extend ad veritatem facti which is set forth in the Avowry but only to reputation and so both stand together well enough Rent charge parcel of a Mannoâ— And that a Rent charge may be parcel of a Manor see 22 E 3. 13. 31. E 3. 23. in the Lord Tiptofts Case where it is ruled that title made to a Rent charge as parcel of a Manor is a good title and the Assize awarded upon it and in our Case the Reputation is enforced by the sute at the Court which was also reserved upon the said Feoffment together with the said Rent so as the intent of the parties to the Feoffment was that this Rent so reserved and accompanyed with the said sute shall be esteemed a Rent service and so parcel of the Manor and as to the continuance of Reputation it sufficeth if at the time of the bargain and sale aforesaid which was 26 H 8. it was by many reputed parcel of the Manor and he cited the Case of the Marquess of Winchester The King gave to his Ancestor the Manor of Dale and all lands then antea reputed parcel of the said Manor and in a Bill of Intrusion against the said Marquess he pleaded the grant with averment that the Land then antea reputed parcel Manerii praedict And because he did not shew certainly at what time the Land was reputed parcel of the Manor Iudgment was given for the Queen for it might be for any thing in his Plea that the said Land was reputed parcel of the said Manor before time of memory which Reputation would not serve but such Reputation ought to be within time of memory and understanding He cited also the Case of the Earl of Leicester King Edward the sixth seised of the Manor of Clibery of which a Wood was parcel granted the said Wood in Fee which afterwards escheated to the King for Treason Queen Mary granted the said Wood to another in Fee who granted it to the now Queen who granted the said Manor omnes boscos modo vel ante hac cognit vel reputat ut pars membr vel parcel Maner praedict to the Earl of Leicester and it was resolved in the Exchequer that by that grant the said Wood did pass to the Earl and Iudgment was given against the Queen Dy. 362 â— for it was part of the Manor in the time of E 6. at which time an t ' hac without the word unquam shall be extended ad quoddamcunque tempus praeteritum And Reputation needs not so ancient a Pedigree for to establish it for general acceptance will produce reputation As the house of the Lord Treasurer now called Tibould was of late a private Manor but now hath a new name by which it is known and that within these twenty years which is not so long a time as we have alleged for our Reputation and would pass in a conveyance by such name so None-such But as to Reputation I conceive that Reputation is not what this or what that man thinketh Reputation quid but that which many men have said or thought who have more reason to know it quaenam est inter illos reputatio There was a Case ruled in the Exchequer 13 Eliz. in a Bill of intrusion the Case was that King Hen. 6. was seised of a Manor to which a Neif was regardant who purchased Lands which the King seised and let by Copy as parcel of the said Manor and so continued until the time of E 6. who granted the same to Allice Hardwick and all Lands Tenements reputed parcel of the said Manor And it was adjudged that the said Land so purchased by the said Neif and demised by Copy did pass by the said grant to Hardwick And afterwards the same Term the Iustices without any solemn Argument shewed their opinions in the principal Case viz. That this Rent did not pass by the bargain and sale made as above by Anthony Wingfield to Bohan father of the Avowant for here in the premisses of the Avowry is not any matter set forth importing Reputation or by which it may appear that the Rent in question was ever reputed parcel of the said Manor but rather to the contrary and the bare averment of Reputation in the conclusion of the Avowry is not sufficient to induce Reputation But if the Avowant had set forth in his Avowry any special matter to induce the Court to conceive a Reputation upon the matter of the Avowry as to shew that the Bayliffs of the said Manor had always received the said Rent as parcel of said Manor and as Bayliffs of the said Manor had accounted for it as parcel of the Manor and that the Lessees of the said Manor had enjoyed the said Rent as parcel of the said Manor the same had been good matter to induce a Reputation to have incorporated the said Rent with the said Manor and so judgment was given against the Avowant and of such opinion as was affirmed by Wray was Anderson chief Iustice of the Common Pleas and Manwood chief Baron of the Exchequer XIX Cham and Dovers Case Pasch 26 Eliz. in the Kings Bench. Ejectione firmae IN an Ejectione firmae the Case was that one Michel was seised of the Manor of D. within which diverse parcels of Land part of the said Manor where customary Tenements demised and demisable by copy c. according to the Custom of the said Manor for one two or three lives within which Manor there was a Custom scil that the Lord of the Manor for the time being might grant Copy-hold estates for life in Reversion The Lord granted such Lands for life by copy in possession took a wife and granted the same Copy-hold to a stranger in Reversion for life and died the Copy-holder in possession died the Land demised by copy is inter alia assigned to the Wife for her Dower who had Iudgment to recover in a Writ of Dower who entred and made a Lease thereof to the Defendant who entred against whom the Lessee of the Copy-holder brought Ejectione firmae Custom ad pasturandum non ad colendum and all this matter was found by Verdict and further found that every Copy-holder of the said Manor might Lease his Copy-hold for a year ad pasturandum sed non ad colendum and that the Lease made to the Plaintiff was for a year ad pasturandum 1. Cro. 469. Wells versus Partridge Post 100. Popham Attorny General of Council with the Defendant took exception to the Declaration because the Plaintiff had declared a Lease at the common Law and the Iury have found a Lease by the custom which cannot stand together And such a Verdict doth not maintain the Declaration as if the Plaintiff had declared upon a Lease for years of Lands and the Iury found a devise for years c. but the exception was disallowed by the Court. As to the matter in Law he argued that the Tenant in Dower should
at last after many motions it was resolved by all the Iustices Averment â—here superâ—luous that the Averment aforesaid was superfluous ex abundanti for it had been sufficient for the Plaintiff to have assigned the breach of the Covenant in the not repairing the Messuage without any Averment de non appunctuando and if the house in the not repairing of which the breach of Covenant is assigned was appointed to be pulled down the same shall come in on the defendants part to whose advantage it trencheth for such appointment doth discharge the Covenant as to that In the same plea it was moved in stay of Iudgment that one Sharp Solicitor of the said Sir John in the said suit had given eight shillings to the Iurors mean betwixt the Charge and their Verdict and that matter was testified by the oaths of two men upon which the Court examined the said Sharp who upon his oath denied the matter and also the Foreman of the Iury to whom the mony was supposed to be given who upon his oath denied the same And it was moved if receipt of mony by any of the Iurors should make the Verdict void and by Wray it shall not for it is but a Misdemeanor which is punishable on the person of him who takes the mony But Gawdy and Ayliff Iustices the Verdict is void See 24 E 3. 24. 14 H. 7. 1. 20 H. 7. 30. And for that cause the Iudgment was reversed XXII Cordall and Gibbons Case Pasch 26. Eliz. Intr. Trin. 25. Eliz. Rot. 492. In the Kings Bench. IN an Ejectione firmae upon not guilty pleaded the Iury found the special matter viz. that one Hierom Heydon was seised of two Messuages whereof the Action is brought and came to Cordall the Plaintiff and prayed him to send him ten pounds Cordall asked him what assureance he would give him for the re-payment of it he answered that he would mortgage to him the said two Messuages whereupon Cordall lent him the mony and afterwards they both went to the said two Houses and being before the doors of them Heydon called Tenants at will of the Houses and said to them Sirs I have borrowed of this Cordall ten pounds upon these Houses and if I pay this mony at Michaelmas next I must have my Houses again and if not then I bargain and sell these Houses to Cordall and my Will is that you become his Tenants after which Heydon put the said Cordall into the Houses and seeing him in the Houses he put in the Keys of the said Cordall by the Windows c. And it was adjudged by the whole Court that this conveyance by word of mouth was good enough to pass the estate ut supra and the words of bargain and sale in this Case are as strong as of gift and grant See 38 E 3. 11. 43 E 3. 11. 27 E 3. 62. 28 E 3. 11. XXIII Richards and Bartlets Case Pasch 26 Eliz. Intr. Mich. 25 26 Eliz. Rot. 72. In the Kings Bench. DOrothy Richards Executrix of A. her former Husband Assumpsit brought an Action upon the Case upon a promise against Humfrey Bartlet and declared that in consideration of two weighs of Corn delivered by the Testator to the Defendant he did promise to pay to the Plaintiff ten pounds to which the Defendant said that after the Assumpsit the Plaintiff in consideration that the said two weighs were drowned by Tempest and in consideration that the Defendant would pay to the Plaintiff for every twenty shillings of the said ten pounds three shillings four pence scil in toto thirty three shillings four pence did discharge the said Defendant of the said promise and averred further that he hath been always ready to pay the said sum newly agreed upon which there was a demurrer And the opinion of the whole Court was clearly with the Plaintiff first because that here his not any consideration set forth in the Bar by reason whereof the Plaintiff should discharge the defendant of this matter for no profit but damage comes to the Plaintiff by this new agreement and the Defendant is not put to any labour or charge by it therefore here is not any agreement to bind the Plaintiff See 19 H. 6. Accord 1. 9 E. 4. 13. 12 H. 7. 15. See also Onlies Case 19 Eliz. Dyer then admitting that the agreement had been sufficient yet because it is not executed it is not any Bar And afterwards Iudgment was given for the Plaintiff XXIV Lendall and Pinfolds Case Pasch 26 Eliz. In the Kings Bench. IN Trespass for breaking of his Close by Lendal against Pinfold Trespass the Case was that two brake the Close and entred and did the Trespass the Owner of the land brought an Action of Trespass against one of them and had Iudgment and execution accordingly and afterwards brought Trespass against the other Bar. 1 Cro. 667. 2 Cro. 73. 1 Cro. 30. 31. and declared upon the same Trespass And by Ayliff Iustice it is a good Bar and he likened it to the case of one Cobham who brought an Action of Trespass of Assault and Battery and recovered and had execution and afterwards brought an Appeal of Mayhem against the same person upon the same matter the said Recovery and execution is a good Bar c. so here as to the breaking of the close but not as to the Entry But by Wray it is a good Bar for the whole and he likened it to the case of Littleton Pl. 376. A Release to one of the Trespassers shall discharge both Gawdy agreed in opinion with Ayliff XXV Kempe and Hollingbrooks Case Pasch 26 Eliz. In the Exchequer IN an Ejectione firmae for Tythes the case was upon the Statute of 18. Eliz. Cap. 6. By which it is enacted that no Masters Tithea and Fellows of any Colledge in Cambridge or Oxford shall make any Lease for life or years of any Farm or of any their Lands Tenements or other Hereditaments to the which any Tythes arable Land Meadow or Pasture doth or shall appertain unless the third part at least of the accient Rent be reserved and payed in Corn for the said Colledges c. otherwise every Lease without such Reservation shall be void c. If now the said Statute shall be construed to extend to Leases of such extraordinary pecuniary Tithes which are not natural or paid in kind It was argued that the said Statute is to be intended of Tithes in kind and also of such things to be demised which render Corn Hay c. But the Tithes in London which is the thing demised in our case doth not render any such thing Tithes in London but only mony according to the decree made for payment of Tithes in London in the time of E. 6. And although the words of the Statute be other Hereditaments to the which any Tithes c. Yet the said Statute doth extend to Tithes in gross but they ought to be
the remainder to the use of John Father of the Plaintiff in tail the Grandfather died the Father entred Feoffments and by Indenture by words of bargain and sale without any words of Dedi concessi conveyed the Lands to the use of A. in Fee and in the same Indenture was a Letter of Attorney to make Livery which was made accordingly and the said A. by the said Indenture covenanted that if the said John should pay before such a day to the said A. forty shillings that then the said A. and his Heirs would stand seised c. to the use of the said John and his Heirs and if the said John did not pay c. then if the said A. did not pay to the said John within four days after ten pounds that then the said A. and his Heirs from thenceforth shall be seised to the use of the said John and his Heirs c. and the said John covenanted further by the said Indenture to make such further assurance as the Council of the said John should advise Each party failed of payment John levied a Fine to A. without any consideration it was adjudged upon this matter a good Feoffment well executed by the Livery Hob. 151. Dyer 361. a More 194. Post 195 196 197. More 35. b. notwithstanding that the words of the conveyance are only by bargain and sale and that the Covenant to be seised to the new uses upon payment and not payment being in one and the same deed should raise the use upon the contingency according to the limitation of it and Iudgment was given for the Plaintiff accordingly XXXII Bedows Case Trin. 26 Eliz. In the Kings Bench. IN an Action of Debt upon a Bill sealed against one Bedow he demanded Dyer of the Bill which was Memorandum that I John Bedow have agreed to pay to R. S. the Plaintiff twenty pounds and thereupon there was a Demurrer first that the Deed wanted the words In cujus rei testimonium c. but notwithstanding that the Court held the Deed good and said so it was lately adjudged Another matter was because the words of the contract are in the preter Tense I have agreed but notwithstanding that exception the Plaintiff had Iudgment to recover as by Wray these words dedi concessi according to the Grammatical sence imply a gift precedent but yet they are used as words of a present conveyance Iudgment was given for the Plaintiff XXXIII Marsh and Smiths Case Pasch 27. Eliz. In the Common Pleas. 1 Cro. 38. 39. GEorge Marsh brought a Replevin against Smith and Paget who make Conusans as Baylies to Ralph Bard and upon the pleading the Case was That Sir Francis Askew was seised of the Mannor of Castord in his Demesne as of Fee which Mannor did extend unto Daston North-kelsey Grants Mannor 2 Len. 41 42. South-kelsey D. and C. and had demesnes and services parcel of the said Mannor in each of the said Towns and so seised granted totum manerium suum de North-kelsey in North-kelsey to the said Bard and his Heirs and granted further all his Lands Tenements and Hereditaments in North-kelsey and to that grant the Tenants in North-kelsey did attorn And the Land in which the said Distress was taken is in North-kelsey the only question in the case was if by this grant to Ralph Bard a Mannor passed or not And the case was argued by the Iustices And Periam Iustice argued That upon this grant no Mannor passed for before the grant there was no Mannor of North-kelsey or in North-kelsey therefore no Mannor can pass but the Lands and services in North-kelsey shall pass as in gross for they were not known by a Mannor but for parcel of a Mannor And a Mannor is a thing which cannot be so easily created Mannor what it is for it is an Hereditament which doth consist of many real things and incorporated together before time of memory common reputation cannot be intended of an opinion conceived within three or four years but of long time And appendancy cannot be made presently but by a long tract of time As an Advowson in gross cannot be made by an Act appendant and the Queen her self by her Letters Patents cannot make a Mannor at this day à multo fortiori a subject cannot and the Queen cannot by her Letters Patents without an Act of Parliament annex a Mannor to the Dutchy of Lancaster which see 1 Ma. Dyer 95. And where it is usual that the Queen doth grant Lands Reputation tenendum de manerio suo de East Greenwich in communi soccagio if upon the death of such a Grantee without heir the said Land doth revert unto the Queen in point of Escheat the said Land shall not be parcel of the said Mannor for the Land was not parcel of the Mannor in truth but in reputation And he cited a case that the Lord Sturton was seised of the Mannor of Quincamore and was also seised of the Mannor of Charleton which was holden of the said Mannor of Quincamore The Lord Sturton was attainted of Felony and afterwards Queen Mary gave the said Mannor of Quincamore to Sir Walter Mildmay cum omnibus suis juribus parcellis it was adjudged that the Mannor of Charleton did pass for it is now become parcel of the Mannor of Quincamore and I grant that things which go with the Land shall pass well enough As if the Queen grant to three Coparceners of three Mannors 1 Inst 122. a 32 â—â— 6 11. the liberty of Warren in all the said three Mannors they afterwards make partition so as each Coparcener hath a Mannor and the one of them grants her Mannor the Grantee shall have Warren Grants of the King. But if the Queen grant a Leet ut supra and the Coparceners make Partition and each of them hath a Mannor she shall not have also a Leet but the Leet which was grantted doth remain in common and there shall not be there upon such partition several Leets And also I grant that in the case of two Coparceners of a Mannor if to each of them upon partition be allotted demeans and services each of them hath a Mannor for they were compellable to make partition by the common Law being in by descent See 26 H. 8. 4. 9 E. 4. 5. contrary of Ioynt-tenants for they are in by purchase and were not compellable by the common Law to make partition and therefore upon partition betwixt them a Rent cannot be reserved for the equality of the partition And in every Manor a Court is requisite for a Court Baron is incident to a Manor Court Baron but a Court cannot at this day be founded or erected but it ought to be of long time And in our Case no Court hath ever been holden in North-kelsey And if I be seised of the Manor of B. which extends into C. and B. and I grant my Manor of B. in D. now a Manor
the said Indenture covenanted with Platt that the said Platt and his Heirs should quietly enjoy the said Lands without interruption of any person or persons And afterwards certain controversies rising betwixt them concerning the said Lands Arbitrament the said Bream and Platt submitted themselves to the award and arbitrament of Sir W. Cordel to whom they were bounden severally for the performance of such award the which Sir W. amongst other things awarded that the said Platt and his Heirs should enjoy quietly the said Lands in tam amplo modo forma as the said Land is conveyed and assured by the coveyance and assurance aforesaid And the truth was that the said Bream at the time of the said Assurance was bounden in a Recognizance of six hundred pounds to one More 15. Eliz. and afterwards More 16 Eliz. sued a Sci. fac upon the said Recognizance and 18 Eliz. the bargain and sale aforesaid was made and afterwards 19 Eliz. More sued forth Excution by Elegit and the moyety of the said Land assured to Platt was delivered in Execution to More And if upon the whole matter the Arbitrament was broken was the question It was argued by Godfrey that the Plaintiff ought to be barred and first 1 Hob. 35. Mor. 175. 3 Len. 43. Post 93. Post 179 279. 1 Inst 366. a. b. 388. Dy 42. he conceived that these words in the Indenture give and grant did not help the Action for the Lands passed with a charge and the general words Dedi concessi do not extend to this collateral charge but to the direct right of the Land only but if a stranger had put out the bargainee there upon such general words an Action would lie but as the Case is they do not give any cause of Action for the Recognizance was a thing in charge at the time of the Assurance and yet see 31 E 3. Br. Warr. Chartae 33. A. enfeoffeth B. with warranty who brings a Warrantia Chartae and recovers pro loco tempore and afterwards a stranger doth recover against him a Rent charge out of the said Land and it was holden that upon the matter B. should have execution the special words of the Aribitrament upon which the Action is brought are that the said Platt and his Heirs should enjoy the said Lands in tam amplo modo forma as it was assured and conveyed to the said Platt ergo not in more ample manner 1 Cro. 660. 661. Owen Rep. 65. 2 Cro. 571. 1 Roll. 425. and the said Land was conveyed to Platt chargeable to the said Recognizance therefore if Platt enjoy it charged there is no cause of Action And as to the Covenant in the Indenture that Platt and his Heirs should enjoy quietly the said Lands without interruption of any person the same is a Collateral surety and the words of the Award are that Platt shall enjoy it in tam amplo modo forma as it is conveyed and assured by the assurance aforesaid without interruption these are not words of assurance for the assurance doth consist in the legal words of passing the estate scil bargain sale Dedi concessi and in the limitation of the estate and not in the words of the Convenant And therefore it hath been adjudged that if I. be bounden to A. in an Obligation to assure to him the Mannor of D c. if A. tender to me an Indenture of bargain and sale in which are many Covenants I am not bound upon the peril of my Bond to seal and deliver it Also here doth not appear any interruption against the Covenant in the Indenture for here is not any lawful Execution for it appeareth here that More hath sued Execution by Elegit 4 years after the Iudgment in the Scire facias in which case he shall be put to a new Scire facias for the Sheriff in this Case ought to have returned that the Conusor after the Recognizance had enfeoffed divers persons and shewed who and upon that matter returned the Conusee should have a Sci. facias against the Feoffees vide F. N. B. 266. And the Court was clear of opinion against the Plaintiff XXXV Floud and Sir John Perrotts Case Trin. 27 Eliz. In the Kings Bench. FLoud recovered against Sir John Perrot 1 Cro. 63. Post 264. 3 Len. 240. in an Action upon the Case upon a promise eighty six pounds against which Floud and Barlow affirmed a Plaint of Debt in London and attached the said moeny in the hands of the said Sir John and had execution according to the custom of London And now the said Floud sued a Scire facias against the said Sir John who appeared and pleaded the said Execution by attachment upon which Floud the Plaintiff did demur in Law And it was adjudged no plea for a duty which accrueth by matter of Record cannot be attached by the custom of London And notwithstanding that the custom of London be layed generally in aliquo debito and damages recovered are quoddam debitum as it was urged by the Council of the Defendant Yet the Law is clear that Iudgments given in the Courts of the King ought not Judgments in the Kings Courts not to be defeated by particular custom of places nor cannot by such particular customs be defeated and avoided as it was lately adjudged in a Western Case Damages were recovered the Sheriff by virtue of a Fieri facias levyed the money which one to whom the Plaintiff was endebted did attach by the custom in the hands of the Sheriff but it was adjudged the attachment was not good for the custom of attachment cannot reach upon a thing of so high a nature as a Record is the same Law of Debt upon a Recognizance and Statute c. and it was affirmed by Wray chief Iustice that upon great deliberation it was agreed by Bromley Lord Chancellor himself the Lord Anderson Mead and Periam Iustices that where a Merchant having in an Action recovered certain damages became Bankrupt upon which issued an Commission upon the Statute of 13 Eliz. of Bankrupts that such Commissioners could not entermeddle with such damages to dispose of them to the Creditors according to the said Statute But now see the Statute of 1 Jacobi The Commissioners have power to dispose of such debts c. XXXVI Sir Walter Hungerfords Case Trin. 27 Eliz. In the Kings Bench. Grants of the King. IN a Replevin by Sir Walter Hungerford the Case was this the Queen being seised of a great Waste called Ruddesdown in the Parish of Chipnam granted to the Mayor and Burgesses of Chipnam the moyety of a Yard-land in the said Waste without certainty in what part of the Waste they should have the same or the special name of the Land or how it was bounded and without any certain description of it And afterwards the Queen granted to the said Sir Walter the said Waste and afterwards the said Mayor and Burgesses by warrant of Attorney
that one Butty was seised of the Land where c. and also of a Messuage with which Messuage the said Land had been usually occupied time out of mind c. and being seised and lying sick commanded a Scridener to be brought to him and the said Scrivener being brought to him he gave him Instructions to make his Will and amongst other things declared unto him that his meaning was that the said Messuage and all his Lands in Westerfield should be sold by his Executors and the Scrivener in making of the Will penned the matter in this manner I will that my house with all the appurtenances shall be sold by my Executors Butty died the Executors sell forty acres of the said Land to the Def. and all this matter was found by special verdict and it was moved by the Plaintiffs Counsel that the sale of this Land by the Executors is not warranted by the Will Another matter was moved scil admitting that the Executors have authority by the Will to sell the Land if the sale of parcel of the Land be good and warrantable As if I make a Charter of Feoffment of ten acres and a Letter of Attorney to make livery of them to the Feoffee if the Attorney makes several liveries of the several acres the same is void But by Cook the Cases are not like for in the Case put he hath a special Commission in which the party to whom and all the other circumstances are set down certainly contrary in the Case at the Bar there the Commission is general c. and peradventure the Executors shall never find a Chapman who will contract with them for the whole More Rep. 222. Co. Inst 113. a. And afterwards upon conference amongst the Iudges Clench Gawdy and Wray it was resolved that by this devise the Lands do pass by the sale of the Executors to the Defendant which sale also by process is warranted by the Will for by Wray these words with all the appurtenances are effectual and emphatical words to enforce the devise and that doth extend to all the Lands especially because it is found that the Testator gave to the Scrivener his Instructions accordingly And afterwards Iudgment was given against the Plaintiff See 3 Eliz. Plowd 210. Betwixt Sanders and Freeman there the Devise is pleaded in this manner Messuagium cum pertinentiis ad illud spectantibus in perpetuum in villa de Arthingworth XLIII Watkins and Astwicks Case Trin. 28 Eliz. In the Kings Bench. 1 Cro. 132. IN an Ejectione firmae it was found by special verdict that one Maynard was seised and made a Feoffment in Fee upon condition of payment of mony on the part of the Feoffor by way of Mortgage at a certain day before which day the said Maynard dyed his Son and Heir being within age Tender to redeem a Mortgage afterwards at the day of payment limited by the Mortgage a stranger at the instance and request of the Mother of the Heir tendred the money to the Mortgagee in the name of the Heir being within age who refused it And it was resolved by the whole Court that the same is not a sufficient tender to redeem the Land according to the Mortgage for it is found by the Iury that the Heir at the time of the tender was within age 2 Len. 213. generally not particularly of six or ten years c. then it might well stand with the verdict that the Heir at such time was of the age of 18 or 19 years at which age he is by the Law out of the Ward of his Mother or any other prochein amy in which Case it is presumed in Law that he hath discretion to govern his own affairs and in this Case the Mother is but a stranger for the Law hath estranged the Mother from the government of the Heir but if the Iury had found that the Heir at the time of the tender was of tender age viz. within the age of fourteen years in which Case by Law he ought to be in Ward in such Case the tender had been good XLIV Leput and Wroths Case Trin. 28. Eliz. In the Kings Bench. A Replevin by Lepur against Wroth 6 Co. 33. Replevin 3 Len. 132. and declared upon a tortious taking in Burnham in the County of Essex the Case upon the pleading was that Robert Earl of Sussex was seised of the Manor of Burnham in Fee and leased the same to the King for one and twenty years and afterwards the said Earl died by which the said Manor descended to Thomas late Earl of Sussex and he being seised 4 and 5 Phil. and Mary it was Enacted by Parliament That the Lady Frances Wife of the said Earl by virtue of the said Act of Parliament should have hold and enjoy c. during the widowhood of the said Frances for and in consideration of the Ioynture of the said Frances the said Manor Provided always and it is further enacted Construction of Statutes That it should be lawful for the said Earl by his writing indented dimissionem vel dimissiones facere pro termino 21. annorum vel infra de eodem Manerio pro aliquo redditu annuali ita quod super omnes singulos hujusmodi dimissionem dimissiones antiquus redditus consuetus vel eo major amplior reservaretur and that every such demise should be of force and effectual in Law against the said Frances for term of her life if the said term should so long continue And further the said Act gave to the said Frances Distress Avowry Covenant c. against such Lessee and for the said Lessee against the said Dame And afterwards the said Thomas the said former Lease not expired leased the said Manor to Wroth the Defendant for one and twenty years to begin at the Feast of Saint Michael next following and note the Lease was made the third of April before rendring three hundred and forty pounds per annum which was redditus amplior antiquo usuali Popham Attorney general argued that the said Lease did not bind the said Lady Frances and that for two Causes 1. because it is to begin at a day to come 2. because it was made a former Lease being in esse and he argued much upon construction of Statutes to be made not according to the letter but according to the meaning of them And he cited a Case upon the Statute of 2 H 5. 3. by which it is Enacted that in no Action in which the damages do amount to forty marks any person should be admitted to pass in trayl of it who had not Lands or Tenements of the clear yearly value of forty shillings yet the said Statute shall not be by construction extended where in an Action between an English-man and an Alien the Alien prayeth medietatem linguae and yet the Statute is general So in our Case although this private Act doth not seem to provide expresly but for two
And at another day Wray said Dy. 179. that partition by Tenants in common without deed wheresoever it is made is good but in this case it appears that the parties who made the partition were in the house for they were Tenants in common of the Messuage and a close adjoyning to it and made partition that one should have the house 6 Co. 12. and the other the close so as they were not upon the close when they made the partition and then it was void for the close and if for the close then also for the house And Iudgment was given accordingly CXXXVII Cook and Songats Case Pasch 30 Eliz. In the Kings Bench. IN an Action upon the case by Cook against Songat the Plaintiff declared Quod cum quaedam Lis and controversie had been moved betwixt the Plaintiff Lord of the Manor c. and the Defendant claiming certain Lands parcel of the said Manor to hold it by copy and whereas both parties submitted themselves to the Iudgment and Arbitrament of I. S. Counsellor at Law concerning the said Land and the title of the Defendant to it The Defendant in consideration that the Plaintiff promised to the Defendant that if the said I. S. should adjudge the said Copy to be good and sufficient for the title of the Defendant that then he would suffer the Defendant to enjoy the said Land accordingly without molestation The Defendant reciprocally promised the Plaintiff that if the said I. S. should adjuge the said Copy not sufficient to maintain the title of the Defendant that then he would deliver and surrender the possession of the said Land to the Plaintiff without any sute And shewed further that I. S. had awarded the said Copy utterly insufficient c. yet the Defendant did continue the possession of the Land c. And by Godfrey here is not any consideration But by Gawdy the same is a good and sufficient consideration because it is to avoid variances and sutes And Iudgment was given for the Plaintiff CXXXVIII Pawlet and Lawrences Case Pasc 30 Eliz. In the Kings Bench. GEorge Pawlet brought an Action of Trespass against one Lawrence Parson of the Church of D. for the taking of certain Carts loaded with Corn which he claimed as a portion of Tythes in the Right of his Wife and supposed the Trespass to be done the seven and twentieth of August 29 Eliz. upon Not guilty it was given in evidence on the Defendants part that the Plaintiff delivered to him a Licence to be married bearing date the eight and twentieth of August 29 Eliz. and that he married the Plaintiff and his said Wife the same day so as the Trespass was before his title to the Tythes And it was holden by the whole Court that that matter did abate his Bill But it was holden that if the Trespass had been assigned to be committed one day after that it had been good but now it is apparent to the Court that at the time of the Trespass assigned by himself the Plaintiff had not Title and therefore the Action cannot be maintained upon that evidence for which cause the Plaintiff was Non-suit CXXXIX Sir John Braunches Case Mich. 30 Eliz. In the Kings Bench. Forfeiture IN the Case of Sir John Braunch it was said by Cook that if a Copy-holder be dwelling in a Town long distant from the Manor a general warning within the Manor is not sufficient but there ought to be to the person notice of the day when the Court shall be holden c. For his not coming in such case cannot be called a wilful refusal Copy-holder So if a man be so weak and feeble that he cannot travel without danger so if he hath a great Office c. these are good causes of excuse It was also holden that if a Copy-holder makes default at the Court and be there amerced although that the amercement be not estreated or levyed yet it is a dispensation of the forfeiture Gawdy Iustice If the Copy-holder be impotent the Lord may set a Fine upon him and if he will not pay the Fine then it is reason that he shall forfeit his Land. Egerton Sollicitor Warning to the person of the Copy-holder is not necessary for then if the Lord of a Manor hath one Copy-holder of it dwelling in Cornwal and another in York c. the Lord ought to send his Bayliff to give notice of the Court to them which should be very inconvenient and by him continual default at the Court doth amount to a wilful refusal And by the whole Court general warning within the Parish is sufficient 1 Cro. 353. 505. 506. for if the Tenant himself be not Resient upon his Copy-hold but elsewhere his Farmer may send to him notice of the Court And it was further given in evidence that Sir John Braunch had by his Letter of Attorney appointed the Son of his Farmer his Attorney to do the services for him due for his said Copy-hold And it was holden that such a person so appointed might essoin Sir John but not do the services for him for none can do the same but the Tenant himself CXL Wilkes and Persons Case Mich. 30 Eliz. In the Kings Bench. JOhn Wilkes and Margery his Wife and Thomas Persons brought Trespass Quare clausum fregit herbam suam messuit foenum suum asportavit Trespass ad damnum ipsius Johannis Margeriae Thomae And exception was taken that it was not the Hay of the Wife nor she was not damnified by it but her Husband Wray Iustice the Declaration is good enough 1 Cro. 96. Record for although it be not good for the Hay yet clausum fregit herbam messuit makes it good And Iudgment was given for the Plaintiffs CXLI Atkinson and Rolses Case Mich. 30 Eliz. In the Common Pleas. IN an Action upon the case by Atkinson against Rolfe the Plaintiff declared that the Defendant in consideration of the love which he â—ore unto A. his Father did promise that if the Plaintiff would procure a discharge of a Debt of I. S. which his said Father owed to the said I. S. that he would save the Plaintiff harmless against the said I. S. And declared further that he had discharged the Father of the Defendant from the said Debt and is become bounden to the said I. S. in an Obligation for the payment of the said Debt upon which Obligation the said I. S. hath sued the Plaintiff and hath recovered and had execution accordingly and so hath not been saved harmless c. It was objected that the Declaration was not good because the Plaintiff hath not shewed in his Declaration that he had given notice to the Defendant of the said Obligation or of the suit brought against him but that was not allowed but the Declaration was holden to be good notwithstanding the exception Shuttleworth if I be bound to make to you such an assurance as I. S. shall devise I am bound
not set down any place or time of the notification of his contentment for the same is traversable Gawdy The Issue here is non Assumpsit Assumpsit and therefore that matter is out of the Book Cook If one assume to pay twenty pounds to another upon request although the Defendant plead non Assumpsit yet if the place and time of request be not shewed Iudgment many times hath been stayed for no Action without a Request so here without notification of his contentment no Action therefore he ought to shew it Gawdy The ground of this Action is the Assumpsit but that cannot be certain without Declaration and thereof notice ought to be given to make certainty of the duty but not to enforce the promise but in our case without a Request Assumpsit will not lye But here it being but conveyance the certainty of the time and place is not necessary to be shewed but the general form shall serve for it is but inducement As if a man will plead a devise of goods to him and assent of the Executors to take them he need not to shew the time and place of the assent Gawdy at another day said that Iudgment ought to be given for the Plaintiff the Assumpsit is the ground and cause of the Action and the shewing of the contentment is only to reduce the Action to certainty And Iudgment was given for the Plaintiff CLXVIII Musket and Coles Case Trin. 30 Eliz. In the Kings Bench. WIlliam Musket brought an Action upon the Case against Cole 1 Cro. 13. and declared that in consideration that the Plaintiff had payed unto the Defendant forty shillings for the Debt of Symon his Son the Defendant promised to deliver to him omnes tales billas Obligationes in which his Son was bounden to him which thing he would not do and it was found by Verdict for the Plaintiff And it was moved for stay of Iudgment because the Plaintiff had not averred in his Declaration that the said Defendant had Bills or Obligations in which Simon his Son was bounden to the Defendant Averment for if there were none then no damage And see Onlies Case 19 Eliz. Dyer 356. D. in consideration that the Plaintiff had expended divers sums of money circa the businesses of the Defendant promised c. Exception was taken to that Declaration by Manwood and Mounson Iustices because it was not shewed in what businesses certain and betwixt what persons Gawdy The Plaintiff here is not to recover the Bills or Obligations but damages only and therefore needeth not to alledge any Bills in certain And 47 E. 3. 3. A. covenants with B. to assure unto B. and his Heirs omnia terras tenementa quas habet in such Counties and for not assurance an Action of Covenant was brought and the Plaintiff declared that the Defendant had broken the said Covenant and that he had required the Defendant to make a Feoffment unto him of all his Lands and Tenements in the said Counties and the plea was not allowed for the Land is not in demand but only damages to be recovered See also 46 E. 3. 4. and 20 E. 3. And in the principal case the Plaintiff had time enough for the shewing to the Iury what Bills or Obligations for the instructing of the Iury of the damages CLXIX English and Pellitary and Smiths Case Trin. 30 Eliz. In the Kings Bench. Assault and Battery 1 Cro. 139 140. IN an Action of Trespass of Assault and Battery and wounding The Defendants say that they were Lessees of certain Lands and the Plaintiff came to the said Lands and took certain Posts which were upon the Lands and they gently took them from him S. pleaded that he found the Plaintiff and P. contending for the said Posts and he to part them mollite put his hands upon the Plaintiff which is the same c. The Plaintiff replyed De injuriis suis propriis absque tali causa per ipsos P. S. allegat upon which issue was joyned which was found for the Plaintiff It was moved in arrest of Iudgment that here was not any issue for the Plaintiff ought severally to reply to both pleas aforesaid for here are several Causes of Iustification and his Replication absque tali causa Nomen Collectivum Post 139. Dy. 182. doth not answer to both Cook This word Causa is nomen Collectivum which may be referred to every Cause by the Defendants alledged reddendo singula singulis and their Iustifications are but one matter and the Defendants might have all joyned in one plea. Wray Both pleas depend upon one matter but are several causes for two justifie by reason of their Interest and the third for the preservation of the Peace And by him and the whole Court although it be not a good form of pleading yet by reasonable construction this word Cause shall be referred to every cause and so the pleading shall be maintained And afterwards Iudgment was given against the Plaintiff CLXX Cater and Boothes Case Trin. 30. Eliz. In the Kings Bench. Intrat Hill. 30 Rot. 58. or 581. IF a Writ of Covenant the Plaintiff declared that the Defendant by his deed bearing date the first of October 28 Eliz. did covenant that he would do every act and acts at his best endeavour to prove the Will of I. S. or otherwise Covenant that he would procure Letters of Administration by which he might convey such a Term lawfully to the Plaintiff which he had not done licet saepius requisitus c. The Defendant pleaded that he came to Doctor Drury into the Court of the Arches and there offered to prove the Will of the said I. S. but because the Wife of the said I.S. would not swear that it was the Will of her Husband they could not be received to prove it Vpon which it was demurred in Law. It was moved by Williams that the Action doth not lie for there is no time limited by the Covenant when the thing should be done by the Defendant for which he hath time during his life for as much as it is a collateral thing See 15 E. 4. 31. if there be not a Request before but admit that the Covenant had been to perform upon request Request then the Plaintiff in his Declaration ought to have shewed an express request with the place and time of it for that is traversable See 33 H. 6. 47 48. 9 E. 4. 22. Gawdy If the Covenant had been eypresly to do it upon request there the request ought to be shewed specially But when a thing upon the exposition of the Law only is to be done upon Request such Request alledged generally is good enough And by Wray the Covenantor hath not time during his life to perform this Covenant but he ought to do it upon request within convenient time but in some case a man shall have time during his life as where no benefit shall be to any of the
demanded the Rent at the Temple Church and for not payment thereof re-entred Dyer 142. Towse The re-entry of the Lessor was not lawful for by the said Reservation the Rent was not due until the twelfth day after Michaelmas for before that he cannot have an Action of Debt or distrein for it Conditions expounded liberally for the party who is to perform it and these words dierum solutionis are greatly material for conditions are odious in Law and if the words thereof be doubtful they shall be construed for the avail of him who is bound by it As in the case of 28 H. 8. 17. If I be bound to you upon condition to pay to you before the Feast of St. Thomas twenty pounds if there be in one year two Feasts of St. Thomas the latter Feast shall be my day of payment Wray This Rent is not due until the last day of the twelve days for neither debt or distress lieth for it then the day of payment mentioned in the condition ought to be the last day of the last twelve days and dict spatium shall be construed the same number of days and not the same days 4 Len. 91. And at last it was resolved and adjudged that the entry of the Lessor was not congeable but he ought to expect the latter day of the twelve days CXCIX Sir George Farmer and Brooks Case Trin. 31. Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared that time out of mind Prescription Owen 67. 1 Cro. 203. 8 Co. 125. c. there had been a Manor called Tocester and also there had been there a Town called Tocester and that all the Messuages Lands and Tenements within the said Town had been holden of the said Manor and that he is Lord of the said Manor and that he and all those whose estate he hath in the said Manor have used to have a Bake-house and a Baker to bake white bread and house bread for all the Inhabitants and Passengers there which bread hath been of a reasonable Assize and price and sufficient for all the Inhabitants and Passengers there but doth not say wholsom and that time out of mind c. no person had or used any Bake-house there but by the appointment of the said Lord of the Manor for the time being But that now the Defendant had erected a Bake-house unto the Nusance of the Plaintiff The Defendane shewed that at the time he had set up his Bake-house there were three Bakers there and shewed how that he was Apprentice to the Trade and that at the time he set up the said Bake-house for the benefit of all persons as it was lawful for him to do Morgan The matter only is if this prescription made by the Plaintiff be good or not It is to be considered if all prescriptions at the Common Law are one and if all prescriptions be guided by one rule and line And I conceive that prescription at the Common Law is but one And there are two points in prescriptions Vsage and Reasonableness but they are not guided by one line for some prescriptions are against strangers and then there ought to be consideration and recompence Some prescriptions against privies as between Lord and Tenant for there the Tenure is sufficient volenti non fit injuria For the first see 5 H. 7. 9. where in Trespass the Defendant doth justifie that the place where is his Free-hold and that he had a Foldage and that he and all those whose estate he hath c. have used that if any man depasture his Sheep with the Sheep of the Defendant for the day time that it was lawful at night to take all the Sheep and put them in his fold all the night and in the morning to put them out and the same was holden a good prescription for which the Plaintiff traversed the prescription And for the other see 11 H 7. 13 14. 21 H 7. 40. betwixt Lord and Tenant that every Tenant for every pound-breach should forfeit three pounds and see the Prior of Dunstables case 11 H. 6. 19. Br. prescription 98. The Prior declared that he and his Predecessors time out of mind c. had had a Market in D. every week one day and that Butchers and others who sold victuals should sell the same in the high street upon stalls of the Prior to them assigned and that the Prior should have one penny for every stall every day and shewed that the Defendant had sold in his house whereby the Prior had lost the advantage and profit of his stalls there And the same was holden a good prescription And on the other side the Defendant did prescribe that he and all house-holders of D. had used to sell in their houses The same was holden a naughty prescription See 43 E. 3. 5. and see also Suit ad moliendum upon prescription without tenure for peradventure he had not any Mill there before and now it is an ease to the neighbours Vide Register 105. where the Writ is Cum querens habeat ratione Dominii sui apud R. talem libertatem quod nullus in eadem villa uti debeat seu consuever Officio sine Mysterio tinctoris sine licentia ipsius querentis the same is good by way of prescription but is void by way of grant And there the Defendant is forbid to use the trade of his Dye-house whithin his Manor without his licence which appeareth upon the Writ which is in the Register which Register was made by the Iudgment and advise of the grave Iudges of the Law and there is remedy given for the like case as in the case at the Bar. And see F. B. 122. b. Sectam ad furnam and although such a manner of prescription should bind a stranger yet here our case is stronger for the Defendant is our Tenant And Hill. 15 Eliz. Rot. 166. an express Iudgment was given in such case for the Plaintiff Buckley contrary although here be a loss to the Plaintiff yet there is not a wrong as the case in 12 H. 8. 3. If I have an acre of Land adjoyning to your acre and my acre is drowned I may make a sluce to carry away the water and although that by so doing your acre is drowned yet I shall not be punished for it because it is lawful for me to make a trench in my own Land and then if it be any Nusance to you you may make a trench in your ground and so carry away the water until it come to a River or ditch See the case 11 H. 4. of Schoolmasters 200. for it is damnum absque injuria And it is against the liberty of the Common-wealth 1 Cro. 112 113. that liberty of Contracts be not free but restrained with Priviledges to one only Vide 22 H. 6. 14. If one erect a Mill neer to my Mill no Action lieth against him for it is for the use of the Kings Subjects
in such manner and form as I my self did hold the same and no otherwise Tenant for life died within the Term and he in the Reversion entred and the Lessee brought an action of Covenant Godfrey The action doth not ly for here is not any warranty for the Plaintiff is not Lessee but Assignee to whom this Warranty in Law cannot extend but admit that the Warranty doth extend to the Plaintiff yet it is now determined with the estate of the Tenant for life and so the Covenant ended with the estate See 32 H. 6. 32. by Littleton 9. Eliz. Dyer 257. Covenant And if Tenant in tail make a Lease for years ut supra and afterwards dieth without issue the Covenant is gone and after Iudgment was given against the Plaintiff CCLV. Fish Brown and Sadlers Case Intrat Mich. 29 Eliz. Rot. 606. Trin. 31. Eliz. In the Kings Bench. AN action upon the Case was brought by Fish and Brown against Sadler Hill. 29 Eliz. rot 606. and they declared Action upon the Case That they were proprietaries of certain goods which were in the possession of one A. against which A. Sadler one of the Defendants had commenced a feigned and covenous suit in the Ecclesiastical Court in the Name of one Collison to the intent to get the said goods into his possession of which the Plaintiffs having notice and to the intent that the said Plaintiffs should suffer the Defendant to recover and obtain the said goods by the said suit the Defendant did promise to the Plaintiffs to render to them a true accompt of the said goods and shewed further That by the said suit the Defend did obtain the said goods by sufferance of the Plaintiff Tanfeild It is a good consideration the Plaintiffs were not parties or Privies at the beginning of the suit it is not like Onlies Case in 19 Eliz. Dyer 355. Where in an action upon the Case Onlie declared Assumpsit and consideration That the Defendant Countess c. being a Widow had divers suits and businesses and that the Plaintiff at her request had bestowed great labour and travail and had expended circa the affairs of the said Countess 1500 l. Whereupon she promised to the Plaintiff to pay all the said expences and such a sum above for that matter which is the ground of the action is maintenance and malum prohibitum but such matter is not here for it is lawful for a man to use means to get his goods Gawdy All covins are abhorred in Law and here the Plaintiffs are privies to the wrong and therefore it cannot be any consideration Wray Although that the suit at the beginning was wrongful and covenous yet when the Plaintiffs who were owners of the said goods do assent to such proceedings now the suit is become just and lawful ab initio Corin. and so no wrong in the consideration but all the wrong is purged by the agreement If any covin be the same is between Sadler and him who is sued to whom the Plaintiffs are not privies Clench If this privity betwixt the Plaintiffs and Sadler had been before the said suit then the consideration is without any fraud Cooper Serjeant conceived here is not any good consideration upon which the Promise of the Defendant may be grounded for the Defendant hath not any benefit by it and he cited the case between Smith and Smith 25 Eliz. Egerton Here the consideration is good enough for the Plaintiffs forbear their own suit which was a hinderance unto them Clench was of opinion that the Plaintiff should not have Iudgment for that suit was begun by Sadler in the Name of Collison without his privity and therefor it was unlawful and the same was for the goods of another man which is unlawful also and then when the unlawful act is begun the illegal agreement afterwards that they shall proceed is unlawful also and therefore there cannot be any consideration and as to the covin it is not material for without that the matter is illegal enough Also the Declaration is not good in this because it is not shewed in what Court the suit did depend so as it might appear unto us that they had power to hold plea of it Gawdy agreed with Clench in the first point and also in the last and by him in the assumpsit the Plaintiff declares that a suit was depending betwixt the Defendant and another and where the Plaintiffs if they were produced might have given strong witness against the Defendant the said Defendant in consideration that the Plaintiffs would not give Testimony against him promised to give to the Plaintiff 20 l. the same consideration will not maintain this action because it is unlawful for any man to suppress testimony in any cause 1 Cro. 337. Wray Here is a consideration good enough For where Sadler should lose costs upon the first suit now upon this promise upon his account he shall be allowed the same the which is a benefit unto him and as to the shewing in what Court the suit doth depend that needs not by way of Declaration but the same shall be shewed by way of Evidence and it is not traversable and it is but inducement to the action And as to the covin that is not here for covin is always to the prejudice of a third person but so it is not here But in truth this suit was unlawful for Sadler so to sue in the Name of another and therefore it cannot be a good consideration And for that cause it was awarded Quod querens nihil capiat per billam CCLIV How and Conneys Case Trin. 31 Eliz. In the Kings Bench. Trespass 1 Cro. 159. IN an action of Trespass by How against Conney the case was That one Smith was seised of two houses and leased one of them to his Brother for life and afterwards by his Will devised viz. I give to my Executors All my Lands and Tenements free and copy to hold to them and they to take the profits of them for ten years and afterwards to sell the said Lands and Tenements and afterwards died his Brother died before the quarter of a year after and it was found That the Executors entred into the house undemised and took the profits but not into the other and that at the end of the said ten years they sold the whole Godfrey The house only which was in possession shall pass by the Will. To hold unto them doth imply matter of possession so as nothing passeth but that whereof they may take the profits the which cannot be of a bare Reversion also by this devise the Executors have not interest in the thing devised but for ten years Plow 66. Shop 437. whereas the Brother of the Testator had an estate for life which by possibility might continue above twenty years and to prove that the meaning of the devisor to be collected upon the words of the Will ought to direct the construction of the
hoc that he was indebted to the Plaintiff antea vel post the said day aliquo modo upon which the Plaintiff did demur It was argued that the Traverse was not good for the consideration in Assumpsit is not traversable because it is but conveyance and amounts to the general Issue as in debt upon the sale of a Horse it is no Plea for the Defendant to say that no such Horse was sold to him Patridge If the conveyance be the ground of the Suit it is traversable an Action upon the Case against an Hostler it is a good Plea that he is not an Hostler 2 H. 4 7. See 26 H. 8. Br. Traverse 341. In an Action upon the Case the Plaintiff declared that whereas the Defendant habuit ex deliberatione of the Plaintiff certain goods the said Defendant in consideration of ten shillings Assumpsit eidem querenti promisit salvo Custodire c. Non habuit ex deliberatione is a good Plea. Godfrey The Defendant doth not answer the point of our Action which is the Assumpsit but only by way of Argument 11 E. 4. 4. In Trespass upon the Statute of 5 R. 2. by the Master of a Colledge and his confreers the Defendant doth justifie by reason of a Lease made by a Predecessor of the Plaintiff and his Confreers by their Deed under their Common Seal the Plaintiff Replicando saith That at the time of the making of the Lease there was no such Colledge and it was holden no Plea for it is no answer but by Argument Gawdy Iustice In all cases where the Defendant may wage his Law there the conveyance is traversable Wray The cause of the Action is the Assumpsit therefore the consideration is not traversable for it is not the point with which the Plaintiff is charged And it is common here that the Declaration in such Action upon the Case Traverse in consideration of divers sums of money without any more certainty is good which should not be good if the consideration were traversable but the consideration is to be given in Evidence and it is also common that in an Action upon the Case in Trover and Conversion the Trover is not traversable for the Conversion is the point of the Action Fenner Iustice The debt here is no cause of the Action but only the Assumpsit In debt upon Arbitrament the Arbitrament is traversable So in debt for Rent upon a Demise the Demise is traversable Antea 189. for the Arbitrament and Demise is the cause and ground of the Action At another day it was moved again and Gawdy mutata opinione said that consideration Executory is traversable As where one in consideration that he may marry my Daughter or of service promiseth to pay the same consideration is traversable contrary of a Consideration executed And afterwards Iudgment was given for the Plaintiff CCCXLI Estons Case Trin. 33 Eliz. In the Court of Wards ESton was seised of Lands in Fee holden of the King in chief 1 Cro. 243. and took a Wife seised of other Lands holden in Socage they have Inne and the Husband dieth and afterwards the Wife dieth Owen Serjeant conceived That the Queen should not have the Wardship of the Land of the Wife or the primer seisin of it And if the Husband had survived his Wife being Tenant by the Curtesie the Queen should not have Primer seisin of it after his decease Wray If the Father be seised of Lands holden in Soccage and the Mother of Lands holded in Knights service and the Husband over-lives his Wife being Tenant by the Curtesie the King shall have all Anderson denied that and he conceived That the opinion of Stamford is not Law and yet see 13 H. 4. 278. Where the Father is seised of Lands in chief and the Mother of other and the Father dieth and afterwards the Mother dieth both shall be in ward And it was said That if there be Grandfather Father and Son and the Father dieth seised of Lands holden in Socage and afterwards the Grandfather dieth seised of Lands in Knights service the Lands in Socage shall not be in ward Anderson held strongly That the Queen should have Primer seisin of the Lands of the Mother Wray contrary Quaere CCCXLII Ellis Hartops Case Trin. 33 Eliz. In the Court of Wards ELlis Hartop was seised of divers Lands whereof part was holden of the King in Knights service and devised two parts thereof to W. Denham and his Heirs to the use of T. his brother and his wife and afterwards to the use of the said T. and his Heirs males T. died in the life of the Devisor and afterwards a Son is born First it was agreed that a Devise might be to the use of another Then when Cesty que use dyeth in the life of the Devisor the Devisee shall take it and when a Son is born it shall go to him But if the use be void then the Devisee shall have it to his own use for every devise doth imply a consideration Coke was of opinion That the Son takes by descent when Cestuy que use to whom Land is devised doth refuse the use the Devisee cannot take it for he shall not have it to his own use for if the use be void the devise is also void And the use is void for Cestuy que use died in the life of the Devisor which see Bret and Rygdens case A man seised of three Acres bargains and sells one of them without shewing which and that before the Statute of 27 H. 8. The Bargainee dyeth before Election no Election descends to the Heir for then he should be a Purchasor And by Wray and Anderson The devise is void and it is all one with Brett and Rigdens case And by Anderson a man deviseth Lands to the use of one which use by possibility is good and by possibility not good If afterwards Cestuy que use cannot take the Devise shall be to the use of the Devisor and his Heirs CCCLXIII Weston and Garmons Case Trin. 33. Eliz. In the Kings Bench. Assize 1 Cro. 226. ASsize was brought of a Rent of fifty pounds per annum and the Plaintiff made his plaint to be disseised of his Free-hold in H. E. and H. W And shewed that John Vaughan and Amy his Wife who before was the wife of one Weston and Mother of Sir Henry Weston the Plaintiff in the Assize was seised of the said Manors of H.W. and H.E. lying in Barton and Kinton in Fee. And 18 Eliz. a Fine was levied betwixt Robert Vaughan and Miles Whitney Complainants and the said John Vaughan and Amy his Wife and Francis their Son Deforceants of the said two Manors inter alia per nomen of the Manors of H.E. and H.W. and of fifty Messuages three hundred Acres of Lands two hundred Acres of Meadow cum pertinentiis in the said Towns by which Fine the said Deforceants did acknowledge the right of the said Manors and Tenements to be
afterwards that this murder is dispunishable notwithstanding the Statute of 2 Ed. 6. CCCLXIV The Queen and Braybrooks Case Pasch 25 Eliz. In the Kings Bench. 3 Co. 1 2 c. THe Queen brought a Writ of Error against Braybrook The Case was this That King Ed. 4. was seised of the Manor of Marston and gave the same to Lionel Lord Norris and A.M. and the Heirs of the body of the Lord the Remainder to H. Norris in Tail L and A. entermarry L. suffered a common Recovery against himself only without naming the said A. Hen. Norris is attainted of high Treason by Act of Parliament and by the same Act all his Lands Tenements Hereditaments Rights Conditions c. the day of the Treason committed or ever after c. Hen. Norris is executed Lionel dieth without issue the Queen falsified the said Recovery for one moiety by Scire facias because Anne who was joint-tenant with Lionel was not named party to the said Recovery and afterwards the Queen granted to the Lord Norris Son of the said Hen. Norris Manerium suum de Merston omnia jura in eodem and now upon the said Recovery the Queen brought a Writ of Error and it was argued by Egerton the Queens Sollicitor that this right to a Writ of Error is such a right as is transferred to the Queen by the Act of Parliament for the words are omnia jura sua quaecunque and here is a right although not a present right yet a right although in futuro so it is a right of some quality as A. Tenant in Tail the Remainder in Tail to B.A. makes a Feoffment in Fee B. is attainted of high Treason and by such Act all his Lands c. given to the King. A. dieth without issue the Queen shall have a Formedon in the Remainder and although the Queen hath granted to the Lord Norris Manerium suum de Merston omnia jura in eodem yet by such general words a Writ of Error doth not pass which See 32 H. 8. Br. Patents 98. And also this Action rests in privity of record and cannot be displaced from thence but by Act of Parliament see Br. Chose in Action 14. 33 H. 8. for when the King will grant a thing in Action he ought in his Patent to recite all the circumstances of the matter as the Right and how it became a Right and because the Queen here doth not make mention of this Right as of the Entail the Recovery and the Attainder for that cause the Right doth not pass The Case betwixt Cromer and Cranmer 8 Eliz the Disseisee was attainted of Treason the Queen granted to the Heir of the Disseisee all the Right which came unto her by the Attainder of his Ancestor nothing passed Causa qua supra And always where the King grants any thing which he cannot grant but as King that such a grant without special words is to no purpose Coke contrary he agreed the Case put by Egerton for at the time of the Attainder B. had a Right of Remainder but in our Case Hen. Norris had not any Right but a possibility of a Right of Action i.e. a Writ of Error And he said that this Writ of Error is not forfeitable for it is an Action which rests in privity no more than a condition in gross as a Feoffment in Fee is made upon condition of the party of the Feoffor who is attainted ut supra This word Right in the Act of Attainder shall not transfer this Condition to the Queen and of the Act of Attainder to Hen. Norris it is to be conceived That the makers of the Act did not intend that by the word Right every right of any manner or quality whatsoever should pass to carry a Condition to the Queen and therefore we ought to conceive that the makers of the Act did not intend to touch Rights which rested in privity And as to the Grant of the Queen to the Lord Norris of the Mannor of Merston Et omnia jura sua in eodem he conceived that thereby the Right of the Writ of Error did pass for it is not like Cranmers Case but if in the said Case the Land it self had been set down in the Grant it had been good enough as that Cranmer being seised in Fee of the Manor of D. was there of disseised and so being disseised was attainted of high Treason now the Queen grants to his Heirs totum jus suum in his Manor of D c. and so in our Case the Queen hath granted to the Lord Norris Manerium suum de Merston omnia jura sua in eodem c. at another day it was moved by Plowden that this Right of Writ of Error was not transferred to the Queen by the Act but such Right might be saved to a stranger c. the words of the Act are omnia jura sua and this word sua is Pronomen possessionis by which it is to be conceived that no Right should pass but that which was a present Right as a Right in possession but this Right to a Writ of Error was not in Hen. Norris at the time of his Attainder but it was wholly in him against whom the erroneous Iudgment was had and therefore if in a Praecipe quod reddat the Tenant vouch and loseth and Iudgment is given and before Execution the Tenant is attainted by Act of Parliament by words ut supra and afterwards he is pardoned the Demandant sueth for Execution against the Tenant now notwithstanding this Attainder the Tenant may sue Execution against the Vouchee and afterwards Wray chief Iustice openly declared in Court the opinion of himself and all his companions Iustices and also of all the other Iustices to be That by this Act of Parliament by which all Lands Tenements Hereditaments and all Rights of any manner and quality whatsoever Henry Norris had the day of his Attainder or ever after Lionel then being alive and over-living the said Hen. Norris that this Writ of Error was not transferred to the Queen And that the said Act by the words aforesaid could not convey to the King this possibility of right for at the time of the Attainder the Right of the Writ of Error was in Lyonel and Hen. during the estate tail limited to Lyonell had not to do with the Land nor any matter concerning it And Iudgment was given accordingly And it was holden That he in the Reversion or Remainder upon an Estate tail might have a Writ of Error by the common Law upon a Recovery had against Tenant in tail in Reversion CCCLXV Mich. 25 26. Eliz. In the common Pleas. Copy-holder IN Trespass brought by a Copy-holder against the Lord for cutting down and carrying away his Trees c. It was found by special Verdict That the place where c. was Customary lands of the Plaintiffs holden of the Defendant and that the Trees whereof c. were Chery Trees de
Lands within the said Town every second year left their Lands to lye fresh and untilled and prescribed further that the Tenants of the Lands within the said Town might erect Herdals in in their Lands with the Licence of the Lord of the said Manor and not otherwise and further declared that the said Bedingfield had let to him the said Manor and that the Defendant had erected Herdals upon his Lands without Licence so as the profit of his Foldage is impaired by it And all this matter was found by Verdict And it was objected in stay of Iudgment that the prescription is not good for it is against Law and common right to abridge the Subject of the profits of his Lands But the whole Court was clear of opinion that the prescription is good enough as 15 E 2. Prescription 51. Prescription to have common appendant in other Land afte that the Hay is cut and v E. 1. Prescription 55. A. seised of Lands may Plow it and Sow it and cut and carry away the Corn and afterwards when the Corn is carried B. by prescription may have the said Land as his several and the other who sowed it cannot meddle with that land but to plow and sow it in season c. And the Cattel cannot eat and pasture in the Land when they come to plow or sow it or to carry it away nor have any profit but the Corn and yet the Free-hold of the Land is in such person c. and that was holden a good Prescription and a difference was taken by the Court where one doth prescribe to take away the whole interest of the Owner of the Land and where a particular profit is restrained And here this prescription doth not extend but to restrain the Ter-tenant to erect Herdals which is a reasonable prescription See 1 H 7 24. The Lord of the Town doth prescribe to have free Foldage of the Beasts of his Tenants in D. and see there that libera Falda is not any other but to hav the Beasts of the Tenants to manure the lands of the Lord c. And afterwards Punsany the Plaintiff had Iudgment to recover XVI Mich. 25 26 Eliz. at Serjeants Inn. IN the Dutchy Chamber the case was that King E 6. leased for years certain lands parcel of his Dutchy of Lancaster rendring rent with clause of re-entry and that a lease was made to one Bunny It was found by Office that the Rent was arrear and by another Office that the Servant of the said Lessee had tendred the rent in his absence and by the commandment of his Master and that afterwards one I. S. Receiver General of the Dutchy received the said Rent and had accounted for it and upon his account it was allowed And this matter was opened at Serjeants Inn in Fleet-street before Wray Anderson Manwood Clench Rhodes Plowden and Stanhop and it was argued by Shuttleworth that in this case of rent reserved upon a Lease for years made by the King of Dutchy-Land The King not bound to demand Rent the King is not bound to demand it but he may for default of payment of it re-enter without demand and that the Lessee is tied to tender it at his peril as well as if the Queen had been seised of the said land in the right of her Crown and as to that payment the Statute of 1 H 4. is to be considered by which it is enacted that the possessions of the said Dutchy Taliter tali modo per tales officiarios ministros in omnibus remaneant deducantur gubernentur sicut remanere deduci gubernari debuissent si ad culmen Regis Dignitatis assumpti non fuissemus and these words ought to be intended of things which concern the Lands themselves but this Act of demand is a personal thing and concerns the person of the King and toucheth the Majesty and dignity of the King and in all cases of the Dutchy the person of the King shall hold his priviledge notwithstanding that the possession of the Land be carried in the course of a private person And therefore if the Queen will alien Lands parcel of her Dutchy she ought to make Livery for now she meddles with the possession it self but if the Queen will sue for parcel of her Dutchy non omittas shall be in the Writ for she cannot sue but as Queen and the Queen hath such Prerogative that none shall execute her Writs at her own sute but the Officer of the Crown 21 E 4. 60. for Livery if it be not Land within the County Palatine and for the residue See 10 H. 4. 7. 3. Eliz. 216 217. Plowden Lessee for years of Lands of the Dutchy shall have aid of the King before Issue joyned c. And if the King make a Feoffment of Lands of his Dutchy out of the County Palatine to hold of him in Capite the Feoffee shall hold it so and a Feoffment of such Lands upon condition that the Feoffee shall not alien is a good condition and Lapses shall not bind the Queen in case of an Advowson which the Queen hath in the right of the Dutchy and if the Villain of the Queen in the right of the Dutchy purchaseth Lands in Fee and aliens yet the Queen shall seise and that hath been adjudged in the Exchequer Chamber and if the Queen make a Lease of such Land and afterwards makes another Lease of the same Land without recital of the first Lease it hath been adjudged that the second Lease is void It was argued contrary by Beamount the younger that this condition which goeth to the realty to reduce the Land again ought to be ordered and governed by the Queen as it ought to be by a Subject and therefore if the Queen will take advantage of this condition she ought to make a Letter of Attorney under the Dutchy Seal to her own Officer authorizing him thereby to make demand of the said Rent c. And by Shuttleworth here be two Offices the one contrary to the other the best shall be taken for the Queen 14 E 4. 5. in Skreens Case in the end of it And if the Rent of the Kings Farmor be behind now although that after the Receivor of the Dutchy doth receive it yet the same doth not purge the forfeiture as if the Bayliffs of a Manor receive rent of a new Feoffee the same will not change the Avowry of the Lord without notice given to him 41 E 3. 26. And if a Copy-hold escheat the Steward without a special Warrant cannot grant it over de novo XVI Rearsbie and Rearsbies Case Intrat Trinit 25 Eliz. rot 746. Mich. 25 and 26 Eliz. in the Kings Bench. REplevin by W. Rearsbie against A. Rearsbie and L. Rearsbie who avow the distress because that one W. Vavasour was seised of the Manor of Deniby whereof the place where c. is parcel in his Demesne as of Fee and so seised gave the said Manor to
such Tithes which are of such nature as Tithe-corn and Tith-hay And Manwood chief Baron held clearly that the Lease of these Tithes is good enough notwithstanding the defect by the special Reservation which is limited and appointed by the Statute and so by him a Lease of a House Rent Mill Ferry c. are out of the said Statute And as to the Tithes notwithstanding the words of the Statute are general any Tithes yet he conceived the Statute ought to be intended of Tithes of common Right and not of such customary Tithes as those of London are and therefore if all the Parishoners prescribe in modo Decimandi scil to pay a certain sum of mony for all manner of Tithes upon demise of such a Rectory such special Reservation is not necessary for these are Tithes against common Right and no Tithes are within the purview of the said Statute but those which are annual and therefore a Lease of Tithe-wood is out of the meaning of this Statute for non renovantur in annum and he said that upon a Lease of the Tithes of Chery Trees a rent ought to be reserved according to the Statute and the Farmer may bring his Cheries to the Market and buy Corn. Shute Iustice contrary for the words of the Statute are general And note that this Lease was of the Rectory of Saint Lawrence in the City of London There was another matter moved in this case because the lease whereof the Action is brought was made by the name of Master or Guardian and the Fellows whereas the true name of their Colledge is Master and Fellows Misnosmer And it was argued by Atkinson that the same is not such a Misnosmer which makes the Lease void for sive custos are words of surplusage v. 7 H. 6. 13. And also the case of the Cooks 20 Eliz. Plow 531. The Corporation was by the name of Masters or Governors and Comonalty mysterii coquorum c. And they made a conveyance by the name of Masters or Governors and Comunalty artis sive Mysterii c. the same is no such Misnosmer as shall make void the conveyance for Art and Mistery are both of one sense XXVI Harvey and Harveys Case Pasch 26 Eliz. In the Kings Bench. Consultation CLare Harvey one of the Daughters of Sir James Harvy Alderman of London Libelled in the Spiritual Court against Sebastin Harvy Son and Executor of the said Sir James for a Legacy bequeathed to her by her Father Sebastian did not appear for which he was excommunicated and taken by a Writ of excommunicat capiendo and imprisoned and afterwards he came into this Court and surmised to the Court That the said Sir James in his life had given to the said Sebastian all his Goods and Chattells and was also bound unto the said Sebastian in a Statute-staple of two thousand pounds whereupon he had prohibition and now the Plaintiffs counsel prayed a Consultation quatenus non agitur ad validitatem facti aut Statuti And Egerton Solicitor of Counsel with the Plaintiff cited a Iudgment given in the like Case betwixt Lodge and Luddington where such a special Consultation was granted But Wray put a difference betwixt the said Case and the Case at Bar for here in this Case is a gift by the Testator himself but in the Case cited the gift was by the Executor and also here is a Statute of two thousand pounds in which Case the Obligations which could not pass by the deed shalll be subject to the said Statute XXVII The Duke of Northumberlands Case Trin. 26 Eliz. In the Exchequer THe late Duke of Northumberland seised of five Messuages in the Parish of St. Sepulchres London in the Tenure of W. Gardiner Bargain and sale 3 Co. 9. by deed intented and enrolled for money bargained and sold to I. L. all his Tenements situate in the Parish of St. Andrews in Holborn in the Tenure of W. Gardiner to have to the said I. L. for life the remainder to K. his Daughter in Fee. Atkinson The bargain and sale is void by reason of the Misnosmer of the Parish notwithstanding the truth of the Tenure for by the grant and bargain and sale of all his Tenements in the Parish of St. Andrews nothing passeth and the truth of the Tenure subsequent shall not help it And by Manwood chief Baron the sale is utterly void for the falsity doth preceed the truth and certainty And it was argued that I. L. entring by colour of the same bargain and sale is a disseisor as the Case is betwixt Croft and Howel 20. Eliz. Com. 537. Yet if he was but Tenant at Will when he made the Lease for years the same was a Disseisin to the said Duke and then the Duke being disseised he is attainted of treason 10. Mariae And now we are to see what things accrue to the Queen by the said Attainder and as to that it was said that at the Common Law a Right of Entry should Escheat but not without office found thereof no more than Lands in possession And by the Statute of 26 H. 8. it is enacted that every person attainted of high treason shall forfeit all his Lands and Tenements which he had of any estate of Inheritance by which Statute a Bishop Abbot or Tenant in tayl in such Case shall forfeit even without Office But in the Statute of 33 H. 8. there is a saving to every other person all such right possession so as in that Case by that Statute the King shall not be in possession without Office but shall have a right but cannot enter before Office or after And he is to have Sci. facias against him who hath the possession and he shall make his defence as well as he can and the words of the said Statute That the King shall be in actual possession shall not be construed to extend to an actual and absolute possession but such a possession only which he had at the Common Law after Office found so as the Statute doth not give to the King a larger possession but an easier without the circumstance of an Office And of that opinion was Manwood chief Baron and Shute second Baron And then it was moved further by Cook because that the Quen by the Attainder hath but a Right and the Queen makes the grant of the Messuages themselves the same grant is void And he granted that the Queen might grant a real Action and a Right of Entry but such a grant ought to be conceived in special words as to say That the Duke of Northumberland was seised of five Messuages and by such a one disseised and after the Duke was attainted and so granted for the Queen may grant such a Right by reason of her Prerogative and therefore the same ought to be granted by special words as in the Case of Mynes in the Commentaries and according to that was the opinion of the Iustices in Cromers Case 8 Eliz. which Case see
prohibition And the Court upon the first Motion conceived a prohibition should pass for if the grant be without deed nothing passed and then hath not Withy cause to claim these Tithes against the said Saunders And notwithstanding that Tithes are quodam modo spiritual things and so demandable in a Court of that nature yet now in divers respects they are become a Lay-fee and lay-things for a Writ of Assise of Mortdauncester and an Assise of novel disseisin lyes of them and a Fine may be levyed of them But it hath been doubted whether Tithes be devisable by Will But at another day the matter was moved and the Court was clear of opinion that a Consultation should be awarded for whether Withy hath right or not right to these Tithes Saunders of common right ought to pay his Tithes and he ought to sever them from the nine parts and whosoever takes them whether he hath right to them or no right Saunders is discharged But Saunders may prescribe in modo decimandi without making mention of any severance and may surmise that the Tithes do belong to I. S. with whom he hath compounded to pay such a sum for all Tithes and afterwards a Consultation was awarded XXX Stacy and Carters Case Trin. 26 Eliz. in the Kings Bench. STacy brought an Action of Trespass for breaking his Close against Walter Carter And declared of a Trespass in Somers-Land in Tunbridge The Defendant pleaded that heretofore he himself brought an Assise of Novel disseisin against the now Plaintiff and supposed himself to be disseised of his Free-hold in Lee juxta Tunbridge and the Land where the Trespass supposed to be done was put in view to the Recognitors of the said Assise and further averred that the Land where c. and the Land then put in view is one and the same c. upon which there was a Demurrer Exception was taken to the form of the Demurrer because in the perclose and conclusion of the Demurrer these words are omitted Averment Et hoc paratus est verificare But as to that it was said by the Court that the Demurrer was well enough with or without such Averment in the conclusion of it which see oftentimes in the Commentaries c. and in the Book of Entries 146. the greater part of the Demurrers have not any such conclusion Another Exception was taken to the bar because the Defendant pleads that heretofore Walter Carter had brought an Assise against the now Plaintiff c. and that the Land put in view to the Recognitors of the Assise per praefatum Warrhamum Carter c. and the Land where c. is all one c. here is Warrhamum for Walterum and notwithstanding that it was after demurrer and not after verdict it was adjudged amendable and as to the matter of the bar it was said by the Defendants Council that recovery of Lands in one Town by Praecipe quod reddat is not a bar for Lands in another Town but where the recovery is by Assise it is otherwise for there the Plaint is general De lib. ten̄to and the Plaintiff shall recover per visum Juratorum and the view is the warrant of the Iudgment and Execution And therefore if a recovery in an Assise be pleaded in bar Not comprised is not any Plea against it as in the Case of recoveries upon a Praecipe quod reddat but not put in view and so not comprised c. which proves that the Record doth not guid the recovery but the view of the Iurors See 26 E 3. 2. Assise brought of Lands in D. the Tenant saith that he holdeth the said Lands put in view joyntly with A. not named in the Writ c. and sheweth the deed of Ioynt-tenancy which speaks of Tenements in B. and the plea holdeth good because he alledgeth the Ioynt-tenancy and the Lands put in view See 24 E 3. It was said on the Plaintiffs side that recovery in Lee juxta Tunbridge could not extend to Lands in Tunbridge no more than a recovery of Lands in one County can extend to Lands in another County See 23 E 3. 16. Assise of Novel disseisin brought of Lands in N. the Defendant pleads recovery in Assise c. brought before by him against the now Plaintiff of Lands in H. and the same Lands put then and now in view and adjudged no bar See also 16 E 3. 16. in an Assise of Tenements in W. the Tenant pleads a Recovery of the same Lands agaist one A. by Assise brought of Tenements in C. which was found by the Assise and that C. is a Hamlet of W. and the Plaintiff notwithstanding that recovery so pleaded had Iudgment for a recovery of Lands in one Town shall not be a bar in an Assise of Lands in another Town See Br. Tit. Iudgment 66. 10 E 3. And the whole Court was clear of opinion that the plea in bar was not good for in the Assise which is pleaded in bar in the principal Case the Tenant there who is now Plaintiff in this Action of Trespass pleaded Nul tort nul disseisin which is no plea as to the Free-hold in Lee juxta Tunbridge and therefore it cannot be like to the Case which hath been put of 26 E 3. for there the Tenant pleaded that he held the said Lands put in view joyntly for there he agreeth with the Plaintiff in the Lands demanded the which Lands are put in view but if in the Case at bar the Defendant being Plaintiff in the Assise the now Plaintiff being then Tenant had pleaded to the Land put in view in bar and the Plaintiff in the Assise had recovered now in this Action of Trespass the Plantiff in the Assise being Defendant in the Action of Trespass might well plead this Recovery in bar for by his plea in the Assise he hath tyed himself to the view and to the Land put in view but it is not so in the Case at Bar where the Tenant in the Assise pleads nul tort nul disseisin for there he doth not plead expresly to the Land put in view but to the supposal of the Plaintiff sc de libero tenemento in Lee juxta Tunbridge afterwards Wray with the assent of the other Iustices awarded that the Plaintiff should recover his damages See by Wray 44 E 3. 45. in Assise of Tenements in B. the Plaintiff pleads that he himself brought an Assise of the same Tenements and his plaint was of Tenements in E. and the same Tenements put in view and recovered and holden a good Plea because the Tenant hath said that the same Tenements were put in view and that took by Assise upon which the Plaintiff said not put in view and so not comprised XXXI Benicombe and Parkers Case Trin. 26. Eliz. In the Kings Bench. IN an Action of Trespass the Iury found this special matter that the Grandfather of the Plaintiff was seised and made a Feoffment to the use of himself for life
the Obligation which was made for the further assurance of the duty And here the Defendant ought to have pleaded the tender and see 14. E. 4. 4. A. is bound unto B. that where he hath granted to the said B. a Rent-charge out of such Land now if the said B. shall enjoy the said Rent according to the form and effect of the said Grant that then c. there he needs not to plead any tender for the Rent is not payable in other manner than it was before contrary if the Condition had been for the payment of the Annuity And of that opinion was the whole Court that he ought to have pleaded a tender Another matter of the Award was that the said Audar should yield up surrender relinquish to the Plaintiff all such Houses and Tenements which he had in his possession by reason of the custody of the said Plaintiff As to that the Defendant pleaded that he had yielded up c. All such Houses c. generally without shewing which in certain And for that cause the Court was clear of opinion that the Plea was not good which see 9 E. 4. 16. If I be bounden upon condition to enfeoff the Obligee of all Lands Tenements which were to I.S. in pleading the performance of that Condition I ought to shew what Lands and Tenements in certain for they pass out of me by the Feoffment See also 12 H. 8. 7. 13 H. 8. Non damnificatus generally where no Plea. 19. Another point of the Award was That the said Audar should acquit and discharge and save harmless the Plaintiff of such an Obligation to which the Defendant pleaded that Querens non fuit damnificatus and that Plea was holden insufficient for he ought to have shewed how he had discharged him and it is not sufficient to answer only to the damnification as if I be bounden to convey unto you the Manor of B. in pleading the performance of the condition it is not sufficient to shew that I have conveyed the said Manor but to shew by what manner of conveyance viz. by Fine or Feoffment c. 22 E. 4. 43. If the condition be to discharge the Plaintiff c. then the manner of the discharge ought to be shewed but if it be to save harmless only then non damnificatus generally is good enough 40 E. 3. 20. 38 H. 6. 39. The condition of an Obligation was that the Obligor should keep without damage the Obligee of such a sum of mony against B. to whom he was bounden for the payment of it and the said Obligor pleaded that at such a day c. the said B. at his request delivered the Obligation to the Plaintiff in liew of an acquittance without that that the Plaintiff was damnified by the said Obligation before the delivery of it and it was holden by the Court that if the Defendant had pleaded that he had kept the Plaintiff without damage and had not shewed how that the Plea had not been good See 22 E. 4. 40. The Lord Lisles Case And afterwards Iudgment was given for the Plaintiff XCVI Heydons Case Mich. 29 30 Eliz. RAlph Heydon pretending title to certain Land entred into it and made a Lease of it to try the title Vpon which his Lessee brought an Ejectione firmae in which the parties were at Issue And now at the day of the Enquest the Iurors were called and but five of them appeared whereupon the Defendant came and shewed to the Court that the said Heydon by his Friends and Servants had laboured the Iury not to appear and that for the further vexation of the Defendant who had four Verdicts in affirmance of his title that the said Heydon to procure the Iury not to appear had surmised to them that he and the Defendant were in course of an agreement whereas in truth no such communication of agreement had any time passed betwixt them And all this was openly deposed in Court as well upon the oath of the Defendant himself as upon the oath of one of the Iurors upon which the Court awarded an Attachment against the said Heydon to answer the contempt And also granted to the Defendant that he might sue a Decem tales with proviso for his own expedition XCVII Smith and Kirfoots Case Mich. 29 30 Eliz. In Communi Banco Debt upon Arbitrament SMith brought Debt upon an Arbitrament against Kirfoot and declared that the Defendant and he imposuerunt se in arbitrium ordinationem judicium Johannis Popham ar arbitratoris indifferenter electi de jure titulo inturesse in quibusdam Messuagijs c. Who taking upon him the burthen of the Arbitration ordinavit that the said Defendant should pay unto the Plaintiff ten pounds in plenam satisfactionem c. and thereupon he brought his Action It was moved by Walmesley Serjeant that the Declaration is not sufficient for it appeareth that the Arbitrament set forth in the Declaration is utterly void because whereas ten pounds is awarded to the Plaintiff nothing is awarded to the Defendant and so the Award unequal and so void But the Court was clear of opinion that notwithstanding that such an Arbitrament be void in Law yet it may be for any thing that appeareth that the award is good enough 1 Cro. 904. â— Cro. 354. 355. For the Plaintiff is not to shew in his Declaration all the Award but such part only of it which doth entitle him to the thing c. and if the Defendant will impeach the Award for any thing that is to come in on his part vide ac Book of Entries 152. 123. vide For the Arbitrament 39 H. 6. 12. by Moile 7 H. 6. 41. XCVIII Arundel against Morris Mich. 29 30 Eliz. In Communi Banco RIchard Arundel sued an Audita Querela against Morris and it was comprehended in the Writ That Morris had recovered against him a certain Debt and that he was taken by a Capias ad satisfaciendum Audita Querela at the suit of the said Morris by Hickford Sheriff of the County of Gloucester who let him go at large c. And they were at issue upon the voluntary escape it was found for the Plaintiff It was objected in arrest of Iudgment that the Writ of Audita Querela is not good for the words are that the Plaintiff captus fuit virtute brevis nostri judicialis whereas this word judicialis is not in the Register but only brevis nostri de capiendo But by the whole Court the Writ is good for the word judicialis is but a word of surplusage and shall not make void the Writ And afterwards Iudgment was given for the Plaintiff XCIX Brook against King. Mich. 29 30. Eliz. IN Debt upon an Obligation by Brook against King the Defendant pleaded that the Bond was endorced with such condition viz. Debt That it the said Defendant King shall procure one I.S. to make reasonable recompence to the
Ancestor of the Demandant was pleaded in Bar by the name of W the Demandant in avoidance of it would have said that the name of his Father was R. to have avoided the Fine but to that he was not received And 3 E. 3. 32. scil Averment 42. In a Formedon the Tenant pleaded Ne dona pas The Demandant by Replication said That a Fine was levied of the same Lands between the Father of the Demandant and one T. by which Fine the Father of the Demandant did acknowledge to T. the Lands come ceo c. and the said T. gave by the said Fine to the Father of the Demandant the Land in tail Where it is said by Stone that since the gift is proved by as high a Record a man shall not aver against such matter in avoidance of the said Fine c. and yet the party against whom it was was a stranger to the Fine And see 38 E. 3. 7. The Lord shall not be received against a Fine levied by his Tenant to aver the dying seised of his Tenant in his Homage And as to the Issue in tail he conceived that the Averment doth not lie for him for the Issue in tail is as much privy as the Heir of a Tenant in Fee-simple And see 33 E. 3. scil Estoppel 280. In a Formedon the Tenant voucheth the Demandant Counter-pleaded that the Vouchee nor any of his Ancestors had any thing in the Land in demand after the seisin c. to which the Tenant said that to that the Demandant should not be received for the Father of the Demandant after the gift levied a Fine to the Ancestor of the Vouchee of the said Land in demand sur conusans de droit come ceo c. and the same was holden a good bar to the Counter-plea And it was said by the Iustices That although the Statute of West 2. of Donis conditionalibus doth not avoid the Fine as to the fore-closing of the Issue in tail of his Formedon yet it remaineth in force as to the restraining of the heir in tail to aver a thing against the Fine as well as against the heir in Fee-simple and in all Cases where he against whom a Fine is pleaded claims by him who levieth the Fine he shall not have the same Averment but where he claims by a stranger to the Fine there he shall have it well enough see 33 H. 6. 18. If my Father Tenant in tail or in Fee grant the Land by Fine and afterwards I make Title to the same Land by the same Ancestor and the Fine is pleaded against me I shall not be received to say that those who were parties to the Fine had not any thing at the time of the Fine levied but such a one an estranger whose estate c. but it is a good Plea for me to say that after the Fine such a one was seised in Fee and did enfeoff me vid. 22 E 3. 17. before 33 E. 3. Estoppel 280. And Dyer 16 Eliz. 334. The Father is Tenant for life the Remainder in Fee to his Son and Heir levieth a Fine to a stranger sur conusans de droit come ceo c. with warranty and takes back an estate by the same Fine in that case it was holden that the heir should not be received to aver continuance of the possession and seisin either ante finem tempore finis or post finem in the Tenant for life for it is a Feoffment upon Record and makes a discontinuance of the Remainder and Reversion The only Book in our Law to maintain the Averment is 12 E. 4. 15. by Brian who although he was a reverend Iudge in his time yet he erred in this that if Tenant in tail be disseised and levieth a Fine unto a stranger sur conusans de droit come ceo c. that the Issue in tail may well say that partes ad finem nihil habuerunt but Coke and Lit. were clear of a contrary opinion and see in the same year fol. 12 by Fairfax and Littleton that if Tenant in tail where the Remainder is over to a stranger levieth a Fine sur conusans dodroit come ceo c. he in the Remainder may aver continuance of seisin against that Fine for he is not party nor heir to the party c. And the Stat. of 4 H. 7. goes strongly to extort such Averment out of the mouth of the Issue in tail for the words concerning the same point are saving to every person or persons not party nor privy to the said Fine their exception to avoid the said Fine by that that those which were parties to the said Fine nor any of them had ought in the Land at the time of the said Fine levied And it is clear that the Issue in tail is privy to his Ancestor whose heir to the tail he is which see agreed 19 H. 8. 6. 7. And he vouched the Case of one Stamford late adjudged Land was given to the eldest Son in tail the Remainder to the Father in tail the eldest Son levied a Fine sur conusans de droit come ceo c. and died without Issue in the life of his Father and afterwards the Father died the second Son shall inherit but if the eldest Son had survived the Father and afterwards died without Issue the second Son should have been barred Periam to the same intent It should be very dangerous to the Inheritances of the Subjects to admit of such Averments and by such means Fines which should be of great force and effect should be much weakned and he put many Cases to the same purpose as were put before by Rhodes Iustice and he shewed how that Fines and the power of them were much weakned by the Statute of non-claim whereof followed as the preface of the Statute of 4 H. 7. observeth the Vniversal trouble of the Kings Subjects and therefore by the said Statute of 4 H. 7. Fines for the good and safety of the Subjects were restored to their former Grandure and authority which should be construed by us who are Iudges strongly and liberally for the quiet and establishment of present possessions and for the barring and extinguishing of former rights and so did the Iudges our Predecessors which see in the Argument of the said Case between Stowel and the Lord Zouch So see such liberal construction 19 Eliz. Dyer 351. Where if Land be given to Husband and Wife in special tail and the Husband alone levieth a Fine and dieth having Issue the Issue is barred And it hath lately been adjudged by the advice of all the Iudges of England upon the Statute of 1 Ma. viz. All Fines levied whereupon Proclamations shall not be dayly made by reason of Adjournment of any Term shall be of as good force and strength to all intents and purposes as if such Term had been holden and kept from the beginning to the end thereof and not adjourned and the Proclamations shall be made in the following
petit quod inquiratur per patriam praedict Brett similiter It was moved that the parties should replead for this matter upon which they are at Issue scil the appearance is not triable by Iury but by the Record And the Court was clear of opinion that the parties should replead for the cause aforesaid And it was moved by the Lord Anderson that if A. be bound to appear in the Kings Bench at such a day and A. at the said days goe to the Court but there no process is returned then the party may go to one of the chief Clerks of the Court and pray him to take a Note of his appearance And by Nelson we have an acient form of entry of such Appearance in such Cases Ad hunc diem venit I. S. propter indemnitatem suam Manucaptorum suorum petit quod comparentia sua in Curia hic recordetur And see for the same 38 H. 6. 17. And afterwards the Lord Anderson inspecto Rotulo ex assensu sociorum awarded a Repleader And so by Nelson it hath been done oftentimes here before and put in ure The same Law is where at the day of appearance no Court is holden or the Iustices do not come c. he who was bound to appear ought to have an Appearance recorded in such manner as it may be and if the other party pleadeth Nul tiel Record it behoveth that the Defendant have the Record ready at his peril for this Court cannot write to the Iustices of the Kings Bench for to certifie a Record hither CXV Baxter and Bales Case Mich. 29 30 Eliz. In the Common Pleas. Debt not extinct by administration BAxter brought Debt upon a Bond as Executor of I. against Bale who pleaded that the Plaintiff after the death of the Testator was cited to appear before the Ordinary or his Commissary to prove the Will of the said I. and at the day of his appearance he made default upon which the Ordinary committed Letters of Administration to the Defendant by force of which he did administer so the debt is extinct c. but the whole Court was clear of opinion that the debt was not extinct for now by the probate of the Will the administration is defeated and although the Executor made default at the day which he had by the Citation before the Ordinary yet thereby he is not absolutely debarred but that he may resort to the proving of the Will whensoever he pleaseth But if he had appeared and renounced the Executorship it had been otherwise and the debt is not extinct by the Administration in the mean time CXVI Mich. 29 30 Eliz. In the Common Pleas. IN a Franchise the parties are at Issue upon a matter triable out of the Franchise And it was moved if now the Record should be sent into the Common Pleas and there tryed and after trial sent back into the Franchise Which Periam and Anderson utterly denied and by Periam there is no reason that we should be their Ministers to try Issues joyned before them And it is not like 2 Len. 37. where in a Liberty or Franchise a Forrein Voucher is to warrant Lands in such cases we shall determine the Warranty but that is by a special Statute of Glocester cap. 12. And Nelson Prothonotary said that such an Issue was tryed here of late Quod nota CXVII The Earl of Arundel and the Lord Dacres Case Mich. 29 30 Eliz. At Serjeants Inne PHilip Earl of Arundel and the Lord William Howard his Brother marryed the Daughters and Co-heirs of the late Lord Dacres And now came Francis Lord Dacres as heir male of the said Family and claimed the Inheritance c. And after long sute betwixt both parties they submitted themselves to the award of Gilbert Lord Talbot and of Arthur Lord Grey of Wilton and Windham and Periam Iustices And before them at Serjeants Inne the matter was well debated by the Council learned on both sides and as unto Greistock Lands parcel of the Lands in question the Case was That Tenant in tail makes a Feoffment in fee unto the use of himself for his life the Remainder in tail to his eldest Son with divers Remainders over with a Proviso that if any of the Entailees do any act to interrupt the course of any entail limited by the said Conveyance that then the use limited to such person should cease and go to him who is next inheritable And afterwards Tenant in tail dieth his eldest Son to whom the use in tail was first limited entreth and doth an Act against the said Proviso and yet held himself in and made Leases the Lessees enter the Lessor dieth seised his Heir being within age and in ward to the Queen It was holden by Shutleworth Serjeant Yelverton Godfrey Owen and Coke who were of Council with the Heirs general of the Lord Dacres that here is a Remitter for by this Act against the Proviso the use Remitter and so the possession doth accrue to the enfant Son of him to whom the use in tail was limited by the Tenant in tail Then when the Tenant in tail after his said Feoffment holds himself in this is a disseissin for a Tenancy by sufferance cannot be after the cesser of an estate of Inheritance But admit that he be but a Tenant at sufferance Hâ—b 255. Dy. 54. yet when he makes Leases for years the same is clearly a disseisin and then upon the whole matter a Remitter and although the Enfant taketh by the Statute yet the right of the tail descending to him afterwards by the death of his Father doth remit him as if Tenant in tail maketh a Feoffment in fee to the use of himself for life the Remainder in tail to his eldest Son inheritable to the first intail notwithstanding that the eldest Son takes his Remainder by the Statute and so be in â—â— force thereof yet when by the death of his Father the right of the Entail descends to him he is remitted CXVIII Butler and Ayres Case Mich. 29 30 Eliz. In the Common Pleas. Dower BUtler and his Wife brought a Writ of Dower against Thomas Ayre Son and Heir of Bartholmew Ayre first Husband of the said Margaret Wife of the Plaintiff and demanded Dower of Lands in A. and B the Tenant pleaded never seised que Dower and the Iury found that the said Bartholmew was seised during the Coverture de omnibus tenementis infra script preterquam the Tenements in sic ut dicta Margareta dotari potuit Exception was taken to this Verdict because that this preterquam c. doth confound the Verdict To which it was said by the Court that the preterquam is idle and surplusage for it is of another thing than that which is in demand and the seisin of the first Husband of Lands in A. and B. is confessed and the preterquam works nothing Another matter was objected because here the Iury have assessed damages
which process issued out of the Exchequer to take and seize all the goods and two parts as well of all the Lands Tenements and Hereditaments Leases and Farms of such Offender as of all other the Lands Tenements and Hereditaments liable to such seisure or to the penalties aforesaid by the true meaning of this Act leaving the third part c. And Popham Attorney General moved If a Recusant hath more than a third part of his Lands in Copy-hold land if this Copy-hold as to the surplusage shall be liable to the penalty Manwood chief Baron conceived that the Copy-hold is liable in this Case by the Statute although not directly by express words yet within the intent of it and that by reason of these words all other the lands c. liable to such seisure c. Walmes Serjeant Copy-hold is not liable to a Statute Merchant or Staple also if the Queen hath the Copy-hold how shall the Lord have the services which the Queen cannot do Also a Copy-hold is not an Hereditament within this Statute which extends only to Hereditaments at the common Law and not by custom Also in Acts of Parliaments which are enacted for forfeiture of Lands Tenements and Hereditaments by those words they shall not forfeit Copy-holds Clark Baron this Statute was made to restrain Recusants from taking the benefit of their Livings and Copy-holds are their Livings as well as Free-holds and by this Statute the Queen shall not have every estate in the Copy-hold Land but only the taking of the profits but the scope of the Statute was to impair the Livings of Recusants and that by driving of them for want of maintenance to repair to the Church Walmesley If the Statute had given to the Queen to seise two parts of their livings then the Statute had extended to Copy-holds Manwood when a Statute is made to transfer an estate by name of Lands Tenements and Hereditaments the Copy-hold is not within such Statute but if the Lords Signiory his Customs and Services are not to be impeached or taken away by such Statute then it is otherwise for such Statute doth not make another Tenant to the Lord And by him Copy-holder shall pay Subsidies and he shall be assessed according to the value of his Copy-hold as well as of his Freehold and in this Case the Queen is to have the profits of the Lands only but no estate At another day the case was argued for the Recusants by Snag Serjeant and he said that these words Lands Tenements and Hereditaments are to be construed which are such at the Common Law not by Custom If I give to one all my Lands Tenements and Hereditaments in D. my Copy-holds do not pass and Statutes which are made to take away Possessions and Hereditaments out of persons ought to be strictly taken and not by Equity The Statute of 13 Eliz. of Bankrupts enacts that the Commissioners may sell the Lands and Tenements of the Bankrupts if the Statute had not made a further provision the Commissioners could not sell Copy-hold Lands but there are express words in the Statute for that purpose i.e. as well copy as fee Also the Staute of 13 Eliz. cap. 4. of Auditors and Receivers of the Queen doth not extend to Copy-holds And it should be a great prejudice to the Lords of such Copy-holds that the Queen should have the Land. Popham the intention of the Law somtimes causes a liberal construction of a Statute in the letter of it What Statutes extend to Copy-holds somtimes a strict and precise exposition and here it appeareth that the intention of the Statute was that the Queen should have all the goods of the offender and two parts of the Lands c. Leases and Farms and the Recusant but the third part of all his Lands only And therefore the Recusant is not to have any other thing but only that which is allotted to him by the Statute and that is the third part which is all the maintenance which the Law allows him and then if Copy-holds be not within this Statute a Recusant who hath great possessions in Copy-holds and hath no Free-hold should be dispunishable and hath his full maintenance against the meaning of the Statute And he said that many things are within the meaning of a Statute â—y 5. 6. Co. 3. Inst 109 Yel 60. 12 Co. 12. which are not within the words as Bonds Obligations and Specialties made to Recusants shall pass to the Queen by this Statute by force of the word goods according to the meaning of the Statute and all personal things are within the Statute c. profits of the Lands Advowsons and the like and the very scope of the Statute was to take away from Recusants all personal things whatsoever and two parts of real things as Leases Farms Lands Tenements c. with the intent that with the superfluity of their goods and possessions she should not maintain Iesuits and Seminary Priests people more dangerous than the Recusants And by him Lands in ancient demesne are liable to the penalties by the Statute although not by express words So if a Recusant hath Lands extended by him upon a Statute acknowledged unto him that Interest is not properly a Lease or Farm yet it is Land within this Statute liable c. And if I be Tenant by Elegit or Statute c. of Lands in D. not having other Lands in the said Town and I grant all my Lands in D. my Interest ut supra shall pass contrary If I have other Lands there And I grant that if I have Copy-hold Lands in D. and none other and I grant all my Lands in D. Copy-hold Land shall not pass by such assurance because that Copy-hold cannot pass but by surrender If I put out a Copy-holder out of his Lands the same is a Disseisin to the Lord of whom the Copy-hold is holden And if I levy a Fine of such Lands and five years pass not only the Lord is bounden as to his Free-hold and Inheritance but also the Copy-holder for his possession for the intent of the Statute of 4 H. 7. was to take away controversies litibus finem imponere 5 Co. 124. and contention may be as well for Copy-hold as for Land at the common Law. One hath a Lease for years to begin at a day to come he who hath the Free-hold thereof is disseised the Disseisor levieth a Fine five years pass he who hath the Free-hold is bound by it but not he who hath the Interest for years in futuro as it hath been lately adjudged But he said That if that point were to be handled again the Law would be taken to the contrary but it is clear that a Lease in possession shall be bound by such Fine And as unto any prejudice to the Lord it is clear that notwithstanding that the Queen hath the Copy-hold Land yet the Lord shall have the Rent during the possession of the Queen which is the
most valuable part of the services of the Copy-holder The Statute of 1 E. 6. of Chantries doth extend to Copy-hold by the general words Lands Tenements and Hereditaments for otherwise the Proviso which excepts Copy-holds were not necessary And in our Statute the words are Lands Tenements and Hereditaments which are forceable words which proves that our exposition to extend it to Copy-holds is proper and agreeable to the Statute and this in the first branch of it for Copy-hold is some Land Tenement or Hereditament the clause in this branch of the Statute is and also all other the Lands Tenements and Hereditaments liable to such seisure c. the same is to be meant of such Lands which are bound with clause of revocation of which is spoken in the former part of this Statute He who departs out of the Realm against the Statute of 5 R. 2. shall forfeit his goods and thereby his debts also The King grants omnia bona catalla felonum Debts of Felons shall pass Ergo Copy-holds also 2 Lâ—n 56. Post 201. 202. by the name of Lands Tenements c. as well as debts by the name of goods In our Case the meaning of the Statute was that the Queen should have two parts of the whole estate of the Recusant be it Copy-hold Ancient demesne c. If upon the Statute of Bankrupts a Copy-hold estate be sold to the King the King shall pay the Rent but shall not do any of the services and in so much the Lord shall be prejudiced patiatur etiam hic rather than Recusants should not be punished and it is not a strange thing in Law that the Lord of a Copy-holder should be prejudiced for the offence of his Tenant as where a Copy-holder is outlawed the King shall have the profits of his Copy-hold Lands and the Lord hath not any remedy for his Rent CXXVII Stebbs and Goodlacks Case Pasch 30 Eliz. In the Kings Bench. BEtwixt Stebbs Goodlack the Case was the Parson of Letcome in the County of Berks libelled in the Spiritual Court for Tithes Fraud shall not avoid payment of Tithes the Defendant shewed that the custome of the Town of Letcome is that the Parson shall have for his Tithes the tenth Land sowed with any manner of corn and he shall begin his reckoning always at the first Land which is next to the Church c. The Parson shewed that the Defendant by fraud and covin sowed every tenth Land which belonged to the Parson ut supra very ill and with small quantity of corn and did not dunge or manure it as he did the other nine parts by means whereof whereas the other nine every of them yielded eight Cocks the tenth yeilded but three Cocks and for this matter the Parson libelled in the Spiritual Court and confessed the custome but for abusing of the custom prayed to have his Tythes in kind the Defendant prayed a prohibition and the Parson afterwards a consultation And the opinion of Wray Iustice was that the custom was against common reason and so void but if it be a good custom then the Parson shall have the Action upon the case CXXVIII Rumney and Eves Case Pasch 30 Eliz. In the Kings Bench. Copy-holder IN Ejectione firmae by Jane Rumney against Lucie Eve it was holden that if customary Land do descend to the younger Son by custom and he enters and leaseth it to another who takes the profits and after is ejected Poph. 39. 4 Co. 22. That he shall have an Ejectione firmae without any admittance of his lessor or presentment that he is heir For which the Defendant shewed that there were thirty years incurred betwixt the death of the Father and the making of the Lease so that here is supina negligentia which shall disable his person to make any demise quod fuit concessum In answer of which it was said that the Lessor at the time of the death of his Ancestor was but of the age of two years and that after his full age no Court had been holden for a long time and that at the first Court that was holden which was of late he prayed to be admitted but the Steward refused to admit him and the same was holden a good excuse of his negligence And it was holden that the Plaintiff ought not to shew that the Lease is warranted by the custom 1 Cro. 469. 483. 717. 728. Ante 16. but that shall come of the other side and so it had been lately adjudged which Wray granted And by him if a Copy-holder surrender in extremis to the use of himself for life c. If he shall be well again the surrender shall stand 4 Len. 30. 31. 8 Co. 100. for he hath reserved an estate to himself It was further holden in this Case that if a Copy-holder dieth his Heir within age he is not bound to come at any Court during his non-age to pray admittance or to tender his Fine Also if the death of the Ancestor be not presented nor proclamations made he is not at any mischeif although he be of full age CXXIX Saint-John and Petits Case Pasch 30 Eliz. In the Kings Bench. IT was covenanted betwixt Saint-John and Petit that Saint-John should present Petit to the Church of A. and that afterwards Petit should lease the Parsonage to Saint-John or to any other person named by him and that the said Petit should not be absent by eighty days and that he should not resign and Petit was bound to perform these Covenants Petit is presented to the Benefice Saint-John brought an Action upon the Obligation pretending that he could not enjoy his lease by reason of the absence of the said Parson c. And the Lease was made to the Curate at the nomination of Soint-John The Parson said that the Obligation is void by the Statute of 14 Eliz. cap. 11. See the Statute All Leases c. made by any Curate shall be of no better force than if it had been made by the beneficed Parson himself Tanfeild by 13 Eliz. 20. When a Parson leaseth to his Curate who leaseth over The Statute doth not make the Lease void by any absence of the Parson but of the Curate by forty days Quaere For that it seemeth that by the Statute of 14 Eliz. the Curate cannot lease c. CXXX Gates and Halliwels Case Pasch 30 Eliz. In the Kings Bench. BEtwixt Gates and Halliwel the Case was one having two Sons 3 Len. 55. devised that his eldest Son with his Executors should take the profits of his Lands until his youngest Son should come to the age of two and twenty years and that then the said youngest Son should have the Land to him and the Heirs of his body It was holden clearly by the whole Court that the eldest Son should have Fee in the interim until the youngest Son came to the said age CXXXI Prowse and Carys Case Pasc 30 Eliz. In the
Will he cited Chicks case 19 Eliz. 357 and 23 Eliz. 371. Dyer At another day it was argued by Cook That both the Houses pass and the words take the profit do not restrain the general words before viz. All my Lands and Tenements but rather expounds them sci such profits that they might take of a Reversion cum acciderit for it may be that the Brother shall die within ten years And he cited the case 34 H. 6. 6. A man seised of diverse Reversion upon estates for life devises them by the name of omnium terrarum tenementorum which were in his own hands and by those parols the Reversion did pass and yet the Reversion to speak properly was not in his hands and if the Brother had died in the life of the devisor they had clearly passed and then his death or life shall not alter the case And he resembled the case to the case in 39 E. 3. 21. The King grants to the Abbot of Redding That in time of vacation the Prior and Monks shall have the disposition of all the possessions of the said Abbey ad sustentationem Prioris Monachorum 3 Cro. 290. and if in the time of vacation they shall have the Advowsons was the question for it was said That advowsons could not be to their sustentation But yet by the better opinion the grant of the King did extend to Advowsons for it shall be intended such sustentation as Advowsons might give Godfrey Our Case is not like to the case of 34. H. 6. for there the Devisor had not any thing in possession and therefore if the Reversion did not pass the devise should be utterly void Gawdy conceived that the house in possession only passed for the devise extends to such things only whereof the Profits might be taken but here is not any profit of a Reversion Clench and Wray contrary The intent of the devise was to perform the Will of his Father and also of his own Will and in case the house in possession was not sufficient to perform both the Wills all shall pass and therefore the devise by favorable construction is to be taken largely so as the Wills might be throughly performed and also the devise is general and further all his Lands and Tenements which are not restrained by the Subsequent words to take the profits for to have and to hold and to have and to take the profits is all one CCLV. Slugge and the Bishop of Landaffs Case Trin. 31 Eliz. In the Kings Bench. SLugge libelled against the Bishop of Landaff in the Ecclesiastical Court because where he was presented by the Dean and Chapter of Gloucester to the Church of Penner the Bishop did refuse to admit him and now the Bishop sued a Prohibition and shewed Prohibition Quod non habetur talis Rectoria cum cura animarum in eadem diocesi sed perpetua vicaria And by Popham a Prohibition doth not lye but the matter ought to be determined in the Ecclesiastical Court and when he who is presented to the same Church whether it be a Church or not shall be tried in an action of trespass and the like matter was ruled Mich. 14. Eliz. betwixt Weston and Grendon who was presented by the Queen and it was holden that because institution and admission do belong to the Ecclesiastical Court and not to the Kings Court that no Prohibition should lye and therefore he prayed a Consultation And note That the Defendant in the Prohibition did not demur formally upon the suggestion for the Iudges use if the suggestion be not sufficient to maintain the Prohibition to grant a Consultation without any formal demurrer upon the Suggestion if the insufficiency of the Suggestion be manifest Trial. which was granted by the whole Court. Cook That a Consultation ought not to be granted for whether there be such a Rectory or not shall be tried here So 2 H. 4. 30. Prior or not Prior 49 E. 3. 17 18. Wife or not Wife but never accoupled in loyal matrimony by the Bishop Ante. 53. 54. 44 E. 3. So within or without the Parish 50 E. 3. 20. So 45 E. 3. Quare Impedit 138. In a Quare Impedit no such Church within the County Afterwards at another day Popham put the case Slugge was presented to the vicaridge of Penner the Bishop refused to admit him and admitted one Morgan Bletthen unto the Parsonage of Penner at the presentment of the Lord St. John Slugge sued the Bishop for contumacy per duplicem querelem The Bishop said Non habetur talis vicaria upon which matter he sued a Prohibition and he conceived That the Prohibition did not ly for a Vicar is but he that gerit vicem Personae to supply his place in his absence so as the same is a spiritual matter which ought not to be tried here Also the libel is to have Admission and Institution and the other matter ariseth by their Plea sci Quod Rectoria de Penner est Ecclesia cum cura animarum absque hoc quod habetur talis Vicaria and so it is but an incident to the principal matter wherefore it shall be tried there and he prayed a Consultation Cook We have shewed That in the time of E. 3. one L. was seised of the Manour of Penner to which the Church of Penner is appendant and we alledge presentments from the time and we convey it to the Lord St. John which now is and they would now defeat us by this surmise That there is no such Church with cure of Souls which is triable here Popham the libel doth contain nothing but contumacy in the Bishop in that he hath not admitted Slugge and the other matter comes in the Replication and afterwards by assent of the parties a Consultation was granted quoad institutionem of Slugge only but that they should not proceed further CCLVI. Fennick and Mitfords Case Pasch 31 Eliz. Rot. 154. In the Kings Bench. Moâ—e 284. 2 Co. 91. THe Case was A man seised of Lands in Fee levieth a Fine to the use of his wife for life the remainder to the use of his eldest son the heirs males of his body the Remainder to the use of the right heirs of the Conusor The Conusor makes a Lease for a thousand years to B. the eldest son dieth without issue male having issue a daughter the Conusor dieth the wife afterwards dieth the eldest son enters and leaseth the Lands to the Plaintiff Atkinson That upon this conveyance a Reversion was left in the Conusor although by the fine all is conveyed out of the Conusor and so as it hath been objected the use limited to the right heirs of the Conusor is a new thing For it is to be observed When a man is seised of Lands he hath two things the Land or the Estate and secondly the use which is the profits and if he make a Feoffment without consideration by that the estate and possession passeth
of the Contract and being made at the time of the Communication and contract should charge the Defendant but if the promise were at another time it should be otherwise There was a Case lately betwixt Smith and Edmunds Two Merchants being reciprocally endebted the one to the other agreed betwixt themselves to deliver all their Bills and Bonds into the hands of one Smith who promised that he would not deliver them to the parties until all accounts were ended betwixt them and yet he did deliver them and for that an Action brought against him was adjudged maintainable yet there was not any consideration nor was it material for the action is grounded upon the Deceit and so is it here upon the Warranty And of that opinion were Clench and Wray Iustices but Gawdy was of a contrary opinion CCLXII Woodshaw and Fulmerstones Case Hill. 30. Eliz. Rot. 699 In the Kings Bench. WOodshaw Executor of Heywood brought Debt upon a Bond against Richard Fulmerstone and the Writ was dated October Mich. 29 30 Eliz. and the Condition of the Bond was That if Fulmerstone died before his Age of one and twenty years and before that he had made a Ioynture to A. his Wife Daughter of the Testator Heywood Then if the said Defendant caused one hundred pounds to be payed to the said Heywood within three months after the death of the said William that then the Bond should be void and the said William Fulmerstone died 30 September 30 Eliz. which matter he is ready c. The Plaintiff doth traverse absque hoc that the said Heywood died intestate Tanfield It appeareth of Record that the Plaintiff hath not cause of action for this one hundred pounds was to be paid within three Months after the death of William Fulmerstone 1 Cro. 271 325 565. as the Defendant hath alledged which is also confessed by the Plaintiff and this Action is entred Mich. October 30 Eliz. scil within a month after the death of William Fulmerstone and so before the Plaintiff hath cause of action and therefore he shall be barred Gawdy Where it appeareth to the Court that the Plaintiff hath not cause of Action he shall never have Iudgment as in the Case betwixt Tilly and Wordy 7 E. 4. But here it doth appear that the Plaintiff hath cause of Action for where a man is bound in an obligation the same is a duty presently Obligation and the condition is but in defeazance of it which the Defendant may plead in his discharge CCLXIII Windham and Sir Edward Cleers Case Trin. 31 Eliz. In the Kings Bench. ROger Windham brought an Action upon the Case against Sir Ed. C. declared that the said Ed. being a Iustice of Peace in the County of N. and where the Plaintiff was a loyal subject Action upon the Case of sclander 1 Cro. 130. and of good fame all his life time nor ever touched or reproched with any offence of Roâ—ery c. the Defendant malitiose invide machinams ipsum Rogerum de bonis nomine fama et vita deprivare directed his warrant to divers Baylifs and Constables of the said County to arrest the said Plaintiff And it was alledged in the said Warrant That the Plaintiff was accused before him of the stealing of the horse of A. B. by reason of which the Plaintiff was arrested and so detained until he had entred into a Bond for his appearance c. whereas in truth he was never accused thereof nor ever stole such horse and whereas the Defendant himself knew that the Plaintiff was guiltless by reason of which he was greatly discredited c. And it was found for the Plaintiff And it was moved that upon this matter an Action doth not lye for a Iustice of Peace if he suspect any person of Felony or other such Offence may direct his Warrant to arrest him 14. H. 8. 16 Gaudy and Clench If a man be accused to a Iustice of Peace for Felony for which he directs his Warrant to arrest him although the accusation be false the Iustice of Peace is excused but if the party in truth was not accused before the Iustice it is otherwise It was a Case lately betwixt the Lord Lumley and Foord where Foord in a letter written by him had written It is reported That my Lord Lumley seeketh my life If it was not Reported an Action upon the Case lieth but if reported no Action lieth So here if he was accused no Action lieth but if not an Action lieth And afterwards in the principal Case Iudgment was given for the Plaintiff CCLXIV Isleys Case Trin. 31 Eliz. In the Kings Bench. ISley and others were Plaintiffs in an Ejectione firmae and upon the general Issue it was found for the Plaintiffs and 4 days after the verdict given was moved in stay of judgment a special maâ—ter in Law whereof the Iustices were not resolved for the law but took advisement and gave day over and in the mean time one of the Plaintiffs died which matter the Defendant shewed to the Court in further stay of the Iudgment But by Coke the same is not any cause for the Postea came in Quindena Pasch which was 16 Aprilis at which day the Court ought to have given Iudgment presently but took time to be advised and the 19 of April one of the Plaintiffs died And the favour of the Court ought not to prejudice us for the Iudgment here shall have Relation to the 16 of April at which time he was alive and it was so of late adjudged in the Case of Derick James who died the day after the verdict and yet Iudgment was not stayed for the Court after verdict cannot examine surmises and they have not a day in Court to plead and in our case It was but a day of Grace and no entry is made of it Although no plea can be now pleaded after verdict yet as amicus curiae one may inform us of such matter And sometimes in such case Iudgment hath been stayed as 9 Eliz. and sometimes notwithstanding such Exception as 2 Eliz. So as I conceive the matter is much in the discretion of the Iustices And because the same was a hard verdict and much against the Evidence It is good discretion upon this matter to stay Iudgment and such was the opinion of the Court. CCLXV. Steed and Courtneys Case Trin. 31 Eliz. In the Kings Bench. Error 1 Cro. 116. Owen 93. More 691. Prescription to levy a fine not good ERror was brought upon a Fine levied upon a Plaint in a writ of Covenant in the City of Exceter And two Errors were assigned First The Plaint was quod teneat convent de duobus tenementis Whereas in truth the word Tenement doth not comprehend any certainty for in the Word Tenement is understood Messuage Land Meadow Pasture c. and whatsoever syeth in tenure And 11 H. 6. 18. by grant of Lands and Tenements Rent or Common shall pass And an Ejectione firmae
appendant to it and conveyed the said capital Messuage and Advowson to the King by the dissolution and from the King to the said Thomas Long who so seised without any Deed did enfeoff the Plaintiff of the said Manor and made Livery and Seisin upon the Demesnes And that the said Thomas Long by his Deed made a grant of the said Advowson to the said Strengham and afterwards the Free-holder attorned to the Plaintiff And by the clear opinion of the whole Court here is a sufficient Manor to which an Advowson may be well appendant and that in Law the Advowson is appendant to all the Manor but most properly to the Demesnes out of which at the commencement it was derived and therefore by the attornment afterwards within construction of the Law shall have relation to the Livery the Advowson did pass included in the Livery And the grant of the advowson made mesne between the Livery and the attornment was void and afterwards Iudgment was given and a Writ to the Bishop granted for the Plaintiff CCXC. Mich. 32 33 Eliz. In Communi Banâ—o Debt A Made a Bill of Debt to B. for the payment of twenty pounds at four days scil five pounds at every of the said four days and in the end of the Deed covenanted and granted with B. his Executors and Administrators that if he make default in the payment of any of the said payments that then he will pay the residue that then shall be un-paid and afterwards A. fails in the first payment and before the second day B. brought an action of Debt for the whole twenty pounds It was moved by Puckering Serjeant Sâ—y 31. 32. 1 Cro. 797. That the Action of Debt did not lye before the last day encurred And also if B. will sue A. before the last day that it ought to be by way of covenant not by Debt But by the whole Court the action doth well lye for the manner for if one covenant to pay me one hundred pounds at such a day an action of Debt lyeth a fortiori Owen 42. 1. 2 Rol. 523. when the words of the Deed are covenant and grant for the word covenant sometimes sounds in covenant sometimes in contract secundum subjectum materiae CCXCI. Lancasters Case Mich. 32 33 Eliz. In Communi Banco Roll. Tit. Covenant pl. 72. AN Information was against Lancaster for buying of pretended Rights Titles upon the Statute of 32 H 8. And upon not guilty pleaded It was found for the Plaintiff it was moved in arrest of Iudgment because the Informer had not pursued the Statute in this that it is not set forth that the Defendant nor any of his Ancestors or any by whom he claimed have taken the profits c. and the same was holden a good and material Exception by the Court although it be layed in the Information that the Plaint himself hath been in possession of the Land by twenty years before the buying of the pretended Title for that is but matter of argument not any express allegation for in all penal Stat. the Plaintiff ought to pursue the very words of the Stat. and therefore by Anderson It hath been adjudged by the Iudges of both Benches that if an Information be exhibited upon the Stat. of Vsury by which the Defendant is charged for the taking of twenty pounds for the Loan and forbearing of one hundred pounds for a year there the Information is not good if it be not alledged in it that the said twenty pounds was received by any corrupt or deceitful way or means And in the principal Case for the Cause aforesaid Iudgment was arrested CCXCII Bagshaw and the Earl of Shrewsburies Case Mich. 32 33. Eliz. In the Common Bench. BAgshaw brought a Writ of Annuity against the Earl of Shrewsbury for the arrerages of an Annuity of twenty Marks per annum Annuity granted by the Defendant to the Plaintiff Pro Consilio impenso impendendo The Defendant pleaded that before any arrerages incurred he required the Plaintiff to do him Service and he refused The Plaintiff by replication said that before the refusal such a day and place the Defendant discharged the Plaintiff of his Service c. And the opinion of the Court was that the Plea in Bar was not good for he ought to have shewed for what manner of Service to do the Plaintiff was so retained and for what kind of Service the Annuity was granted and then to have shewed specially what Service he required of the Plaintiff and what Service the Plaintiff refused Another matter was moved If the discharge shall be peremptory and an absolute discharge of the Service of the Plaintiff and of his attendance so that as afterwards the Defendant cannot require Service of the Plaintiff And by Walmesly Iustice it is a peremptory discharge of the Sevice for otherwise how can he be retained with another Master and so he should be out of every Service VVindham contrary For here the Plaintiff hath an Annuity for his life and therefore it is reason that he continue his Service for his life as long as the Annuity doth continue if he requirreth But where one is retained but for one or two years then once discharged is peremptory and absolute CCXCIII Matheson and Trots Case Mich. 31 32. Eliz. In the Common Bench. BEtwixt Matheson and Trot the Case was Sir Anthony Denny seised of certain Lands in and about the Town of Hertford 2 Len. 190. holden in Socage and of divers Mannors Lands and Tenements in other places holden in chief by Knights-service and having Issue two Sons Henry and Edward by his last Will in writing devised the Lands holden in Hertford to Edward Denny his younger Son in Fee Devises and died seised of all the Premisses Henry being then within age After Office was found without any mention of the said Devise the Queen seised the Body of the Heir and the possession of all the Lands whereof the said Sir Anothony died seised and leased the same to a stranger during the Minority of the Heir by force and colour of which Lease the Lessee entred into all the Premisses and did enjoy them according to the Demise And the Heir at his full age sued Livery of the whole and before any entry of the said Edward in the Land to him devised or any entry made by the said Henry the said Henry at London leased the said Lands by Deed indented to I.S. for years rendring Rent by colour of which the said I.S. entred and paid the Rent divers years to the said Henry And afterwards by casualty the said Henry walked over the Grounds demised by him in the company of the said I. S. without any special entry or claim there made I.S. assigned his Interest to I.D. who entred in the Premisses and paid the Rent to the said Henry who died and afterwards the Rent was paid to the Son and Heir of Henry
their Boats at the said Bridge of Gravesend have used to do suit at the said Court and there have used to enquire of all mis-orders and mis-demeanors of Water-men there and that the said Abbots c. have used to have the Fines and Amercements of the same Court and conveyed the said Mannor to the Plaintiff and that at a Court there holden The Defendant being sworn with the residue of the Enquest to enquire of such dis-orders refused to give his Verdict for which for the said contempt the Defendant by the then Steward was amerced twenty shillings for the which Amercement the Plaintiff brought an Action of Debt It was moved by Beaumount Serjeant That the Action did not lye for the Prescription upon which the Action is grounded is not good first he claims to have this Court within his Mannor and as a thing appertaining to it and yet he claims suit at his Court of all the Inhabitants of the said two Parishes to have them Suitors at it being meer strangers to the Mannor which do not hold of it for although it be alledged that the said Mannor doth extend in the said Parishes yet the same doth not prove that every part of the said Parishes is within the said Manor and if it be not so the Prescription may extend as well to all the County of Kent as well as to the said two Parishes for such a Prescription cannot bind but those which are Tenants of the said Manor and cannot extend to strangers which see 21 H. 7. 40. The Case of Pound-breach Secondly it is not alleadged here that the Steward ought and had used to assess Amercements for by the common Law no Steward hath authority to assess Amercements or Fines in a Court Baron for there the Suitors are Iudges not the Steward that this Water-Court is a Court Baron it appeareth by the Declaration for there it is said that it is a Court belonging to such a Manor and that prima facie shall be meant a Court Baron if the contrary be not shewed vi Fitz. 75. g. Thirdly it is not shewed that the Amercement was affered which see ib. 75. Harris Serjeant to the contrary This Court upon the whole matter is in nature of a Leet for the reformation of mis-orders between the Watermen and the prescription here will warrant such a Court well enough And there are many Courts in England which are not Court Barons but grounded upon Prescription 40 E. 3. 17. The Court before the Chancellor of Oxford Prescription to have Swan mote and it is reason that this Prescription should hold place for here is quid pro quo for Watermen receive their carriage and loading at this Bridge and also discharge their loading there and they use to fasten their Boats there and therefore in lieu of that benefit it is reason that they be attendant at the Court which is upon the said Bridge and upon that reason is the Prescription of Toll Traverse 5 H. 7. 9. And to have a Land Bird 2 R. 3. 15. And Toll of every Vessel which passeth the River 21 H. 7. 16. And this Court may be a Court within the Manor and yet no Court Baron but in the nature of a Leet and the Prescription shall be good in Law by reason of the recompence to the Suitors and then if it be not a Court Baron but rather in the nature of a Leet then it follows that the Suitors are not Iudges but the Steward and it behoves not to prescribe for the Amercement for that is incident to a Court Leet for otherwise how can the Suitors be compelled to do their suit at it or their defaults or contempts at the same be punished and as to the affering of the Amercement it needs not here for it is a Fine for the open contempt and despite done unto the Court and not an Amercement and it may well be assessed by the Steward alone vi 23 H. 8. Br. Leet 37. Drill Serjeant to the contrary For this Prescription is not reasonable to drive strangers to do suit at a Court Baron for there is sufficient consideration in the Case of Tenants of the Manor for it may be at the beginning the Tenancies were given upon such consideration to do such suit But in the principal case the Prescription is their ground and therefore unreasonable because without consideration 22 E. 4. 43. see the case there and 21 H. 7. 20. A custom alleadged that if any Tenant distrain the Beasts of another Damage Feasant That he ought to bring such Beasts to the pound of the Lord of the Manor and if not That at the next Court he should be amerced twelve pence and the same was holden no good custom because against common Right and common Law. Puckering Serjeant If this Court shall be reputed in Law a Court Baron then the Prescription for the maner of it is not good for in such case the Amercement cannot be assessed by the Steward But he held that this Court is in the nature of a Court Leet and not a Court Baron and all Inhabitants within the Precinct of it are bounden to do their suit at it by reason of their Resiancy their trade there if they have Boats or shares in Boats and such Court is for the better government of such Watermen and the exercise and practise of their trade and for the redressing of misdemeanors betwixt them and so this Court hath a reasonable commencement being instituted for the publick good and if customs which concern the private benefit of any be allowable as the Mayor and Burgesses of a Town prescribe to have of every Tun which cometh in any Ship into their Port and put upon the Land 6. d. for Toll See 21 H. 16. A fortiori a Custom or Prescription which concerns the publick good is good it is not strange that such Court hath been maintained by Prescription for the Court of Stanneris is so without any commencement or erection but by Custom And although that Toll cannot be paid at any Market for things brought to Market but for things sold yet by custom Toll shall be paid for every thing brought to Market and for the standing of the Seller there for the sale of Victuals is for the good of the Common-wealth which thing is the ground of the Prescription in the principal Case therefore the Prescription in the manner of it is good and if the prescription be good for the Court then to have a Steward to keep the Court to assess Fines for contempts and disorders is good without any special prescription for it is incident to it Periam Iustice If it be a Court-baron then cannot the Steward impose or assess any Fine which Windham granted but he said it is not a Court-baron but a Court by prescription Periam If the Plaintiff claim it as belonging to his Manor it shall be intended a Court-baron but yet a man may have a Court within
she seised of the Advowson in the Right of her Crown or of her Dutchy but when she claims by Lapse it is otherwise And afterwards Exception was taken to the Writ because it is not set forth in the Writ how the Queen claimed the Advowson as where the King had Right to present by reason of the Temporalties of the Bishop in his hands the Writ shall say Ratione Archiepiscopatus Cant. nuno Vacant or Ratione Custodiae And so because this Advowson is parcel of her Dutchy the Writ ought to say so And Anderson chief Iustice was of opinion that the Writ was good enough notwithstanding the want of that clause Ratione Ducatus for both ways it is good and sufficient generally or specially as where a man hath an Advowson in the Right of his Wife and the Husband brings a Quare Impedit the Writ shall be general ad suam special Donationem without the mentioning of his Wife See the Book of Entries 483. the Writ is general but the Count is special And there is the very case of the Dutchy of Lancaster and then the Writ is general but the Count is ratione Ducatus sui Lancastr And such an avoidance of a Church parcel of the Dutchy may be granted under the Great Seal And see the case of the Dutchy of Lancaster in Plowden to that purpose and afterwards a President was shewed in An. 32 H. 6. where the Writ was general and the Count was Ratione Ducatus CCCVIII Pasch 33 Eliz. in the Common Pleas. A Man made a Lease for years to begin at the Feast of our Lady Mary for one and twenty years Lease without shewing the certainty at which Feasts the Annunciation Purification c. yet the Lease is good enough and the Lessee may determine the certainty of the beginning of the Term by his Entry at which of the said Feasts the said Term shall begin by Anderson chief Iustice but Periam doubted of it CCCIX Blagrave and Woods Case Pasch 33 Eliz. in the Common Pleas. IN an action of Trespass brought by Blagrave against Wood Surrender to the Steward out of Court. Co. 4 Rep. 20. of Lands in Totting in the County of Surrey concerning a Surrender made to the use of Sir Thomas Holcroft by Alice Pagnam 7 E. 6. before one Forcet then Steward there The Issue was If at the time of the said surrender the said Forcet was Steward of the said Manor And the Iury found a special Verdict scil That the said Forcet circa 9 Aprilis 7 E. 6. was retained by one Elizabeth Pagnam then before and afterwards Lady of the said Manor to be her Steward there for the keeping of the Courts of the said Manor and this Retainer was only by Word in the Countrey and no Fee or Annuity given for the exercise of the said Office and that the said Forcet according to the said Retainer had kept Courts there divers times And further that such a day and year at St. Dunstans in the East the said Forcet took a Surrender which was entred in the Rolls the next Court and that before that and after he took divers Surrenders as well out of Court as in Court and had holden divers Courts there And upon this Verdict it was moved by Snagg Serjeant That Forcet upon the matter found by the Verdict is not such a Steward that may take Surrenders out of Court being retained only by word although to do other Acts in Court he be a sufficient Steward for in the Court he is as a Iudge and no body is to dispute his Authority there And there is a great difference betwixt a Steward of a Manor and a Steward of Courts and a Steward of one Manor hath not as great an authority as the Steward of another Manor for a Steward of a Manor may take Surrenders in any place otherwise it is where a Steward is retained to keep Courts for he hath no authority to keep Court and all his power is within the Court Vide Co. 4 part 30. Dame Holcrâ—fts Caso and not without See 8 Eliz. Dyer 248. Drew Serjeant to the contrary Here Forcet upon this Retainder was Steward at the Will of the Lady of the Manor which Will shall not be said to be determined until the Lady doth discharge him and the difference which hath been taken betwixt Steward of Courts and a Steward of a Manor is nothing to the purpose for there is not any reason in it and it is true an Assise cannot be brought of such an Office without a Patent of it for it cannot pass for life without a Deed and although a Steward in the Courts of Copyholders be a Iudge yet he may be appointed without Deed as where two submit themselves to the arbitration of others now the Arbitrators are Iudges as to that intent and yet they may be appointed Arbitrators and discharged without Deed 19 H 6. 6. 5 E. 4. 3. 21 H. 6. 30. but they cannot by their award transfer Free-hold from one to another 21 E. 3. 26. 14 H. 4. 18. and 17. by Culpeper and Skreen and see as to a Steward retained by word 8 Eliz. 248. and see 12 H. 7. 25 26 27. where a Bayliff of a Manor may be appointed without Deed and so of an under-Sheriff and yet he is a Iudge Owen Serjant contrary Here Forcet at the time of this Surrender was not Steward but the Retainer void 1. No Fee is allowed unto him for the exercise of the said Office 3 H. 6. A Labourer may be retained without promise of any Sallary in certain for it is appointed by the Law. 2. He is not retained by Deed and although he may be retained without Deed to hold Court pro hac vice yet if the Retainer be for life or for years it ought to be by Deed. 3. He was retained to keep the Court but not to be Steward which shall be intended to hold Court and then when that is past his authority shall cease and then all which he doth afterwards is void But if he had been retained to be Steward of the Manor then the Surrender taken out of Court had been well enough 4. There is not any custom found by the Verdict to warrant such a Surrender taken out of Court and then if the Surrender be not warranted by their custom it is void Yelverton to the contrary In all cases in real actions which concern Lands the Suitors are the Iudges but in personal actions under the sum of forty shillings the Steward is Iudge and although he be a Iudge yet he may be appointed without Deed. And whereas it hath been objected that no Fee is appointed for the exercising of the Office the same is not material as to the Grant but the party is not compellable without a Fee to do the service and a man may be constituted Bayliff of such a Manor without Deed and yet more doth appertain to the Office of the Bayliff than to the
of her Dower of all his Lands and dyed and the said A. took to Husband the Defendant And that after betwixt the Plaintiff and Defendant colloquium quoddam habebatur c. upon which conference and communication the Defendant in consideration that the Plaintiff promised to pay to him the said one hundred pounds promised to make to him a discharge of the said one hundred pounds and also of the Dower of his Wife and shewed further that notwithstanding that the said Pett was ready and offered the said one hundred pounds and Dower also yet c. Vpon which there was a Demurrer in Law It was moved by Tan. that here is not any cause to have a prohibition for the agreement upon the communication is not any cause for it doth not appear that it was performed Coke A Prohibition lieth for the Wife cannot have both money and Dower for that was not the meaning of the Devisor and therefore it hath been holden that if a man deviseth a Term for years to his Wife in satisfaction and recompence of her Dower if she recovereth Dower she hath lost her Term Also here is modus and conventio which alters the Law scil mutual agreement So if the Parson and one of the Parishioners agree betwixt them that for forty shillings per annum he shall retain his Tithes for three years c. as it was in the Case betwixt Green and Pendleton c. it is good CCCXIX. Martingdall and Andrews Case Mich. 32 33. Eliz. In Banco Regis Action upon the case for Wast IN an Action upon the Case the Plaintiff declared that one Mildmay was seised of a House in A. and that he and all those whose estate c. time out of mind c. have had a way over certain Lands of the Defendants called C. pro quibusdam averiis suis and shewed that the said Mildmay enfeoffed him of the said House and that the Defendant stopt the said way to his damage c. And it was found for the Plaintiff and it was moved in Arrest of Iudgment that the title to the way is not certainly set forth i.e. pro quibusdam averiis suis quod omnes Justiciarii concesserunt But Gawdy Iustice conceived that the same was no cause to stay Iudgment For it appeareth to us that the Plaintiff hath cause of Action although that the matter be incertainly alleadged and of this incertainty the Defendant hath lost the advantage having surceased his time by pleading to it as 20 E. 3. Trespass for taking and carrying away of Charters the Defendant pleaded Not guilty and it was found for the Plaintiff to the damage c. And Error was brought because the Plaintiff had not set down in his Declaration the certainty of the Lands comprized in the Charters But non allocatur for the Defendant ought to have challenged that before and also 47 E. 3. 3. In a Writ of Covenant the Plaintiff declared of a Covenant by which the Defendant covenanted with the Plaintiff to assure to him all his Lands and Tenements which he had in the Counties of Gloucester and Lincoln and declared that at a certain day he required the Defendant to make him assurance of all the Lands c. And the Writ of Covenant was general quod teneat conventionem de omnibus terris quas habeat in c. And it was objected as here that the Writ wanted certainty as how many Acres or such a Mannor but non allocatur for here the Plaintiff is not to recover Land but only Damages and the Writ was awarded good Fenner Iustice the Cases are not like to the Case at Bar for in the said Cases the certainty is not needful but for the taxing of the Damages but here the certainty of the number of the Cattel is part of the title CCCXX Beale and Taylors Case Mich. 32 33 Eliz. In the Kings Bench. UPon Evidence to a Iury Leases 1 Cro. 222. it was holden by Gawdy and Clench Iustices that if a Lease for years be made and the Lessor covenants to repair during the Term if now the Lessor will not do it the Lessee himself may do it and pay himself by way of Retainer of so much out of the Rent which see 12 H. 8. 1. 14 H. 4. 316. Retainer of Rent A Lease for years by Indenture and the Lessor covenants to repair the Houses and afterwards the Lessor commands the Lessee to mend the Houses with the Rent who doth it accordingly and expends the Rent in the charges c. So 11 R. 2. Bar. 242. The Lessor covenants that the Lessee shall repair the Tenements when they are ruinous at the charge of the Lessor In debt for the Rent the Lessee pleaded that matter and that according to the Covenant he had repaired the Tenements being then ruinous with the Rent and demanded Iudgment if action Jones 242. Yelv. 43. c. and good Fenner Iustice contrary for each shall have action against the other if there be not an express Covenant to do it Quaere If the Lessor covenant to discharge the Land leased and the Lessee of all Rent-Charges issuing out of it If a Rent-charge be due if the Lessee may pay it out of his own Rent to the Lessor ad quod non fuit responsum CCCXXI. Offley and Saltingston and Paynes Case Mich. 32 33 Eliz. In the Kings Bench. OFfley and Saltingston late Sheriffs of London Escape 1 Cro. 237. brought an Action upon the Case against Payne because that he being in Execution under their custody for fifty three pounds in which he was condemned at the Suit of one Spicer made an escape the debt not satisfied by reason whereof they were compelled to pay the money The Defendant confessed all the matter but further pleaded that after the Escape Spicer had acknowledged satisfaction being after the Escape upon Record of the sum recovered upon which there was a Demurrer Owen Serjeant argued that the acknowleding of satisfaction being after the Escape was not any Plea for when the Plaintiffs Sheriffs have paid the money recovered there was no reason that Spicers acknowledging satisfaction should stop the Sheriffs of their Remedy against Payne It was holden by the Iustices that the Plaintiffs in this Action ought to shew that they had been impleaded by him who recovered for they cannot have this Action before they are sued For perhaps the Plaintiffs who recovered must be contented to hold themselves to the Defendant and to be satisfied by him It was said by Glanvil Serjeant that by the Escape the Debt was cast upon the Sheriffs and the Defendant discharged and that it was the Case of Sir Gervas Clyfton who being Sheriff suffered him who was in Execution and in his custody to go and see a Play and the same was adjudged an Escape and the party could not be in Execution again And then he said that this acknowledgment of satisfaction could not be any Bar to the
chargeth the Defendant with cutting of Wood without the assent and assignment of the Lessor so he would compel us to prove more than we ought for if he did it with their assent only or by their assignment only it is sufficient but if the Covenant had been in the copulative both was necessary And for the nature of Copulatives he cited the Case where two Churchwardens bring an Action of Trespass the Defendant pleads That the Plaintiffs are not Churchwardens upon which they are at Issue The Iury find That the one was Church-warden and the other not and for that the Plaintiffs could not have Iudgment for if the one of them be not Churchwarden then the Plaintiffs are not Churchwardens for the copulatives ought not to be disjoyned And he cited the case lately ruled in the Common Pleas betwixt Ognel and Underwood concerning Crucifield Grange A. leased unto B. certain Lands for forty years B. leased part of the same to C. for ten years A. grants a Rent-charge out of the Lands in tenura occupatione B. It was resolved That the Lands leased to C. should not be charged with that Rent for although it was in tenura B. yet it was not in his occupation and both are exquisite because in the copulative So here the Lessee may cut Wood with the assent of the Lessor without any assignment Also here the substance of the covenant cannot charge the Defendant for although it be in the Negative yet it is not absolute in the Negative but doth refer unto the covenant precedent for the words are That the Lessee shall not cut Woods aliter quam according to the intent of the Indenture where the covenant precedent is not that the Lessee shall not cut Woods but in the Dole but that the Lessor might cut down any Trees in the Dole leaving sufficient for the Lessee which covenant in it self doth not restrain the Lessee to cut down any Trees in any part of the Lands demised nor abridgeth the power which the Law giveth to him by reason of the demise Then when this last covenant comes i. e. That the Lessee will not cut aliter then according to the meaning of the Indenture without the assent c. the same doth not restrain him from the power which the meaning of the Indenture gives and so no breach of covenant can be assigned in this For by virtue of the Lease the Lessee of common Right may take necessary Fuel upon any part of the Land leased Also this first covenant being in the Affirmative doth not abridge any Interest as 28 H. 8. 19. The Lessor covenants That the Lessee shall have sufficient Hedge-boot by assignment of the Baily It is holden by Baldwin and Shelley That the Lessee may take it without assignment because there are no Negative words non aliter So 8 E. 3. 10. A Rent of ten pounds was granted to Husband and Wife and if the Husband overlive his Wife that he shall have three pounds Rent and if the Wife do over-live the Husband she shall have forty shillings there it was holden that the Rent of ten pounds continued not restrained by the severance of any of them And although peradventure it appeareth here that the meaning of the parties was That the Lessee should not cut down any Wood but in the Dole yet forasmuch as such meaning doth not stand with the Law it shall be rejected as it was holden to be in the case betwixt Benet and French where a man seised of divers Lands devised parcel of it called Gages to the erecting of a School and another parcel unto B. in fee and all his other Lands unto one French in Fee The devise of Gages was holden void because too general for no person is named and it was further holden that it passed by the general devise to French and yet that was not the meaning of the Devisor Also the Plaintiff is not Assignee but of parcel of the Reversion for if the Reversion is granted to him for years Owen Rep. 152. 1 Co. 215. and such Assignee cannot have an Action of Covenant for a Covenant is a thing in Action and annexed to the Reversion so that if the Reversion doth not continue in its first course as it was at the time of the creation of the Covenant but be altered or divided the Covenant is destroyed and therefore it was holden 32 H. 8. betwixt Wiseman and Warringer where a Lease for years was made of one hundred Acres of Lands rendring ten pound Rent and afterwards the Lessor granted fifty Acres of it that the Grantee should not have any part of the Rent but all the Rent was destroyed So in our case here the Grantee hath but parcel of the estate a Term for years and so is not an Assignee intended as the case betwixt Randal and Brown in the Court of Wards â— Co 96â—â—â—â— Randal being seised of certain Lands covenanted with B. that if he pay unto him his Heirs and Assigns five hundred pounds that then he and his Heirs would stand seised to the use of the said B. and his Heirs Randal devised the Land to his Wife during the minority of his Son the Remainder to his Son in Fee and died having made his Wife his Executrix Brown at the day and place tendred the money generally the Wife having but an estate for years in the Land took the money It was holden that the same was not a sufficient tender for the Wife is not Assignee for she hath an Interest but for years and here the Son is to bear the loss for by a lawful Tender the Inheritance shall be devested out of him and therefore the Tender ought to be made to him and not to his Wife Also as the case is here he is no Assignee for although Charles Grice and his Wife hath the Reversion to them and the Heirs of the body of Charles and levy a Fine without Proclamations nothing passeth but his own estate and then the Conusee hath not any estate Raph. Rep. 91. â— Câ—o. 804. â—05 but during the life of Charles and then when a man is seised to him and his Heirs during the life of another he hath not such an estate as he can devise by the Statute and then when he deviseth it to his Wife for years it is void c. It was adjorned CCCXL Smith and Hitchcocks Case Trin. 33 Eliz. In the Kings Bench. Assumpsit â— Câ—o. 201. IN an Action upon the Case the Plaintiff declared that whereas the Defendant was indebted to him 19 Maii 30 Eliz. The Defendant in consideration that the Plaintiff would forbear to sue him until such a day after promised at the said day to pay the debt The Defendant pleaded how that 29 Maii 29 Eliz. he was indebted unto the Plaintiff in the said sum for assurance of which afterwards he acknowledged a Statute to the Plaintiff upon which he had Execution and had levied the money absque
b. Sur Conusans de droit come ceo que il ad of the gift of the Husband that the same is not any Bar to the Wife of her Dower for the Election is not given to the VVife to claim her Ioynture or her Dower until after the Death of her Husband And so in the principal case Iudgment was given for the VVife CCCLXXXVII Le es Case Pasch 26. Eliz. In the Kings Bench. NIcholas Lee by his will devised his Lands to William his second Son Devise 1 Cro. 26. 3 Len. 106. And if he depart this VVorld not having issue Then I will that my Sons in Law shall sell my Lands the Devisor at the time of his devise having sir Sons in Law dyed William had Issue John and dyed John dyed without Issue one of the Sons in Law of the Devisor dyed the five surviving Sons in Law sold the Lands First it was clearly resolved by the whole Court That although the words of the Will are ut supra If William my Son depart this world not having Issue c. And that William had Issue who dyed without Issue here although it cannot be litterally said That William did depart this World not having issue yet the intent of the Devisor is not to be restrained to the letter that such construction shall be made That whensoever William dyeth in Law or upon the matter without Issue that the Land shall be subject to sale according to the authority committed by the Devisor to his Sons in Law And now upon the matter William is dead without Issue As in a Formedon in Reverter or Remainder although that the Donee in tail hath issue yet if after the estate tail be spent the Writ shall suppose that the Donee dyed without Issue a fortiori in the Case of a Will or Devise such construction shall be made As to the other point concerning the sale of the Lands Wray asked If the Sons in Law were named in the Will and the Clerks answered No See 30 H. 8. Br. Devise 31. and 39 Ass 17. Executors 117. such a sale good in case of Executors See also 23 Eliz. Dyer 371. and Dyer 4 5. Phil. and Mary Lands devised in tail and if the Devisee shall dye without Issue that then the Land shall be sold pro optimo valore by his Executors una cum assensu A. if A. dyeth before sale the power of the Executors is determined And afterwards it was clearly resolved by the whole Court That the sale for the manner was good and Iudgment was given accordingly CCCLXXXVIII Sir Gilbert Gerrard and Sherringtons Case Pasch 20 Eliz. In the Kings Bench. SIr Gilbert Gerrard Master of the Rolls Libelled in the Spiritual Court against Sherrington and A. his Servant for Tithes parcel of a Rectory whereof the said Sir Gilbert was Fermor to the Queen It was moved by Egerton Solicitor General That against the Kings Fermor a Prohibition doth not lye But the opinion of the whole Court was That a Prohibition doth lye and so it hath been adjudged before And afterwards Exception was taken to the surmise because the said Sir Gilbert had Libelled against the said Sherrington and his Servant severally Owen Rep. 13. Yelv. Rep. 128. and now in the Kings Bench they both had made a joynt surmise whereas they ought to have severed in their surmises according to the several Libels And it was so adjudged by the Court and therefore they were driven to make several surmises And afterwards Exception was taken because the said Sherrington and his Servant had delivered their surmises and suggestions by Attorney where they ought to be in proper person See the Statute of 2 E. 6. cap. 13. The party shall bring and deliver to the hands of some of the Iustices of the same Court c. the true Copy of the Libel c. subscribed or marked with the hand of the Party c. and under the Copy shall be written the surmise or suggestion And although it was affirmed by the Clerks of the Court that the common use and practice for twenty years had been not to exhibit such surmises or suggestions by Attorney Yet it was resolved by the whole Court that it ought to be by Attorney CCCLXXXIX Short and Shorts Case Pasch 26. Eliz. In the Kings Bench. IN an Action upon the Case upon Assumpsit to pay mony to the Plaintiff upon Request It was agreed Request That the Plaintiff by way of Declaration ought to alledge an actual Request and at what place and at what day the Request was made And it is not sufficient to say as in an Action of Debt Licet saepius requisitus c. and so it was adjudged CCCXC Pasch 26. Eliz. In the Kings Bench. ONe was Endicted in the County of Linc upon the Statutes of Wâ—st Indictment upon the Statute of news 1. Cap. 33. and 2 R. 2. Cap. 5. of News and the words were That Campian was not executed for treason but for Religion and that he was as honest a man as Cranmer the Bill was endorsed Billa vera but whether ista verba prolata fuerunt malitlose seditiose or e contr ignoramus The same Indictment being removed into the Kings Bench the party for the causes aforesaid was discharged CCCXCI Cole and Friendships Case Pasch 26. Eliz. In the Kings Bench. IN Ejectione firmae the Case was That Fricarrooâ— was seised Leases 4 Len. 64. and by Indenture betwixt himself of the one part and one Friendship his Wife and the Children betwixt them begotten at the Assignment of the Husband of the other part leased the said Land to the said Husband his Wife and their Children at the Assignment of the Husband for years they having at the time of the said Lease but one Child â— a Son Assignment afterwards they had many Children the wife dyed the Husband by his will assigned his second Son born after the making of the Lease to have the residue of the said Term and by the opinion of the Court nothing can come to the said Son by that Lease or by that assignment for if the Interest doth not vest at the beginning it shall never vest And afterwards is was moved In as much as nothing could vest in any of the Children born after the Lease made if these words At the Assignment of the Husband should be void and then the case should be no more but that Land is devised to the Father and Mother and their Children At another day viz. Trin. 26 Eliz. the case was moved again and as to the first Point the Court was of opinion as before That the Child assigned after the Lease made should not take And then it was moved That because Friendship and his Wife at the time of the making of the said Lease had one Son that he should take with his Father and Mother and that the words at the Assignment of Friendship should be void is matter of surplusage and the
case 39 Eliz. and Damports case 45 Eliz. And this Act of 13 Eliz. is general in respect of time for it extendeth to all time after from henceforth and to all persons to whom such Leases shall be made the words the Statute are scil To any person or persons in respect of persons who shall lease all spiritual persons General in respect of the end which is the maintenance of learning which extends to the common profit c. Drew Serjeant That this act of 13 Eliz is general in respect of restraint only and extends only to spiritual persons and therefore ought to be pleaded for otherwise the Court shall not take notice of it As the Statute of 23 H. 6. of Sheriffs ought to be pleaded which see in the Case of Dive and Manningham Plowden 64 65. Co. 1 Inst 45. And although the Statute ought to be pleaded Yet this Lease is not void against the Warden who made it but against his Successor although no rent be reserved upon it notwithstanding that the perclose of the Statute be utterly void and of none effect to all intents constructions and purposes So upon the Statute of 1 Eliz. concerning Leases made by Bishops the Law had been so taken in the case of the Bishop of Coventry and Lichfeild upon a Grant of the next Avoidance That although it doth not bind the Successors yet it shall bind the Grantor himself So here this Lease being made by the present Warden and Fellows of the Colledge aforesaid although it be not sufficient to bind the Successor yet it shall bind the Warden who made the Lease Puckering contrary And as to the case of 13 E. 4. 8. the reason there is because there is an Exception in the said Statute of divers Grants made by King H. 6. and therefore the said Act ought to be specially pleaded And see 34 H. 6. 34. by Prisoit But in this Act of 13 Eliz. there is not any Exception and although it be a general Act with a Restraint yet such an Act ought not to be pleaded and therefore 27 H. 8. 23. in an Action upon the Statute of 21 H. 8. for taking of Lands to Ferm by spiritual persons he need not make mention of the Statute And afterwards the Iustices did advise upon this point whether the Lease be so void that it be void against a stranger So as the Defendant who doth not claim under the Colledge and who hath no title to the Land may avoid it And Periam Iustice denied the Case put by Puckering A. morgages Lands to B. upon a usurious contract for one hundred pounds and before the day of payment B. is ousted by C. against whom B. brings an Action C. cannot plead the Statute of Vsury for he hath no title For the estate is void against the Mortgagor Another Exception was taken to the Declaration because the Plaintiff had declared upon a Lease by the Warden and Fellows without naming any name of the Warden 13 E. 4. 8. 18 E. 4. 8. In Trespass the Defendant doth justifie because that the Free-hold was in the Dean and Chapter and he as Servant and by their commandment entred And Exception was taken to that Plea because he hath not shewed the name of the Dean scil the proper name So if a Lease be made by Dean and Chapter in these words Nos Decan Capituli the same Lease is void which was granted by the Court and 12 H. 4251. A Provost granted an Annuity by the name of Provost of such a Colledge without any name of Baptism and afterwards the Grantee brought a Writ of Annuity against the Successor of the said Provost and by Hull The Writ is well enough but the Christian name ought to be set down in the Writ So here because that the name of Baptism of the Warden is not in the Declaration the same is not good But the opinion of the whole Court was That the Declaration is good enough and they did rely especially upon the Book of 21 E 4. 15 16. Where Debt is brought by the Dean and Chapter without any Christian name and the Writ holden good Anderson It stands with reason That for as much as the Colledge was incorporated by the name of Warden and Fellows and not by any Christian name that they may purchase and lease by such name without any Christian name and may be impleaded and implead others by such name and as the Fellows in such case need not to be named by their Christian names no more ought the Warden But of a Parson Vicar Chauntry Priest it is otherwise for in such case the name of Baptism ought to be added It was also objected That because the Letter of Attorney was to enter in the Manor and all the Lands and Tenements of the Colledge in such a Town and to seal the Indenture of Lease in the name of the Lessors and to deliver it to the Plaintiff as their Deed now the Attorney in executing of this Warrant hath not pursued it for he hath only entred into the Lands but it is not found that he entred into the Manor and so the Lease is void And it was said by Puckering That if I lease two Acres in two several Counties rendring for the one Acre 10 s. and for the other Acre 10 s. and make a Letter of Attorney to make Livery in both if the Attorney entreth into one Acre and makes Livery the same is void for the Attorney hath not pursued his authority for peradventure I would not have leased the Acre whereof Livery is made for such rent of 10 s. being perhaps of greater value but with the other Acre which was of lesser value and so the mis-executing of my warrant shall prejudice me Windham Perhaps if one entire Rent had been reserved out of both Acres it may be that by the Livery in one Acre all is void But by Puckering one entire Rent cannot be reserved upon such a Lease of two Acres in several Counties Walmesley denied the Case put by Puckering for the authority is executed well enough for it doth not appear upon the Verdict but that the Colledge was in possession at the time of the Lease made and then there needed not any such Entry but the bare sealing and delivery of the Attorney is good enough And also it doth not appear by Verdict That the Colledge hath any Manor and therefore it shall be so intended and then the Case is no other but that A man leaseth a Manor and certain Lands in D. and makes a Letter of Attorney to make Livery of them where he hath nothing in the Manor and the Attorney makes Livery of the Land without medling with the Manor the same is a good Livery and the authority duly executed But if it had been expresly found that the Colledge had such a Manor there then the Entry in the Land only without medling with the Manor and the Livery made accordingly should not be good But
293 306 362 383 387 409 436 Construction of them 16 42 To Executors to sell 38 42 78 254 To an use 342 Diminution 28 Distress 16 64 78 315 338 Discontinuance of suit 142 Discontinuance of Lands and Estate 150 157 172 Distent 154 163 Where it takes away Entry 293 Disseisin 163 Dower 48 71 118 119 187 233 383 Of Gavelkind 83 182 431 Dutchy Lands 307 The Kings prerogative in them 15 E. EJectione firmae 331 Not of a Tenement 265 Ejectione Custodiae lieth not of a Copihold estate 463 Elegit 65 247 Election 36 52 67 92 289 342 360 Enrolment 10 Endowment 13 Enfant 156 297 Entry 46 66 79 163 165 427 446 For forfeiture 345 Enquiry of damages 197 278 Escape 165 145 203 321 274 Estates 150 219 221 297 288 311 Vested shall not be divested 345 Essoin 184 Estoppell 122 220 224 286 437 Error 12 28 52 71 137 207 228 238 245 246 260 452 By Executors to reverse an Attainder of their Testator 452 278 317 327 328 343 346 363 397 402 412 415 445 365 By Journeys accounts 28 Upon Outlawry 37 Upon Recovery in Assize 69 In assessing damages 71 For want of Averment 121 Upon a common Recovery 181 To reverse a Fine by an Enfant 445 Evidence 70 192 215 414 Exchange 386 Executors 78 311 459 Where they shall have Error or other Actions 459 Where charged of their own goods 87 121 153 Renunciation of them 185 Have action de bonis testatoris 278 Execution 65 202 247 460 200 313 378 Where joynt where several 392 Against a person attainted where not 466 Exception 158 160 79 Extortion 114 327 Extent 366 Extinguishment 15 135 250 56 Exposition of words and sentences 240 326 439 468 Of the word De and vocat 22â— Of the word Term 306 Of the word Uterque 326 Of the Statute of 32 and 33 H. 8. 358 Of the Statute of 21 H. cap. 19. 413 Examination who is to be examined upon the Statute of 27 Eliz. of Huy and Cry 456 F. FAlse imprisonment 462 Feoffments and faits 31 171 172 204 256 288 Per nomen 343 Upon condition 361 Feme covert 166 Fine upon Jurors 181 For Alienation without License 11 50 113 Not paid by Non compos mentis 11 Not payable upon settlement by Parliament 113 Post Fines 338 Fines levied 51 66 81 85 102 187 188 297 330 Where shall not bind a Feme covert 386 Reversed 157 445 Where shall be a breach of Condition 409 Levied by Prescription 265 By Tenant in tail in Remainder 361 Formedon 105 154 Forgery of false Deeds 192 Forfeiture 51 66 84 139 171 297 254 400 Founder and Foundation 49 Fresh Suits 72 Fugitives 12 G. GUardian in socage 454 Gavelkind 154 450 Grants 205 433 380 Of Executors of omnia bona sua 351 Grants of the King 12 33 36 49 162 179 237 280 334 338 451 467 Grants insufficient in point of Limitation shall not be supplied with subsequent words 14 H. HAbendum 13 73 446 Habeas Corpus 93 94 460 I. INtrusion 12 46 49 223 Indictments 9 146 337 363 404 Upon the Statute of 8 H. 6. 461 Upon the Statute of 23. of Recusancy 321 326 322 Upon the Statute of News 390 Informations 162 Upon Statute 1 Eliz. 405 Upon Statute of 23 Eliz. cap. 6. 60 Upon the Statute of Usury 125 161 Upon the Statute of Maintenance 231 291 Upon the Statute of 5 Eliz. for Tillage 319 Joynture 44 205 Joynder in Action 402 439 445 Issue 89 169 192 241 Judgment 89 428 In the Kings Court not defeated by particular customs 35 Where satisfied before a Statute 464 Jurors receiving mony doth not make the Verdict void 21 Fined for eating 181 Justification 462 K. KIng not bound to demand Rent 16 L. LEases 44 46 165 198 205 239 274 286 308 316 320 332 391 425 446 454 By Bishops 77 By Guardian of a Colledge 183 Within the Statute of 13 Eliz. 427 Leet 33 Letter of Attorney 427 Livery of Seisin 10 48 276 287 349 427 Doth prevent Enrolment 10 Libel in spiritual Court 13 127 151 174 175 M. MArriage 67 235 In right and possession 67 Mannor 33 289 Misnosmer 25 49 183 204 298 In Indictments 337 Where material where not 228 Mittimus 200 Monstrans de droit 279 Monstrans de faits 427 N. NOn-residency 129 Non-suit 142 Notice 39 139 141 Nusance 234 318 O. OBligation 129 132 164 192 214 281 Office of Marshal of the King 451 Of Herald 337 Of Marshal of the Kings Bench 451 Office Trove 27 50 85 223 Outlawry 84 280 108 148 190 Lies not upon a Judgment upon a Bill of Priviledge 465 P. PArtition 33 68 136 283 Payment where not good to the Wife 450 Post Fines 338 Plaint 415 Plenarty no Plea against the King 307 Pleadings 21 84 102 167 169 176 186 211 274 339 407 430 449 Non cepit where good 47 Nul tiel Record 85 114 Where Recovery is no Bar 90 Wherein Pleading must make a Title 58 Non damnificatus 95 General and particular ib. Good to common intent 102 Of a Fine ib. Amounts to the general Issue 251 Of Nonest factum 257 453 Out of his Fee 294 Fully administred 434 In disability where not allowed 466 Property 54 Primer seisin 85 341 Protection 93 258 Priviledge 365 Of Exceptions from Juries 287 Of London 384 Plurality 442 Prerogative 11 15 Prescription 14 100 102 143 147 199 249 299 315 336 Words of it 318 In a Stranger not Tenant 14 To erect Herdels 14 147 Where it shall not bind the King 438 For Common 100 To be a Justice of Peace 143 To levy a Fine not good 265 To distrain for Amerciaments 327 To Repair 438 by taking Wood in the Lands of another Man ib. Presentation 50 58 84 207 Repealed by the King 218 Passeth not by a Grant of Bona Catalla 28 By the Bishop who Collates shall not put the King out of possession 307 Praemunire 399 Proof 349 Process 65 Prohibition 123 127 174 175 176 177 208 255 325 336 376 367 318 325 388 411 442 467 Q. QUare Impedit 39 50 58 84 85 190 277 213 232 278 280 284 307 312 284 289 455 Causes of Refusal when good c. contr 39 312 R. RAzure of Deeds 381 Ravishment of Ward 152 Refusal of the Bishop 312 Remitter 40 48 85 118 172 Remainder 134 256 266 336 Upon a Contingent 330 Remitter 48 Redisseisin 90 Receipt 105 Retainer 153 320 Return of the Sheriff 65 200 201 202 312 459 Relation 11 355 Of matter of Record 257 Of a Judgment 264 Of an Execution 423 Rents 187 198 209 280 362 441 Reserved upon a Lease of Dutchy Lands 15 To be paid without demand ib. Charge parcel of a Manor 18 Cannot issue out of a Right 205 Charge out of Copyholds 8 Suspended by Entry 110 240 How to be demanded and when severally 271 425 In esse to some purposes and suspended to others 467 Reputation 18 33 49 Replication 56 102 194 Reversion 362 Cannot pass without Deed 429 Reservation 25 446 Restitution 461 Request 167 303 389 Repleader 102 114 Replevin 33 54 56 64 294 Revocation 113 Recovery 30 In Assise where a Bar 30 Vouchee must appear in person 101 Common Recovery by an Infant 296 S. SAles 225 Seals 12 310 Seisin 271 356 In Fact and in Law 318 Seisure 12 84 119 Scire facias 58 84 187 402 Where for the King è contr 84 Against Executors 84 Upon Audita Querela 195 Summons and Severance 445 Stewards of Manors and Courts 309 294 444 Statutes Construction of them 44 Where they ought to be pleaded where not 427 Supersedeas 189 Sur cui in vita 210 Surrenders 378 385 420 226 454 By the Steward out of Court 309 Vide Copyholds Amounts to an Attornment 408 Of one Termor to another not good 420 By Attorney not good 45 T. TAil 297 Tenant by the Curtesie 233 Tender 88 95 Upon a Mortgage 43 Upon an Award 55 Where it is no Revocation of uses 113 Toll 315 Traverse 12 49 53 56 58 64 68 102 207 213 277 304 331 340 429 467 Where the descent where the dying seised 429 Trespass Vi armis 110 Trover and Conversion 304 305 335 Not against a Feme Covert 433 Tithes 13 25 122 174 175 177 208 325 336 367 380 411 467 In London 25 Become Lay Chattels 29 Jurisdiction of them 76 Claimed by Prescription ib. Discharged by Unity 467 Trial 67 116 148 203 206 255 285 310 413 V. VAriance 175 228 33â—â— Verdict 86 118 181 426 View 30 106 59 Usurpation 58 84 307 Uses 188 288 330 What it is 279 And Declaration of them ib. Not rise out of an Use 10 Not out of a Possibility 279 Contingent raised 31 Void for want of Consideration 279 Limitation of them ib. Raised by Covenant and by Feoffment do differ ib. Suspended yet the Land devised 345 Contingent shall bind the Execution of an Estate in possession 345 Executed to the Possession 409 W. WAger of Law 119 229 282 VVardship 347 VVarning 82 VVills 155 311 VVitherâ—â—m 302 VVarrant of Attorney 246 VVarranty 252 VVast 62 79 86 220 282 359 By Cestuy que use 409 VVrit To the Bishop 84 85 278 289 Of right 212 236 the manner of proceeding in it 419 Of Enquiry of damages 278 FINIS
bargain for cloth as it is in this Case the same doth not maintain the Information So if the Information be granted upon usurious contract by way of mortgage and giveth in Evidence an usurious loan ut supra But if the Information had been conceived generally upon an usurious agreement and giveth in Evidence a loan the same is good enough for every loan is an agreement Manwood There cannot be any loan without bargain nor any forbearing without bargain for he contracts or bargains to do it viz. to lend or forbear Bargain of forbearing is where the first day of payment is not kept and the parties have agreed for a further day for payment c. And it appeareth in this Case that it was a bargain to forbear a sum of mony which should have been paid before And the Information here is upon a bargain by way of loan where was a bargain for forbearing Fuller this word Bargain in the Statute cannot be intended a bargain for wares or such things and so distinct from the other two things c. If in Information upon loan an usurious contract had been given in Evidence that would not maintain the Information And it was moved in this Case if the time of the loan or forbearance of the money shall be accounted according to eight twenty days to every month or by the months in the Kalender viz. January February c. And it seemed to some according to the days as in case of the Statute of 23 Eliz. of Recusants and others conceived contrary in both Cases And Fuller said That in the Case of policy of Assurance made to warrant a Ship one was bound to warrant a Ship for twelve months the truth was she did not perish within the time of the twelve months being accounted according to eight and twenty days but being accounted by the Kalender as January Feb. c. it perished c. and it was said and holden that he had not forfeited his Bond. Gent Baron If I lend one a hundred pounds without any contract for Interest and afterwards at the end of year he gives me twenty pounds for the loan thereof the same is within the Statute for my acceptance makes the offence without any bargain or contract And by Clarke Baron the place where the Defendant accepted excessive Interest ought to be shewed in the Information but not the place where the contract for the loan or forbearance was made for the same is not needful See the Case betwixt Stradling and Morgan Plowd 200. for the setting down of the place in the Declaration where the Extortion was committed The Information here is by way of corrupt bargain and loan The Defendant took at Dertford such a sum where the taking is layed apud Dertford but no place of the corrupt bargain or of the loan And by Gent. If I lend to Beesie for a year and afterwards he takes further forbearance of another year beyond the rate the same is within the Statute but in all Cases the place where the corrupt bargain was made ought to be certainly alledged Manwood Baron the Information is not good for the incertainty of the place where the corrupt bargain was made and although there are many Presidents on the Informes part it is not to purpose for they were admitted without exception and then they passed sub silentio and so of no force There are three things or rather degrees of offences within the Statute In usury within the Statute there ought to be corrupt loan cheivisance or shift 1. corruption 2. he ought to take more than eight pound for one hundred pounds 3. it ought to be for lending or forbearing There was a Case in this Court in the time of this Queen that the Defendant had taken more than ten pounds in the hundred pounds but in the Information no corruption in the bargain was alledged and therefore Iudgment was given against the Informer But in the Case at Bar corruption is set forth in facto and therefore as to that the Information is good enough As unto the forbearing giving of days of payment the same is alledged in the Information but not according to the Statute for the Statute is in the disjunctive but the Information is in the copulative here in our Case the issue is Not guilty under which general issue all the points of the Statute are included and ought to be tried as unto the corruption the same is not sufficiently laid for no place is assigned where the corrupt bargain was made ergo no visne for it to be tried ergo no trial can be ergo no issue for it ergo this point of the Statute doth not come in issue nor can it be tried upon the general issue Not guilty Also he held that all the Offence ought to be within the year for if one make a corrupt bargain for this year and ten years after he takes excessive usury the same is not within the Statute to inform upon it And in truth there is no such offence without corrupt bargain so as he conceived that the word Lending is a strange word but where the Statute is forbearing or giving day of payment in the Information it is giving and forbearing in the copulative that is good enough for the one word enforceth the other and is not double Also the Information hath not shewed whose money it is and therefore it is not good And afterwards Iudgment was given against the Informer and a Writ of Error thereupon brought in the Erchequer Chamber And it was argued by Popham Attorney General that Iudgment ought to have been given for the Queen and the Informer for the shewing of the place where the corrupt bargain was made needs not to be alledged in the Information for the offence punishable by the Statute is the receipt of excessive usury and not the contract And it was the Case of one Bird 20 Eliz. where the Plaintiff shewed the place of the Receipt and not of the contract and yet had Iudgment for the Queen without any exception to it before Iudgment or Error after for the contract is but inducement to the receipt and it shall be tried where the taking was therefore it is not necessary to shew the place of the bargain And it was adjorned CXXVI Saliard and Everats Case Mich. 30 Eliz. In the Exchequer THomas Saliard and Hen. Everat being Recusants convicted Recusants Owen Rep. 37. and not having paid twenty pounds for every month a Commission issued forth to enquire of their Goods and Lands in the County of Suffolk to levy thereon the Debt and penalty due to the Queen And now the Commission being returned the parties appeared and by their Council shewed that some of their Lands returned in the Commission are Copy-hold and prayed as to those Manus Dominae Reginae amoveantur and that upon the Statute of 29 Eliz. cap 5. concerning Recusants viz. that upon default of payment of penalties c.
the Right of the Complainants come ceo c. with warranty of the said Husband and Wife for which the Complainants did render a Rent of fifty pounds per annum with clause of distress in dictis Manerijs to the said John Amy the Heirs of Amy and also rendred the Tenements aforesaid with the Appurtenances to the said John and Amy for their lives the Remainder to the said Francis their Son in tail the Remainder to the said Amy and her Heirs and that John and Amy dyed by force whereof the said Rent descendeth to the said Plaintiff as Son and Heir of the said Amy and that the said Francis entred into the said Mannors as in his Remainder and was seised in tail and was seised of the said Rent by the Hands of the said Francis and afterwards thereof did enfeoff the said Garmons the Defendant c. The Tenant pleaded That the Plaintiff was never seised so as he could be disseised and if c. Nul tor nul disseisin which was found for the Plaintiff who had Iudgment and Execution upon which the Tenant brought a Writ of Error Stephens assigned Error First the Fine is levyed of two Manors inter alia so as no other Lands passed by the Fine besides the Manors and so the Rent is granted out of the said Lands and Manors and no other Lands which passed by the Fine and then upon the Plaintiffs own shewing it appears that all the Tenants of the Lands charged with the Rent in demand are not named in the Assize Second Error This Rent is granted only out of the Estate tail for Amy hath Fee in both as well the Rent as the Land and then when the Estate tail is determined the Rent is also determined and he hath not averred the life of the Tenant in tail or any of his Issue wherefore it shall be intended that he is dead without issue and then the Rent is gone and then he hath not any cause to have Assise Bourchier As to the first conceived and argued that it is not Error for although these words inter alia c. yet it shall not be intended that the Conusor had any other Lands or that the Rent is issuing out of other Lands than those two Manors which are expressed not inter alia As to the second the continuance of the tail needs not to be averred for the Tenant in tail hath enfeoffed the Tenant of the Land by which the estate tail is discontinued And although the Tenant in tail be dead without issue yet the Rent doth remain until Recovery of the Land by Formedon in the Remainder Fenner Iustice was of opinion Vaugh. Reâ— 175. That the Per nomen should go unto the Mannors only and should not extend to the inter alia For if a man in pleading saith that J.S. was seised of twenty acres of Land and thereof inter alia did enfeoff him per nomen of Green-wead the same shall not have reference to the inter alia but only to the twenty acres And the averment of the continuance of the Tail needs not for the Estate-tail is discontinued Gawdy Iustice was of opinion That the per nomen should go as well to the inter alia as to the two Manors and then all the Ter-tenants are not named in the Assise and the same not to be pleaded for it appears of the Plaintiffs own shewing and there needs no averment of the continuance of the Tail for the cause aforesaid Clench Iustice The per nomen doth refer to all which see by the Fine which shews that other Lands passed by the Fine than the said two Manors And as to the second point he said There needed no averment Gawdy As to the first Error the same cannot be saved by any way but to say That the Conusor was not seised of any other Lands than the said two Manors and then the Fine doth not extend unto it and then no Rent is granted out of it Fenner In the Common Pleas in the great case of Fines it was holden that in pleading of a Fine it needs not to say That the Conusor was seised for if the Conusor or Conusee were seised it is sufficient for such pleading is contrary in it self for a Fine sur conusance de droit come ceo c. doth suppose a precedent Gift It was also objected That here is a confusion in this Fine for the Rent is rendred to the Husband and Wife and to the Heirs of the Wife and the Land is rendred to the Husband and Wife for their lives the Remainder to Francis in Tail the remainder to the Wife and her Heirs And these matters cannot stand together in a Fine but the one will confound the other But as to that it was said that the Law shall Marshall these two renders so as they both shall stand And it is not like unto a Rent-service for a Rent-service issueth out of the whole Estate And therefore if a Remainder upon an Estate for life Eschears the Seigniory is gone even during the life of the Tenant for life which see 3 H. 6. 1. contrary of a Rent-charge For if the Grantee of a Rent in Fee purchaseth the remainder of the Land out of which it is depending out of an Estate for life he shall have the Rent during the life of the Tenant for life And of that opinion were all the three Iustices for the Conusors took by several Acts and the Estate is charged for it cometh under the Grant. Fenner Iustice There is a difference betwixt a Rent service and a Rent-charge or Common for that shall charge only the Possession but a Rent-charge shall charge the whole Estate And therefore if he who hath a Rent-service releaseth to him in the Remainder upon an Estate-tail or for life the Rent is extinct which Gawdy denied And this Case was put The Disseisee doth release to the Lessee for years of his Disseisor nihil operatur But if the Disseisor and Disseisee joyn in a Release to such Lessee the same is good for first it shall enure as the Release of the Disseisor and then of the Disseisee c. CCCXLIV Tedcastle and Hallywels Case Mich. 32 33 Eliz. In the Kings Bench. Debt 2 Roll. 594. 1 Cro. 234 235. IN Debt upon a Bond the Defendant pleaded That the Condition was That whereas John Hallywel had put himself to be an Apprentice to the Plaintiff if the Defendant John Hallywel during his Apprenticeship or any other for him by his consent or agreement take or riotously spend any of the Goods of his said Master the Plaintiff If then the Defendant within one month after notice thereof given to him do pay and satisfie the Plaintiff for all such sums of Monies Wares c. so taken or riotously spent by the Defendant or by any other by his procurement or consent the same being sufficiently proved that then c. The Defendant by protestation Quod nec