. Lord Cromwel was seised and leased the same to them for two years and afterwards granted the Reversion to Andrews to whom they attorned Andrews within the said term entred upon them and leased to the Plaintiff upon whom they re-entred as was lawfull for them to do The Plaintiff by Replication said That long time before the said Lord Cromwel had any thing c. Andrews himself was seised untill by the said Lord Cromwel disseised and leased to the Defendants Ut supra and granted the Reversion to the said Andrews with attornment who entred and leased to the Plaintiff who entred and was possessed untill by the said Defendants ejected Modo forma pro ut c. And upon this Replication the said five Defendants did demur in Law. It was argued That the Plaintiff in his Replication hath departed from his Declaration for by his Declaration he hath supposed himself to be ejected by all the six Defendants and in the Replication he saith That he was possessed untill by the said five Defendants who plead in Bar he was ejected so he hath departed from his Declaration in the number of the Ejectors for he ought to have said untill he by the said five and also by the said Drake was ejected as 12 E. 4. 6. in trespass upon Entry

upon the Statute of 5 R. 2. against J. and E. J. died pendant the Writ and E. pleaded in Bar and the Plaintiff did reply and conclude and so was he seised untill the said E. Simul cum dicto J. named in the Writ entred upon the Plaintiff c. But the opinion of the whole Court was clear to the contrary for here in the case at Bar Drake by his several issue which he hath joyned with the Plaintiff upon Not guilty is severed from the other five Defendants and then when they plead in Bar The Plaintiff ought to reply to them without meddling with Drake who upon his several Plea and issue joyned upon it is a stranger to them as if the said five had been the onely Defendants But if he had not replyed to Drake as if Drake had made default or had died after the Writ brought as in the case before cited of 28 E. 4. there he ought to have replyed as it is objected So in an Ejectione firmae of twenty acres The Defendant as to ten acres pleads Not guilty upon which they are at issue and the Plaintiff replies and says as to the other ten acres and so was he possessed untill by the Defendant of the said ten acres he was ejected this is good without speaking of the other ten acres upon which the general issue is joyned And the Court was ready to have given Iudgment for the Plaintiff but they looked upon the Record and seeing that one issue in this Action was to be tryed between the Plaintiff and the said Drake And although the Plaintiff offered to release his damages and the issue joyned and to have Iudgment against the five Defendants who had demurred Vid. antea 41. yet the Court was clear of opinion that no Iudgment should be given upon the said Demurrer untill the said issue was tryed for the Action is an Ejectione firmae in which Case the possession of the land is to be recovered and it may be for any thing that appeareth That Drake who hath pleaded the general issue hath Title to the land c. But if this Action had been an Action of Trespass there in such case Ut supra upon release of damages and the issue joyned the Plaintiff should have Iudgment presently CCLI French 's Case Mich. 26 Eliz. In the King 's Bench. IT was presented before the Coroner That John French was Felo de se and that certain goods of the said John French were in the possession of J. S. and this presentment was certified into the King's Bench upon which Process issued forth against the said J. S. and continued untill he was Outlawed And now came J. S. and cast in his Writ of Error to reverse the said Outlawry and assigned for Error because that in the presentment upon which he was Outlawed there is not any addition given to the said J. S. And at the first it was doubted If upon that presentment Process of Outlawry did lye and Ive one of the chief Clerks of the Crown-Office said to the Court That such Process in such case did lye and that he could shew five hundred precedents to that purpose Another matter was moved upon the Statute of 1 H. 5. 5. of Additions If this Outlawry by the Statute aforesaid ought to be reversed by default of Addition for as much as the said Statute speaks onely of Outlawries upon original Writs in personal Actions Appeals and Indictments But it was agreed by the whole Court That as to this purpose the presentment should be accounted in Law as an Indictment and afterwards the Outlawry against French was reversed CCLII Mich. 26 Eliz. In the King 's Bench. A Lease for thirty years was made by Husband and Wife if they so long should live and if they die c. That the land should remain to A. their son during the term aforesaid And it was holden by Wray Iustice That if the Husband and Wife do die within the term that the son should have the land De novo for thirty years But Gawdy was of opinion that he shall have it for so many years which after their death should be expired CCLIII Cooper 's Case Mich. 26 Eliz. In the King 's Bench. IN an Ejectionefirmae The Case was That the Husband and Wife had right to enter into certain lands in the right of the wife and a Deed of Lease for years is written in the name of the Husband and Wife to one A. for to try the Title and also a Letter of Attorney to B. to enter into the land and to deliver the said Deed of Lease to the said A. in the name of the Husband and Wife 3 Cro. 118. 2 Cro. 617. Yel and as well the Letter of Attorney as the said Deed of Lease are sealed by the said Husband and Wife with their seals and entry and delivery is made accordingly the said A. enters and upon Ejectment brings an Ejectione firmae and the whole matter aforesaid was found by special Verdict and the Plaintiff had Iudgment to recover for the special matter found by Verdict i. e. the Deed of Lease and the Letter of Attorney do maintain the Declaration well enough and here is a Lease made by Husband and Wife according to that the Plaintiff hath declared CCLIV Mich. 29 Eliz. In the King's-Bench IN an Action of Trespass for breaking of the Plaintiff's Close Owen 114. 1 Cro. 876. 2 Cro. 195. 229. Godb. 123. and killing of eighteen Conies there the Defendant as to all the Trespass but to the killing of the Conies pleaded Not guilty and as to the killing of the said Conies He said that the place Where is a Heath in which he hath common of pasture and that he found the Conies eating the grass there and he killed them and carried them away as it was lawfull for him to do Cowper Although Conies be Ferae naturae yet when they are in in-grounds they are reduced to such a property that if they be killed or carried away I shall have an Action of trespass Vid. 43 E. 3. 24. And if a Deer be hunted by the Plaintiff in a Forest and afterwards in hunting it be driven out of the Forest and the Forrester doth follow the chase and the Plaintiff kill the Deer in his own grounds yet the Forrester may enter into the land of the Plaintiff and re-take the Deer 12 H. 8. 9. And although the Defendant hath common in the soil yet he cannot meddle with the wood there nor with the land nor with the grass otherwise than with the feeding of his cattel for he hath but a faint interest And if he who hath the Freehold in the land bringeth an Action of trespass against such a commoner for entring into his land and the Defendant plead Not guilty he cannot give in evidence that he hath common there And it hath been late adjudged That where commoners prescribe Godb. 123. That the Lord hath used to put in

such a pasture but so many beasts that such a prescription is a void prescription It was argued on the other side That the owner of the soil hath not the true property of the Conies in him but a kind of property And see F.N. B. 86 and 87. Quare clausum fregit 20 Cuniculos cepit Against a stranger he may have an Action but not against the commoner because he hath wrong in his common by the feeding of the Conies there for although he hath not an interest in the soil yet he hath an interest in the profits of it and a commoner may distrain the beasts of him who hath not right of common for damage-feasance as the books are 4 H. 7. 3. 15 H. 7. 15. and there the commoner hath not any remedy if he cannot enter and kill the Conies for he cannot take them damage-feasance nor can impound them for no Replevin lyeth of them if the owner of the soil ploweth the lands yet the commoner may put in his cattel claiming his common and he may well justifie the same because the wrong beginneth in the owner of the soil At another day the Case was moved again and then it was argued by Coke and he said The point is Whether a commoner having common of pasture may kill the Conies which are upon the ground and he argued That he might not And first he said It is to be considered what interest he who hath the Freehold may have in such things as are Ferae naturae and then what authority a commoner hath in the ground in which he hath common As to the first point he said That although such beasts are Ferae naturae yet they are reduced to such a property when they are in my ground by reason of my possession which I then have of them that I may have an Action of trespass against him who taketh them away as in the book in 42 E. 3. If one hath Deer in his Park and another taketh them away he may have an Action of Trespass for the taking of them See 12 H. 8. If a Keeper or Forrester follow a Buck which is chase out of the Park or Forrest although he who hunteth him killeth the Buck in his own ground yet the Keeper or Forrester may enter into his ground and seize the Deer because the property and possession of the Deer is yet in them by their persuit In 7 H. 6. It is holden That if a wild beast doth go out of the Park the owner of the soil hath lost his property in it but upon the said book it may be well collected that whilest it remains in the Parke That the owner of the Park hath property in it for 18 E. 4. 14. It is doubted whether a man can have property in such things which are Ferae naturae But in 10 H. 7. 6. it is holden That an action of Accompt lyeth for things which are Ferae naturae and see 14 H. 8. 1. In the Bishop of London's Case and 22 H. 6. 59. That as long as such things are in the parties ground they are in his possession and he hath a property in them and in an Action brought for them The Writ shall be Quare damas suas cepit by Newton And see in the Register fol. 102. where an Action was brought Quare ducent Cuniculos suos pretii c. cepit It hath been objected on the other side That the Defendant hath common there To that I answer Admit he hath common yet he hath not an interest in the soil for he cannot meddle with the wood grass or other profit arising of the soil but the interest which the commoner hath is onely the feeding of the grass with ●he mouths of his cattel and if he who hath the Freehold in the ground doth bring an Action against the commoner for entring into his land If the Defendant pleads Not guilty he cannot give evidence that he hath common there for such evidence will not maintain the issue See 22 Ass A commoner cannot take in the cattel of a stranger to agist upon the common and therewith agreeth the book of 12 H. 8. and so it hath been adjudged in this Court. Godfrey contrary And he argued That it is lawfull for the commoner to kill the Conies feeding in the common And he agreed all the cases which were put by Coke and farther he said That the owner of the ground had not an absolute but a kind of a qualified property in the Conies and therefore see the Book of 3 H. 6. and F.N. B. If a Writ of Trespass be brought Quare Cuniculas suas cepit the Writ shall abate and yet he hath a kind of property or a possession rather in them I grant that against a stranger the Plaintiff might have his Action for killing of his Conies but not against the commoner because the commoner hath a wrong done unto him by the Conies eating of his common and therefore he may kill them and although the commoner may not meddle with the land because he hath not an interest in it yet in some cases he may meddle with the profits of it and he may distrain the cattel of a stranger there damage-feasance as the Book is in 15 H. 7. I grant that it is not lawfull for Tenant for life to kill the Conies of him who hath free-warren in the land For if a man bringeth an Action of Trespass Quare warrenam suam intravit Cuniculos suos cepit It is no Plea for the Defendant to say That it is his Freehold See 43. E. 3. accordingly In L. 5 E. 4. In Trespass Quare clausum fregit Cuniculos suos cepit The Defendant said That the Plaintiff made a Lease at will to J. S. of the land and that he as servant to the said J. S. did kill the Conies there and it was holden a good Plea and yet it is there said That by the grant of the land the Conies do not pass but the reason of the book might be as I conceive because the feeding on the land with the Conies is to his damage and therefore that he might justifie the killing of them and so are the Books of 2 H. 7. and 4 E. 4. If I have common of pasture in lands and the Tenant ploweth up the land I shall have an action upon the Case in the nature of a Quod permittat And in 9 E. 4. If one hath lands adjoyning to my land and levyeth a Nusance I may enter upon the land and abate the Nusance So if a man taketh my goods and carrieth them unto his own lands I may enter therein and seize my goods So if a Tenant of the Freehold plows the land and soweth it with corn the commoner may put in his cattel and therewith eat the corn growing upon the land So if a man do falsly imprison me and put me in his house I may justifie the breaking open of his house to get forth In 21 H.

petentis And upon that Replication the Defendant did demur in Law and the opinion of the whole Court was That Iudgment should be given against the Plaintiff for if he should oust the Defendant of his prescription by the Law of the Forrest he ought to have pleaded the Law of the Forrest in such case viz. Lex Forrestae est c. for the Law of the Forrest is not the common Law of the Land and we are not bound to take notice of it but it ought to be pleaded or otherwise the Plaintiff ought to have traversed the prescription of the Defendant for here are two prescriptions one pleaded by the Defendant by way of Bar the other set forth by the Plaintiff in his Replication without any traverse of that with is alledged in the Bar which cannot be good but if the Plaintiff had shewed in his Replication Lex Forrestae talis est c. then the prescription of the Defendant had been answered without any more for none can prescribe against a Statute Exception was taken to the Bar because the Defendant had justified the cutting down of Oaks without alledging that there was not any underwood but the Exception was not allowed for he hath choice ad libitum suum Another Exception was taken because he hath not shewed that at the time of the cutting it was not fawning time Poph. 158. 2 Cro. 637 679. for at the fawning time his prescription did not extend to it and that was holden a good material exception but because the Plaintiff had replied and upon this Replication the Defendant demurred the Court would not resort to the Bar but gave Iudgment upon the Replication against the Plaintiff CCLIX Mich. 29 Eliz. In the Common-Pleas A Black-Smith of South-Mims in the County of Middlesex took a Bond of another Black-Smith of the same Town that he should not exercise his Trade or Art of a Black-Smith within the same Town nor within a certain precinct of it and upon that Obligation the Obligee brought an Action of Debt in the Common-Pleas depending which the Obligor complained to the Iustices of Peace of the said County upon the matter against the Obligee upon which the matter being found by examination the Iustices committed the Obligee to prison and now upon the whole matter Puckering Serjeant prayed a Habeas Corpus for the said Obligee to the Sheriff of Middlesex and it was granted and Fleetwood Recorder of London being at the Bar the Court told him openly of this matter That by the Laws Iustices of Peace have not Conusance of such offences nor could meddle with them for their power is limited by their commission and the Statutes and the Recorder did much relye upon the opinion of Hull 2 H. 5. 5. But by the clear opinion of the whole Court although this Court being a high Court Owen 143. 2 Cro. 596. might punish such offences appearing before them on Record yet it did not follow That the Iustices of Peace might so do But as to the Bond the Court was clear of opinion that it was void because it was against Law. Ante 34. CCLX Trin. 29 Eliz. In the Common Pleas. A Justicies issued forth to the Sheriff of H. for the Debt of 40 l. and the Plea was determined before the Vnder-Sheriff in the absence of the Sheriff and it was now moved by Puckering Serjeant If a Writ of Error or a Writ of false Iudgment did lie in that Case And first the opinion of the Iustices was That the Sheriff himself in his person ought to hold Plea of a Justicies and if he maketh a Precept or Deputation to another the same is meerly void 34 H. 6. 48. And see the said Case abridged Fitz. Bar. 161. and it was said That a Justicies is not an Original Writ but a Commission to the Sheriff to hold Plea ultra 40 s. and upon a Iudgment given upon a Justicies a Writ of false Iudgment lieth and not a Writ of Error See for that 7 E. 4. 23. And it was the opinion of Anderson chief Iustice That such Iudgment is utterly void and Coram non Judice CCLXI Trin. 29 Eliz. In the Common-Pleas NOTE by Anderson chief Iustice That if Cestuy que use 3 Len. 196. 4 Inst 85. Kel 41. after the Statute of 1 R. 3. leaseth for years and afterwards the Feoffees release unto the Lessee and his heirs having notice of the Vse that this release is unto the first Vse But where the Feffees are disseised and they release unto the Disseisor although they have notice of the Vse the same is to the use of the Disseisor and that was the Case of the Lord Compton and that no Subpoena lieth against such a Disseisor See 11 E. 4. 8. CCLXII Hamper 's Case Hill. 31 Eliz. In the King's-Bench HAmper was indicted upon the Statute of 5 Eliz. of Perjury 1 Cr. 147. 3 Len. 230. and in the body of the Indictment The Record was That he Falsa deceptive deposuit whereas the Statute is Wilfully and although in the perclose of the Indictment the conclusion is Et sic commisit voluntarium perjurium Yet the opinion of the Court was that the same doth not help the matter and for that cause the party was discharged For contra formam Statuti will not help the matter nor supply it and yet it was moved and urged That contra formam Statuti would help it and it was holden in this Case That if a witness doth depose falsly but the Iury doth not give credit to it nor give their Verdict against his oath although the party grieved cannot sue him yet he may be punished at the King's suit CCLXIII Moulton 's Case Hill. 31 Eliz. In the King ' s-Bench IT was moved by Coke That one Robert Moulton Tenant in tail 1 Cro. 151. having issue two sons Robert and John died seised and that Robert his son and heir levied a Fine thereof and afterwards levied another Fine and died without issue and John brought two several Writs of Error to reverse both the Fines and the Tenant to the Writ of Error brought upon the first Fine pleaded the second Fine in Bar of it and in Bar upon a Writ of Error brought upon the second Fine he pleaded the first Fine and the Court advised him to plead That the Fine pleaded in Bar was erroneous 7 H. 4. 107. where a man is to annul an Outlawry his person shall not be disabled by any other Outlawry CCLXIV Broccus 's Case Trin. 30 Eliz. In the Common-Pleas BRoccus Lord of a Manor covenanted with his Copiholder 1 Roll. 15. Pordage versus Cole 20 Car. 2. B. R. to assure to him and his heirs the Freehold and Inheritance of the Copihold and the Copiholder in consideration of the same performed did covenant to pay such a sum And it was the opinion of the whole Court That the Copiholder is not tied to pay the money before the Assurance made and the

as taken for Rent arrere yet he cannot be said his Bailiff at the time of the distress which was granted by Rhodes Periam and Windham and as to that which hath been objected That if this traverse be allowed the meaning of the party shall be drawn in question i. e. the meaning of him who took the cattel the same is not any mischief for so it is in other cases as in the case of Recaption See 9 H. 6. 1. 45 E. 3 4. CCLXXV Humphreston 's Case Pasch 16 Eliz. In the King 's Bench. More 103. 1 Anders 40. Dyer 337. Owen 64. Sty 293. IN an Ejectione firmae It was found by special Verdict That W. Humphreston seised of the Manor of Humphreston suffered a common Recovery to be had thereof by Kinnersley and Fowk in the Writ of Entry in the Post to the intent that they should make an Estate to the said W. Humphreston and Elionar his wife for their lives the remainder Seniori puero dicti W. and to the heirs of the body dicti senioris pueri legitime procreat the remainder to the heirs of the body of the said W. Humphreston with divers remainders over And afterwards the Recoverers in December following by Indenture made an Estate accordingly and made Livery to W. Humphreston and his wife and afterwards in November 2 E. 6. by Indenture between the said W. Humphreston of the one party and Kinnersley on the other part The said W. Humphreston did covenant with the said Kinnersley to do all such lawfull and reasonable things for to assure the said lands unto the use of the said W. Humphreston and Elionar his wife for their lives and afterwards to the use of the eldest child of the body of the said W. Humphreston lawfully begotten and to the heirs of the body of the said eldest child of the body of the said W. Humphreston and after to divers other uses over and afterwards Ter. Pasch 2 E. 6. W. Humphreston and Elionar his wife levyed a Fine of the said land to C. and B. in Fee to the use of the said Indenture Elionar died W. Humphreston married another wife and had issue a daughter named Frances and afterwards had issue a son named William and died William the son being of the age of six years entred into the lands and leased the same to the Plaintiff for years who being ejected by the Defendant brought the Ejectione firmae And this special Verdict And the points moved upon it were argued by Atkins Phetiplace Fenner Fleetwood Plowden and Bromley and afterwards this Case was argued by the Iustices And Gawdy puisne Iustice conceived That Iudgment ought to be given for the Plaintiff First he conceived that this Lease for years made by the Infant without Deed and without Rent reserved is not void so as every stranger shall take advantage of it but onely voidable for an Infant may make a Bond and a Contract for his commodity and profit and the same shall bind him as for his meat and drink apparel c. But if upon such Lease he had reserved a small Rent as one peny where the land was worth 100 l. per ann such a Lease had been void and in our Case this Lease was made upon the land and was made for to try the title to it which is a good consideration and to the profit of the Infant and for his advancement and then the Lease is not void It hath been objected That here the Recovery being suffered to the intent that the Recoverers should make an Estate ut supra c. that the use shall rise presently upon the Recovery to him who suffered the Recovery and then the Recoverers could not make Livery unto him he held strongly That the use and the possession should be adjudged in the Recoverers untill they made the Estates c. for they otherwise could not make the Estates c. 2 Roll 789. and these words To the intent shall be construed that they shall have the lands untill they made the Estates c. And he held that the remainder limited Seniori puero where there is not any in rerum natura is good enough as a remainder limited to him who shall first come to Pauls And he conceived that the son should take this remainder and not the daughter and he conceived that the Estate tail here was not executed i. e. the second intail Divers Authors of Grammer have been produced to prove that Puer may be taken both ways Tam puer quam puella Desporterius Calapine Melancthon and the Grammer allowed but I conceive that Puer is a word proper for a Boy and Puella for a Maid and where we have proper words we ought not to iudge but according to them and because the word is doubtfull we ought to consider the cause upon the circumstances and therefore it is to be intended that W. Humphreston had a greater desire that his son should have his Inheritance than his daughter if there be not some special matter to prove that the intent of the father was for his daughter Southcote Iustice agreed with Gawdy in the first point and also that the Recoverers have convenient time to make the Estates and that they are to make the same without request for the benefit of the wife who is a stranger to it and is to have the lands for her ioynture and he cited the Case of the Abbat of York 44 E. 3. 8. and 9. where the difference is taken between a Feoffment made upon condition to re-enfeoff the Feoffor or to enfeoff a stranger And here in our Case the Feoffment is made in convenient time and here is sufficient consideration That the Recoverers shall be seised to their own uses untill c. And these words Roll supra Roll 407. Ea intentione shall be taken for a Condition And also that this remainder limited Seniori puero is good notwithstanding that there be not any Senior puer alive at the time And as to the word puer he held that it did extend to both Sexes indifferently and because it is doubtfull what Sex the father intended we are to construe the same upon the circumstances which appear upon the parts of the Indentures and here it appeareth upon the Indenture that he hath explained his mind scil Eldest child be it Male or Female As if I have two sons named J. and I devise my lands or limit a remainder to J. my son the Law shall construe this Devise to extend to my younger son for without devise or limitation my eldest son should have it But if J. S. hath two sons known by the names of A. and I Devise lands to A. son of J.S. there I ought to explain my meaning openly And he conceived That the Estate tail is executed defeasiable in W. Humphreston upon issue afterwards had and that the daughter should have the lands and not the son and if the Fine destroy the remainder in abeyance limited

to the eldest child then the said eldest child shall have it de novo by the later conveyance And as to the Warranty of the Fine because the possession of the Conusees is removed by the Statute of 27 H. 8. to the daughter she shall not have the benefit of the Warranty as to vouch but she shall Rebutt as 22 Ass 37. 69. Where a Feoffment in Fee is made to my Villein with Warranty and before that the Feoffor dieth I enter upon my Villein so as the Warranty upon the death of the Warrantor is not attached upon the possession of my Villein I shall not have advantage of that Warranty A Disseisor makes a Feoffment in Fee upon Condition the Disseisee re-leaseth the Feoffee with Warranty the Disseisor entreth for the condition broken now the Disseisor shall Rebutt by that Warranty but not vouch And here in our Case the Fine is a discontinuance so as the son is put to his Action if he had right and then the Warranty shall bind him but contrary if his entry be lawfull And as to the Lease made by the Infant he conceived that it being made without Rent it was meerly void for it was without consideration Wray chief Iustice As to the first point he was of opinion That the Recoverers shall be seised to their own use untill they make the Estate for that was the use implied for all uses are directed and ruled by the intent implied or expressed of him to whom the land is and his intent was that such Estates should be made and to such purpose the Recovery was suffered As if I enfeoff A. unto the use of B. for his life there it is implied That B. shall be seised of the Fee to my use I covenant That J. S. shall take the profits of my lands for his life this is a good use of the lands for his life and he held that the Recoverors should be seised to their own use untill c. And the Recoverers ought to make the Estates within convenient time or otherwise the use should be revested again in him who suffered the Recovery and here the Estate was made within convenient time And he said That in every Case where a remainder is limited in abeyance to one by a proper name the same is not good but by a general name it is good enough if the party be in esse when the remainder falls as a remainder limited upon an Estate for life unto the first son or daughter of J. S. where J. S. at the time hath not any son or daughter the same is good if such person shall be in esse at the time of the death of the Tenant for life 17 E. 3. A remainder limited Filio primo genito c. and 3 E. 3. Fitz. Tail. 8. Land given to J. S. Et uxori quam primo matrimonio duxerit in uxorem and afterwards he taketh a wife she shall take by the same Conveyance And as to the Warranty This Fine with Warranty was levyed to C. and B. unto the use of himself for life the remainder to the use of the eldest child c. and he intended That the daughter should not have the benefit of this Warranty for by the Statute the possession is removed and transferred in the Post before the Warranty could attach and therefore the same shall not bind the son neither by Voucher nor by Rebutter But Tenant by the Curtesie shall have benefit of the Warranty for although he be in the Post yet he continueth the Estate which was made to the wife And as to the point in question we ought to consider that the Statute of 27 H. 8. of Vses is That Cestuy que use shall have the lands in such plight as he had the use which was without Warranty and therefore it shall be transferred into possession without Warranty As to the Lease made by the Infant without rent profit or other recompence he conceived the same to be utterly void as if he grant a Rent or an Advowson he may say that he did not grant c. for the thing included in the Deed doth not pass although he delivereth the Deed of Grant with his own hand Two ioynt-tenants within age one makes a Lease of years and dieth the other shall avoid it for the Lease is utterly void of which every stranger may take advantage but of acts voidable it is otherwise As two Infants joynt-tenants the one Leaseth for life and makes Livery in person and dieth the other shall not avoid it Two joynt-tenants the one maketh a Feoffment upon condition and dieth the other shall not take benefit of the condition But here the Lease is meerly void of which every stranger shall take advantage and therefore upon this point the Plaintiff shall be barred And also he was of opinion That this remainder in abeyance limited Seniori puero was not destroyed by the Fine for it is in the consideration of the Law and so preserved by the Law and therefore a descent in the time of vacation of an Abbat shall not bind the successor and so where the party is beyond the seas for such persons and their estates the Law privilegeth and preserveth So a remainder limited to the right heirs of J. S. And where the King seiseth by reason of a Ward and during such seisin of the King a descent is cast the same shall not bind him who hath right for he could not enter upon the possession of the King and by the Statute of 32 H. 8. A Recovery had against Tenant for life the remainder unto the right heirs of J. S. who is alive at the time of the Recovery is not helped by the Statute of 32 H. 8. For the words of the Statute are To whom the reversion or remainder shall then appertain See 11 R. 2. Fitz. Detin 46. and so he concluded because that this remainder is in the custody of the Law and not in esse it is privileged and preserved and not destroyed by the Fine and upon issue had the remainder shall be executed notwithstanding the said act done by the father and without any entry to be made by the Conusees to raise the use for the remainder limited Seniori puero neither was nor could be discontinued As to the principal point of the Case viz. How these words Seniori puero shall be expounded although divers authorities have been cited out of Latine Authours That this word puer shall be taken for the Male or Female yet I conceive That more commonly it shall be taken for the Male than for the Female and we ought to judge according to the intent of the parties and not according to the strict signification of the word in Latine especially where it is doubtfull how it shall be expounded 9 H. 7. 16. A. was bound in a Bond upon condition to pay decem libras auri puri although there be not any such phrase in Latine yet because it appeareth so to be the

meaning of the Obligee to have fine gold it was so taken 39 H. 6. 10. and 11. The word uterque id est quilibet pro parte sua See the Book so it was lately adjudged in the Court of Common-Pleas where three were bounden Et eorum uterque which was construed to be Quilibet for we ought always in construction of Deeds to have regard to the meaning of the parties and not to argue the aptness of the Latine word And I conceive That if a Lease be made for life the remainder puero of J. S. who hath a son and a daughter the son shall have the land c. for the most worthy shall be preferred and therefore if a Freeman marrieth a Neife she is enfranchised for ever according to the opinion of Fitzherbert which I hold to be good Law for the husband is the more worthy So if the Lease for life be made 〈◊〉 J. S. the remainder to the right heirs of A. B. who hath issue three daughters and dieth the eldest shall have the remainder and not the other with her because she is the more worthy and so a remainder upon an Estate for life of lands in Gavelkind limited to the right heirs of J. S. who hath issue two sons the eldest shall have it So here in the principal Case Puer shall be expounded son because he is the more worthy But here are other circumstances which give occasion of another construction for this doubtfull word Puer is explained by the English Indenture which the father W. Humphreston caused to be made Unto the use of the eldest Child which is a good exposition of the former Conveyance and I am of opinion that the same ought to be meant of the daughter for so soon as she is born the remainder vests in her and by the birth of the son after shall not be devested Land is leased to A. for life the remainder to T. son of A. who hath two sons of the same name the eldest shall have it because the more worthy but if afterwards the Donor declares his meaning to the contrary the same shall stand c. And afterwards Iudgment was given against the Plaintiff and that the daughter should have the Lands CCLXXVI Pasch 16 Eliz. In the King's-Bench Poph. 182. Hughs Abr. Tit. Devise 657. Case 5. Savile 72 73. Dy. 371. b. Shep. Touch. 449. 15 H. 7. 12. Ante 43. Perk. 547. A Man devised his Lands to his Wife for life and because he was in doubt whether he should have issue or no he farther willed by his Will That if he should not have any issue by his Wife that then after the death of his Wife the lands should be sold and the money thereof coming distributed to three of his bloud and made his Wife and another his Executors and died The Executors proved the Will The other Executor died and the Wife sold the lands and it was the opinion of Wray and Southcote Iustices That the sale was good although it be not expressed in the Will by whom the Lands should be sold for the moneys coming of the sale are to be distributed by his Executors to persons certain as Legacies and it appertains to Executors to pay the Legacies and therefore they shall sell c. As if a man willeth That his lands shall be sold and that the moneys coming thereof shall be disposed of for the payment of his debts now the Executors shall sell the Lands for to them it belongs to pay debts Also they held 3 Cro. 278. 3. More 341. 1 Inst 113. a. 1 And. 145. that the Lands should be sold in the life of the Wife otherwise it could never be sold and also the surviving Executor shall sell the lands because the authority doth survive CCLXXVII Pasch 16 Eliz. In the King's-Bench THree men were bounden by Recognizance jointly and severally against all which the Conusee sued forth Execution by Scire facias and upon issue joined it was found for the Plaintiff in the King's-Bench and Execution awarded by Capias ad Satisfaciend And because the same erronicè emanavit being upon a Recognizance it was drawn off the File and now the Conusee brought an Action of debt upon the Iudgment against one of them and the opinion of the whole Court was that it would not lie because the Iudgment was joint against them all three CCLXXVIII Pasch 16 Eliz. In the King's-Bench A. Brought an Action upon the Case and declared That the Dean and Chapter of Westminster did lease unto him a house for years by Deed indented of which Indenture he was possessed and afterwards lost it and by Trover it came to the hands of the Defendant who sold it and converted the money thereof coming to his own use The Defendant pleaded Not guilty and the Plaintiff gave in evidence That the said Lease was made to him and to one B. and that the said Indenture was delivered to the said B. And that was agreed to be the possession of them both and afterwards B. died and afterwards A. the Plaintiff was the sole owner of it and that was holdden to be good Evidence on the part of the Plaintiff and if the Plaintiff can prove the other part of his Declaration i. e. that the Indenture came unto the hands of the Defendant and that he sold it that then he should recover But it was given in Evidence on the Defendants parts that the said B. sold to the said Defendant his part and interest in the said Lease and also the said indenture so as now he is become Tenant in common with the Plaintiff and then his sale doth not give any cause of Action to the Plaintiff and that was holden by the whole Court to be good evidence without pleading of it The Case went farther That A. being within age his father leased the lands for 20 years and afterwards the son at his full age upon the back of the Indenture did release to the Defendant all his right and it was holden by Wray Iustice That when the father leased he did it as Guardian to his son and it was not any Ejectment of the son but it was a Lease in the behalf of the son although the son might avoid it and then when the endorsment is ut supra the same is a good assignment and afterwards the Plaintiff was Nonsuit CCLXXIX Pasch 16 Eliz. In the King's-Bench IN an Action upon the Case the Plaintiff declared That B. by his Will did devise to each of his daughters he having two daughters 200 l. and that the survivor should have the whole and shewed farther that one of his two daughters died and that B. made his Wife his Executrix and that the said wife took to husband the Defendant and farther declared That the Defendant in consideration of all that and that the Defendant should take the surviving daughter to wife and in consideration that the Defendant had Assets to pay all Debts and

did well lie and he said That this Case is not like unto the Cases which have been put of the other side For there is a great difference betwixt Contracts and this Case for in Contracts upon sale the consideration and the promise and the sale ought to meet together for a Contract is derived from con and trahere which is a drawing together so as in Contracts every thing which is requisite ought to concur and meet together viz. the consideration of the one side and the sale or the promise on the other side But to maintain an Action upon an Assumpsit the same is not requisit for it is sufficient if there be a moving cause or consideration precedent for which cause or consideration the promise was made and such is the common practice at this day For in an Action upon the Case upon a promise The Declaration is laid That the Defendant for and in consider action of 20 l. to him paid posted scil that is to say at a day after super se assumpsit and that is good and yet there the consideration is said to be Executed And he said that the Case in Dyer 10 Eliz. ●72 would prove the Case For there the Case was That the Apprentize of one Hunt was arrested when his Master Hunt was in the Country and one Baker one of the neighbours of Hunt to keep the said Apprentize out of prison became his ball and paid the Debt afterwards Hunt the Master returning out of the Country thanked Baker for his neighbourly kindness to his Apprentize and promised him that he would repay him the sum which he had paid for his servant and Apprentize And afterwards upon that promise Baker brought an Action upon the Case against Hunt and it was adjudged in that Case that the Action would not lie because the consideration was precedent to the promise because it was executed and determined long before But in that Case it was holden by all the Iustices That if Hunt had requested Baker to have been surety or bail and afterwards Hunt had made the promise for the same consideration the same had been good for that the consideration did precede and was at the instance and request of the Defendant Rhodes Iustice agreed with Periam and he said That if one serve me for a year and hath nothing for his service and afterwards at the end of the year I promise him 20 l. for his good and faith full service ended he may have and maintain an Action upon the Case upon the same promise for it is made upon a good consideration but if a servant hath wages given him and his Master ex abundanti doth promise him 10 l. more after his service ended he shall not maintain an Action for that 10 l. upon the said promise for there is not any new cause or consideration preceding the promise which difference was agreed by all the Iustices and afterwards upon good and long advice and consideration had of the principal Case Iudgment was given for the Plaintiff and they much relied upon the Case of Hunt and Baker 10 Eliz. Dyer 272. See the Case there CCLXXXVII Higham 's Case Trin. 25 Eliz. In the Common-Pleas 1 Cro. 15. More 221. 3 Len. 130. IT was found by special Verdict That Thomas Higham was seised of 100 Acres of Lands called Jacks usually occupied with a House and that he let the said House and 40 of the said 100 Acres to J. S. for life and made his Will by which he devised the said House and all his Lands called Jacks then in the occupation of the said J. S. unto his Wife for life and that after the decease of his Wife the remainder thereof and of all his other Lands belonging to Jacks should be to R. his second son c. And by Mead The Wife shall not have by implication the residue of Jacks for she had an express Estate in the House and 40 Acres of Lands and having expressed his Will concerning the same it shall not be extended by implication and he said It had been adjudged between Glover and Tracy That if Lands be devised to one and the heirs Males of his body and if he die without heirs of his body that then the Land shall remain over that the Donee hath but an Estate in tail to the heirs Males of his body Anderson 1 Roll. 839. in the time of Sir Anthony Brown it was holden that if a man seised of two Acres of Lands deviseth one of them to his Wife for life and that J. S. shall have the other Acre after the death of his Wife that the Wife hath not any Estate in the latter Acre It was also moved What thing shall pass to his second son by this Devise and by the Lord Anderson The words usually occupied with it amount to the words the Lands let with it but these 60 Acres are not let with it therefore they shall not pass Windham contrary Although they do not pass by the words occupied with it yet they shall pass by the name of Jacks or belonging to Jacks and afterwards Anderson mutata opinine agred with him A TABLE OF THE Matters in this Book A ASsise 11 55 94 Action upon the Statute of 5 Eliz. for Perjury 18 Abatement of Writs 18 64 Action upon the Statute of 13 E. 1. of Winchester 19 109 212 Actions of Slander 34 74 120 127 146 Assignment of a duty to the Queen for a Debt if good 79 Accompt 91 245 Appeal of Burglary 111 Award where good and where not 130 145 Action not good upon a Lease untill the whole term be expired 137 In Appeal of Robbery one shall not have restitution without fresh suit 183 Attaint of Felony 169 Appeal of Murther 195 Action against an Executor who refused the Executorship 221 Assumpsit upon an agreement to become bound in a Bond for the sum promised 223 Action upon the Statute of 5 Eliz. concerning Perjury 249 C COvenant 5 17 60 153 155 164 237 268 Covenant to levy a Fine 114 Custome 10 140 Costs none upon Non-suit in an Action upon an escape 12 Conversion by the Executors of the goods of the Testator 42 Challenge of Jurors 53 141 Common Recovery 61 89 169 170 275 Costs upon the Statute of 28 H. 8. not allowed 71 Copiholds and Copiholders 97 142 264 Capias ad satisfaciendum sued out and not prosecuted within a year and a day if Scire facias must be sued out 101 Condition in a Lease void if repugnant to the Demise 176 Conveyance of Lands to Feoffees with condition c. 175 Capias ad satisfaciendum sued out after a Release an Audita quaerela lies 215 Case for disturbing him of his Common 229 Case for Toll 240 Case for misusing of the Plaintiff's Horse to which the Defendant pleaded that the Horse was waved within his Manor c. 242 Case upon a promise whereas one became surety and bail to J. S. and afterwards for default of

Hempston as Bailiff of Cary Executor of Sir William Cordel distrained for the arreages upon the possession of Sands and it was clearly holden by the whole Court That the possession of the said Copiholder was not chargeable to distress upon this matter for the Copiholder is not in by him who ought immediately to pay the Rent but is also in by the custome Note by some That the possession of a Copiholder is not liable to the Executor by the Statute of If it be so that the Lord of the Manor be within the degree limited by the said Statute CXLIII Hooper 's Case Trin. 29 Eliz. In the Common-Pleas HOoper of Salisbury was brought to the Bar to wage his Law in an Action of Debt and upon examination the matter appeared to be That the Defendant was indebted to the Plaintiff upon a simple Contract and upon communication betwixt them it was agreed that one J. S. should become bounden to the Plaintiff in an Obligation for the said debt to be paid at a day certain which J. S. became bound accordingly and the Defendant was also bound to the said J. S. in a counter-bond for to save him harmless against the Plaintiff And the Court was clear of opinion that upon this matter the Defendant could not safely wage his Law for by this Obligation made by a stranger to the Contract the Contract upon which the Action is brought is not determined And also here the Obligation was made after the Contract But if J. S. had been bound Ut supra upon the Contract it had been otherwise and upon that reason the Case of one Pudsey was adjudged Pudseys Case Where upon the Contract a stranger to the Contract being present made promise to enter into a Bond unto the party c. for the paiment of the money agreed upon the Contract and afterwards became bounden accordingly in that Case the Contract was determined because the Obligation was pursuant to the Contract and in the principal Case the Court would not admit the Defendant to wage his Law although he earnestly desired it CXLIV Knevit and Taylor 's Case Trin. 29 Eliz. In the Common-Pleas KNevit enformed against Taylor in the Common-Pleas upon the Statute of Usury and the parties were at issue and the matter depended four Terms untried after issue was joined and now the Defendant prayed for his own expedition that he might have Nisi Prius with Proviso as the course is in the Exchequer in such case to send Commissions into the Countrey where the Information is laid for the trial of the issue joined in the said Court and that at the suit of the Defendant And it was much doubted if the Court might grant such Nisi Prius because the Queen is Quodammodo a party to the suit And by Fleetwood Serjeant The common course is so But where the Queen her self is merely party no such Nisi Prius shall be granted and he said That the Informer might be Nonsuit although that the Queen be in such manner party Nelson Prothonotary said That he never saw such a Precedent Postea 116. See F. N. B. 241. CXLV Alford and Lea 's Case Trin. 29 Eliz. In the King's-Bench 1 Cro. 54. Post 181. ALford brought Debt upon a Bond against Lea and the Case was That the parties were bound the one to the other upon Condition to stand to the Award of B. and C. who award that the said Lea before such a Feast shall make a release to Alford but no place assigned where the release shall be delivered to the Plaintiff Lea Before the said Feast sealed a release according to the award and delivered the same to one Pine to the use of the Plaintiff who delivers it to one Mason one of the servants of Alford the Plaintiff who two or three dayes after offers it to Alford but he refused it It was holden by Wray That the award upon this matter was well performed notwithstanding the refusal of Alford See Tawe's Case 1 Eliz. Dyer 167. A. enseals Quoddam scriptum Obligat and delivers the same to one C. for to deliver it to the Obligee who delivered it accordingly as the Deed of A. who refuseth to receive it and after gets the Obligation and recovers upon it CXLVI Marsh and Rainsford 's Case Trin. 30 Eliz. In the King 's Bench. IN an Action upon the Case the Case was That a communication was had betwixt the parties That the Plaintiff should marry the daughter of the Defendant in consideration of which the Defendant promised the Plaintiff to give him 200 l. but they could not agree upon the days of payment of it after which they stole away the Defendant's daughter and secretly married her without the Defendant's knowledge yet afterwards the Defendant gave his consent to it 1 Leon. 102. and allowed of the said marriage and in consideration of the said marriage promised to pay the Plaintiff 100 l. Egelton Solicitor General for the Defendant That the Action upon this matter will not lie for here the consideration is precedent to the promise whereas the consideration in such cases ought to be future and subsequent and as the Case is here the Plaintiff is out of the course of consideration of marriage for he hath stolen away and married his wife without the knowledge or consent of her father See such Case 10 Eliz. Dyer 272. The servant of one A. is arrested in London and two friends of his Master bail him and afterwards A. promiseth to them for their friendship to save them harmless from damages and costs c. It was holden that the Action doth not lie for here is not any consideration for the bailment was of their own heads and it is executed before the promise But if the Master before the enlargement of his servant had requested the Plaintiff for to bail his servant and he had so done the Action would have lien Wrey Iustice Although the consideration be precedent yet if it were made at the instance of the other party the Action would have lien But here the natural affection of the father to his daughter is sufficient matter of consideration If one cometh to a Serjeant at Law to have his counsel and the Serjeant doth advise him and afterwards the Client in consideration of such counsel promiseth to pay him 20 l. an Action lieth for it And so Popham said it had been adjudged in the Exchequer And it is the common Practice in this Court in consideration Quod querens deliberasset to the Defendant c. He promiseth to pay him so much and as it was late adjudged betwixt Style and Smith If a Physician who is my friend hearing that my son is sick goeth to him in my absence and helps and recovers him and I being informed thereof promise him in consideration c. ut supra to give him 20 l. an Action will lie forthe money and afterwards in the principal Case Iudgment was given for the Plaintiff CXLVII

That William Heydon was seised of the lands and enfeoffed him And upon Ne enfeoffa pas the parties were at issue and it was found by special Verdict That the said William Heydon was seised and leased the Lands to the Defendant for years and afterwards he made a Deed of Feoffment to the same Lessee of the same Lands in Fee by the words of Dedi concessi with a Letter of Attorney within the said Deed to make Livery to the Lessee and the Deed of Feoffment was delivered to J. to deliver the same to the said Lessee who delivered the same accordingly The Lessee delivered the same to the Attorney named in the Deed who made Livery accordingly And it was moved by the Council of the Plaintiff That upon all this matter here is not any Feoffment And by Walmesly Serjeant This Deed so delivered took its effect presently as a confirmation and then the Livery and Seisin comes too late for as soon as the said Deed was delivered to the Lessee for years the Law gave to it its operation to this effect To vest the Fee and the Freehold in the Lessee by way of confirmation See for that Littl. 532 533. But the whole Court was of a contrary opinion for it is in the election of the Lessee to take the Conveyance as a Feoffment or as a confirmation And here it appeareth upon the Deed that the intent of both parties was That the Lessee should take by way of Feoffment and not of confirmation for otherwise to what use should be a Letter of Attorney inserted in the Deed And here the Lessee hath liberty to make his election how he will take either by Feoffment or by confirmation which election he hath determined by the acceptance of the Livery And by Anderson If tenant in tail be disseised and makes a Charter of Feoffment and delivers the same to the Disseisor who delivers the same to the Attorney named in the Charter who makes Livery accordingly here is a good Feoffment and a discontinuance and afterwards after many motions made and day given to shew cause Iudgment was given that the Plaintiff should be barred CCXLII. Rooke and Denny 's Case Trin. 28 Eliz. In the Common-Pleas IN an Action upon the Case by Rooke against Dennis for misusing of the Plaintiff's Horse by occasion of which misuse the said Horse became blind of one eye and gall-back'd The Plaintiff counted That the said Horse was stolen by three Felons after whom the Plaintiff made fresh suit and that the Felons were apprehended and attainted at his suit because Iustice Windham Hetley's Rep. 64. Rolls 809. More 572. Hetley's Rep. 64. and that the said Horse came unto the hands of the Defendant who misused it Ut supra The Defendant said that before that and the said Attainder of the said Felons the said Felons had waived the said Horse within his Manor in which Manor he had waife and estray c. And it was holden by the Court that the same was no Plea without traversing the fresh suit whereof the Plaintiff hath declared for by the fresh suit the property of the Plaintiff in the said Horse was preserved and so upon that misuser of the Horse by the Defendant an Action well lyeth and Iudgment was given for the Plaintiff accordingly CCXLIII Pretiman and Cooke 's Case Hill. 29 Eliz. In the King 's Bench. IN Ejectione firmae The Case was Ante 129. 1 Cro. 52. 3 Len. 180. That one Hawkins was seised of three Messuages in Bury and had issue Robert a son and Christian and Joan daughters and by his Will devised his three Messuages to his wife for life the remainder of one of them to Robert his son and his heirs and the remainder of another of them to Christian his daughter and her heirs and the remainder of the third Messuage to Joan his daughter and her heirs And farther willeth That if any of his said three issues should die without issue of his or her body that then the other surviving shall have Totam illam partem betwixt them equally to be divided The Devisor died the wife died one of the daughters died having issue the son died without issue the sister surviving entred into the whole part of Robert the son and died her husband held in the land as tenant by the Curtesie and the question was If the surviving daughter should have all the part of him that died without issue or she and the issue of the other daughter Coke The survivor shall have the whole And he said that the Devisees have an Estate in tail for the Fee doth not vest in them for it is incertain which of them shall survive but when one surviveth then he shall not have for life but in Fee for the words Totam illam partem goe as well to all the Estate as to all the things A. tenant for life the remainder to B. in tail the remainder to the right heirs of A. A. grants Totum statum suum both the Estates pass and the Grant includes the whole See 41 E. 3. Fitz. Br. 541. In Ravishment of Ward supposing the ravishment of two daughters Quarum maritagium ad ipsum pertinet and it was challenged because he doth not say Maritagia but the challenge was not allowed and he said That if a man deviseth his land wholly to A. that he hath a Fee-simple See the Case H. 28 Eliz. the Case between Higham and Harwood And Coke said That they had by this Devise a Fee-tail with a Fee-simple Expectant each of them severally in the Messuage to them limited Golding Each of the Devisees hath an Estate-tail in the Messuage to them devised and but an Estate for life in the Messuage which is to accrue upon the death without issue c. For no Estate is limited expresly nor what Estate the survivor shall have for here are not any words which do import a Fee-simple as according to Littleton imperpetuum or to do what he will with c. See for that 22 E. 3. ad Terminum qui praeteriit but here are onely bare words of which no farther construction can be made but for life And as to the words Totam illam partem the same doth not extend farther than if he said Partem suam And he said that nothing vests in him who survives for there ought to be two to take by the survivor or otherwise nothing shall accrue to the survivor for the words of the Devise are aequaliter inter eos dividend and that which accrues by survivor shall be divided betwixt two otherwise nothing shall accrue And if it cannot survive to two then it shall descend to the issue of the sister who is dead and to the surviving daughter and they shall be tenants in common and not joint-tenants Clench These words Totam illam partem go onely to the house and not to the Estate in it which Shute granted If both the daughters had survived Robert they should have Fee