that Writ is a Praecipe quod reddat which doth not lie but against a Tenant of the Freehold And such is the opinion of Tilney 7 H. 4. 43. That if the Guardian holds in the Lands at the full age of the Heir or if the Tenant for years after the term expired holdeth over the Lands their Estates shall be adjudged a Fee. And in our Case here he doth not claim to hold in at the will of the Lessor for he hath done an act contrary to the will of the Lessor For he being Lord of the Manor in manner as aforesaid 3 Cro. 302. hath granted Estates by Copy and it is holden 12 E. 4. 12. by all the Iustices That if Tenant at will or Tenant at sufferance at will makes a Lease for years that the same is a Disseisin to the Lessor and the Tenant at will thereby gains the Freehold and the reason of the Book seems to be because he claims to hold a greater Estate than of right belongs unto him The second point was If Tenant at sufferance might grant Copies and he said that he might and such grant should be good because he is in by lawfull means and an Assise doth not lie against him as in the Book of 22 E. 4. 38. before and he is Dominus pro tempore And this Case is not like to the Cases where Copies are made by Abators or Disseisors for the Law doth adjudge that Copies made or granted by them are void and his act here as a Tenant at sufferance of making and granting of the Copies stands with the custome of the Manor which warrants them as in the Case of Grisbrook and Fox if an Administrator made by the Ordinary sells the goods of the Intestate and with the money thereof arising payeth the debts of the Intestate and afterwards he who was made Executor proves the Will he shall not avoid such sale of the goods because he hath made it according to Law and hath done no more than an Executor is compelled to doe So 12 H. 7. 25. b. If a Baily cut down trees to repair an ancient pail the same is good So 4 H. 7. 14. b. If he payeth a Quit Rent it is good And note 4 Mariae Br. Tenant by Copy 27. That the Lessee of a Manor in which there are Copyholds after the death of the Copyholder may admit the Heir of the Copyholder to the Land and so he may doe who hath but an Estate in the Manor durante bene placito and yet it seems by the Book that such a Tenant of the Manor cannot reserve and lessen Rent but he ought to reserve the ancient Rent or more Coke contrary And first he said that he who holdeth over the life of the Cestuy que use doth not gain any Fee where he comes in first by right for that he is but Tenant at sufferance 35 H. 8. Dyer 57. in the Case of the Lord Zouch Cestuy que use for life the remainder over in tail makes Lease for life of the Lessee he dieth the Lessee continueth his Estate and the opinion of the Iustices of the Common-Pleas and of others was that he is but a Tenant at sufferance for the Lease was not any discontinuance of the Remainder because he had authority by the Statute of Rich. 3. to make a Lease and that is intended of such Estate which he might lawfully doe and this is our Case and so it is adjudged already As to the second point I grant that Tenant for years or at will or at sufferance is Dominus pro tempore but there is a difference as unto granting of Copies by them For it was adjudged 25 Eliz. that they might grant Copies which are to be granted upon surrenders made by Copyholders As if a Copyholder doth surrender to the use of another they may accept of such a surrender and grant the Lands by Copy to him to whose use the surrender is made But if a Copyholder dieth they cannot grant voluntary Copies de novo And he said that Popham who argued the said Case in 25 Eliz. That this difference was agreed and so adjudged in one Sleer's Case And so 17 El. in the Case of one Stowley where the Case was That a Manor was devised to one and the Devisee entred and granted Copies and afterwards it was found that the Devise was void and it was there holden that Copies made by such Devisee upon surrenders were good and were not to be avoided but contrary of Copies made after the death of Tenants upon voluntary grants I grant that when Cestuy que use dieth the Estate for life is utterly void and gone and therefore he is in by wrong but he cannot thereby gain so great an Estate as a Disseisor because he came in at the first by right Atkinson put a difference betwixt Tenant at will and Tenant at sufferance for Tenant at will shall have aid but contrary of Tenant at sufferance as the Book is 11 H. 4. a Release to Tenant at will is good contrary to Tenant at sufferance when after the death of Cestuy que use he holdeth over he hath some interest scil to this purpose that he shall not be a wrong doer for he is neither Abator nor Desseisor therefore not a wrong doer and then if he be in by a right or rightfully he is then Dominus pro tempore and then the grants made by him by Copy are good 7 H. 7. 3. Tenant at sufferance was to justifie the distraining the cattel of another damage feasant Coke True it is the beasts of a stranger but not of the Tenant of the freehold Gawdy Iustice The Lessor cannot have Trespass against him before entry not because he is not a wrong doer but because it is his folly that he doth not enter All the Iustices did hold with the Plaintiff against the Copy granted and that he which granted it was but Tenant at sufferance and not a Desseisor nor had gained the Fee because he came in first by right And therefore they awarded that if the Defendant did not shew better cause that Iudgment should be entred for the Plaintiff LX. Trin. 29 Eliz. In the Exchequer IN the Exchequer Chamber there was this Case An Indenture Tripartite was betwixt three A. was one of them and he covenanted with them Et quolibet eorum And the Covenant was that the Land which he had aliened to one of them was discharged of all incumbrances and he to whom the limitation of the Lands was but a Writ of Covenant sole Buckley argued that it was well brought and cited the Case of 6 E. 2. Br. Covenant 49. where one covenanted with twenty to repair the Sea-banks and he did not repair against two of them and they two brought a Writ of Covenant solement and the Writ holden maintainable because they onely were damnified and so he said in this Case But notwithstanding this it was afterwards 5 Co. 18. viz. M. 30 Eliz.
Son living his Father cannot take as heir i. by limitation as Heir to his Father because that none can be said or held Heir to his Father as long as the Father be alive yet by way of Devise the Law shall favour the intention of the party and the intent of the Devisor shall prevail But all the Court was strongly against it and held that as well in Case of Devise as of Grant all is one Whereupon the Tenant produced Witnesses who affirmed upon their Oaths That the Devisor declared his meaning concerning the said Will That as long as his eldest Son had issue of his body that the Daughters should not have the Land but the Court utterly rejected the matter and Iudgment was given for the Plaintiff XCV the Countess of Linnox Case 29 Eliz. In the Exchequer IN this Case it was said by Manwood chief Baron That whereas the Cistercians c. had a Privilege that they should not pay Tithes for their Lands quas propriis manibus excolant but their Fermors should pay Tithes and now by the Statute of 31 H. 8. they are dissolved That the Queen and her Fermors should be discharged of such Tithes as the spiritual persons were for the Queen cannot excolere ergo her Fermors shall be discharged and so long as the Queen hath the Freehold her Fermors shall have such Privilege although she Leaseth for years or at Will But if the Queen granteth over the Reversion then the Fermors shall pay Tithes More Rep. 915. XCVI Golding 's Case Mich. 29 Eliz. In the King's-Bench IN an Action upon the Case against Gloding the Case was 1 Len. 296. 1 Cro. 50. Noy 18. A Feme sole being Tenant for life by Devise of Lands Leased the same for years to begin after her death and afterwards made another Lease 18 Octob. for twenty one years to the same Lessee to begin at Michaelmas before and the Pleading was Virtute cujus quidem dimissionis and the Lessee entred Crast Sanct. Mich. which was before the making of the Lease And upon the Grant of these two Leases the consideration of Assumpsit was grounded in an Action of the Case thereupon and six hundred pounds damages given And now this was moved in Arrest of Iudgment Coke for the Plaintiff Where two Considerations are laid down in the Declaration although that the one be void yet if the other be sufficient the Action upon the Assumpsit lieth and damages shall be taken accordingly And the Grant upon the Assumpsit was That both the Leases should be assigned to the Defendant and the Plaintiff hath declared accordingly although that one of the Leases be void And the Agreement was That the Plaintiff should assign totum statum titulum interesse suum quae habet in c. It appears here in the Pleading That the Lease was made the eighteenth of October and the Lessee did enter and was thereof possessed Crast Mich. which was before and so the Lessee then entering was a Disseisor But by Coke the same is not a Disseisin although that the Lessee entreth before the Lease made for there was a communication of a Lease although the Lease was not made before the eighteenth of October and peradventure it was by assent of the Lessor in which case it cannot be a Disseisin but be it a Disseisin yet in as much as he hath assigned all his interest quod ipse tunc habuit the Consideration is answered and he hath also delivered both the Indentures of Demise and hath granted all that which he might grant be such Grant void or good it is good Consideration enough as to us Egerton Solicitor contrary In every Action upon the Case upon a Promise there are three things considerable Consideration Promise and Breach of Promise As to the Consideration in our Case the Grant of the Lease which is to begin after the death of the Lessor is merely void And as to the second Consideration it appeareth That the Lessor at the time of the making of the Lease had but a Right for he was disseised for he who was afterwards the Lessee entred before he had any Lease made unto him and so here is not any consideration to ground the Assumpsit upon But admit that there be a consideration yet the Action doth not lie For 19 Eliz. a difference was taken by the Iustices scil When in the Declaration in an Action upon the Case two or more considerations are laid and are not collateral but pursuant As if I owe you an hundred pounds and I say That in consideration that I owe you 100 l. and in consideration that you shall give me 10 l. I promise to pay unto you the said hundred pounds which I owe you If you bring an Action upon the Case against me for the hundred pounds and lay in your Declaration both considerations although you do not pay me the ten pounds yet the Action lieth But where the considerations are not pursuant but meerly collateral and do not depend the one upon the other As in consideration that you are of my Councel and you shall ride with me to York I promise to give to you an hundred pounds there both considerations ought to be performed or otherwise the Action doth not lie and so here in the principal Case the considerations being collateral they both ought to be performed Afterwards upon consideration had of the Case by the Court Iudgment was given for the Plaintiff and it was said by Coke That there was not any Disseisin in the Case but he who entred was Tenant at sufferance by reason of the precedent communication XCVII Curtise and Cottel 's Case Trin. 28 Eliz. In the King's-Bench THE Case was this That one Bonham was seised of a Manor within which there were divers Customary Lands demisable by Copy for three lives The Lord of the Manor did demise some of those Lands to three Sisters Habendum to them for their lives successive for the Fine of 100 l. by them paid and they being seised accordingly the eldest Sister who was Tenant in possession took to Husband one Chapman after which the said Lord by Indenture leased the same Land to the eldest Sister the Remainder to the Husband the Remainder to the second Sister and no Agreement was made thereunto by the second Sister by Deed before or after the making of the Indenture but four days after the Lease made she agreed to it in the Country and then took to Husband Curtise and they entred claiming the said Land upon which Entry the Action was brought The point was That when the Lease by Indenture was made to the eldest Sister at which time no agreement was made by the second Sister who was in Remainder yet when after she agreed If by that Agreement her Right to the Copihold were extinct or not so as the interest of the eldest Sister being gone by the acceptance of the Estate by the Indenture the second Sister might come and claim
in which was parcel demised and demiseable according to the custome of the said Manor by Copy in Fee whereof Langley was a Copiholder in Fee c. and the said Earl so seised enfeoffed divers persons of the said Manor unto the use of himself for life and afterwards to the use of the Lord Lumley and Elizabeth his wife daughter of the said Earl and the heirs of their two bodies begotten who made a Lease of the said Customary lands by Indenture unto the Plaintiff for 100 years and the question was If by this Lease the lands be so severed from the Manor that the Copihold is extinct Walmesly took exception to the pleading for that Langley pleads That the custome within the Manor is That if any Copiholder seised of Customary lands of the said Manor dieth thereof seised having many sons That the youngest son shall inherit and he sheweth That the Lord of the said Manor granted to his father and his mother the said customary lands by Copy to have to his said father and mother and the heirs of his father c. And that his father died and that his mother survived him and died and he as youngest son according to the custome entred and he said That this custome set forth by the Defendant doth not maintain his entry For the custome intendeth but a general and immediate descent upon a Copy made unto a man and to his heirs but such is not the descent here for the wife surviveth during whose life the heir cannot enter nor is there here such Estate in the father of the Defendant unto whom the custome set forth in the Avowry can extend For the custome is alledged Where a Copyholder hath a Copyhold Estate to him and his heirs And here the Title of the Defendant is That a customary Estate was granted to the father and the mother and the heirs of the father so as this Estate is not within the Letter of the custome And to that purpose he cited the Case of Sir John Savage Sir John Savage's Case ante 109. late adjudged Where one entitled himself to a Copihold in this manner That within the Manor there is such a custome that if one taketh to wife any customary Tenant of the said Manor in Fee and hath issue by her he if he over-live such wife should be Tenant by the Curtesie and the Case in truth was That he married a woman who at the time of the marriage had not any Copihold but afterwards during the coverture a Copihold descended to her In that Case it was holden That no Tenancy by the Curtesie did accrue by that custome which did not extend but where the wife is a Copiholder at the marriage and a custome shall be in construction taken strictly and shall not be extended beyond the words of it And as to the matter in Law he said That by this Lease the custome was gone and then by consequence the customary Tenancy as to that land is determined for the Estate of the Copiholder is Secundum consuetudinem Manerii ad voluntatem Dom. And now by the Lease Langley cannot hold Secundum consuetudinem Manerii for now the services reserved upon the Copy and the advantages of Waste and other forfeitures are extinct so that if notwithstanding the Lease the customary interest should endure then such a Copiholder should hold this land discharged of all services c. in better Estate than any Freeholder at the Common Law and because the services in Law are discharge and cannot be recovered for that cause the customary interest is determined For the Case is 7 E. 4. 19. by Danby That the Copiholder shall have remedy against his Lord if he put him out for he payes a Fine when he enters but here during this Lease no Fine can be paid upon any descent c. and the Fine is the cause for which the Copiholder shall maintain his possession against the Lord But here no descent or surrender can be presented for there is not any Tenant who can do it See 21 E. 4. 80. by Brian As long as the Copiholder payeth unto the Lord the customs and services If the Lord putteth him out he shall have an Action of Trespass 42 E. 3. 25. If the Copiholder will not do his services the Lord shall seize the lands Dyer 100. 1 Cro. 35. And he resembled this Case to the case where the King grants lands probis hominibus de D. the same is a good Grant and that onely in respect of the Rent and for the reason of that it is a good Corporation But if the King releaseth the Rent the Corporation is dissolved and the Grant is become void Fenner Serjeant contrary and he said That by this Lease being the act of the Lord himself the customary interest is not determined c. And the whole Court was of clear opinion with Fenner That the Copihold did remain for otherwise by such practices of the Lords all the Copiholders in England might be defeated and if any prejudice be grown to the Lord by this act it is of his own doing and against his own act he shall not be relieved And by Periam Iustice The Lord by his act i. e. the making of the Lease hath destroyed his Seignory and lost the services as to this land And Windham Iustice said That the Lord himself had destroyed the custome as to the services but not as to the customary interest of the Tenant but the Lord Anderson was of opinion That the Rents and services do remain and if the Copiholder after such Lease committeth Waste that it is a forfeiture to the Lord and that will fall in evidence upon a trial although such Waste cannot be found by an ordinary presentment and the same Law which alloweth the Copiholder his Copihold interest against this Lease will allow unto the Lord his Rents and services and he said That the Lord shall have the Rents and services and not the Lessee Quod mirum against his own Lease See 33 Eliz. between Murrel and Smith now reported by the Lord Coke in his 4 Report fol. 20. CCLVIII. Russel and Broker 's Case Trin. 29 Eliz. In the Common Pleas. RUssel brought Trespass against Broker 3 Len. 218. for cutting down of four Oakes The Defendant pleaded That the place where c. and that he is seised of a Messuage in D. And that he and all those whose Estate he hath c. Habere consuerunt rationabile estoverium suum for fuel ad libitum suum capiendum in boscis subboscis arboribus ibidem crescentibus and that in quolibet tempore anni but in fawning time The Plaintiff by Replication said That the place where is within the Forrest of c. and that the Defendant and all those whose Estate c. Habere consueverunt rationabile estoverium suum de boscis c. per liberationem Forrestarii vel ejus Deputati prout boscus pati potest non ad exigentiam
made the Reservation and he relied much upon the last Reason urged by Harper upon the Statute of 27 H. 8. that this was limited to the Executors Co. 13. Rep. and not to him who limited it and therefore the possession shall be executed to the Executors to whom the use was limited and this term shall not be Assets in the hands of the Executors And he said That he had seen a Record 2 H. 8. setting forth That A. having Feoffees to his use devised that his Feoffees should sell his Lands who did accordingly now the money coming by the sale shall be Assets c. but it is not so limited in our case therefore it shall not be Assets A Lease is made to A. for life the Remainder to the right Heirs of B. B. purchaseth the Estate of A. the Estate in Remainder is not executed for it is not conveyed by the Grant of the first Grantor but by the Act of another person after the Grant. A Lease for life to A. the Remainder to a Feme sole for years they entermarry Waste is committed the Lessor brings an Action of Waste he shall recover as well the Estate for years as for life A. Leaseth unto B. for life the Remainder unto the Executors of A. for years the Remainder over in Fee to a stranger the Remainder for years is good for the Lessor cannot limit such an Estate to himself and the Executors shall take the Estate as Purchasors and the term shall be in abeyance untill the death of A. There was a case before the Lord Brook in the time of Queen Mary viz. A Lease was made for life Proviso that if the Lessee dieth within the term of sixty years that the Executors shall have the Lands as in the Right and Title of the Lessee pro termino totidem annorum which do amount to the number of sixty years to be accounted from the said Indenture The Opinion of the Iustices of the Common Pleas upon the Case was That the term was not in the Lessee for life So this future term in the principal Case was not in Tho. Cranmer But see that Case cited by Dyer reported by himself 4 Ma. 150. and there the opinion of the Court was That the same was not a Lease but a Covenant And afterwards in the principal Case Iudgment was given for the Plaintiff That the future term was not forfeited by the Attainder of Cranmer VIII 7 Eliz. In the Common Pleas. THE Case was Dyer 317. b. 318. a. J. S. is seised of a Close adjoyning to the Close of J. D. and J. S. ought to enclose against J. D. J. S. leaseth his Close to another for years rendring Rent J. D. puts in his cattle into his own Close who for want of enclosure escape into the Close of J. S. and before that they be levant and couchant Distress for Rent J. S. distrains them for his Rent It was said by Manwood Iustice that the distress was not well taken Doctor Student 150. 1 Inst 476. Brown 1 part 170. Roll Tit. Distress 1 part in toto for there is a difference when the cattel come upon the Lands of another in the default of the owner of the cattel as by escape or stray and where in the default of another For in the first case the Lord may distrain them before they be levant and couchant but in the latter case not Also a Rent reserved upon a Lease for years is a new Rent and not like unto an ancient Rent due upon an ancient Tenure betwixt the Lord and the Tenant For for a Rent reserved upon a Lease for years Roll 1 part 672. acc Hob. 265. Brown part 2 170. or for a Rent charge a man cannot distrain the cattel before they be levant and couchant upon the Lands although they come upon the Lands by escape estray c. Dyer The Lord cannot distrain the cattel which escape into the Land of his Tenant for want of enclosure of his Tenant before they be levant and couchant and yet the seignory is favoured for the antiquity of it But here is new Rent not in respect of any seignory but of reservation upon a Lease for years and therefore no distress before the cattel be levant and couchant upon the Lands Quod Harper Mounson concesserunt and Iudgment was given accordingly IX 17 Eliz. In the Common Pleas. Writ of Entry in the Per. THE Case was In a Writ of Entry in the Per against A. and B. A. pleaded several tenancy It was holden by Dyer chief Iustice that it is not any plea. Harper Iustice In Assise it is no plea for here the Land is not in demand Several Tenancy where no good Plea. but here it is a good plea and the Demandant ought to maintain his Writ Manwood In no action founded upon disseisin is this good For although the Demandant by policy will bring his Writ against the Tenant of the Land and another who he will name in the Writ upon trust and confidence and that he will not agree with the Tenant of the Lord in Dilatories for the Tenant of the Lands shall not be received to plead Dilatories Yet in that case several Tenancy is no plea for the Tenant but in a Formedon or other such like action which is not grounded upon disseisin if the Writ be brought in such manner as above the Tenant by policy that he may have the view and other reasonable delay may plead several Tenancy and so enforce the Demandant to maintain his Writ but contrary in the Case at Bar and so it was adjudged per Curiam X. Creswell and Cokes Case 19 Eliz. In the Common Pleas. Dyer 351. CReswell brought Debt against Coke and demanded 200 Marks upon the Statute of 13 Eliz. of fraudulent Deeds Gifts c. upon the second clause of the Statute Debt viz. That all parties or privies to such fraudulent Deed willingly putting in ure avowing c. as true simple Custome and given bona fide shall forfeit c. And shewed that one A. held of the Plaintiff 12 acres of customary Lands and died seised And that by the custome of the Manor Heriot the Lord was to have for a Heriot the best beast whereof his Tenant died possessed and farther shewed that the said A. in his life time and a little before his death being possessed of 30 Horses of the value of 200 Marks gave the said Horses to the Defendant with intent to defraud the Plaintiff and other Lords of their Heriots and that he went to the Defendant's house to seise his Heriot and the Desendant then strained the said Horses by reason of the Gift aforesaid for which the Action is brought To which the Defendant pleaded that the Plaintiff had seised one of the Horses nomine Herioti and as to the rest he did demurr in Law. Mounson Iustice was of opinion that the Plaintiff should recover the whole 200 Marks
ratione calumniae praedict ac praedict jurament tenebat proficua inde provenientia diutius quam aliter si praesens Triatio habita fuisset sine aliqua calumnia tenere potuisset See the Statute of 5 Eliz. against Perjury the words are grieved letted or molested c. LIV. George ap Rice 's Case Mich. 30 Eliz. In the King's-Bench George ap Rice Tenant in Tail after possibility of Issue extinct assigned his Estate to one A. against whom he in the Reversion brought a Quid juris clamat and it was adjudged that he should Attorn for although Tenant in Tail after possibility of Issue extinct himself is not compellable to attorn yet his Assignee shall attorn for the privilege is knit to the person who is in truth Tenant in Tail after possibility of Issue which cannot be the Assignee for by the Assignment the privity and the privilege are destroyed 1 Len. 290.291 And where the Defendant in a Quid juris clamat is adjudged to attorn Distress infinite shall issue forth against him to compell him to attorn and if he when he appears doth refuse to attorn he shall be imprisoned until he doth attorn And this Iudgment That the Assignee of Tenant in Tail after possibility should attorn being given in a Court in Wales was afterwards affirmed in a Writ of Error brought upon it in the King 's Bench. LV. Lucas and Picrost 's Case 30 Eliz. In the Common Pleas. THE Case was 3 Len. 137. That an Assise of Novel disseisin was brought in the County of Northumberland of two Acres of Land and as to one Acre the Defendant pleaded a Plea tryable in a Foreign County upon which the Issue was adjourned into the Common Pleas and from thence into the Foreign County where by Nisi prius it was found for the Plaintiff And now Snag Serjeant prayed Iudgment for the Plaintiff and cited the Book of 16 H. 7. 12. where Assise is adjourned in Bank for difficulty of the Verdict they there may give Iudgment But the whole Court is of contrary Opinion for here is another Acre the Title of which is to be tryed before the Iustices of the Assise before the Tryal of which no Iudgment shall be given for the Acre for which the Title is found And the Assise is properly depending before the Iustices of the Assise before whom the Plaintiff may discontinue his Assise And it is not like unto the Case of 6 Ass 4. 8 Ass 15. where in an Assise a Release dated in a Foreign County is pleaded which was denyed for which cause the Assise was adjourned in Bank and there found by Inquest not the Deed of the Plaintiff now the Plaintiff if he will release his damages shall have Iudgment of the Freehold presently But in our Case Postea 199. 14 H. 7. part 118. parcel of the Lands put in view doth remain not tryed which the Plaintiff cannot release as he may the damages And therefore the Court awarded That the Verdict should be sent back to the Iustices of the Assise LVI Povye 's Case Mich. 30 Eliz. In communi Banco POvy an Attorny of the King's Bench brought an Action of Trespass there against the Warden of the Fleet who came into the Common Pleas and demanded the Advice of the Court because he is an Officer of this Court and therefore ought not to be impleaded elsewhere But it was said by the Court 3 Cro. 180. That because that the Plaintiff hath also his Privilege in the King's Bench as well as the Defendant hath here this equality of Privilege shall render the parties at liberty and he shall have the benefit of the Privilege who first begins Suit and so the Warden of the Fleet was advised to answer LVII Inchley and Robinson 's Case Hill. 29 Eliz. In the Common Pleas. IN an Ejectione Firmae it was found by special Verdict Owen Rep. 88. 3 Len. 165 That King E. 6. was seised of the Manor and hundred of Fremmington and by his Letters Patents granted the same to Barnard in Fee rendering 130 l. per annum and also to hold by Homage and Fealty and afterwards Queen Mary reciting the said Grant by E. 6. and the Reservation upon it granted to Gartrude Marchioness of Exeter the Manor of Fremmington and the said Rents and Services and also the Manor of Camfield and other Lands and tenements to be holden by the twentieth part of a Knight's Fee Gertrude so seised devised to the Lord Montjoy the Manor of Fremmington the Manor of Camfield c. and also bequeathed divers sums of money to be levied of the premisses and they farther found That the said Rent of 230 l. was the full third part of the yearly value of all the Lands and Tenements of the Devisor The Question was If by those words of the Devise Of the Manor of Fremmington the Rent and Services of the Manor did pass i. the Rent and the Homage and the Fealty reserved the Grant of King E. 6. of the Manor and Hundred of Fremmington and if the said Rent and Services are issuing out of the Manor for if the Rent doth not pass then the same is descended to the Heir of the Marchioness and then being found the full and third part of the value the King and the Heir is fully answered and satisfied and then the Inheritance of the residue discharged and settled in the Devisee And if the Rent doth not pass then is the Heir of the Marchioness entitled by the Statute to a third part of the whole Shuttleworth Serjeant If the Marquess had devised by express words the said Rent and Services they could not have passed for as to the Services they are entire things as Homage and Fealty and they cannot pass by Devise in case where Partition is to follow for such things cannot receive any Partition or Division therefore they are not divisible for the Statute doth enable the Proprietor or Owner to devise two parts of his Inheritances in three parts to be divided i. as Catalla Felonum cannot be devised for the reason aforesaid which was granted by the whole Court. And as to the Devise he argued much upon the grounds of Devises and put a ground put by Fineax 15 H. 7. 12. where every Will ought to be construed and taken according as the words do import or as it may be intended or implyed by the words what the meaning of the Testator was out of the words of the Will. See thereof a good Case 19 H. 8. 8. and 9. and he relied much upon the Case of Bret and Rigden Plow 342. So he said in this case because the intent of the Devisor doth not appear upon the words of the Will that this Rent should pass it shall not pass for there is not any mention made of any Rent in all the Will. Fenner contrary and he argued much upon the favorable construction which the Law gives to Wills 14 H. 3. Reversion for Remainder
a stranger abateth after the death of the Devisor and dieth seised the same shall take away the descent CCXL The Case of the Town of Leicester for Toll Trin. 28 Eliz. In the King's-Bench 2 Inst AN Action of Trespass Tam pro Domina Regina quam pro seipso and shewed That the Town of Leicester is an ancient Town and ancient Demesne and the Inhabitants there have used to be discharged of Toll and that the Queen by her Letters Patents gave command to all Bailiffs Sheriffs Mayors c. That those of Leicester should be discharged of Toll and notwithstanding that That the Defendant took Toll c. Exception was taken because that the suit was prosecuted Tam pro Domina Regina quam pro seipso whereas the party grieved was onely to have the information See the Case 49 E. 36. Where the Writ is ad respondend tam pro nobis quam c. and no exception is taken to it Another exception The Plaintiff declares That Leicester is an ancient Town and ancient Demesne and doth not shew that it is parcel of a Manor See 20 E. 3. Ancient Demes 25. such exception is taken but after the Defendant pleads That all such Towns whereof the Land in question is parcell is ancient Demesne and such plea was holden good See 30 E. 3. 12. parcell of a Manor which is ancient Demesne and the Plaintiff replied Absque hoc that it is parcell of the Manor Another exception That Lands holden in Socage onely and no other ought to be discharged of Toll and here it is not shewed in the Declaration that the place where c. is holden in Socage To which it was answered That the same needs not to be set down in the Declaration for that is implied in these words Ancient Demesn for otherwise it cannot be but Socage Land onely and of no other Tenure A fourth Exception The Letters Patents here shewed in discharge are of no value for the King by his Letters Patents cannot disinherit any one Erg. nor discharge one of Toll wich is a kind of disinheritance To which it was said That the Plaintiff doth not declare of any Grant but of an usage or custome for those of ancient Demesn and farther hath commanded by the said Letters Patents that such customs and usages should hold place and upon the custome and the contempt this Action is grounded A fifth exception because the Plaintiff hath not shewed that the Toll whereof the Plaintiff hath counted was concerning things for provision for their houses manurance of their lands c. 7 H. 4. 111. In an Action upon the Case for not paying of Toll The Defendant said That he held certain lands of R. Lord of the Manor of H. which Manor is ancient Demesn of which Manor all the Tenants have been free to sell or buy beasts or other things for the manurance of their lands and maintenance of their houses without paying Toll in any Market or Fair c. And so justifies that he came to the same Market and bought certain beasts as the Plaintiff had declared and that some of them he used about his manurance of his lands and some of them he put into pasture to make them fat and more fit to be sold and afterwards he sold them at such a Fair c. and the opinion of the Court was with the Defendant And by Godfrey and Coke Such Tenants shall be discharged of Toll not onely for buying of things which concern their sustenance provision and manurance of their lands but also for all things bought as common merchandizes 28 Ass ult by Thorp Green and Seton of all things bought by any for his own use they shall be quit of Toll and then If the privilege of Tenants in ancient Demesn shall not be quit of Toll but for things bought for their sustenance provision and manurance of their lands they have no more favor than ordinary Subjects See 19 H. 6.66 Some are of opinion That such Tenants shall not pay Toll for things sold and bought coming upon their lands and touching their sustenance See F. N. B. 228. D. such Tenants are discharged of Toll for all things by them sold and bought by way of merchandize as also of things of necessity as sustenance And see Crook in the cases of Itiner 138. he conceives that such Tenants for merchandizes shall pay Toll as other merchants but see the Writ of F. N. B. 228. the words are De bonis rebus suis And Coke said That he had found the reason wherefore such Tenants should be quit of Toll throughout the Realm in an ancient Reading viz. That all the lands in the hands of Edw. the Confessor and Wil. the Conqueror set down in the Book of Doomsday were ancient Demesn and so called Terrae Regis and they were to provide victuals for the Kings Garrisons for then they were troublsome times and for those causes and because they made provisions for others they had many privileges amongst which this one Ut quietius aratra sua exercerent terram excolerent The Lord himself in ancient Demesn shall not have such privilege for his Seignory is pleadable at the Common Law Vid. F. N. B. 228. B. And he said That the Plaintiff ought to alledge that his lands are parcel of such a Manor for there cannot be ancient Demesn if there be not a Court and Suitors c. And he granted that such a Town might be ancient Demesn of the Crown but yet they shall not have the privileges and liberties which the Tenants in ancient Demesn have Towns were before Manors London hath the name of ancient Demesn and yet they have not such liberties nor the lands in it pleadable by Writ of right Close 7 H. 6. 31 32. Shute Iustice was of opinion That an Inhabitant within ancient Demesn although he be not Tenant shall have the privileges See for that F. N. B. 228. B. Tenants at will in ancient Demesn shall be discharged of Toll as well as Tenants of the Freehold for life or for years 37 H. 6. 27. by Moile London is ancient Demesn for they prescribe that a Villein who hath there dwelt c. shall not be taken from thence by Capias or Attachment Billing London is not in the Book of Doomsday Moile They make their Protestation in a Writ of Right Patent Littleton That is used in divers places and at this day in Exeter And by Clench If a Tenant in ancient Demesn levyeth a Fine of his lands then he shall not have the privilege untill the Fine be reversed Quod fuit concessum If the Lord of a Manor in ancient Demesn purchaseth all the Tenancies the whole privilege is gone which Coke denyed The Case was adjorned CCXLI. Lennard 's Case Trin. 28 Eliz. In the Common Pleas. 2 Roll. 787. 3 Len. 128. IN the Case of Lennard Custos Brevium who was Plaintiff in an Action of Trespass for breaking of his Close The Defendant pleaded
remain in the Feoffees who are put in Trust with it and therefore have interest in the Lands until all the Trusts be performed and therefore the second Wife was advised by her Council to make her Entry in name of the surviving Feoffee and the interest which the Feoffees have in the interim untill the execution of all the uses is a Fee-simple determinable for the whole interest is not devested or driven out of the Feoffees untill the whole Trust be accomplished i. untill all the uses limited upon the Feoffment are executed and have their full perfection And whereas it hath been alledged on the other side That upon the second Feoffment nothing passed out of the Feoffees for which it shall not be said in Law their Livery but that the Attorney shall be said the sole Disseisor As to that I conceive That whatsoever was lost in the Feoffees passed by that Livery If he in Reversion upon an Estate for life makes a Charter of a Feoffment and a Letter of Attorney to make Livery of seisin without words ad expellendas omnes c. if Livery be made by force thereof the Fee-simple shall pass And he cited a Case which was argued before all the Iustices of England reported by himself 2 and 3 Ma. 131. Divers Leases for years were made of the Demeans of an Abby after which the Reversion was granted to the Countess of Richmond for life after which King Edw. 6. granted the Reversion in Fee to the Earl of Warwick who made a Feoffment of all to certain persons to the use of his eldest Son and his Wife for her Iointure with a Letter of Attorney to make Livery and seisin the Attorney made Livery accordingly and by that Feoffment and Livery it was adjudged that the Fee-simple did pass So in our Case upon this second Feoffment a Disseisin is done to D. the first Wife and yet the right of the Feoffees doth pass thereby and although it shall not be taken in Law their Livery yet it shall be adjudged their confirmation because they have joined in the Deed and that shall bind their right to establish the same in the new Feoffees as if the Disseisee join in a Feoffee by Deed with the heir of the Disseisor And as to that which hath been objected that because at the time of the Feoffment the Feoffees had not any thing c. and therefore nothing shall pass and they have likened to the Case where the Father is disseised and the Son and heir doth release to the Disseisor the same shall not bind the heir after the death of his Father The same is not like our Case for there is a great difference betwixt a Release and a Feoffment for if the Son disseise the Father and maketh a Feoffment in Fee in the life of his Father notwithstanding that he had not any right at the time of the Feoffment yet he is bound XXVI Thurkettell and Tey 's Case Trin. 29 Eliz. In the King's-Bench Rot. 342. 1 Cro. 110 111. IN Debt by John Thurkettell against Edw. Tey and Mary his Wife Executrix of Robert Thurkettell the Case was That Agnes Thurkettell Mother of Robert the Testator devised certain Lands to Robert and afterwards devised 40 l. to the Plaintiff John upon condition that the said John Cum requisitus esset acquietaret retaxaret praedict Roberto omnes actiones reales personales querelas c. praedict 40 l. per dict voluntat legatis tantummodo exceptis Agnes died Robert made two Bonds to John The first was endorsed to pay 20 l. parcell of the said Legacy within a year after the death of the said Agnes so as the Plaintiff release according to the will of the said Agnes The second Obligation was with the same condition to pay 20 l. residue of the said Legacy within two years after the death of the said Agnes upon condition to release ut supra and all this matter was pleaded in barr And farther That Robert required the said John to make the Release c. which he refused and they were at issue upon the request and it was found for the Plaintiff i. Quod dict Robert. non requisivit c. upon which Verdict Iudgment was given for the Plaintiff upon which the Defendants brought Error because it appeareth upon the Record here quod Billa praedict prosecuta fuit infra duos annos post mortem dict Agnet sic ante diem solutionis For the second Bond see 46 E. 3. 28. by Finchden and Persay and see there by Persay That if my Writ be brought before the day of payment and doth depend in suit till after the day of payment that my Writ is made good for at all times the Defendant was my Debtor And afterwards in the principal Case the Iudgment was affirmed in the Exchequer-Chamber and note that the day of payment did incurr pendent the Writ XXVII Lightfoot and Butler 's Case 29 Eliz. In the Exchequer IT was said in this Case by the Solicitor General That if one holdeth of the Queen as of her Manor he shall not have the privilege of the Exchequer for that cause But if the King grants Tithes and thereupon reserveth a Rent nomine decimae and a Tenure of him there he shall have the privilege The principal Case was Co. 4. Inst 118 119. that one of the parties claimed the Lands in question as his Freehold but holden of the Queen as of such a Manor and the other claimed it as Copyhold holden of the same Manor And the Freeholder did suggest in the Exchequer That the demands of the Manor are not indifferent Clark Baron If it be so this Court shall have jurisdiction Manwood If the matter pass against you wrongfully wherefore may you not have an Assise And the Case of Beaumorris was cited but I remember not to what purpose i. The Mayor and Commonalty of Beaumorris were Patrons of a Chantry and they and the Chantry Priest made a Lease for years by Indenture in the end of which was this Clause In cujus rei testimonium tam the Priest quam the Mayor and Commonalty have put their common seal and it was moved that there was not any seal for the Priest for he could not have a common seal with the Mayor and Commonalty Clark Twenty men may seal with one seal and they may also seal with one seal upon one piece of Wax onely and that shall serve for them all if they all lay their hands upon the seal together Manwood They may all seal with one seal but upon several pieces of Wax Gent when many are parties to a Deed the words are Sigilla omnia which cannot be aptly said in this Case where all seal upon one piece of Wax XXVIII Barns and Smith 's Case 29 Eliz. In the Exchequer EManuel Barns Executor of Barns late Bishop of London 3 Len. 171. brought Debt for arrerages of Rent reserved upon a Lease for years of certain Mines demised
he said Misnosmer shall be tried where the Writ is brought c. So Ne unque administer as Executor c. Manwood Here the Lease is said to be made at Durham in a place certain if now there be not any other local thing said which might draw the trial elsewhere it shall be tried at Durham where the Lease is made An Infant makes a lease for years rendring Rent and afterwards re-enters and avoids his Lease by reason of his nonage and Title is made against him by the Lease upon which he pretended nonage it shall be tried where the Lease was made and afterwards Iudgment was given for the Plaintiff XXIX Ross and Morrice 's Case Pasch 30 Eliz. In the King's-Bench EDward Ross was Plaintiff in a Replevin against Edward Morrice 1 Cro. 108 109. and George Manly Defendants who made Conusance as Bailiffs to Jerom Weston The Plaintiff declares of the taking of two Geldings 20 Decemb. 29 Eliz. at Nayland in the County of Suffolk in a certain place called Nayland-Court-Meadow And the Conusance is that the place where was a Freehold of the said Jer. Weston c. The Plaintiff in bar of the Conusance shewed That long time before Sir Christopher Danby was seised of 30 acres of Meadow in Nayland whereof the place where c. and Leased the same by Indenture to Thomas Calton 19 Maii 31 H. 8. Habendum from the Feast of the Annunciation 1553. for the term of 45 years Who 1 E. 6. assigned his Interest to Edw. Ross the Plaintiff's Father who 1 Maii the said 1553. entred and 11 Eliz. granted his Interest to Bamford and Mascal who entred and were possessed Sir Christopher Danby died seised of the Reversion 13 Eliz. and the same descended to Thomas Danby his son and heir 14 Eliz. Mascal died Bamford 15 Eliz. granted to the Plaintiff Habendum from the 17 of March 1583. for three years which expired 26 Eliz. Bamford entred and afterwards Thomas Danby granted the Reversion to Edw. Rockwood in Fee to which the said Bamford Attorned and the Plaintiff by force of the said Lease put in his Cattel c. The Plaintiff Replicando said That long time before that Danby had any thing Jeofry Lord Scroop had issue of his body Henry Lord Scroop and died And that one John Guntwarby was seised of the said Manor of Nayland whereof c. in Fee by his Charter 25 E. 3. gave to the said Henry Lord Scroop the same Et haeredibus corpore suo exeuntibus who had issue Stephen who entred and died seised having issue John who entred and died seised having issue Thomas who entred and 3 H. 7. suffered a Common Recovery to the use of himself and his heirs The Recoverers enfeoffed Thomas seised also of many other Lands and had issue Ralph Jeofry Alice Elizabeth and Margery and afterwards died seised Ralph Lord Scroop entred and thereof did enfeoff divers persons unto the use of himself and Eleanor his wife for their lives and the heirs males of the said Ralph and afterwards the said Ralph being possessed of the said Charter of entail made ut supra by Guntwardy 7 H. 8. Devised that the Feoffees should be seised of the said Manor of Nayland to the use of himself and Eleanor his wife for their lives and if they died without issue of the body of the said Ralph the said Jeofry then living that then the Feoffees should be seised to the use of the said Jeofry being his Vncle for his life and after his decease ad usum Rectorum haeredum in perpetuum secundum antiquam Evidentiam inde ante factam with an averment that the said Ralph at the time of the said Devise and of his death was possessed of the Charter of Entail made by the said Guntwardy and that the said Charter was the most ancient Evidence of the said concerning the said Manor Ralph died without issue possessed of the said Charter by which the Feoffees were seised of the said Manor of Nayland to his use for life and after to the use of the said Jeofry for life and after his decease of the right heirs of the body of Henry Lord Scroop lawfully begotten by reason of the said Devise and the said Charter and of the residue of the Manors to the use of the said Jeofry and his heirs Eleanor died after whose decease the Feoffees were seised of the said Manor of Nayland to the use of the said Jeofry right heir of the said Henry Lord Scroop of his body begotten and of the other lands to the use of the said Jeofry in Fee Jeofry died without issue by which the Feoffees were seised to the use of the said Alice Elizabeth and Margery Cosins and heirs of the body of the said Henry Scroop c. And of the heirs of the bodies of the said Alice Elizabeth and Margery lawfully begotten by reason of the said Devise and Charter as to the said Manor of Nayland and of the other Manors to their use in Fee And afterwards the said Alice took to husband James Strangways who had issue Thomas Elizabeth took to husband Fitz Randolph who had issue Elizabeth Dorothy Agnes Alice Margery took to husband Danby who had issue Sir Christopher Danby named in the Bar and afterwards all the said husbands and their wives died by force of which the said Feoffees were seised of one part of the said Manor of Nayland in three parts to be divided to the use of the said Thomas Strangways and of another part to the use of the four daughters of the said Elizabeth and her husband Fitz Randolph and of another such part to the use of the said Christopher Danby and of their heirs in Tail and of the other lands to the use of them in Fee in degree of Coparcinary Elizabeth the eldest daughter of Fitz Randolph took to husband Shirley Dorothy her sister took to husband Eshe Agnes took to husband Maynel and Alice took to husband Dranfield Thomas Strangways had issue James and died And afterwards partition was made by which to James Strangways were allotted lands in Kent and agreed that the Feoffees should be seised of the said lands to the use of the said James and his heirs and to no other use To Sherley and Elizabeth his wife lands in Essex were allotted and agreed upon the partition that the Feoffees should be seised to the use of them c. in Fee c. And to Danby the said Manor of Nayland in tail by reason of the Devise and Charter aforesaid as to the said Manor of Nayland and of other lands in Fee. And afterwards 23 E. 8. notice was given to the Feoffees of the said partition and averred that the partition was equal c. and that the Feoffees were seised to the use of the said partition untill 27 H. 8. and confessed the Lease made by Danby to Calton and all the assignments set forth in the Bar to the Avowry and farther shewed That Thomas Danby
entred upon Ross the Plaintiff and enfeoffed Rockwood who enfeoffed Weston Coke for the Plaintiff The Case is no more but where a man hath issue a son and a daughter by several women and Deviseth his Lands to his son and the heirs of the body of the Father lawfully begotten in which case if the Son dieth without issue the Tail is extinct and the Daughter shall never have the Land for she doth not take by way of Reversion or Remainder and she doth not take in possession because the possession was in Jeofry who was the Heir of Henry c. And these Cases were vouched 1 Roberge's Case 2 E. 3. 1. to Tail John Mandevile took to Wife Roberge and Mandevile gave land to Roberge haeredibus ipsius Johannis quos ipse de corpore praedict Robergiae procreaverit there the Book is That the Formedon was Quae M. dedit Robergiae haeredibus dict Johannis quos ipsae de corpore dictae Robergiae procreaverit Et quae post mortem praefat Robergiae R. filii haeredis dict Johannis Mandevile haeredis ipsius Johannis de corpore dicto Robergiae per dict Johannem procreat c. and the same Writ awarded good which Coke denyed to be Law. And he cited the Case of Dyer 4 and 5 P. and Ma. 156. A. gives Lands to one for life the Remainder thereof rectis haeredibus masculis de corpore dict A. legitime procreat remanere inde rectis haeredibus dict A. who hath issue two Sons and dieth A. dieth the eldest Son hath issue a Daughter and dieth without issue male And he conceived first That in this case the limitation of the Remainder in Tail to the right Heirs of the body of the Donor is void for the Donor cannot make his own right Heir a Purchasor without departing with the Fee-simple of his person But admitting the limitation is good he said we are to consider If this entail to the Son once vested and commenced in the possession of the Son when he dieth without issue male The Estate be spent or that the same shall go to the younger Son And he said that it was the opinion of Dyer in that case That the younger Son was inheritable to the said Estate-tail as in the Case of Littleton 82. where the condition is That the Feoffee shall give the Lands to the Son and Heir of the Husband and Wife and to the Heirs of the body of the Father and Mother lawfully begotten and the Husband and Wife before any such Gift die having issue and afterwards the Feoffee gives the Land to the Son and Heir of the Husband and Wife and to the Heirs of the body of the Father and Mother begotten the condition is well performed and if the eldest Son to whom the Gift is made dieth without issue the youngest Son shall inherit And in a Formedon in the Reverter upon such a Gift the Writ shall be Et quae post mortem of the eldest Son ad ipsum reverti debet because the Husband and Wife obierunt sine haerede de corpor suis inter eos exeunt And such was also the Opinion of Saunders But Brook Brown and Catlin were clear contrary And he said that Bendloes Serjeant who reporteth that Case doth affirm That Iudgment was given in that case That the Estate-tail was spent and that the Daughter should have the Lands and not the second Son and so he said That in the Case at the Bar the Estate-tail was spent But he said That he conceived that in the principal case at Bar there is not any Estate-tail at all because the words upon which the Estate-tail is conceived are incertain and too general viz. secundum antiquam Evidentiam for there might be many ancient Evidences for the words may extend to Evidences which cut off the Estate tail as well as to the Entail of Guntwardy He also argued That the Partition was void and then the Lessee had a good interest for certain parts of the Lands for Partition cannot be made of an Vse and he said that he agreed That Partition betwixt Husband and Wives of Lands if it be equal should bind the makers because they are compellable to make Partition of them but contrary of an Vse for that they are not compellable to do Also in the principal Case the Land entailed is allotted to one of the Coparcenors which is not good but during the Coverture and afterwards void and then the Lease is void but in part and so the Conusance is not good Atkinson contrary and he said I conceive that by words of Relation a Fee may pass without the word Heirs See 39 Ass 12. The Father seised of Lands in fee doth enfeoff his younger Son in fee and the Father continues the possession of the Lands claiming to hold them at the will of the Son and the Son coming into the Town where the Lands do lie in the hearing of his Neighbours saith to his Father You have given to me these Lands naming them As fully as you have given them to me I give them back to you again and the same was holden to be a good Gift to the Father 43 E. 3. 22. The King seised of a Manor to which an advowson is appendant by Escheat or Conveyance gives the said Manor as entirely as such a one held the said Manor before the Escheat or Conveyance the Advowson shall pass without special mentioning of it And so here in our Case at Bar This Will hath reference to the ancient Evidence and it shall be as strong as if he had set down the special words of Entail and to ancient Evidence before the Entail it cannot extend for then a fee should pass and then the Devise should be void because to his Heir and the word Antiqua Evidentia shall have reference to the Charter which was made by Guntwardy for that was an ancient Evidence made two hundred years past and he cited the Case of 40 E. 3. 8. the Provost of Beverley's Case and conceived that the Estate was not spent for that the Estate-tail was in Jeofry as the fee was in him Lands are given to the Father for life the Remainder to the Son in Tail the Remainder to the right Heirs of the Father the Father dieth the Tail and the fee are in the Son but yet after the death of the Son without issue the Lands shall be in the Brother's Son by descent and not as Purchasor And in our Case Jeofry was in in the Tail as right Heir of Henry and if Jeofry dieth without issue his Brother of the half bloud shall have the Lands as in the Case before cited of 40 E. 3. but that shall be in Tail by force of the Devise And he said That in this case here the Partition was made good enough although it were of Lands in use for a man might contract for an Vse without Deed 11 H. 4. Partition 156. Partition of an Advowson without Deed
è contr 17 E. 3. 8. A man may make a Feoffment of a Manor by the name of a Knights Fee à fortiori in case of the Devise and in our case the Marquiss conceived That the Rent and Services reserved out of the Manor of Fremmington was the Manor of Fremmington and the Law shall give strength to that intention Walmsly conceived That the Rent did not pass by the name of Manor c. for this Rent nec in rei veritate nor in reputation was ever taken for a Manor Also the words Of the Manor and Hundred of Fremmington are put amongst others which are Manors in truth by which it seemeth That the Devisor did not intend to pass but one Manor and no other Hereditaments by that Manor of Fremmington It is a Rule in Law That in the construction of a Will a thing implyed shall not controul a thing expressed But here if by implication the Rent shall pass then the Manor of Camfield shall not pass which it was the intent of the Devisor to pass and that by express words See 16 Elizab. Dyer 330. Clatche's Case and see 16 Eliz. Dyer 333. Chapman's Case But in our Case here there are not any sufficient words to warrant any implication for neither in truth nor in reputation was it taken to be a Manor 22 H. 6. 2. Green Acre might pass by the name of a Manor although it were but one Acre of Land because known by the name of a Manor See accordingly 22 H. 6. 39. And see where before the Statute of Vses a man had Recoverors to his use and he wills by his Will That his Trustees should sell his Lands they may sell And he said That if a man seised of a Manor parcell in Demesne and parcell in service and he grants the Demesnes to one and his Heirs and afterwards deviseth his Manor peradventure the services shall pass but this Rent hath no resemblance to a Manor Gawdy This Rent shall pass by the name aforesaid Favourable construction is to be always given to Wills according to the intent of the Devisor and no part of a Will shall be holden void if by any means it may take effect then here it appeareth that his meaning was that upon these words every thing should pass to the Devisee concerning the said Manor of Fremmington for otherwise the words of the Manor of Fremmington should be void and frivolous which shall not be in a Will if any reasonable construction can be for it is found expresly by the Iury That neither at the time of the Will made nor at the time of the death of the Devisor the said Devisor had any thing in the said Manor of Fremmington but onely the said Rent of one hundred and thirty pounds And it may well be taken that the Devisor being ignorant what thing a Manor is though that the Rent was a Manor because that he had Rents and services out of the Manor For in construction of Wills the words shall serve the intent of the party and therefore if a man deviseth That his Lands shall be sold for the payment of his debts his Executors shall sell them for the intent of the Testator naming the Vendors is sufficient And see Plowden 20 Eliz. 5. 24. L. after the Statute of 27 H. 8. deviseth that his Executors shall be seised to the use of A. and his Heirs in Fee whereas then there was no Feoffees to his use the same was holden a good Devise of the Lands of A. and the Iudges conceived that the Devisor was ignorant of the operation of the Statute in such case and therefore his ignorance was supplied See Br. Devises 44. 29 H. 8. A. had Feoffees to his use and afterwards after the Statute of 27 H. 8. willed that his Feoffees should make an Estate to B. and his Heirs it was holden by Baldwin Shelley and Mountague Iustices that it was a good Devise See 26 H. 6. Feoff 12. A Carve of Lands may pass by the name of a Manor Ergo à multo fortiori Rent for Rents and Services have more nearness and do more resemble a Manor than a Carve of Lands and it cannot be intended that the meaning of the Testator was to grant the Manor it self in which she had nothing especially by her Will for covin collusion or indirect dealing shall not be presumed in a Will Also the Marchioness for four years together before her death had the Rent and Services of the said Manor and she well knew that she had not any other thing in the said Manor but the said Rent and Services and therefore it shall be intended that that was her Manor of Fremmington A. seised of a Capital Messuage and great Demesnes lying to it leaseth the same for years rendring Rent and afterward deviseth to another all his Farm lying in such a place It was rated in that case that by that Devise the Rent and the Reversion should pass See the Case betwixt Worselie and Adams Plowd 1 Eliz. 195. by Anthony Brown and Dyer Periam Iustice was of opinion that this Rent might be divided well enough But by Anderson It is but Rent-seck but Periam said it was a Rent distrainable of common Right but all of them agreed that the Rent might be divided but there should not be two Tenures And the Lord Montjoy being advised that this Rent did not pass by the Grant but descended to the Heir being the full part of the whole entred into all the residue of the Lands and made a Lease of the Manor of Camfield unto the Plaintiff upon which entry the Ejectione firmae was brought and afterwards the Plaintiff seeing the opinion of the Court to be against him and for the Devisee of the Rent by the name aforesaid did afterward discontinue his suit c. LVIII Costard and Wingfield 's Case Trin. 30 Eliz. Intrat T. 28 Eliz. Rot. 507. In the Common-Pleas 6 Co. 60. IN a Replevin the Defendant did avow for damage-feasant by the commandment of his Master the L. Cromwel The Plaintiff by way of Replication did justifie the putting in of his cattel into the Land where c. by reason that the Town of N. is an ancient Town and that it had been used time out of mind c. That every Inhabitant of the said Town had had common for all manner of cattel levant and couchant within the said Town and so justified The Defendant said that the house in which the Plaintiff did inhabit in the said Town and by reason of residency in which House he claimed common was a new house erected within 30 years and that before that time there had not been any house there upon which the Plaintiff did demurr Shuttleworth Serjeant argued for the Plaintiff That he should have common there by reason of resiancy in the said new house and he said that the Resiancy is the cause and not the Land nor the person thereof and thereupon he put the Case of
15 E. 4. 29. And he agreed the Case That if the Lord doth improve part of the common that he shall not have common in the residue of the Land for the Lands improved because That he cannot prescribe for that which is improved as the Book is in 5 Ass But here in the principal Case he doth not prescribe in any person certain or in or for any new thing but he sets forth that the use of the Town hath always been that the inhabitants should have common there And this common is not common appendent or appertinent but common in gross See Needham 37 H. 6. 34. b. And he said That if the house of a Freeholder which hath used to have such common doth fall down and he erecteth a new house in another place of the Land that he shall have common to that new erected house as he had before And he took a difference betwixt the case of Estovers where a new Chimney is erected and this Case and he stood much upon the manner of the prescription Gawdy Serjeant contrary And he took exception to the prescription For he said that it is said therein That it is Antiqua Villa but he doth not say that it hath been so time out of mind c. and so it ought to be said as the Book is in 15 E. 4. 29. a. And then if it be not an ancient Town time out of mind the parties cannot prescribe as Inhabitants of the said Town to have common time out of mind c. And he said That if such a prescription as is said in this Case be good in Law viz. That every one who erected a new house within the said Town should have common to his said new house the same should be prejudicial to the ancient Town and to the utter overthrow and manifest impairing of the common there and it might so happen that one who had but little Lands in the said Town might erect twenty new houses there and so an infinite number of houses might be newly erected there and there should be common allowed to every Inhabitant within the said new erected houses which should be inconvenient and unreasonable Anderson chief Iustice He who erects a new house cannot prescribe in the common for then a prescription might begin at this day which cannot be and he insisted much upon the general loss which should happen to the ancient Tenants if such a prescription for new erections should be good Periam If it should be Law That he should have common in this Case That all the benefit which the Statute gives to the Lord for improvement should be taken away by such new edifications and erection of new houses which were not reasonable And such was the opinion of the other Iustices and therefore they all agreed that in the principal Case the Plaintiff should not have common to this new erected house but the entry of the Iudgment was respited untill the Court had seen the Record and after they had seen and considered upon the Record Anderson and Periam were of opinion as before But Windham did not encline to the contrary but they all agreed That he who set up again a new Chimney where an old one was before should have Estovers to the said new Chimney and so if he build a new house upon the foundation of an old house That he should have common to his said house new erected So if a house falleth down and the Tenant or Inhabitant sets up a new house in the same place Also if a man hath a Mill and a Water-course to it time out of mind which he hath used time out of mind to cleanse if the Mill falleth and he erecteth a new Mill there he shall have the Watercourse and liberty to cleanse it as it had before and afterwards the same Term Iudgment was given for the Defendant to which Windham Iustice agreed LIX Rous and Artois Case Hill. 29 Eliz. In the King's-Bench THE Case was large but the points in this Case were but two Owen Rep. 27. 4 Co. 24. The first was If Tenant per auter vye after the death of Cestuy que vye holdeth over If he be a Disseisor or not The second point was If Tenant at will or at sufferance be such a Tenant of the Manor as he may grant Copyhold Estates to Copyholders For the first point It was agreed by Godfrey and he held that the principal Case was That if Tenant pur auter vye holdeth over the life of Cestuy que vye that he thereby gaineth the Fee But he granted the Cases That where a man holdeth at the will of another that after the Estate determined if he holdeth over he hath not thereby gained fee for he is Tenant at sufferance and as Littleton saith in his Chapter of Releases 108. Tenant at sufferance is where a man of his own head occupieth the Lands and Tenements at the will of him who hath the Freehold and such an occupier claims nothing but at will But he said That in the principal Case he otherwise claimed than at the will of the Lessor for that it appeareth that he hath granted Copy and he said that this difference doth give answer to the Case which is t. H. 8. br t. per Copy 18. where it is said for Law That none is Tenant at sufferance but he who first enters by authority of Law As if a man makes a Lease for years or for the life of another and he holdeth the Lands after his term expired or after the death of Cestuy que vye If he claim nothing but at the will of him who hath the Freehold he is a Tenant at sufferance But if he holdeth in the Lands against the will of his Lessor then he is a Disseisor and so if he do act after such continuance of possession contrary to the will of his Lessor he is a Disseisor 10 E. 4. If an Infant maketh a Lease at will and the Lessor dieth and the Lessee continueth in possession and claims Fee the Heir shall have Mortdancester 18 E. 4. If Cestuy que vye dieth and the Tenant hold in and was impleaded The Lessor shall not be received and he conceived the reason of the Case to be because that the reversion was not in him but that the Fee was gained and rested in the other 22 E. 4. 39. g. by Hussey If a Termor holdeth over his term there an Estate in Fee is confessed to be in him because he holdeth the possession of the Lands by wrong but there is a Quaere made of it if he be a Disseisor or not but I conceive that he is for Trespass doth not lie against him before the Lessor hath made his entry and therefore if the Lessee doth continue in the possession of the Lands by reason of the first entry that is the reason as I conceive that the Writ of Entre ad terminum qui praeteriit lieth against such a Termor who holds so over his Term and
adjudged by the whole Court that the Covenant did not lie by one of them onely but ought to be brought by them both LXI Carter 's Case Mich. 33 Eliz. In the Common Pleas. A Being seised of the Manor of Staple in Odiham 1 Cro. 208. Owen Rep. 84. 8 Co. 119. and of divers other Lands in Odiham suffered a common Recovery of the whole and by Indenture expressed the uses in this manner viz. of all his Lands and Tenements in Odiham to the use of his wife for life the remainder over c. And of the Manor of Staple to the use of his youngest son in tail but by the clear opinion of the whole Court although the Manor of Staple was in Odiham yet the wife shall have nothing therein for the intent of the party was that the son should have the same and his wife the residue and accordingly Iudgment was given LXII Cobb and Prior 's Case Mich. 33 Eliz. In the Common Pleas. THE Case betwixt Cobb and Prior was this A man seised of Lands in Fee devised the same to his Wife during the minority of his Son upon condition that she should not do Waste during the minority of the said Son and died The Wife married a Husband and died the Husband committed Waste It was holden by all the Iustices That the same was not any breach of the Condition and Iudgment was entred accordingly LXIII Taylor and Brounsal 's Case Trin. 33 Eliz. in the Common Pleas. IN an Information upon the Statute of 32 H. 8. by Taylor against Brounsal the Case was That John Brounsal was seised and gave the Lands to T. B. and the Heirs of his body c. the Remainder to R. B. and the Heirs male of his body the Remainder to the right Heirs of J. B. T. B. died having issue a Daughter and R. B. made a Lease for years of the Lands And it was holden by the Court to be no maintenance within the said Statute for he in the Remainder might make a Lease for years Then it was given in Evidence That a common Recovery was had against the Husband and Wife with a single Voucher and so the Remainder limited to R. B. destroyed and that after that Recovery R. B. made the Lease To which it was said by the other side That the said Recovery was never executed and no discontinuance of the Remainder and then the Lease made by R. B. was good and the truth of the Case was That such a Recovery was had and an Habere facias seisinam awarded and retorned but no Execution was in truth had upon it nor the Recoveror never entred And if R. B. who is a stranger to the said Recovery shall be admitted against the Recovery to say That no Execution was thereof was the Question and therefore all the matter was found by special Verdict It was also given in Evidence That the Land was given to T. B. and the Heirs males of his body and then when the Daughter which is not in truth inheritable entereth if that Entry she being privy in bloud to R. hee Vncle shall be a Disseisin or Abatement c. as in the Case of Littleton where the youngest Brother entreth after the death of the Father for in such case the youngest Son doth not get any Freehold but is but a Tenant at sufferance Anderson When the Daughter enters and takes a Husband who leaseth for years and the Lessee entreth the same is a Disseisin Periam doubted it for he said When the younger Son entred the Freehold was in him which Anderson doubted LXIV Maunsel and Vernon 's Case Trin. 33 Eliz. In the Common Pleas. IQ Debt by Maunsel against Hen. Vernon Esquire who came in by Capias i. compulsary Process and pleaded That he was Hen. Vernon Lord Powis and so a Baron of the Parliament and demanded Iudgment of the Writ Note some said That if the Defendant had come in by Issue joyned or gratis and not by compulsary Process he could not have pleaded this Plea or any other Misnosmer The Plaintiff replyed That the Defendant is an Esquire absque hoc that he is Lord Powis and a Baron of the Parliament and as the Iury was ready at the Bar to try this Issue this matter was objected And Anderson conceived That this Plea to the Writ was not good for the name of Lord is not any degree as Knight Duke Earl nor is it parcel of the name nor parcel of addition and therefore it is no Plea in abatement of a Writ and all the Writs of Parliament directed to Barons to summon them to Parliament shall have their Names Sirnames and Additions as if they be Knights Knights and if Esquires they shall be named Esquires and if a Bond be made by J.S. Lord R. the Writ shall not be so for the King by his Writ doth not name any one Lord but otherwise it is of Duke Earl c. for these are Offices of Dignity and parcel of their Names and not onely Additions Windham and Periam contrary and they conceived that there was no difference in this point betwixt a Lord and an Earl for which cause the Court being in doubt although that the Exception was entered of Record would have saved the same to the party and taken the Iury de bene esse but afterwards because it appeared it was joyned in the prejudice of Sir Edward Herbert who was a stranger thereunto and whose Title was concerned therein and there was none on his part to inform the Iury the Iury was at last dismissed by the Court. LXV Penruddock and Newman 's Case Trin. 28 Eliz. In the King's-Bench IN an Ejectione Firmae by Penruddock against Newman 1 Leon. 279 the Plaintiff declared of a Lease made by the Lord Morley and upon Not-guilty pleaded the Iury found this special matter scil That W. Lord Mounteagle seised of the manner of D. whereof c. became bound in a Statute in such a sum of Money to A. who died the Executors of A. sued Execution against the said Lord scil Extendi facias a Liberate issued upon which the said Manor was delivered to the Executors but the said Liberate was not retorned and it was farther found That the Executors being so possessed of the Manor the Lord commanded a Court Baron to be holden there which was done by sufferance and permission of the Executors and in their presence at which time the Executors said to the Lord the Conusor We have nothing to do with this Manor And upon this Verdict several matters were moved 1. If the Execution were well done because the Writ of Liberate was not retorned and as to that divers Books were cited 21 H. 6. 8. 18 E. 3. 25. And there is a difference betwixt a Liberate and a Capias ad satisfaciend and Fieri facias these Writs are Conditional Ita quod habeas corpus c. Ita quod habeas denarios hic in Curia 32 H. 8. ca. 28. 16 H. 7.
Law doth admit the oath of the party in his own cause as in Debt the Defendant shall wage his Law Periam That 's an ancient Law but we will not make new Presidents for if such oath be accepted in this Case by the same reason in all cases where is secrecy and no external proof upon which would follow great inconveniencies and although such an Oath hath been before accepted of and allowed here yet the same doth not move us and we see no reason to multiply such Presidents The Declaration is that the Plaintiff was robbed of 10 l. de denariis ipsius querentis and upon the Evidence it appeareth That the Plaintiff was the Receiver of the Lady Rich and had received the said money for the use of the said Lady and exception was taken to it by Shuttleworth but it was not allowed for the Plaintiff is accomptable to the Lady Rich the said money And it was agreed that if he who was robbed after he hath made Hue and Cry doth not farther follow the thieves yet his Action doth remain CX Large 's Case Mich. 29 Eliz. In the King's-Bench 3 Len. 182. THE Case was A. seised of Lands in Fee devised the Lands to his wife until William his son should come to the age of 22 years and then the Remainder of part of the Lands to his two sons A. and John The Remainder of other part of his Lands to two others of his said sons upon condition That if any of his said sons before William should come to the age of 22 years shall go about to make any sale of any part c. he shall for ever lose the Lands and the same shall remain over c. And before his said son William came to the age of 22 years one of the other sons Leased that which to him belonged for 60 years and so from 60 years to 60 years until 240 years ended c. Bois A. and J. are joynt-tenants of the Remainder and he said That the opinion of Audley Lord Chancellor of England is not Law scil where a man deviseth Lands to two and to their heirs they are not joynt-tenants as to the survivor but if one of them dieth the survivor shall not have the whole but the heir of his that dieth shall have the moyety See 30 H. 8. Br. Devise 29. And he said That this Lease although it be for so many years is not a sale intended within the Will and so is not a Ioynture 46 E. 3. One was bounden that he should not alien certain Lands and the Obligor did thereof enfeoff his son and heir apparent the same was held to be no alienation within the Condition of the Obligation Of the other side it was argued The remainder doth not vest presently for it is incertain if it shall vest at all for if William dieth before he cometh to the age of 22 years it was conceived by him that the Remainder shall never vest for the words of the Will are Then the Lands shall remain c. 34 E. 3. Formedon 36. Land is devised to A. for life and if he be disturbed by the heir of the Devisor that then the Land shall remain to D. Here D. hath not any remainder before that A. be disturbed It was farther argued that here is a good Condition and that the Devisee is not utterly restrained from sale but onely untill a certain time scil to the age of William of 22 years And it was said that this Lease is a Covenous Lease being made for 240 years without any Rent reserved As such a Lease made for 100 years or 200 years is Mortmain as well as if it had been an express Feoffment or Alienation But it was said by some Antea 36 37. that here is not any sale at all nor any lease for the Lessor himself hath not any thing in the Land demised As if a man disseiseth a Feme sole and seaseth the Lands and afterwards marrieth the disseisee he shall avoid his own Lease 5 E 3. One was bound that he should not alien such a Manor the Obligor alieneth one Acre parcell of it the Obligation is forfeit See 29 H. 8. Br. Mortgage 36. A. leaseth to a religious house for 100 years and so from 100 years to 100 years untill 800 years be encurred the same is Mortmain Vide Stat. 7 E. 1. Colore termini emere vel vendere And in the principal Case if the Devisee had entred into a Statute to the value of the Land leased by the intent of the Will the same had been a sale and such was the opinion of the whole Court and by the Court the word in perpetuum shall not be referred to the words precedent but unto the words following scil in perpetuum perdat the Lands And if a custome be in the case that the Infant of the age of 15 years may sell his Lands if he make a Lease the same is not warranted by the custome And afterwards it was adjudged by the whole Court that the Lease made as before was a sale within the intent of the Will of the Devisor CXI Brooke 's Case Hill. 29 Eliz. In the King's-Bench APpeal of Burglary was brought against Brooke who was found guilty and before Iudgment given the Plaintiff died And now Egerton moved that Iudgment should be given for the Queen upon that verdict or at least that the Declaration in the Appeal should be in lieu of an Indictment and that the Appealee be thereupon arraigned and put to answer the same For if the Appellant had been Nonsuit or released the Defendant should be arraigned at the suit of the Queen Coke God hath now by the death of the party delivered the Defendant and it is not like where the Plaintiff releaseth for there it is the default of the Act of the party but here it is the Act of God and he held it for a rule That where auterfoits acquit is a good Plea there also auterfoits convict shall be a good Plea And it was holden in Sir Tho. Holcroft's Case Sir Thomas Holcroft's Case That where the party is convicted at the suit of the Queen there the Appeal doth not afterwards lie Wray If the Appellant dieth before Verdict the Defendant shall be arraigned at the suit of the King But if his life hath been once in jeopardy by Verdict he conceived that it shall not again be drawn into danger and some were of opinion that the Defendant should be arraigned at the suit of the Queen upon the whole Record and plead auterfoits acquit and that they said was the surest way CXII Ognel and Paston 's Case 29 Eliz. In the Exchequer .. 1 Cro. 64. CLement Paston was Defendant in an Action of Debt brought against him by George Ognel upon an Escape and the Case was this Francis Woodhouse was bound in a Recognizance to the said Ognel Whereupon Ognel sued forth a Scire facias and upon two Nihils retorned had
Williams and Linford 's Case Trin. 30 Eliz. In the King 's Bench. WIlliam's brought an Action upon the Case against Linford 3 Len. 177. for standerous words spoken of the Plaintiff's land viz. Williams is worth nothing and do you think that the Manor of D. is his It is but a compact between his brother Thomas and him And farther declared That at the time of speaking of the words he was in speech with one J. S. to give to the said J. S. the said Manor of D. for his Manor of K. and that by reason of the said slanderous words 1 Cro. 346 787. the said J. S. durst not proceed in the said intended exchange It was objected That upon this matter an Action upon the Case doth not lie For the scandalous words were not spoken to him who was to be the Purchasor of the said Manor Smith and Johnson's Case but to a stranger For in the Case betwixt Smith and Johnson Johnson was in speech with another to sell his lands to him and Smith said to him who was to purchase them Will you buy Johnson's land Why it is troubled with more charges and incumbrances than it is worth Wray Iustice There is no difference whether words be spoken to the party or unto a stranger for in both cases the Title of the Plaintiff is slandered so as he cannot make sale of his lands Iudgment was given for the Plaintiff CXLVIII Barefoot and Luter 's Case Trin. 30 Eliz. In the King 's Bench. THE Case was A. B. and C. Ioynt-tenants in Fee C. granted his part unto D. and afterwards A. B. and D. Leased for years rendring Rent and afterwards A. died and they brought an Action of Debt for the Rent reserved and declared generally and upon the Evidence the special matter appeared that two parts of the Rent did belong to B. and but the third part to D. And the opinion of the Court was That the Declaration ought to have been special upon the whole matter For Prima facie it was conceived that each of the Plaintiffs ought to have had the moiety of the Rent and that is a supposal of the Declaration But now upon the Evidence it appeareth to the contrary So as the Defendant nil debet in that form Another matter was The Plaintiff declared of Rent of a whole year ended at the Feast of St. Michael last past whereas the Rent was not due at Michaelmas as the Plaintiff had declared but the thirtieth day after CXLIX Brown and Ordinacre 's Case Trin. 32 Eliz. In the King 's Bench. HEnry Brown and Joice his wife Executors of Thomas Brown brought an Action upon the Case against Van Ordinacre Alien and declared That where A. and B. were indebted to the Testator The Defendant in consideration that the Testator respectuaret the said A. and B. pro solutione debiti praedict per spacium unius septimanae tunc proxime sequen to pay the Debt to the said Plaintiffs modo sequent viz. one moyety within one week after and the other moiety at the end of the said week and farther declared That the Testator did forbear by the space of a week and after Imparlance Joice was summoned and severed The Defendant pleaded That he did not promise modo forma prout praâ—dict Brown allegavit and that it was alledged by both Executors And by a Iury De medietate Linguae it was found for the Plaintiff It was objected by Coke That here is not any issue prout Brown querens allegavit where in truth it was alledged by both the Executors before severance and not by Brown onely Also here is not any sufficient consideration alledged for the Plaintiff hath declared That he hath forborn by a week without saying next following as the consideration is laid in the Declaration But that was not allowed for so it shall be intended It was also objected That the Declaration is contrary to it self for it shewed That in consideration that the Testator should forbear for a week he promised to pay him within a week but that exception was not allowed For the week in the Assumpsit shall be construed the week after the week in the consideration Another exception was against the trial for the Defendant being an Alien The Venire facias was to summon twelve persons Quorum quilibet eorum habeat 4. l. in lands of annual Rent and that cannot be for Aliens cannot have lands not being made Denizens By the Common Law before the Statute of 27 E. 3. An alien by the Grant of the King might have an Action depending betwixt him and a Denizen per medietatem Linguae which see 22 E. 3. 14. and afterwards to make the same a general Law the Statute of 27 E. 3. was made but the same doth not extend to cases where the King was party which defect was supplyed by the Statute of 28 E. 3. cap. 13. Afterward came the Stat. of 2 H. 5. by which it is enacted That where the debt or damages amount to 10 marks every Iuror retorned for the trial should be able to expend lands of the value of 40 s. which was mischievous as to aliens and for the remedy of that The Statute of 8 H. 6. cap. ult was made which took away the effect thereof as unto aliens Then came the Statute of 27 Eliz. which enacted That every Iuror c. should expend 4 l. lands but that is where 40 s. was required onely and doth not extend to our Case and therefore the Venire facias in our Case was not well awarded To which it was said by the Clarks That after the Stat. of 27 Eliz. It had always so been to make the Venire facias generally according to the Statute but that is not a thing material and the Sheriff needs not regard that Wherefore it was holden That the Venire facias in the principal Case was well awarded CL. Mingey and Earl 's Case Pasc 32 Eliz. In the King 's Bench. IN Debt upon an Obligation The Defendant pleaded 1 Cro. 212 267. That the Obligation was with condition That whereas the Defendant had sold to the Plaintiff certain wood growing upon certain lands called S. in the County of Sussex If the Plaintiff might quietly take and enjoy the said woods and if the ground whereupon it groweth be four miles from the Town of Rye that then c. And for plea he said That the Plaintiff had quietly taken and enjoyed the said wood and that the said land by the next high and usual way for carriages is 4000 paces from the Town of Rye reckoning to every pace five foot upon which the Plaintiff did demur in Law. Gawdy Iustice For the computation of a mile in common understanding it is 1000 paces and if it shall be counted by the common way is the doubt but the meaning of the Parties was That the Plaintiff by felling of that wood should not encur the damage of the Statute of 23 Eliz. cap. 4.
for the abatement of a Writ As in a Praecipe quod reddat the Tenant acknowledgeth himself to be Villein to a stranger the Writ shall abate without any averment if Frank and of Frank Estate for the Law presumes that the Tenant would not enthral his condition Wray to the same intent But the Demandant may confess and avoid the Fine as to say That he that levyed the Fine was his disseisor upon whom he had before entred c. And if Tenant in Fee-simple be impleaded and he saith that he is Tenant for life the remainder over to A. in Fee and prayes in aid of A. the Demandant shall not take averment that the Tenant the day of the Writ purchased was seised in Fee. Note that in this fine Ioynt-tenancy was pleaded but to parcel It was holden by Wray and Southcot that the whole Writ should abate As in a Writ the misnosmer of one shall abate the whole Writ against all the Defendants and so where the Demandant enters into parcel of the land in demand if the thing in demand be one intire thing it shall abate the whole Writ In this Case the Demandant ought to have in his Writ de Forsprise of the land in demand whereof the Ioynt-tenancy by Fine is pleaded per availe and under the gift of which the Formedon is conceived and therefore in respect of the title of the Demandant it remains in right parcel of the Manor and therefore ought to be demanded accordingly with an Exception But if A. give to B. a Manor except ten acres in tail there if after upon any discontinuance the issue in tail have a Formedon in such case there needs no exception for the said ten acres were never after the gift parcel of the Manor which was given in tail for they were severed from the Manor upon the gift but if land in demand was several as twenty acres except two an exception is not good for he might demand eight acres See E. 1. F. N. B. 866. Praecipe unam bovat terrae except a Seleon and the Writ was abated for every demand ought to be certain but a Seleon is a parcel of land uncertain as to quantity in some places an acre in some more in some less Another point was That because the Tenant hath admitted and accepted this averment scil sole Tenant as the Writ doth suppose If the Court notwithstanding the admittance of the Tenant ought without exception of the party Ex officio to abate the Writ and Wray conceived that they should for it is a positive Law as if a woman brings an appeal of murther upon the death of her brother and the Defendant doth admit it without challenge or exception yet the Court shall abate the appeal 10 E. 4. 7. And see the principal Case there Non ideo puniatur Dominus and if an Action be brought against an Hostler upon the common custome of the Realm and in the Writ he is not named common Hostler and the Defendant doth accept of such Writ without exception to it yet the Court shall abate the Writ Ex officio 11 H. 4. 198. and 38 H. 6. 30. CXCVII 24 Eliz. In the King 's Bench. Antea 150. More Rep. Saffron Walden's Case THE Case was this King Henry the 8. seised of certain lands in the right of his Dutchy of Lancaster Granted them unto another Tenend in Fee-farm Reddend dicto Dom. Regi haeredibus suis aut illi cui de jure reddi debet 10 l. And if this land should be holden of the King in Capite or holden of the Dutchy was the question Egerton Solicitor general argued much upon the Statute of 1 H. 4. by which the Dutchy and possessions thereof were severed from the Crown See Plowden in the Case of the Dutchy of Lancaster 213. And see ibid. the Statute of 1 H. 4. Entituled Charta Regis Hen. 4. 1. De separatione Ducatus Lancastr à Corona by which it is enacted That the Dutchy of Lancaster taliter tali modo deducatur gubernetur pertractetur c. ac si ad culmen dignitatis Regiae assumpti minime fuissemus So as by that Act the Dutchy is dis-joined from the Crown and in such point as to possession as it was in a common person But the possession of the Dutchy doth not bind the person of the King as 10 H. 4. 7. The King brings an Action for certain Lands to him descended from his Vncle the Duke of Lancaster and the Writ was Non omittas propter aliquam libertatem and exception was taken to the Writ because that such clause ought not to be in the King 's Writ but where the King sueth as King but that Writ he sueth as Duke of Lancaster but the exception was not allowed The King cannot sue otherwise but as King for the person of the King ought not to be measured according to his possession so as it was a severance in order survey government and process and not in respect of the person But after the Statute of 1 H. 4. The said Act of Separation was repealed and farther enacted that the said King should hold the said Dutchy to him and his heirs Kings of England so as thereby the Dutchy is settled in the politick Body of the King afterwards came the Statute of 1 H. 7. by which it is enacted That the King shall hold the said Dutchy and the possessions thereof in such manner and form and so separated from the Crown as King Henry the fourth and King Henry the fifth did hold the same so as the Dutchy was devested out of the Body politick of the King where it was setled 1 H. 4. and vested in the Body natural of the King so as the possession of the Dutchy as to their government c. are in the King as they were in the Duke of Lancaster before he was King and if the Duke of Lancaster had made a Feoffment c. the Feoffee should not hold of him but of the King So if the King himself maketh a Feoffment of Lands of the Dutchy the Feoffee shall hold of the King c. which see in the Dutchy of Lancaster's Case in the end of it And he conceived That notwithstanding the union of the Crown and the Dutchy yet the privity of the Tenure doth remain being preserved by the said Act of 1 H. 4. Another matter was That here the Tenure reserved is Tenend in feodi firma Reddend 10 l. c. And he said that this Rent is not parcel of the Tenure but rather a Rent-charge collateral to the Tenure For in all Cases where there is a Tenure expressed in suit or implied in Law before there Reddendo following shall not make the thing rendred parcel of the Tenure 3 Cro. 210 211. but it shall be a Rent in gross and here Tenend in feodi firma makes the Tenure c. and the Reddendo after shall not make the Rent reserved parcel of the Tenure See the
therefore by Devise the Fee-simple shall pass without the word Heirs And he said that the opinion of Wray chief Iustice was in the Case of the Dean of Pauls If I devise that my Executors shall assign my Lands to J. S. the same implicative is a Devise of the Lands themselves to my Executors for otherwise they could not assign So if I will and devise That A. shall pay yearly out of my Manour of D. to J. S. 10 l. the same is a good Devise of the Lands to A. So if in the Case at Bar this house had been devised to the Cordwaynors by the name of the Society of Cordwaynors such Devise had been good enough Cooper contrary and he said That the intent of the Devisor ought to agree with the Law otherwise the Iudges are not to regard it in point of Iudgment and he put the Case of 39 H. 6. 10. 1 Rolls 616. A. deviseth his Lands and afterwards is disseised and before any entry dieth now notwithstanding the intent of the Devisor the Devise is void and he said The defect of a Will in words in making of an Estate shall be supplied by intent but the defect in words in naming of the Devisor or Devisee shall never be supplied See 49 E. 3. 3. 4. the Case of Whitavers And he cited a Case 25 H. 8. A stranger of the Low-countries being made a Denizen in England returned into his Countrey and dwelling there became sick and in making of his Will he was advised by Council that by Devise of all his goods his lands deviseable would pass and therefore by such words he declared his Will with the intention aforesaid scil to pass his Lands and died and afterwards the States of the Low-countries wrote unto King Henry the 8. acquainting him with the intention of the Devisor and also of the opinion of their Laws there upon the said Will and all in favour of the Devisee whereupon the King referred the consideration of the matter to Norwick then Lord chief Iustice who declared his opinion to the King to be That by that Devise the Lands did not pass notwithstanding the intent of the Devisor CXCIX Crabdell 's Case Pasch 26 Eliz. In the King's-Bench CRabdell was bound by Recognizance to his good behaviour upon which the Queen brought a Scire facias and surmised that after the Recognizance acknowledged the said Crabdell was arrested and taken by the Constable for suspicion of Felony and of his own wrong escaped It was objected on the part of Crabdell because it is not alledged by matter in fact that a Felony was committed But the whole Court was of a contrary opinion For it is not material if the Felony were committed or not for if a Subject be arrested by a lawfull Officer it is not lawfull for him to escape but he ought to stand to the Law and to answer unto the matter with which he is charged And so Crabdell was forced to answer CC. Basset and Prowe 's Case Pasch 26 Eliz. In the King's-Bench IN Debt upon a Bond the Case was That Basset was bound with Prowe as his surety to one Preston in a Bond of 500 l. and that was upon a corrupt and usurious contract against the Statute and Prowe was bound unto the Plaintiff in a Bond as a counter-bond to save the Plaintiff harmless from the said Bond of 500 l. Basset is sued by Preston upon the said Bond and so damnified and thereupon sued Prowe upon the counter-bond 1 Cro. 588 642 643. 3 Len. 63. Goldsb 174. who pleaded against Basset the Statute of Vsury pretending that all assurances depending upon such usurious contract as void by the Statute but by the opinion of Wray chief Iustice the same is no Plea for the Statute is That all Bonds collateral assurances made for the payment of Money lent upon usury shall be utterly void But the Bond here upon which the Action is brought was not for the payment of the Money lent but for the indempnity of the surety CCI. The Vicountess Bindon 's Case Pasch 26 Eliz. In the Exchequer More 213. 1 Cro. 250 251 252. THE Executors of Thomas late Viscount Bindon brought Detinue in the Exchequer against the Widow of the said Viscount and declared upon the detainer of certain Iewels The Defendant did justifie the detainer of them as her Parophornalia And it was said by Manwood chief Baron That Parophorn ought to be allowed unto a Widow having regard unto her degree and here the Husband of the Defendant being a Viscount 500 Marks is a good allowance for such matter CCII. Offley and Johnson 's Case Pasch 26 Eliz. In the King's-Bench More 136. OFfley and Johnson were bound as sureties with one A. to B. who recovered against Johnson in London and had Execution against him and now Johnson sued Offley to have of him contribution to the said Execution ut uterque eorum oneretur pro rata according to the custome of London Offley removed the cause by privilege into the King's-Bench whereupon came Johnson and prayed a Procedendo and because upon this matter no Action lieth by the course of the Common Law but onely by custome in such cities The cause was remanded Hob. 264. More 135. 3 Len. 148. for otherwise the Plaintiff should be without remedy See the Book of Entries 160. CCIII Litchfield and Cage 's Case Pasch 26 Eliz. In the King 's Bench. IN an Ejectione firmae the parties were at issue 3 Len. 100. and by the order of the Court the Trial was stayed and yet the Plaintiff against the Order did privily obtain a Nisi prius of which Gawdy Iustice being informed of it after the Term awarded a Supersedeas unto the Iustices of Assise before whom c. and yet notwithstanding that the Enquest at the instance of the Plaintiff was taken and found for the Plaintiff and all this matter was shewed to the Court in the King's-Bench and there examined and proved and it was ordered by the Court that the Verdict should not be entred of Record nor any Iudgment upon it And so it was put in ure in a Case between Vernon and Fowler And then the Plaintiffs Council took exception to the Supersedeas because it was not subscribed with the hand of Gawdy but non allocatur for the Seal is sufficient CCIV. Scott 's Case Pasch 26 Eliz. In the King 's Bench. WIlliam Scott was indicted upon the Statute of 23 Eliz. of Recusants by the name of William Scott of Southwark Gent. and upon that Indictment Iudgment given for the Queen upon which Scott brought a Writ of Error and assigned for Error That in the Indictment Scott is not named of any Parish but generally of Southwark for within Southward there are divers Parishes and by the said Statute it is ordained that the penalties accruing by the said Statute ought to be divided in three parts whereof one part is to be applied to the
Statute and it was moved If it should not be a good Indictment for the assault so as he might be fined for it and by Sands Clerk of the Crown and the whole Court The Indictment is void for the whole for the conclusion of the Indictment is contra formam Statuti and there the Iury cannot enquire at the Common Law. CCXXXV Mead and Cheney 's Case Mich. 32 Eliz. In the King's-Bench MEad brought an Action of Debt upon a Bond against Cheney Executor of one Skipwith and recovered and upon a Fieri facias the Sheriff did retorn Devastavit and it was moved to have an Elegit and the Iustices would advise of it and afterwards at another day a Precedent was shewed to the Court of 17 Eliz. and thereupon the Elegit was granted CCXXXVI Tompson and Trafford 's Case Trin. 32 Eliz. In the King's-Bench Rot. 910. Poph. 8 9. IN an Ejectione firmae the Case was That the Warden and Fellows of New College in Oxford 8 Eliz. leased a Mansion house in the Burrough of Southwark to one Standish for 21 years and afterwards 25 Octob. 21 Eliz. they demised the same Mansion house to the said Standish for 21 years to commence the Michaelmas after And the Stat. of 14 Eliz. cap. 11. and 18 Eliz. cap. 11. were also found And if this second Lease shall be said a Lease in Reversion and so be void by the Statute of 14 Eliz. was the Question Foster moved That it is a Lease in Reversion for the first Lease doth continue untill Michaelmas and so was the opinion of the Iustices of Assise at the trial Towse contrary For when Standish accepteth the second Lease the same is presently a surrender of the former Lease for he giveth power unto the Lessor for to contract for the house presently and to that purpose he cited Corbet's Case 8 Eliz. Coke It is a surrender presently for you cannot apportion the Term. It was adjourned CCXXXVII Wood and Avery 's Case Mich. 32 Eliz. In the King's-Bench DEBT upon a Bond by Wood against Avery the Condition was That where the Plaintiff had demised to the Defendant for term of years two Messuages c. If the Defendant at all times during the term shall maintain sustain and repair the said two Messuages with good and sufficient reparations that then c. And the Defendant pleaded That he had performed the Conditions in all but as to one Kitchin which was so ruinous at the time of the Demise that he could not maintain or repair and therefore he took it down and rebuilt it again in so short a time as he could possible in the same place so large and so sufficient in breadth length and heighth as the other Kitchin was and that the said Kitchin all times after the re-edifying of it he had sustained and maintained and well repaired and demanded Iudgment c. upon which Plea the Plaintiff did demurr in Law and by the Court the Plea were a good Plea if it were in an Action of Waste but here where he hath by his own Act tied himself to an inconvenience he ought at his perill to provide for it And here it was said That if the Condition be impossible the Bond is single contrary where a man is charged by an Act in Law. CCXXXVIII Bostwick and Bostwick 's Case Mich. 32 Eliz. In the Common-Pleas DOrothy Bostwick brought Dower against Bostwick an Infant Ante 59. and the Case was That the Husband of the Demandant was seised of certain Lands holden by Knight's-service of M. C. and by his last Will devised two parts of the Premisses to his Executors during the non-age of his heir and died his heir within age after whose death M. C. entred into the third part descended as Guardian in Knight's-service and the Executors into the other two parts upon which the Demandant brought one Writ of Dower against the Guardian to be endowed of the third part and another Writ of Dower against the heir within age in whom the Freehold of the two parts was The heir appearing by Attorney pleaded to issue which was found for the Demandant but the Iudgment was afterwards reversed because the heir being within age did not appear by Guardian but by Attorney for which cause she again brought a Writ of Dower against the heir and the Sheriff did retorn him summoned but the heir made default for which cause the Court was moved in the behalf of the Demandant to have the aid of the Court in this Case for if upon default of the Tenant a Grand Cape should issue forth and so a Recovery by default should follow the same would be Error which see 6 H. 8. Br. Liver Defaul 50. And therefore it was prayed that some person be appointed Guardian to the heir who may appear and plead for him for otherwise the Demandant is at great mischief for the Guardian now will not suffer the heir to appear in person And if the Widow now Demandant should stay for her Dower untill the heir should come of full age it would be a great mischief But by Walmesley Periam and Windham We cannot appoint a Guardian to the heir for his appearance here unless the heir be here in person in Court before us and he was appointed to be brought in person into Court. CCXXXIX Sir Anthony Denny 's Case Mich. 32 Eliz. In the Common-Pleas SIR Anthony Denny seised in Fee of the Manor of Chessam extending into Chessam and in the Town of Hertford and also of other Lands in Hertford by his last Will devised the Manor of Chessam to Henry Denny his son and heir in tail and his Lands in Hertford to Edward Denny his younger son c. It was holden by Walmsley Periam and Windham absent Anderson That the younger son should have that part of the Manor of Chessam which lieth in the Town of Hertford Another point in the Case was That upon the death of Sir Anthony and Office was found without any mention of this Devise for which cause the Queen seised and leased all the Lands so devised to a stranger during the minority of the heir The heir comes of full age and hath Livery of the whole and without any express entry leaseth the Lands for years rendring Rent the Lessee entreth and payeth the Rent to the heir the heir dieth the Lessee assigns over his term and the Rent is yearly paid to the right heir of Sir Anthony And how Edward Denny entred and per Curiam his entry is lawfull for if the heir entreth in this Case and many descents follow yet the Devisee may enter at any time for his entry doth not make any abatement or wrong but may well stand with the Devise for if the Devise be waved or the Devise doth defer the execution of the Devisee 1 Inst 111. a. 240. b. 3 Cro. 145. Ow. 86 87. it is reason that the heir enter and take the profits untill the Devisee entreth But if
Legacies c. did promise to pay to the Plaintiff 400 l. at four several days The first day of payment incurred and no money was paid whereupon the Plaintiff brought the Action the Defendant pleaded That he made no such promise and it was found for the Plaintiff and damages were assessed for the default of payment at the first day and that was moved in arrest of Iudgment because the Assumpsit was intire and the Plaintiff ought to have forborn his suit until all the days of payment were past and then to have one entire Action for the whole but the opinion of the whole Court was against that for they said It is not like unto a Debt upon a Contract or a Bill where the debt is to be paid at several days for here no debt is to be recovered but onely damages for the debt and this default of payment is a wrong and therefore the Action will well lie and so it was adjudged CCLXXX Pasch 16 Eliz. In the King's-Bench A. Devised that his lands should descend to his son but he willed 1 Cro. 252. Hob. 285. Dyer 251. a. Dy. 210. a. 3 Len. 9. 79. Yel en Ayleff Choppins Case Vaugh. 184. That his wife should take the profits thereof until the full age of his son for his education and bringing up and died the wife married another husband and died before the full age of the son and it was the opinion of Wray and Southcote Iustices That the second husband should not have the profits of the lands until the full age of the son for nothing is devised to the wife but a confidence and she is as Guardian or Bailiff for to help the Infant which by her death is determined and the same confidence cannot be transferred to the husband but contrary if he had devised the profits of the land unto his wife until the age of the Infant to bring him up and educate him for that is a Devise of the land it self CCLXXXI Bawell and Lucas 's Case Pasch 16 Eliz. In the Common-Pleas IN a Replevin by Bawell against Lucas It was agreed by all the Iustices viz. Mounson Manwood Harper and Dyer That if a man seised of a Manor leased part of the Demeans for years or for life That the reversion doth remain parcel of the Manor but such a Reversion by the Grant of the Manor doth not pass without Attornment of the Lessee And where a Manor is granted by Feoffment unto another and afterwards the Tenants attorn the services pass by the Livery and not by any Grant and although in the first Grant the Lessee doth not attorn but a long time after yet the Reversion is not severed from the Manor for the Attornment as to that intent shall have relation to the Livery to make the Reversion to pass from the time of the Grant but not to charge the Lessee with Waste and Dyer said That if a Feoffment in Fee be made of a Manor with an Advowson appendant and the Tenants do not attorn yet the Feoffee shall have the Advowson for the Advowson is appendant to the principal part of the Manor scil the Demeans and cannot be appendant to the services and Dyer said That if A. maketh a Feoffment in Fee of a Manor part of which is in Lease for years Habendum to the Feoffee and his heirs to the use of the Feoffee and his heirs upon condition that the Feoffee shall pay to the Feoffor within ten days 1000 l. and if he fail then to the use of the Feoffor for life the remainder to the use of his son in tail and the money is not paid the Lessee attorns after the ten days to the Feoffee 2 Leon. 265 266. the same is a good Attornment to raise secondary uses although that the first uses did not take effect for the condition is not annexed to the Estate of the Land but unto the use onely and the meaning was that the Feoffor should never have again the Inheritance A Feoffment is upon condition that the Feoffee shall give the Land in tail to a stranger who refuseth the gift there the Feoffor may re-enter but a Feoffment upon condition to enfeoff a stranger or to grant a Rent-charge if the stranger refuseth there the Feoffor shall not re-enter for his intent was not that the Land should revert c. CCLXXXII Vavasor 's Case Hill. 16 Eliz. In the Common-Pleas THE Case was That Nicholas Ellis seised of the Manor of Woodhall leased the same to William Vavasor and his wife for the life of the wife the remainder to the right heirs of the husband The husband made a Feoffment in Fee to the use of himself and his wife for their lives the remainder to his right heirs the husband died the wife held in and committed waste in a Park parcel of the Manor It was moved If the Writ of Waste shall suppose that the wife holdeth in Ex dimissione Nichol. Ellis or Ex dimissione viri and the opinion of all the Iustices was That the Writ upon this matter ought to be general viz. That she holds in de haereditate J. S. haeredis c. without saying ex dimissione hujus vel illius for she is not in by the Lessor nor by the Feoffees but by the Statute of Uses and therefore the Writ shall be Ex haereditate c. And also the opinion of the Iustices was That the wife in this case is not remitted but that she is in according to the form of the Feoffment Dyer The Formedon brought against Manures rehearsed in the Writ a Will and divers Conveyances by reason of which the Writ was of exceeding length and in such cases the Writ is good yet if the Writ be general it is sufficient Note in this Case That the Plaintiff assigned the waste in destroying of Deer in the Park And Mead Serjeant said That waste cannot be assigned in the Deer unless the Defendant hath destroyed all the Deer and of that opinion was Dyer Manwood If the Lessee of a Pigeon-house destroy all the old Pigeons but one or two couple the same is waste and if the Keeper doth destroy all the Deer so as the ground is become not Parkable the same is waste although he hath not destroyed the whole See 8 R. 2. Fitz. Wast 97. If there be a sufficient store left in a Park Pond c. it is well enough c. CCLXXXIII Mutton 's Case Hill. 16 Eliz. In the Common Pleas. JAne Mutton brought a Writ of Entry Sur disseisin 1 Anders 42. More 96. against Anne Mutton who pleaded That one John Mutton was seised and levyed a Fine to the use of himself and such wife and wives as the said John should after marry by what name or names they should be called for term of their lives and afterwards to the use of the same Jane now Demandant in tail the remainder over to the right heirs of the said John Mutton and afterwards the said
the Defendant Non parit actionem for there is not any consideration upon which it is conceived but is onely Nudum pactum upon which the Defendant could not have an Action against the Plaintiff And then here is not any sufficient consideration for the promise of the Defendant Mounson Iustice conceived that here the consideration is sufficient for here this counter promise is a reciprocal promise and so a good consideration for all the communication ought to be taken together Manwood Such a reciprocal promise betwixt the parties themselves at the match is sufficient for there is consideration good enough to each as the preparing of the Bows and Arrows the riding or coming to the place appointed to shoot the labour in shooting the travel in going up and down between the marks But for the Bettors by there is not any consideration if the Bettor doth not give aim Mounson A cast at Dice alters the property if the Dice be not false wherefore then is there not here a reciprocal Action Manwood At Dice the parties set down their monies and speak words which do amount to a conditional gift scil If that the other party cast such a cast he shall have the money CLXXXVIII Dunne 's Case 19 Eliz. In the King's-Bench DUnne possessed of divers goods in divers Dioceses died intestate at Bristow The Bishop of Bristow committed administration to Jones and his Wife who administred and afterwards the Bishop of Canterbury by reason of his Prerogative committed administration to Austen and Dunne and they brought an Action of Trespass against Jones and his Wife for taking of the goods of the intestate It was holden by Wray and Southcote 5 Co. 2 30. 1 Cro. 283. 457. that the Letters of administration granted by the Bishop of Bristow were void Gawdy and Jeofreys contrary for the granting of Letters of Administration de mero jure doth belong to the Ordinary and it might be that neither the Ordinary nor the parties to whom he granted the Letters of Administration had notice that the Intestate had bona notabilia in another Diocese and therefore it should be hard to make the Defendants Trespassors Exception was taken to the Declaration because it is shewed that the Archbishop of Canterbury by reason of his Prerogative committed Administration c. without shewing that the Intestate had bona notabilia c. but the Exception was not allowed for so are all the precedents as the Declaration is here which all the Clerks in Court did affirm and afterwards Exception was taken to the Bar because it is there pleaded that the Defendant had paid a certain sum of Money to one A. to whom the Intestate was indebted by Bond and did not shew how the Bond was discharged as by Release Acquittance cancelling of the Bond c. And that was holden to be a material Exception For the Defendants in such case ought to shew such discharge which is sufficient and by which the Plaintiffs may be discharged and for that cause the Plaintiff had Iudgment to recover CLXXXIX Kingwell and Chapman 's Case 19 Eliz. In the King's-Bench IN an Action of Debt upon a Bond by Kingwell against Chapman 1 Cro. 10. The Defendant pleaded that it was endorsed upon condition That where divers debates were betwixt the Plaintiff and one J. Brother of the Defendant the said Plaintiff and J. put themselves to the award of one Copston and the Defendant was bound by Bond to the Plaintiff that his brother should perform the award of the said Copston And the award was That the said J. should pay to the Plaintiff 30 l. viz. at the Feast of the Annunciation 20 l. and at Michaelmas after 10 l. and shewed that the said J. had paid the said 20 l. at the Annunciation and as to the 10 l. he pleaded That the said J. died before the said Feast of Michaelmas upon which there was a demurrer And by Wray Southcote and Gawdy Iustices the Bond is forfeit First because the sum awarded by the Arbitrament is now become a duty as if the condition of the Bond had been for the payment of it Secondly day is appointed for the payment of it 10 H. 7. 18. Thirdly the Executors cannot perform the condition But if I be bound by Bond to enfeoff the Obligee at such a day and before the said day I die my Executors shall not be charged with it for the Condition is become impossible by the Act of God for the Land is descended to the heir CXC Lodge 's Case 20 Eliz. In the Common-Pleas Syderf Rep. 362. LOdge an Attorney of the Common-Pleas was indebted unto Booth in 34 l. payable at a day to come and Booth was indebted to Diggs in 40 l. Diggs according to the custome of London attached in the hands of Lodge 34 l. to be paid to him at the day as part of his debt of 40 l. Lodge brought a Bill of Privilege directed to the Mayor and Sheriff of London and that every person who had cause of Action against Lodge Sequatur ad Com. Legem c. Si sibi videbitur expedire c. At the retorn of which Writ Bendloes prayed a Procedendo And by Harper Iustice the privilege shall not be allowed because that this Attachment is by custome and not allowable here and if Lodge should have the privilege then is the other party without remedy And if an Attorney of this place be impleaded in London upon a Concessit solvere debit alterius he shall not have the privilege Manwood contrary For according to the Common Law Lodge owed nothing to Diggs but is his Debtor by a custome And as to the Case of Concessit solvere there the promise was to the party himself who brought the Action and he hath no other remedy but in the Case at Bar Diggs who is a stranger vexes Lodge who ows him nothing having remedy against his proper Debtor which Dyer granted and farther said That the privilege of this Court ought not to be impeached by any custome And the Prothonotaries cited a Case adjudged in the point That such a privilege was allowed in the Case of one Underhil and afterwards in the principal Case the privilege was allowed CXCI. Segar and Bainton 's Case 21 Eliz. In the Common-Pleas 3 Len. 74. IN an Action of Trespass the Case was That King Hen. 8. an 27. of his reign gave the Manor of D. to Sir Edw. Bainton Knight and to the heirs males of his body Sir Edw. Bainton had issue Andrew his eldest son and the now Defendant his younger son and died Andrew Bainton covenanted by Indenture with the Lord Seymore That the said Andrew Bainton would assure the said Manor to the use of himself for life the Remainder to the use of the said Lord and his heirs and the said Lord in recompense thereof should assure other Lands to the use of himself for life the remainder to the use of the said Andrew Bainton in tail
who 37 H. 8. levied a Fine of the said Manor without Proclamations to two strangers to the uses according to the said agreement and before any assurance made by the said Lord the said Lord was attainted of Treason by which all his Lands were forfeited to the King And afterwards the said Andrew Bainton made a suggestion to Queen Mary of all this matter and upon his humble Petition the said Queen by her Letters Patents reciting the said mischief c. Et praemissa considerans annuens Petitioni illius granted to him the Manor aforesaid and farther De ampliori gratia sua did release to the said Andrew Bainton all her right possession c. which came to her Ratione attincturae praed vel in manibus nostris existant vel existere deberent after which 5 Eliz. Andrew Bainton levied a Fine to the Plaintiff with Proclamations and died without issue and the Defendant as issue in tail entred Puckering Serjeant First it is to see if by the words of the Patent of Queen Mary viz. De ampliori gratia c. the Reversion in Fee which the Queen had shall pass or not Secondly Admitting that the Reversion doth not pass then if the Fine levied by Andrew Bainton 5 Eliz. to the Plaintiff the Reversion being in the Queen be a bar unto the issue in tail For as unto the first Fine levied 37 H. 8. which was without Proclamations the same shall not bind the issue in tail neither as to the right nor as to the Entry for it is not any discontinuance because the Reversion is in the King as of things which do not lie in discontinuance as Rent Common c. for such a Fine is a Fine at the Common Law and not within the Statute of 4 H. 7. and such Fine is void against the issue But if such a Fine without Proclamation be levied of a thing which lieth in discontinuance then such a Fine is not void but voidable by Formedon and therefore this Fine in the Case at Bar being levied without Proclamation of Lands entailed whereof the Reversion is in the King at the time of the Fine levied shall not bind the issue and by such Fine the Conusee hath nothing but a Fee determinable upon the life of Tenant in tail which Fee was forfeited to the Queen by the Attainder of the Lord Seymore and that the Queen moved of pity did restore the same to A. B. in recompence for the Indentures of themselves were not sufficient to raise any use See 1 Mariae Dyer 96. As to the first point it seems that nothing passed of the Reversion for the Grant hath reference to the words All her Right Possession c. which came to her ratione attincturae and all the residue of the Grant ought to have reference to that to the ratione attincturae which was the foundation of the whole Grant and here the intent of the Queen was not to any other intent but onely to restore A. B. to the said Manor or to his former Estate in it and nothing appears in the Letters Patents by which it may appear that the Queen was knowing of her Reversion which she had by descent and therefore the same cannot pass by general words If the Queen grants the Goods and Chattels of all those which have done any Trespass for which vitam amittere debent the Goods of him who is attainted of Treason shall not be forfeited to the Grantee by such general words 8 H. 4. 2. The King grants omnia Catalla Tenentium suorum qualitercunque damnatorum the same shall not extend to the Goods of him who is condemned of Treason See 22 Ass 49. So in our Case the Patent shall not serve to two intents but to a restitution of the Manor and then nothing passed by this Patent but the Fee determinable which was conveyed to the Lord Seymore and forfeited by his Attainder Then we are to see how after this grant the said A. B. is seised And he said That he shall be in of the said Fee determinable and not of the Estate tail against his own Fine and then if he be not seised by force of the Entail at the time of the Fine levied 5 Eliz. the same Fine cannot bind the tail But admit that at the time of the second Fine levied he was in of an Estate in tail yet the same Fine shall not bar his issue For first this Fine cannot make any discontinuance because that the Reversion in Fee is in the King which is not touched by the Fine See the Case of Sanders where A. makes a Lease to begin at a day to come and afterwards levies a Fine to a stranger with Proclamations the five years pass and afterwards at the day of the Commencement of the Lease the Lessee enters his entry is lawfull and he shall not be bound by the non-claim And so it was adjudged 21 Eliz between Sanders and Starky After the making of the Statute of 4 H. 7. of Fines it was much doubted if the issues of common Tenants in tail should be bound by a Fine with Proclamation forasmuch as upon the death of their Ancestours they were as new purchasors per formam doni and therefore it was provided by the Statute of 32 H. 8. that the said Statute of 4 H. 7. should extend to such common Entails but there was no doubt of the Estate tail of the Gift of the King and see betwixt Jackson and Darcy Mich. 15 and 16 Elizab. Rot. 1747. in a Partitione facienda the Case was Tenant in tail the Remainder to the King after the Statute of 32 H. 8. levied a Fine with Proclamations and adjudged that that should bind the issues and the Act of 32 H. 8. doth not extend but where the Reversion is in the King but no mention is there of a Remainder because the words of the said Act are general of all Tenants in tail the makers of the said Act perceiving that it might be a doubt that the generality of the said words might exclude Estates tail of the Gift of the King they have restrained the words in a special manner as appeareth by the last words of the same Act Nor to any Fines heretofore levied or hereafter to be levied by any person or persons of any Manors c. before the levying of the said Fine to any of his or their Ancestors in tail by Letters Patents or Act of Parliament the Reversion whereof at the time of the levying of such Fine was in the King and so such Estates are excepted and that in such Cases where such Fines are levied they shall be of such force as they should have been if the said Act had not been made and therefore he conceived it appeared at the said Parliament That such Estate tails of the Gift of the King were not bound bâ— 4 H. 7. for otherwise that Proviso or Exception had been frivolous Walmsley Serjeant to the contrary and he agreed That the