the Donor was in possession and used them and fraud is alwayes apparelled with trust and trust is the cover of fraud Sixthly it was contained in the deed that it was honesty truely and bona fide Et clausulae inconsuetae semper juducunt suspitionem and it was resolved although it was a due debt to Twyne and a good consideration of the deed yet it was not within the proviso of the said Act of 13. Eliz. By which it is provided that the said Act doth not extend to any estate or interest in Lands c. goods and chattells made upon good consideration and Bona fide for although it be upon good and true consideration yet it is not Bona fide for no deed shall be deemed to be made Bona fide within the said proviso that is accompanied with any trust for the proviso saith upon good consideration and Bona fide so as good consideration doth not serve if it be not also Bona fide Therefore good Reader if any deed be made to thee in satisfaction of any debt by one that is indebted unto others also First let it be in publick manner before Neighbours Secondly valued-by good men to a true value Thirdly take them out of the possession of the Donor presently for continuance of possession in the Donor is a marke of trust There are two considerations Viz. Consideration of blood or nature and valuable consideration And if one that is indebted to five severall persons every one 20. l. in consideration of naturall affection doth give all his goods unto his Sonne or Cosen The intention of the Statute was that the consideration in this case should be valuable for equity requires that this deed that defeates others shall be made of as high a consideration as the things are that are so defeated thereby for it is to be presumed that the Father if he had not beene indebted unto others would not dispossesse himselfe of all his goods and subject himselfe to his Cradle And therefore it shall be intended that it was to defeate his Creditors And if a consideration of nature or blood should be a good consideration within this proviso the Statute would serve for little or nothing and no creditor should be sure of his Debt A feoffment made solely in consideration of nature or blood shall not take away the use raysed upon valuable consideration but it shall take away a use raised in consideration of nature for both considerations are in Equali jure and of the same nature Many men marvaile the reason that so many acts and Statutes are dayly made this Verse answereth Queritur ut crèscunt tot magna volumina legis In promptu causa crescit in orbe dolus And because fraud abounds in these dayes more then in former times it was resolved that all Statutes made against fraud shall be liberally expounded for to suppresse the fraud and according to this see severall resolutions in the Booke at large It was resolved that no purchasor may avoyd a precedent conveyance made by fraud but he that is a purchasor for money or other valuable consideration paid for consideration of blood is a good consideration but not such a consideration as is intended by the Statute 27. El. ca 4. for valuable consideration is onely good consideration by the same act Anderson chiefe Justice of the common banck said That a man who is of small capacity and not able to governe his Lands that discends unto him and being disposed to ryot and disorder by the mediation of his friends by open Act conveyes his Lands to them upon trust and confidence that he shall take the profits for his maintainance and that he shall have no power to wast or consume them And after he being seduced by deceitfull and covetous persons bargained for small summes his Lands of great value this bargaine although it were for money was holden to be out of this Statute for this act was made against all fraud and deceit and shall not ayd any purchasor that commeth not to the Lands for good considerations lawfully without fraud or deceit And in this case Twyne was convicted of fraud and he and all the others of a ryot Resolutions P. 44. of the Queene upon the Statutes of Fines fo 84. A. Tenant for life the remainder to B. in taile the remainder to B. and his heires B. levies a Fine hath issue and dyes before all the Proclamations passed the issue then beyond the Sea the Proclamations are made the issue retournes and upon the land claimes the remainder Resolved that the estate which passed was not determined by the death of tenant in taile so if tenant in taile of a rent Advowson Tythes Common c. grants by Deed and dyes for if the issue brings a Formedon for the rent he makes the grant voidable if he distraines or claimes it upon the land he by this determines his election And there is no diversity betwixt tenant in taile of a rent c. and tenant in taile of a reversion or a remainder upon an estate for life though in the first case the issue may have a Formedon presently after the death of tenant in taile Holden by Popham and divers other Justices that the Statute of 32. H. 8. hath inforced the case that the estate which passes by the Fine of tenant in taile shall not be determined by his death for by this 't is provided that Fines levied of any lands c. intailed immediatly after the Fine ingrossed and Proclamations made shall be a barre if the Fine cannot be a barre without continuance the Statute hath provided that the estate shall continue for it provides for all necessary incidents to the perfection and consummation of it Every Fine shall be intended with Proclamations for 't is most beneficiall for the conusee and all Fines being the generall assurance of land are levied according Resolved that though by the death of tenant in taile a right of the estate taile descends to the issue for that the tenant in taile dyed before all the Proclamations passed yet when they are passed without claime this right is barred by the Statute of 32. H. 8. Resolved by all the Judges and Barons but three that the issue in this case being heire and privy cannot by any claime save the right of the taile which is descended to him but that after the Proclamations he shall be barred for 't is provided that every Fine after the ingrossing of it and Proclamation had and made shall be a finall end and conclude as well privies as strangers And if no saving had been all strangers had been barred also and all the exceptions extend onely to Strangers but the issue is privy To the objection if by the equity of the Statutes the issue cannot claime c. to what purpose are the Proclamations with such solemnities Answered 32. H. 8. being an Act of explanaiton of 4. H. 7. as to the Fine by tenant in taile shall
binde the lessor otherwise of admittances upon surrenders or descents for he was tenant at sufferance who hath no lawfull interest and a Writ of entry ad terminum qui praeteriit lyes against him and so he is a deforceor Murrell and Smiths case 33. and 34. of the Queene fo 24. THe Queene grants a Copyhold in fee and after grants the inheritance of the Copyhold to a stranger the Copyholder devises to M. and after surrenders to the use of his will Resolved that custome hath so established the estate of a Copyholder that by severance of the inheritance of the Copyhold from the Mannor the Copyhold is not destroyed for being the Lord himselfe could not ouste the Copiholder no more can another claiming in by him Objected that every Copyhold ought to be parcell of the Mannor and to be demised or demisable time out of memory Resolved that because once this had both the incidents aforesaid and its perfection the severance made by the Lord shall not destroy it Resolved that notwithstanding the surrender and devise the Copyhold descended to the heire for after the severance of the inheritance from the Mannor the surrender was utterly voyd for the land was not parcell of the Mannor at the time and the devise onely cannot transferre such a customary estate but it ought to be by surrender into the hands of the Lord c. Resolved that after severance the Copyholder shall pay his rent to the Feoffee and shall pay and do other services which are due without admittance or holding of a Court as to plough the demeanes of the Lord Heriot c. but suite of Court and Fine upon alienation or admittance are gone for now the land cannot be aliened for though the Copyholder hath some benefit by the severance as appeares before so he hath great prejudice for now he cannot surrender or alien his estate nor the Feoffee cannot make an admittance for he is not dominus pro tempore Resolved that such forfeitures remaine as were before the severance as Feoffement lease wast denier of rent So if the land were of the nature of Borough English or Gavelkind and other customes which run with the land remaine And 't was said that such Copyholder hath no other meanes to alien but by Decree in Chancery against him and his heires but by this the interest of the land is not bound but the person onely Kite and Queintons case 31. of the Queene fo 25. COpyholder in fee surrenders out of Court by the custome to the hands of certaine Copyhold tenants to the use of another and his heires upon certaine condition at the next Court the surrender was presented but the condition omitted he to whose use c. dyes the Lord admits his heire he that made the surrender releases to the heire being in possession and after enters Resolved that the presentment of the surrender was voyde for that the condition was omitted for the surrender that the Copiholder made was not presented but if the surrender the condition had been presented and the Steward in entring of it omits the condition upon sufficient proofe of it the surrender shall not be avoyded but the roll amended for the roll doth not conclude the party for to plead or give in evidence the truth of the matter Resolved if a Copyholder be ousted by wrong a release by him to the disseisor doth not transferre his right because he hath not any customary estate upon which the release of the customary right may inure and this should be prejudiciall to the Lord for by this he shall lose his Fine and services but a release made to him which is admitted by the Lord and in possession is good and a release of a customary right may inure to him and the Lord not prejudiced and the release shall inure by way of extinguishment And Littleton speaks of an alienation by surrender onely which ought to be into the hands of the Lord but a release cannot be done to the Lord and Littleton says He which claimes a Copihold by surrender hath no other evidence but he which claimes an extinguishment of a right may have it by release by Deed and 't is no perill to purchasors for if the Copiholder in possession sels it he will shew the release and he which is out of possession cannot sell till he hath regained the possession caveat emptor By Wray if he which hath a pretensed title c. to a Copihold bargaines c. this is within 32. H. 8. for the Statute says any right or title and great part of the land within the Realme is in Copy and therefore the intention was to include them to avoyde maintenance and champerty Melwich and Luters case 30. of the Queene fo 26. REsolved that the lessee of a copiholder for a yeare shall maintaine an Ej ' Firmae for his terme being warranted by Law by force of the generall custome of the Realme 't is reason that he should have remedy by Ej ' Firmae And this is a speedy course against a Stranger Resolved that the Copiholds are not destroyed by severance of the inheritance of them from the Mannor but remaine in force So Murrels case before adjudged Resolved that when the Lord of a Mannor having many ancient Copiholds in a Towne grants the inheritance of all the Copiholds the grantee may hold a Court for the customary tenants and accept surrenders and make admittances and grants for every Mannor which consists of Freeholders and Copiholders comprehends in effect two severall Courts the one the Court Baron for Freeholders and in this the Suitors viz. the Freeholders are Judges and the other Court for the Copiholders and in this the Steward or the Lord himselfe is Judge and though this is not a Mannor in Law because it wants Freeholders yet the grantee may hold such Court as aforesaid for Copiholders onely as the grantor himselfe might So if all the Freeholds escheate or the Lord releases the tenure and services yet he may hold a customary Court for the Copiholds Note Reader though the Lord by his own act cannot make of one and the same Mannor at common Law divers severall Mannors consisting of Demeanes and Freeholders yet he may make a customary Mannor of Copiholders Resolved that the Lord himselfe may make a grant or admittance of a Copiholder out of the Mannor at what place he pleases but if the Steward at any Court holden out of the Mannor shall make grants or admittances they are voyd Neales case 37. of the Queene fo 26. ADjudged that where the Lord of a Mannor demises all his lands granted by Copy for two thousand yeares that the lessee may hold Courts for Copiholders as Melwiches case is before and 't was said so to be resolved in C. Hattons case Note Reader a good diversity where the number of the Copiholders may support the custome and a singular case of a Copiholder as in Murrels case before in which case the
devise of Land purchased after 2. The statute doth not regard this seck reversion but inheritances of annuall value Resp To the first that this reversion shall hinder the devise by the words of the Statute for he had a reversion of Lands holden but although the Statute saith that he may alien two parts by act executed or will if he alien to one of the three uses by act executed he may devise the reversion for the Statute is to be intended of an intire Alienation and where the Statute saith in reversion or remainder it is to be intended that the devisor be seised of such a remainder which drawes wardship To the second it was answered that things which of their nature are seck are out of the Statute but not things which of their nature are of annuall value but are not of value in respect of some Lease or gift Absque abliquo inde reddendo and therefore seck reversions are devisable by the said Statutes but if they be not yet they shall hinder the devises of other Lands To make one able to devise by those Statutes the time of Having Holding and disposing must concurre and therefore if a grant to the second Sonne here had beene in fee although with power of revocation the devise had been good because he had no Lands In Capite at the time of the devise if the Father conveyeth his Land to the use of his younger Sonne the eldest being within age after the death of his Father he shall be in ward although nothing discend A true Child and not in reputation is within the Statute and if the Sonne purchase Land Bona fide of his Father this is out of the Statute because it is not for his advancement If Tenant in socage devise and after purchase Land in Chivalry the devise is void for a third part but if Tenant in Chivalry and socage devise all and after aliens the Land holden this is good To make division that the King shall have a third part holden the Lands shall be taken according to their value at the time of the death of the Devisor The time of provision that a third part must discend needs not concurre with the time of alienation but it is sufficient that he had it at the time of his death The estate to any of the three purposes ought to continue to the time of death and the Tenure must till after death to make it within the Statute and the estate also of Lands holden ought to continue after death therefore if Tenant in taile in Capite devise socage Land and dye without issue this is good so privity must continue after death therefore if he who made the conveyance be attainted this is out of the Statute The uses to the second Sonne are in contingency and not executed by 27. H. 8. by the power to make Leases and devise reserved to the feoffor and therefore the fee is in the feoffor in the meane time so that having disposed of it and being seised of it he cannot devise the Land purchased after It was Objected that the Statute saith lawfully executed in his life but here no use was to be executed in the second Sonne untill after his death It was Answered that after his death the uses were derived out of the feoffement and so are as it were executed in his life It was holden by the Chiefe Justice that the remainder to the second Sonne is contingent in regard no alienation is found to be made by the Eldest and if there had been then it would be repugnant that after alienation the Land should remaine to the second Sonne and so Quacunq via data the remainder as this Case is cannot vest in him but this point was not resolved by the Court. 2. The revocation is good although the Indenture precedeth the feoffement and that the uses are in contingency and that the revocation is but in part and the Chiefe Justice held that the Eldest Sonne had but a terme determinable and the second an estate taile But in this the Kings Bench and Common pleas differ in Opinion and that if Lands be devised to one and the Heires of his body for 500. yeares the Executors shall have it and not the Heire and the devisee may alien it for it cannot be intailed and so in Peacocks Case 28. Eliz. Banco Regis was it resolved Doctor Leyfields Case 8. Jacobi fol. 88. in Trespasse IN Trespasse for Corne taken at O. C. the Defendant pleads that Q. Eliz. granted the Rectory of O. C. to C. P. without shewing the Letters Patents who demised to G. P. for 8. yeares if the said C. P. so long live and that he as servant of G. P. tooke the Corne and avers the life of C. the Plaintiffe demurreth because the plea amounteth to the generall issue and it was adjudged in the K. Bench that the barre was insufficient because the Defendant shewed not the Letters Patents and Error was brought in the Exchequer-Chamber because the plea amounts to the generall issue because the Defendant gave no colour wherein judgement ought not to be given against the Defendant but onely to answer over 2. Because he is not bound to shew the Letters Patents It was answered that colour shall not be given for colour shall not be given where the plea goeth to the barre of the right for it would be in vaine to give colour of right and to barre him if he had right as if a collaterall warranty fine Statute be pleaded or if he claimes by a waife otherwise where he pleads a discent for this doth not barre the right but the possession he who claimes by sale in a Market overt shall not give colour if he pleads generally but if he pleads that I. S. was possessed as of his owne goods and sold them in a Market overt or waived them there he shall give colour because he confesseth no interest in the Plaintiffe 2. If the Defendant claimes by the Plaintiffe he shall not give colour 3. If the plea be to the Writ or action of the Writ no colour shall be given 4. Colour shall not be given in case of Tithes for to whomsoever the Lands belong the Tithes belong to the Parson 1. Colour ought to be a doubt to the Laygents 2. It must have continuance 3. It must be such a colour that if it be effectuall will maintaine the Action 4. It ought to be given by the first conveyance 2. Resolved Lessee for yeares of Lessee for life of the K. must shew the Letters Patents for he who is privy in estate or interest or who justifieth in right of a Party or privy although he claime but part must shew the first deed and the reason that deeds are shewed to the Court is that the Judges and Jury that which respectively to them belongs shall judge of the sufficiency thereof therefore a deed shall not be suffered to be given in evidence by Witnesses or Copy except it be burned
c. the remainder to D. c the remainder to the right Heires of himselfe Sir Richard Chudley died without issue of the body of G. 1º of the Queene the feoffees C. living by deed infeoffed A. in fee without consideration he having notice of the first uses A. hath issue a Sonne named S. and after I. and after infeoffes Sir I. C. with warranty S. died without issue c. I. enters c. agreed by all the Justices and Barons but two that the feoffement made by the feoffees which had an Estate for life devests all the estates and the future contingent uses also and though A. had notice of the first use 't is not materiall because the ancient uses were devested and this new estate cannot be Subject to the ancient uses which rose out of the ancient estate agreed that 27 H. 8. doth not extend to destroy uses otherwise then by execution and transferring the possession to them agreed by the most that 27. H. 8. doth not transferre the possession to any use but onely to uses In esse which doth appeare by the Statute for there ought to be a person In esse seised and also a use In esse for if there be onely a possibility of a use there cannot be an execution of the possession to the use the Statute sayes That the estate shall be out of the feoffees and that the estate shall be in such person which hath the use So that no Estate of the feoffees shall be transferred in abeyance and upon this t was concluded that contingent uses or in possibility may be destroyed or discontinued before that they come In esse as they might at common Law so the remainders limitted in use here shall follow the rule and reason of Estates executed in possession by the common law and if the estate for life here had beene determined by death before the birth of the Sonne the remainder in future should be voide though the Sonne were borne after for a remainder ought to vest during the particular estate or Eo instanti when it ends And t was holden by all that if the contingent use here had come In esse without alteration of the estate of the Land it should be executed by the Statute of 27. H. 8. Also it was holden by most that 27. H. 8. against the expresse Letter of it shall not be taken by equity because by preservation of contingent uses mischeives intended to be prevented shall be preserved and greater introduced Popham chiefe Justice said that by 27. H. 8. some uses in esse are executed presently uses in futuro agreeable to Law are executed if they come In esse in due time but uses not agreeable to Law are extirpated for the intention of the Statute was to restore the ancient common Law Five other points adjudged besides the principall matter 1. When Tenant for life the remainder being in taile to A. infeoffes the reversioner t is a forfeiture for it devests the estate in remainder so if there be Tenant in taile the remainder in taile ctc. and the diversity is when the privity and estate is sole and immediate when not 2. If A. hath issue B. and C. infants and a lease is made to A. for life the remainder to B. in taile the remainder to C. in taile A is diseised and releases to the disseisor with warranty and dyes this discends upon B. within age B. dyes the warranty discends upon C. within age C. comes to full age and three yeares after enters his entry is lawfull for he might enter in the life of his Ancestor and if he doth not enter yet the warranty shall not binde him otherwise it is when he is put to action and Caveat that after his full age he doth not suffer a discent before entry 3. If a disseisor c. who hath a defeasible title in a Mannor grant a voluntary estate by Coppy being forfeited or escheated to him this grant shall not binde him that hath right after a recontinuance of the Mannor but admittances which a disseisor c. makes to Coppy holds are good for they are in a manner judiciall acts and shall binde the disseisee 4. That an estate made to one and his Heires during the life of B. is but an Estate for life upon which a remainder may depend 5. That an Estate made to A. and his Heires of the body of Jane S. is an Estate taile against the opinion of Ascugh 20. H. 6. 36. Anne Maiowes Case 35. Eliz. fo 146. FEeoffor and Feoffee upon condition by Deed joyne in a grant of a rent charge to C. the condition is broken the Feeoffor reenters the grantee distraines the Feoffor brings a Replevin Resolved that the rent remaines to the objection that 't is the grant of the Feoffee and the confirmation onely of the Feoffor and a confirmation cannot make a conditionall estate absolute nor alter the quality of it except it inlarge it as if a Feoffor confirme the estate of the Feoffee upon condition before the condition broken it doth not make it absolute Answered and agreed by the Court that there is a diversity when the estate of him to whom the confirmation is made is upon an expresse condition there the confirmation doth not toll the condition but if such feoffee infeoffe another without condition there a confirmation to the second feoffee extincts the condition Feoffee upon condition grants a rent in fee the feoffor confirmes it to him and his heires and after enters for condition broken yet the rent remaines and by Littleton every fee simple land may be charged one way or other Concurrentibus his c. and the case 11. H. 7. is all one with our case and here 't is the stronger because the grant and confirmation were by the same Deed so that the rent was never subject to any condition The Rector of Chedingtons case 40. Eliz. fo 153. 2. E. 6. the Rector of Ched demised the Rectory to El Elderker for fourescore yeares if she should live so long and if she dyed within the said terme or aliened that then her estate should cease and then by the same Indenture demises the premises to R. E. for so many yeares as shall remaine unexpired after the death or alienation of El. for the residue of the terme of fourescore yeares if he shall live so long without alienation c. And if he dye or alien within the said terme then his estate shall cease and then by the same Indenture he grants the premisses to W. for so many yeares of the said terme of fourescore yeares as remaine if he lives without alienation and if W. dyes or aliens within the said terme that his estate shall cease and then he grants c. during so many of the fourescore yeares which shall be unexpired to T. his executors and assignes which Indenture and estate was confirmed by the Patron and Ordinary the Rector dyes T. dyes W. dyes and 17. Eliz. Ellerker
Lands to the use of himselfe and of the heires males of his body And for default thereof to the use of the Queene her heires and successors After the Tenant in tayle in possession suffereth a common recoverie with voucher And whether it was a barre to the issue in tayle was the question And it was adjudged that the issue in tayle was barred for good considerations are too general to raise any use without speciall averment that valuable or other good consideration was given Resolved that the Land should continue in his name and bloud is not a consideration to raise a use to the Queene though the limitation to her were for the preservation of the tayle against discontinuances and barres for there wants quid pro quo Resolved if he had said in consideration that the Queene is the head of the weale publique and hath the care and charge as well to preserve peace as for to repell hostility yet 't is no good consideration for Kings ex officio ought to governe their Subjects in tranquillity which is implyed in the word King And admit the consideration had been sufficient to raise a use to the Queene yet that would not preserve the estate tayle by force of the Act 34. H. 8. for no estate tayle is preserved by the said Act except the same estate tayle be of the creation or provision of the King and not where the estate tayle is given or created of a common person without provision of the King as may appeare by the preamble of the Act. Resolved that before the Statute of 34. H. 8. a common recovery barred a tayle created by the King Lanes Case 29. Eliz. fo 16. THe Queene seised of a Mannor in right of her Crowne by her Steward granted coppie-hold Lands parcell thereof to one by coppie according to the custome in Fee And after the Queene under the Exchequer Seale made a Lease of the same Lands to another for 21. yeares who granted the same Tearme to the coppie-holder and after the Queene reciting the Lease for yeares granted the reversion thereof in Fee the Tearme of 21. yeares expired The Patentee of the reversion entreth upon the coppie-holder and the entrie was adjudged good Resolved that the Lease under the Exchequer Seale was good by the usage there for the course of every Court is as a law of which the common law takes notice without alledging of it in pleading and every Court at Westminster is bound to take notice of the Customes of other Courts otherwise of Courts in the Countrey and the order of Exchequer is to make Leases by Committimus such land Resolved that the estate of the Coppie-holder was determined by the acceptance of the Lease for yeares And so it was adjudged against the Coppie-holder for notwithstanding that the Coppie-holders estate is taken to be but an estate at will yet the custome hath so established the estate of the Coppieholder that he is not removeable at the will of the Lord so long as he performes his customes and services and by the same reason the Lord cannot determine his interest by any act that he can doe And so it hath been adjudged many times And the aceptance of this Lease was the proper act of the Coppie-holder Resolved that by the severance of the free-hold from the Mannor the Coppiehold estate is not extinguished Baldwyns Case 31. Eliz. fo 23. THings which lye in grant and take their essence and effect by delivery of a Deed without other ceremony as rent or common out of Lands c. by the premisses of the Deed to one and his heires habendum to the grantee for yeares or life this habendum is repugnant to the premisses for the Fee passeth by the premises by the delivery of the Deed and therefore the habendum is voyd And when a man giveth Lands by Deed in Fee by the premisses habendum to the Lessee for life there the habendum is voyd and when livery is made the effect of the Deed shall be taken the most strongly against the Feoffor and the best for the Feoffee When a ceremony is requisite to the perfection of an estate in the premisses limitted and to the estate limitted in the habendum no ceremony is requisite but onely the delivery of the Deed although the habendum be of meaner estate then the premisses the habendum shall stand good and qualifie the generalitie of the premisses as a Fee granted in the premisses habendum for yeares it is for yeares and no inheritance Note There is a diversity betwixt the estate implied in the premisses and expressed as if A. grant a rent to B. this is an estate for life but if the habendum be for yeares this is good and qualifies the implication of the premisses Case of Bankrupts 31. Eliz fo 25. REsolved that a grant or assignement of goods by a Bankrupt after the Commission awarded which is matter of Record of which every one ought to take notice and though to a Creditor in satisfaction of his debt is voyd and that a sale of such goods by the Commissioners is good Which sale by the Statute of 13. of the Queene ought to be equall to every one rate and rate like according to the quantity c. And the Court resolved that the proviso in the said Statute concerning gifts bona fide doth not make any gift good but excludes them out of the penalty c. Commissioners may sell by Deed without Inrollment and though they have not seene the goods agreed that the distribution ought to be severall not joynt for the one debt may be greater then the other and in this case the Jury found that the Commissioners sold the goods to three Creditors joyntly but further that the Bankrupt was indebted to them in 273. pounds which shall be intended a joynt debt and so good Resolved that the act giveth benefit to such as will come and not to them that refuse vigilantibus non dormientibus jura subveniunt and every Creditor may take notice of the Commission being matter of Record Bettisworths Case 33. Eliz. in communi Banco fo 31. A Lease for yeares was made of one Messuage one Close called Raynolds and of divers other Lands in Dale and afterwards the Lessee being in the house the Lessor entred into the same Close and maketh a Feoffment of the Messuage and of the Lands therewith demised and maketh livery in the same Close and afterwards the Lessee reentreth into the said Close And if this was a good Feoffment and livery of seison of the said Close the Lessee nor any for him being in the said Close was the question And it was adjudged that the livery and seison was voyd as well for the Close as for the Messuage and the other Land therewith demised For the Possession of the Messuage which is his Castle is a good possession of the Lands therewith demised and it matters not whether livery be made on the Land within view of the
prescribe In modo decimandi but not In non decimando And the reason is because he is not except in speciall Cases capable of Tythes at the common Law before the Statute of 32. H. 8. Cap. 7. And therefore without speciall matter shewing it shall not be intended that he hath any Lawfull discharge and in favour of the Holy Church although it may have a lawfull comencement the Law will not suffer this prescription In non decimando to put it to the Tryall of lay men which sooner will straine their conscience for their private benefit then render to the Church the duty which belongeth to it A spirituall person that was capable of Tythes at the common Law in pernancy may prescribe to be discharged of Tythes generally or to have a portion of Tythes in the Land of another Before the Counsell of Lateran every man might give his tythes to any spirituall person that he would and if the Lands of the Bishop were discharged in his hands absolutely by prescription the demising it to a lay man cannot make it chargeable and the Bishop might reserve the greater Rent And in discharge of Tythes the Judges of our Law doe know that the Ecclesiasticall Judges will not allow any such allegation and therefore a Traverse Absque hoc quod judices placitum c. recusarunt is insufficient for the refusall is not materiall for the party might have a prohibition before any plea pleaded by him but in some Cases the refusall is traversable as t was adjudgd in Morris and Eatons Case where t was pleaded that the plaintiffe did not read the Articles c. and that the Ecclesiasticall Judge refused this Plea But the truth is a man may prescribe that hee and all others whose estate he hath in the mannor of D. time out of remembrance have paid to the parson of C. for the time being one certaine pension yearly for the maintenance of Divine service there in contentation of all Tythes renewing or happening within the same Mannor and prescribe in respect of the pension payd c. to have all the Tythes within c. and this was adjudgd good in Banco Regis Mich. 39. Et. 40. El. Rotulo 199. And that a lay-person may sue for the Tythes c. For at the beginning it shall be intended that the Lord was seised of the whole Mannor before any tenancy was derived out of the same and then by composition or other lawfull meanes the Lord had all the Tythes within the Mannor for the said Pension paying to the parson and the Law intends it was for Divine service Et pro bono Ecclesiae the reason of whch intendment is the continuall usage time out of remembrance And upon such speciall matter a man might have Tythes as appurtenant to a Mannor for he prescribes in a Que estate in the Mannor and therefore cannot have them in grosse but t was adjudged Winscombs Case in a prohibition that a man cannot prescribe generally in him and all those c. to have Tythes appurtenant to a Mannor without speciall matter shewne because Tythes are due Jure divino The Arch-Bishop of Canterburies Case 38. Of the Queene fo 46. A Religious house in M. was given to E. 6. by the Statute of 1. E. 6. a Rectory which was impropriated to it was granted to the Arch-Bishop of Canturbury who leased to the Defendant and Land within M. parcell of the said Colledge came to the Lord Cobham and from him to the Plaintiffe who shewes that the Master of the Colledge was seised of the said Land and Rectorie Simul semel as well at the making of 31. H 8. as of 1. E. 6. Resolved that this Colledge came to the King by 1. E. 6. onely for when 31. H. 8. speakes of dissolution renouncing relinquishing forfeiture giving up which are inferior meanes by which c. or by any other meanes cannot be intended of an act of Parliament which is the highest manner of conveyance that can be and the makers would have placed this in the beginning if they had intended it Bishops are not included within 13 of the Queene which begins with Colledges Deanes and Chapters c. Also 1. E. 6. Enacts that all Colledges by this Parliament shall be in actuall possession of the King which last act being of as high nature as the first it cannot come to the King by 31. H. 8. and it was never pleaded that of Colledges which came by 1. E. 6. the King was seised Vigore of the Statute of 31. H. 8. Resolved that neither the Act nor the meaning of 31. H. 8. extends to other Colledges then to those which came to the King by 31. H. 8. for it should be absurd that a Branch of the act of 31. H. 8. should extend to a future Act of which the makers of 31. without a spirit of prophecy could not have foreknowledge and the Act of 31. concludes in as large manner as the late Abbots c. which late as it hath been agreed extends onely to those to be dissolved by 31. Resolved admitting that the Colledge had come to the King by 31. H. 8. that such a generall allegation of unity of possession of the Rectory and the Land with it was not sufficient for no unity shall be sufficient but lawfull and perpetuall unity of possession time out of minde as 't was adjudged in Knightly and Spencers case and that the generall allegation of the plaintiffe that the Master of the Colledge at the making of 1. E. 6. held the Land discharged is not good without shewing how either by prescription composition or other lawfull meanes as 't is adjudged in the Bishop of Winchesters case otherwise if the Land had come by 31. then by force of the said branch of discharge such generall allegation had been good Resolved that no Ecclesiasticall house except religious was within the Statute of 31. H. 8. Resolved that though 1. E. 6. saith that the King shall have the lands of Colledges in as ample and large manner as the said Priests c. enjoyed the same yet these generall words doe not discharge the land of any tythes for they doe not issue out of the land for a Prior had tythes against his own Feoffment of the Mannor and 't is no good cause of prohibition to alledge unity of possession in a Colledge which came to the King by 1. E. 6. as 't is upon 31. H. 8. in Abbyes c. For the Statute of 1. E. 6. hath no such clause of discharge of payment of tythes as 31. hath and therefore such perpetuall unity will not serve upon 1. E. 6. So 't was likewise resolved betwixt Greene and Buffkin Sir Hugh Cholmleys case 39. of the Queene fo 50. TEnant in Taile the remainder in taile the remainder bargaines and sells the Land and all his estate to J. S. to have for the life of Tenant in taile the remainder to the Queene c. upon condition that the
accordingly and if no request be made and the Feoffee or Grantee that ought to performe the condition dye the condition is broken Yet this generall rule admits an exception for here in case of an advowson he hath not time during his life though no request be made but upon contingency to wit if no avoydance fallin the meane time for if the Grantee stay till the avoydance fall Ipso facto the condition is broken for B. cannot have all the presentations during his life which was the effect of the grant and the Advowson is come into another plight then t was But where the day is certaine for the performance and the party dye before the condition is discharged because the performance is become impossible by the Act of God and therefore when a day certaine is appointed t is good that the Heire of the feoffee be named in the condition Another diversity was also agreed when t is to be performed to a stranger he ought to request the stranger in convenient time for to limit a time when it shall be done but if it be to the Feoffor himselfe he ought not to performe it before request Another diversity was taken by some when the feoffee dyes and when the feoffor dyes for in the one case the condition is broken in the other not Binghams Case 43. of the Queene fo 91. R. Bingham the Grandfather held the Mannor of B. M. of Sir Jo Horseley as of his Mannor of H. and levyed a fine to the use of him and his Wife for life and after of R. the Father his Sonne and Heire in taile and after to the right Heires of the Grand father R. the Father dyed the remainder in taile discended to R. his Sonne within age Sir I. H. suffered a recovery of the Mannor of H. to the use of himselfe and his Wife in taile and after to Sir R. H. his Sonne and Heire in taile after to the Heires of Sir I. Sir I. and his Wife dyed without issue Sir R. enters R. B. the Grandfather dyes by which the reversion in Fee discended to R. B. the Wife of Robert dyes R. within age enters and Leases c. Resolved that the use limitted to the right Heires of the Grandfather upon the fine is a reversion in the Grandfather expectant upon the taile not a Remainder so t was resolved in Fenwick and Mitfords Case and so t was resolved in the Earle of Bedfords Case Resolved that Sir R. H. shall not have the ward of the Land for the reversion in Fee is holden of him and not the Taile though both discend from the same Ancestor for the taile cannot be drowned and if Tenant in taile grant over the reversion he shall hold the Taile of his Grantee and though the Seigniory of the taile be suspended yet the Donee hath two distinct estates and the reversion is as a Mesne betwixt the Donee and the Lord and the Lord is not defeated for the Law gives no wardship in such cases and if it were admitted that by the unity of Tenure betwixt the Donee and reversion t was determined yet nothing shall be holden of the Lord but the reversion and in some cases the Donee in taile shall hold of no body as a gift in taile the remainder to the King Resolved if the Grandfather were Tenant for life the remainder to the Father in taile the remainder to the Father in fee the Father dyes his Heire within age and Sir I. H. grants the Seigniory to Sir R. H. and the Grandfather dyes that Sir R. H. shall not have the ward of the Heire because R. the Father did not hold of him nor any of his Ancestors the day of his death nor the Taile was not within the see and Seignory of Sir Ra. or any of his Ancestors at the death of R. the Father and the Writ saith Praecipe c. Eo quod terram illam de eo tenuit die quo obijt And though that during the life of Tenant for life the Heire of the remainder shall not be in ward because Tenant for life is Tenant to the Lord yet the death of Tenant for life is not the cause of ward but the removing of an impediment as in Paget and Caries Case Tenant for life commits wast and after Tenant for life in remainder dyes he in remainder in fee shall have wast T was said when two accidents are required to the consummation of a thing and the one happens in the time of one and the other in the time of another neither the one nor the other shall have benefit by it as the Tenant ceases for a yeare the Lord grants his seigniory and then the Tenant ceases for another yeare neither shall have a Cessavit which was agreed So Lacies Case Trin. 25. of the Queene who gave a mortall wound upon the sea of which the party dyed upon the Land yet he was discharged because the stroake was upon the Sea the death upon the Land so that neither the Admirall nor a Jury can inquire of it and t was said when diverse accidents are required to the consummation of a thing the Law more respects the Originall cause then any other A man presents to a Church in time of Warre notwithstanding the party be instituted and inducted Tempore pacis all is voyd So the Law more respects the death of him in the remainder the Originall cause of wardship then the death of Tenant for life which is but Causa sine qua non and rather a removing of an impediment then a cause so t was resolved that neyther the one nor the other shall have the ward Resolved that Sir Ra. should not have the third part of the Land by 32. 34. H. 8. for though R. the Grandfather had limitted the use to the Father which is within the Statute yet when R. the Father dyes in the life of the Grandfather the Statute extends no further for the Heire of the Father who is in by discent shall be in ward by the common Law not by the Statute and if the Statute should extend to the Son and Heire of him in remainder by the same reason it should extend to all the Heires of him in remainder In infinitum THE THIRD BOOK The Marques of Winchesters Case 25. of the Queene fo 1. LIonell Norris and Anne Mills were seised of the Mannor of M. and to the heires of the body of L. a common Recovery is had against L. without naming Anne H. Norris being in remainder in taile is executed for Treason and 't is enacted that he shall forfeit Mannors c. uses possessions offices rights conditions and all other hereditaments L. dyed without issue Anne dyed the Queene brought error against the Marques of Winchester heire of the survivor of the recoverors the error was that the originall Writt of entry wants the defendant pleaded that 14. of the Queene shee gave and restored to the Lord Norris Sonne and heire of H. Norris
the husband had and to the remainder A. tenant in taile the remainder to B. the remainder to C. the remainder to D. A. makes a Feoffement the feoffee suffers a recovery B. is vouched and he vouches the common vouchee A. is not bound but B. and all the remainders are for though the remainders are discontinued and cannot be remitted till the taile be recontinued yet in a common recovery which is the common assurance he which comes in as vouchee shall be in judgement of Law in privity of the estate which he ever had though the precedent estate upon which the estate of the vouchee depends be discontinued so here the husband shall be said in of the taile and 't is the stronger because the estate of the wife was put to a right so that the husband came in as sole tenant in taile and not joyntly with his wife because she is not vouchee and he cannot be in of another estate because once he had a taile but had they had a joynt estate to them and the heires of their two bodies he being onely vouched it might be doubted whether the taile should be barred because the wife had a joynt inheritance with him 8. of the Queene Dyer Knivetons case A Praecipe is brought against tenant for life and the remainder in taile they vouch over it shall not binde the taile for the remainder is not tenant to the Praecipe and the land is recovered against the tenant for life onely and recompence shall not goe to the remainder and the remainder was never seised by force of the taile and so 't was adjudged in Leach and Coles case 41. of the Queene Heydons case 26. of the Queene fo 7. THe Gardians and Cannons Regular of the late Colledge of O. seised of the Mannor of O. granted a Coppihold to Father and Sonne for their lives c. and after they leased it to H. for fourescore yeares rendring the ancient Rent and after surrendred their Colledge Resolved that the lease to H. was voyd the Coppi-hold for life continuing by the Statute of 31. H. 8. For Coppihold is an estate for life and the Statute saith of which any estate or interest for life c. at the making of such grant had continuance reade the Booke at large where you have admirable rules for true interpretation of all Statutes Resolved when a Parliament alters the service tenure interest of the land c. in prejudice of the Lord custome or tenant the generall words shall not extend to Coppi-holds as the Statute of W. 2. de donis conditionalibus doth not extend to them for if the Statute should alter the estate this should also alter the tenure for the donee ought to hold of the donor and to doe such services without speciall reservation as his donor did to the Lord and the intent of the act was not to extend to such base estates which were taken then but tenants at will and the Statute saith Voluntas donatoris observetur in carta c. So that which shall be intailed ought to be such an hereditament which may be given by Charter and great part of the land within the Realme being granted by Coppy it would be inconvenient that Coppi-holds should be intailed yet neither Fine nor Recovery should barre them so that the owner cannot without making a forfeiture by assent of the Lord and a new grant dispose of it for payment of debts advancement of his wife or younger issues wherefore the Statute doth not extend to them by Manwood Ch' Baron which the Court agreed But 't was objected that the Custome and the Statute cooperating might make a taile as if by a custome a remainder had been limitted over and injoyed and plaints in nature of a Formedon in discender brought and the land recovered by it so neither the custome without the Statute nor the Statute without the custome can make a taile And Littleton saith that if a custome hath been that lands c. have been granted c. or in taile c. paulo post that a Formedon in discender lyes of all tenements which Writ was not at common law Manwood answered if the Statute doth not extend to them without question the custome cannot for before the Statute all estates of inheritance were fee simple and no custome can commence after the Statute for this being made 13. E. 1. is made within time of memory and Littleton is to be intended of a fee simple conditionall for he knew well that no custome could commence after the Statute of W. 2. as appeares in his booke 2. ca. 10. and 34. H. 6. and a Formedon in discender in speciall cases lay at the common Law And by the Court another Act made at the same time which gives an Elegit extends not to Coppiholds for the reason aforesaid but other Statutes made at the same time extend to them as ca ' 3. which gives a Cui in vita receite and ca ' 4. which gives to the particular tenant a Quod ei deforceat Resolved that though 't was not found that the said rents were the usuall rents accustomed to be reserved within 20. yeares before yet because 't was found that the accustomed rent was reserved and a custome goes to all times before it shall be so intended without shewing the contrary and judgement was enterd for the Queene The common Law is founded upon the perfection of reason and not according to any private and sudden conceite or opinion Borastons Case 29. of the Queene fo 19. B. Devised land for eight yeares and after to his executors to performe his will till H. his youngest Sonne come to the age of 21. yeares and when H. comes to 21. yeares then that he shall have to him and his heires H. dyed at the age of 9. yeares Objected that till H. attaines to 21. yeares the land descends to the heire and for that he never attained to 21. yeares this remaines in the heire and the intent appeares by the words that he should not have till he come to 21. yeares and this ought to precede the commencement of the remainder and if land were leased till H. comes to 21. yeares H. then being of 9. yeares 't is no absolute lease for 12. yeares for if H dye before 21. the lease shall be determined which the Court agreed 'T was also said that when the particular estate which should support the remainder may determine before the remainder can commence there the remainder doth not vest presently but depends in contingency If one make a Lease to A. for life and after the death of B. the remainder to another in Fee this remainder depends upon contingency for if A. dye before B. the remainder is voyd A Lease is made to A. for life the remainder to B. for life and if B. dye before A. the remainder to C. for life this is a good remainder upon contingency If A. survive B. which case is all one with
House and Tenant at will of Land and Tenant by coppy of other Land within the Mannor of S. to Fermor leased all for life to I. S. and also seised of other Land there in Fee levyed a fine with Proclamations of all Messuages and Lands which comprehends all those leases and also his inheritance by covin to dissinherit his lessor and after the fine alwayes continues in possession and payes the severall rents to F. The lessee for life dyes the yeares expire S. claimes the inheritance Resolved that the Lord of the Mannor was not barred by the said fine 1. The makers of the Statute of 4. H. 7. never intended that a fine levyed by Tenant at will yeares or Coppy which pretend no Inheritance nor title to it but intend the disherison of the Lord c. should barre them of their inheritance and where the Statute sayth That Fines ought to be of greatest strength to avoyd strife and debate This Feoffement and fine by the Lessee shall be the cause of strife where none was before 2. The Statute doth not intend that those who of themselves without such fraud could not levy a fine to barre those which had the freehold and inheritance should be inabled to levy a fine by making of an estate to another by practise and fraud 3. If doubt be conceived upon an act of Parliament 't is to be construed by the reason of the common Law and that so abhorres fraud and covin that all acts as well judiciall as others and which of themselves are lawfull and just yet being mixt with fraud and deceit are tortious and illegall If a Woman intituled to have Dower which is favoured in Law by covin causes a stranger to disseise the terretenant to the intent to bring Dower against him and recovers accordingly 't is all voyd So if a Feme covert or Infant much favoured in Law of covin causes another to disseise the discontinuee and infeoffe them they are not remitted Sale in Market overt shall not binde if the Vendee had notice that the property was to another or if the Sale be by covin the Law hath ordained the common Bench as a Market overt for assurance of Land by fine for it sayth Finis finem litibus imponit yet covin shall avoyd them A Vacat was made in Banco of a recovery had by covin 33 34. of the Queene adjudged where Tenant for life levyed a fine with Proclamations and five yeares passed and he dyed that the Lessor shall have five yeares after his death for though the Statute saves the right which First shall grow and the right first accrued to the Lessor by the forfeiture yet because the Lessor by covin of the Lessee might be barred for he expected not to enter till after the death of the Lessee 't is no barre and namely when the Lessee hath Land of Inheritance in the same Towne as in this case so 't was agreed in the same case if the Feoffee of the Lessee for life hath Lands in the same Towne and levys a fine c. the Lessor shall have five yeares after the death of the Lessee for he knew not of what land the fine was levyed not being party to the Indenture or agreement c. So the Judges have construed the act against the Letter for Salvation of the Inheritance of him in reversion And 't was said if the Feoffee of a Lessee for yeares who made a feoffement by practise hath Land in the same Ville and levy a fine and the Lessee payes the rent to the Lessor it shall not binde and in the principall case the payment of the rent after the fine makes the fraud apparant for by this the Lessor was secure and not cause of any doubt of fraud But 't was resolved if the Bargainee or Feoffee of A. perceiving that C. hath right levies a fine or takes a fine of a Stranger to the intent to barre C. this fine levyed by consent shall binde for nothing was done in this that was not lawfull and the intent of the act was to avoyd strife So if A. pretending title disseise B. and to the intent to barre the disseissee levies a fine for the desseisor Venit tanquam in arena and 't is not possible but the disseisee had knowledge of it and if he doth not enter 't is his folly But in the case at barre every one will presume that the fine is levyed of his owne Land because that he might lawfully doe and though this conteines more acres then his owne Land this is usuall almost in all fines and the covin of the Lessee is the cause of non-claime of the Lessor and a man shall not take advantage of his owne covin and here the fraud is the more odious because of the great trust viz. Fealty To the objection that it should be mischievous to avoyd fines upon such nude averments 't was answered that it should be a greater mischiefe principally if fines levyed by such covin should binde And an averrment of fraud may be taken by the Statute of 27. of the Queene against a fine leavyed to secret uses by fraud for to deceive Purchasors So by the Statute of 13. of the Queene an averrment may be taken against a fine levyed upon an usurious contract Twynes Case 44. Eliz in Cam. Stel. fo 80. IN an Information per Cooke Atturney Generall against Twyne of Hampshire for contriving and publishing of a fraudulent Deed made of goods The case upon the Statute 13. Eliz. ca. 5. was thus Pierce was indebted unto Twyne in 400. l. and to one C. in 200. l. C. brought an action of Debt against Pierce and hanging the Writ Pierce being possessed of goods and Chattells to the value of 300. l. in secret made a deed of all his goods and Chattells to Twyne in satisfaction of his Debt yet Pierce continued in possession of the same some of them he sold and his Sheepe he marked with his owne marke after C. had judgement a Fier fac to the Sheriff by vertue thereof Bayliffs came to make execution of the goods and divers persons by the commandement of Twyne with force resisted them claiming them to be the goods of Twyne by vertue of the same deed and whether this deed was fraudulent or no was the Question and 't was resolved by Sir Thomas Egerton Keeper of the Great Seale of England and by the chiefe Justices Popham and Anderson and all the Court of Star-chamber that this deed was fraudulent and within the Statute of 13. El. And in this Case divers things were resolved First That this Deed had the markes of fraud it was generall and without exception of his apparell or any thing of necessitie for dolosus versatur in generalibus Secondly The Donor continueth in the possession Thirdly It was made in secret Et dona clandestina semper sunt suspiciosa Fourthly it was made hanging the Writ Fifthly there was trust betweene the parties for
a grant but the common Law requires that he be so instructed that he be not deceived there a Non obstante supplies it and makes the grant good As the King having made a lease for life or yeares grants the land Non obstante that it be in lease for life yeares c. or if he grants the land and further grants the reversion of it depending upon an estate for life yeares c. 't is good See the booke at large Resolved when the words are not sufficient ex vi termini to passe the thing granted but the grant is voyd there a Non obstante will not serve as in the principall case and the Pattents were not holpen by 18. of the Queene ca ' 2. for Pattents of concealement are expressely excepted out of the Act. Terringhams case 27. El. in banco regis fo 36. REsolved that prescription doth not make a thing appendant except the thing which is appendant agree in quality and nature to the thing unto which it should be appendant as a thing incorporate as an advowson to a thing corporate as a Mannor or as a thing corporate as Lands to a thing incorporate as an office these may be appendant but every thing incorporate may not be appendant to a thing corporate as common of turbary may not be appendant to Land but to a Messuage or house as it is holden 5. ass 9. for the thing which is appendant ought to accord with the nature and quality of the thing to which it is appendant and turves ought to be expended in a Messuage The commencement of common appendant by the ancient Law was in this manner viz. When a Lord of a Mannor infeoffed another of arrable Lands to hould of him in Soccage id est per servicium socae the Feoffee ad maintenand ' servicium socae had common in the wasts of the Lord for his necessary beasts that did plowe and ayre his Lands and this common is of common right and commenceth by operation of the Law and in favour of tillage and therefore it needeth not to prescribe in that for so it is houlden 4. H. 6. 22. H. 6. as one ought if it were against common right But it is onely appendant to the ancient arrable Lands and onely for oxen horses kyne and sheepe c. And because it is against the nature of common appendant to be appendant to meadowe or pasture and because that here the prescription was to have common time out of minde to a house meadow and pasture as well as to arrable by which it appeares to the Court that there hath been a house meadow and pasture time out of minde 't was resolved that this common was appurtenant not appendant But if of latter times men have builded upon some part of such arrable Lands and some part thereof is imployed to meadow and pasture and this for maintenance of tillage the originall cause of common the common remaines appendant and it shall be intended in respect of the continuall usage of the common for beasts leavant and couchant upon such lands that at the beginning all was arrable But in pleading he ought to prescribe that the same is appendant to Land for though terra dicitur a terrendo quia vomere territur yet terra includes all and is arrable though converted to meadow c. For it may be plowed A man may prescribe to have common appendant to his Mannor for all the demeanes shall be intended arrable at least in construction of Law redd ' singula singulis it shall be appendant to such demeanes which are ancient arrable c. And when a man claimes common appendant to his Mannor no incongruity appeares of his own shewing as here So common may be appendant to a Carve of land which may containe pasture meadow and wood but it shall be applyed to that which agrees with the nature of the common Resolved that common appendant may be apportioned because 't is of common right for if a commoner purchase part of the Lands in which he hath common yet the common shall be apportioned as well as if the Lord purchase parcell of the tenancy the rent shall be apportioned And if A. a commoner enfeoffe B. of parcell of his ancient Lands the common shall be apportioned and B. shall have common pro rata And 't was agreed that such common which is admeasurable remaines after severance of part of the land to which c. But here for that the common was appurtenant 't was adjudged that by the purchase all was extinct for 't was against common right for by the act of the parties it cannot be in esse for part and extinct for part 'T was said that pertinens is the Latine word as well for appurtenant as appendant and therefore subjecta materia and the circumstances ought to direct the Court to adjudge the common appurtenant or appendant Resolved that unity of possession of the intire land to which c and of the intire land in which c. extinguishes the common appendant By Wray chiefe Justice common for vicinage is not appendant but for that it ought to be by prescription 't is resembled to common appendant but common appurtenant or in grosse may commence at this day by grant or prescription and by him the one may inclose common for vicinage against the other as hath been adjudged in Smith and Redmans case Resolved that a man may chase out beasts that doe him trespasse with a small dog and shall not be compelled to distraine them damage feasant Cases of Appeales and Indictments Brookes case 28. of the Queene fo 39. REsolved that in an appeale of Burglary 't was an insufficient count that the defendant domum c. felâ—… burgaliter fregit for it ought to be burglaâ—… or burgulariter which is vox artis as murdravit â—…it which cannot be otherwise expressed Resolved if the count had been sufficient he being â—…icted once should not be againe impeached but here he was discharged upon the insufficient count By Wray Chiefe Justice if upon accident a man and all his family are out of the house and one in the interim breakes the house and commits felony 't is burglary for the indictment is domum mansionalem fregit and so 't was resolved 38. of the Queene where a man hath two mansion houses servants in both and in the night when the servants are out c. the house is broken 't is burglary Wetherell and Darlys case 35. of the Queene fo 40. IN an appeale of murder the Defendant was found guilty of homicide and had his Clergy after indicted and arraigned for murther pleaded this conviction Resolved that 't is a good barre at common Law and restrained by no Statute the reason is because the life of a man shall not be brought twice in question for the same offence Youngs case 38. of the Queene fo 40. AN Indictment that dedit unam plagam mortalem circiter pectus
judgement and this error assigned for that R. the plaintiffe was an Infant and was admitted by his Gardian and no Record made of it as 't is used in Banco but onely recited in the Count J. R. per A. B. gardianum suum ad hoc per curiam specialiter admissum queritur Which was disallowed by all the Justices upon search and view of many presidents which make a Law in this Court yet some presidents were as in Banco Note Reader according to the opinion of Wray 't was resolved in Londons case that if a man takes a lease by Indenture of his own land this is an Estoppell but during the terme and then both parts of the Indenture belong to the lessor Wardens and Commonalty of Sadlers case 30. of the Queene fo 54. BY Mandamus 't was found before B. Mâ—yor of London Escheator of the City and thâ— inquisition was returned in Chancery that T. C. held of the King c. and dyed seised without heire the Wardens c. shewed their right that R. M. was seised in fee and devised to them in fee and that they were seised till by C. disseised and shew the custome of London that a Citizen and Freeman may devise in Mortmaine and averred that R. M. was c. Tempore mortis and upon this great question was whither a Monstrans de droit lyes or it ought to be by Petition See the Case at large for this Learning Bereblock and Redes Case was cited to be adjudg'd if A. be bound in a recognizance Statute c. and after a recovery in Debt is had against him and he dyes his Executors ought first to pay the Debt upon the Recovery though it be puny to the Statute c. for though both be Records yet the judgement in the Court upon judiciall and ordinary proceeding is more notorious and conspicuous and of more high and eminent degree then a Statute c. taken in private by the consent of Parties Forse and Hemblings Case 37. Eliz. in com Banc fo 60. ALice Allen seised of certaine Messuages in Fee maketh her will in Writing and thereby demiseth that if James Amynd doth survive her that then she doth demise and bequeatheth the same messuage to him and his Heires And afterwards the said Alice did Intermarry with the said James and during her coverture she said often the said James should never have the said Messuage by her said Will Alice dyed without issue and James survived and the Question was whither the Will was countermanded by the said Marriage or not and if not whither by the words of revocation after the Marriage was a Countermand and it was adjudged upon great deliberation that the taking of a Husband and the coverture at the time of her death was a countermand of the Will For the making of a Will is but an inception thereof and it doth not take any effect untill the death of the Devisor For Omne testamentum morte consummatum est voluntas est ambulatoria usque extremum vitae exitum And it should be against the nature of a Will to be so absolute that he that made the same being of sane memory may not countermand the same And therefore the taking of her Husband being her owne proper act doth amount to a countermand in Law Also 't was said that after Marriage all the will of the Wife in judgement of Law is subject to the will of her Husband and a Feme Covert hath no Will and therefore the Countermand after Marriage was of no force Quod fuit concessum per tot Cur. Harlakendens Case 31. El. In banco regis fo 62. THe Earle of Oxford leased to A. B. and C. except the Trees for 21. yeares C. assigned to D. the Earle sells the Trees to A. B. and D. they leased to E. and after sell the Trees the Vendee cuts them the Lessee brings Trespasse When a man maketh a Lease for life or yeares the Lessee hath but onely a speciall interest or property in the Trees being Timber as things annexed to the Land but if the Lessee or another severs them the property and interest of the Lessee is determined and the Lessor may take them as things which were parcell of his Inheritance It was also resolved that this clause without impeachment of wast doth not give to the Tenant for life any greater interest in the Trees then he had by the demise of the Land but onely that it will serve that he shall not be impeached in any action of Wast or to recover damages or the place wasted * This is adjudged otherwise by all the Judges of England in Lewes Bowles Case in the 11. Report It was also resolved that if an House fall by tempest or other act of God the Lessee for life or yeares hath a speciall interest to take Timber to reedifie the same if he will But if the Lessee suffer the House to fall or take it downe the Lessor may take his Timber as parcell of his Inheritance and the interest of the Lessee is determined and he may have wast and treble damages Resolved that the Lessee by the grant had an absolute property in the Trees so that by the Lease of the Land they did not passe and he hath not equall ownership in both and it should be a prejudice to him if they should be joyned to the Land for then he could not cut during the terme without wast and after he shall not have them and the Lessor shall not have them against his owne act And here A. B. and D. were Tenants in common of the Land and joyntenants of the Trees and so their interest of severall qualities and therefore cannot be a union betwixt them but upon a feoffement if the Feoffor accept the Trees they are in property divided though In facto they remaine annexed to the Land for it is not felony to cut them c. and if the Feoffor grants them to the Feoffee they are reunited in property as well as De facto and the Heire shall have them not the Executors for the feoffee hath an absolute ownership in both and it is more benefit to him that they are reunited It was resolved That if Tymber Trees be blowne downe with the winde the Lessor shall have them for they are parcell of his inheritance and not the Tenants for life or yeares but if they be Dotards without any Timber in them the Tenant shall have them It was adjudged that wast may be committed in glasse in the Windowes for it is parcell of the house and discends as parcell of the inheritance to the Heire and the Executors shall not have them although the Lessee put the glasse in the Windowes at his owne cost and if he take them away he shall be punished in wast And 42. Eliz. in com Banco It was resolved that Wainscote whither it be annexed to the house by the Lessor or the Lessee is parcell of the House and there
rent without limitting any place or to whose hands the Lessee may pay it at the Exchequer or to the Bayliffes or Receivers of the Queene and when shee so appoints it by expresse words 't is no more then the Law appointed and though the words be Ad receptum scacc ' apud Westm it needs not that the receite be holden at Westminster the Law would have implied that And when a common person appoints no place the Law appoynts the payment upon the Land Palmers Case 39. Eliz. in Banco regis fo 74. THe Sheriff by vertue of a Fier Faci may sell a Lease of the Defendant and in his Writing the true commencement and terme of the Lease must be expressed or else if he selleth all the interest that the defendant hath in the Lands he needeth not to make any mention in the returne but generally Quod fieri fecit de bonis catallis c. But an inquisition found that the Debtor of the King was possessed Pro termino quorundam annorum c. 't was void for a terme cannot be extended without shewing the certainty of the commencement for after the Debt satisfied he is to have the remainder Resolved for that the case at Barre was an execution by Elegit which ought to be made by inquisition the sale here was voyd for the terme was mistaken in the inquisition and so mistaken was apprised by the inquisition and the Sheriffe cannot sell any terme but that onely which was apprised by the Jurors Hollands Case 39. of the Queene fo 75. REsolved that before 21. H. 8. ca ' 13. if he which had a benefice with cure accept another with cure the first is void but this was no avoydance by the common Law but by constitution of the Pope of which the Patron might take notice if he would and present without deprivation but because the avoydance accrued by the Ecclessiasticall Law no Lapse incurred without notice as upon a deprivation or resignation so that the Church was voyd for the benefit of the Patron not for his disadvantage But now if the first benefice be of the value of 8. l. per annum the Patron at his perill ought to present for to an avoydance by Parliament every one is party but if not of 8. l. 't is voyd by the ecclesiasticall Law of which he needs not take notice Resolved that 21. H. 8. is such a generall Act of which the Judges Ex officio though it be not pleaded ought to take notice See the Booke at large upon this Learning what act shall be said a generall act Of which the Judges are bound to take notice what not The Case of Corporations 40. and 41. of the Queene fo 77. REsolved that where diverse Citties c. are incorporated by the name of Mayor and communalty Mayor and Burgesses c. and in the Charters 't is prescribed that the Mayors Bayliffs c. should be chosen by communalty and Burgesses c. which is as much as to say as by all the Burgesses or all the communalty that yet the ancient and usuall Election by a certaine selected number of the principall of the communalty c. Commonly call'd the Common-Councell and not by all of the communalty or so many of them as will come to the Election was good in Law and warranted by their Charter for in every Charter they have power given to them to make Lawes Ordinances and constitutions for the better government and ordering of their Citties and Boroughes by force of which and to avoyd popular confusion they by their common assent have instituted c. that the election shall be by such a select number And though this ordinance cannot be now shewne yet it shall be presumed that such ordinance and constitution was made at first Digbyes Case 41. Eliz. fo 78. IT was adjudged that when a man hath a benefice with cure above 8. l. and afterwards taketh another with cure and is presented and instituted and before induction procure the Letters of dispensation that this dispensation commeth too late for by the institution Ecclia plena consulta existit against all persons but the King for every rectory consisteth upon spirituallty and temporallty And as to the spiritualty Viz. Cura animarum hee is compleat Parson by the institution for when the Bishop upon examination had admitteth him able then he doth institute him and saith Jnstituo te ad tale beneficium habere curam animarum of such a Parish accipe curam tuam c. Vide 33. H. 6.13 But touching the temporallties as the Glebe Lands c. hee hath no freehold in them untill induction for by the generall councell of Lateran Anno. Dom. 1215. it appeareth that by the acceptance of two benefices the first is voyd Aperto jure for upon this Councell are our Bookes in this case founded And 't was resolved that this was an acceptance of a benefice Cum cura within the Statute of 21. H. 8. Institution is an acceptance by our Law and 't was lately adjudged that if before induction the Clerke be inducted to another the first is void by 21. H. 8. which saith Accept and take another and for that now the avoidance is declared by 21. H. 8 he is bound to take notice but till after induction c. Nokes case 41. Eliz. fo 80. A Man maketh a Lease by these words Viz. Demise c. Grant c. and Covenants that the Lessee shall injoy without eviction by the Lessor or any claiming under him and was bound to performe all covenants c. the Lessee assignes his terme a stranger enters upon the Assignee and recovers in an Ej firmae after ouster the first Lessee brings Debt This is a covenant in Law and the assignee shall have a writ of covenant 9. Eliz. 257. Dyer And if a man be bound by obligation to performe all covenants grants c. This doth extend as well to covenants in Law as to Covenants in Fact Resolved though the recovery were by verdict yet he ought to shew that the Plaintiffe in this recovery had an elder Title for otherwise the Covenant in Law is not broken It was holden that an expresse Covenant doth qualify the generallity of the Covenant in Law and restraineth that by the mutuall consent of both parties but a warranty in Law and an expresse warranty the party may choose whither he will have for this word Dedi importeth a warranty Sir Andrew Corbets Case 41. and 42 of the Queen fo 81. A Devises Land to B. c. to have c. till 800. l. shall be paid by them of the profits to marry his Daughters and dyes the Heire conceales the Will takes all the profits and dyes the will is found by office the Devisee enters and hath leavyed 640. l. and imployes it accordingly whither the profits taken by the Heire shall be parcell of the 800. l. was the Question Resolved that the words shall be leavyed shall be
A Man leaseth S. for 10. yeares and C. for 20. yeares and both to another for 40. yeares after the end of the said severall demises ten yeares expire the last Lessee enters into S. and upon ouster brings trespasse and recovereth for the joynt words of the parties shall be taken Respective and the leases shall commence severally upon the severall determination of the said leases Joynt words shall be taken severally 1. In respect of the severall interest of the grantors as if two Tenants in common grant a rent charge 2. In respect of the severall interest of the grantees as a joynt warranty to two severall Tenants 3. In respect that the grant cannot commence at one time as a remainder limitted to the right heires of I. S. and I. N. 4. In respect of the incapacity of the grantees to take joyntly 5. Ratione subjectae materiae as rent granted to two copartners for equality of partition 6. Ne res destruatur ut evitetur absurdum as in Cessavit the tenure is alleadged by homage fealty and rent and quod in faciendo servitia praedicta cessavit it shall be construed to such services onely as of which a man may cease Brudenells Case 34. Eliz. banco regis fo 9. IF a lease be made to A. during the life of B. and C. without saying during the life of the survivor of them if one of them die yet the estate is not determined But A. shall have the land during the life of the survivor for if a man make a lease of Land to two persons during their lives they assigne over their estate now the assignee hath estate for life of them too and if one dye he shall have the land during the life of the Survivor Note two diversities th one a limitation in this Case aforesaid th' other a condition for if a man demyse Land for 100. yeares if A. and B. live so long in this case if th' one of them dye the Lease is determined for the Lease is conditionall and not Determinable by limmitation of estate and the life of a man is collaterall to the Lease which is but onely a Chattle If an administrator have judgement and dye his Executors cannot sue execution of that judgement but he that shall be subject to the payment of the Debts of the first intestate and that are not the Executors of the administrator vide 26. H. 8. fo 7. Hensteads Case 36. 37. Eliz. com banco fo 10. A Feme lessor or lessee at will taketh Husband the will is not determined for it may be prejudiciall to the Husband to have it determined So if one of the Lessees or Lessors at will dye but in case where one of the joynt Lessees at will dyeth nothing surviveth but the others shall pay all the rent Jues Case 39 40. Eliz. com banco fo 11. I. Leaseth a Mannor to S. for thirty yeares excepting Woode and underwood growing upon it and after Leased to him the Woode for 62. yeares without impeachment of wast and leaseth to him the Mannor for thirty yeares after expiration of the first thirty yeares thirty yeares expire S. maketh wast I bringeth an action of wast 1. Resolved by the exception of Wood and Underwood the soile is excepted and the woods growing c. are of abundance 2. The Wood remaines parcell of the Mannor because the Lessor had the intire freehold otherwise if he had leased for life with such an exception so if one lease a Mannor excepting the advowson for life the advowson is in grosse for life but if he grant the advowson for life it remaines appendant 3. By the acceptance of the third lease the said Lease of the Wood for 62. yeares was presently surrendered because the Lessee hath affirmed the Lessor to be able to Lease Saunders Case fo 12.41 Eliz. com banco In an Action of wast IF a man have Land in part whereof there is a Cole-myne appearing and he demise the Land to another for life or yeares the Lessee may dig for cole c. And the reason is for that the Myne is open at the time of the demyse c. and when he demyseth all his Lands it shall be intended that his meaning was that all the profit of the Land should passe c. but if the Myne be not open but within the Bowels of the Earth at the time of the demise 't is otherwise Also if a man have in his Lands hidden or unknowne Mynes and Lease the same Lands and all Mynes therein the Lessee may dig for them Rosses case 41. 42. Eliz. A Lease is made to A. and his Assignes for his life and the life of B. and C. this is a Lease for three lives and the Survivor of them Countesse de Salops Case fo 13.42 43. Eliz. banco regis SHe brought an action of the Case against Crompton and declared that shee demised to him a House at will Et quod ille tam negligenter improvide custodivit ignemsuum quod domus illa combusta fuit the defendant pleaded Non culpa and it was found not guilty And 't was adjudged that for the permissive wast no Action lyeth against the opinion of Brooke in Title wast 52. And the reason of this judgement was for that at the common Law no remedy lyeth for wast either voluntary or permissive against the Lessee for life or yeares because the Lessee hath interest in the Land by the act of the Lessor and it was his folly to make such a Lease and not to restraine him by Covenant condition c. And by the same reason Tenant at will shall not be punished for permissive wast But if Tenant at will commit voluntary wast as pulling downe of houses cutting of Trees a generall action of trespasse lyeth against him for that these doe amount to the determination of the will without the entry of the Lessor but it was agreed that in some Cases where there is confidence put in the party an action of the Case lyeth for negligence although the Defendant commeth to the possession by the act of the Plaintiffe as 12. E. 4.13 If one doe commit his Horse to one to keepe safely the Defendant Equum illum tam negligenter custodivit quod ob defectum bonae custodiae interijt an action upon the Case lyeth for this Breach of trust also 2. H. 7.11 If my Shepheard which I trust with my Sheepe and by his negligence they be drowned or otherwise perish an action upon the case lyeth against him but in this case at the Barre there was a demise at will made to the Defendant and no confidence repos'd in him wherefore it was ordered that the Plaintiffe should not recover by her Bill Case of Ecclesiasticall Persons 43. Eliz. fo 14. In the High Court of Parliament AT a Parliament holden in this Michaelmasterme it was resolved by the two chiefe Justices Popham and Anderson and diverse other Justices Assistants to the Lord of the
if it appeare to the Court that an action is not maintainable without the doing of it there the doing of it must be averred as if an Abbot sole grants an annuity to J. S. Pro Consilio c. in action brought against the successor he must averre that he had given Counsell c. to the use of the House otherwise if against the grantor Englefields case 34. Eliz. in Scaccario fol. 11. SIr F. E. covenanted to stand seised to the use of himselfe for life the remainder to his Nephew Proviso that it shall be voyde upon tender of a Ring by him after he was attainted of Treason and all his inheritances forfeited by Statute the Queene leaseth to the defendant for forty yeares by Statute it was inacted that every one who had a patent of land of a person attainted shall exhibit it into the Exchequer within two yeares to be Inrolled one authorized by Letters patents in the name of the Queene tenders the Ring in the life of Sir Fr. the Queene bringeth Intrusion 1. Resol When the Q. tenant pur auter vie leaseth for yeares this is good without recitall of her estate for it is lesse then her estate as if she grant Totum statum suum for there is no torte and she is not deceived 2. That this condition is given to the Q. but object 1. That it was inseparable from Sir Fr. for his intent was the substance of it and his intent cannot be transferred over 2. Naturall affection is made the Judge whether the Nephew deserve that the use shall be revoked and in so much that naturall affection cannot be transferred no more can this condition which was created by naturall affection and naturall affection determineth the estate 3. Although the benefit of this collaterall condition be given to the Q. the performance is not As to the first and second It was answered that the condition is onely the substance and all the residue is but a flourish and that is not an inseparable condition for any one may tender a Ring as well as he As to the third The performance is given to the Q. as incident to the Condition 4. It was objected that the estate of Sir Fr. was not subject to the condition because he was not possessed by limitation of use and by 27. H. 8. but he was seised of his auncient inheritance ergo the lease shall not be avoyded in the life of Sir Fr. It was answered that Sir Fr. was seised by limitation of use and that the lease shall be avoyded 5. It was objected that the Q. having made this lease being seised pur auter vie by her owne act she shall not defeate it after It was answered that the Q. shall avoyde it for her grant shall not inure to two intents 1. to make the lease c. 2. to suspend the condition and when the Q had two rights she shall not loose both without speciall words 6. It was objected that this tender ought to be found by office because matter in paijs and if it be false the party hath no remedy because the certificat is not traversable It was answered that Certificats which informe the Q. of her title are traversable but Certificats which are in nature of Trialls are not also by the Tender the uses are determined and by the attainder and the act of 33. H. 8. the land is vested in the Q. 7. It was objected that the conveyance was voyd because it was not inrolled within two yeares as the Statute requires and so Sir Fr. was seised in fee and the lease unavoydable It was answered that it was tendred in the Exchequer to be inrolled within two yeares which is all the Statute requireth the forfeiture was established by a speciall act 35. Eliz. The Case of Swannes 34. Eliz. fol. 15. A Game of Swannes in a common River are seised into the Queenes hands upon office found I. Y. pleads that Abbas c. gavisi fuerunt totoproficuo omnium cignorum in aestuaria praedict indificantium and makes her selfe title to them prayeth an ouster Le manie All White Swannes in a common River who have gained their naturall liberty may be seised for the King because they are Volatilia regalia but a Subject may have them in his owne River and if they escape into a common River he may take them againe upon fresh persuite Cignets shall be divided betweene the owners of the Swannes equally but upon the Thames the owner of the Land shall have the third by the custome whosoever hath a Swan-marke must have it by grant of the King or prescription and he may grant it over and he ought to have freehold of five Marks per annum by the Statute of 22. E. 4. c. 6. A man may prescribe to have Wyld Swannes but not as here but that the Abbot c. have used to take of them to their owne use and therefore adjudged against I. Y. A Swanne may be an estray and so cannot any other fowle Sir Thomas Cecils Case 40. Eliz. in Scaccario fol. 18. SIr T. C. entered into an obligation to the Queene to performe Covenants and shewed in the Exchequer-Chamber matter of equity to discharge him of the said Debt according to the Statute of 33. H. 8. c. 39. 1. Resol that Branch of the Statute which giveth liberty to the Subject to plead matter in equity in barre of Debt due unto the King extendeth to Debts due at the common Law as well as by this Statute because this Statute gives more speedy remedy for them and so within the purview thereof and so the other proviso of equall charging of Lands Subject to Deb. t s of the King is generall 2. The Court of Exchequer-Chamber in this case may decree upon English bill although that Processe be in the Exchequer at the common Law because to that purpose they are as one Court 3. An obligation to performe Covenants after Breach of them is within the Statute The Lord Andersons Case 41. Eliz. in Scaccar fo 21. TEnant in taile is bound by recognizance to I. S. who is attainted Tenant in taile dyes his issue aliens Bona fide the King shall not extend these Lands by the Statute 33. H. 8. c. 39. 1. Before that Statuâ—e the King could not extend Lands in the hands of the issue in taile for the Debt of his auncestor because he was bound by W. 2. De Donis 2. By that Statute Lands are extendable in the hands of the issue in taile for Debt due to the King by judgement recognizance obligation or other specialty and other cases are out of the Statute 3. The Alienee Bona fide is not within the Statute because favoured as a purchasor and he is a stranger to the Debt and comes in upon good consideration and benefit is given against the issue in taile which was not before 4. Debts due to a Subject and forfeited to the King are not within the Statute for they are not due originally
disseissed at the common ley and dyed and the Feme before entry dyed this is a discontinuance to the Sonne because he cannot enter as Heire to both but if the Feme enter the discontinuance is purged 2. The estate which the Feme had jointly with her Baron is within the purviewe of the Statute of 32. H. 8. c. 28. That no fine levyed by the Baron sole of Lands of the Feme shall hurt her and within the Statute of West 2. c. 3. 3. The entry of the Sonne is lawfull although he claimes not as heire to the Feme as the Statute speakes but as heire to both because he is within these words or to such as have right by the death of such Wife and this is to be intended of discontinuances made by the Baron and not of a rightfull barre of the issue for they cannot avoide it and the Statute is that they may enter which they cannot doe where they are barred and if the Feme enter within 5. yeares as shee may after a Fine levyed by the Baron this doth not take away the future barre of the issue and if shee enter not within 5. yeares shee also is barred Baron tenant in taile the remainder to the Feme in taile makes a feoffement the Feme may enter after his death by this Statute but if the Baron suffer a recovery she shall not enter in the Case at barre the son may have a Formedon at the common Law and where before this Statute a Cuj in vita or Sur cuj in vita did lye entry is given by this Statute and not otherwise The Lord Staffords Case 7. Jacobi fo 73. THe Queene revertioner upon an estate taile grants the revertion to T. T. in taile upon condition is to have Praedictam reversionem in fee the condition is performed the Lord Stafford Tenant in taile levyeth a fine his issue is barred 1. Resolved that a condition of accruer may be annexed to a thing which lyeth in grant and to an estate taile as if Lessee for life be the remainder for life with condition of accruer to the first this is good and yet no Merger of estate 4. things are requisit to an accruer 1. A particular estate as the Foundation Ergo a Lease at will shall not be 2. The estate ought to continue in the Grantee untill accruer therefore if the Grantee alien and repurchase the condition is Tolled but Quaere if the Tenant alien upon condition which is broken if the fee shall accrew but grantee may grant part of his estate as if Lessee for life make a Lease for yeares he may performe the condition after so may Tenant in speciall taile after he is become tenant in taile after possibility c. so may the surviving jointenant and the heire of Tenant in taile An instant is sufficient to support an accruer as if the condition be if the Lessee be ousted Eo instante that the ouster is the fee accrueth but if Lessee for yeares accept a confirmation for life the condition is gone but it is not necessary that the estate of the grantor or Lessor continue because by his owne act he shall not defeate his grant 3. It ought to vest at the time of the condition performed or never and for that rather that it shall not vest at this time by performance of the condition the fee without office or other ceremony shall be devested out of the King 4. It is necessary that the particular estate and the condition be in one deede or two deeds delivered at the same time for in Law they are but one grant and by the condition performed he had fee from the delivery Resolved Praedict reversionem signifies the reversion which the Queene had Viz. That which depends upon both the estates taile and so was the intent also shee granted Omnia praemissa which maketh it cleere Resolved also that these words Will and Declare doe amount to a grant and are so used in Patents of Liberties and things to take effect in Futuro Tenant in taile the remainder in taile the remainder to the King Tenant in taile suffers a recovery this doth not barre the remainder in taile because the issue in raile is not barred and therefore the revertions and remainders in taile are preserved by the Statute of 34. H. 8. c. 20. Lastly Resolved if the reversion in fee had remained in the Crowne that the fine levyed by Ed Lord Stafford the Father had not barred the Lord that now is Notlyes Case 31. Eliz. com banco Wiat Wields Case 7. Jacobi 78. W. W. seised of Land to which he had common appurtenant aliens 5. acres to one who in replevin counts that he and those whose estate he had in the said 5. acres have had common there c. and good 1. Resolved although by purchase of part of the Land in which c. the common appurtenant is destroyed in all yet it is not so by alienation of part of the Land to which but all remaines without damage to the Tenant of the Land 2. That the pleading of it was sufficient Vinyors Case 7. Jacobi fo 80. ONe was bound to stand to the award of W. R. and revokes the submission the Obligee brings Debt 1. Resolved the Countermand is good for an authority Countermandable by the Law cannot by any way be made irrevocable 2. Although that the Plaintiffe doth not show that the Defendant had given notice to the arbitrator yet it is good because this is implied for without notice the revocation is void 3. The Obligation by the Countermand is forfeited because he doth not stand to c. when he Countermands it 2. By his owne act he had made the condition impossible Ergo the Obligation is single if one bindes himselfe to give License to carry Wood c. for a certaine time if he give it and disturbe him the Obligation is forfeited Sir Richard Pexhalls Case 7. Jacobi fo 83. SIr R. P. seised of Lands part whereof is houlden in Capite deviseth 100. Sheepe 10. Bullocks and 10. l. quarterly to one with clause of distresse and that the Grantee shall hold his Courts for his life for rent arreare for 2. yeares the grantee avoweth 1. Resolved a devise of rent out of all is good and taketh effect out of two parts and as to the third is void 2 The grantee shall have an estate for life in rent and so he shall if it be granted by Deede also by the Intent of the Devisor it appeares that the Grantee shall hold Courts and have 10. l. per annum for his wages and quarterly here had relation to rent onely because the word Et disjoyneth it from Sheep and Bullocks and judgement given for the Avowant Buckmers Case 7. Jac. fo 86. T. B. gave a House in Gavellkinde to M. his Eldest Daughter in taile the remainder of one Moity to J. a second Daughter in taile the remainder of the other Moity to K. a third Daughter in
the prochein avoidance be within the tearme the grant is good for yeares cannot determine but the effluxion of time and the Law implyes this limitation if the Church doe come voyd during the tearme For expressio eorum quae tacite insunt nihil operatur Likewise if a lessee for yeares grant a rent charge and after surrender yet for the benefit of the grantee the tearme hath continuance although in rei veritate it is determined and the grantor himselfe shall not derogate from his owne grant to make it voyd at his pleasure The six Carpenters Case 8. Jacobi fol. 146. IT was resolved when entry authority or license is given to any by the Law and he abuse the same in this case hee shall be a trespassor ab initio But where entry authority or license is given by the party and he abuse the same there he shall be punished for this abuse but he shall not be sayd to be a trespassor ab initio and the diversity is this because the Law doth judge by the act subsequent quo animo or to what intent hee enters acta exteriora judicant interiora secreta But when the partie giveth authority c. to doe a thing he cannot for any subsequent cause punish the same 1. The Law doth give authority of entry into a common Inn Taverne c. 2. To a Lord to enter and distreine 3. To an owner of the soyle to enter and distreine dammage feasant 4. To him in reversion to view if waste be committed 5. To a commoner to enter into his Land to view his Cattell c. But if hee that enters into an Inn c. doe trespasse or take any thing away or if the Lord that distreines for rent or owner for dammage feasant labour or kill the distresse or he that enters to view wast bruse the house or stay there all night or if a commoner sell Tymber in these cases and such like the Law judgeth that hee entred for the same purpose and therefore the act that doth demonstrate this is to be a trespasse and he shall be a trespassor ab initio It was resolved that the non-seasons or not doing of a thing is not any trepasse where the Law giveth license or authority to enter viz. to deny to pay for Wine in a Taverne is not a trespasse but the Taverner may have an action of debt 12 E. 4.8 If a Taylor overvalue the making of a Garment and the necessaries thereunto he shall not have an action of debt for his owne values unlesse it be specially agreed upon before but he may detaine the Garment untill he be payd or satisfied and if the party sue for the same the Jury shall set downe the value and the Taylor shall have no more but be barred for the rest Likewise an Ostler may deteine an Horse c. Tender of sufficient amends for dammage fesant befor the distresse taken is good and the taking of a distresse afterwards is wrong tender after the taking of a distresse and before the impounding maketh the detaining wrong but not the taking but tender after the impounding commeth too late for then the cause is put to the tryall of the Law Edward Althams Case 8. Jacobi fol. 159. In dower and pleaded N. Seised in fee of Lands in W. and G. deviseth the Lands in G. to his younger Son for life it was agreed betweene the eldest Son and the Widow of T. N. that shee should release her dower in W. shee releaseth unto him omnes actiones demand c. necnon omnem dotem titulum dotis c. de aliquibus terris in W both the Sons dye shee brings dowre of the Lands in G. and judgement given for the demandant 1. Resol A release of all actions to him in the reversion barreth not dowre because shee had no cause of action against him but against the tenant of the free hold but a release of all her right to him in the reversion extinguisheth dowre for a release of right beareth actions but a release of actions barreth not a right if there be other meane to come to it otherwise not as if the disseisee release all actions to the heire of the disseisor the right is extinct otherwise it is if the release be to the disseisor and a discent after or if the release be to the lessee for life of the heire a release of all actions reall and personall is no barr in a Writ of errour but a release of a Writ of errour is a release of actions is no barr to have execution if he be not put to a Scire facias a release of a thing due before the time of payment thereof is good Quaerela is more then an action for by that the cause of action is released by release of suites executions are barred for none shall have execution without suite for it so it is of all duties but a release de quaerelis infectis in that case barreth not dowre by release of titles dowre is barred and by release of demands which is the most ample release of all 2. The collaterall agreement is not of any force or effect but generall words ought to be qualified by apt words contained in the same Deed as in this case mihi contingent per mortem dicti T. viri mei de aliquibus terris in W. c. and so extends not to any Lands in G. but restraineth the generall words to the Lands in W. onely Quando carta continet generalem clausulam posteaque descendit ad verba specialia quae clausuâ—ae generali sunt consentaneae interpretanda est carta secundum verba specialia As if a man grants a rent in manerio de D. precipiendum in 100. Acres parcel thereof with clause of distresse in the 100 Acres the rent shall issue out of the 100. Acres onely Arthur Blackamores Case 8. Jacobi fol. 156. THe Defendant is named Gent. in the originall Writ but by negligence of the Cursitor hee is outlawed by the name of Knight this is amendable at the common Law but in case of the King default of the Court was amendable at the Common Law as erroneous entrance of the continuance essoyne c. and any part of the Record the same Terme and therefore diverse Statutes of amendments were made one of the last whereof was 8. H. 6. cap. 12. which was more large and extends to processe and to seven other things to Records Pleas Parolls Warrants of Attorney to Writs originall and judiciall Pannels and Returnes that is where it was the misprision of the Clerke and onely the default of the Clerke by negligence is amendable but not by his nescience as if an action be brought against executors in the debet and detinet or if it be false Latine but if a word which is not Latine be written for a Latine word this is amendable as Imaginavit for Imaginatus est In a Writ of trespasse against diverse if it abate for default against one it
he lost his Common the Jury found that the Defendant did not put in the Beasts but they of themselves depastured there 1. The Jury have found the substance of the issue for the Plaintiffe the depasturing there and it is not materiall if he put them not there 2. This Action lyeth for the Commoner for he may distreine damage feasant and it may be that with strong hand he is hindered to distreine and so if he shall not have this Action he is remedilesse 2. A Commoner who had freehold in the common shall have an Assize Ergo a Copy-holder shall have this Action 3. The wrong ought to be so great that the Commoner loose his Common as a Master shall not have an Action for beating his Servant without losse of his Service and it appeareth not to the Court that there are more Commoners then he and if there be yet an Action lyeth because each had private damage and it is not like to a common Nusans which shall be punished onely in a Leete if there be not speciall damage but be the Trespasse never so little the Lord may have an Action of Trespasse The Lord Sanchars Case 10. Jacobi fol. 117. For procuring the Murther of John Turnor Mr. of Defence 1. REsolv That a Baron of Scotland shall be tried by Commons of England 2. The Indictment of the accessory in one County to a Fellony in another County by the Statute of 2. E. 6. c. 24. shall recite that the fellony was done in the other County for an Indictment is no direct affirmation of the fact 3. The Justices of the Kings Bench are within these words of the Statute Justices of Gaole-delivery or Oyer and Terminer for they are the supreame Judges of Gaole-delivery 4. The Lord Sanchar cannot be in the Terme-time Arraigned in Midd. before Justices of Oyer and Terminer because Justices of Oyer and Terminer shall not sit in the same County where the Kings Bench is but the principalls were Arraigned in L. in the Terme-time because this is another County 5. There needs not be 15. dayes for the returne of the Venire facias upon an Indictment in the same County where the Kings Bench is otherwise in another County 6. Because there is no direct proofe that the Lord S. commanded one of the principalls but that he associated himselfe to one who was commanded the best way is to arraigne him as accessory to him whom he commanded but if he be Indicted as accessory to two and found accessory to one of them this is good The word Appeale in the Statute of W. 1. c. 14. is to be intended generally Viz. By Indictment by Writ or Bill c. and attainders is to be intended upon any such accusation Ergo if upon any such accusation the principall be attainted erroneously the accessory may be arraigned because the attainder is good untill it be reversed but if the Accessory be Hanged and after the Attainder against the principall is reversed the Heire of the Accessory shall be restored to all which his Father lost either by entry or Action By 5. H. 4. cap. 10. none shall be imprisoned by Justices of Peace but in the Common Gaole whereby it appeares that Justices of Peace offend who commit Fellons to the Counters in L. and other Prisons which are not Common Gaoles Cases in the Court of Wards Anthony Lowes Case 7. Jacobi fol. 122. A. L. Tenant of 59. Acres parcell of the Mannor of A. by chivalry and Suite of Court to B. whereof A. was parcell and both A. and B. were parcell of the Duchie of L. out of the County Palatine holden formerly of the King in Chivalry in Capite and of another House there holden of A. by fealty and rent H. 8. grants the rent by release to him and confirmeth his estate in the said Lands by fealty onely and grants to him the Mannor of A. Tenendum by fealty and rent It was Objected that when the King grants the Seigniory to his Tenant the ancient Seigniory is extinct and a new one that is best for the King created Viz. Chivalry 2. When he extinguisheth services parcell of the Mannor of A. this shall be holden as the Mannor of A. is that is by Chivalry But resolved that the 59. acres and house shall be holden by fealty onely and as to the said Objection the release of the King doth not extinguish service which is inseparable to a Tenure that is fealty but all others are gone and true it is when the K. grants and expresseth no tenure it shall be by Chivalry but when the Land moveth from a Subject and the Tenure is changed the new Tenure shall be as neere the ancient as may be as Feoffee of Tenant in Frankalmoigne shall hold by fealty onely and here although they grant the services yet he limits the grantee to doe fealty A Knights fee is not to be taken according to the quantity but the value of the Land as 20. l. per annum and a Hide of Land is as much as a Plough can Plough in a yeare Reliefe is the fourth part of the annuall value that is of a Knight five pound of a Baron a 100. Markes of an Earle 100. l. of a Marques 200. Markes of a Duke 200. l. The Eldest Sonne of E. 3. called the black Prince was the first Duke in England and Robert Earle of Oxford in the Raigne of R. 2. was the first Marques and the Lord Beaumont was the first Viscount created by K. H. 6. Floyers Case 8. Jacobi fol. 125. BAron and Feme seized of Lands holden in Chivalry in right of the Feme in Fee levy a Fine to one who grants and renders to them and the heires of the Baron and levy another Fine to their use for life the remainder to their three Sons in taile one after another the remainder in fee to the heires of the Baron the K. shall have neither wardship of body nor Land 1. Resol That is out of the Statute of 32. H. 8. cap. 2. if he who had the fee dye c. in respect the estate by the first Fine did not continue and this although both the Conveyances are voluntary 2. The King shall not have wardship of the third part because it is not for advancement of the Wife for in the first Fine the Land moved from her and shee had no more by the second Fine then by the first 3. In regard the particuler estate is out of the Statute no wardship accrueth to the King by advancement of him in the remainder but if a revertioner upon an estate for life convey it to the use of his Wife this will give wardship of the body of the heire for he in revertion is tenant if a Lease for life be the remainder to two and to the heires of one he who hath the fee dyeth his heire shall not be in ward if the heire of one joyntenant who had the fee dye of full age living the tenant for
defeasible Title the other shall distraine for the moity of the Seigniory and the Act of the Coparcener shall not prejudice her There are foure manner of Avowries 1. Upon his very Tenant 2. Upon his very Tenant by the manner where the Tenant had but a particular estate 3. Upon his Tenant by the manner when the Lord had but a particular estate 4 Upon the matter in the Land as within his fee but the Lord hath liberty to Avow according to the Common Law Thoroughgoods Case 9. Jacobi fol. 136. TEnant in fee infeoffeth one by Deed indented and delivereth it upon the Land in the name of seisin this is good and hath a double operation at one instant Viz. to deliver the Writing as a Deed and to deliver seisin of the Land according to the Deede 1. Resolved this is his Deed although he doth not say so but delivers it in the name of seisin for delivery is good without any words if one deliver a Deed to one as an escrow to be his Deed upon performance of conditions this is his Deed presently otherwise if he deliver it to a stranger so words are good without actuall delivery as if he saith take it like to a livery within view If the Obligee deliver the Obligation to the Obligor to redeliver the Obligor may retaine it for the words to redeliver are void 2. Delivery of the deede upon the Land amounteth not to livery and seisin but it doth if delivered in the name of seisin so of any other thing or if he saith I deliver you seisin without delivering any thing this is good also Beaumonts Case 10. Jacobi fol. 138. I. B. and E. his Wife Tenants in speciall Taile the remainder to the Heires of the Baron I. B. levies a Fine to K. E. 6. who grants to the Earle of H. in fee I. B. dyeth E. enters the Earle of H. confirmes her estate to have to her and the Heires of the body of I. B. E. dyeth seised having issue F. B. who accepts a fine Sur conusans de droit tantum with Proclamations and dyes having issue Sir H. and I. Sir H. in Ward to the K. after full age and before livery Covenanteth to stand seised to the use of himselfe and his heires Males of his body and dyes having issue onely a Daughter in Ward whether shee or I. B. shall have the Land c. 1. Resolved that E. had an estate taile and the Statute of 4. H. 7. c. 24. which inableth the Baron to barre the issue saveth the right of the Feme if shee enter or c. and one may have an estate taile which cannot discend as if the Sonne in the life of the Father levyeth a fine the Father remaineth Tenant in taile still although it cannot discend and E. here hath an estate taile so long as shee liveth or the Heires in taile remaine 2. The Confirmation is void for he who did confirme had but a possibility which passeth not by the confirmation and if he had a reversion in fee yet it should be void 1. Because the taile which the Feme had was confirmed which cannot descend 2. The confirmation doth not add a descendible quallity where he who should have it is disabled to receive by discent 3. This would in effect repeale 4. H. 7. 32. H. 8. two of the principall Pillars of the Law 4. 5. If Tenant in Dower grants her estate there is a discendible quality in the Heire to bring wast against Tenant in Dower and although the Heire confirme her estate for life and after shee assigneth it to I. S. who committeth wast yet the action of wast is maintainable against her Pari ratione in the Case at Barre in regard the confirmation doth not inlarge the estate of E. it cannot add unto it a discendible quallity 6. There are but three manner of Confirmations Viz. Perficiens Crescens aut diminuens and the Confirmation in this Case is none of them and if E. had no power to levy a fine or suffer recovery the reason is because she cannot barre that which was barred before by her Husband but this point was not now in Question The End of the Ninth Booke THE TENTH BOOK The Case of Suttons Hospitall Baxter Plaintiffe Sutton and Law Defendants in Trespasse in the Kings Bench and adjourned into the Exchequer Chamber and judgemet given against the Plaintiffe 1. Obj. BY the Parliament 7. Jacobi the Hospitall was Founded at H. in Essex Ergo the incorporation made after by the Kings Letters Patents is void and the Charterhouse is not given by the said Statute because S. purchased it after 2. Sutton who had License to Found an Hospitall before the Foundation dyed 3. The K. cannot name the House and Lands of S. to be an Hospitall because in Alieno solo 4. Every Corporation ought to have a place certaine but here the License is to found an Hospitall at or in the Charterhouse Ergo before that S. had made it certaine there was no incorporation also the place of Corporation ought to be certaine by Meates and Bounds and a place knowne will not serve 5. The King intended to make an incorporation presently which cannot be before that S. name a Master 6. Governors cannot be untill there be poore in the Hospitall Ergo S. calleth it in his Will his intended Hospitall 7. The Foundation cannot be without the words Fundo erigo c. and before such Foundation a Stranger cannot give Lands unto it 8. The Master was named at will where he ought to be for life and have freehold in the Lands also the Hospitall must be Founded before a Master be named 9. The bargaine and sale made by S. is void 1. Because the Money paid by the Governours in their private capacity shall not inure to them in their politick capacity 2. The Habendum is to them upon trust which cannot be in a Corporation 3. Because as before no Hospitall was Founded 10. The King cannot make Governours of a thing not in Esse To the first it was answered that the Letters Patents recite the preamble of the Act whereby and in many parts of the Act it appeareth that the incorporation was to be In futuro when it shall be erected and the Statute doth not give any Lands unto it but power to give without License of alienation and mortmaine and it appeareth by the Letters Patents that the erection precedes the License 2. The License is to him his Heires Executors c. at any time hereafter and the words of incorporation are in the present and so the incorporation precedeth the execution of this License 3. Although the King gave the name yet S. devised it and assented to it and the K. did it at his Suite 4. The K. makes an Hospitall of all the premises so that it is certaine and as to that which was said that a place uncertaine cannot be an Hospitall It was answered that a Mannor may be which is
but of payment of them notwithstanding the mistaking of the conclusion doth not vitiate the Count when the cause to have a prohibition is good 2. The plea of the Defendant to have a prohibition is not good because he traverseth the conclusion Viz. The prescription of discharge where he ought to traverse the prescription of unity for the conclusion is not traversable and because it is matter in Law 3. The issue is not well joyned 1. The matter of discharge is by reason of discharge by the Statute and the issue is by discharge at the common Law 2. In every issue there must be an affirmative and a negative but here is no affirmative for the conclusion is no affirmative but an inference 4. The impropriation is sufficient although the License were generall and the incumbent living for it shall be construed in such a speciall sence that it may take effect and the License is alwayes generall for the incumbent may dye or resigne before the impropriation 5. Admitting the impropriation void it had not beene made good by 35. Eliz. c. 3. for this settles in the K. all possessions of Abbeys with qualification notwithstanding any defect in any surrender c. which intitleth the K. and this defect is not within this qualification but if the impropriation had been good by reputation and so used this had beene given by the Statutes of 27. 31. H. 8. 6. If the Jury found matter to barre the Plaintiffe this is not to be regarded because an attaint lyeth not nor the Witnesses punished for perjury that matter not being materiall to the issue 7. Resolved that perpetuall unity untill the dissolution is by the Statute Prima facie a discharge of payment of Tithes except that the Fermors have paid Tithes and such an unity ought to be Justa aequalis that is fee in one and other Perpetua libera but if the Abbey were founded within time of memory he cannot at all and here it appeareth that the impropriation was made in 20. H. 8. so that it appeareth to the Court that before that the 20. acres were charged with Tythes for of common right all Lands ought to pay Tithes therefore the Chiefe Justice concluded that the said 20. acres as this Case is were chargeable with Tythes but in regard the information is good and the plea Pro consultatione habenda altogether insufficient and the Verdict impertinent to the issue they would not grant a consultation Doctor Grants Case 11. Jacobi Communi Banco fol. 15. In a prohibition 1. REsolved it is a good prescription that every Inhabitant in a Parish have paid 2. s. in the pound of the value of their houses per annum in Lieu of Tithes because it may have a lawfull comencement for it may be that this was so time out of mind for the Lands whereupon the Houses were built as a Modus decimandi 2. That the Parson may sue for it in the Court Christian for that it is in the nature of Tithes and every ancient City and Borough had for the most part such a custome for their Houses for the maintainance of their Parson and obvensions include oblations rents or other revennues and after a consultation was granted Sir Henry Nevills Case 11. Jacobi fol. 17. IT was resolved that a customary Mannor may be holden of another Mannor and there may be Lord Mesne and Tenant of it and such a customary Lord may hold Courts and grant Coppies and such a Mannor shall passe by surrender and admittance and fines shall be paid upon alienation or discent and if it be forfeited the Lord shall have the services as anexed to the Mannor so if Tenant at will c. admit Copy-holders reserving rent this shall goe with the Mannor after the will determined and so note a difference betweene reservations at the common Law and by the custome of the Mannor And it was said that the Mannor of Aylesham in Norfolke is holden by Copy and others in diverse other places And judgement was affirmed in Error Doctor Ayrayes Case 11. Jacobi fol. 18. 14. E 3. the K. Lycensed R. de E. to Found in Oxford a Hall sub nomine aulae Scholarium Reginae de Oxonio in the exemplification 8. Jac. it was Sub nomine aulae Reginae de Oxonio they present to the Church by the name of praeposit Coll. Reginae in Vniversitat Oxonio sociâ—r Schollar ejusdem the incumbent deviseth the Rectory and they by the name of praeposit Socior Scholar Aulae vel Collegij reginae in Vniversitate Oxonii confirme the demise and notwithstanding these variances it was adjudged that as well the confirmation as the presentation was good and the sole doubtfull variance is that it was Aulae Reginae where it ought to be Aulae Scholarium Reginae but good for the true name of the Colledge is so for the word Scholarium is not necessary but once and if it be taken in construction to come after Aulae the provost will be the sole Corporation by the name of praeposit Aulae Scholar reginae Ergo it doth precede in good construction Also the Founder named it so and so it hath beene alwayes taken and if there be a small variance this is not to the purpose if it be so described that another cannot be meant as a gift Omnibusfilijs I.S. or filiae I.S. when there is but one or if Richerus Abbot of W. grant by the name of Richardus Nil facit error nominis cum de corpore constat and this was the ancient and constant Opinion in Case of Corporations See the Case of the Major and Burgesses of Lin in the tenth Booke Henry Harpurs Case 12. Jacobi fol. 23. IN ejectione firme upon a Lease to J. W. in unam capellam and Land in W. in the Parish of B. and Tithes without shewing the certainty of them the Visne was from B. the Case was Sir H. B. seized of G. of the value of 30 l. per annum and of N. of the annuall value of 18 l. in capite covenanted to stand seized to the use of him and his Wife in taile with remainders in taile the reversion to himselfe and after purchaseth Lands in Socage and deviseth them to be sould by his Executors the matter in Law resolved but no judgement given because diverse exceptions taken c. 1. Resol That if tenant of the King in capite conveyes his Land to one of the uses c. and after purchase Socage he may devise all the Socage 2. A seck revertion upon an estate taile shall hinder the devise of Socage Land for a third part 3. Although the reversion in fee continue in him yet he may devise two parts of the Socage and all if he had granted the reversion over 4. Although he had exercised his power in making a Joynture of more then two parts yet if the reversion in fee had not hindred he might have devised all the Socage purchased after howsoever the
nor body were lyable to Execution in Debt or damages recovered but Execution was to be done by Fieri facias or Levari facias of his Goods and Chattells and profits growing upon his Land but in debt brought against one as heire his Land was liable to Execution because the Plaintiffe had no other remedy for the goods belong to the Executors but the body goods and Lands of the K. Debtor or accomptant were ever liable to Execution but such Levari facias or Fieri facias ought to have beene sued within the yeare or otherwise he was chased to his Writ of Debt and now by Westm 2. c. 45. he may have a Scire facias and by the 18º Chapter of that Statute an Elegiâ— is given of the moity of the Land which was the first Act that subjected Land to Execution for Debt or Recognizance and by the Statute of 13. E. 1. de Mercatoribus 27. E. 3. c. 9. 23. H. 8. c. 6. In Statute Merchant and Statute Staple all the Lands of the Conusor at the day of acknowledgement shall be extended into whose hands soever they shall after come But in all Actions Vi armis where a Capias lyeth in Processe there after judgement a capias ad satisfaciendum lyeth the K. shall have a Capias pro fine and in such cases the Law the preserver of peace subjecteth the body to Imprisonment and by Marlebridge c. 23. West 2. c. 11. a Capias was given in an accompt the proces before being a distresse infinite and by 25. E. 3. c. 17. the same proces given in Debt as in account for before this Act the body was not liable to Execution for Debt as aforesaid 2. If Land of the heire be seised in Execution upon a recognizance of his auncestor he shall not have contribution against a purchasor of his Auncestor although he come in without consideration and although the Heire be not charged as Heire but partly as Terretenant but one purchasor shall have contribution against another purchasor and one Heire against another Heire because they are in Aequali jure and therefore the Writ here which issued against the Heires without naming the purchasor is good although he be charged as Terretenant The Heire shall have an Audita quaerela as well as the Conusor himselfe before Execution sued and a Supersedeas but a Stranger shall not If diverse acknowledge a recognizance the charge doth not survive and the Land of one shall not be put in Execution but all their Lands equally so if two are bound to warranty both or their Heires and the survivor and the Heire of the other shall be jointly vouched and the Land of both shall be rendered in value But if Baron and Feme and the Heires of the Feme are bound to warranty and the Feme dye the Land of the Baron may be solely taken in Execution because there are no Moities betweene Baron and Feme So that when Land shall be charged by any Lien the charge ought to be equall but in a Lien personall otherwise it is as if two are bound in an Obligation there the charge shall survive But a Purchasor Bona fide before any Action brought shall not be subject to any charge And three Errors were moved in the record 1. The Scire facias was Haerediterrarum c. which is improper for he is not Heire to the Land but to his auncestor 2. The Writ is Scire facias haeredi terrarum c. and the Retorne is Scire fecit W. H. militi haeredi praedicti M. and every Retorne must answer the point of the Writ 3. The judgement is generall against Sir W. H. where it ought to be speciall for otherwise his owne Land shall be liable where by the Law the Land onely which came to him by his Father ought to be charged and he is charged as Terrtenant as aforesaid but these poynts were not resolved by the Court. Nota the new Writ of Error after entry of the first was not brought Quod coram vobis residet because the Record is not removed out of the keeping of him who had the custody thereof before A Perfect Table of the Principall matters contained in every Case in this Booke WHAT words doe make a generall warranty and to whom the custody of evidences doth belong Page 1 Tenant for life commeth in as Vouchee in a common recovery it is a forfeiture Page 1 2 23. H. 8. Extends not to suppresse good uses the conveyance good and the bad use void any man may give Lands to Charitable uses Page 2 Touching the Exposition of the Kings grants and how the words Ex speciali gratia mero motu c. therein shall be construed Page 3 A common Recovery by Tenant in taile binds them in remainder and reversion and all Leases and charges granted by them ib. A feoffement by Tenant for life destroyeth a contingent remainder Page 4 Conusee of Tenant for life and him in remainder in taile renders a rent to Tenant for life it is good during his life ib. Tenant for life and he in remainder in taile infeoffe I. S. it is no discontinuance or forfeiture otherwise if without deede Page 5 Perpetuities are against Law but the Parliament or Law may make an estate as to one and good to another Page 5 6 Tenant in taile suffers a recovery and dyes before Execution it may be sued against the issuâ— and when a man may enter or claime the Law will not put things in him till entry or claime Page 7 A man may be in by discent and yet not have his â—…ge ib. A future power of revocation may be released Page 8 When any thing Executory is created by consent of all it may be voided Page 8 A feoffement by feoffees devesteth all future uses contingent Page 9 27. H. 8. Transferreth the possession to uses onely In esse ib. When a remainder ought to vest ib. 27. H. 8. Of uses shall not be taken by equity ib. A diversity when Tenant for life infeoffeth the reversioner mediate and when imediate there it is no forfeiture ib. A disseissor may make admittances but not voluntary grants Page 11 A difference when a confirmation is made to one that is in upon an expresse condition and when not there the estate is absolute ib. Every fee simple may be charged one way or other Page 12 A difference betweene Terminus annorum Tempus annorum Page 13 A Termor grants to B. so many yeares as shall be behind Tempore mortis suae it is void otherwise if for a certeine number of yeares ib. A lease cannot comence upon a double contingency Page 14 He who hath a power of revocation may doe it part at one time and part at another time till he hath revoked all Page 15 By the same conveyance the old uses may be revoked and new raised Page 16 Vpon what conveyances uses may be raised upon a generall consideration Page 16 17 An Action of
Execution thereupon by Elegit Page 152 153 How long the Conisee shall hold the Land Page 153 Concerning Deeds inrolled and levying of fines of Land the Common Law preferred before the Statute Law the excellency and antiquity of Records Page 154 155 Rent must be demanded at the place limitted although out of the Land before advantage of a condition taken Page 155 Vpon a Lease by the Q it must be paid at the Exchequer ib. By vertue of a Fieri facias the Sheriffe may sell a Lease but the beginning and ending must be expressed Page 156 If the first benefice be of 8. l. per annum upon acceptance of another with cure the Patron must take notice upon 21. H. 8. c. 13. Page 157 Touching Corporations and their Elections and Ordinances ib. The effect of institution and also of induction and of Letters of dispensation Page 158 Touching Covenants and warranties in Law and when broken Page 159 Touching Strangers occupying Lands without notice of the Devisee Page 160 Goods delivered to one to keep or carry and they are purloyned Page 160 161 Estovers appendant to a house by grant or prescription and when destroyed and of suite to the Lords Milne Page 161 162 Touching reteining of Chaplaines by a Countesse within 21. H. 8. c. 13. Page 162 Of Contracts executory and Actions of the case upon Assumpsit and wager of Law Page 163 An ample and exact explanation of 1. E. 6. c. 14. of Chanteries Page 164 165 Touching reteining Chaplaines and dispensations Page 166 167 That the Lessee shall not alien without License and where a condition may be apportioned Page 167 Concerning Exchanges and what the word Excambium imports and of the warranty thereunto annexed and the nature of it Page 168 Arts done by a man Non compos mentis some binde himselfe and some others and how many sorts of them Page 169 THE FIFTH BOOKE A Lease to begin from henceforth and delivered after when it beginneth Page 171 What power the Bishop hath to make Leases by the private act of 1. Eliz. ib. A Lease of a Faire rendring rent is void by 1. Eliz. Page 172 What rent shall be said to be the true and ancient rent ib. Joint words taken severally in six respects Page 173 A Lease to A. during the life of B. and C. how long it lasteth ib. Therein is a difference betweene a limittation and condition Page 174 An Administrator hath judgement and dyes who shall sue execution thereupon ib. By what act an estate at will is determined ib. By exception of Wood the soile is excepted ib. Acceptance of a new Lease is a surrender of the first Page 175 If the Lessee of Lands may dig for Coles ib. A Lease to A. for his life and the life of B. and C. when it endeth ib. No Action of wast for permissive wast Page 176 Where there is a confidence an Action of the Case for negligence ib. Leases made to the Q. by Colledges Deanes c. are restrained by 13. Eliz Page 177 When a Covenant extends to a thing In esse of the demise it shall bind the Assignee otherwise when to a thing not in essence Page 178 If the thing to be done be meerly collaterall the assignee shall not be charged Page 178 Concessi or demisi import a Covenant Page 179 If any Covenantor breake the Covenant all the Covenantees must joine otherwise when severall interests passe Page 180 A diversity betweene a power and an authority ib. The Covenantee himselfe cannot devise the assurance ib. The Counsell must be given to the Purchasor Page 181 An Indenture void without a manuall act of indenting ib. Where a Condition or Covenant once broken may be salved after Page 181 A condition of two parts and both possible and one becometh impossible Page 182 An estate to be made at the costs of the Covenantee the Covenantor must doe the first act i. give notice what assurance he will have ib. The Seale of one Covenantor is broken it is void against him onely Page 182 183 A. is bound to give such a release as by the Judge of c A. must procure him Page 183 Terror of Suite is a damification upon a Counterbond ib. An action for reparations lyeth against the assignee Page 184 What interest is assignable over Page 185 Where an Indenture precedent to declare uses is only directory Page 186 Where an averment may be against a matter in writing Page 187 Cases of Executors Where a release by an Infant Executor is a barre Page 188 An Executor may release before probate but not have an action ib. A judgement for Debt shall be paid before a Statute Page 188 189 Administration during minority ceaseth at 17. yeares of age Page 189 Such an administration may not sell goods but for necessity ib. Where an administration is void and where voidable ib. Where an Executor of his owne wrong may retaine goods Page 190 An action against an Executor or by him where it must be in the Debet and where in the Detinet tantum ib. What retorne the Sheriffe must make upon a Devastavit Page 191 Administrator brings Debt barred because Executor ib. What act maketh a man Executor of his owne wrong ib. Constructions of the Statutes of Jeofails c. Amendment of Records Fines c. In Trespasse the nature of the Fishes must be shewed Page 192 Where a Debt against Baron Feme must be in the Debet Page 193 An ejectment of Lands out of A. B. and C. tried by a visne out of A. onely it is insufficient ib. 23. Jurors are returned and 12. appeare and find for the Plaintiffe it is good ib. Variance betweene the Writ and Count is not aided by 18. Eliz. ib. Five parts of a fine and where the Conisor may assigne Error Page 194 A common recovery not like other assurances more favoured Page 195 A pannell is annexed to the Venire facias without returne not good ib. A difference where a man is misnamed in the Venire and where in the pannell Page 196 Issue joined upon a point not materiall aided by the Statute ib. An amendment good after the transcript removed Page 196 197 Error in the Originall matter of Substance Page 197 A writ of Covenant upon a fine dated after the returne is there amendable but not in other actions ib. A common recovery taken by intendment Page 197 198 Cases of Pardons When a Writ shall be said to be depending Page 198 VVhere an Amerciament is pardoned the Statutes of Jeofailes extend to VVALES Page 199 Debts to the Q are excepted but not Originally due to the Subject ib. VVhere the K. may pardon corporall punishment Page 200 The K. may pardon the Suite in the Court Christian but not costs ib. An Office of intitling but not of Instruction may be under the great Seale Page 201 VVhere the rents are severall and where joint and where the Patentee of part may take advantage of a condition Page 202 A
lyeth against Executors for the Testators Debt Page 352 VVhere a man may wage his Law Page 353 VVhat words shall be adjudged a good consideration Page 354 VVhat Offices grantable for yeares and by what Acts Offices may be forfeited and where the King may seise without Scire facias Page 355 356 Copy-hold estates are within 4. H. 7. of fines Page 356 Disseissor of Copy-hold levyes a fine what time the Lord hath ib. VVho may enter without command to avoid a fine Page 356 357 A plea by an administratrix of fully administred must be certeine Page 358 VVhere an Allegation generally of Covin is good ib. A commoner Copy-holder may have an Action of the Case for the losse of his Common so he may distreine damage feasant ib. A Baron of Scotland shall be tried by Commons of England Page 359 See the diverse Resolutions of difficulties arising upon the Indictment of the Lord Sanchar and others Page 359 360 Cases in the Court of Wards The Kings release doth not extinguish a service inseparable Page 361 VVhen the Land moveth from a Subject and the Tenure is changed the new Tenure shall be as neere the ancient as may be ib. VVhere the particular estate is out of 32. H. 8. no wardship accrueth to the King by advancement of him in remainder otherwise of a reversion for he is Tenant Page 362 VVhat words are sufficient to create an estate taile Page 363 The Kings possibility shall not devest a VVardship vested Page 364 The reviving of an ancient Tenure preferred before the reservation of a new ib. By death of the father before livery sued after tender The King looseth primer seisin but no meane rates Page 365 Of a fruitlesse reversion a wardship but not primer seisin ib. Where the saving in 32. H. 8. giveth ward and primer seisin Page 366 A Mensnalty cannot be suspended in part and in esse for part by the act of the party but it may by Act of Law or a third person ib. There are foure manner of Avowries Page 367 What Act is a good delivery of a Deed or of seisin of Land ib. One may have an estate taile which cannot discend Page 368 Three manner of Confirmations Page 369 THE TENTH BOOKE WHat things requisite to the Founding of an Hospitall see at large Page 371 An estate taile barred by recovery in value without recompence Page 374 A Feme Covert shall not loose her Land by any conclusion without examination upon a Writ in Court ib. Tenant for life suffers a recovery and he in remainder in taile is vouched the reversion in fee is barred Page 375 The devise of a terme to one for life the remainder to another for life is good as an Executory devise Page 376 The first Devisee cannot barre him who hath the Executory devise ib. Assent to the first devise is an assent for all ib. Such an executory devise not grantable over ib. but it may be extinguished by release to the first Devisee ib. Qui destruit medium destruit finem Page 377 If a Recusant grant the next avoidance before conviction it is void by 3. Jacobi for he is disabled from the beginning of the Session c. Page 378 Covin shall not be presumed if it be not averred ib. A private Act shall be taken as it is Pleaded ib. What grants of Offices by a Bishop are void by 1. Eliz. except for twenty one yeares or three lives and what Circumstances requisite Page 380 Praerogativa Regis c. 15. excepts Knights fees and advowsons and indowments all other appendants now passe by grants and so doe they in Case of Restitution Page 381 A Corporation aggregate may make a surrender in Law not in Deed Page 382 The Jurisdiction of the Marshalsea and the reasons thereof Page 382 383 About 4. E. 3. the Court of Kings Bench became resident Page 383 A good diversity where the Court hath Jurisdiction but proceed In verso ordine and where they have not Jurisdiction there all they doe is Coram non judice and void Page 383 384 Diverse abstruse points resolved some at the common Law and severall upon the Statutes of 32. 34 H. 8. of wills Page 385 386 VVhat Colour is and where it must be given Page 388 VVhere a privy interest although he claime but part must shew the first Deed except he claim meerly by Law Page 388 389 VVhere a man may have a freehold discendible Page 390 A warranty barres no estate which is not displaced at the time of c. ib. A warranty cannot inlarge an estate where it may be given in evidence Page 391 VVhat Obligations made to Sheriffes are within the Statute of 23. H. 6. Page 391 Forma verbalis Forma legalis or Essentialis Page 392 393 The time of granting a Tales and when it is well granted Page 396 397 The proper place of a reservation is after limitation of the estate Page 397 Increase of services is betweene very Lord and very Tenant Page 398 VVhen Lands shall be said to be concealed from the K. 398 399 A man shall have costs in all cases where hee recover dammages Page 400 Where a man shall recover damages and costs also ib. Where to the writ of Inquiry and to the verdict and judgement ib. Where insufficient verdict may be supplyed by a writ of Inquiry and where it cannot a good difference Page 401 A difference between auncient Corporations and new in matter of Misnosmer Apices Juris non sunt Jura Page 401 402 Which is the legall time of payment of Rent Page 402 If payment be in the morning and the lessor dye at noone this is satisfactory against the heire but not against the King ib. Where the lessee shall hold rent free for a quarter Page 402 Where Damages may be assessed intirely and where not Page 403 404 What words passe under the name of Latine Page 404 Where by death of one of the Plaintiffes after summons and severance the writ abateth divers good diversities Page 404 405 A Qu. impedit praesentare ad medietatem Ecclesiae where good ib. Cases upon the Commissions of Sewers Where the Commissioners may subvert a Cawsey and where not Page 406 If a wall be subverted by a sodaine inundation the Commissioners may taxe all equally who have damage thereby ib. Otherwise if it come by neglect of him who ought to doe it ib. If the Commissioners have power to make a new River and a generall taxe so much upon every Towne for doing thereof Page 407 What is a good revocation of old uses and limitation of new Page 409 THE ELEVENTH BOOK A Difference between a disability absolute and temporary or personall Page 411 The grant of the office of Auditor to two is good Page 412 What offices grantable in reversion ib. Where the Jurors may assesse damages severally Page 413 Where one shall have an attaint that is a stranger to the issue ib. Where a writ of Enquiry shall issue Page 414 The plaintiffe shall have judgement de melioribus damnis ib. The conclusion of a plea is not traversable Page 415 In every issue there must be an affirmative and a negative ib. The Impropriation sufficient in the life of the Incumbent ib. VVhere the witnesses are not punishable for perjury Page 416 Perpetuall unity a discharge and what requisite thereunto ib. VVhat prescription for tithes of houses is good ib. A customary Mannor may be holden of another Mannor Page 417 VVhat variance in the name of a Corporation doth vitiate Page 418 VVhat devise of socage by tenant is Capite is good Page 419 An Ejectione firmae of tithes without shewing their kinds not good ib. If a deed be rased the obligor may plead Non est factum Page 420 A diversity where it is rased by the obligee himselfe and where by another ib. VVhere Clergy allowable at the Common law and where at this day copious and excellent matter Page 421 VVhere an Errour lyeth not before the finall Judgement Page 423 A fine by the Stewart of a Mannor where it is well assessed Page 425 VVhere the Lord may destreine for it without prescription ib. VVhere an action shall abate in part and where for the whole Page 426 Notwithstanding the exception trees remaine parcell of the Inheritance ib. A thing in possession cannot be parcell of a reversion upon an estate for life Page 427 None may be prohibited by the common law to use any trade Page 428 An ordinance by a Corporation against law is void ib. How an Ejectione firmae must be brought Page 429 Although the dammages are not well assessed yet the Plaintiffe may have judgement ib. Much variety of Learning touching Recusancy and upon the severall Statutes concerning them Page 429 430 Master and Fellowes of a Colledge restrained to grant by 13. Eliz. what statutes doe binde the King Page 432 Some grants to the King void and some voidable Page 433 VVhere acceptance of Rent doth barre and where not Page 434 Tenant in taile after possibility of c. hath a greater estate in quality then tenant for life not in quantity Page 434 435 VVhat priviledges belong to his estate Page 435 A lease without impeachment of wast what passeth thereby ib. A monopoly is against law and hath three incidents against the weale publique Page 436 What fees belong to the office of Master of the Ordnance Page 427 In the Kings Case the law maketh a privity to be accomptable ib. For what causes a Citizen may be disfranchised Page 438 The 3. Book fol. 9. Dowties Case A Difference where the first certainty is false in a grant and where the first is true and the second false Page 439 Where lands are in the Q. by 33. H. 8. c. 20. without seisure ib. Fol. 11. Sir William Harberts Case What remedy for debts at the common law and when the body and lands became liable thereunto Page 440 44â— In all actions vi et armis the body was subject unto Imprisonment and so for debt at the Kings suite Page 441 The heirs of the conâ—isâ—ser shall not have contribution against a purchasor ib. Changes reall doe not survive but personall doe Page 442 Three Errours there moved but not resolved ib. FINIS
the estate of the land which all the Court agreed 5. If the Fine had not been the auncient uses were determined without entry or claime because he himselfe was tenant for life of the land and the act of revocation is as strong as claime and this point was agreed in the Earle of Salops case 6. By the same conveyance that the auncient uses are revoked others may be raised without claime or other act and the Law adjudges a priority of operation Whites case adjudged according Maildmayes Case 24. Eliz. fo 175. A Use cannot be raised by any covenant proviso or bargaine c. upon a generall consideration and therefore if a man by Deed indented and inrolled c. for divers good causes considerations bargaine and sell his Land to another and his heires nihil operatur inde for no use shall be raised upon such generall considerations for it doth not appeare to the Court that the bargain or had quid pro quo But the bargainee may averre that money or other valuable consideration was paid or given if in truth it was so and the bargaine and sale is good It was resolved that when uses are raised by covenant in the consideration of advancement of any of his bloud and after in the same Indenture a Proviso that the Covenantor may make Leases for yeares c. that the Covenantor in this case may not make Leases for yeares to his sonne daughter or any of his bloud much lesse to any other person because that the power to make Leases for yeares was voyd when the Indenture was sealed and delivered For the covenant upon this generall consideration will not raise any use and no particular averment in this case may be taken but if the uses be limitted upon a recoverie fine or feoffment there needeth not any consideration to raise any of the uses Resolved that the words other consideration cannot comprise any consideration expressed in the Indenture before the proviso for other ought to be in quality nature and person different and advancement of his daughter is a consideration mentioned before Anthonie Mildmay brought an action of the case against Roger Standish for saying that Lands were lawfully assured to John Talbott for 1600. yeares and that he was lawfully possessed of the same tearme whereas in truth the said Lands were not lawfully assured for the said tearme nor the said John Talbott was lawfully possessed of the interest thereof And so for slaundering of the title by speaking of the words Mildmay brought an action Standish justified the words and shewed the title of Talbott and it was adjudged that the action was maintaineable and good although that Talbott had a limitation of the Land by will which was the reason that Standish being a man not learned in the Lawes affirmed the words yet because he tooke upon him the notice of the Law and medled in a matter that did not concerne him Judgement was given for Mildmay Et ignorantia juris non excusat THE SECOND BOOK Of Sir Edward Cooke Lord c. Mansers Case 26. Eliz. fo 3. IF a man be unlearned and cannot read and be bound to doe an act of sealing assurances writings c. upon tender c. he is not bound to seale and deliver any such writing if there be not some ready which may read the Deed if the party so require it and in the same language and tongue that he understandeth Ignorantia duplex est facti juris and ignorance in reading or of the language Quae sunt ignorantia facti may excuse but ignorantia juris non excusat and if it be read unto him he may not have a reasonable time to shew it to his Councell learned to see whether it agree with his bond or covenant for he must seale it at his perill or if the same be truly expounded to him it is good enough But if it be read amisse or declared contrary to what it is and thereby the illiterated man is deceived he may very well plead non est factum For the Law saith it is not his Deed and so it was adjudged in Throughgoods case being the third case in this second Booke Resolved that if a man be bound that a stranger shall doe an act in such case he takes upon him that he shall doe it at his perill for he which is bound takes more upon him for a stranger then for himselfe in many cases If a man plead that he hath kept a man indemnified c. he ought to shew how otherwise where he pleads in the negative Non fuit damnificatus Goddards Case 26. El. fo 4. AN obligation dated the fourth of Aprill Anno 24. El. and delivered as the Deed of the partie 30. July An. 23. El. adjudged the Deed of the partie for though the plaintiffe in pleading cannot alledge the delivery before the Date because he is estopped yet a Jury which are sworne to speake the truth shall not be estopped The Date of a Deed is not the substance of the Deed. For if it want date or have an impossible Date as the 30. February the Deed is good For there are three things of the essence or substance of a Deed viz. writing in paper or parchment sealing and delivery And if it have these three although it want In Cujus rei testimonium Sigillum suum apposuit c. yet the Deed is good and when a Deed is delivered it takes effect by the delivery not by the date Throughgoods Case 26. Eliz. fo 9. REsolved that 't is not materiall whether the party to whom the Deed is made or another by his procurement or a Stranger of his owne head reades the writing in other words then the writing is so that he that seales it be a lay man and without covin in him deceived and the pleading of it is alwayes generall without shewing by whom 't was read and A. shall voyde an obligation to B. by pleading that he did it â—y menace of C. Resolved that such a lay-man is not bound to deliver a Deed if no body be present that can reade it in such language as he can understand and if it be read in other words it shall not binde him and 't is at the perill of him to whom 't is made that the very effect and purport of it be declared if it be required but if he doe not request it he shall be bound by it though it be made contrary to his meaning Resolved that it shall not binde if the effect be declared in other words then it is as if the Deed had been read in other words Two Justices a Feoffement of two acres is read as of one it shall not binde see Mansers case before Wisemans Case 27. Eliz. fo 15. TEnant in tayle of certaine Lands the remainder to another in Fee he in remainder by Deed indented and inrolled in consideration of bloud c. as for other good considerations doth covenant to stand seized of the said
house or not When a man maketh a feoffment of a Messuage cum pertinentii he departeth with nothing thereby but that which is parcell of the house as buildings curtelage and gardens If a Lessee for yeares makes a Lease for a certaine Tearme of any parcell and so divides the possession thereof from the residue if of this parcell so severed Liverie be made the possession in the residue by the first lessee is not any impediment to the liverie of this parcell otherwise if a Lessee make a Lease at will of any parcell there his possession of the residue shall hinder the liverie made in this parcell and with this judgement agreed all the other Justices and Serjeants of Serjeants Inne in Fleete-streete Doddingtons Case 27. Eliz. fo 32. KIng H. 8. Ex certa scientia c. granted to A. for 300 l. Omnia illa Messuagia in tenura Johannis Browne Scituate in Well nuper prioratini de W. Spectant ' And in truth the Lands lie in D. in this Case 't was resolved that the grant was voide by the Common Law as well in case of a common person as the King because the grant is generall and is restrained to one certaine Village and the grantee shall not have any Lands out of that Village to which the generallity of the grant is referred for this Pronoune Illa hath his necessary reference as well to the Towne as well as to the Tenure of I. B. for if eyther the one or the other faile the grant is voide And so it was adjudged Per tot cur de Banco Regis Resolved also that this grant was not holpen by the Statute of 34. H. 8. For no grants are holpen by this Statute nor by any act of confirmation but such as comprehend convenient certainty 1. Quia generale nihil certum implicat And here no Tenements are mentioned to be granted because the generall grant being intire was referred to a falsity and therefore it cannot be said that the Towne was misnamed and great inconvenience would follow if c. for the King should be deceived but the Statute helpes when there is a convenient certainty as a Mannor Farme Land knowne by a certaine name or containing so many Acres c. So that it may appeare what things the King intended to passe Note t is the most sure way for the Pattentee to expresse as much as he can in certainty before the generall words SIR Rowland Heywards Case In cur Wardor 37. Eliz. fo 35. SIr Rowland Heyward seised of a Mannor in Demeans and rents in consideration of money doth demise grant Bargaine and sell to A. the said Mannours Lands Tenements and the reversions and remainders with all Rents reserved upon any demise to have and to hold to A. and his asignes after the death of the Lessor for seaventeene yeares rendring a rose the Indenture was inrolled and after the Lessor by Indenture doth Covenant with B. to stand seised of the premises to the use of himselfe and the Heires of his body and no attornment was made to A. The Question was What passed to A and it was resolved by Popham and Anderson chiefe Justices and the Court that A. may have his election eyther to take the same by demise at the common Law or by bargaine and Sale Per Statutum 27. H. 8. without attornment for it was one entire demise and bargaine of one Mannor without any fraction or division thereof and this election remaineth to A. and his Executors and assignes for here is not Election to claime one of two severall things by one Title but to claime one thing by one of the two severall Titles for where the things are severall nothing passeth before Election and the Election must precede but when one thing passeth the Election of the Title may be subsequent For if I. have 3 Horses and doe give to you one of them the property comenceth by Election and must be made in the life of the Parties The Bi of Sarum had a great wood of 1000 Acres called Brerewood and infeoffed another of one House and seaventeene Acres parcell of the Wood and made Liverie in the Wood House nothing passeth of the Wood before Election and the Heire of the feoffee may not make Election Bullocks Case 10. Eliz. Dyer In case where election is given of two several things he which is the primer Agent and that ought to doe the first act shall have alwayes the Election As if a man grant a Rent of twenty Shillings or a Robe the Grantor shall have the Election for he is the primer Agent eyther by paying the one or delivering the other If a man make a Lease rendring twenty shillings or a Robe the Lessee shall have the Election Causa qua supra but if I give unto you one of my Horses in my Stable there you shall have the Election for you are the Primer Agent by taking or seising one of them and so of twenty trees in my Wood. Note for Elections these diversities 1. When nothing passes to the grantee c. before Election there it ought to be made in the life of the Parties but when the Estate passes presently c. the Grantee c his Heire or Executor may elect 2. When the same thing passes and the Donee c. hath Election in what manner c. he will take it the Donee Heire or Executor may elect 3. When Election is given to severall persons the first shall stand 4. When Election is given of two severall things he which ought to doe the first Act shall have Election 5. When the thing granted is annuall and to have continuance there the Election remaines to the Grantor in case where the Law gives him Election as well after the day as before otherwise t is when the thing is to be performed Vnica vice 6. The feoffee c. by his act may forfeit his Election as if A. infeoffe B. of two Acres Habendum the one for life the other in Taile and hee before Election makes a feoffement of both here the feoffor shall enter in which he pleases for the wrong of the feoffee 7. Though the Lessees here enter generally yet they may Elect after so if one be Executor and Devisee of a terme and enters generally c. and after the Lessees in the principall case made Election for to take by bargaine and Sale and had the Rents The Bishop of Winchesters Case 38. El. fo 43. In a prohibition REsolved that at common Law none had capacity to take Tythes but spirituall persons or Persona mixta as the King and regularly no meere Lay man was capable of them except in speciall Cases for he could not sue for them in Court Christian and regularly a lay man had no remedy for them till 32 H. 8. A Lay-Man may be discharged of Tythes at the common Law by grant or by composition but not by prescription for it is commonly said in our Law-Books that a lay man may
fine be reversed by nonage of the wife all the estate shall be restored to the wife presently for all the estate passed from her by the fine and so it was adjudged Banco regis in Worseleys case Resolved that though the variance of the limitation be onely in one estate and they agree in all the other yet all is voyd But if two joynt tenants or two having severall estates vary 't is good for every of their parts and shall be directed by their interests but if the variance had been in limitation of part of the land and they had agreed in the use it should be voyd for that part and good for the residue Note That though the husband might dispose of the land during coverture yet for the cause aforesaid his declaration was voyd If A. tenant for life and B. in reversion or remainder both levie a fine together generally the use shall be to A. for life the reversion or remainder to B. in fee for either of them grants that which lawfully he may grant and either of them shall have the use which the Law vesteth in them according to the estate which they would convey over Winningtons case 40. of the Queene fo 59. W. Infeoffed B. upon condition to regive to the Feoffor for life the remainder to J. Sonne and heire of the Feoffor the Feoffor enters and takes the profits without agreement or contradiction of the Feoffee and leases to D for 21. yeares and yet continues possession the Feoffee acknowledges a Statute to J. the Feoffor makes a feoffement to the use of himselfe for life the remainder to his second Sonne in taile c. and dyes the Feoffee enters and infeoffes the Sonne and heire upon which the second Sonne enters c. Resolved that though the intention was that the Feoffee should make an estate to him for his life when he hath entered without agreement of the Feoffee 't is a disseisin and the rather because as owner of the land he tooke upon him to make a Lease for yeares Resolved that by the Lease by Indenture he hath dispensed with the condition during the terme Resolved that when the Feoffor disseises the Feoffee upon condition and the Feoffee acknowledges a Statute c. This is no disability to cause the Feoffor to enter for the right of the Feoffee is not subject to the Statute but when the Feoffee in possession takes a wife grants a rent or acknowledges a Statute the land is presently subject c. And though upon entry he may be disabled yet till then he is not because the wife may dye or the Statute be released and then he may enter and performe the condition and the Feoffor by his feoffement hath extinct the condition so that the Feoffee may enter and when he hath infeoffed the eldest Sonne he hath done well Westcots Case in Communi Banco 41. El. fo 60. IF a man make an estate to three and to the heires of one of them one of them in this case hath Fee simple and yet the joynt estate continues for it is all one estate created at one time and therefore the Fee simple cannot drowne the joynture which taketh effect with creation of the remainder in fee but when three joyntenants are for life and after one of them purchase the Fee or else the Fee discends to him there the Fee simple doth drowne the estate for life for the estate for life was in esse before Note by this resolution if tenant for life grant his estate to him in the reversion and a stranger 't is a surrender for the moity and the benefit of survivor not regarded so the doubt in 7. H. 6. well resolved Resolved upon view of three presidents that judgement should be given for the plaintiffe upon a demise made by husband and wife without alledging it to be by Deed. Tookers Case 43. Eliz. fo 66. IOhn Arundell seised of Lands in Fee maketh a Lease thereof to A. and B. for their lives and after grants the reversion to C. for his life to which grant A. doth atturne being joynt tenant with B. and after A. by his Deed doth surrender to C. all his estate title and interest c. and then dyeth C. entereth claiming to hold in common with B. and whether his entree was lawfull or no was the question and judgement was given that it was lawfull for the attornement of the one tenant for life shall vest the entire reversion in the grantee because the estate of the joynt Lessees is entire and every joynt tenant is seised per my pro tout ' and by consequence the reversion which is dependent and expectant upon this estate is entire also and the atturnement of the one joyntenant is the atturnement of both Attournement is a lawfull act if one joyntenant assigne Dower 't is good Also the attornement passes no interest from him that attournes but perfects the grant of another And if one joyntenant give seisure of rent that shall binde the other but in a quid juris clamat or quem redditum reddit or per quae servitia one joyntenant shall not be permitted to attourne without his companion for doing of prejudice to his companion By Popham one joynt-tenant may prejudice another in the personalty but not in the realty if one take all the profits or release a personall action the other hath no remedy because of the privity and trust betweene them and the folly imputed to him to joyne with such a companion Note if a tenant have notice of the grant by a stranger and doe give his assent thereunto it is a good atturnement although it be in the absence of the grantee but disagreement ought to be to the party himselfe or doe atturne for any part it is good for the whole for the intent of an atturnement is but onely an assent to perfect the grant of another and he which atturnes cannot apportion divide or alter the grant Lord Cromwells case 40. of the Queene fo 70. BLunt bargained c. the Mannor of Alexton to which the Advowson of A. was appendant by Indenture to have as after in the same Indenture is mentioned and B. covenanted to suffer a common Recovery to the use of Andrewes and his heires rendring 42. pounds per annum to B. and his heires with a nomine poenae And further 't was covenanted and agreed as well for the assurance of the Mannor to A. as of the rent to B. that B. should levie a Fine c. to A. and his heires and A. by the same Fine should render a rent of 42. pounds per annum c Provided alwayes that A. by Deed should give the Advowson c. to B. during his life and if it did not become voyd during his life one turne to his executors c. And further 't was covenanted and agreed that all assurances afterwards to be made should be to the use of this Indenture c. after a recovery was
the Mannor ex speciali gratia c. and all her right estate title claime c. Resolved that the Record was well removed by the Writt of Error which was for to remove the recovery of the Mannor of M. in M. cum pertinentiis and the Recovery was of the Mannor of M. cum pertinentiis Resolved that this Writt of Error was not given to the King by any of the words of the Statute of 28. H. 8. because the terrtenant is in by title and the entry of the person attainted taken away and such a right for which the party hath no remedy but by action is a thing consists in privity which cannot Escheate nor be forfeited by the common law and this word right in the Act shall be satisfied with a right of entry and 't was observed by the Court that by no Act of attainder a right of action was ever given Note a diversitie betwixt inheritances and chattells for Obligations Statutes Recognisances c. are forfeited by attainder or Outlawry By the Court if L. had made a Feoffement without warranty this had been a discontinuance of the moity for the joynture was severed Resolved that H. N. had no right to a moity of the Mannor for though the recovery were erronious for 't was agreed 't was not void yet the recovery being in force the remainder hath no right for the intended recompence if tenant in taile suffers an erronious recovery and disseise the recoveror and dye his issue shall not be remitted for the taile is barred as long as the recovery stands in force and the Court agreed that neither an action without a right with a discent shall make a Remitter as in the principall case nor a right without an action for a man shall never be remitted but when an action lyes if the right and possession were in severall persons Resolved for the one moity the Recovery shall be a barre to the taile and remainder for though that as well L. as the vouchee might have abated the Writt because Anne was joyntly seised not named yet when the vouchee without demanding any Line enters generally into warranty and admits the Writt good and L. recovers in value which shall inure according to his estate with the remainder over 't is barred for by the recovery against L. the joynture was severed but for the other moity the recovery was not a barre to the taile or remainder because for that L. was not tenant to the Praecipe but the recovery is by Estoppell onely Agreed that H. N. at the time of the attainder was not intitled to have error yet 't was agreed that the remainder upon a taile shall have error upon a judgement given against tenant in taile for when W. 2. inables the donor for to limit a remainder over upon the taile all actions which the common Law gave to privies in estate are by the same Act as incident given also as a reversion or a remainder shall have Error upon a judgement given against tenant for life though not privie by aide voucher or receiver But agreed that by the common Law Error doth not lye by c during the life of tenant for life except he were privy to the first Record by aide voucher or receiver for remedy whereof 9. R. 2. ca ' 3. was made which gives an attaint or error during life upon which Statute the Court resolved 1. that though the Statute speakes onely of reversions yet remainders are within the purview 2. That a reversion expectant upon a taile is out for the Statute enumerates these foure estates Life Dowor Courtesie and Tenant in taile after possibility which declares their intentions to exclude reversions upon tailes and this upon great reason for the taile by possibility may continue for ever and here L. survived H. N. and so his possibility of error destroyed and no word of the Act extends to give a possibility Resolved admitting the Writ of Error had been given to the Queene that by this generall grant of the Queene it did not passe for a common person cannot grant it and therefore it ought to passe by Prerogative and ought to have precise words adjudged in Cromers case 8. of the Queene the Queene having a right of a disseisee attainted grants de speciali gratia c. all lands c. The right doth not passe without speciall recitall and words Owen and Morgans case Trin. 27. of the Queene Baron and Feme are seised and to the heires of the body of the husband a recovery is had against the Baron sole without naming of the wife and after the wife dyed Resolved that though the wife were not party to the Writ nor the Conisance for the estate of the husband and wife was by render upon a Fine levied by the husband and though it does appeare within the same Record that she was a stranger yet the render to her is voidable onely Resolved that this recovery against the husband onely shall not binde the remainder for betwixt husband and wife there are no moities and the husband hath no power to sever the joynture or dispose any part and he during the life of the wife is not seised by force of the taile and he can by no Act execute any part so the Praecipe being brought against him onely the recompence cannot enure to the taile or remainder for to all it cannot for the wife hath a joynt estate in possession and for a moity it cannot for there are no moities and the remainder depends upon the entire estate and recompence recovered by the husband onely cannot inure to him who hath a remainder depending upon the undevided estate of the husband and wife and the joyn-tenancy cannot be severed by the judgement against the husband onely and though the husband hath all the inheritance yet because by no possibility it can be executed 't is all one as if the husband had a remainder depending upon an estate for life and then a common recovery shall not binde because not tenant to the Praecipe nor seised by force of the taile but tooke effect by Estoppell onely The issue may say his auncestor was not tenant tempore brevis and though here the husband survived the wife this is not materiall for the Law adjudges as 't was then Copledikes Case 44. of the Queene fo 5. C. And his wife were seised and to the heires males of the body of the husband the husband levies a Fine to A. B. recovers in a Writ of entry against A. who vouches the husband onely the wife living who vouches the common vouchee Resolved that this recovery shall binde the remainder for here was a lawfull tenant to the Praecipe and though the husband were onely vouched and not his wife who had a joynt estate with him yet the husband coming in as vouchee he came in in privity of the estate taile and not of another estate and the recovery in value gives recompence to the taile which
the common Case which is many times agreed on in our Books a lease is made to one for life the remainder to the right Heires of I. S. this remainder is good upon contingency viz. If the Lessee for life survive I. S. otherwise not and by the same reason if a man have issue a Son of 9 yeares of age maketh a Lease untill the Sonne shall accomplish his full age the remainder to another in Fee as in this case nothing vesteth in him in remainder presently Quod fuit concessum per tot Cur. vide Chudleyes Case Libr. 10. Answered that in Wills the intent of the devisor is to be considered for when the devisor in his life by apt words by good advise might have made his Will sufficient in Law there though he makes it in disordered manner and in barbarous and unapt words the Law will order those words which want order according to his intent as in Wellock and Hamonds Case Coppy-holder in Borough English devises to his Eldest Son paying 40. shillings within c. to every of his other Sonnes c. surrenders according and dyes the Eldest Son did not pay within c. the youngest enters and adjudged lawfull and resolved First That he had a fee for the recompence and consideration though it be not to the value makes a fee in construction of a will Secondly That though paying in a Will makes a condition yet here 't is a limittation otherwise it would discend upon the Eldest Son who is to take advantage of it and then it should be at his pleasure for to pay or not and therefore it shall be as if he had devised to the Eldest Quousque he failes in payment So here the devisor hath computed what profits of his Land during the nonage of his Son will suffice for payment of his Debts c. and that he did not intend that the tearme of the Executors should end by death of H. for so his Debts should remaine unsatisfied and his Will unperformed and therefore the Law sayth it shall be construed that the Executors shall have till H. should have come to 21 yeares of age and therefore the Executors have a terme for twelve yeares which the Court agreed And though when and then are Adverbes of time yet when they referre to a thing which must of necessity happen they make no contingency and t is certaine that H. did accomplish or might have accomplished the age of 21 yeares and here if the tearme should be ended by death the remainder should be voyd and the Court agreed that in Wilis and grants the remainder ought to vest in possession Eo instanti the particular estate ends but here the Terme did not end c. Walkers Case 29. Eliz. in Banco regis WAlker Leased certaine Lands to Harries for yeares the Lessee assigned all his interest to another Walker brought an action of Debt against Harries for Rent arreare after the assignement and if the action be maintainable or not was the Question and upon great deliberation and conference with others it was adjudged per Wray chiefe Justice Sir Thomas Gawdy and Tot. Cur. that the Action did lye and was maintainable in the argument whereof many things were resolved If a man Lease a stock of Cattle or other goods rendering a Rent at severall dayes he shall not have an Action of Debt untill all the dayes be expired Likewise if a man make an obligation or other contract to pay severall summes of money at severall dayes he shall not have an action of Debt untill all the dayes be expired for these are personall contracts and not reall but in case of a Lease for yeares which is a reall contract the Lessor shall have an action of Debt after every day By the Court Debt doth well lye in this case against the Lessee there are three privities 1. In respect of the estate onely 2. Of contract onely 3. Of estate and contract together The first betweene the Grantee of the reversion or Lord by escheate and the Lessee so betwixt the Lessor and the Assignee of the Lessee the second betwixt the Lessor and the Lessee as here for notwithstanding the assignement and the privity of estate removed by the act of the Lessee himselfe the privity of contract remaines First because the Lessee himselfe cannot prevent the Lessor of his remedy but when the Lessor grants his reversion against his owne grant he shall not have remedy because the Rent is incident to the reversion Secondly the Lessee might grant it to a poore man not able to manure the Land or for malice will suffer it to lye fresh so the Lessor shall be without remedy if Debt should not lye against the first Lessee Thirdly there is privity of contract and estate together as betwixt the Lessor and the Lessee If a Tenant in Dower or Tenant by curtesy assigne over their estate yet the privity of the action remaineth betweene the Heire and them and he shall have an action of wast against them for wast done after the assignement but if the Heire grant over his reversion then the privity of the action is destroyed and the Grantee may not have any Action of wast but onely against the assignee for betweene them is a privity of Estate and betweene the Grantee and the Tenant in Dower c is no privity at all If a lessor enter for condition broken or if a lessee surrender to the lessor yet the lessor may have an action of Debt for arrerages due before the condition broken or the surrender and this is in respect of the contract betweene the lessor and the lessee 36. of the Queene Vngle and Glovers Case adjudged the lessee assignes his interest the lessor bargaines c. the reversion the bargainee shall not have Debt against the lessee but agreed that the lessor himselfe might 37. Eliz. in Banco regis Int. Overton et Siddall Two points were resolved First if an Executor of a Lessee for yeares assigne over his interest that an Action of Debt doth not lye against him for Rent due after the Assignement If a Lessee for yeares assigne over his interest and dye the Executor shall not be charged for rent due after his death for by the death of the Lessee the personall privity of the contract as to the Action of Debt in both these cases were determined 40. of the Queene Brome and Hores Case A. Lessee of three acres rendring Rent assignes one to B. the Lessor suffers a recovery to the use of C. in fee who brought Debt against the first Lessee adjudged it lyes for the Lessee assigned his interest but for part for the privity of Estate remaines because he assigned but part 41. of the Queene Marrow and Turpins Case in Debt against two administrators upon a Lease made to their Testator the Defendants plead that before the tren areare the one of them had assigned all his interest to I. S. of which the Plaintiffe had notice
and accepted the Rent by the hands of the assignee due after the assignement and before that this rent now demanded was due the Plaintiffe demurred and adjudged against him because the privity of the contract was determined by the death of the Lessee and therefore after the assignement made by the administrator Debt doth not lye for rent due after the assignement Also it was said that if a Lessee assigne over his terme the Lessor may charge the Lessee or his Assignee at his Election And if the Lessor accept the rent of the assignee he hath determined his Election and shall not have an action after against the Lessee for rent due after the assignement no more then a Lord having received the Rent of the Feoffee shall avow upon the Feoffor afterwards Butler and Bakers Case 33. and 34. of the Queene fo 25. W. B. and his Wife seised of the mannor of H. by an Estate made to them during coverture for the joynture of the Wife in taile holden In Capite and W. seised of Land in F. both which amount to a third part of all his Lands and also of the Mannor of T. In capite which amounts to two parts W. devises T. to his Wife upon condition that shee should take no former joynture and dyed the Wife in pays refused H. the question was whither the Will were good for the intire Mannor of T. or but for part by the Statutes of 32. and 34. H 8. Resolved that at common Law if a gift be to a Husband and Wife in taile c. the Husband dyes the Wife cannot devest the free hold by any verball Waiver or disagreement in pays as if she say before entry that shee will never agree to it shee may enter when shee pleases so if shee saith reciting her estate that shee assents c. to the said estate yet afterwards shee may waive it in a Court of record but if shee enters into the Land and takes the profits though shee saith nothing t is a good agreement in Law for the Law more respects acts without words then words without acts and a freehold shall not be so easily devested to the intent that the Tenant to the Praecipe should be the better knowne But as an act in Pays may amount to an agreement so it may amount to a disagreement but this is alwayes of one and the same thing if the Tenant by deed infeoffe the Lord and a stranger and maketh livery to the Lord if the Lord dissagree ' by word t is worth nothing and if he enters generally and takes the profits t is an agreement but if he distraines for his Seigniory t is a dissagreement yet in some cases a claime by words shall direct the entry to be an agreement to one Estate and a disagreement to another c. See the Booke at large but a man may devest the property of goods and Chattells or an obligation sealed to him by disagreement In pays Resolved that though the estate was created by way of use which use before the Statute might have beene waived in Pays yet now the Statute hath so incorporated the use and possession of the Land that it cannot be waived In pays more then an Estate created by feoffment c. yet t was here resolved That the refusall In pays to have H. and the entry and agreement to T. was a good agreement to the one and disagreement to the other And this by 27. H. 8. ca ' 10. If any Woman hath Lands c. assured after Marriage c. after the death of the Husband She may refuse her joynture and take her Dower c. And upon these words the Court agreed That a Woman might refuse her Joynture In pays and be indowed by consent or Writ The great doubt was if by this refusall of H. by operation of Law it doth discend immediatly to the Heire after the death of the Devisor for to satisfie the Statute which saith The King shall take for his third part such Mannors c. as shall discend c. immediatly after the death of the devisor Resolved First Upon the reason of the common Law the refusall shall not have such relation that the devise shall be good for the intire Mannor of T. for a relation is a fiction of Law to make a nullity of a thing Ab initio to one certaine intent which in truth had being and that Propter necessitatem ut res magis valeat quam pereat 11. E. 3. The Law will make a nullity Ab initio that the Wife shall have dower but not as to a collaterall intent as if the reversion were granted of the Lands which the Husband and Wife held in taile and the Wife for to have Dower dissagrees yet the grant is good for shee may be endowed though the grant stand and Relatio est fictio juris et intenta ad unum And though relations aide acts in Law as Dower yet t will never aide the acts of the party to avoyd them by relation as a man infeoffes an Infant or Feme covert and after gives c. or devises the Land or any thing out of it the Infant or Husband disagrees this shall have relation betwixt the parties that the Infant or Husband shall not be charged in damages but shall not make the voyd devise c. good A Lease for life the remainder to the King the King grants his remainder the deed is in-rolled it shall have relation to make this passe Ab initio to the King not to make the voyd pattent good And as relations extend onely to the same thing and the same intent so also to the same parties not for to prejudice a Stranger feoffement of a Mannor and a long time after livery the Tenants attourne this shall have relation to make the services passe Ab initio or otherwise they could never passe nor be parcell of the Mannor but not for to charge the Tenants for the arrerages in the meane time So here the refusall shall relate as to the mannor of H. onely not to T. and to the wife onely but not to prejudice the Heire upon whom part of the Mannor of T. discended to make the devise good for the third part which was voide at the time of the death For Omne testamentum morte consummatum est and as it was at the death so it shall remaine Resolved that after the Statute of 27. H. 8. and before the Statute of 32 H. 8. the Mannor of T. was not devisable and therefore when the devisor hath not pursued the Authority which the Acts of 32. 34. H. 8. gives t was voide for part The first branch he hath not pursued which saith That all c. having a sole estate in fee simple in any Mannors c. shall have full and free liberty c. to dispose by his last will in writing as much of c. as shall amount to the cleere yearely value of two parts in three to
be divided For he had not the Mannor of H. for his Wife had it joyntly with him See many excellent Cases in the Booke at large adjudged upon this word Having in the Statutes the Initium of a Will ought to be full and perfect which is the writing and therefore if the devisor command one to write his Will and he devises white Acre to A. and his Heires and black Acre to B. and his Heires and dyes before the devise to B. is written yet the devise to A. is good But if he devises to A. c. upon condition and he writes the devise and the Testator dyes before the Writing of the condition t is voyd for in the one case the devises are severall and the one is perfect in the other Case t is maimed and imperfect for the intire devise was not fully put in writing so t was resolved in the Case at Barre that neither the commencement nor the end of the Will was full or perfect for at the time of writing of it and at the death of the devisor he had no power in respect of the joynt estate in H. to dispose all the Mannor of T. which amounts to the value of two parts of all Also upon the first Branch he ought to have a sole estate and here his Wife is joyntly seised with him and shee cannot disagree during coverture The Statute gives liberty to him for to devise two parts by will but this is to be intended of such Land which he might convey by act executed but here by reason of the undivided estate of the Wife he cannot dispose it but during coverture Also the third part of cleere yearly value is saved to the King and the intent of the Statute was that the King shall have the equall benefit at least for his third part as the devisee hath for two parts but here the devisee had two parts absolutely and the King but a possibility Viz. If the Wife would disagree which is at her pleasure and this Statute hath been constru'd that equality should be observed A man which held three Mannors of three Lords could not devise two of them but two parts of every one upon these words Cleere yearly value 't was said that of Inheritances which are not of any yearly value some are devisable some not as Bona et catalla felonum fugit or utlagat Fines amerciaments within such a Mannor or Towne these cannot be devised nor left to discend but a Leete Waife or Stray or other hereditament appendant or appurtenant to a Mannor passe by devise of the Mannor with th' appurtenances as incidents and the Statute had no intent for to dismember these things which by lawfull prescription had beene united But if a hundred with goods of Fellons Outlaws Fines Amerciaments returne of Writts and such other casuall hereditaments within the same hundred have beene accustomably demised for a yearely rent they may be devised within the purview of the said Act. 'T was said upon the words of the Statute which says that he may devise a rent common c. Out of two parts that a devise of a rent of the full value out of all is voyd but out of two parts 't is good And 't was observed that upon 32. H. 8. a devile of all his land had beene good for two parts as adjudged in Vntons Case for Land is severable but a rent is a thing intire and 34. H. 8. onely gives authority for to devise it The second branch which speakes of division cannot be satisfied for during his life he himselfe could not Set it out and after his death it survives to the Wife The third and fourth branch is not satisfied in this word immediatly for till disagreement without question the Mannor of H. survived to the Wife and if an Office had beene found before disagreement without doubt the Queene should have a third part of the Mannor of T. and the devise being voyd at the death of the devisor the third part lawfully vested in the Heire by discent it cannot be made good and devested by a subsequent disagreement Littleton discent to the Heire of Tenant by the courtesy of a disseissoresse doth not take away entry for the Heire comes not in immediatly 't was agreed if a man devises two acres holden by Knights service and a reversion upon a Lease for life discends to the heire this is no immediate discent within the Statute but the third part of the two ought to discend see many excellent Cases of devises adjudged upon the Statute Another good Case of relations Jennings and Braggs Case a disseisee makes an Indenture purporting a Lease for yeares and delivers it to a stranger out of the Land as an Escroule and commands him for to enter and deliver this as his deed to the Lessee who doth it and adjudged a good Lease and this diversity agreed First When the person at the first delivery hath not ability to make the contract and before the second delivery hath 't is voyd as an Infant and a Fème covert otherwise when at first delivery the person hath ability but cannot perfect it till an impediment removed which is done before the second delivery there 't is good as at Barre Resolved secondly that to some intent the second delivery shall have relation to the former by fiction of Law Vt res magis valeat quam pereat as if a Feme sole deliver a Lease as an escroule and after takes Husband or dyes yet by the second delivery 't is a good deed Ab initio and to some intent Vt res magis valeat c. it shall not relate yet in truth the second delivery hath all its force by the first and is but an execution and consummation of the former as at Barre for if it should relate to the first delivery then it would avoyd the lease for it should be made by one who was out of possession fictio legis inique operatur alicui damnum vel injuriam Thirdly 't was resolved that as to collaterall acts that there shall be no relation Omninò as if the Obligee release before the second delivery such release is voyd Ratcliffes case 34. of the Queene fo 37. A. Feme sole devises Socage land to the sonne of her daughter in taile the remainder to two Sisters of the devisee and to the heires of their two bodies by equall portions to be divided the remainder in fee to the Mother of the daughters and dyes the sonne dyes without issue Martha one of the daughters dwelling in her Mothers house daughter of the devisor within the age of 16. and above 14. departed at the second houre in the night with the consent of the husband of her Mother in whose house she was 8. miles and there married E. R. the issue was whether E.R. the Mother had the custody of the said M. at the time of the contract and marriage aforesaid for if she had then the
not be taken by any strained construction against the letter for then 't is requisite to have a new Act of explanation upon the explanation sic in infinitum By 4. H. 7. every one hath liberty to pursue a Fine according to the said Act viz. with proclamations c. or without as at common Law and therefore the Act of 32. H. 8. of necessitie prescribes that Proclamations shall be made according to 4. H. 7. to distinguish it from a Fine at common Law and not to inable the issue for to make claime for this should be against the expresse intent of the Act in the preamble and purview Also it should be very inconvenient if when such Fine is levied for a valuable consideration advancement of his issues or payment of his debts and he dyes before Proclamations that all should be avoyded by the claime of the heire when the conusee could not have better assurance by Recovery for that he was not tenant to the Praecipe See the Booke at large in what case the issue in taile may averre seisin in a Stranger quod partes Finis nihil habuerunt what not Objected 1. 't is provided by the Statute de donis c. that as to the issue Finis ipso jure sit nullus 2. That the Statute of 27. E. 1. extends not to the heires in taile as 8. H. 4. is for the issue is not bound by any Record which inures by way of Estoppell 3. 27. E. 1. speakes De finibus ritè levatis and when there wants seisin which is the essence of a Fine 't is not ritè levatus 46. E. 3. that 't is a good plea. Answered the Statute de donis c. was made 13. E. 1. and the Statute of Fines 27. in which the issue is not excepted therefore he is bound and according there is a good opinion 8. H. 4. To the second though the issue was not barred of his right before 4. H. 7. yet he was estopped to say Quod partes Finis nihil habuerunt To the third Finis ritè levatus is intended in due forme of Law which it may be though it be onely by way of conclusion for the same Act ousts the parties from such averment and 46. E. 3. is to be intended of a collaterall auncestor from whom the heire doth not claime the Land and then the averment is good In Conisbies case 't was resolved upon a Fine levied to tenant in taile in remainder by tenant for life and a grant and render of a rent that this was not within the Statutes of 4. H. 7. or 32. H. 8. for the Fine was not of the land it selfe which was intailed but of the rent newly created out of the land And in the Lord Zouches case 't was resolved that 4. H. 7. and 32. H. 8. doe extend to Fines levied by conclusion and shall binde though partes c. nihil habuerunt as if tenant in taile makes a Feoffement or be disseised and levies a Fine for the Statute says All Fines of any lands c. in any wise intailed to the person so levying or to any of his auncestors and in 4. H. 7. the exception Quod partes c. is saved to all persons not party nor privy to the said Fine and the issue in taile is privy for he claimes as heire by discent and if such Fine shall barre where the tenant in taile had nothing though the issue enter after the death of the auncestor before all the Proclamations passe a fortiori here when tenant in taile at the time was seised of an estate though 't were in reversion See Archers case where a Fine shall barre the issue where the Father had onely a possibility at the time of the Fine levied Purslowes case 32. of the Queene tenant in taile levies a Fine Term. P. T. and dyed in August next his daughter being heire to the taile and her husband brought a Formedon and pending the plea the Proclamations passed and 't was agreed by the Court that the tenant shall plead the Fine and the Proclamations which passed pending the Writ shall barre the demandant yet there the issue did all that might be done for the conveyance is the Fine and the Proclamations are but a short repetition of the Fine out of this foure things are to be observed 1. Though after the Fine a right descends to the issue yet after Proclamations the right is barred 2. Though he pursues a Formedon yet after Proclamations he is barred ergo in the principall case he is barred notwithstanding his entry or claime in pays 3. When tenant in taile levies a Fine and dyes before Proclamations the issue is not within any of the savings for then the bringing of a Formedon should avoyd the barre 4. The Proclamations serve for no purpose but to distinguish the Fine from a Fine at the common Law Trin. 4. of the Queene Bendlowes tenant in taile disseised the discontinuee and levied a Fine and tooke an estate by render the discontinuee enters and claimes before all the proclamations passed and avoides the estate after the proclamations passe tenant in taile continues his possession and dyes within the yeare after the entry and claime Resolved that the issue was not Remitted but barred by 32. H. 8. Though the estate was avoyded before all the Proclamations passed Resolved though the issue be beyond the Sea yet because he is privy c. he is bound as if he he were within age covert or non compos Which was agreed by all the Justices Ergo the claime of the issue is not materiall and if Infancy c. should avoyde the Fine no man should be assured of land conveyed THE FOURTH BOOK Vernons Case 14. 15. of the Queene fo 1. IN Dower the tenant shews that the husband made a Feoffement of other Land to the use of himselfe for life and after to the use of the demandant for life c. and averres that the said estate was for her Joynture c. and that the demandant hath entered c. and agreed to the estate the demandant shews that the estate was upon condition for to performe the will of the husband and that divers things were to be performed in it judgement if the tenant shall be admitted c. Resolved that at Common Law a right or title to a Freehold cannot be barred by acceptance of a collaterall satisfaction or recompence As if a disseisor of the Mannor of P. gives to the disseisee the Mannor of S. in satisfaction of all his right c. And therefore 't is said in our Bookes that an accord with satisfaction is a good plea in a personall action where damages are to be recovered not in a reall and therefore no barre in Dower but Dower ad ostium Ecclesiae or ex assensu patris concludes her if she enters after c. for the Law allowes them c. to be Dowers in Law Before 27. most lands were in use
former acts of limitation as W. 1. ca ' 38. W. 2. ca ' 2. doe not exclude a seisin sufficient at common Law And the Statute saith Actuall possession or seisin which Seisin is eyther actuall or in Law Resolved that the act doth not extend to such a rent or service which by common possibility cannot happen within sixty yeares as homage fealty for the tenant may live beyond or to cover the Hall or to goe in Warre so of a Formedon in Discender for tenant in taile may live sixty yeares after discontinuance and though In facto he dyes and the issue doth not pursue his Formedon yet he may have it at any time and the seisin of the donee was not traversable so of homage and other casuall services though the Lord might have had seisin So if the Lord release to the tenant so long as I. S. hath heires of his body though sixty yeares passe yet he may distraine for Impotentia excusat legem and there may be a tenure by homage c. and yet never done as if the Land be conveyed to a Maior c. or other Corporation aggregate of many they hold by fealty yet they cannot doe it A Writ of Escheate Cessavit Rescous are not within the Act for in them the seisin is not traversable but the tenure and in the Escheate and Cessavit they demand the Land and can lay no seisin and the Act extends onely to those Writs where the demandant or his Ancestors might have had seisin So Note Land shall escheate though there be no seisin of the services within the time of limitation for the Seigniory remaines though seisin wants so if the tenant cesse and the Land be not overt and sufficient to his distresse the Lord shall have a Cessavit though he wants seisin of the services Resolved if nothing be arreare and the Lord distraines the tenant may make rescous or if he be so often distrained that he cannot manure his Land he may have an Assise De souent distres but for such tortious distresse where nothing is arreare the tenant shall not have Trespasse Vi armis against the Lord for this is prohibited by the Statute of Marleb ca ' 3. See the Booke at large in what case an incroachment of more rent by the Lord then he ought to have shall be avoyded in what not Resolved that though a man hath beene out of possession of Land by sixty yeares yet if his entry be not taken away he may enter and bring any possessory action of his owne possession for the first clause doth not barre any right but prohibits that none shall have a Writ of right c. of the possession of his ancestors c. but onely of a seisin within sixty yeares the first and second clause extend onely to seisin auncestrell the third to an action of his owne possession not to entry the fourth to avowry the fifth to a Formedon c. Note Reader out of this that when the tenant hath done homage and fealty which the Lord may inforce him to doe this shall be a seisin of all other services as to avowry though the Lord nor those by whom he claimes had seisin within sixty yeares Actions of Slaunder The Lord Cromwells Case 20º of the Queene fo 12. THe Lord Cromwell brought an Action De Scandalis magnatum against D. Viccar Tam pro domina regina quam pro seipso upon the Statute of 2. R. 2. ca ' 5. The Defendant said to the Plaintiffe It is no marvell though you like not of me for you like of those that maintaine sedition against the Queenes proceedings the Defendant justifies specially that he being Viccar of N. the Plaintiffe procured I. T. and I. H. for to preach there who in their Sermons inveyed against the Booke of common prayer and affirmed it to be superstitious upon which the Viccar inhibited them for they had not license nor authority to preach yet they proceeded by the incouragement of the Plaintiffe the Plaintiffe said to the Defendant Thou art a false Varlet I like not of thee to whom the Defendant said It is no marvaile though you like not of me for you like of those innuendo the aforesaid I. T. and I. H. that maintaine sedition Innuendo seditiosam illam doctrinam against the Queenes proceedings Resolved in this case that the Statute aforesaid concerning the King the Judges Ex officio ought to take notice of it as they ought of all Statutes that concerne him Resolved that the justification is good for in case of slaunder the sence of the words is to be taken which may appeare by the occasion of speech Sensus verborum ex causa dicendi accipiendus est et sermones semper accipiendi sunt secundum subjectam materiam And here the sence of the words appeares and his meaning in speaking them and that he did not intend any publique or violent sedition as the word of it selfe imports and God defend that the words of one by a strict and grammaticall construction should be taken contrary to the manifest intent as in an Action for calling the Plaintiffe murderer 't is a good justification that the Plaintiffe confessing that he had killed diverse Haires with Engines the Defendant said Thou art a Murderer and the Defendant shall not be put to a generall issue when he confesses the words and shewes that they are not actionable as in maintainance the Defendant may justifie lawfull mainteinance whereupon the Plaintiffe replyed that the Defendant dixit c. Verba praedict de iniuria sua propria absque tali causa upon this they were at issue and after agreed Cutler and Dixons Case 27. and 28. of the Queene fo 14. IF one exhibite certaine Articles to a Justice of peace against one declaring divers great abuses and misdemeanours c. to the intent to bind him to the good behaviour In this case the party accused shall not have any action upon the case for it is in pursuite of ordinary justice and if such actions were permitted none would complayne for feare of infinite vexation Sir Richard Buckley and Woods Case 33. and 34. of the Queene fo 14. WOod exhibited a Bill in the Starrechamber against Sir R. B. and charged him with divers matters examinable there and with other matters not determinable there as that he was a maintainer of Pyrates and Murtherers and a procurer of Pyracies upon which Sir R. B. brought this action c. Resolved that no action lyes for matter examinable there though 't was meerely false because that 't was in course of justice Resolved that an action lyes for these words not examinable there for 't is not done in course of Justice and great inconvenience would follow if matters may be inserted in Bills exhibited in so high and honourable a Court in Slaunder of the parties and they cannot answer there for their purgation nor have their action for purging themselves of the crimes and recover damages for
had common in such a place for him and his Tenants at will but when he claimes this in the soile of the Lord he cannot prescribe in the name of the Lord for the Lord cannot prescribe to have common c. in his owne soile and therefore he ought to alledge that within the Mannor there is such a custome Note a good diversity betweene a prescription which is personall and alwayes made in the name of a certaine person or his auncestors or those whose estate c. and a custome which is locall and alleadged in no person but that within the Mannor there is such a custome this shall serve for those who cannot prescribe in their owne name nor in the name of any person certaine as the Inhabitants of a Towne Also the allegation of a custome shall serve when 't is referred to a thing insensible Viz. that all such Lands are devisable And for that in the principall case the custome may have a lawfull commencement that one copy-holder onely shall have common estovers or other profit in the land of the Lord and that in many Mannors some Copiholders have common in one wast of the Mannor and others in another severally so that the custome cannot be applied to all and because that all the other Copiholds may be determined and extinct 't was adjudged the custome was well alledged So to have common of estovers in the wood of his Lord parcell of the Mannor c. was adjudged good 10. of the Queene as 't was said Myttons case 26. Eliz. QUeene Elizabeth by Letters Patents did grant the office of the Clerkship of the County Court of Somerset to Mytton with all fees c. for life Arthur Hopton Esquire Sheriffe of the same Shire interrupted him because it was incident to his office Mytton complained to the Lords of the Councell and it was referred to the two chiefe Justices Wray and Anderson And after many arguments concerning the validity of the grant and conference had with all the other Justices It was resolved by all the Justices Nullo contradicente aut reluctante that the said Letters Patents were voyd And their reasons were that the office of the Sheriffe was an ancient office before the Conquest and of great trust and authoritie for the King committeth unto him Custodiam Comitatus And though the King may determine the office ad beneplacitum yet he cannot determine this in part as for one Towne or Hundred nor abridge him of any incident to his office for the office is entire and ought to continue so without any fraction or diminution without by Parliament and the County Court and the entring of all proceedings therein are incident to the Sheriffes office c. And though 't was granted when the office of the Sheriffe was voyd yet the new Sheriffe shall avoyde it as Scroges case in the time of vacation of the office of the Chiefe Justice of the Common Bench Queene Mary granted the office of the Exigenter of London resolved that the next Chiefe Justice shall avoyd it for 't was incident to his office Also in all Writs directed to the Sheriffe concerning the County Court the King says in comitatu tuo and in retourne of exigents made by him he says ad comitatum meum tent c. and the style of the Court proves it and by the Statute of 33. H. 8. the Sheriffe of Denbigh shall keepe his Shire Court at c. In a false judgement 't is said in pleno com' tuo recordari facias c. and in a precept of Tolt 't is said summoneas c. quod sit ad comitatum meum And it should be very inconvenient that another should have the custody of the entries and Rolls of Court which may be imbesilled and the Sheriffe responsable for them And it was resolved that the custody of all the Gaoles within every County belongs to the Sheriffe by right and are annexed and incident by the Law to the Sheriffes office vid. stat An. 14o. E. 3. ca. 10. Bozouns case 26. 27. of the Queene fo 34. A. Portion of tythes in L. appertained to the Rectory of G. which was presentable and the Queene was seised of the Rectory of L. jure coronae which was appropriated to the Monastery of W. and grants to B. ex gratia speciali c. totam illam portionem decimarum c. in L. c. Cum omnibus alijs decimis suis quibuscunque in L. tunc vel nuper in occupatione J. C. and that the pattents shall be of force non obstante aliquibus defectibus in non nominando male recitando c. alicujus occupatoris And J. C. never had any tythes in L. Resolved that in the occupation of J. C referres to all the sentence and not onely to cum omnibus alijs decimis c. 1 Because illam demonstrates fully that there ought to be words subsequent to explaine and reduce in certainty what portion by the intention of the Queene should passe viz. that which was in the occupation of J. C. and 't is not satisfied till it be come to the full end of the sentence 2. This conjunction cum omnibus alijs c. couples the last words to the former and makes the words subsequent to referre to all the sentence 3. If all the tythes in L. of the said Rectory should passe the addition of the occupation of J. C. should be vaine maledicta expositio c. Resolved that by grant of portionem decimarum c. the tythes parcell of the Rectory of L. doe not passe for portion properly signifies a part or portion in grosse divided and not parcell of the Rectory and the Queene had not any portion in grosse but all were parcell of the Rectory And ex gratia speciala c. shall not extend by any strained constructiō to make a thing passe against the intention of the Queene expressed in her grant and against the apt proper and usuall signification of the words of his grant Resolved that because J. C. had not any tythes there nothing passes for admit that a portion should be taken for a part then the effect of the grant is totam illam portionem decimarum in occupatione J. C. and in truth he never had any part nothing without question passes in case of a common person a fortiori not in the case of the Queene As to the point when a clause of Non obstante shall make the grant of the Queene good when not Resolved when the King by the common Law cannot in any manner make a grant there a Non obstante of the common Law will not make the grant good against the reason of the common Law as the King grants a protection in an Assise or Quare Impedit notwithstanding any Law to the contrary 't is voyd for protection lyes not in these cases for the losse which may come to the parties by such great delay But when the King may lawfully make
Deed to the Court the plaintiffe may pray it to be entred in haec verba the same Terme but not after Pagetts case 35. El. in communi banco fol. 76. IT was resolved that if tenant for life the remainder for life the remainder in fee if tenant for life maketh wast in trees and after he in remainder for life dye an action of wast is maintainable for the wast done in the life of him in remainder for life because it was to the disinheritance of him in remainder in fee. And now the impediment which was the meane estate for life is taken away Et remoto impedimento emergit actio It was resolved that when the trees are cut downe the property thereof belongeth to him in remainder in fee. And where it is said in some Bookes That he in remainder or reversion in fee shall not have an action of wast it is to be intended during the continuance of the meane remainder And in other Bookes is said in this case that an action of wast doth lie it is intended after the death of him in remainder for life Boothes case 36. Eliz. in communi Banco fol. 77. GEeorge Booth brought an action of wast against Skevington and declared that Sir William Booth demised for yeares to Ensor who assigned to Skevington The defendant pleaded an assignement to Elizabeth Cave before which assignement no wast was made the plaintiffe replyed and shewed the Statute 11. H. 6. ca. 5. and that the grant to Elizabeth Cave was made to the intent he should not know against whom to bring his action and averred that Skevington did take the profits the defendant rejoyned that Elizabeth Cave granted her estate to A. who demised to the defendant at will and traversed the fraud c. the plaintiffe demurred it was resolved that every assignee of every Lessee mediatly or immediatly is within the said act for the Statute was made to suppresse fraud and deceipt and therefore it should be taken most beneficially Secondly that he in remainder is within the said act as well as he in reversion Thirdly the intent of fraud aforesaid is not traversable but the taking of the profits which is a thing notorious whereof the Country may have knowledge In a formedon the tenant pleaded Non tenure the demandant said that he made a Feoffment to persons unknowne to defraud him of his tenancy and to keepe the profits the pernancy of the profits and not the Feoffment is traversable Samons case 36. Eliz. Banco Regis fol. 77. THe plaintiffe and defendant referred all controversies to the Arbitrement of J. S. who did arbitrate that the defendant shall enter into an obligation to the plaintiffe that the plaintiffe and his wife shall injoy certeine lands which he had not done this is voyde for the incerteinty of what summe the obligation shall be for the award ought to be certeine like a Judgement Also the award was voyde as to the feme for she was a stranger to the submission Grayes case 37. Eliz. Banco Regis fol. 78. Replevin THe plaintiffe intitles himselfe in barre to the avowry to Common c. which was traversed the Jury found that every c. time of minde have used to pay for the Common a henne and five egges the plaintiffe had Judgement for he needs not shew more then makes for him for this is not Modus Communiae paying so much nor parcell of the issue but a collaterall recompence to be paid for the Common for which the Terretenant had remedy but if the Terretenant had no remedy then the Commoner shall have the Common sub modo and may be disturbed by the Terretenant Fitz-Herberts case 37. Eliz. Banco Regis fol. 79. THe father tenant for life the remainder to the sonne in taile leaseth for yeares to A. to the intent to barre the sonne A. infeoffeth J. S. to whom the father releaseth with warranty and dyeth this doth not barre the sonne for although that the disseisin which is made by the feoffment precedes the warranty yet because it was to that intent the Law will adjudge upon the intire act and so a warranty by disseisin 2. Although the disseisin was made to the father yet because he consented unto it the warranty commenceth by disseisin but if the father had made a feoffment in fee and dyed this shall binde the sonne if it be with warranty Foordes case 37. Eliz. Com' Banco fol. 81. A Prebend leaseth for 70. an Patron Deane and Chapter confirme dimissionem praedictam in forma praedicta fact ' for 51. yeares non ultra this is a confirmation for all the Terme for when they confirme dimissionem c. for 51. yeares it is repugnant but if they had recited the Lease and confirmed the land for 51. yeares this had been good for they have an authority coupled with an interest otherwise if onely a bare authority but by what words soever they confirme a lease for life or a gift in taile for part this is a confirmation of all because they are intire so if the estate of the disseisor or his lessee for life be confirmed for an houre yet all is confirmed Cases of Customes Snellings case 37. Eliz. Com' Banco fol. 82. S. Brings Debt upon an Obligation against an Administrator who pleads there is a custome in L. that an Administrator shall pay debts upon contract to a Citizen as well as upon Obligation and that J. S. upon a Contract had recovered and good 1. Resol Although that debt is given against an Administrator by the Statute of 31. E. 3. yet because they were charged as Executors before so that onely the name is changed the custome generally alledged is good 2. The ordinary by taking the goods was chargeable at the Common Law 3. This custome bindeth strangers The case of Markett overt 38. Eliz. fo 83. SHopps in L. are Marketts overt for things to be sold there by the trade of the owner therefore if plate be sold there in a Scriveners shop the property is not altered otherwise if in a Goldsmiths shop if he who passeth in the street may see it Nota the reason of this case extends to all Marketts overt in England Perimans case 41. Eliz. Com. Banco fol. 84. IT is a good Custome of a mannor that all sales of lands within that mannor be presented at the Court of the Mannor Obj. What remedy if the Steward will not accept the presentment Resp What remedy if the Clerke will not Inrolle a deede of bargaine and sale and therefore Caveat Emptor 2. Obj. That Interest is by the feoffment vested in the feoffee which shall not be devested by the Custome Resp That livery was ordained to give notice and a Custome which addeth more solemnity and notice is good Sir Henry Knivets case 38. Eliz. Banco Regis fol. 85. TEnant for life the remainder in fee leaseth for yeares the Termor is ousted the disseisor leaseth for yeares his lessee sowes the land tenant for life dyes he
the Leete But no action of the case lyeth for any particular man for the infinitnesse of actions that might be brought And of this opinion touching the new erecting of a Dove-cote was Sir Roger Manwood chiefe Baron and the Barons of the Exchequer in the Exchequer chamber Aldens case 43. Eliz. Com. Banco fol. 105. AUncient demise is a good plea in an Ejectione firmae although it is not in trespas because by intendement the freehold may come in debate and the interest of the Land is bound auncient demesne is extendable upon a Statute by Elegit but in an assise by tenant by Elegit auncient demesne is a good plea. 22. Ass Pl. 45. Sir Henry Constables case 43. El. in banco le roy fo 106. NOthing shall be said Wreccum maris but such goods onely which are cast or left upon the Land by the Sea Flotsam maris is when a Ship is drowned or otherwise perish and the goods flote upon the Sea Jetsam maris is when a Ship is in perill of drowning and for disburthening thereof the goods are cast into the Sea and after notwithstanding the Ship perish Lagan vel potius Ligan is when the goods so cast out of the Ship and the Ship perish and such goods are so ponderous that they sinke to the bottome and the marriners to the intent to finde them binde thereunto a Boy or a Corke or other such thing to finde them againe Et dicitur Ligan a Ligando and none of these words which are called Flotsam Jetsam or Ligan are called wreck so long as they remaine in or upon the Sea But if any of them be cast upon the Land by the Sea then it is said to be wreck and by the Statute 15. R. 2. ca. 3. the Lord Admirall shall not have conusance or jurisdiction of wreck of Sea but of the other three hee hath for wreck is when the goods are cast upon the Land and so within some County whereof the Common Law may take conusance But the other three are upon the Sea Magis proprie dici poterit wreccum si Navis frangatur ex qua nullus vivus evasit maxime si dominus rerum subversus fuerit quicquid inde ad terram venerit erit domini regis wreck may by prescription belong to the Lord of a Mannor It was resolved also that the soyle upon which the Sea doth flow and reflow scil Between the high water marke and the low water marke may be parcell of the Mannor of a Subject 16. El. Dier And it was resolved that when the Sea doth flow ad plenitudinem maris the high Admirall shall have jurisdiction of every thing done upon the water between the high water marke and the low water marke as felony c. No proofe is allowable by the Law but the verdict of twelve men part of the goods were wreck and part not damage assessed intirely ergo Judgement given for the defendant The King shall have flotsam upon the Sea because within the ligeance of the King Foxleys case 43. El. Banco Regis fol. 109. IT was resolved if a Felon steale any goods and leave them in a Mannor or Towne or in his house or in the house of another or hide them in the earth or any other secret place and afterwards fly these goods are not forfeited nor waife goods in the Law for waife is where a felon in pursuite waveth or leaveth the goods or for feare to be taken thinking that pursuite was or is made having the goods with him in his possession flyeth away and leaveth the goods In these cases the goods shal be said waved in Law But if he had not the goods w th him when he did fly being pursued or for feare of being apprehended the goods are not waved nor forfeited but the owner may take them againe when he will without any fresh suite But if the Felon in his flying wave them the goods are forfeited by the Common Law If the Felon upon fresh suite be not attaint at the suite of the owner of the goods And the reason that wave is given to the King is for default of the owner that he doth not make fresh suite after for to apprehend the felon Wherefore the Law doth impose the penaltie on the owner Bona fugitivorum are the proper goods of him that flyeth away for felony But it is to be observed that if a man fly for felony his goods are not forfeited untill they be found by indictment or otherwise lawfully found of record upon his acquitall that he fled for the felony they cannot be claimed by prescription because that things forfeited by matter of record cannot be claimed by prescription But waife stray treasure trove wreck of the Sea c. which things may be gained by usage without matter of record there a man may prescribe to have Bona catalla felonum in some cases bona catalla felonum shall be forfeited by conviction and sometimes without conviction but alwayes when any forfeiture is of any goods of felons it ought to appeare of record and that is the cause that such goods cannot be claimed by prescription Deodanda are goods which cause the death of a man by misadventure and are not forfeited untill they be found of record therefore cannot be claimed by prescription the Jury that presents or finds the death ought to finde and apprise the Deodandum also omnia quae movent ad mortem sunt deodanda Bona catalla in exigendo positorum are when any be appealed or indicted of felony and he withdraw or absent himselfe for so long time as an exigent is awarded against him for his absenting which is a flying away in Law he shall forfeite all his goods and chattells which he had at the time of the exigent and after be found not guiltie 22. Lib. Ass Looke the Statute 21. H. 8. ca. 11. concerning goods waved and for restitution c. Mallaryes case 43. Eliz. fol. 111. REndring rent to one and his heires and to one or his heires are all one But a Feoffment tenendum to one or his heires is but during the life of the Feoffee Nemo potest plus juris in alium transferre quam ipse habet this case consisteth much upon atturnements vide le case Wades case 43. Eliz. in Communi Banco fo 114. A Man was bound to pay 250. li. Legal monet Angliae on a day certaine the last time of the day that so much money can be numbred is the best time so that it be before the setting of the Sunne and the most convenient time by Law that both parties may meete five shillings in Spanish money and two pistolets in gold were tendered It was resolved that the Spanish silver was lawfull money of England by Proclamation in tempore Philippi Mariae and so French Crownes for the King by his Prerogative and Proclamation may make any forreigne coyne lawfull money of England That if a man
personam The Lord cannot claime common in his owne soyle A diversitie was taken and agreed upon between a prescription and a custome a prescription is alwayes alledged in the person and a custome ought alwayes to be alledged in the Land for every prescription ought to have by common intendment a lawful commencement but otherwise of a custome for that ought to be reasonable and ex certa causa rationabili usitata as Littleton saith But it needeth not to have intendment of a lawfull commencement as custome to have Land Devisable or of the nature of Gavelkinde or Borough English These and such like customes are reasonable but by common intendment these cannot have lawfull commencement by grant or act or agreement but onely by Parliament and the custome in the case at barre was repugnant for it was alledged that the Custome of the Towne was that every Inhabitant had used to have common within a place in the Towne of H. which was another Towne Catesbyes Case 4o. Jac. fol. 61. SIx moneths being halfe a yeare semestre is given to the Patron of an advowson to present and according to the Kalander and not after 28. dayes to a Moneth and the Statute saith Si tempus semestre non transierit adjudicentur damna ad valorem c. per dimidium anni and being ambiguous it shall be construed for the benefit of the Patron Sir Moyle Finches case 4. Jac. Com. Banco fol. 63. THe Lady M. tenant for life of the Mannor of B. the remainder in fee to the Lady Finch shee and S. her husband and D. levyed a fine to one of the demesnes who grants and renders to D. for 50. yeares the reversion to S. and his wife and her heires with proviso in the Deedes which directed the fine that the reversioner shall enter and hould Courts And it was averred that this was knowne by the name of the Mannor of B. D. maketh his sonne of three yeares of age executor and administration was committed to R. T. S. and his wife levy a fine of all the lands of the wife in K. except the Mannor of B. to the use of the feme for life the remainder to Sir M. F. R. T. demiseth to P. L. for ten yeares Dame M. dyeth P. L. entreth by vertue of a power of revocation and limitation of new uses S. with the assent of the Lady F. his wife limitteth the uses to one who ousteth P. L. and maketh a feoffment to the use of the La F. for life the remainder to H. F. in taile P. L. reenters Dame F. dyeth H. F. for rent arreare distraineth 1. Resol By the grant and render of the demesnes the Mannor is destroyed because in an instant the services and demesnes are severed by act of the party but otherwise it is if by act in Law as upon partition so it is of an advowson appendant c. and upon partition many Mannors may be made of one but not by the act of the party 2. B. is excepted by the name of a Mannor 1. Because the intent of the parties is so 2. Exception of misnosmer shall not be favoured in Law 3. It is sufficient in Law in many cases that a thing be reputed as it is named as if a remainder be limitted to a Bastard by the name of sonne of J. S. and as to that was objected that this reputation is not time out of minde this needs not if it be of convenient time as this was for it was a Mannor revera before to levy a fine and continue the name after so that this reputation is stronger having such a ground and reputation serveth in Writts amicable although not in adversarie 3. The lease made by the administrator durante minori aetate is good because the administration is generall and not speciall to the benefit of the Infant but howsoever this is good during the administration 4. P L. in the life of the Lady M. had but interesse Termini so that attornement cannot be in his life but after the death of the La. Mo. by entry of the lessee the reversion is in S. and his wife without attornement because attornement needs not because the reversion is setled and he hath no meanes to compell c. otherwise it is where an attornement may be had and although that P.L. lessee of a lessee of part cannot make an expresse attornement yet his reentry shall be an attornement in Law so he who hath interesse termini may make a surrender in Law but no expresse surrender and a man of non-sane memory may make an attornement in Law but not an expresse attornement The Lord Darcies Case 4. Jacobi Com. Banco fol. 70. TEnder is not necessary to have the single value of the heire male or female but the heire female shall not forfeit the double value because the Statute of Merton is si se mavitaverit at the age of 14. yeares c. at which time the heire female is out of Ward and where by the Statute of Westm 1. cap. 22. it is provided that the Lord shal have two yeares to make a Tender it giveth not the double value but if he waive the two yeares he shall have the value without Tender quia de mero Jure c. Burrells case 5. Jac. Com. Banco fol. 72. IF the father make a lease by fraud and dyes the sonne sells the land knowing or not knowing of it the vendee shall avoyd it 2. If the father makes a lease to the sonne who assigneth it over by fraud the father dyes the sonne sells the land the vendee shall avoyd it Sir Drue Druries case 5. Jac. Cur. Wardor fol. 73. E. 1. granted to the Towne of Y. Quod omnes de villa oriundi licet terras c. extra libertatem villae c. te nuerint in Capite se maritare possint juxta libertates villae praedictae R. D. dyed seised of a house parcell of a Monasterie dissolved in the time of H. 8. houlden in Capite the King grants the wardship of his sonne to the plaintiffe and makes the Ward Knight the plaintiffe brings a valore Maritagij The Charter doth not discharge the defendant 1. Because it is juxta libertates villae praedict ' and the liberties are not shewed 2. This Charter cannot extend to a Tenure created in the time of H. 8. 3. It is not shewed that the defendant was borne within the Towne 1. Resol If the heire in Ward be made a Knight he is out of Ward for his body because by intendment he is able to doe Knights service otherwise if made a Nobleman 2. By the death of the tenant the value of the marriage is vested in the Lord and cannot be devested by Knighthood c. 3. If he be Knighted in the life of his auncestor he shall not be in Ward at all 4. If making of the heire in ward Knight shall devest the value it will be prejudiciall to the Subject and to the King for
countenance that dangerous and desperate error of the Spencers viz. That Homage and Oath of legeance was more by reason of the Kings Crowne that is of his politique capacity then by reason of the person of the King which was condemned by two Parliaments one in the Reigne of E. 2. called Exilium Hugonis le Spencer and the other in 1. E. 3. cap. 1. No one Opinion in all our Bookes is against this judgement The Lord Chancellour and 12. of the Judges concurred in one opinion herein and not in any remembrance so Honourable and Intelligent an Auditory as was at this Case Bulwers Case 27. Eliz. fol. 1. H. H. recovered against the Plaintiffe in the common place and dyeth the Defendant in the name of H. Outlawed the Plaintiffe who brings an Action of the Case in N. where the first Action was brought and recovered for there was the visible torte when matter in one Câ—unty dependeth upon matter in another County the Plaintiffe may choose in which County to bring his Action except that the Defendant upon generall issue pleaded may be prejudiced of his Triall as if two conspire in one County to Endite one in another County and doe it an Action may be brought in either but if he be indited but not by them there it shall be brought where the conspiracy was If Manasse be made in E. whereby my Tenants recede into L. an Action shall be brought in E. if an action be founded upon two things materiall and traversable in two severall Counties an action may be brought in any of them An Annuity granted in one County to be paid in another the Action shall be brought where the grant was he who is robbed may have an appeale of felony in every County where the goods came but of robbery where the fact was done onely A lease for yeares in one County of Land in another Debt shall be brought where the Lease was made and wast where the Land lyeth every Action which concerneth the life of a man shall be brought where the offence is committed Every issue which ariseth upon an Action in which Land shall be recovered shall be brought where the Land lyeth as in right of ward of Land or body or intrusion of ward and forfeiture of Marriage Valore maritagij and Quare impedit but ravishment of ward where the ravishment was and a Quare non admisit where the refusall was before the Statute of 7. R. 2. c. 10. an Action for Land in diverse Counties or for common in one County appendant to Land in another County shall be brought by severall Writs in both Counties but now In confinio comitatuum a per quae servitia shall be brought where the note of the fine is levyed Sir Miles Corbets case 27. Eliz. in Scaccario fol. 5. REsol That the speciall manner of Common in Norf called Shacke to be taken in arrable land after harvest untill sowing begin is good Resol also if in D. there are fifty acres and in S. 100. l. who ought to intercommon for vicinage D. cannot put in more in their Common then it will depasture and so to escape reciprocally for the originall cause of this Common was onely to prevent suits in Champian Countries Cases upon the Statute of 13. E. 1. of Winchester upon hue and cry Sendills case 27. Eliz. in Com. Banco fol. 6. A Robbery for which the Hundred must answer by force of the said Statute is to be done openly so as the Country may take notice thereof themselves but a Robbery done secretly in the house the Country cannot take notice thereof for every one may keepe his house as strong as he will at his perill For it was adjudged in Ashpoles case that the partie robbed needed not to give notice thereof to the Country For it may be that the partie robbed was bound or maimed c. so as he could not make hue and cry to give notice A robbery was done in January presently after the Sunne setting during day-light and it was adjudged that the Hundred should answer for the same for it was a convenient time for men to travell or to be about their businesse One was killed in the Evening and escaped and by the common Law the Towne was amerced for that was accounted in Law parcell of the day and not of the night But by the Statute 27. El. ca. 13. none shall have action upon the said Statute except the partie robbed so soone as he may give notice of the same to any of the Inhabitants of any Village Towne or Hamlet next to the place where the robbery was done and if they in pursuite apprehend any of the offenders that will excuse the Towne Mibornes case 29. Eliz. in Com. Banco fol. 6. A Robbery was done in the morning ante lucem the Hundred shall not be charged Cum quis felonicè occisus fuit per diem nisi felocaptus fuit tota villata illa amercietur The Earle of Bedfords Case 29. Eliz. fol. 7. 1. REsol If tenant in taile make a voydable lease for yeares and dyeth his heire in ward to the King or other Lord the Lord shall avoyde this lease but if an infant make a feoffment the Lord by Escheate shall not avoyde it but a gardian shall because he doth it in right of the infant 2. This avoidance is but during the interest of the Lord for afterwards the heire may make it good But if he who hath a particular estate avoideth an act in all after his Interest determined it shall not be made good as if a feme be indowed of an appropriation and her clerke inducted the appropriation is defeated for ever so if a feme Covert as a feme sole levy a fine and the Baron enters and dyeth the Conâ—see shall not have the land for the estate is wholly defeated Vghtreds Case 33. Eliz. fol. 9. THe M. of W. granted the Captainship of a Fort to the plaintiffe and for exercising of the said office and for finding a Master Gunner and six Souldiers granted to him an Annuity of 32. li. per annum the plaintiffe brings an Annuity 1. Except It doth not appeare by the Count that the M. had power to grant this office Non allocatur 2. The plaintiffe doth not averre the exercising of the said office Non allocatur for if he had not used it that shall come in on the other part because this is a condition subsequent and not precedent but if one be to have a thing in consideration of an act to be done by him there he must shew the performance because that amounts to a condition precedent as in debt for salarie but if each party had equall remedy one for the money and the other for the act to be done there the Count shall be without shewing the performance as if one Covenant to serve c. and the other Covenants to give money c. But although that an interest vested is to be devested by non feasance
from an auncestor a Subject but not where it discends from an auncestor who was King except in speciall cases 3. The issues of the King at the time of the levying of the fine are subjects therefore within the Statute and it seemd to them that there ought to be Letters Patents to give power to the Conisee to enter into the Land Nevills Case 2. Jacobi fo 33. THe dignity of an Earle intailed is forfeitable for treason 1. Resolved this is within the Statute of W. 2. De donis and experience is to give dignities in taile with remainders over also this was an office anciently and offices may be intailed 2. A dignity may be forfeited at the common Law by a condition in Law for the Office of Earle was Ad consulendum Regem tempore pacis defendendum Regem tempore belli therefore he forfeits it when he takes Councell and Armes against him 3. If it were not forfeited by the common Law yet it is by 26. H. 8. cap. 13. by this word Hereditament and the words use or possession which are added are to shew that every Hereditament shall be forfeited at the common Law Donee in taile had Potestatem alienandi post prolem suscitatam but if hee reteine the Land himselfe he hath no absolute fee for none shall inherit but the heire Per formam doni so it is now in case of annuity and other things out of the Statute Penall Statutes 2. Ja. fo 36. WHen a Statute is made by Parliament the King cannot give the penalty benefit or dispensation of the same to any Subject but the King may make a Non obstante to dispense with any perticular person that he shall not incurre the penalty of a Stature and the King after a forfeiture or penalty of a Statute by judgement and recovery may grant the same to any of his Subjects by way of reward and all the Judges of England subscribed to this the 8. Day of November 1604. Lillingstons Case 5. Jacobi fo 38. TEnant in fee grants a rent charge proviso that the person of the grantor shall not be charged the grantee acknowledgeth a recognizance according to 23. H. 8. and after releaseth to the grantor the conisee sueth an extent and brings debt against the grantor Terretenant 1. Resolved the rent is extendable for notwithstanding the release it is In esse as to the Conisee and cannot be discharged by the act of the Conisor also the extent relateth to the judgement at which time it was extendable See the Lord Aburgavenies Case in the sixth Report 2. Debt lyeth not so long as the extent indureth for so long the rent hath continuance although that by the release the freehold be determined if a rent charge be granted for life with proviso as above-said if the rent be determined debt lyeth against the grantor because he had no other remedy Bedels Case 5. Jacobi fo 40. R. B. Covenants in consideration of paternall love c. to stand seised to the use of himselfe for life the remainder to his Wife for life the remainder over 1. Resolv although the consideration in the deed runneth not to the Wife yet another consideration may be averred which stands with the Deed. The limittation of an use to the Wife importeth a consideration in it selfe so if it be to any of his blood but if he Covenant in consideration of a 100. l. to stand seised to the use of his Sonne nothing passeth untill inrollment Quia expressum facit cessare tacitum Beresfords Case 5. Jacobi fo 41. AN use is limitted to A B. and of the heires Males of the said A. lawfully begotten this is fee taile notwithstanding the words of the Body be wanting and that lawfully begotten are implied for no heire shall inherit who is not lawfully begotten Resolved that to create an inheritance the word Heires is necessary but the words De corpore are not necessary to make an estate taile if there be words which Tantamount and here the sence according to the intent of the Donor is of or by the said A. lawfully begotten A gift to a man haeredibus de se exeuntibus or Haeredibus suis de prima uxore sua are estates taile Kenns Case 4. Jacobi fo 42. C. K. had issue by E. S. M. K. and they are divorced and the Marriage sentenced void C. K. marrieth F. they have issue E. K. C. dyeth E. K. is found by office to be Heire M. and W. her Baron preferre a bill in the Court of wards to traverse the Office to which the Committees of the wardship answer one of the Committees dyeth M. and W. sue a Bill of Reviver and M. having issue E. dyeth E. her issue and R. her Baron bring a new Bill of Reviver 1. Resolved so long as the sentence stands in force the issue of the first feme is a Bastard because the spirituall Judge hath jurisdiction thereof and our Law giveth faith unto it Sentence of divorse may be repealed after the death of the parties but no divorse can be after their dearh for that will Bastardise the issue and the Court of the King hath triall of it originally not being hindered by any Sentence 2. The Plaintiffe shall not have a traverse without an office found for her for the King being sure of wardship shall not be ousted by one before that he be sure to have benefit by him and 2. E. 6. cap 8. doth not extend to give a traverse without office but if by two offices two are found Heires whereof one is within age by that Statute the other may traverse immediatly 3. A bill of reviver upon a bill of reviver shall not be suffered for the infinitnesse no more then a Writ by Journeys accompts By all the last bill was absurd which prayeth that the first bill be revived because M. was dead but it ought to be that her Heire may traverse The End of the Seaventh Booke THE EIGHTH BOOK The Princes Case 3. Jacobi in Chancery fo 1. THE Queene 37. Eliz. grants three Mannors parcell of the Duchee of C. to H. L. and G. M. the King at the supplication of the Prince brings a Scire facias against the said H. L. and S.H. to make Livery to the Prince by force of the Statute of 11. E. 3. H. L. pleads Null tielum recorde S. H. pleads the Patents with a Non obstante 32. H. 8. whereby these Mannors were made parcell of c. and the Act of Confirmation 43. Eliz. As to the plea of H. L. the Atturney sheweth an Inspeximus and demurreth upon the plea of the other two who joyne and as Amici curiae repeate part of the Statute of 1. H. 7. touching the Duchie H. L. demurreth 1. Resolv the Charter of creation of the Prince Duke of C. 11. E. 3. is an Act of Parliament for such a limittation to the first-begotten Son is void without Statute for if Grandfather King the Father Duke and Sonne be if
the King dyes the Father is King and the Son Duke by the said Statute against the rules of Law 2. The Lands cannot be so annexed to the Duchie that they cannot be severed without Statute 3. The estate is limitted to cease when the King hath no first begotten Son and to revive when he hath which cannot be without Statute 4. It should be absurd that six being then created Earles that their creation should be firme and the Creation of the Prince void 5. In the Charter there is De communi consilio Praelatorum c. and in the end Per ipsum Regem totum concilium in Parliamento such an Act as beginneth Rex Statuit and alwayes reputed for a Statute shall not be drawne in question but if it be Rex ex assensu the Commons or Lords omitting the other part it is voide 2. The said Charter having the force of a Statute is good without aid of any other Statute and although the King in his Scire facias recite another Act for thâ—s surplus the writ shall not abate 3. The Prince had the Dukedome in Fee for it is an inheritance because 21. E. 3. 41. the Princesse was indowed and it is no estate taile because it is not limitted of what body it shall come but onely that they shall be Heires to the black Prince 4. Against a generall Statute Nul tiel recorde shall not be pleaded for although it be lost yet the Judges ought to take notice of it and this is such an one which concernes the Prince and the Statute of confirmations doth not extend unto it 1. Because this hath a speciall relation to certeine defects as Misnosiner c. 2. Patents are made good onely against the King saving the right of others therefore the Princes right is saved In a Scire facias the King or Prince may reply but the most formall way is for the Attourney to replie as here he did No Sonne of the King but his first begotten shall be Duke of C. although he be Heire apparent to the Crowne Calyes Case 26. Eliz. Banco regis fo 32. 1. REsolved that to maintaine an action against an Inkeeper for goods lost c. it ought to be a common June 2. He ought to be a Passenger therefore a Neighbour shall not 3. An inholder shall not answer for any thing but that which is Infra hospitium therefore if a Passenger require that his Horse be put to grasse the inholder shall not answer if he be stollen otherwise if he require it not 4. There ought to be a default in the Inholder or his Servants therefore if a Guest bring one with him who stealeth the goods the Inholder shall not be charged otherwise if the Hostler appoint one with him in his Chamber who doth it But an inholder shall not be charged if he require the Guest to put his goods in a Chamber and he leaves them in the Court but it is no excuse to the Inholder that he delivered the Key of the Chamber to the Guest or that no goods were delivered to him 5. The Hostler shall answer for Charters if they be stollen but not if a Guest be beaten and all this appeares by the Writ and the words of it Paynes Case 29. Eliz. com banco fo 34. A Feme Tenant in taile taketh Baron and hath issue who is heard to cry and dyeth the Feme dyeth without issue the Husband shall be Tenant by the courtesie for although the state of the Feme be determined yet it is Tacite implied in the guift that every Husband of a Feme inheritable to the said estate shall have the Land for his life after the death of the Feme if he be intitled to be Tenant by the courtesie If a Feme be delivered of a Monster this doth not intitle the Husband to be Tenant by the curtesie otherwise it is if the issue had humane shape but is blemished if a Feme be ripped and the issue taken out of her Wombe the Baron shall not be Tenant by the curtesie otherwise it is if the issue which they had dyes and Lands discends after A man shall not be Tenant by the courtesie but where his issue may inherit as heire to the Feme therefore he shall not be of a possession in Law because there he makes title from the auncester of the Feme and not from the Feme Barretry 30. Eliz. fol. 36. A common Barretor is a common maintainer of Suites or quarrells in Courts or in the Countrey As first in disturbance of the peace Secondly in taking and keeping of possession with force or deceite Thirdly by false calumniation and sowing of Quarrells but to indite him of it it ought not to be that he hath done so twice or thrice but that he is a common doer of them Grieslies Case 30. Eliz. com banco fo 38. BY the custome one is chosen in a Leete to be Constable who refuseth and departeth out of the Court the Steward imposeth a Fine of 5. l. upon him for which the Bailiffes of the Lord distreine and he brings a replevin 1. Resolved every Judge of record may assesse a reasonable fine upon any man who makes contempt or disturbance to the Court but a Judge who is not of record cannot 2. This fine heeds not to be afferred because the Statute of Mag. Ch. speakes of Amerciaments and not of Fines for a fine is imposed by the Court and an Amerciament by the Jury therefore the Judgement in an Amerciament is generall Quod sit in misericordia and after upon estreits directed to the Coroners they are afferred and the Statute is that a Noble man shall be Amerced by his Peers which is not used at this day because it is reduced to a certeinty Viz. A Duke to 10. l. and others to 5. l. but an Amerciament of an Officer of the Court or he who hath execution of Writs shall be afferred by the Court so of any who is Judge as Suitors If a Juror appeare and is adjourned to a day of which he makes default this shall be inquired by his Companions for he shall be fined to the value of his Land per annum which the Court cannot know 3. A distresse may be taken for a fine without custome or for an Amerciament which is lesse Whittinghams Case 45. Eliz. fo 42. IT was resolved that if there be Lord and Tenant an Infant and the Infant make a feoffement in fee and execute the same by livery of seisin by his owne hands and after dye without heires in this case the Lord shall not have the benefit of the escheate and the Feoffement is unavoidable There be three manner of privities Viz. privity in blood 2. Privity in estate 3. Privity in Law Privities in blood as heires in blood privity in estate as joyntenants Baron and Feme Donor and Donee Lessor and Lessee c. privities in Law as Lord by escheate Lord of a Villaine c. If a Lessee for life
taile with crosse remainders to J. and K. M. discontinueth and dyeth without issue J. dyeth without issue K. dyeth and her issue brings a Formedon in the remainder and good although severall remainders for they depend upon one estate and commence by gift at one time In actions reall in which title is expressed a man shall not have one Writ for Lands to which he had severall Titles as in escheate cessavit Writ of Mesne c. but he may have a Writ of ward of Land onely although it be by severall Tenures nor one formedon upon two distinct gifts where the foundation is severall but he shall have it if there be one gift although it take effect at severall times because the foundation was joynt and single as upon a gift in taile to Brother and Sister who dye without issue or if the Brother dye without issue and the Sister dye having issue who dyes without issue he to whom the remainder limitted shall have one formedon although it vest at severall times so in an estate taile to Father and Sonne and so here In actions reall founded upon Torte a man shall have one Writ to recover Lands to which he had severall Titles as in an assize a Writ of entry c. but in a Writ of entry upon disseisin made to my Mother and her Sister Coperceners because there title is in the Writ it appeareth he ought to have severall actions but in personall actions one may comprehend severall torts and causes of actions as trespasse for trespasse made at severall dayes and places wast upon severall Leases and so of Debt Nota if a remainder be executed issue in remainder shall not have a formedon in remainder but in the discender and Count of an immediate gift but if there be a Lease for life to one the remainder in taile to A. the remainder in taile to B. A. dyes without issue if B. be chased to his formedon he shall not count of an immediate remainder but shall shew the first remainder to A. and that he is dead without issue 2. In formedon in the remainder or reverter omission of issue inheritable in the pedigree of the demandant abates the Writ but not upon the part of the perticular Tenant 3. The Demandant must make mention of the Sonne who survived the Father to which Son the Land discended but was not seised by force of the taile but he shall name him Sonne but not heire 4. The Demandant in a formedon in the Discender must make himselfe heire to him that was last seised and he to the Donee Note here because K. was never seised the Writ shall say Remanere not descendere and the Writ was Remansit jus because a discontinuance otherwise it should be Tenementa remanserunt Fraunces Case 7. Jac. fo 89. THe Plaintiffe pleads in barre of avowry that R. F. devised to I. his Sonne who leased to him the avowant replyeth that after the devise R. F. made a Feoffement to the use of the said I. upon condition that he shall suffer his Executors to take away his goods and the estate limitted to him was for sixty yeares if he should so long live with diverse remainders over and that after the death of F. I. hindered the Executors to carry away the goods whereupon T. in remainder entered and judgement given for the Plaintiffe 1. Resolv Although the condition be taken strictly the uses to I. onely and to his Heires are onely avoided by it 2. A disturbance by paroll is no Breach of the condition and because the avowant did not shew a speciall disturbance his replication was void 3. I. ought to have notice of the condition being a Stranger to it or otherwise he cannot breake it as a Copy-holder shall not forfeite for denyall of rent to him to whose use a Mannor is transferred before notice but he who bindes himselfe to doe any thing must take notice at his perill because he hath taken it upon him 4. Although that the Title which the Plaintiffe had made in barre to the avowry be destroyed yet he shall have judgement because his count is good and another Title that is to have the Land for sixty yeares by force of the uses declared upon the feoffement is given unto him by the Replication although that the title which he made for himselfe be destroyed yet the Court must adjudge upon all the record and judgement was entered for him accordingly Edward Foxes Case 7. Jacobi fo 93. A Revertioner upon a Lease for life the remainder for life in consideration of 50. l. demiseth granteth c. his reversion for 99. yeares rendering rent this is a bargaine and sale and there needs no attornement for the words of bargaine and sale are not necessary if there are words which tantamount as if at the common Law one had sould his Land an use had beene raised to the Vendee because their intent so appeared so here but if it appeare that their intent was to passe it at the common Law as if a Letter of Attorney be made to make livery the use had not risen and here appeareth their intent to passe it as a bargaine and sale because rent is reserved presently therefore it is reason that he shall have the rents of the particular Tenants presently which cannot be if it passe not by bargaine and sale and inrollment is not necessary because a tearme for yeares onely passeth in this case and â—o freehold See Sir Rowland Heywards Case 2. Report fo 35. Matthew Mannings Case 7. Jacobi fo 94. LEssee for yeares is bound in 200. Markes to W. C. and deviseth to his Wife for life and after her death to M. M and makes his Wife Executrix who agrees and dyeth intestate M. M. enters and takes administration of the goods not administred W. C. brings Debt against him Resolved that M. M. takes by Executory devise and not as a remainder and the estate limmitted to him in construction precedeth the limittation to the Wife as if he had devised that if the Wife die within the terme that then M. M. shall have the residue and also devised it to his Wife for life 2. This case is most strong because a Chattell which may vest and revest at pleasure of the Devisor without mischiefe to the Praecipe 2. A devise of the Terme and Occupation thereof all one Viz. So many yeares as the Feme shall live the remainder to M. M. 4. After the Executrix had agreed the first devisee cannot barre the Executory devise 5. A man may devise an estate which he cannot convey by act executed as to his Executors untill his Debts shall be paid the remainder over they have a Chattell determinable upon payment of the Debts which cannot be at the common Law If a Sheriffe sell a Terme upon a Fieri facias and judgement is reversed the sale shall stand otherwise none will buy any thing upon Execution and judgement was given for the Plaintiffe and affirmed in Error
shall abate against all but if it be for matter in fact onely as for misnaming one Defendant it shall abate onely against him omission or addition which doth not alter the forme is amendable as if Dei gratia be omitted Voluntary or negligent keeping of Records by the Clerke is amendable by other parts of the Record or by exemplification Count or plea in barr c. which wanteth substance shall not be amended in another Terme but default in the colour because this is the default of the Clerke shall be a Record shall be amended in another Terme by the paper Booke and a thing apparent to be the fault of the Clerke shall be amended in another Terme as rien luydoit de hoc c. predictus defend pro quaerent Nisi prius shall be amended by this Statute if power be given to the Justices to proceed otherwise not as if issue joyned in the Record be mistaken in the Nisi prius it shall not be amended but misprision of dammages shall be because this is not materiall to the issue and it is the default of the Clerke Warrant of attorney and returnes are amendable by this Statute but if there be none at all it is out of the Statute and because this Statute leaveth many cases without remedy the Statutes of 32. H. 8. cap. 30. and 18. Eliz. cap. 14. were made Ten misprisions as yet not remedied 1. Variance materiall betweene the originall and the Count. 2. Want of substance in the originall or Count. 3. Insufficient tryalls 4. If a Coroner returnes the Jury where the Sheriffe ought 5. Lack of name of the Sheriffe to the returne 6. Where no returne is indorced upon the Venire facias 7. When one who is not returned giveth a Verdict 8. Pleas of the Crowne 9. If it appeare to the Court that he who hath a Verdict had no cause of action 10. Errour in Law Cases in the Court of Wardes Myghts Case 7. Jacobi fol. 163. 1. REsolved if J. M. purchase Lands to him and an Infant in fee it cannot be averred that this was to take away the wardship because he never was sole Tenant to the King 2. No feoffement that I. M. can make of his moity can be aver'd to be by collusion c. because without feoffement no wardship shall be and also the Statute speakes of sole seisin 3. A feoffement to the wife or younger Child cannot be averred to be by covin c. upon construction of the Statute of 32. 34. H. 8. where collusion cannot be averred by the Statute of Marlebridge it cannot be now to seize all the Land but it may be for the third part which belongs to the King If a third part be left to the King no averrement of covin may be for the other two parts the Father makes a feoffement to diverse uses the remainder to his second Sonne and dyeth his Eldest Sonne dyes the second Sonne shall not be in ward by averment of covin Digbies Case 7. Jacobi fo 165. TEnant of the King conveys his Lands to the use of himselfe for life the remainder to his Sonne and Heire in taile and after is attainted of Treason the King shall have no wardship of any part of the Land by 32. 34. H. 8. because there is no Heire and livery must be sued in the name of the Heire but the King shall have wardship in such a case before 26. H. 8. because there was an Heire The Earle of Cumberlands Case 7. Jacobi fol. 166. E. 2. granted the Castle and Mannor of S. in taile to R. C. H. 6. granted the reversion to T. C. if the taile be good if not he grants it in possession this is good one way or other and so are many Patents from time to time Paris Stoughters Case 7. Jacobi fol. 168. BY Mandamus it was found that P. S. dyed seised 40. El. and held of the Queen in common socage 7. Jacobi a Melius inquirendum was awarded whither he held of the King by common socage or in chivalry and it is found that he held of the Queene by chivalry This Writ of Melius c. is repugnant and giveth no authority to find this office because a Tenure cannot be of the King in the time of Queene Elizabeth and therefore a new Writ shall be awarded but if the first Melius be good no other shall issue 1. For avoiding Infinitnesse 2. A Diem clausit c. shall not issue upon a Diem c. Nor Mandamus upon a Mandamus so a Melius c. shall not issue upon a Melius 3. If an Office be found against a Subject he shall have a traverse and if upon that it be found against him he hath no remedie So the King shall have but one office and a Melius and no more although that a Tenure be found of two Subjects or one hath an Ouster le maine the King shall not reseise without a Scire facias Toursons Case 8. Jacobi fol. 170. IF Tenant of the King commit Fellony Ao 1. Jaco and after is attainted Ao 3. for the same and after in Ao 4. all is found by office Now this office shall have relation to the time of the Fellony to avoid all meane alienations and incumbrencies but for the meane profits it shall have relation to the time of the Attendor for their the Kings Title appeared of Record and the like Law is of an Ideot But in case of a ward within age the King shall have the meane profits from the death of the Auncestor because he hath it by reason of his Seigniory and he looseth the rent and services in the meane time the difference is when the King seiseth jure protectionis regae or Nomine destrictionis and when Ratione Prioris recti seu tituli Sir Gerrard Fleetewoods Case 8. Jacobi fol. 171. SIr William Fleetewood receiver of the Revennues of the Court of Wards in Anno. 35. Eliz. was possessed of a Messuage and certaine Lands in Harrow in Com Mid for a tearme of yeares in Anno. 36. Eliz. he became Receiver generall and was bound in 20. Obligations of 200. l. a peece to make true account c. And after upon severall accounts he became indebted in great Summes of money to the Queene and being so indebted in consideration of 1100. l. did bargaine and sell the said Lease to James Pemberton which by meane conveyance came to Sir Gertard Fleetwood Question Whither this Lease c. was extendable and lyable to the Kings Debt c. and it was resolved that the said sale of the tearme was good against the King because the tearme was but a Chattell and the sale of Chattells after judgement Bona fide is good but not after Execution awarded And Cooke Chiefe Justice said that a Receiver or other accomptant which is indebted shall not be in worse case then a Fellon or a Traytor that may after Fellony or Treason and before conviction sell Bona fide for his
sustenance c. his Chattells eyther reall or personall Hales Case 8. Jacobi fol. 172. THe Heire Ward comes to full age and tenders his livery and bargaines and sells and dyes the interest of the King is determined and the Bargainee shall not answer for the meane profits for the Heire had done all that he could doe and no default in him otherwise if he had not tendered it Sir Henry Constables Case 8. Jacobi fol. 173. THe Sonne of the Tenant of the King is made a Knight in the life of his Father the Father dyes the Sonne within age tenders his livery by that the meane profits are saved and the King shall not have the rates within age Virgill Parkers Case 8. Jacobi fol. 173. VIrgill Parker seised of the Mannor of Fushell in fee houlden of the King in Chivalry of his Dutchie of Lancaster maketh a feoffement of the one halfe to the use of himselfe for life and after to the use of Mary Coney whom he intended to Marry for her life for her joynture and after he Married her and then Leased the other halfe to I. C. for yeares for payment of his Debts and Legacies and dyed his Heire within age Question whither the King should have the third part out of the Mannor so Leased onely or out of the whole and it was resolved that it shall be out of the whole Mannor although the estate of the Wife was precedent that is equally out of both parts The End of the Eighth Booke THE NINETH BOOK Dowmans Case 28. Eliz. Communi Banco fol. 7. An Assize pleaded THe Defendant in an Assize makes Title by a recovery suffered by P. V. to certaine uses the Plaintiffe confesseth the recovery and saith That it was to the use of the said P. in fee and traverseth that it was to the uses mentioned by the Defendant the Jury found that it was suffered as the Defendant had alleadged and that by Indenture subsequent the intent of the parties was declared by them to be as the Defendant had alleadged adjudg'd for the Defendants 1. Resolved that this subsequent Indenture directs the uses of the precedent recovery by estoppell against the Recoveree and his Heires and although that it be granted that a deede is requisit to the priviledge without impeachment of wast yet the estate without deede is good No averrment can be taken that the recovery was to other uses then are mentioned in a precedent indenture otherwise in an Indenture subsequent because if uses were declared by a precedent indenture no Declaration after shall devest them So if P. V. had charged the Land and then had made such a Declaration this shall not devest estates of grantees c. but no declaration being the uses by Declaration subsequent be devested 2. In all actions betweene all persons and in all issues the Jury may give a Verdict at large and the Statute of W. 2. cap. 30. which giveth it in Assize is but an affirmance of the Common Law but a Jury cannot find a thing impertinent to the issue The death of Sir James Dyer Chiefe Justice of the Common Pleas with an ample and memorable Encomium of him by Sir Edward Cooke c. Vivit post funera virtus Anna Bedingfeilds Case 28. Eliz fol. 15. In dower A Common essoyne is allowable in dowre and the Statute of 12. E. 2. is to be intended of an essoyne in the Kings service for the Statute saith in prorogation of the right which is properly this essoyne which is for a yeare and a day 2. If tenant of the King dyeth seized of diverse Mannors and it is found by office that he dyed seized of one in dowre brought against the Heire of full age he sueth a Circumspecti agatis this extends not to more then is in the Office for this Writ is in the nature of an ayde praier and the King hath no right to seise more then is in the Office and as to this Mannor it was objected that it shall be allowed as well as if the Heire be within age for in this Case by the Statute of Praerogat Regis cap. 4. that the Feme may be indowed in Chancery It was answered that by the Statute of Bigamis cap. 4. ayde shall not be granted of the King in that Case and therefore before the Statute of Praerogat the King nor other Lord could not indow the Feme if the Heire were of full age because he is not then Gardian and the Statute of Praerogat giveth power to the King to indow the Wife in such case if shee will and not otherwise Where the Heire pleads to Dower detinue of Charters they ought to concerne the same Land and this Plea is to be allowed because the Feme who deteineth Chartars is not worthy to have Dower and also for the privity which is betweene the Heire and her 2. The Heire ought to shew the certeinty of the Charters or that they were in a Chest 3. None but the Heire himselfe shall have this plea nor the Heire himselfe if he commeth in by purchase or if the Feme had them by his delivery nor if he comes in as Vouchee having no Lands in the same County or as Tenant by resceite because in these Cases he cannot pleade as he ought that he is ready to render Dower 4. A Gardian shall not pleade it because the Charters doe not belong unto him but he may pleade detinue of the Ward and if be be not restored unto him unmarried the Feme shall loose her Dower and after the Tenant waived this plea and pleaded Vnques accouple in loyall Matrimony and the Bishop of N. certified that they were lawfully married where upon the Demandant had judgement Case of Avowry fol. 20. IF there be Lord and Tenant by fealty and rent and the Tenant make a Lease for yeares and the Lessee hath done his fealty and paid his rent continually and yet the Lord distreineth the Beasts of the Lessee for the rent and avowed upon a meere stranger as upon his very Tenant Question whither the Lessee be without remedy for it is a position in Law that a stranger to the avowry shall not plead but Hors de son fee c. But it was resolved that the Lessee shall be releeved and he must alledge that the Lessor is seised of the Tenancy c. and the Lord shall be compelled to avow upon the Tenant and the false avowry of the Lord upon a stranger which is not very Tenant shall not hurt the Lessee against the verity of the Case Quia veritas nihil veretur nisi abscondi If one come to distreine for damage Fesant and seeth the Beasts and the owner chase them out the party may not distreine them damage feasant but is put to his Action of Trespasse for the beasts must be damage feasant at the time of the distresse taken he who distreines for services upon fresh suite may avow upon the Land by the equity of 21. H. 8. c. 19. if
truth but J.H. a Commissioner for the Plaintiffe held him strictly to the Interr so as the truth could not appeare and this was holden by the Lord Chancellour and the two Chiefe Justices the Chiefe Baron and all the Court of Starre-Chamber a great Misdemeanour c. as the Statute of Exceter saith Per quod institia veritas suffocantur and Commissioners to examine ought to be indifferent and by all meanes to express the Truth And they are not bound strictly to the Letter of the Interr but to every thing also that ariseth necessarily for manifestation of the truth Also the said J. H. when he was in Examination of Peacock went forth of the place to the Plaintiffe being in another Roome and had secret conference with him And it was holden by all the Court that a Commissioner before publication of the depositions ought not to discover to any of the parties the matter thereof nor after that he beginneth to examine Interr to conferre with the parties to take new instructions to examine further then he knew before and if he did they were great misdemeanours and punishable by Fine and Imprisonment for if such things should be suffered perjury would abound I. H. was put forth of the Commission of the Peace and the Attourney generall was required to prefer an Information against him for the said misdemeanours Doctor Husseys Case 9. Jacobi fol. 71. IN Ravishment of Ward against a Feme Covert and others they were found guilty and the Baron Non culp and the Age of the Infant above sixteene and Married Foster and Warberton a Feme Covert is within the Statute because the Action lay at the common Law and the Statute gives but greater punishment and so shee is within the Statute of Merton cap. 6. De Malefactoribus in parcis of forcible entry and redesseissin Cooke and Walmsley to the contrary the Statute of Westm 2. c. 35. hath made these alterations this extends to Heires Females which the Statute of Merton did not 2. It extends to Heires Ravished after yeares of consent so doth not the Statute of Merton 3. It extends to the Clergy the Statute of M. doth not 4. M. giveth a light of Ward this giveth ravishment of Ward 5. This giveth more speedy processe and the death of the Plaintiffe or Defendant abateth not the Writ 6. It giveth greater punishment 2. A Feme Covert is not within this Statute for it is Si haeredem maritaverit satisfacere non potuerit abjuret regnum or be perpetually imprisoned and because the Law disableth the Feme to satisfy shee shall not therefore be exiled nor perpetually imprisoned and the Baron being innocent shall not be punished for the punishment is personall and he shall not have judgement at the Common Law the Action being brought upon the Statute nor judgement upon the Statute where the Action is brought at the Common Law 3. The Verdict is insufficient because no Case is within the Statute except the Ravishor marry the Infant so that if the Infant Marry himselfe or be Married by another it is out of the Statute and the Verdict found that he was Married and did not say by whom 4. Damages shall be recovered upon this Statute and where the Statute saith that he shall be banished or perpetually imprisoned the Election is in the Court Combes Case 9. Jacobi fol. 75. Vpon a speciall Verdict A Copy-holder in fee where there is no custome to that purpose maketh two his Attorneys to surrender to the use of I. N. in fee they in Court shew the Letter of Attorney and by the said Letter of Attorney surrender 1. Resolved surrender by Letter of Attorney is good for a surrender may be by the common Law without custome and may be by Attorney as incident to it If one have a bare authority coupled with a confidence he cannot doe it by Attorney as Executors cannot sell by Attorney but if he had authority to dispose as owner of the Land he may as Cestuy que use by the Statute of 1. R. 3. but if one had particular personall power to dispose as owner of the Land he cannot doe it by Attorney as if Lessee for life had power to make Leases for 21. yeares There are personall things which cannot be done by Attorney as homage Fealty beating his Villeine admittance of him to whose use the surrender is made may be by Attorney if the Lord will and yet he may upon the admittance compell the Tenant to doe fealty A fortiori here and otherwise it would be a mischiefe for it may be he is beyond the Sea or sick and cannot be present to surrender for payment of his debts or preferment of his Children but if a custome be that an Infant may make a feoffement at 15. yeares he cannot doe it by attorney 2. The Attorneys have pursued their authority although they have not done it in the name of the Authorizor for they did shew the Letter of Attorney and surrendered by authority thereof which is all one but if it be to make a Lease by Indenture this shall be in the name of him who gave the authority but Executors must sell Land in their owne name for necessity and yet the Vendee is in by the Devisor Henry Peytoes Case 9. Jacobi Com. banco IT was resolved Per tot curiam that accord in all Actions wherein is supposed the Tort to be made Vi armis where cap. and the exigent lyeth at the Common Law is a good plea as in Trespasse and Ejectione firmae detinue of Charters house or other goods for where the certainty is to be recovered an Action is a good plea when the condition in a Deede by the Originall contracts of the parties is to pay money yet by accord and agreement betweene the parties any other thing may be given in satisfaction of the money Res per pecuniam estimatur non pecuniae per rem And in this sense the saying is true Quod pecuniae obediunt omnia Every Accord ought to be plaine perfect and compleat for if diverse things are to be observed and performed by the accord the performance of part is not sufficient 17. E. 4. 2. 6. H. 7. 10. Pl. com 5. If a man be bound in an Obligation in one hundred Quarters of Wheate upon condition to pay 58. Quarters he cannot give money or other thing in satisfaction thereof because the contract Originally was not for money but for a collaterall thing Also if the things to be performed be at a day to come tender and refusall is not sufficient without actuall satisfaction and acceptance If a man be bound in a Statute Recognizance or Obligation and after a defeasance is made to pay a lesse Summe now this Summe in the defeasance is collaterall and therefore if the Obligor render the same at the day and it be refused the Obligee shall loose the same for ever as is holden in 33. H. 6. fol. 2. and yet
life his heire shall not be in ward although he be within age by that Statute because he is not immediate heire Sondayes Case 8. Jacobi fol. 127. M. S. deviseth to his Wife for life the remainder to W. S. and if he shall have issue that then his issue shall have it the remainder to S. the remainder to T. c. Totidem verbis upon condition that if any of them or this heires of their bodies goe about to alien that he in the next remainder to enter after the death of M. W. and S. T. suffereth a common recovery to his owne use in fee he in the next remainder enters 1. Resol Every one of the Sonnes hath an estate taile 1. These words if he dye without issue Male are sufficient to create an estate taile 2. The generall clause if any of his Sons or heires of his body doe it maketh it manifest 3. The condition proveth it for they cannot alien if they have but for life for this would be a forfeiture 2. The restraint of tenant in taile to suffer a common recovery is voyd See Mildmayes Case in the sixth Book Quicks Case 9. Jacobi fol. 129. THe King Lord I. N. and Tho. Q. mesnes of a Mannor which they hold in common in Capite and tenant of three Acres holden in Chivalry T. Q. maketh a feoffment of his moity to the use of himselfe for life the remainder to I. Q. his Son in taile the tenant infeoffeth I. Q. who infeoffeth T. Q. to defraud I. N. of the wardship of his Sonne within age and dyes I. N. seiseth the Son T. Q. dyeth the King shall not have wardship of the body and moity of the three Acres 1. Resol By the death of I. Q. it was a Chattell vested in I. N. and the King had but a possibility to have it if T. Q. dye during the minority of the ward which possibility shall not devest the wardship out of I. N. 2. When the tenant infeoffeth a stranger to defraud the Lord of wardship the Lord shall not have ravishment of ward before recovery of the Land in a right of ward and although the title of I. N. be but in action yet it shall not be devested by a descent after See the Statute of 34. H. 8. in Case of collusion Bewleys Case 9. Jacobi fol. 130. THe King Lord mesne by Socage and tenant the tenant is attainted of Treason the King grants to one tenendum by Chivalry and Rent and to doe his services to other Lords the tenant shall hold by Socage of the mesne and he by Socage of the King because the intent of the King was to revive the mesnalty which cannot be by any other way and the reviving of the ancient tenure shall be in construction preferred before the reservation of a new and the honour of the King shall be preferred before his profit and there was no default in the mesne Thomas Holts Case 9. Jacobi fol. 131. GRandfather tenant in Chivalry in Capite Father and Son the Grandfather conveyeth part of his Lands to the use of the Father and his Wife the remainder to the Son in taile c. the remainder to the right heires of the Grandfather and conveys other Lands to his younger Children for life with diverse remainders over and dyeth the Father tenders livery and before he sueth it dyeth 1. Resol By the death of the Father before livery sued and after tender the King loseth the primer seisin but not meane rates if any be due 2. The Son shall not pay primer seisin nor sue livery because the Father and not he was within the Statute of 32. H. 8. 3. If the King had had one primer seisin he shall not have another of the Lands conveyed to the younger Children but that ought to be an effectuall seisin Ergo here because the King had not the effect of the primer seisin of the Father he shall have primer seisin of the Lands conveyed to the younger Children as if hee had the grant of a prochein avoidance and presents and his Clerk dyeth before Induction he shall present again and before the Statute of Donis If tenant in taile the revertion to the King had aliened post prolem suscitatam with warranty which descends upon the King it is no barr without assets the effect of the warranty 4. The King shall not have primer seisin in regard of a secke revertion which descends to the Son otherwise if a rent be reserved the King may have that for a yeare So note for a fruitlesse revertion there shall be wardship but no primer seisin Matthew Menes Case 9. Jacobi fol. 133. TEnant of the King of a Messuage in Capite who holds other Gavelkinde Land deviseth all to his 4. Sons equally 1. Whether the King shall have a third part of the Messuage onely 2. Whether out of the part of the heire onely because Praerogativa Regis cap. 1. Rex habebit c. De quocunque tenuerint c. is intended if the Land descend to the same heire to whom the Land holden did discende 1. Resolved if no Will had beene made the King shall not have the Lands holden of others in socage but when by the Will to which he is inabled by the Statute he deviseth it to his Sonnes there the saving in 32. H. 8. giveth to the King ward and primer seisin So if Lands in chivalry devisable by custome are devised to the Feme although the devisee be good for all without aide of the Statute yet the King shall have a wardship of a third part 2. The King shall have his third part out of all their Estates equally Ascoughs Case 9. Jacobi fol. 134. THe King Lord Mesne in Capite and Tenant in socage the Mesne grants to the use of himselfe for life the remainder to the Tenant in taile if the remainder suspends the Mesnalty during the life of the Mesne Resolved that during his life the Mesnalty is not suspended 1. Not as to the Mesne because he remaineth Tenant to the Lord nor by reason of the remainder for the avoâ—ding of Fractions otherwise if the remainder be liimitted in fee for then he hath as high an estate in the Mesnalty as in the Tenancy and this can never be revived and otherwise a Seigniory in fee shall issue out of a Mesnalty for life and there will be Lord and Tenant in fee and Mesne for life but if the Lord Grant his Seigniory for yeares the remainder for life to the Tenant the Mesnalty is suspended A Mesnalty or Seigniory cannot be suspended in part and in esse for part by the Act of the party but they may by act of Law or of a third party As if the Lord take a Lease of part of the Tenancy all the Seigniory is suspended but if a Gardian indow the Feme the Seigniory is in esse for that part and suspended for the residue If two Coparceners are of a Seigniory and one commeth to the Tenancy by
more uncertaine then the Charterhouse To the essence of a Corporation five things are requisite 1. Lawfull authority to incorporate and that may be foure wayes by the common Law as the King himselfe by authority of Parliament by the K. Chartar and by prescription 2. The persons either naturall or politicall 3. A name by which c. 4. A place 5. Words sufficient but not restrained to a strict forme 5. A Corporation may be without head as if the K. incorporate a Towne and give to them power to choose a Maior they are a Corporation before Election 6. It is a sufficient incorporation that there be an Hospitall potestate for the Temple was a Corporation in the time of H. 1. and yet was not built till H. 2. time but here the House was built before 7. The first Donor is in Law the Founder and when the K. giveth a name and designes the place and the persons the Founder hath nothing to doe but the Donation but if the K. leaveth the nomination to the party there many times although not of necessity he useth the words Fundo erigo c. But in truth the incorporation is made by the K. Chartar and the Founder is but an instrument 8. The Master may be at will for by the Letters Patents S. had power to name one at his will and pleasure 9. The money paid by some of the Governours in their private Capacity is good but the payment was as Governours and so they are acquitted 2. A rent was reserved which is a good consideration 3. A bargaine and sale may be upon confidence and trust 10. They may plead that they are seised In jure incorporationis although then it be not In esse In Answer to the presidents some are Explanatory some Nugatory Ex consuetudine clericorum Sir Thomas Fleming Chiefe Justice of England became sick whereof he after died so that he never argued the Case See there his severall advancements and commendations Mary Portingtons Case 11. Jacobi fol. 35. AFter many things said concerning Perpetuities in this Case it was said that a recovery in value barreth an estate taile although no recompence be had because it is by judgement as if issue in taile be barred in a formedon by warranty and assets but if the issue before judgement given alien the assets his issue shall recover the Land in taile if Tenant in taile suffer a recovery and die before Execution the issue is barred It is absurd that one may barre one of going about to suffer a recovery when he cannot bare the recovery it selfe but if such a condition had beene good a Feme Covert by that shall not loose her Land for she shall not loose her Land by any conclusion without examination upon Writ in Court and if shee acknowledge a recognizance this is void although it be with her Husband because there is no Writ to examine her if an Infant levy a fine this is voidable and shall be tried by inspection but a fine levyed by a Feme Covert is void if the Husband enter otherwise not Jennings Case 38. ElIz Banco regis fol. 43. Tenant for life suffers a common recovery in which he in remainder in taile is vouched who dyeth the reversion in fee is barred 1. Resolved that at the common Law a recovery against Tenant for life upon a true warranty and recovery in value binds him in the remainder 2. No Statute was made to provide for him who had a reversion or remainder upon an estate taile and the Statute of W. 2. c. 3. which giveth receite to a revertioner upon default of him who holds Per donum is to be intended of Tenant after possibility of issue extinct and 32. H. 8. c. 31. provides onely for a reversion or remainder upon a Lease for life 3. There have beene diverse evasions out of the Statute of 32. H. 8. as if Lessee for life Lease for yeares to one who infeoffeth one who in recovery Vouches Lessee for life this was out of the Statute because the Lessor and Lessee were put to a right whereupon 14. Eliz. c. 8. was made 4. 14. Eliz. extends not where Lessee for life vouched him in remainder in taile because it is in the power of him in remainder to dock the reversion c. and the course is that Tenant in taile bargaines and sells to one who suffers a recovery in which Tenant in taile is Vouched and yet the bargainee had but for life judgement affirmed in Error Lampets Case 10. Jacobi fol. 46. LEssee for 5000. yeares deviseth for life to one whom he makes Executor the remainder to his Sister and the Heires of her body and dyes the Sister taketh Husband they release to the Executor who demiseth for ten yeares to the Defendant the Baron dyes the Executor dyes the Feme takes another Baron who demise to the Plaintiffe judgement against the Plaintiffe 1. Resolved a devise of the use of a Tearme to one for life the remainder to another for life is good as an Executory devise 2. A devise of the tearme it selfe in such manner is good 3. The first Devisee cannot barre him who had the Executory devise 4. Assent of the Executor to the first devise is an assent for all 5. If such a devise be made to the Executor and he enter generally he shall have it as Executor 6. Such an Executory devise cannot be granted over 7. Such an Executory devise may be extinguished by release to the first devisee Object That the first devisee had all the interest in him and the other but a possibility which cannot be released as if Conisee of a Statute release his right in the Land yet he may sue Execution It was answered that a thing in Action cannot be granted to a Stranger neither by the Act of the party nor of Law but it may be released to the Terre-tenant and here to him who had the present interest 1. Because as it may be easily created being a Chattell so it may be easily determined 2. Every right as well present as future by joyning all who have interest one way or other may be extinguished so if the Executor and the Sister here had joined in an assignement this had beene good 3. When many things are requisite to the perfection of any thing the Law respects the Originall Act and here the fundamentall acts were the devise death of the devisor the assent of the Executor and death of the first devisee and shee hath a right that may be released and the death of the Executor is but a meanes to bring it into possession as a Feme Covert barreth her selfe of Dower by joyning in a Fine with her Husband but if the Baron sole levy a fine and dyeth and five yeares passe the Feme is not bound so if Tenant in ancient demesne levy a fine he had possibility to have the Land againe if the Lord bring a Writ of desceit but he may release that possibility but
Lessor shall have the Trees and Tymber for the Lessee had them onely as things annexed to the Land and he shall not have a greater interest by his tortious severance but he shall have a speciall interest in the Tymber blowne downe to build againe withall 6. The Law giveth many priviledges to a Mansion house 7. The Lessee without impeachment of wast shall have Trees which he cuts for without impeachment of wast is as much as without demand for wast done otherwise it is if it be without impeachment c. by Writ of wast 8. The priviledge of without impeachment of wast is annexed to the estate therefore if he accept a confirmation of a greater estate or assigne over it is gone 9. If Trees are blowne downe with the wind the Lessee without impeachment of wast shall have them therefore judgement given Quod querens nil caperet per billam The Case of Monopolies 44. Eliz. fol. 84. THe Queene grants to one of the Privy Chamber the sole making and importation of Cards this grant is void 1. The grant of making of Cards is void For 1. All Trades are for the publique good for the excercise of Youth in labour and therefore it cannot be appropriated to one solely 2. A Monopoly had three incidents against the weale publique 1. Raising of the price 2. The Commodity is not so well made 3. The impouerishing of poore Artificers 3. The Q. is deceived in her grant because she thought it to be for the publique good It prohibits them who have skill to make Cards and giveth License to one of the privy Chamber who had not skill and the K. cannot suppresse Cardplaying because it is not Malum in se and no Trade may be prohibited but by Parliament 2. The License of importation of Cards is void being without limmitation or stint for the Q. may dispence with the Statute of 3. E. 4. c. 4. which doth prohibit it but that ought to be with limittation Nota The K. that now is in a Booke Printed 1610. hath Published that Monopolies are against Law and commanded no Sutor to presume to move him for the granting of them But admitting the grant good in the Case at barre the Plaintiffes sole remedy had beene that which 3. E. 4. in such case giveth and that ought to be pursued and judgement entered Quod querens nil caperet per billam The Earle of Devonshires Case 4. Jacobi fol. 89. THe King reciting that decayed Munition belongs to the Master of the Ordnance grants it unto him who sells it and dyeth his Executors are chargeable to the K. 1. Resolved this cannot be claimed as fees of the Office because it was erected but in 35. H. 8. 2. The grant is void because it was upon a suggestion that it was due to him 3. Although the Testator claimes them to his owne use yet he shall be accountable to the K. for the Law will make a privity as if any man taketh the K. goods he shall be charged in an Accompt for the K. is not bound to charge any man as receivor but generally and otherwise the King may loose them by his death and although the Kings goods came not to the hands of the Testator yet he shall be charged if he were a meanes of the Kings damage and prejudice In Sir W. M. Case it was resolved That no Officer of the K. can dispose of any part of the K. treasure for the profit or honour of the K. without warrant under the great or privy Seale and after the Executors satisfied the K. for the said Munition James Baggs Case 13. Jacobi Banco regis fol. 93. In restitution 1. REsolved that to the Kings Bench authority belongs not onely to correct errors in judiciall proceedings but other errors and misdemeanours extrajuditiall tending to the Breach of the peace or oppression of the Subject 2. Causes of disfranchisement of a Cittizen ought to be acts against his duty and Oath but words against a Chiefe Magistrate are not but may be of the good behaviour and so of an attempt without an act done 2. A Cittizen cannot be disfranchised without Chartar or prescription if he be not convicted by due course of Law as if he be attainted of forgery perjury or conspiracy at the Kings suite or of any other crime whereby he becometh infamous 3. If a Cittizen is disfranchised and hath a Writ of restitution and they returne sufficient cause which is false a Writ to restore him shall not be awarded but he may have a speciall Action upon the Case 4. Such a returne ought to be certeine because the party cannot have an answer unto it and after the Court awarded a Writ to restore the said I B. and so he was accordingly FINIS These two Cases being accidentally Omitted should have come in in the beginning of the Third Report THE THIRD BOOKE Dowties Case 26. Eliz. An information in the Exchequer fol. 9. THe Duke of N. seised in fee of 5 Messuages in St. S. Parish in H in the tenure of W. G. bargaines and sells his Tenements in the Parish of St. A. in H. in the occuporation of W.G. and is attainted and Executed Queene Elizabeth grants them to I. F. if concealed the Defendant D. claimeth under that Patent against whom the Attorney informeth c. And Judgement was given for the Queene 1. Resolved nothing passeth by the bargaine and sale because the first certeinty was false otherwise it is if the first certeinty be true and the second false so the Bargainee was a disseisseresse 2. These Lands were not in the Q. by the Statute of 33. H. 8. c. 20. without Scire facias or seisure because the words of the Statute that Lands shall be in the K. without Office shall be construed as if an Office had beene found And Lands of a Disseissee attainted shall not be in the K. by Office without Scire facias or seisure also all possessions c. are saved by the said Act as if it had not beene made 3. That the Q. having but a right it doth not passe by the grant of the said five Messuages and after a speciall Office was found and a Scire facias brought against the Terretenant and judgement given and the Tenements seised into the Q. hands and she by new Letters granted them to S. and his Heires who peaceably injoyed them Sir William Harberts Case 26. Eliz. In the Exchequer in Error fol. 11. M. H. acknowledged a Recognizance of 3000. l. to the K. and dyed a Scire facias issued against his Executors haeredes terrarum c. The Sheriffe returned that he had no Executors within his Bayliwick and further that Scire fecit W. H. militi filio haeredi dicti M H. W. H. maketh default and judgement is given against him generally and he bringeth Error but upon his Petition to the Queene he was admitted to Compound with her 1. Resolved at the common Law except in speciall Cases neither Land
grant after Office and before the retorne is good ib. The Bishop must shew the cause of refusing a Clerke Page 203 The Constable may bring an Offendor to what Justice he will ib. Vpon refusall to find surety the Constable may commit him ib. Where a man shall avoid a fraudulent deed by 27. Eliz. Page 204 The Defendant pleads another Action depending for the same Page 205 Cases of By-laws Where the Inhabitants of a Towne may make By-laws and where the consent of the greater part shall bind all ib. Who are liable towards the repaires of a Church Page 207 Against a devise of Lands by writing no averrment can be received Page 208 Cases of Usury What manner of contract is Vsury Page 208 209 A demurrer is a confession of all matters in fact well pleaded Page 208 What things may be released before the day Page 209 Daggs Pistolls c. are within the Statute of 33. H. 8. c. 6. ib. The Sheriffe or his officers may carry Weapons invasive or defensive ib. One man cannot have an Action for a common nusance Page 210 If an Orphan sue for goods in the Court Christian a prohibition lyeth ib. A Deed shewed in Court remaineth there all that Terme Page 211 In the K. B. imparlances in barre are entered but not to reply ib. The Wife Tenant for life dyes the Baron is not liable for wast ib. When amends may be tendered after a distresse but not after impounding tender to the Bailiffe is not good Page 212 The Plaintiffe may pray a Deed to be entered In haec verba the same Tearme but not after ib. An action of wast lies after the death of him in remainder for life ib. Every assignee of every Lessee mediate or immediate is within 11. H. 6. c. 5. Page 213 An award must be certaine and binds none but parties Page 214 A prescription for common where it is good ib. Where a warrāty comenceth by disseissin Page 214 215 A confirmation of the Land and of the terme a diversity Page 215 Cases of Customes Where a custome binds Strangers Page 216 Where property is altered by sale in a Market Overt ib. A custome which addeth more solemnity to the Law is good ib. Who shall have the Corne upon the ground Page 216 217 Where judgement finall shall be given in Wales Page 217 Cases of Executions One in execution escapeth yet the other is liable Page 218 VVhere the Defendant is in Execution for the King he shall be also for the Plaintiffe Page 219 If a Man be in custody and another VVrit commeth to the Sheriffe he is in custody of force of the second VVrit also Page 220 A judiciall VVrit needs no returne but not so of an Elegit ib. VVhere restitution shall be after reversall of Outlarly or judgement Page 221 VVhere the Sheriffe may breake the House to make Execution Page 222 That a House is not a defence of Strangers ib. A false consideration is void as to the Queene Page 223 224 The Law findeth not an assignee in Law where one in Fact Page 224 Foure bring a Quare impedit and one releaseth it barreth onely him ib. After a Divorce issue by the second Husband legitimate Page 225 False evidence to the Grand Inquest is not within 5 Eliz. ib. Commissioners of Sewers must tax all who are in danger ib. A Quod permittat for a Nusance where it lyeth without request Page 226 227 And where against a Feoffee or assignee Page 227 Two have Title to present by turne one presents I. S. who is deprived or Merè laicus it is a turne not if the admission be void ib. Vterque taken sometimes discretive sometimes collective Page 228 The Plaintiffe cannot refuse to joine in demurrer but the King may ib. A man cannot have an Action for damage by Coines ib. None may erect a Dovehouse but the Lord of a Mannor ib. Ancient demesne is a good plea in Ejectione sirmae not in Trespasse Page 229 Excellent diversity of Learning touching Wrecke ib. When the high Admirall shall have jurisdiction Page 230 Plentifull matter touching goods wayved goods of Fellons Deodands c. Page 231 What things may be gained by usage without matter of Record ib. Rendring rent to one and his heires and to one or his heires is all one Page 232 The King by his Proclamation may make forreigne Coine currant ib. A Tender of money in bagges is a good tender Page 233 In a writ of Estrepement the Sheriffe may take posse com ib. Estrepement lyeth in wast as well before judgment as after ib. Feme Copiholder durante viduitate soweth the Lord shall have it ib. Payment of parcell before the day is satisfaction for all Page 234 Grantee of a remainder liable for arreares of a rent charge ib. Debt against one joint obligor hee cannot plead Non est factum Page 235 But hee may if the deed become void by matter Ex-post facto ib. In Indictments certainty to a certaine in generall is good ib. False Latine shall not quash an Indictment ib. In Indictments of death Percussit must be except in case of poisoning Page 236 A lense for yeares is an interest within 4 H. 7. c. 25. ib. A libell may be as well against a private man as a Magistrate ib. Non refert whether it be true or the party of good fame ib. If a man finde a Libell advise how to to preserve himselfe Page 237 Gardian in chivalrie shall have the single value of the marriage without Tender ib. The great Case De jure regis Ecclesiastico upon the Statutes of 1 Eliz. c. 1. p. 2. Touching a Deprivation by the Bishop and the Kings supremacy in Causes Ecclesiasticall Page 237 238 THE SIXTH BOOKE VVHere services shall be multiplyed apportioned or extinct Page 239 Where the parole shall demurre for nonage of the demandant and where the Tenant shall have his age much good learning Page 240 The King grants the tenancy by attainder the mesnalty is revived Page 241 The K. grants land Tenendum by a rose pro omnibus c. what Tenure Page 242 Resolutions and Diversities when a barre in one action shall be a barre in another ib. Where a Writt shall be brought by Journeyes accounts Page 243 Who are Judges in Inferiour Courts Page 244 Jointenants cannot make partition by words after 28. H. 8. c. 1. ib. A Parson deprived for Adultery which is pardoned he is restored Page 245 A Visne must be from the most certain place ib. Tenant for life and hee in remainder joyne in a lease how it inureth Page 246 Riens passa tryed where the land is not where the patent dated ib. A devise to his brother paying 20. s. he hath fee ib. A devise to Baron and Feme and their children what estate it is Page 247 Where the will is directory and where declaratory without reference to power ib. A diversity betweene a suite by Citation and an Appeale Page 248 If a Statute speaks
manner of inheritances grantable in him Page 298 VVhen the Kings Charter shall be taken to two intents good how it shall be expounded ib. A Retraxit must be in proper person and where one may appeare by Attorney Page 299 No writ of Errour lyeth after disclaimer it doth after Retraxit ib. The copiholder commeth in by custome paramount Page 300 Where seisin of a rent needeth not to be alleadged within forty yeares ib. If the Jury try an Issue they shall not try it again by new nisi prius Page 301 Where de Injuria sua propria is a good plea and where not Page 301 302 Who may certifie excommunication and when it rightly done ib. VVhen a power to make leases for 21. yeares or 3. lives rendring the ancient rent is well pursued Page 303 Baron and Feme tenants in speciall taile she is within 32. H. 8. c. 28. Page 304 To what things a condition of accruer may be annexed Page 305 Foure things requisite to an accruer ib. By purchase of part of the land in which c. common appurtenant destroyed Page 306 An authority is countermandable but then the bond is forfeited Page 307 A devise of rent out of all the Capite land is good out of 2. parts ib. VVhere one formedome lyeth upon two distinct gifts Page 308 In actions reall founded upon tort one writ lyeth upon severall Titles ib. In personall actions one may comprehend severall torts ib. The demaundant must make himselfe heire to the party last seized Page 309 A disturbance by parol is no breach of a condition Page 310 VVhere the Plaintiffe shall have judgement although his title destroyed ib. VVhat words with consideration amount to a bargaine and sale ib. An Inrollment not necessary where a chattell only passeth Page 311 VVhere a will inureth by way of executory devise ib. A man may devise an estate which he cannot doe by act executed ib. What shall be said a good awarde Page 312 Where the heire of a copy-holder beyond the seas shall be barred c. ib. Mulier prisne over the seas barred by the death of bastard eigne Page 313 What manner of services multiplyed and what extinct ib. Herriot custome by purchase of part is not extinct Page 314 What power the Censors of Physicians Colledge have ib. Where a count may be made good by the barre and that by Replication Page 316 Many things good by custome which cannot be by Charter ib. The improvement shall be employed to the former charitable uses Page 317 Nothing accompted administred but the money paid by Composition Page 318 Where the plaintiffe shall have judgement the Replication being evill ib. Fully administred pleaded the Jury find assetâ—s for part what judgement ib. The force of a Repeale and where the ordinary may commit administration Page 319 A difference where obligor is made administrator and where executor ib. A commoner in a forrest where he may enclose within the stat of 22. E. 4. c. 7. ib. If A. be in execution upon an erroneous judgement and escape and the judgement is reversed the action against the Sheriffe is gone Page 320 But if judgement and execution be against the Sheriffe before that it shall stand good against him ib. Tenant for yeares grants the next avoidance and surrenders how it worketh Page 321 Where a man abusing his License hee shall be Trespasser ab initio ib. Tender of sufficient amends for damage feasant when good Page 322 What is barred by a Release of diâ—…ctions Quarrells Suites c. ib. What Errors in a Record are amendable much good matter Page 324 325 See there ten Misprisions not yet remedied Page 326 Cases in the Court of Wards Where Collusion may be averred to defraud the King of Wardship ib. The King shall have no wardship where there is no heire Page 327 Where a Patent shall he good Quacunque via data ib. If the first Melius inquirendum be good no other shall issue Page 328 To what severall times an Office shall have relation ib. A sale of Chattells after judgement Bona is good not after Execution Page 329 A Bargaine and Sale by the heire after livery tendered is good ib. The Heire Knighted in the Life of the Father who dyeth the Heire tenders livery the mean rates are saved ib. Where the King shall have his third part out of the whole Page 330 THE NINTH BOOKE WHere a subsequent Indenture may direct uses in a precedent recovery Page 331 Where an averrment of other uses may be made ib. A common essoyne is allowable in Dower Page 332 In a Writ of Dower who may plead deteinment of Chartars Page 333 The Beasts of the Termor are distreined and an avowry made upon a meere Stranger what remedy for the Termor Page 334 No distresse for damage feasant if the Cattell be chased out ib. What ancient Franchises ought to have allowance Page 335 What priviledges are extinct if they returne to the Crowne ib. Where the Tenure and where the seisin is traversable Page 336 A difference when one Executor refuseth and when all doe Page 337 They can bring no actions before probate Page 338 What power the Ordinary hath over the goods of the intestate ib. See 21. H. 8. c. 5. touching granting administrations Page 339 The grant of the Stewardship of the Mannor of D. good without naming the County where it lyeth ib. Where such a Grantee may make a Deputy without expresse power Page 339 Where Non user is a forfeiture of an Office Page 340 What Writs Vi armis are good Causa causans and Causa causata ib. What words amount to a Release Page 341 If it appeare that the Nusans is to the damage of the Plaintiffe he needs not shew it he may abate the Nusans if he will ib. Westm 2. c. 24. extends not to the Alienee of the alienee ib. How conspirators may be punished before acquitall Page 342 Conspiracies punishable before Execution must have foure incidents ib. What Act shall be said to be a Nusans as a Lime-pit c. Page 343 What things requisite to convict a man of Libelling ib. A man needs not to shew that which lyeth not properly in his notice Page 344 Much noteable matter touching Indictments and a Serjeants duty Page 344 c. Commissioners to examine witnesses are not bound strictly to the Letter Page 346 What the duty of a Commissioner is and how he must demeane himselfe Page 347 Whither a Feme Covert be within the Sâ—… of Westm 2. c. 35. ib. What Marriage is within that Statute Page 348 A surrender made by a Copy-holder by Letter of Attorney is good ib. What authorities may be Executed by Attorney ib. VVhere the Act must be done in the name of the authorizor Page 349 VVhere an accord is a good plea and what is requisite thereunto Page 349 350 VVhat Act shall be adjudged murder Ex eventu Page 351 VVhere an Attornement shall bind an Infant ib. An action of the Case
the Lord distreine when no rent is arreare the Tenant or Lessee may make rescons and so releive himselfe The Abbot of Strata Mercella his Case 34. Eliz. fol. 23. IN a Quo warranto for claiming Waifes c. and Fellons goods c. the Defendant pleaded as to the Fellons goods that the Abbot of S. M. Licite habuit gavisus fuit them untill the Abbey was granted to the King by 27. H. 8. and pleads also 32. H. 8. c. 20. of reviving of priviledges of Abbies and that the K. granted a Mannor parcell of the Abbey tot talia tanta privilegia as the late A. had to one by whom he claimed by feoffement and pleaded not the feoffement by deede Judgement against the Defendant for the Queene it was said that the Charter of the Defendant was void 1. Because it appeares not what estate the Abbot had 2. Because the Defendant claimeth Catalla felonum appendant to a Mannor because he pleaded a feoffement of the Mannor and had not pleaded it by deed without which the priviledges doe not passe To the first the Court answered that it shall be intended a seisin in fee untill the contrary be shewed To the second no resolution but it was resolved that if the K. grant a Mannor bona catalla felonum dicto Manerio spectant these passe although they cannot be appendant But for the third exception judgement was given against the Defendant In this Case foure things worthy of consideration 1. What ancient franchises ought to have allowance as to that some may be claimed by prescription without record and some by record onely and a Charter of the latter shall not be allowed if it be before time of memory if it be not allowed within time of memory as allowance in Eyre or confirmation by the K. but usage will not serve and no more shall be allowed then are confirmed Obscure words in these ancient Charters shall be construed according to ancient usage and not according to usage at this day 2. A man may prescribe in Franchises lying in poynt of Charter with aide of allowance in Eyre without shewing the Originall Charter 3. If a Patent of priviledges whereby they are granted in fee referre to a grant made before to one for life onely this is good for the relation is to the quality and not to the quantity of the estate See there what trialls shall be allowed by Law such priviledges as are ancient flowers of the Crowne as Bona catalla felonum fugitivorum c. if these come againe to the K. they are merged in the Crowne but not those which were erected and created by the K. as Faires Markets Parkes Warren and the like Bucknalls Case 42. Eliz. Com. banco fol. 33. IF the Lord avow for other services then the Tenure is traversable if for more services of the same nature the seisin is traversable for he may incroach and it cannot be avoided in an avowry if it be not for an outragious distresse but seisin binds not in Ne injuste vexes Cessavit Assize Rescons or Trespasse but in them he shall traverse the Tenure but issue in taile successor of a Bishop c. shall avoide seisin in an avowry and every one may that can shew a deed of the tenure but none shall have a Contraformam feoffamenti but the feoffee or his Heires and incroachment hurteth not where there is no Tenure and if an incroachment be of payment at more dayes if they agree in the Sum it doth not prejudice Seisin in an avowry is not traversable generally as never seised of the services because by that meanes he leaveth no remedy to the Lord by avowry but in such a Case he shall disclaime or pleade out of his fee and so traverse the Tenure He who denyeth seisin after the limittation must first acknowledge a Tenure that the Lord may have his Writ of Customes and Services as if the Avowry be for rent fealty and suite Henslowes Case 42. Eliz fol. 36. AN Action of Debt was brought against Gage and others as Executors one of the Executors refused before the ordinary the probate and the rest of the Executors proved the Testament it was adjudged that notwithstanding that refusall he may administer the will afterwards at his pleasure for when many are named Executors and some of them refuse and other some prove the Testament those which refused may afterwards administer notwithstanding the refusall before the Ordinary but if all refuse before the Ordinary and the Ordinary commit the administration to another then they cannot prove at any time and the Executor that proveth the will ought to name every other of the Executors that refused in every action for recovery of Debts of the Testator and they may release the debts duties c. and they which refused may have an Action by survivor and after that Executors have administred and have once taken upon them the charge of the Executor-ship they cannot refuse at any time after It is holden in 2. R. 3. tit testament 4. that it is but of late times that the Church had the probate of Testaments in this Land for 't was given by an act c. and in all other Nations it is not so but in England and in many places of England the Stewards in their Courts Baron have probate of Testaments in their temporall Courts at this day Lynwood who was Deane of the Arches and writ in Anno. Dom. 1422. did confesse the probate of Testaments to belong to the Ordinaries De consuetudine Angliae non de communi jure and that in other Realms the Ordinaries have not so and in another place he affirmeth that the power of the Bishop in probate of Testaments is Per consensum regni suorum procerum ab antiquo And I have seene a Booke in Latine published 1573. by the Reverend Father Matthew Parker Arch Bishop of Canterbury who was very Learned in matters of Antiquity in these words Rex Angliae olim erat consiliorum Ecclesiasti orum praeses vindex temeritatis romanae propugnator Religi nis nec ullam habebant Episcopi authoritatem praetam eam quam à rege acceptam referebant jus testamenta probandi non habebant administrationis potestatem cuique delegare non poterant It was resolved by Littleton Newton and Danby in 7. E 4. 14. that if all the Executors refuse before the Ordinary they may prove the Testament afterwards but I think this is before the Ordinary hath committed the administration for afterwards they cannot The Executors have their Title by their Testament which is temporall But to the suing of Actions in the Kings Courts the Judges will not admit the Executors for to sue except that they shew the Testament proved under the seale of the Ordinary duely but alwayes the Kings Courts have used to allow the probate of any of the Executors to inable them all to sue actions but the probate of the Testament doth not