a Prohibition And Suit and Clenche Justices He shall have a Prohibition for he claims onely a portion of Tithes and that by prescription and not meerly as Parson or by reason of the Parsonage but by a collaterall cause viz. by Prescription which is a Temporall cause and thing And it is not materiall whether it be betwixt two Parsons Vide 20. H. 6. 17. Br. Jurisdiction 80. and 11. H. 4. and 35. H. 6. 39. Br. Jurisdiction 3. Where in Trespasse for taking of Tithes the Defendant claimed them as Parson and within his Parish and the Plaintiffe prescribed That he and his predecessors Vicars there had had the Tithes of that place time out of minde c. And the opinion of the Court was that the right of Tithes came in debate betwixt the Vicar and the Parson who were Spirituall persons who might try the right of Tithes And therfore there the Temporall Court should not have the Jurisdiction Mich. 28 29 Eliz. In the Kings Bench. 56 IN an Indictment upon the Statute of 8. H. 6. of Forcible Entry the Case was this One was Lessee for yeers and the Reversion did belong unto the Company of Goldsmiths And one was indicted for a forcible Entry and the words of the Indictment were That expulit disseisivit the Company of Goldsmiths quendam I. S. tenentem expulit Cooke took exception to the Indictment and said that a disseisin might be to one although not in possession as to a Reversioner upon a term for yeers or upon a Wardship but he could not be expulsed if he were not in possession for privatiâ— praesupponit habitum And after it saith that the Tenant was expulsed and two cannot be expulsed where one onely was in possession therefore it ought to have said that the Tenant of the Free-hold was disseised and the Termor expelled and it applyes the word expulit to both And Fuller took another Exception that the Cart is set before the horse For he who had the Free-hold could not be disseised if his Termor were not first ousted and the Indictment is That the Tenant of the Free-hold was expulsed and disseised and then the Termor was expelled But Sui Justice as to that said that the later clause scil et quendam I. S. tenentem c. is but surplusage For if one enter with force and expell the Tenant of the Free-hold it is within the Statute of 8. H. 6. Then Fuller moved that the Indictment doth not shew the place where he expelled him But Cleâ—ch Justice said that that was not material for he could not expell him at another place then upon the Land As a man cannot make a Feoffment by livery and seisin at another place but upon the Land unless a Feoffment with Livery within the view And as to the Objection of Cook that the Indictment is that he disseised and expelled the Tenant of the Free-hold out of the possession of the Free-hold To that he answered that the possession of the Termor is the possession of him in the Reversion Mich. 28 29. Eliz. in the King 's Bench. 57 A Man seised of a Copy-hold in Fee made his Will and thereby he devised the same unto his Wife for her life and that after her death his Wife or her Executors should sell the Land He surrendred to the use of his Wife which was entred in hac forma viz. to the use of his Wife for life Secundùm formam ultimae voluntatis The Woman sold the Land during her life The question was Whether she might sell or not Suit Justice said That the intent doth appear that she might sell during her life for when it saith That she or her Executors should sell after her death it is meant the Estate which is to come after her death for the Wife after her death could not sell The second Point was When the surrender is to the Wife for life secundùm formam ultimae voluntatis Whether here she have the Land for life and the Fee also to sell Clenche If she had not the Fee to sell then the words Secundùm formam ultimae voluntatis should be void for the Surrender to the use of the wife for life gives her an Estate for life without any other words Suit If it were ad usum ultimae voluntatis without speaking what Estate the Wife should have no doubt but shee should have for her own use for life and that afterwards she might sell the Land but he said As the Case is put it is a pretty Case And it was adjourned Mich. 28 29. Eliz. in the Kings Bench. 58 THis Case was moved in Court A Copy-holder committed Waste by which a forfeiture accrued to the Lord who afterwards did accept of the Rent The question was Whether by this acceptance he were concluded of his Entrie for the Forfeiture Cook said He was not for it is not as the Case 45 E. 3. where a Lease is made upon Condition that the Lessee shall not do Waste and he commits Waste and then the Lessor accepts the Rent there he cannot enter But otherwise is it of a Copy-hold for there is a condition in Law and here in Fait and a condition in Fait may save the Land by an Acceptance but a condition in Law cannot for by the condition in Law broken the Estate of the Copyholder is meerly void And the Court agreed That when such a Forfeiture is presented it is not to Entitle the Lord but to give him notice for the Copy-hold is in him by the Forfeiture presently without any Presentment A man made a Lease for years upon condition that he should not assign over his Lease and it was reserving Rent and after he did assign it and then the Lessor accepted the rent there he shall not enter for the condition broken Lessee for years upon condition that he should not do Waste and the Lessor accepts of the Rent for the quarter in which the Waste was done yet he may enter but if he do accept of a second payment of the Rent then it is otherwise but if it were upon condition That if he do waste that his Estate shall cease There no acceptance of the Rent by the Lessor can make the Lease good It was adjourned Mich. 28 29. Eliz. in the Kings Bench. 59 THE Lord Admirall did grant the Office of Clark or Register of the Admirall Court to one Parker and Herold for their lives eorum diuâ—ius viventi And Herold bound himself in a Bond of Five Hundred Pound to Parker that the said Parker should enjoy the Office cum omnibus proficuis during his life And afterwards Herold did interrupt the said Parker in his Office upon which he brought an Action of Debt upon the Bond. The Defendant pleaded That such is the custome That the Admirall might grant the same Office for the life of the Admirall only and that he is dead and so the Office void and that he did interrupt him as it was lawfull
not have an Action without cause and if he were convicted then there is no cause of Action and he hath not shewed whether he was convicted or acquitted And he said that there was no difference betwixt an Action on the Case and a Conspiracie in such case but onely this That a Conspiracy ought to be by two at the least and an Action upon the Case may lie against one and he said that in both he ought to shew that he was legitimo modo acquietatus See 11. H. 7. 25. An Action of Conspiracy founded upon the Statute of 8. H 6. Cap. 10. where it is grounded upon a Writ of Trespasse brought against one onely But such a Conspiracy which is grounded upon an Indictment of Felony must be against two at the least for the same is an Action founded upon the Common Law Mich. 28 29. Eliz. In the Kings Bench. 92. BONEFANT against Sir RIC. GREINFIELD BOnefant brought an Action of Trespasse against Sir Richard Greinfield The Case was this A man made his Will and made A. E. I. O. his Executors and devised his Lands to A. E. I. and O. by their speciall names and to their heirs and further willed that his Devisees should sell the Land to I. D. if he would give for the same before such a day an hundred pound and if not that then they should sell to any other to the performance of his Will scil the payment of his debts I. D. would not give the hundred pound One of the Devisees refused to entermeddle and the other three sold the Land and if the Sale were good or not was the question Cooke The Sale is not good 1. Let us see what the Common Law is At the Common Law it is a plain case that the Sale is not good because it is a speciall trust and a joynt trust and shall never survive for perhaps the Devisor who is dead reposed more confidence in him who refused then in the others Vide 2 Eliz. the Case of the Lord Bray who covenanted That if his son marry with the consent of four whom he especially named viz. A. B. C. and D. that then he would stand seised to the use of his son and his wife and to the heirs of their two bodies begotten One of the four was attainted and executed The other did consent that he should marry such a one he married her yet no estate passed because the fourth did not consent and it was a joynt trust 38. H. 8. Br. Devises 31. A man willeth that his Lands deviseable shall be sold by his Executors and makes four Executors all of them ought to sell for the trust which is put upon them is a joynt Trust But Brook conceiveth that if one of them dieth that the others may sell the Lands The Case betwixt Vincent and Lee was this A man devised That if such a one dieth without issue of his body that then his Sons in law should sell such Lands and there were five sons in law when the Testatour died and when the other man died without issue there were but three sons in law and they sold the Lands and it was holden that the Sale was good because the Land was not presently to be sold Also he said that in the principall Case here they have an Interest in the Lands and each of them hath a part therefore the one cannot sell without the other But if the devise were that four should sell they have not an Interest but onely an Authority As to the Statute of 21. H. 8. Cap. 4. he said that that left our Case to the Common Law For that Statute as it appeareth by the preamble speaks onely of such Devises by which the Land is devised to be sold by the Executors and not devised to the Executors to sell And goes further and saith Any such Testament c. of any such person c. therefore it is meant of such a devise made unto the Executors and then no Interest passeth but onely an Authority or a bare Trust But in our Case they have an Interest for he who refused had a fourth part Then when the other sell the whole the same is a disseisin to him of his part If a Feoffment be made to four upon condition that they make a Feoffment over and two of them make the Feoffment it is not good Also the words of the Will prove that they have an Interest for it is that his Devisees shall sell c. Laiton contrary And he said That although the Devise be to them by their proper names and not by the name Executors yet the intent appeareth that they were to sell as Executors because it was to the performance of his last Will and that may be performed as well by the three although that the other doth refuse and the Sale of the Land doth referre to the performance of his Will in which there are divers Debts and Legacies appointed to be paid 2. H. 4. and 3. H. 6. A man devised his Lands to be sold for the payment of his debts and doth not name who shall sell the same the Lands shall be sold by his Executors 39. Ass A Devise is of Lands unto Executors to sell for the performance of his Will the profits of the Lands before the Sale shall be assets in the Executors hands 15. H. 7. 12. is That if a man devise that his Lands shall be sold they shall be sold by his Executors Also if I devise that my Executors shall sell my Lands and they sell it is an Administration and afterwards they cannot plead that they never were Executors nor never administred as Executors And although there are divers Authorities to be executed yet it is but one Trust 39. Ass 17. is our very Case A man seised of Lands deviseable devised them to his Executors to sell and died having two Executors and one of them died and the other entred and sold the Land and the Sale was good 49. E. 3. 15. Isabell Goodcheapes Case Where a man devised that after an Estate in taile determined that his Executors should sell the Lands and made three Executors and one died and another refused the third after the taile determined sold the Land and the Sale was holden good and that it should not escheate to the Lord for the Land was bound with a Devise as with a Condition as to the Statute of 21. H. 8. Cap. 4. the preamble of the Statute is as it hath been recited and although for exmaple the Lands in use are only put yet the Statute is not tied only to that As in the Statute of Collusion of Malbridge Examples are put only of Feoffments and Leases for years yet there is no doubt but that a Lease for life or a gift in taile to defraud the Lord is within the Statute So the Statute of Donis Conditionalibus puts onely three manner of estate tailes But Littleton saith That there are many other estate tailes which are
not recited in the Statute So here our Case is within the Mischiefe of the Statute of 21. H. 8. Cap. 4. although it be not within the Example So the Statute of West 1. is That if the Gardien or Lessee for years maketh a Feoffment in Fee Tam Feofator quam feofatus habeantur pro disseisoribus yet 22. Ass is That if Tenant by Elegit make a Feoffment it is within the Statute Also it may be a doubt Whether Land devisable onely by custome bee intended in the Statute of 21. H. 8. Cap. 4. And whether Land devisable by the Statute of 32. H. 8. be within it or not viz. If a Statute of a puâ—sne time shall be taken by Equity within a more Ancient Statute and I conceive it may as 12. H. 7. the Statue of 4. H. 7. which sayes that the heire of Cestuy que use shall be in Ward shall extend to the Statute of Praerogativa Regis for if he be in Ward to the King he shall have Prerogative in the Lands to have other Lands by reason thereof Gaudy Justice did rely very much upon the word Devisees viz. that they have an Interest and that the Sale was not good Suit Justice They are both Executors and Devisees of the Lands Devisees of the Lands and Executors to performe the Will Cook he who refused to sell cannot waive the Freehold which is in him by a refusall in pars as 7. H. 2. and 7. E. 4. but ought to waive it in a Court of Record therefore he hath an Interest remaining in him Clenche Justice What if he had devised the Lands to four and made one of them his Executors and willed that he should sell could not he sell All the Court agreed that he might Cook When a man deviseth that his Executors shall sell the Fee descends to the heir yet they may sell that which is in another but the same is not like to our Case It was adjourned Mich. 28 29. Eliz. in the King 's Bench. 93. A Judgement was given upon a Bond for four thousand pound And the Scire facias was sued for three thousand pound and he did not acknowledge satisfaction of the other thousand pound Haughton moved That the Scire facias should abate As if a man brings Debt upon a Bond of twenty pound and shews a Bond for forty pound and doth not acknowledge satisfaction for 20l l it is not good The Justices would advise of it And at another day it was moved againe Whether the Scire facias was good because it doth recite Quod cum nuper such a one recuperasset four thousand pound and doth not shew in what Action or at what day the Judgment was given or the Recovery had Piggot That is not material for such is the Form in an Audita querela or Redisseisin As to the other That he doth not acknowledge satisfaction as in the Case before cited by Haughton which Case is in 1. H. 5. That is not like to an Execution for an Execution is joint or severall at the will of him who sues it forth as in 19. R. 2. Execution 163. hee may have part of his Execution against one in his life time and if he dieth other part against his Heir or Executor Note the Execution was of the whole but because the Defendant had not so much he had but part against him who had no more and therefore of the residue he had Execution against the Heir Gawdy Justice I conceive that he cannot have an Execution unlesse he acknowledge Satisfaction There is no difference as to that betwixt the Action of Debt upon a Bond and a Scire facias and the intendment viz. that it shall be intended that he was paid because he sued but for Three thousand Pound will not help him Piggot as to that vouched a Case out of 4 5. Mary in Dyer which I cannot find Suit Justice said That if the Defendant in the Scire facias say nothing by such a day that Judgement should be entred for the Plaintiffe Quod executio fiet Mich. 28 29. Eliz. in the Kings Bench. 94 JUdgement was given against an Infant by default in a reall Action of Land And a Writ of Error was thereupon brought and it was argued That it is not error for in many cases an Infant shall be bound by a Judicious act as 3. E. 3. Infant 14. Where an Infant and a Feme Covert bring a Formedon and the woman was summoned and severed And it was pleaded That where the Writ doth suppose the woman was Sole she was Covert and Judgment was demanded of the Writ and that the Infant could not gainsay it but confessed it this Confession of the Plea which abated his Writ was taken And 3. H. 6. 10. Br. Saver Default 51. An Infant shall not save his default for he shall not wage his Law See there that the Default shall not be taken against him therefore that book seems rather against it then for it Vide 6. H. 8. Br. Saver Default 50. That Error lieth upon a Recovery by default against an Infant otherwise if it be upon an Action tried so is 2 Mar. Br. Judgment 147. It was said That a generall Act of Parliament shall bind an Infant if he be not excepted The Justices did seem to incline That if Judgement be given by default that it shall bind an Infant but there was no rule given in the Case Mich. 28 29. Eliz. in the Kings Bench. 95 A Clark of the King's Bench sued an Officer of the Common Pleas and he of the Common Pleas claimed his Priviledge and could not have it granted to him for it is a generall rule That where each of the persons is a person able to have Priviledge he who first claimes it viz. the Plaintiffe shall have it and not the Defendant As if an Atturney of the Common Pleas sueth one of the Clarks of the Kings Bench yet he of the Kings Bench shall not have Priviledge although the Kings Bench be a more high Court because the other is Plaintiffe and first claimeth it Mich. 28 29. Eliz. in the Kings Bench. 96 AM Action upon the Case upon a Promise was brought but the Case was so long that I could not take it But in that Case Tanfield who argued for the Defendant said That it is not lawfull for any man to meddle in the cause of another if he have not an Interest in the thing for otherwise it will be Maintenance But if a Custome be in question betwixt the Lord of the Manor and Copy-holder all the other Copy-holders of the Manor may expend their money in maintenance of the other and the Custome and the Master may expend the money of the servant in maintenance of the servant So he in the Remainder may maintain him who hath the particular Estate Maintenance is an odious thing in the Law for it doth encrease troubles and Suites He argued also How that Bonds Obligations and Specialties might be
yet in the interim during the life of Brenne and his wife it is one entire Manor For if Blackborow had levied a Fine thereof before entry his Interest in the Land had not passed And if a Fine be levied of the Manor and the Conusee render back part to one for life and another part to another for life the remainder of the whole to a third until the Two enter it is one entire Manor in the hands of the Conusee If I devise that my Executors shall sell such Lands which are parcell of a Manor and dye untill they sell it remains parcell of the Manor So if the heir selleth the Manor that Land shall passe for it is but executory and remains parcell untill it be executed Wherefore in the principall Case here the Copy-hold is good The reason of the Case 33. H. 8. Dyer 48. is because before the grant the advowson was not appendant to that acre onely but to the whole Manor and to that acre as parcell of it Also he said that the Copy-hold shall be good against the Lessee being granted before execution of his term when as the Manor was entire For he who hath a Manor but for one year may grant Copies and the grant shall be good to bind him in the Reversion And if one recovereth an acre parcell of a Manor before execution it is parcell of the Manor and by grant of the Manor shall passe Periam Justice But yet now being executed by the death of the Lessor and his wife it is no part of the Manor if they be severall Leases Walmesley But the Defendant is in by Custome by one who is Dominus pro tempore Anderson Chief Justice The Case of 48. E. 3. is like our Case And I conceive clearly here is no severance but if there had been any severance it had been otherwise but I doubt of the other point Periam Justice In 13. H. 4. the difference is taken betwixt a grant of a Manor una cum advocatione and a grant of a Manor et ulterius a grant of the Advowson In 14. Eliz. Dyer 311. in the Case of the Lord Cromwell and Andrews it is moved If a man bargain and sell give and grant a Manor and Advowson to one and afterwards levieth a Fine or inrolleth the Deed Dyer held that the Advowson shall passe by the Bargain and Sale as in gross before that the Deed be enrolled But I conceive that it cannot pass if the Deed be not enrolled and then it shall pass as appendant by reason of the intent of the parties and so in this Case And for the last matter I conceive very strongly that when the Lease which is executory takes effect that it shall avoid the Copy-hold for although at once viz. during the expectancy of the said Lease to begin at a day to come the Copy-hold be not extinct yet now he may say That all times as in respect to him the Copy-hold Custome was broken I hold That a Tenant in Dower shall not avoid a Copy-hold made during the Coverture and so it hath been adjudged in the Kings Bench. But I conceive there is a difference betwixt that Case and the Case in question for in that Case the title of the wife to have Dower is not consummate till the death of the Husband Anderson Chief Justice I can shew you an Authority That if I grant unto you such Land and the Manor of D. there the Land shall pass as parcell of the Manor Periam True there for it doth enforce the first grant But here the intent of the parties doth appear and the same is to be respected Anderson But their intent ought to be according to the Law as in 19. H. 8. it is holden it shall be in a Devise Anderson upon the Argument of this Case said That if a Warranty be to a whole Manor and also to an Advowson the party cannot have Two Warrantia Chartae Periam If he had further said in the Deed That his intent was that it should be severall the same had altered the Case Anderson No truely because his intent did not stand with the rule of Law As if a man devise that his Lands shall be sold and doth not say by whom it is void and yet the intent is expressed If the Lease had been by severall Deeds Periam said The Copy-hold had beene severed Windham denied that If both the Deeds bee delivered at one time It was adjourned Hill 29. Eliz. In the Common Pleas. 148 AN Information was upon the Statute of 5. 6. E. 6. for buying of seed Corn having sufficient of his own and not bringing so much unto the Market of his own corn and a generall issue was found upon it And it was delivered for Law to the Jury by the Justices That a Contract in Market for corn not in the Market or which was not there that day is not within the Branch of the Statute But if corn or graine be in the Market although that the Contract be made in a house out of the Market and delivered to the Vendee out of the Market yet it is within the Statute And in the Argument of that Case Anderson said That the Market shall be said The place in the Town where it hath used to be kept and not every place of the Town And a Sale in Market overt in London ought to be in a Shop which is open to the street and not in Chambers or inward rooms otherwise the property is not altered And so it is of all Statutes in open Markets And the Recorder of London said That such was their Custome in London Hill 29. Eliz. in the Common Pleas. 149 It was holden by Anderson chiefe Justice That if one deviseth Lands to the heirs of I. S. and the Clerk writes it to I. S. and his heirs that the same may be holpen by averrment because the intent of the Devisor is written and more And it shall be naught for that which is against his intent and against his will and good for the residue But if a Devise be to I. S. and his heirs and it is written but to the heirs of I. S. there an averrment shall not make it good to I. S. because it is not in writing which the Statute requires anâ— so an averrment to take away surplusage is good but not to encrease that which is defective in the Will of the Testator Mich. 29. Eliz. in the Common Pleas. 150 A Feoffment was made unto A. unto the use of him and his wife dis-punishable of Wast during their lives one died and the Survivor committed Wast It was the opinion of the whole Court that an Action of Wast would not lie by him in the Reversion for it is a Priviledge which is annexed to the Estate which shall continue as long as the Estate doth continue Mich. 29 Eliz. in the Common Pleas. 151 A. grants annualem redditum out of Lands in which he hath nothing The opinion of
of his eldest son in tail and afterwards he married a wife and died that the wife should not be endowed for when he had limited the use to himself for his life he could not limit arâ— Remainder over And Edwards Case adjudged in the Court of Wards which was That there was Tenant for life the Remainder in tail he in the Remainder granted his Remainder to I. S. and his heirs and afterwards Tenant for life dyed and then the grantee dyed his heirs within age it was adjudged that the heir of the garntee should not be in ward because the Tenant in tail could not by his Grant grant a greater estate then for his own life But he said That in the principall Case it appeareth That the Tenant in tail in Remainder hath particularly recited his estate And where it appeareth in the Conveyance it self that he hath but an estate in tail a greater estate shall not passe As if Tenant for life granteth a Rent to one and his heirs the same at the first sight seems to be a good Rent in Fee but when it appeareth in the Conveyance that the grantor was but Tenant for life there upon the Construction of the Deed it self it cannot be intended that he granted a Fee but that an estate for life passed only in the Rent Secondly he argued That although the estate in tail in the principall case was an abeyance Yet a Common Recovery would barr such estate tail in abeyance And therewith agreeth C. 2. part Sr Hugh Cholmleys Case 3. He said That the estate was out of the King and vested in the party without any Offence found as 49. E. 3. Isabell Goodcheaps case A man devised houses in London holden of the King in tail and if the Donee dyed without Issue that the Lands should be sold by his Executors The devisee died without Issue The bargain and sale of the Lands by the Executor doth divert the estate out of the King without Petition or Monstrans de Droit So If there be Tenant in tail the Remainder in tail and Tenant in tail â—n Remainder levieth a fine of his Remainder to the King and afterwards dyeth without Issue the Kings estate is determined and there needs no Petition or Monstrans de Droit 4. He said That in the principall case nothing was in the King because it doth not appeare that there was any seisure or Offence found to entitle the King And the Tenant in tail in the Remainder died in the life of King James and then if the Kings estate were then determined as before by the death of the Tenant in taile the King which now is never had any title And hee said that he needed not to shew a greater title then he had And hee took a difference when Tenant in taile doth onely defend or make defence and when he makes title to Lands in the one Case he ought for to shew That the Tenant in taile died without issue and in the other Case not And therefore in the principall case he demanded Judgment for the Defendant The Case was adjourned to another day Mich. 4. Caroli in the Star-Chamber 511 TAILOR and TOWLIN's Case A Bill was preferred against the Defendant for a Conspiracy to Indict the plaintiff of a Rape And the Plaintiff aleadged in his Bill That an Indictment was preferred by the Defendant against the Plaintiff before the Justices of Assise and Nisi prius in the County of Suffolk And did not lay it in his Bill that the Indictment was preferred before the Justices of Oyer and Terminer and Gaole delivery and the same was holden by the Court to be a good Exception to the Bill for that the Justices of Assise and Nisi prius have not power to take Indictments But afterwards upon veiw of the Bill because the Conspiracy was the principall thing tryable and examinable in this Court and that was well layd in the Bill the Bill was retayned and the Court proceded to Sentence And in this Case Richardson Justice said That in Conspiracy the matter must bee layed to be falsè et malitiosè and if it be layed for a Rape It must be layd that there was recens persecutio of it otherwise it will argue a Consent And therefore because the Defendant did not preferre an Indictment of Rape in convenient time after the Rape supposed to be done but concealed the same for half a years time and then would have preferred a Bill of Indictment against the plaintiff for the same Rape he held that the Indictment was false and malitious And Hyde Chief Justice said That upon probable proof a man might accuse another before any Justice of Peace of an Offence and although his accusation be false yet the Accuser shall not be punished for it But where the Accusation is malitious and false it is otherwise and for such Accusation he shall be punished in this Court Trinit 8. Caroli in the King Bench. 513 JONES and BALLARD's Case AN Action upon the Case was brought for these words viz These Jones are proper Witnesses they will sweare any thing They care not what they say They have already forsworn themselves in the Chancery and the Lord keeper Committed them for it Jermyn took Exceptions because it was not said to be in the Court of Chancery nor that it was in any Deposition there taken upon Oath But it was adjudged per Curiam That the Action would lie and Jones Justice said that the Addition in the Chauncery was as much as if he had said he was perjured there And Hâ—msies case was vouâ—hed by him Where one said of a Witness presently after a Tryall at the Guild Hall in London You have now forsworn your self That it was adjudged that the words were actionable Trinit 8. Caroli in the Kings Bench. 513. SYMME's and SMITH's Case A Woman being entituled to copyhold Lands of the Manor of D did covenant upon reasonable request to be made unto her to surrender the Copy-hold Land according to the Custome of the Manor And it was found That the Custome of the Manor is That a surrender may be made either in person or by Letter of Atturney and that the plaintiff did request the woman to make the surrender by a Letter of Atturney which shee refused to do And whether shee ought to surrender presently or might first advise with her Councell was the Question It was argued for the plaintiff that shee ought to do it presently And Munser's Case C. 2. part and 16. Eliz. Dyer 337. Sir Anthonie Cooks Case were vouched that she was to do it at her perill And the Election in this Case was given to the Covenantee and hee might require it to be done either in Court in person or by Letter of Atturney And C. 2. part Sir Rowland Heywards Case and C. 5. part Hallings Case was vouched to that purpose Rolls contrary for the Defendant And he said That the woman was to have convenient time to do it and
171 365 368 369 forfeiture 269 142 365 felling trees 173 174 trespasse brought 174 Corporation 347 dissolved the donor shall have his land again 211 sues 393 Costs 329 345 220 Covenant 38 assignee 162 Executors ibid. 11 12 48 69 70 to build a mill c. there 271 273 175 99 120 333 335 217 to surrender 445 performed 95 The Indenture is void in part 213 Covenant 87 121 cause of things must appear in the Court 401 Countermand 133 County where actions shall be brought 335 of trials 429 Courts-Baron 68 69 Leet 71 Tower Court 145 of Requests 208 216 243 244 Kings Bench and Chancery 357 Acts done in spiritual Courts 33 163 164 181 215 Curia claudenda 127 Custom 5 49 234 140 143 235 267 261 135 of descents 166 127 That the wife may devise to the husband 14 Particular Customes 163 D Day in Court 68 Day materiall to be set down 433 434 Damages recowping in them 53 135 362 jonyt severed 57 assessed 98 343 344 not assessed writ of enquiry 207 not recoverable in account 57 treble 245 to be severed 210 Damage feasan 124 185 Date of a Patent 416 Declaration 251 86 186 in an action upon 1 2. P. M. of distresses 11 upon an Assumpsit 32 Custome 252 particularly 358 insufficient 76 106 343 370 mistakes 345 287 119 160 125 Deed things passe by one deed 129 by deed 354 128 Debt 253 91 336 372 217 210 who liable 294 The Kings debt 289 290 291 292 293 294 295 296 Default 280 Defamation 440 Delivery of deeds 130 of money to anothers use 210 Demand 23 39 67 96 154 337 where to be 331 by writ 74 335 310 the word 398 Demurrer 10 Denizen made 417 Departure 255 122 Depositions 193 Deprivation 259 163 Detaining 8 Detinue 370 Declaration in it 403 Devastation by Executors 30 Devastavit 285 Devise 7 14 15 16 26 40 46 208 266 280 95 99 130 131 299 319 146 351 352 363 to a Colledge c. 394 prevents a remitter c. 411 to a mans heir 412 to one daughter heir of land held by Knights service c. 17 to sell 78 to the Son and heir 94 Dilapidation 259 Diminution 267 alledged 407 Disability the plaintiff cause of it 75 76 Discharge 11 105 ought to shew what 61 Discent 3â—5 312 365 Disclam 25 Discontinuance one issue only found 5 370 within a year 219 Discontinuance by tenant in taile 317 Disseisin 522 of a particular estate 139 Acts of disseisor disseisor sues c. 388 Distresse justified 109 110 187 190 driven out of the Countrey 11 sufficient upon the Land 67 110 Divorce 19 145 Dove-coat a Writ of Right lies of it 259 erected 284 Dower 21 135 145 A Lease is for years 266 Forfeitable by the Husband 323 Averment of seisin of the husband for damage 212 E Ejectione firmae 6 15 18 53 71 72 33â— extra tenet unnecessary 60. lyes 157 Plea 149 Election 258 159 127 140 446 To sue 196 determined ibid. Elegit 257 82 84 Ely jurisdiction there 380 381 Emblements 159 Enclosure in Forrests 167 168 169 170 171 Entry into one house 72 To defeat an estate 9 To fortifie it 25 for forfeiture 175 No trespasse 283 Error 26 258 248 73 80 84 87 372 373 lyes not 261 247. brought 376 377 378 379 439. directed 44. things uncertaine 408. severall 440 Escape 22 27 262 280 125 126 372 403 Fresh suite 177 433 Escheat 78 For Miscreancy 34 Right of action 322 Essoine 235 236 Estates 19 42 51 52 272 A Lease for time 102 103 determined 9 the lesse drowned 52 voidable 9 Estoppel 257 48 147 321 177 384 385 Estranger to a plaint erroneous c. 403 Estovers custome pleaded 235. see 238 97 173 Estrepment 112 164 Estrey 150 151 Eviction 258 Evidence maintaines not the issue 235 see 326 Execution 26 257 258 80 82 83 84 290 295 147 125 126 181 371 372 373 217 Assignment after judgement 161 Taking 372. severall 208 Executors 21 192 See Right Of his own wrong 104 Reteines 217 Order in payment 298 Pleads fully administred 178 Exception in a grant 116 117 118 Time past to take it 100 One releases 431 Exâ—hange 99 100 Exigent 83 217 Excommunication 191. unjust 406 Exposition 16 17 18 36 37 67 71 236 246 198 of Lawes 39 of Statutes 309. and Patents 425 Extent 82 289 311 Extinguishment 24 11 101 314 128 137 211 Lands given by Statute to the King Annuity not extinguished 170 F Falsâ—fying a Recâ—very 271 Falsely imprisoned 124 Fee executed â—â—2 one cannot depend of another â—â—7 Fee-simple 155 Felony not before attainder 267 Cause of arrest for it 406 Feoffments 318 319 320 Fieri facias 276 147 83 Fine for vert c. 277. What Courts may fine c. 381 Fine levied by tenor of it 246 Parish not named 440 Record of it 103 129 307 148 351 179 First fruits 393 Forceable entry 45 Forfeiture of Lessor 105 141. Of a Right 321 See Treason Forgery 62 63 175 Form commanded by Statute must be observed 334 188 189 Formedon 239 302 163 Forrests chases c. 169 Frankalmoigne 396 Franchises 17 262 Usurped 91 Frankmarriage 18 19 20 Franktenement rule of it 9 In an upper chamber 44 Forfeiture 6 318 In case of Treason 34 307 308 310 315 316 Fraudulent conveyances and acts 6 7 285 161 191 192 G. GArdian in soccage 316 Gardens 6 Gavel-kind Plea 55 Grants Words apt 7 Of a common person 8 18 24 25 236 237 270 273 Restriction rule 237 To dig in his waste 18 Generall words 183 One thing passes with another 352 Things passe in grosse 127. By one Deed 129. Of the King 8 35 Where a mistake shall not abridge the fulnesse of words precedent 36 Favoured 37 38 262 136 425. See 414 415 416 417 421 422 423 425 Of a possibility 316 H. HAbeas corpus directed 44. See 198 199 Habendum 51 269 272 Habendum successive 220 Holidayes 218 Heire-speciall 3. Force of the word ib. 4 275 102 312 Homage 320 Husband and Wife acts of both or either 2 5 14 15 312 141 180 Wifes lease good 327 Gives land to her husband 143 Execution of the Wives Lease 26 See Reservation Husband may forfeit the Wives Copy-hold 345 May correct his Wife 215 I. IDeot 302 Jeofailes 56 57 194 Imbracery 240 Imprisonment 158 344 199. See Fine Improvement of common 97 Incidents 359 Ingrossers of corn 144 Innkeepers 345 346 Incroachment 24 411 Inquisitions 294 299 Indictment 45 46 65 67 272 84 157 400 346 For erecting a Cottage 383 For omitting the Crosse in Baptisme 119 Joynt 349 Contra pacem when 59 Infant 60 104 In his mothers belly 319 364 365 366. May grant c. 14 Brings Error to reverse a Fine 20 May release 30 31 Acknowledges a Statute c. 149 Appears c. 382 Promises to pay for his meat c. 219. Sues his Guardian discharges 214 Information 91 131 158
same to Cropp the Lessor And the same Margery at one or two dayes before the payment of the said Rent had received the Rent in the like manner and had paid it to Cropp and he had accepted of it But now he refused to receive it of her but at the last day of the Month he went to the Land and there demanded the Rent and because it was not paid he entred Laiton argued for the Lessor That his entry was lawfull for he said That the Tender made by Margery Briggs to the Lessor was not sufficient 1. Because the Servant of the Lessee had Authority to deliver it to the Lessor therefore when he delivers it to another he hath not pursued his Authority 19. H. 8. 27. H. 8. Letter of Atturney made to diverse to give livery of Seisin If one make Livery alone it is void 34. H. 6. If a Capias be to many Coroners and one execute it it is void 18. E. 4. If one hath a Letter of Atturney to make Livery he cannot transfer this Authority to another to make Livery for him Also if in this Case a Stranger had tendered the Rent the Lessor was not bound to receive it as upon a Mortgage if a Stranger tender the Money the Mortgagee is not bound to accept of it 21. E. 4. In case of Corporall Service as Homage or Fealty the demand is to be made of the person but of Rent the demand is to be made upon the Land because the Land is the Debtor Clenche Justice conceived That if the Lessee himselfe had delivered the Rent to Margery Briggs that it had been good but it is a doubt if good made by the servant for he could not transfer his Authority to another Wray Chief Justice If it were upon a Bond the Obligee was not bound to accept of it before the day so if it were payable at Mich. only there the Lessor is not bound to accept of it before the day but in as much as 't is after the day the Month is a Liberty and Benefit for the Lessee and it was due at Mich. therefore I conceive That being tendred to him within any part of the Month that he is bound to accept of it And as to that That his servant cannot transfer his Authority over and therefore Margery Briggs is but a stranger in that act that is not so for now she is a servant in that to the Lessor himself and therefore there is privity enough also she hath received the Rent for him before What then said Laiton We can prove a speciall commandment for the time before that she received it At another day the Case was moved again and it was ruled against Cropp the Lessor because the rent was due at Mich. and the month after was given because of the penalty of Re-entry and the Tender and Refusall after the Rent was due and within the month saves the penalty and also Lawes ought to be expounded Secundùm â—quum bonum and good conscience and the Lessor was at no prejudice if he had accepted of it when his Daughter in Law tendred it unto him and therefore it was conceived That he had an intent to defraud the Lessee of his Lease and the Law doth not favour Frauds and therefore it was adjudged against Cropp the Lessor Hill 28 Eliz. In the King 's Bench. 44 PRIDEAUX's Case IN this Case it was moved Where a man marrieth a woman who is an Administratrix so as the Suit is to be in both their names Whether they shall be named in the Writ Administrators or not Wray Chief Justice They shall be for by the Entermarriage the Husband hath Authority to entermeddle with the Goods as well as the Wife but in the Declaration all the speciall matter ought to be set forth and so some said is the Book of Entries That both of them shall be named Administrators Hill 28. Eliz. in the King 's Bench. 45. AN Action upon the Case was brought for these words viz. Thou art a Cozener and a Bankrupt and hast an Occupation to deceive men by the words were spoken of a Gentleman who had One hundred Pound land per annum to live upon and therefore although he used to buy and sell Iron yet because he was not a Merchant nor did not live by his Trade the better Opinion of the Court was That the words were not actionable and so adjudged Hill 28. Eliz in the King 's Bench. 46 HARWOOD and HIGHAM's Case ONE had Houses and Lands which had been in the tenures of those which had the Houses and he devised his Houses with the Appurtenances and it was holden and so adjudged by the whole Court That the Lands did passe by the words With the Appurtenances For it was in a Will in which the intent of the Devisor shall be observed Trinit 28. Eliz. Rot. 1130. in the Common Pleas. 47 The QUEEN and SAVACRE's Case IN a Quare Impedit by the Queen against Savacre Clerk the Case was this The Queen presented to a Parsonage which was void by the taking of another Benefice by the said Savacre and the said Savacre for to enable him to have two Benefices pleaded That he was the Chaplain of Sir James a Crosts Controller of the Queens House who by the Statute of 21. H. 8. cap. 13. might have two Chaplains and might qualifie them to take two Benefices to which it was replied That the said Sir James a Crost had two other Chaplains which are qualified to have two Benefices and have also two Benefices by reason of that qualification and also are alive so as he is a third Chaplain who could not be qualified by that Statute To which it was answered That one of those two Chaplains is removed and discharged by the said Sir James a Crost to be his Domesticall Chaplain scil Capellanum familiarem as it was pleaded and so he hath now but two Chaplains of which the Defendant was one upon which there was demurrer joyned Three Points were in the Case 1. If the qualification Sub sigillo be sufficient within the Statute without the Signature or name of Sir James a Crost 2. When two Chaplains are qualified and one is removed out of service if he might qualifie another by the Statute the party being alive who was qualified 3. Whether he remain his Chaplain notwithstanding such removall during his life Upon which Points after perusall of the Statute it was agreed by the whole Court That the Queen ought to have Judgement and so they gave Judgement presently And the reasons of their Judgement were for the first Point Because that the Defendant Sâ—vâ—cre was not qualified Sub Signo Sigillo praedict Jacobi a Crost but only Sub Sigillo and the words of the Statute are viz. Under the Sign and Seal of the King or other their Lord or Master c. Which words Or other their Lord or Master shall be referred to Sign and Seal which is limited to the
Cestuy que use when he entreth and maketh a Lease he hath no reversion nor shall punish waste And as it is in the Creation so is it in the Continuance 4 H. 7. 18. If Cestuy que use for life or in tail maketh a Lease for life it is warranted during his own life by the Statute of 1 R. 3. but if Tenant for life at the Common Law maketh a Feoffment or a lease for life there the first Lessor ought to avoid this forfeiture by entrie and it is not void by the death of the second Lessor viz. the Tenant for life 27 H. 8. 23. A Feme Covers is Cestuy que use the husband maketh a Feoffment and dieth the Feoffment is void by his death Br. Feoffments to Uses 48. If Cestuy que use for life levieth a fine it is no forfeiture but good by the Statute of 1 R. 3. during his own life And if in such case Proclamations pass there needeth no claim nor entrie within five years but the Law is contrarie of Tenant for life by the Common Law for if Tenant for life at the Common Law levieth a fine it is a forfeiture Dyer 57. Cestuy que use for life or in tail maketh a Lease for life the Lease is determined by the death of Cestuy que use and the Lessee is become Tenant at sufferance but a Lease for life by Tenant for life at the Common Law is not determined by the death of Lessee for life who was Lessor and his Tenant is tenant for life and not at sufferance as in the Case before and the first Lessor ought to avoid it by entrie Br. Feoffments to Uses 48. A Recovery by Cestuy que use in tail or in fee is ended by his death By these Cases appears a main difference betwixt the validitie of a Feoffment by Cestuy que use and the Feoffment at the Common Law The Statute of 27 H. 8. of Uses doth not execute Uses which are in abeyance C. 1. part Chudleigh's Case 9 H. 6. by the Common Law the Devise to an Enfant in ventre samier is good but by the Statutes of 32 and 34 H. 8. of Wills such a Devise is not good for the Statute Law doth not provide for the putting of lands in abeyance By the Statute of 1 R. 3. All Feoffments and Releases c. shall be good and effectual to those to whom they are made to their uses And this Feoffment in our Case was not made to a man in Nubibus Cestuy que use by this Statute of 1 R. 3. makes a lease for years the remainder over to the right heirs of I. S. the remainder is not good for the Statute doth not put it in abeyance for the remainder ought to be limited to one in esse 21 H. 8. cap. 4. giveth power to Executors to sell that Executor who proveth the Will shall sell and when he selleth if he have any right to the land the right of the said Executor is not gone by that Statute So if Commissioners upon the Statute of Bankrupts sell the Lands of the Bankrupt and one of the Commissioners hath right to the land so sold his right is not extinct And so in this Case the Statute limits what shall pass Upon the Statute of â—3 Eliz. cap. 4. which makes the lands of Receivers liable for their debts if the King selleth the right of the Accomptant passeth but not the Kings right 17 E. 3. 60. An Abbot having occasion to go beyond the Seas made another Abbot his Procurator to present to such Benefices which became void in his absence That Abbot presents in the name of him who made him Procurator to one of his own Advowsons the right of his own Advowson doth not pass but yet it is an usurpation of the Abbot which went beyond sea to that Church What is the nature of this right All rights are not giâ—en away by Feoffments at the Common Law Lit. 672. Land is given unto husband and wife in tail the husband maketh a Feoffment and takes back an Estate to him and his wife both of them are remitted Which Case proveth that the husband hath left in himself a right notwithstanding the Feoffment 41 E. 3. 17. 41 Ass 1. John at Lee's Case So at the Common Law a Feoffment doth not give away all the right This right doth stick so fast in the issue as the Statute of West 2. cap. 1. can back it unto him 2 E. 3. 23. 22 E. 3. 18. At the Common Law if Tenant in tail had offered to levie a fine the Judges ought not to receive it but ought to have refused it if it had appeared unto them that the Conusor was Tenant in tail the same was before the Statute of 4 H. 7. which gave power to Tenant in tail to levie a fine for the Statute of West 2. Cap. 1. saies Quod finis sit nullus 2. E. 2. age 77. 2 E. 3. 33. 3 E. 3. 1. 24 E 3. 25. If Donee in tail levieâ—h a Fine yet there is no remedie against his Tenant for he shall not be compelled to attorn for that the right is in the Donor â— E. 2. Avowry 181. 48 E. 3. 8. Avowry was made upon the Donee in tail notwithstanding that he made a Feoffment and Avowry is in the realtie and right 4 E. 3. 4. 4 H. 6. 28. 10 H. 7. 14. In a Replevin ancient Demesne is a good plea because the Avowry is in the realtie The Donor shall know for homage upon the Donee after that the Donee hath made a Feoffment 7 E. 4. 28. the Donee shall do homage And Litt. 90. saith That none shall do homage but such as is seised in his own right or in the right of another 2 E. 2. Avowry 85. 7 E 54. 28. 15 E. 4. 15 Gard. 116. the issue shall be in Ward notwithstanding a Feoffment by Tenant in tail Com. 561. Tenant in tail maketh a Feoffment yet the right of the tail doth remain in the Tenant in tail 21 H. 7. 40. Tenant in tail of a Rent grants the same in Fee if an Ancestor collateral releaseth with Warranty the same bindeth the Tenant in tail There is a common Rule That a Warranty doth not bind when a man hath not a right The Cases cited in C. 1. part Albonies Case where Feoffments give Rights I agree Barton and Ewers Case A man made a Feoffment of Land of which he had cause to have a Writ of Error he gave away his Writ of Error by the Feoffment I agree all those Cases for that is in Cases of Feoffments at the Common Law but in our Case the Feoffment is by the Statute of 1 R. 3. In our Case there is Jus habendi possedendi recuperandi It is like unto a plant in Winter which seemeth to be dead yet there is in it anima vegitativa which in due time brings forth fruit So the right in our Case is not given away nor is it in abeyance
releaseth A Will is made and A. is made Executor and no trust is declared in the Will and at his death the Testator declares That his Will is for the benefit of his children May not this intent be averred there is nothing more common Dodderidg Justice For the making of an Estate you cannot averre otherwise then the Will is but as to the disposition of the estate you may averre Jones Justice There are two Executors one commits wast or releaseth c. the other hath no remedy at the common Law for that breach of Trust The reason of Chenyes case C. 5. part is Whosoever will devise Lands ought to do it by writing and if it be without the writing it is out of the Will although his intent appeareth to be otherwise Before the Statute of 34. H. 8. cap. 26. The Marches of Wales held plea of all things for things were not then setled But the said Statute gave them power and authority to hear and determine such causes and matters as are or afterwards shall be assigned to them by the King as heretofore had been used and accustomed Now if it be assigned by the King yet if it be not a thing accustomed and used to be pleaded there it is not there pleadable So if it be within the Instructions made by the King yet if it be not used and accustomed it is not pleadable there but it ought to be within the Instructions and also accustomed and usuall Adultery Symony and Incontinency are within their Instructions and are accustomed The things being accustomed to be pleaded there have the strength of an Act of Parliament but by the Instructions they have no power to proceed in case of Legacy Then let us see if the same be included within the generall words things of Equity within the Instructions And then I will be tender in delivering of my opinion If a Legacy be pleadable there or not Whitlock Justice The Clergy desired that they might forbear to intermeddle with Legacies Five Bishops one after the other were Presidents of the Marshes there and they draw into the Marches spirituall businesse but originally it was not so their power was larger then now it is for they had power in criminall causes but now they are restrained in that power There is a common Law Ecclesiasticall as well as of our common Law Jus Commune Ecclesiasticum as well as Jus Commune Laâ—cum The whole Court was of opinion That the Kings Atturney in the Marches being out we ought to have priviledge there In the Chancery there is a Latine Court for the Officers of the Court and the Clarks of the Court for to sue in But in the principal Case a Prohibition was not granted because there was much matter of Equity concerning the Legacy It was adjourned Pasch 3. Caroli in the Kings Bench. 497 HARLEY and REYNOLD's Case HArvey brought an Action of Debt upon an Escape against Reynolds Hill 1. Car. Reynolds pleaded That before the day of Escape scil the twentieth day of January 1. Car. That the Prisoner brake Prison and escaped and that he afterwards viz. before the bringing of this Action viz. 8. die Maii 2. Car. took the Prisoner again upon fresh Suit Anderws for the Plaintiff Reynolds is bound to the last day viz. 8. Maii and not the day before the bringing of the Action for the Bill bears date Hill 1. Car. and the terme is but one day in Law c. 4 part 71. and so no certain day is set for the Jury to find The day which Reynolds sets that he retook the Prisoner is the eighth day of May and he shall be bound by that Com. 24. a. 33. H. 6. 44. Where a day is uncertain a day ought to be set down for a day is material for to draw things in issue C. 4. part 70. the Plaintiff shewed That 7. Maii 30. Eliz. by Deed indented and inrolled in the Common Pleas Ter. Pasc in the said thirtieth year within six monthes according to the Statute for the consideration of One hundred Pounds did bargain and sell But he further said That after the said seventh day of May in the said thirtieth year he levied a Fine of the Lands to the now Plaintiff after which Fine viz. 29. Aprilis in the said thirtieth year the said Deed indented was enrolled in the Common Pleas. Note That another day more certain was expressed therefore the mistaking of the day shall not hurt And there it was helped by Averment 8. H. 6. 10. Repleader 7. In Waste the Defendant said That such a day before the Writ brought the Plaintiff entred upon him before which entry no Waste was done c. Strange It might be that he entred again wherefore the Court awarded that he should recover Co. Entries 178. In Dower the Tenant vouched a stranger in another County who appeared and there the Replication is viz. die Lunae c. so the day ought to be certain 19. H. 6. 15. In a Formedon If the Defendant plead a thing which by the Law he is not compelled to do and the Plaintiffe reply That she is a Feme sole and not Covert it is good but if he plead That such a day year and place there the Trial shall be at the particular place otherwise the Trial shall be at the place where the Writ bears date C. 4 part Palmers Case If the Sheriff sell a Term upon an Extent and puts a Date to it scil recites the Date and mistakes it the sale is not good for there is no such Lease Dyer 111. Then it is said 31. Octobris and there by the computation of time it was impossible and so here the time is impossible scil that 8. Maii 2. Car. should be before Hill 1. Caroli for the taking is after the Action brought and so naught to bar the Plaintiff it is the substanre of his bar upon which he relieth and so no matter of form 20. H. 6. there upon an Escape the Defendant said That such a day ante impetrationem billae in this Court scil such a day he retook him and the day after the scilicet is after the purchase of the Writ there the scilicet and the day expressed shall be void and it shall be taken according to the first day expressed if the Sheriff had retaken him before the filing of the Writ it had been a good plea in Bar otherwise not Calthrope contrary H. brought debt Hill 16. Jacobi against Cropley and 9. Junii 19. Jacobi Cropley was taken in Execution and delivered in Execution to R. by Habeas Corpus afterwards 1. Caroli Cropley escaped and H. brought debt against R. who pleaded a special Plea and shewed That 20. Januarii 1. Caroli Cropley brake prison and escaped and that he made fresh Suit untill he took him and that before the purchase of the Bill scil 8 Maii 2. Caroli he was retaken 16. E. 4. If he retake him before the Action brought it is a good bar so if the
24. Eliz. in the Kings Bench. 19. IN an Action upon the Case upon a Promise The consideration was Where I. S. had granted a Term to I. D. That afterwards upon the request of I. S. I. D. did make to W. an Estate for four years upon which W. brought his Action And after Verdict it was moved in stay of Judgement that there was no good consideration and a difference taken where the Promise was upon the Grant and where afterwards If it were before then the Condition was good but if it were afterwards it was not good And it was adjudged That the Plaintiffe Nihil capiat per billam Pasch 24. Eliz. in the Kings Bench. 20. AN Action upon the Case upon a Promise was The Consideration was That in consideration that the Plaintiffe Daret diâ—m solutionis the Defendant Super se assumpsit and because he doth not say in facto that he had given day It was adjudged that no sufficient Consideration was alledged But if the Consideration were Quod cum indebitatus c. the same had been a good Consideration without any more for that implies a Consideration in it self Pasch 24. Eliz. in the Kings Bench. 21. IT was said by Cooke That the Chancellor or any Judge of any of the Courts of Record at Westminster may bring a Record one to another without a Writ of Certiorare because one Judge is sufficiently known one to the other as 5. H. 7. 31. where a Certificate was by the Chancellor alone and to this purpose is 11. H. 4. But that other Judges of base Courts cannot do nor Justices of the Peace as 3. H. 6. where the certificate by Suitors was held void Pasch 25. Eliz. In the Common Pleas. 22. SKIPWITH'S Case IT was found upon a speciall verdict in an Action of Trespass that the place where c. was Copy-hold land And that the Custome is That quaelibet foemina viro cooperta poterit devise lands whereof she is seised in Fee according to the custome of the Manor to her Husband and surrender it in the presence of the Reeve and six other persons And that I. S. was seised of the land where c. and had issue two Daughters and died and that they married husbands and that one of them devised her part to her husband by Will in writing in the presence of the Reeve and six other persons and afterwards at another day shee surrendred to the Husband and he was admitted and she died and her Husband continued the possession And the Husband of the other Daughter brought an Action of Trespasse Rodes Serjeant The Custome is not good neither for the Surrender nor for the Will for two causes One for the uncertainty of what estate shee might make a Devise and because it is against reason that the Wife should surrender to the Husband Where the Custome shall not be good if it be uncertain he vouched 13. E. 3. Fitz. Dum fuit infra aetatem 3. The Tenant saith that the lands are in Dorset where the Custome is that an Enfant may make a Grant or Feoffment when he can number twelve pence And it was holden that because it is uncertain when he can so do the Custome is not good 19. E. 2. in a Ravishment of Ward the defendant pleaded that the custome is that when the Enfant can measure an ell of cloth or tell twelve pence as before that he should be out of Ward and it is holden no good custom for the cause aforesaid 22. H. 6. 51. a. there a man prescribed That the Lord of D. had used to have Common for him and all his Tenants And because it is not shewed what Lord whether the Lord mediate or immediate it is adjudged no good custome And as to the Surrender it is against reason that the Wife should give to the Husband for a Wife hath not any Will but the Will of her Husband For if the Husband seised in the right of his Wife make a Feoffment in Fee and the Wife being upon the land doth disagree unto it saying that shee will never depart with it during her life yet the Feoffment is good and shall binde during the life of the Husband as it is holden in 21. E. 3. And therefore it is holden in 3. E. 3. Tit. Devise Br. 43. That a Feme covert cannot devise to her Husband for that should be the Act of the Husband to convey the land to himself And in the old Natura Brevium in the Additions of Ex gravi quaerela it is holden so accordingly And the Case in 29. E. 3. differs much from this Case For there a woman seised of lands devisable took an Husband and had issue and devised the lands to the Husband for his life and died and a Writ of Waste was brought against him as Tenant by the Courtesie and it was holden that it did lie and that he is not in by the Devise for the reason there is because he was in before by the Courtesie But as I conceive that Case will disprove the Surrender for in as much as he had it in the Right of his wife he could not take it in his own Right Also he took another Exception in the principal Case because that the wife was not examined upon the Surrender but none of the Justices spake to that Exception but when the Record was viewed it appeared that it was so pleaded Further He said That the devise was void by the Statute of 34. H. 8. Cap. 5. where it is said It is enacted That Wills and Testaments made of any Lands Tenements c. by women Coverts or c. shall not be taken to be good or effectual in Law And he said That this Statute doth extend to customary Lands And as to that all the Justices did agree That it is not within the Statute And as to the Statute of Limitations Andâ—rson chief Justice said That if a Lease for years which perhaps will not indure sixty years shall be taken strong this shall Anderson moved That if the Lord Lease Copyhold land by Word Whether the Lessee might maintain an Ejectione firme and he conceived not for in an Ejectione firmâ— there ought to be a Right in Fact And although it be by conclusion it is not sufficient for that the Jury or Judge are not estopped or concluded And he conceived That if Tenant at Will make a Lease for years that it is no good lease betwixt him and the Lessor but that he may well plead that he had nothing in the land Meade contrary but they both agreed That the Book of 14. E. 4. which saith That if Tenant at Will make a lease for years that he shall be a Disseisor is not Law Anderson said That the prescription in the principal Case was not good for it is Quod quaelibet foemina viro cooperta poterit c. and it ought to be that feme Coverts possunt and by the Custome have used to devise to the
husband and therefore the prescription is not good that Potest ponere retes upon the land of another upon the Custome of the Sea for prescription must be in a thing done also by him the devise is not good according to the Custome for that is that she may devise and surrender and that ought to be all at one time and that in the presence of the Reeve and six other persons as well as the Surrenderer and the words of a Custome shall be so far performed as they may be Meade contrary And that these Witnesses shall be referred to the surrender onely for a devise may be without Witnesses And he said that sometimes the latter clause shall not refer to all the precedent matter but unto the latter onely as 7. H. 7. is Where a Praecipe was brought of lands in A. B. and C. in Insula de Ely the Clause in Insula de Ely is referred onely to C. And it was said That if in the principal Case the Will were good that then the husbands are Tenants in common and then the Action of Trespass is not maintainable Pasch 25. Eliz. in the Common Pleas. 23. THis Case was moved by Serjant Gawdy Thomas Heigham had an hundred Acres of lands called Jacks usually occupied with a house and he leased the house and forty Acres parcel of the said hundred Acres to I. S. for life and reserved the other to himself and made his Will by which he doth devise the house and all his lands called Jacks now in the occupation of I. S. to his wife for life and that after her decease the remainder of that and all his other lands pertaining to Jacks to R. who was his second son Whether the wife shall have that of which her husband died seised for her life or whether the eldest son should have it and what estate he shall have in it Meade The wife shall not have it for because that he hath expressed his Will that the wife shall have part it shall not be taken by implication that she shall have the whole or the other part for then he would have devised the same to her And therefore it hath been adjudged in this Court betwixt Glover and Tracy That if Lands be devised to one and his heirs males and if he die without heirs of his body that then the land shall remain over that he had no greater estate then to him and his special heirs viz. heirs Males and the reason was because the Will took effect by the first words Anderson Chief Justice It was holden in the time of Brown That if lands were devised to one after the death of his wife that the wife should have for life but if a man seised of two Acres deviseth one unto his wife and that I. S. shall have the other after the death of the wife she takes nothing in that Acre for the Cause aforesaid For the second matter If the Reversion shall pass after the death of the wife to the second son we are to consider what shall be said land usually occupied with the other and that is the land leased with it But this land is not now leased with it and therefore it cannot pass Windham The second son shall have the Reversion for although it doth not pass by these words Usualy Occupied as Anderson held yet because the devise cannot take other effect and it appeareth that his intent was to pass the land the yonger son shall have it Anderson Jacks is the intire name of the house and lands And that word when it hath reference unto an intire thing called Jacks and is known by the name of Jacks shall pass to the second son for words are as we shall construe them And therefore If a man hath land called Mannor of Dale and he deviseth his Mannor of Dale to one the land shall pass although it be not a Mannor And if I be known by the name of Edward Williamson where my name is Edward Anderson and lands are given unto me by the name of Edward Williamson the same is a good name of purchase And the opinion of the Court was that the Reversion of the land should pass to the second son Pasc 25. Eliz. in the Common Pleas. 24. The Lord MOUNTJOY and the Earle of HUNTINGTON'S Case NOte by Anderson Chief Justice and Periam Justice If a man seised of any entrie Franchises as to have goods of Felons within such a Hundred or Mannor or goods of Outlaws Waifes Strares c. which are causual There are not Inheritances deviseable by the Statute of 32. H. 8. for they are not of any yearly value and peradventure no profit shall be to the Lord for three or four years or perhaps for a longer time And such a thing which is deviseable ought to be of annual value as appeareth by the words of the Statute And also they agreed that the said Franchises could not be divided and therefore if they descend to two coparceners no partition can be made of them And the words of the Statute of 32. H. 8. are That it shall be lawful c. to divise two parts c. and then a thing which canot be divided is not diviseable And they said That if a man had three Manors and in each of the three such Liberties and every Manor is of equal value that yet he cannot devise one Mannor and the Liberties which he hath to it Causá quâ supra but by them an Advowson is deviseable because it may be of annual value But the Lord Chancellor smiling said That the Case of the three Manors may be doubted And there also it was agreed by the said two Justices upon Conference had with the other Justices That where the Lord Mountjoy by deed Indented and Inrolled did bargaine and sell the Manor of â—amford to Brown in Fee and in the Indenture this Clause is contained Provided alwayes And the said Brown Covenants and Grants to and with the Lord Mountjoy his Heirs and Assigns that the Lord Mountjoy his Heirs and Assigns may digg for Ore within the land in Camford which was a great Waste and also to digg Turffe there to make Allome and Coperess without any contradiction of the said Brown his Heirs and Assigns They agreed That the Lord Mountjoy could not devide the said Interest viz. to grant to one to digg within a parcel of the said Waste And they also agreed That notwithstanding that Grant That Brown his Heirs and Assigns owners of the Soile might digg there also like to the Case of Common Sans number The Case went further That the Lord Mountjoy had devised this Interest to one Laicott for one and twenty years and that Laicott assigned the same over to two other men And whether this Assignment were good or not was the Question forasmuch that if the Assignement might be good to them it might be to twenty and that might be a surcharge to the Tenant of the soile And as to that
of the Term with the Remainder over And the Devisee of the Occupation of a Term hath one speciall Property and the Remainder another Property As if a Lease be extended upon a Statute the Conusee during the Extent hath one Property and he who is to have it afterwards another Property and the reason of the difference is apparent when the Occupation is devised and when the terme is devised for in the first Case he puts but only a confidence in the Devisee as it appears in Welkdens Case But in the other Case all the Property goes and there is no confidence reposed in the Devisee And there is a Case in the very Point with which I was of Councell and was decreed in the Court of Chancery it was one Edolf's Case Where the Devise was of a terme the Remainder to another and he made the Devisee his Executor and he entred Virtute donationis as in this Case and it was decreed That the Executor might alien the Terme and that the Remainder could not be good And to this purpose Vid. 33. H. 8. 2 E. 6. 37 H. 6. 30. But if there might be a Remainder yet Incertae Personae nulla donation for if all the Children be preferred then the Remainder is void and then the Property of the Lease is in the Wife and she might preferre her at any time during her life and the generall property cannot be in another but in the Executor for the Legatee cannot enter although that 27 H. 6. seemeth to be contrary And if the whole Property be in the Wife her Husband might alien it and therefore it may be extended for his Debt as 7. H. 6. 1. is But it may bee objected That the Cases before put are of a devise of a Term and this is of a Lease That makes no difference for in Wroâ—â—slâ—y's Case Lease there is said to contain not only a terme but also the years to come in the terme Then the Question is If by the sale of the Sheriff upon the Fieri facias if the term be so gone that the Wife shall not have it by the Reversall of the Judgment by Error for the Judgement is that the Party shall be restored to all that which he hath lost It is very cleer that it shall never return for if it should be so then no sale made by the Sheriffe might be good unlesse the Judgement be without Error which would be a very great damage to the Common Wealth And also by reason and by the Judgment in the Writ of Error it should not be so restored for the Judgment is That he shall be restored to all that which he hath lost ratione judicii and here the Defendant hath not lost any thing by force of the Judgment but by force of the Execution For the Judgment was to have Execution of 200 li and of the 200 li. he shall be restored again and not of the Lease And therefore in 7. H. 7. If a Manor be recovered and the Villains of the Manor purchase Lands and afterwards the Judgment is reversed by Error the Recover or shall have the Perquisite and the other shall not be restored to it And 7. H 7. A Statute was delivered in Owell maine and a recovery was by the Conusee upon Garnishment of the Conusor and the Conusee had Execution and afterwards the Judgement is reversed by Error yet the Conusor shall not be restored to the Land taken in Execution but only the Statute shall be redelivered back where it was before And in this Case if the party should be restored to the term it should be great inconvenience Also if I give one an Authority upon Condition and the Party doth execute the Authority and after the Condition is broken the Act is lawfull by him who had Authority upon Condition And so was the Lord of Arundels Case where the Feoffee upon Condition of a Manor granted Coppies it was holden That the Grants made by him were good notwithstanding the Condition was afterwards broken And in 13 E. 3. Barr 253. That a Recovery was Erroneous and the Party being in Execution the Gaoler suffered him to escape and after the Recovery was reversed for Error yet the Action lay against the Gaoler Also by him the Jury have given an imperfect Verdict so as we cannot tell whether the Party were preferred or not for the Will was unpreferred generally and the Jury find that she viz. A. the daughter was not preferred by her father in his life time so as the Preferment by the taile is limited generally so as if any other prefer her she shall not have the Remainder And the Jury have found that she was not preferred by one certain viz. by her Father nor in a certain time in his life time which is as much as to say That she was preferred by the Uncle Aunt or Mother and if it were so then the Remainder is not good to her Also they find no preferment in the life of the father and it may be that the Father hath given her preferment by Will and that was no preferment in his life but is consummate only by his death and so she might be preferred by him by Implication by his Will So as upon the whole Matter I conceive That the Judgement ought to be reversed Note that this Case was afterwards adjudged at Hertford Terme and the Judgement was That the Issue of the Wife had Judgement for her Terme and that the Judgement upon which the Execution was was Erroneous and reversed by the Writ of Error and that the opinion of the Justices was That the Term was not to be restored but so much for which it was sold upon the Execution And the Daughter of Perepoynt brought an Action for it and had Judgement 27 Eliz. in the Common Pleas. 37. ONE had certain Minerall Lands Leased to him for years with liberty to dig and make his Profit of the Mine The Lessee afterwards digged for Mine and sold the Gravell which came of it And by the Opinion of the whole Court This sale was no Waste for no Sale is Waste if the first act be not Waste As the Sale of Trees by Tenant for life or Years is not waste if the Cutting and Felling down of them was not Waste before for the Vendition is but a secondary Act and but subsequent to the Act precedent which Act if it were lawfull the Sale also is lawfull for the Sale alone is not waste But they said That if the Lessee fell or cut Timber Trees and sell them it is waste Non quia vendebat sed quia scindebat For if he suffer them to be upon the ground without doing any thing with them yet it is waste but he may use them for the Reparation of his house and then it is no waste And yet when he fels them with an intent for Reparations and afterwards sells them it is waste Non propter Venditionem only but for the felling
licence be to A. and B. or C. some conceived that A. or B. might alien but not C. Et èâ—converso Mich. 28 29. Eliz. in the Common Pleas. 105 IT was agreed by the whole Court That a Partition made by word betwixt Joyntenants is not good See Dyer 29. Pl. 134. and 350. Pl 20. doth agree and see there the reason of it Mich. 28 29. Eliz. in the Common Pleas. 105 IT was holden by the whole Court That if the Father do devise Lands unto his Son and Heir apparant and to a stranger that it is a good Devise and that they are Joyntenants for the benefit of the Stranger Mich. 28 29. Eliz. in the Common Pleas. 106 FULLER'S Case A. Promises unto the eldest son that if he will give his consent that his Father shall make an Assurance unto him of his Lands that he will give him ten pounds If he give his assent although no assurance be made yet he shall maintain an Action upon the promise But at another day Periam Justice said that in that case the son ought to promise to give his assent or otherwise A. had nothing if his son would not give his consent And so where each hath remedy against the other it is a good Consideration In Hillary Term after Fenner spake in arrest of Judgment upon the speciall Verdict That because that the Assumpsit is but of one part and the other is at liberty whether he will give his consent or not that therefore although that hee do consent that hee shall not recover the ten pounds Also he said That the promise was that if hee would give consent that his Father should make assurance to him and here the assurance is made to A. to the use of the Defendant and his Wife in taile so as it varies from the first Communication and also it is in tail Shuttleworth contrary in as much as he hath performed it by the giving of consent then when he hath performed It is not to the purpose that he was not tyed by a crosse Assumpsit to do it but if he had not given his consent he should have nothing At length Judgment was given for the Plaintiff And Periam Justice said in this Case That if a covenant be to make an Estate to A. and it is made to B. to the use of A. that he doubted whether that were good or not Mich. 28 29 Eliz. In the Common Pleas. Intratur Hill 28. Eliz. Rot. 1742. 107 WISEMAN and WALLINGER'S Case A Man seised of two Closes called Bl. Acre makes a Lease of them rendring Ten Shillings rent The Lessee grants all his Estate in one of them to A. and in the other to B. The Lessor doth devise all his Land called Bl. Acre in the tenure of A. and dieth The Devisee brings an Action of Debt for the whole Rent against the first Lessee And the Opinion of the whole Court was That the Action would not lie because they conceived That but the Reversion of one Close passed and also that the rent should not be apportioned in that Case because a terme is out of the Statute and a Rent reserved upon a Lease for years shall not be apportioned by the act of the Lessor as where he takes a Surrender of part of it But otherwise by Act in Law as where the Tenant maketh a Feoffment in Fee of part of the Land and the Lessor entreth And at another day Anderson Chief Justice said That if the Lessor of two Acres granteth the Reversion of one Acre that the whole Rent is extinct Mich. 28 29. Eliz. in the Common Pleas 108 A Lease for years is made of Land by Deed rendring Rent the Lessee binds himselfe in a Bond of Ten Pound to perform all Covenants and Agreements contained in the Deed the Rent is behind and the Lessor brings an Action of Debt upon the Bond for not payment of the Rent the Obligor pleads performance of all Covenants and Agreements the Lessor saie That the Rent is behind it was holden That it is no Plea for the Obligor to say That the Rent was never demanded But in this Bar he ought to have pleaded That he had performed all Covenants and Agreements except the payment of the Rents And as to that That he was alwayes ready to have paid it if any had come to demand it but as the first Plea is it was held not to be good And as to the demand of the Rent the Court was of opinion That it was to be demanded for the payment of the Rent is contained in the word Agreements and not in the word Covenants and then if he be not to performe the Agreements in other manner then is contained in the Deed of that agreement the Law saith That there shall be a demand of the Rent But if the Lessee be particularly expressed by covenant to pay the Rent there he is bound to do it without any Demand Mich. 28 29. Eliz. in the Common Pleas. 109 HOLLENSHEAD against KING THomas Hollenshead brought Debt against Ralph King upon a Recovery in a Scire fâ—cias in London upon a Recognizance taken in the Inner or Ouster Chamber of London and doth not shew That it is a Court of Record and that they have used to take Recognisances and Exception was taken unto the Declaration and a Demurrer upon it and divers Cases put That although that the Judgement be void that yet the Execution shall be awarded by Scire facias and the party shall not plead the same in a Writ of Error But Periam Justice took this difference Where Execution is sued upon such a Judgement and where Debt is brought upon it for in Debt it behoves the Party that he have a good Warrant and ground for his Action otherwise he shall not recover but upon a voidable Judgement he shall recover before it be reversed Mich. 28 29 Eliz. In the Common Pleas. Intratur Trinit 28. Eliz. Rot. 507. 110 COSTARD and WINGFIELD'S Case IN a Replevin the Defendant did avow for Damage Feasans by the commandment of his Master the Lord Cromwell The Plaintiffe by way of Replication did justifie the putting in of his Cattell into the Land in which c. by reason that the Towne of N. is an ancient Town and that there hath been a usage time out of mind That every Inhabitant of the same Towne had had common for all his cattel Levant and Couchant in the same Town and so justified the putting in of his cattell The Defendant said That the house in which the Plaintiffe did inhabite in the same Towne and by reason of Residency in which house he claimed common was a new house built within 30 years and within that time there had not been any house there and upon that Plea the Plaintiffe did demurr in Law Shuttleworth Serdeant for the Plaintiffe That he shall have common for cause of Resiance in that new house and the Resiancy is the cause and not the Land nor
the Person and to that purpose he cited 15 E. 4. 29. And he agreed the Case That if the Lord improve part of the Common that he shall not have common for the Residue because of the same Land newly improved for he cannot prescribe for that which is improved by 5. Ass 2. But here he doth prescribe not in the person or in or for a new thing but that the usage of the Towne hath been That the Inhabitants shall have common and that common is not appendent nor appertinent nor in grosse by Needham 37 H. 6. 34. b. Besides he said That if the house of a Freeholder who hath used to have such common fall down and he build it up again in another place of the Land that he shall have common as before And he put a difference betwixt the case of Estovers and this Case where a new Chimney is set up for that makes a new matter of charge and he much stood upon the manner of the Prescription Gaudy Serjeant contrary and he took Exception to the Prescription for he saith that it is antiqua villa and doth not say time out of mind and such is the Prescription in 15. E. 4. 29. a. and if it be not a Town time out of mind c. he cannot prescribe that he hath used time out of mind c. And he said That if it should be Law that every one who builds a new house should have common it should be prejudiciall to the Ancient Tenants or impaire the common And so one who hath but a little land might build 20 houses and so an infinite number and every house should have common which were not reason Anderson chief Justice He who builds a new house cannot prescribe in common for then a prescription might begin at this day which cannot be and he insisted upon the generall loss to the ancient Tenants Pâ—riam Justice If it should be Law that he should have common then the benefit of improvement which the Statute giveth to the Lord shall be taken away by this means by such new buildings which is not reason So as all the Justices were of opinion That he should not have common but Judgement was respited untill they had copies of the Record And Hillary Term following the Case was moved again and Anderson and Periam were of Opinion as they were before and for the same reasons But Windham Justice did incline to the contrary But they did all allow That he who new bulids an old Chimney shall have Estovers so a house common So if a house fall down and the Tenant build it up again in another place Periam If a man hath a Mill and a Watercourse time out of mind which he hath used to cleanse if the Mill fall down and he set up a new Mill he shall have the liberty to cleanse the Watercourse as he had before And that Terme Judgement was given for the Defendant to which Windham agreed Mich. 28 29. Eliz. in the Common Pleas. 111 IN a Replevin the parties were at Issue upon the Property and it was found for the Plaintiff and Damages intire were assessed and not for the taking by it self and for the value of the Cattell by themselves for the Judgement upon that is absolute and not conditionall and also if the Plaintiffe had the Cattell the Defendant might have given the same in Evidence to the Jury and then they would have assessed Damages accordingly viz. but for the taking Mich. 28 29. Eliz. in the Common Pleas. 112 A. bargaines with B. for twenty Loads of Wood and B. promises to deliver them at D. if he fail an Action upon the Case lieth But Periam Justice said That upon a simple contract for wood upon an implicative promise an Action upon the Case doth not lie Rodes Justice If by failer of performance the Plaintiff be damnified to such a sum this Action lieth Mich. 28 29 Eliz. in the Common Pleas. 113 A Lease of Lands is made excepting Timber-Woods and Under-woods And the question was Whether Trees Sparsim growing in Hedge rowes and Pastures did passe And difference was taken betwixt Timber-wood being one Wood and Timber Woods being severall Words although it bee Arbor dum crescit lignum dum crescere nescit yet in common speech that is said Timber which is fit to make Timber Then it was moved Who should have the Lops and Fruits of them and the Soile after the cutting of them downe and also the Soile after the Under Woods and as to that a difference was taken where the words are generally All woods and where they are his woods growing And in speaking of that case another case was moved viz. If a stranger cut down woods in a Forrest and there is no fraud or collusion betwixt him and the owner of the Land Whether the King should have them or the owner of the Soile And it was holden That the owner of the Soile should have them and yet the owner could not cut them downe but is to take them by the Livery of one appointed by the Statute Mich. 28 29. Eliz. in the Common Pleas. 114. A. makes a Lease of Lands to B. for ten years rendring rent And B. covenants to repaire c. Afterwards A. by his Will deviseth that B. shall have the Lands for thirty years after the ten years under the like Covenants as are comprised in the Lease Fenner moved it as a question If by the Devise those which were Covenants in the first Lease should be Conditions in the second for they cannot bee Covenants for want of a Deed And if they should not be Conditions the heir of the Lessor were without remedie if they were not performed A Devise for years paying ten pounds to a stranger is a Condition because the stranger hath no other remedy Gaudy Justice By the Devise to him to do such things as he was to do by the Lease makes it to be a Condition which was in a manner agreed by all the other Justices Yet Periam and Rodes Justices said That the first Lease was not defeisable for not performance of the Covenants nor was it the intent of the Devisor that the second should be so notwithstanding that his meaning was that he should do the same things Periam The Covenant is in the third person viz. Conventum Aggreatum est And see 28. H. 8. Dyer where the words Non licet to the Lessee to assigne make a Condition Mich. 28 29. Eliz. in the Common Pleas. 115. BARBER and TOPESFEILD'S Case A. being Tenant in taile of certain Lands exchanged the same with B. B. entred and being seised in Fee of other Lands devised severall parcels thereof to others and amongst the rest a particular estate unto his heir Proviso That he do not re-enter nor claim any of his other Lands in the destruction of his Will And if he do that then the estate in the Lands devised to him to cease A. dieth his issue entreth into the Lands in
taile and waives the Lands taken in Exchange and before any other entry the heir of B. enters upon the Land which was given in Exchange and the opinion of the whole Court was That it was no breach of the Condition because that was not the Land of the Devifor at the time of the devise therefore it was out of the Condition Mich. 28 29. Eliz. In the Common Pleas. 116. PLYMPTON'S Case AN Action of Debt was brought by one Plympton and his wife Executors of one Dorrington upon a Bond with Condition to perform Covenants of an Indenture of Lease whereof one Covenant was That he should pay forty shillings yearly at the Feast of the Annunciation or within fourteen days after And the breach assigned was for not payment at such a Feast in such a year The Defendant said That hee paid it at the Feast upon which they were at issue And upon evidence given to the Jury it appeared That the same was not paid at the Feast but in eight dayes after it was paid And the opinion of the Court was That by his pleading that hee had paid it at such a day certain and tendring that for a speciall issue That hee had made the day part of the issue and then the Defendant ought to have proved the payment upon the very day But if the Defendant had pleaded That hee paid it within the fourteen dayes viz. the eighth day c. that had not made the day parcell of the issue but then hee might have given evidence that he paid it at another day within the fourteene dayes Then for the Defendant it was moved That the Plaintiffe had not well assigned the breach in saying that he had not paid it at the Feast without saying Nor within the fourteen dayes But the Court said That the Jury was sworn at the Barre and bid the Councell proceed and give in their evidence for the time to take exception was past Mich. 28 29. Eliz. in the Common Pleas. 117. IT was the opinion of Anderson Chiefe Justice and so entred by the Court That if a Copie-holder doth surrender to him who hath a Lease for years of the Mannor to the use of the same Lessee That the Copie-hold estate is extinct For the estate in the Copie-hold is not of right but an estate at will although that custome and prescription had fortified it And Wray said That it had been resolved by good opinion That if a Copie-holder accept a Lease for years of the Mannor that the Copie-hold estate is extinct for ever Mich. 28 29. Eliz. in the Common Pleas. 118. Anderson Chiefe Justice and Periam Justice being absent in a Commission upon the Queen of Scots Shuttleworth moved this case to the Court. If the Queen give Lands in taile to hold in Capite And afterwards granteth the Reversion how the Donee shall hold Windham Justice and Fenner Serjant The tenure in this case is not incident to the Reversion and the Donee shall hold of the Queen as in grosse and so two Tenures in Capite for one and the same Land And thereupon Windham Justice cited 30. H. 8. Dyer 45 46. That the Queen by no way can sever the tenure in chiefe from the Crown And therefore if the Queen do release to her Tenant in Capite to hold by a penny and not in Capite it is a void Release for the same is meerly incident to the Person and Crown of the Queen But Rodes Justice held the contrary viz. That the Tenure in Capite doth not remain But it was said by Windham That if the Queen had reserved a Rent upon the gift in tail the Grantee of the Reversion should have it Also he said That the Queen might have made the Tenure in such manner viz. to hold of the Mannor or of the Honor of D. Shuttleworth If Lands holden of the Mannor of D. come to the King may he give them to be holden of the Mannor of S that should be hard Windham I did not say That Lands holden of one Mannor may be given to be holden of another Mannor perhaps that may not bee but Lands which is parcell of any Mannor may be given Vt supra Mich. 28 29 Eliz. in the Common Pleas. 119 SErjeant Fenner moved Case If Lands be given to the Husband and Wife and to the heirs of their two bodies and the Husband dieth leaving Issue by his Wife and the Wife makes a Lease of the lands according to the Statute of 32. H. 8. If the Lease be good by the Statute Windham and Rodes Justices conceived that it is a good Lease Fenner The Statute saith that such Lease shall be good against the Lessor and his Heirs and the Issue doth not claim as Heir to the Wife onely but it ought to be Heir to them both and he cited the case That the Statute of R. 3. makes Feoffments good against no heirs but those which claim onely as Heirs to the same Feoffors c. So here Rodes Justice There the word only is a word efficacy And Windham agreed cleerly That the Lease should binde the issue by the said Statute of 32. H. 8. Mich. 28 29. Eliz. In the Common Pleas. 120 WAlmesley Serjeant moved this Case If a man deviseth Lands in taile with divers Remainders over upon condition that if any of them alien or c. that then he who is next heir to him to whom the land ought to come after his decease if the said alienation had not been made might enter and enjoy the land as if he had been dead But Ady of the Temple said That the words of the Devise are viz. That if any of them alien or c. that then his estate to cease and hee in the next Remainder to enter and retain the land untill the aliener were dead Rodes Justice The Devise is good and an estate may cease in such manner so as it shall not be determined for ever but that his Heir after him shall have it And he put the case of Scholastica Plow Com. 408. where Weston fo 4. 14. was in some doubt that if the Tenant in talle had had Issue if the Issue should be excluded from the land or whether hee should have the land by the intent of the Devisor And therefore if it were necessary to shew that the Tenant in taile had not Tssue But Dyer said that the words of the Will were that such person and his Heirs who alien or c. should be excluded presently so as the estate by expresse words is to be determined for ever But it is otherwise in this Case Windham doubted of the Devise Fenner cited the Case 22. E. 3. 19. Where a Rent was granted and that it should ceâ—se during the Nonage of the Heir of the Grantee and it was good Windham When a thing is newly created he who creates it may limit it in such manner as he pleaseth Fenner 30. E. 3. 7. Det. 10. A Feoffment was made rendring Rent upon
common law yet it is otherwise at this day For when the Statute sayes That the Lessor shall recover damages for the Wast that proves sufficiently that the property of the trees is in him as the Statute of Merton Cap. 4. enacts That if the Lessor do approve part of the Wast leaving sufficient for the Commoners and they notwithstanding that bring an Assize they shall be barred in that Case and the Lord may have an Action of Trespass against them if they break the Hedges by force of that Statute as it hath been adjudged for the intent of the Statute was to settle the Inheritance of the Land approved without interruption of the Commoners And so in this case But Note that by the Statute of Marlebridge the Lessor shall recover damages for the houses c. which are wasted c. and yet a man cannot inferre thereupon that therefore the Lessee hath no Interest or property in them and such interest hath he in the trees notwithstanding the words of the Statute which is contrary to this meaning as it seems And therefore Quaere If there be any difference betwixt them and what shall be meant by this word Property But the damages are given by the Statute in respect of the property which the Lessor is to have in reversion after the Lease determined Anderson Chiefe Justice The Lessor hath no greater property in the trees then the Commoner hath in the soile Walmesley 2. H. 7. 14. and 10. H. 7. 2. The Lessor may give leave to the Lessee to cut the trees and the same shall be a good plea in an Action of Wast and the reason of both the books is because the property of them is in the Lessor and to this purpose the difference is taken in 2. H. 7. betwixt Gravell and trees 42. H. 3. If a Prior licence the Lessee to cut trees the same shall discharge him in Wast brought by the Successour But if the Lessee cutteth down the trees and then the Prior doth release unto him the same shall not barre the Successour and so is 21. H. 6. Also he cited Culpepers case 2 Eliz. and 44. E. 3. Statham and 40. Ass 22. to prove that the Lessor shall have the Wind-falls If a stranger cutteth down trees and the Lessee bringeth an Action of Trespasse he shall recover but according to his losse viz. for lopping and topping As to that which was said That if the Lessee cut down trees that the Lessor cannot take them away that is true for that there is a contract of the Law that if the Lessee doth cut them down that he shall have the trees and the Lessor shall have treble damages for them Also he said That the trees are no part of the thing demised but are as servants and shall be for reparations As if one hath a Piscarie in the land of another man the land adjoyning is as it were a servant viz. to drie the Nets So if one have conduit-pipes lying in the land of ather he may dig the land for to mend the pipes and yet he hath no Interest nor Free-hold To that which was said That by the excepting of the trees the land upon which they stood is excepted It is true as a servant to the trees for their nourishment but not otherwise for if the Lessor selleth the trees he afterwards shall not meddle with the land but it shall be wholly in the Lessee quia sublata causa tollitur effâ—ctus And if the Lessee tieth a horse upon the land where the trees stood the Lessor may distraine the same for his rent and avow as upon land within his distress and Fee and holden of him And he said that the lessor may grant the trees but so cannot the lessee and therefore he said That the property is in the lessor and not in the lessee Also if the lessor granteth them they passe without Atturnment But contrary if the lessor had but a Reversion in them Also if the lessor cutteth them down his Rent shall not be apportioned and therefore they are no part of the thing demised For 16. H. 7. and temps E. 1. Fitz. Waste in two or three places it is holden That if the Waste be done Sparsim in a Close or Grove the lessor shall recover the whole Then admit that the trees excepted are cut down sparsim if the Exception shall be good how shall the thing wasted be recovered and against whom quod nota Anderson Chief Justice did conceive that the Exception was void and that the Action was well brought and he said It was a Knavish and Foolish demise and if it should be good many mischiefs would follow which he would not remember Windham Justice was of the same opinion and he said The lessor might have excepted them and so take from the lessee his fire wood and Plough bote c. But the lessee could not grant his estate excepting the trees because he had but a speciall interest in them viz. for his fire-bote c. which shall go with the land Periam Justice agreed That as to such a speciall property none can have it but such a one who hath the land and therefore the exception of the Wood by the lessee was void But as to the other things perhaps if they were Apple trees or other Fruit-Trees the exception had been good Also although the trees are not let directly yet they are after a sort by a mean as annexed to the land and if the Action be brought against him who made the exception he cannot plead that they were let unto him and therefore he doubted of the exception Rodes Justice also said That he doubted of the Exception And he said That the Book of 44 E. 3. is That the lessee should have the Wind-falls and he did not much regard the Opinion of Statham But Anderson Chief Justice was of opinion that the lessor should have the Wind-falls Note the Case was not adjudged at this time Hill 29. Eliz. in the King's Bench 137 EXceptions were taken by Fuller to an Indictment upon the Statute of 1. Eliz. cap. 2. for the omitting of the Crossing of a Child in Baptising of him The Case was That a Minister out of his Cure at another Church viz. at Chelmesford in Essex did Baptize a Child without the Sign of the Crosse for which he was indicted The first Exception was That the Statute speaks of Ministers which do not use the administring of the Sacrament in such Cathedrall Churches or Parish Churches as he should use to administer the same that this was not the Parish Church in which he should use the same Suit Justice was of opinion That it was good notwithstanding that for otherwise the Statute might be greatly defrauded The words of the Statute are farther Or shall wilfully or obstinately standing in the same use any other Rule Ceremony Order Forme c. 2. He took another Exception upon those words For the omitting of the Crossing only is put and
the Court was That it is a good grant of an Annuity by these words annualem redditum But whether the Husband shall have a Writ of Annuity after the death of the wife for an Annuity during the Coverture they were in some doubt because it is but a thing in Action as is an Obligation Otherwise were it of a Rent which she had for life Note in pleading for a Rent he shall plead That he was seised c. Mich. 29. Eliz. in the Common Pleas. 152 WINKFEILD'S Case Winkfeild devised Land in Norfolk to one Winkfeild of London Goldsmith and to his heirs in Fee And afterwards he made a Deed of Feoffment thereof to divers persons unto the use of himselfe for life without impeachment of waste the Remainder unto the Devisee in fee. But before he sealed the Deed of Feoffment he asked one if it would be any prejudice to his Will who answered No. And the Devisor asked again if it would be any prejudice because he conceived that he should not live untill Livery was made And it was answered No. Then he said that he would seale it for his intent was that his Will should stand And afterwards Livery was executed upon part of the Land and the Devisor died Rodes and Periam Justices The Feoffment is no Countermand of the Will because it was to one person but perhaps it had been otherwise if it had been to the use of a stranger although it were not executed Anderson Chiefe Justice and others the Will is revoked in that part where the Livery is executed And he said It would have been a question if he had said nothing And all the Justices agreed That a man may revoke his Will in part and in other part not And he may revoke it by word and that a Will in writing may he revoked by word Periam said It is no revocation by the party himselfe but the Law doth revoke it to which Windham agreed But he said That if the party had said nothing when he sealed the Feoffment it had been a revocation of the party and not of the Law Periam If the Witnesses dye so as he cannot prove the words spoken at the sealing of the Feoffment the Feoffment will destroy the Will and so he spake to Anderson who did not deny it All this was delivered by the Justices upon an Evidence given to a Jury at the Barre Mich. 29. Eliz. in the Common Pleas. 153 NOte That it was said by Anderson Chiefe Justice That if one intrude upon the possession of the King and another man entreth upon him that he shall not have an Action of Trespasse for he who is to have trespasse ought to have a possession and in this case he had not for that every Intruder shall answer the King for his time and therefore he shal not answer to the other party To which Walmesley and Fenner Serjeants agreed Periam doubted of it for he conceived That he had a possession against every stranger Snagg Serjeant conceived That he might maintain an Action of Trespasse but Windham and Rodes Justices were of opinion that he could not maintain Trespass Walmesley he cannot say in the Writ Quare clausam frâ—git c. Rodes vouched 19. E. 4. to maintain his opinion Mich. 29. Eliz. in the Common Pleas. 154 NORRIS and SALISBURIE'S Case IN an Action of Debt upon a Bond the Case was this Norris was possessed of wools for which there was a contention betwixt the Defendant and one A. And Norris promised A. in consideration that the goods were his and also that he should serve processe upon Salisbury out of the Admiral Court that he would deliver the goods to A. And afterwards he delivered the goods to Salisbury the Defendant who gave him Bond with Condition to keep him harmlesse from all losses charges and hinderances concerning and touching the said wools Afterwards A. served processe upon him and he did not deliver to him the goods for which A. brought his Action upon the Case against Norris who pleaded That he made no such promise which was found against him And afterwards Norris brought an Action of Debt upon the Bond against Salisbury because he did not save him harmlesse in that Action upon the Case And the opinion of the whole Court was That the Action of Debt would not lie because that the Action upon the Case did not concern the wools directly for the Action is not brought but for breach of the promise And that is a thing of which the Defendant had not notice and it was a secret thing not concerning the wools but by circumstances and so out of the Condition Anderson Chiefe Justice said That if A. promise B. in Consideration that B. is owner of goods and hath them to deliver them to C. the same may be a good consideration yet he somewhat doubted of it But Walmesley did affirme it to be a good Consideration Mich. 29 Eliz in the Common Pleas. 155 IT was holden by the whole Court That in an Action of Trespasse It is a good plea in barre That the Plaintiffe was barred in an Assize brought by him against the Defendant and issue joyned upon the Title But otherwise if it were upon the generall issue viz. Nul tort nul disseisin For then it might be that the Plaintiffe was never ousted nor disseised and so no cause to recover In which case it was no reason to put him from his Writ of Right Mich. 29. Eliz. in the Common Pleas. Intratur Mich. 27. Rot. 1627. 156 BRAGG'S Case A Woman having cause to be endowed of a Manor in which are Copy-holders doth demand her Dower by the name of certain Messuages certain Acres of land and certain Rents and not by the name of the third part of the Manor and she doth recover and keeps Courts and grants Copy-holds It was holden by the whole Court that in such Case that the Grants were void for she hath not a Manor because she hath made her demand as of a thing in grosse Otherwise if the demand had been of the third part of the Manor for then she had a Manor and might have kept Courts and granted Copies And the pleading in that Case was That she did recover the third part of the Manor per nomen of certain Messuages and Acres and Rents which was holden to be no recovery of the third part of the Manor Hill 29. Eliz. in the Common Pleas. 157 NOte it was holden for Law That the Justices may increase but not decrease damages because the party may have an Attaint and so is not without remedy But note contrary by Anderson and Periam Justices Hill 39. Eliz. in the Common Pleas. 158 SErjeant Fenner moved this Case That the Lord of a Manor doth prescribe That if the Tenant do a Rescous or drive his Cattel off from the Land when the Lord comes to distrain that the Tenant shall be amerced by the Homage and that the Lord may distrain for the same Anderson
did admit a Copy-holder in Remainder for life That the same was a good admittance according to the Custome And that he was a sufficient Dominus pro tempore as to this purpose Although it was objected by Walmesley That the Gardian is but Servus and not Dominus But because it was agreed that he had a lawfull Interest the admittance was good and so it was adjudged 33. Eliz. In the Common Pleas. 178 SHIPWITH and SHEFFIELD'S Case THe Custome of a Copy-hold Manor was That a feme Covert might give Lands to her Husband And if it were a good Custome or not was the Question Fleetwood The Custom is good and vouched 12. E 3. That in York there is such a custome That the Husband might give the Land of his own purchase to his wife during the Coverture and it is a good Custome That an Infant at the age of fifteen years may make a Feoffment 29. E. 3. and the same is good at the Common Law and yet the same all began by custome But the Court was of opinion That the Custome is unreasonable because it cannot have a lawfull Commencement And Anderson Chiefe Justice said That a Custome that an Infant at the age of seven years might make a Feoffment is no good custome because he is not of age of discretion And in this case at Barre It shall be intended that the wife being sub potestate viri did it by the Coherison of her Husband The same Law is of a Custome That the wife may lease to her Husband Fleetwood urged That the custome might be good because the wife was to be examined by the Steward of the Court as the manner is upon a Fine to be examined by a Judge To which the Court said nothing 31. Eliz. in the King's Bench 179 AN Action upon the Case upon an Assumpsit was brought And the Plaintiff layed his Action That such a one did promise him in respect of his labour in another Realme c. to pay him his contentment And he said That Twenty five Pound is his contentment and that he had required the same of the Defendant Cook moved in arrest of Judgement it being found for the Plaintiffe upon Non Assumpsit pleaded that no place was alledged where the contentment was shewed And the opinion of the Court was against him for Gawdy and Wray were of opinion that he might shew his contentment in any Action and so it is where it is to have so much as he can prove he might prove it in the same Action Cook said That it had been moved in stay of Judgement in this Court upon an Assumpsit because the request was not certain And that case was agreed by the Justices because the request is parcell of the Assumpsit and the entire Assumpsit together in such case is the cause of the Action but in this case that he should content him is not the cause of the Assumpsit but only a circumstance of the matter and it was resembled to the Case of 39. H. 6. where a Writ of Annuity was brought for Arrerages against an Abbot pro consilio c. And the Plaintiffe declared that the Councel was ad proficuum Domus and was not alledged in certain and it was holden that the same was not materiall although it were uncertain because it was but an induction and necessary circumstance to the Action And so the Plaintiffe recovered and had Judgement Mich. 29 Eliz. in the King 's Bench. 180 THE Statute of 23. Eliz. cap. 25. is Quod non licuit alicui to engrosse Barley c. and in the Statute there is a Proviso That he may so do so as he convert it into Malt. The question was If in an Information upon that Statute That the Defendant had converted it to Malt he might plead the generall Issue Not guilty and give in Evidence the speciall matter or whether he ought to plead the speciall matter Clench Justice He may plead Not guilty c. for the Proviso is parcel and within the body of the Statute as 27. H. 8. 2. where upon an Information upon the Statute of Farmors it is holden by Fitzherbert That the Vicar may plead Non habuit seu tenuit ad firmam contra formam Statuti c. and yet the Statute in the premises of it restrains every Spirituall Person to take in Farme any Lands c. and afterwards by a Proviso gives him liberty to take Lands for the maintenance of his house c. As upon the Statute of R. 2. If he do plead That he did not enter contra formam Statuti he may give in Evidence that he entred by Title as that his father was seised and died and the same is not like unto the condition of a Bond for that is a severall thing But the Proviso and the Statute is but one Act. Mich. 29. Eliz. in the King 's Bench. 181 NOte It was said by Master Kemp Secondary of the King's Bench That there is a Court within the Tower of London but he said That it was but a Court Baron and said That he can shew a Judgement That no Writ of Error lieth of a Judgement given there And it was a question Whether Process might be awarded to the Lieutenant of the Tower for Execution upon a Judgment given in the Kings Bench because the Defendant was removed and dwelt within the Liberty of the Tower And it was said It could not but the Writ ought to be awarded to the Sheriffs of London and if they returne the Liberties of the Tower then a Non omittas shall be awarded But some Counsellors said That although a Non omittas be awarded yet the Sheriffs durst not go unto the Liberties of the Tower to serve the Process 2 Jacobi in the Common Pleas. 182 The Lady STOWELL'S Case IT was adjudged in this Case That the wife who is divorced causa adulterii shall have her Dower 3. Jacobi in the Common Pleas. 183 WARNER'S Cafe LEssee for twenty years doth surrender rendring rent during the term It was adjudged a good rent for so many years as the term might have continued 3. Jacobi in the King 's Bench. 184 WHITLOCK and HARTWELL'S Case TWO Joint-Tenants for life the one demised and granted the moyty unto his companion for certain years to begin after his death Adjudged void because it is but a possibility And so is it of a Covenant to stand seised to the use c. as it was adjudged in Barton and Harvey's Case 37. Eliz. 3. Jacobi In the Kings Bench. 185 PINDER'S Case A. devised lands in Fee to his son and many other lands in tail And afterwards he said I will that if my son die without issue within age that the lands in Fee shall go to such a one Item I will that the other lands in tail shall go to others and doth not say in the second Item if the son dieth without issue within age It was adjudged That the second Item should be without
intend to entermarry with Alice S. by Indenture did covenant with J. D that he would marry the said Alice being then of the age of seventeen years and that after the marriage had betwixt them that they would levy a Fine of divers Lands which said Fine should bee unto the use of the said J. D. and his Heirs and accordingly after the entermarriage the said J. S. and Alice his Wife did levy a Fine unto the said J. D. and his Heirs without any other use implied or expressed but what was contained in the said Indenture before marriage and according to the said Fine the Conusee continued the possession of the said Lands for a long time viz. for thirty years Cook Chiefe Justice said That this continuance of possession was a strong proofe and could not otherwise be intended but that the Conusee came to the possession of the said Lands by the said Fine which was so levied to him and his heirs And he said That it was adjudged in this Court in the Case betwixt Claypoole and Whestone That in a Recovery the Covenant did not lead the use of the Recovery for that it was but an evidence that such was the intent of the parties And in this Case it was agreed by the whole Court and was so said to be resolved in Clogat and Blythes case 30. Eliz. That when no use is expressed or implyed by Indenture or other agreement that it shall be to the ancient use viz. to the use of the Conusor As if Husband and wife be seised of one moytie of the Land in the right of the wife and the Husband of the other moytie by himselfe and they joyne in a Fine generally the Conusee shall be seised to the former uses as it is agreed in Beckwiths case C. 2. part And so it was agreed That if the Husband doth declare the use and the wife doth not disagree or vary from it that the declaration of the Husband shall bind the wife And Cook said That it is not alwayes necessary that the wives name be set to the Indenture which doth declare an use And further Cook said That if a Fine be levied of Lands yet the uses may be declared by subsequent Indentures And it was said Obiter in this Case That if a man for valuable consideration doth purchase a Lease for years and hee nameth two of his servants as joynt-purchasers with him in the Deed and afterwards the Master would sell the Lands alone and the servants do interrupt the sale or will not joyne with him that he hath no remedy to compell them to do it but by a Bill of Chancery Trinit 8. Jacobi in the Common Pleas. 254 A Vicar was endowed in the time of King Henry the 3d. of divers Tithes and afterwards he libelled for those Tithes in the spirituall Court The Defendant alledged a Mâ—dus Decimandi and prayed a Prohibition and day was given to the party to shew cause why the same should not be granted and at the day the Deed of Endowment was produced and shewed in Court By which it did appear That the Vicar was endowed of Hay viz. of the tenth part of it and so of the remnant of the Tithes for which he libelled whereupon the Court refused to award a Prohibition Quaere Causam For as I conceive a Modus Decimandi may accrue after the Endowment Trinit 9. Jacobi in the Common Pleas. 255 Sir W. DETHICK and STOKE's Case STokes libelled against Sir William Dethick in the spirituall Court for calling of him Bald Priest Rascally Priest and for striking of him and for those offences he was fined by the spirituall Court an hundred pound and imprisoned And the opinion of the whole Court was That neither the Fine nor Imprisonment were justifiable because the Statute of Articuli Cleri is Non imponant poenam pecuniariam nisi propter redemptionem c. And Cook said They might onely excommunicate and thereupon a Writ de Excommunicatâ— capiendo might be awarded and that is their onely course and then the Party may have his Cautione admittenda And the Court said That if the spirituall Court would not enlarge the party upon sufficient Caution offered them that then the Sheriffe should deliver him Trinit 8. Jacobi in the Common Pleas. 256 IT was the opinion of the whole Court That if a man have a Judgment against two men upon a joynt Bond That he cannot have severall Executions viz. a Capias ad satisfaciendum against the one and an Elegit against the other for he ought to have but unicam satisfactionem although he sue them by severall Actions And if he sue forth severall Executions an Audita Querela will lye Mich. 9. Jacobi in the Common Pleas. 257 CARLE'S Case NOte it was adjudged in this Case That if a man say of another that he hath killed a man an Action upon the case will not lie for those words for he may do it as Executioner of the Law or se defâ—ndeâ—do So if one say of another That he is a Cutpurse an Action will not lie for that a Glover doth and a man may cut his own purse and the same Term it was holden in the Kings Bench That an Action will not lie for calling one Witch Mich. 9. Jacobi in the Common Pleas. 258 IT was holden by the whole Court That a Commoner cannot generally justifie the cutting and taking away of Bushes off from the Common but by a speciall prescription he may justifie the same So he may say That the Commoners have used time out of mind to dig the Land to let out the water that he may the better take his Common with his cattell and it was agreed That if the Lord of the Waste doth surcharge the Common that the Commoner cannot drive his cattell off the Common or distraine them damage feasance as he may the cattell of a stranger But the remedy against the Lord is either an Assize or an Action upon the Case Mich. 9. Jacobi in the Common Pleas. 259 IT was agreed by the whole Court That if a man deviseth unto his daughter an hundred pound when she shall marry or to his son when he shall be of full age and they die before the time appointed that their Executors shall not have the money otherwise if the devise were to them to be paid at their full ages and they die before that time and make Executors there the Executors may recover the Legacy in the spirituall Court Hill 9. Jacobi in the Kings Bench. 260 ROYLEY and DORMER's Case TWo Boyes did contend and fight near unto their houses and the one stroke the other so as he did bleed who went and complained to his father who having a rod with him came to the other boy and beat him upon which he died And the opinion of the whole Court was That it was not murder Mich. 9. Jacobi in the King 's Bench. 261 EDWARDS and DENTON's Case UPon a special Verdict the Case was
in Ward For Cook Chief Justice said that all Offices which are found to deceive the Crown of such an ancient flower of the Crown as Wardship should be void as to that purpose and most beneficial for the King And he cited the Case in 36. H. 8. Where the Kings Tenant made a Feoffment and took back an estate unto himself for life the Remainder to his Grand-child for 80. years and died that in that Case the Heir was in Ward and they said that in the case at Barre the Heir had power of the Inheritance upon payment of five Shillings and if the Lease for years be found and proved by witnesses yet it carrieth with it the badges of fraud And Tanfeild Chief Baron said that if a Lease for 100. years shall be accounted Mortmain à fortiori this Lease for 1000. years shall be taken to be made by fraud and collusion And Cook said that the Lord Chancellour of England would not relieve such a Lessee in Court of Equity because the begining and ground of it is apparant fraud Note the lands did lye in Springfield in Essex Trinit 10. Jacobi in the Common Pleas. 274 MEADES Case AN Action of Debt was brought upon a Bond against Meade who pleaded that the Bond was upon condition that if he paid ten pound to him whom the Obligee should name by his last will that then c. and said that the Obligee made his Will and made Executors thereof but did not thereby name any person certain to take the ten pound Sherley Serjeant moved that the Executors should have the ten pound because they are Assignees in Law as it is holden in 27. H. 8. 2. But the whole Court was of opinion that the Executors were not named in the Will for such a purpose viz. to take the ten pound For they said It is requisite that there be an express naming who shall take the ten pound otherwise the Bond is saved and not forfeited And Cook put this Case If I be bounden to pay ten pound to the Assignee of the Obligee and his Assignee makes an Executor and dieth the Executor shall not have the ten pound But if I be bounden to pay ten pound to the Obligee or his Assignees there the Executor shall have it because it was a duty in the Obligee himself the same Law if I be bound to enfeoffe your Assignees c. Wherefore it it was adjudged for the Defendant Trinit 10. Jacobi in the Common Pleas. 275 GREENWAY and BAKER's Case IT was moved and afterwards resolved in the Case of a Prohibition prayed to the Court of Admiralty That if a Pirat taketh goods upon the Sea and selleth them that the property of them is changed no more then if a theife upon the Land steales them and selleth them And in this Case it appeared by the Libell That bona piratica fuerint infra Portam Argier super altum mare And for that cause a Prohibition was denied because Argier being a forrain Port the Court could not take notice whether there were such a place of the Sea called the Port or whether it were within the Land or not Afterwards upon the mediation of the Justices the parties agreed to try the cause in the Guild-hall in London before the Lord Chiefe Justice Cook Trinit 10. Jacobi in the Common Pleas. 276. Sir FRANCIS FORTESCUE and COAKE's Case UPon an Evidence in an Ejectione firme betwixt the Plaintiffe and Defendant The Court would not suffer Depositions of witnesses taken in the Court of Chancery or Exchequer to be given in Evidence unlesse affidavit be made that the witnesses who deposed were dead And Cook Chiefe Justice said nullo contradicente That it is a principall Challenge to a Jurour That he was an Arbitrator before in the same case because it is intended that he will incline to that partie to which he inclined before but contrary is it of a Commissioner because he is elected indifferent And it was also said in this Case That one who had been Solicitor in the Cause is not a fit person to be a Commissioner in the same Cause Trinit 10. Jacobi in the Common Pleas. 277 BArker Serjeant in Arrest of Judgement moved That the Venire facias did vary from the Roll in the Plaintiffs name for the Roll was Peter Percy and the Venire facias John Percy and the postea was according to the Roll which was his true name The Court doubted whether it might be amended or whether it should be accounted as if no Venire facias had issued because it is betwixt other parties But it was holden That in case no Venire facias issueth the same is holpen by the Statute of Jeofailes and in this case it is in effect as if no Venire facias had issued forth and so it was adjudged And Cook Chiefe Justice said that if there be no Venire facias nor habeas Corpora yet if the Sheriffe do return a Jury the same is helped by the Statute of Jeofailes Warburton Justice contrary vide C. 5. part Bishops case And Harris Serjeant vouched Trinit 7. Jacobi Rot. 787. in the Exchequer Herenden and Taylors case to be adjudged as this Case is Trinit 10. Jacobi in the Common Pleas. 278 BROWN's Case IT was holden by the whole Court in this case That if a man hath a Modus Decimandi for Hay in Black-acre and he soweth the said acre seven years together with corn that the same doth not destroy the Modus Decimandi but the same shall continue when it is again made into hay And when it is sowed with corn the Parson shall have tithe in kind and when the same is hay the Vicar shall have the tithe hay if he be endowed of hay Trinit 10. Jacobi in the Common Pleas. 279 JAMES and RATCLIFF's Case IN Debt upon a Bond to perform such an agreement The Defendant pleaded Quod nulla fuit conclusio-sive agreeamentum The Plaintiff said Quod fuit talis conclusio agreeamentum de hoc ponit se super patriam The Court held the same was no good issue because a Negative and an Affirmative Trinit 10. Jacobi in the Common Pleas. 280 WETHERELL and GREEN's Case IT was said by the Pronothories That if a Nihil dicit be entred in Trinity Term and a Writ of Enquiry of Damages issueth the same Term that there needs not any continuance but if it be in another Term it is otherwise The Court said If it were not the course of the Court they would not allow of it but they would not alter the course of the Court the words of continuance were Quia vicecomos non misit brev Trinit 10. Jacobi in the Common Pleas. 281 PARROT and KEBLE's Case A Man levied a Fine unto the use of himself for life the remainder in tail c. with power reserved to the Conusor to make Leases for eighty years in Possession or Reversion if A. B. and C. did so long live reserving the ancient rent
the case which implyed their opinions to be for the Universitie And 21. H. 7. was vouched That the Patronage was only matter of favour and was not a thing valuable And in this case Cook chief Justice said That Apertus haereticus melius est quam fictus Catholicus Mich. 11. Jacobi in the Common Pleas. 310 BOND and GREEN's Case AN Action of Debt was brought against an Administrator the Defendant shewed how that there were divers Judgments had against him in 〈◊〉 Aâ—d â—â—so that there was another Debt due by the Testator which was assigned over unto the Kings Majesty and so pleaded That he had fully Administred Barker Serjeant took Exception to the pleading because it was not therein shewed that the King did assent to the Assignment and also because it was not shewed that the Assignment was enrolled The Court said nothing to the Exceptions But whereas he Defendant as Administrator did alledge a Retayner in his own hands for a debt due to himselfe The opinion of the whole Court was that the same was good and that an Administrator might retayne to satisfie a debt due to himselfe But it was agreed by the Court That an Excecutor of his own wrong should not Retayne to satisfie his own debt See to this purpose C. 5. part Coulters Case Mich. 11. Jacobi in the Common Pleas. 311 STROWBRIDG and ARCHERS Case IN An Action of debt upon a Bond the Defendant was Outlawed And the Writ of Exigent was viz. Ita quod habeas corpus ejus hîc c. whereas it ought to be coram Justiciariis nostris apud Westminster And for that defect the utlagary was reversed and it was said that it was as much as if no Exigent had been awarded at all And upon the Reversall of the utlagary a Supersedeas was awarded and the party restored to his goods which were taken in Execution upon the Capias utlagatum It was also resolved in this Case That if the Sheriffe upon a Writ of Execution served doth deliver the mony or goods which are taken in Execution to the Plaintiffs Atturney it is as well as if he had delivered the same to the Plaintiff himself for the Receipt by his Atturney is in Law his own Receipt But if the Sheriff taketh goods in Execution if he keep them and do not deliver them to the paâ—â— at whose suit they are taken in Execution the party may have a new Execution as it was in the principal Case because the other was not an Execution with Satisfaction Mich. 11. Jacobi in the Common Pleas. 312 CHAVVNER and BOVVES Case BOwes sold three Licences to sell Wine unto Chawner who Covenanted to give him ten pounds for them and Bowes Covenanted that the other should enjoy the Licences It was moved in this Case whether the one might have an Action of Covenant against the other in such Case And the opinion of Warburton and Nichols Justices was That if a Man Covenant to pay ten pound at a day certain That an action of Debt lyeth for the money and not an action of Covenant Barker Serjeant said he might have the one or the other But in the principall Case the said Justices delivered no opinion 313 Note That this Day Cooke Chief Justice of the Common Pleas was removed to the Kings Bench and made Lord Chief Justice of England And Sir Henry Hobart who was the Kings Aturney generall was the day following made Lord Chief Justice of the Court of Common Pleas. Sir Francis Bakon Knight who before was the Kings Solicitor was made Atturney Generall And Mr Henry Yelverton of Grays-Inn was made the Kings Solicitor and this was in October Term. Mich. 11 Jacobi 1613. Mich. 11. Jacobi In the Common Pleas. 314 THis Case was put by Mountague the Kings Serjeant unto the Lord Chief Justice Hobart when he took his place of Lord Chief Justice in the Common Pleas viz. Tenant in tail the Remainder in taile the Remainder in Fee Tenant in tail is attainted of Treason Offence is found The King by his Letters Patents granteth the lands to A who bargaineth and selleth the land by Deed unto B. B. suffers a common Recovery in which the Tenant in tail is vouched and afterwards thâ— Deed is enrolled And the question was Whether it was a good Bar of the Remainder And the Lord Chief Justice Hobart was of opinion That it was no barre of the Remainder because before enrollment nothing passed but only by way of conclusion And the Bargainee was no Lawfull Tenant to the Precipe Mich. 11. Jacobi in the Common Pleas. 315 WHEELER's Case IT was moved for a Prohibition upon the Statute of 5. E. 6. for working upon Holy days and the Case was That a man was presented in the spirituall Court for working viz. carriage of Hay upon the feast day of Saint John the Baptist when the Minister preached and read divine service and it was holden by the whole Court of Common Pleas That the same was out of the Statute by the words of the Act it self because it was for necessity And the Book of 19 H. 6. was vouched That the Church hath authority to appoint Holy days and therefore if such days be broken in not keeping of them Holy that the Church may punish the breakers therof But yet the Court said That this day viz. the Feast day of Sr John the Baptist was a Holy day by Act of Parliament and therefore it doth belong unto the Judges of the Law whether the same be broken by doing of such work upon that day or not And a Prohibition was awarded Mich. 11 Jacobi in the Common Pleas. 316 REARSBY and CUFFER's Case IT was moved for a Prohibition to the Court of Requests because that a man sued there by English Bill for money which he had layd out for an Enfant within age for his Meat drink necessary apparel and set forth by his Bill that the Enfant being within age did promise him to pay the same And a Prohibition was awarded because as it was said he might have an action of Debt at the common Law upon the contract for the same because they were things for his necessary livelihood and maintenance And it was agreed by the Court That if an Infant be bounden in an Obligation for things necessary within age the same is not good but voidable Quaere for a difference is commonly taken When the Assumpsit is made within age and when he comes to full age For if he make a promise when he cometh of full age or enters into an Obligation for necessaries which he had when he was within age the Law is now taken to be that the same shall binde him But see 44. Eliz. Randals Case adjudged That an Obligation with a penaltie for money borrowed within age is absolutely void Mich. 11. Jacobi in the Common Pleas. 317 SMITH's Case SMith one of the Officers of the Court of Admiralty was committed by the Court of Common Pleas to the prison of
Tenures of such men viz. A. B. C. 3. All his lands which he had by Purchase c. And the words All my Lands are to be intended all those my Lands which are within the restrictions And he said that the word Et being in the copulative was not material for all was but one sentence and it did not make several sentences and the word Et is but the conclusion of the sentence 3. They resolved That general words in a Grant may be overthrown by words restrictive as is 2 E. 4. and Plow Com. Hill Granges Case And therefore if a man giveth all his lands in D. which he hath by Discent from his Father if he have no lands by Discent from his Father nothing passeth 4. They agreed That a Restriction may be in a special Grant as in C. 4. par Ognels Case but they said that if the Restriction doth not concur and meet with the Grant that then the Restriction is void Note the principal Case was adjudged according to these Resolutions Mich. 11. Iacobi in the Common-Pleas 293. COOPER and ANDREWS Case TO have a Prohibition to the Spiritual Court suggestion was made That the Lord De la Ware was seised of 140 Acres of lands in the County of Sussex which were parcel of a Park And a Modus Decimandi by Prescription was said to be That the Tenants of the said 140 Acres for the time being had used to pay for the tythes of the said 140 Acres two shillings in mony and a shoulder of every third Deer which was killed in the same Park in consideration of all tythes of the said Park And it was shewed how that the Lord De la Ware had enfeoffed one Cumber of the said 140 acres of land who bargained and sold the said 140 acres of land to the Plaintiffe who prayed the Prohibition The Defendant said that the said Park is disparked and that the same is now converted into arable lands and pasture-grounds and so demanded tythes in kind upon which the Plaintiffe in the Prohibition did demur Hutton Serjeant By the disparking of the Park the Prescription is not gone nor extinct because the Prescription is said to be to 140 acres of lands and not to the Park and although the shoulder of the Deer being but casual and at the pleasure of the party be gone yet the same shall not make void the Prescription 2. He said that the act of the party shall not destroy the Prescription and although it be not a Park now in form and reputation yet in Law the same still remains a Park And he compared the Case unto Lutterels Case C. 4. par 48. where a Prescription was to Fulling-Mils and afterwards the Mils were converted to Corn-Mils yet the Prescription remained 3. He said Admit it is not now a Park yet there is a possibility that it may be a Park again and that Deer may be killed there again For the Disparking in the principal Case is only alleadged to be that the Pale is thrown down which may be amended For although that all the Park-pale or parcel of it be cast down yet the same doth still remain in Law a Park and a Park is but a Liberty and the not using of a Liberty doth not determine it nor any Prescription which goes with it And if a man have Estovers in a Wood by Prescription if the Lord felleth down all the Wood yet the right of Estovers doth remain and the Owner shall have an Assise for the Estovers or an Action upon the Case Vid. C. 5. par 78. in Grayes Case the Case vouched by Popham Further he said That in the beginning a Modus Decimandi did commence by Temporal act and Spiritual and the mony is now the tythe for which the Parson may sue in the Spiritual Court And a Case Mich. 5. Jacobi was vouched where a Prescription to pay a Buck or a Doe in consideration of all Tythes was adjudged to be a good Prescription And the Case Mich. 6. Jacobi of Skipton-Park was remembred where the difference was taken when the Prescription runs to Land and when to a Park In the one case although the Park be disparked the Prescription doth remain in the other not And 6 E. 6. Dyer 71. was vouched That although the Park be disparked yet the Fee doth remain And so in the Case at Bar although the casual profit be gone yet the certain profit which is the two shillings doth remain Harris Serjeant contrary And he said that the Conveyance was executory and the Agreement executory and not like unto a Conveyance or Agreement executed And said that Tythes are due jure divino and that the party should not take advantage of his own wrong but that now the Parson should have the tythes in kind And upon the difference of Executory and Executed he vouched many Authorities viz. 16 Eliz. Dyer 335. Calthrops Case 15 E. 4. 3. 5 E. 4. 7. 32 E. 3. Anuitie 245. And in this case he said that the Parson hath no remedy for the shoulder of the Deer and therefore he prayed a Consultation Hobart Chief Justice said That the Pleading was too short and it was not sufficiently pleaded For it is not pleaded That the Park is so disparked that all the benefit thereof is lost But he agreed it That if a man doth pull down his Park-pale that the same is a disparking without any seisure of the Liberty into the Kings hands by a Quo Warranto But yet all the Court agreed That it doth yet remain a Park in habit And they were all also of opinion That the disparking the Park of the Deer was not any disparking of the Park as to take away the Prescription The Case was adjourned till another day Mich. 11. Iacobi in the Common-Pleas 330. PIGGOT and PIGGOT's Case IN a Writ of Right the Donee in tail did joyn the Mise upon the meer Right and final Judgment was given against the Donee in which case the Gift in tail was given in Evidence Afterwards the Donee in tail brought a Formedon in the Discender and it was adjudged by the whole Court that the Writ would not lie For when final Judgment is given against the Donee in tail upon issue joyned upon the meer Right it is as strong against him as a Fine with Proclamations and the Court did agree That after a year and day where final Judgment is given the party is barred and also that such final Judgment should bar the Issue in tail Mich. 11 Iacobi in the Exchequer-Chamber 331 AN action upon the Case was brought for speaking these words Thou doest lead a life in manner of a Rogue I doubt not but to see thee hanged for striking Mr. Sydenhams man who was murdered And it was resolved by all the Justices in the Exchequer-Chamber That the words were not actionable At the same day in the same Court a Judgment was reversed in the Exchequer-Chamber because the words were not actionable The words
ought to be pleaded 3. That if a man in his pleading is to set forth the jurisdiction of the Court of Justices in Eyre if he say Curia tent c. he need not set forth all the Formalities of it And Mountagu Chief Justice in this Case said That if a man do justifie for divers causes and some of the causes are not good the same doth not make the whole Justification to be void but it is void for that only and good for the residue Hill 16 Iacobi in the Kings Bench. 393 CULLIFORDS Case CVlliford and his Wife brought an Action upon the Case against Knight for words And declared upon these words viz. Thou art Luscombs Hackney a pockey Whore and a theevish Whore and I will prove thee to be so which was found for the Plaintiffe And in arrest of Judgment it was moved that the words were not Actionable which was agreed by the whole Court quia verba accipienda sunt in mitiori sensâ—â—â— And Judgment was staied accordingly Hill 16. Jacobi in the Kings Bench. 371. IN an Action upon the Case for Words The Plaintiffe did relate that he was brought up in the Studie of a Mathematition and a Measurer of Land And that he was a Surveyor and that the Defendant spake these words of him viz. Thou art a Cosener and a cheating Knave and that I can prove And the opinion of the Court was That the words were actionable And Montague Chief Justice said that it was ruled accordingly in 36 Eliz. Rot. 249. betwixt Kirby and Walter And a Surveyor is an Officer of whom the Statute of 5. E. 6. takes notice And he said that Verba de persona intelligenda sunt de Conditione personae And he said that the words are Actionable in regard it is a faculty to be a Measuror of Lands But Dodderidg Justice put it with a difference viz. Betwixt a Measurer of Land by the Pole and one who useth the Art of Geometrie or any of the Mathematicks for he said that in the first Case it is no scandal for that his Credit is not impeached thereby but it is contrary in the other Case because to be a Geometritian or Mathematitian is an Art or faculty which every man doth not attain unto And he put this Case If a man be Bailiffe of my Mannor there no such words can discredit him and by consequence he shall not have an Action for the words because the words do not found in discredit of his Office because the same is not an Office of Skill but an Office of Labour quod nota Hill 16 Jacobi in the Kings Bench. 395. BISHOP and TURNERS Case IN a Prohibition it was holden by the whole Court That for such things as a Church-Warden doth ratione officii no Action will lie by his successor against him in the Spiritual Court and a Churchwarden is not an Officer but a Minister to the Spiritual Court But it was holden that a Churchwarden by the Common Law may maintain an Action upon the Case for defacing of a Monument in the Church Trin. 16 Jacobi in the Kings Bench. 396. BLACKSTON and HEAP'S Case IN an Action of Debt for Rent the Case was this A man possessed of a Tearm for 20 years in the right of his Wife made a Lease for 10 years rendring Rent to him his Executors and assignes and died The Question was whether the Executors or the Wife should have the Rent Haughton and Crook Justices against Montague Chief Justice Doddridg being absent that the Rent was gon But it was agreed by them all that the Executors of the Husband should not have it But Montague held that the Wife should have it But it was agreed that if Lessee for 20 years maketh a Lease for 10 years and afterwards surrendreth his Tearm that the Rent is gon And yet the Tearm for 10 years continues And in the principal Case If the Husband after the Lease made had granted over the Reversion his grantee should not have the Rent But Montague said that in that Case the Wife in Chancery might be Releived for the Rent Mich. 16 Iacobi in the Kings Bench. 397. WAIT and the Inhabitants of STOKE'S Case WAyte a Clothier of Nubery was robbed in the Hundred of Stoke of 50l upon the Saboth day in the time of Divine Service The Question was whether the Hundred were chargeable or not for not making out Hue and Cry And 3 of the Justices were against Montague Chief Justice that they were chargeable For they said that the apprehending of Theeves was a good work and fit for the Saboth day and also fit for the Commonwealth Montague Chief Justice agreed that it was bonum opus and that it might be lawfully done But he said that no man might be compelled upon any penalty to do it upon that day For he said That if he hath a Judgment against I. S. and he comes to the Parish-Church where I. S. is with the Sheriffe and shews unto the Sheriffe I. S. upon the Saboth day and commandeth the Sheriffe to do his Office If the Sheriffe do arrest I. S. in Execution upon that day it is good but if he doth not arrest him it is no escape in the Sheriffe And he took a difference betwixt Ministerial Acts and Judicial Acts for the first might be done upon the Saboth day but Judicial Acts might not But the case was adjudged according to the opinion of the three other Justices Pasch 17 Iacobi in the Kings Bench. 398. SPICER and SPICE'S Case UPon a special Verdict the Case was this A man seised of Gavil-kind Land devised the same to his Wife for life paying out of it 3l per annum to his eldest son and also devised the Land to his second Son paying 3l per annum to his third Son and 20s to such a one his Daughter and whether the second Son had the Land for his life or in Fee was the Question And it was adjudged that he had a Fee-simple in it by reason of the payment of the Collateral Sums of 3l and 20s to his brother and sister which charge to the brother might continue af-after the death of the Devisee and if he should have but an estate for life his charge should continue longer then his own estate And so it was adjudged Mich. 17 Iacobi in the Kings Bench. 399. IN a Habeas Corpora which was to remove two men who were imprisoned in Norwich The Case was this That within Norwich there was a Custom that two men of the said place should be chosen yearly to make a Feast for the Bailiffs and upon refusal for to do it that they should be Fined and imprisoned which two men brought to the Barr by the Habeas Corpra were imprisoned for the same cause It was urged and much stood upon That the Custom was no good Custom for the causes and reasons which are delivered in Baggs Case in C. 11. part But yet at the last the Court did remand
them and held that the Custom might be good Mich. 17 Jacobi in the Kings Bench. 400. IN an Evidence in an Ejectione firme for Land in the Countie of Hartford the Case was this A man was married unto a woman and died The wife after 40 weeks and 10 days was delivered with child of a daughter and whether the said daughter should be heir to her Father or should be bastard was the Question and Sir William Padde Knight and Dr Montford Physitians were commanded by the Court to attend and to deliver their opinions in the Case who being upon their Oaths delivered their opinions That such a child might be a lawfull daughter and heir to her Father For as wellas an Antenatus might be heir viz. a child born at the end of 7 months so they said might a Postnatus viz. child born after the 40 weeks although that 40 weeks be the ordinary time And if it be objected that our Saviour Christ was born at 9 months and five days end who had the perfection of Nature To that it may be answered That that was miraeulum amplias And they held that by many Authorities and by their own Experiences a child might be Legitimate although it be born the last day of the 10â—h Month after the conception of it accounting the Months per Menses solares non Lunares Hill 17 Iacobi in the Kings Bench. 401. WEBB and PATERNOSTERS Case A Man gave Licence unto another to set a Cock of Hay upon his Medow and to remove the same in reasonable time and afterwards he who gave the Licence made a Lease of the Medow to the Defendant who put his Cattel into the Medow which did eat the Hay And for that the Paintiffe brought his Action of Trespass And upon Demurrer joyned the Court was of opinion against the Plaintiffe For upon the whole matter it appeared That the said Hay had stood upon the said ground or Medow for 2 years which the Court held to be an unreasonable time Mich. 18 Iacobi in the Kings Bench. 402. BROWN and PELL's Case IN an Ejectione firme upon a special Verdict found the Case was this Browne had issue two Sons and devised his Lands to his youngest Son and his Heirs And if it shall happen his said youngest Son to die without issue living his eldest Son That then his eldest Son should have the Lands to him and his Heirs in as ample manner as the youngest Son had them The youngest Son suffered a Common Recovery and died without issue living the eldest Son The Question was whether the eldest Son or the Recoverer should have the â—ands Montague Haughton and Chamberlain Justices The same is a Fee-simple Conditional and no Estate Tail in the youngest Son Doddridge Justice contrarie Mich. 18. Jacobi in the Kings Bench. 403. POLLYES Case IN an Action of Trespass It was agreed by the Court If 2 Tenants in Common be of Lands upon which Trees are growing and one of them felleth the Trees and layeth them upon his Freehold If the other entreth into the â—and and carrieth them away an Action of Trespasse Quaere clausum fregit lyeth against him because the taking away of the Trees by the first was not wrongfull but that which he might well do by Law And yet the other Tenant in Common might have seized them before they were carried off from the Land But if a man do wrongfully take my Goods as a Horse c. and putteth the same upon his Land I may enter into his Land and seize my Horse again But if he put the Goods into his House in such Case I cannot enter into his House and retake my Goods because every mans House is his Castle into which another man may not enter without special Liâ—ence Hill 19 Iacobi in the Kings Bench. 404. THe Case was That two Tenants in Common of Lands made a Lease thereof for years rendring Rent and then one of them died And the Question was who should have the Rent And if the Executor of him who died and the other might joyn in an Action for the Rent And as this Case was The opinion of the whole Court was That the Executor and the other might joyn in one Action for the Rent or sever in Action at their pleasures But if the Lease had been made for life rendring Rent The Court was cleer of opinion that they ought to sever in Actions Trin. 20 Jacobi in the Kings Bench. 405. A Man was bounden in a Bond by the name of Edmond and his true name was Edward And an Action of Debt was brought against the Executors of Edmond upon the said Bond who demanded Oyer of the Bond and then pleaded that it was not the Deed of their Testator and issue being thereupon joyned It was found by Inquest in London to be his Deed viz. the Deed of Edmond And it was moved in Arrest of Judgment Quod querens nihil caperet per Billam and so it was resolved and adjudged by the Court Doddridge only being absent And a Case was vouched by Henage Finch Recorder of London to prove this case That it was so adjudged in a Case of Writ of ErError brought in the Exchequer-Chamber in which Case the party himself upon such a Misnosmer and after a Verdict and Judgment given in the same Case did reverse the Judgment for this Error Mich. 14 Iacobi in the Kings Bench. 406. VESEY's Case VVIlliam Vesey was indicted for erecting of a Dove-house And Serjeant Harvey moved That the Indictment was insufficient the words were That the Defendant erexit Columbare vi armis ad commune nocumentum c. and that he was not Dominus Manerii nes Rector Ecclesiae And the Indictment was quashed because it was not contained in the Indictment that there were Doves in the Dove-cote For the meer erecting of a Dove-cote if there be no Doves kept in it it is no Nusans as it was holden by the Justices Mich. 15 Iacobi in the Kings Bench. 407 Sir WILLIAM BRONKER's Case SIR William Bronker brought an Action upon the Case for slanderous words And he shewed in his Declaration how that he was a Knight and one of the Gentlemen of His Majesties Privy-Chamber And that the Defendant spake of him these scandalous words viz. Sir William Bronker is a Cosening Knave and lives by Cosenage Which was found for the Plaintiffe In arrest of Judgment it was moved that the words were not actionable And so it was adjudged per Curiam Pasch 21 Iacobi in the Kings Bench. 408. YATE and ALEXANDER's Case YAte brought an action upon the Case against Alexander Attorney of the Kings Bench and declared That the Plaintiffe in an action of Debt brought against Alexander the Defendant who was Executor to his Father had Judgment to recover against him as Executor and that he sued forth a Fieri facias to the Sheriffe to have Execution and that before the Sheriffe could come to levy the debt and serve the
Execution of Justice is no wrong when it is for the King The King hath the precedency for the payment of his Debts to him as it appeareth in Stringfellows Case cited before by Justice Dodderidge And when Lands are once lyable to the payment of the Kings debts let the Lands come to whom you will yet the Land is lyable â—o his debt as it appeareth in Cavendishes Case Dyer 224 225. which was entred Pasc â— Eliz. Rot. 111. in the Exchequer 50. Ass 5. A man bindeth himself and his heirs and dieth and the heir alieneth the Land the Land is discharged of the Debt as to the Debtee But in the Kings Case if at any time the Land and Debt meet together you cannot sever them without payment of the Kings debt Vid. Littleton Executors and soe Administrators are chargeable in an Account to the King and the Saying of Mr Littleton are adjudged for Law and are Judgments A sale in Market over nor a Fine and Nonclaim shall not bind the King and so it is of things bought of the Kings Villeyn because Nullum tempus occurrit Regi A common person in London by Custom may attach a Debt in anothers hands As he may come into Court and shew that his debtor hath not any thing in his hand to satisfie his debt but only that debt which is in the hands of another man and that Custom is allowable and reasonable And if it shall be reasonable for a Subject so to attach a Debt will you have it unreasonable for the King Before the Statute of 25. E. 3. cap. 19. The King might protect his Debtor as it appeareth by the Register 281. and Fitz. 28. 6. But the Statute of 25. E. 3. gave the Partie a liberty to proceed to Judgement but doth barr him from taking forth of Execution upon the Judgment untill the King be satisfied his Debt In Dyer 296 297. a man condemned in the Exchequer for a Debt due to the Queen was committed to the Fleet and being in Execution he was also condemned in the Kings Bench at the Suit of a Subject upon a Bill of Debt in Custodia Mariscalli Marisâ—alciae Afterwards upon prayer of the Partie a Habeas Corpus cum causa was awarded out of the Kings Bench to the Warden of the Fleet who retorned the Cause ut supra and he was remanded to the Fleet in Execution for the Debt Afterwards a Command was given by the Lord Treasurer upon the Queens behalf to suffer the Prisoner to go into the Countrie to collect and levie monie the sooner to pay the Queen her Debt In that Case the Subject brought an Action of Debt against the Warden of the Fleet upon the Escape who justified the Escape by the said Commandment It was holden in that case That although the Partie was in Execution for both the Debts yet before the Queen was satisfied the Execution for the Subject did not begin For the King cannot have equall to have interest in the Body of the Prisoner Simul cum illo But if the Case were as Lassels case 3. Eliz Dyer then he might be in Execution for the King and for the Subject Lassels was taken in Execution at the Suit of a Subject and before the Writ was retorned a Writ for the Queen came to the Sheriffe and Lassels was kept in Execution for the Queen In that case Lassels was in Execution for them both viz. the Queen and the Subject So there is a difference where the Partie is first taken for the King and where he is first taken for the Subject Now I will consider of the Case at Barr Whether the Land might be extended notwithstanding the Conveyance made The Kings Debt is to be taken largely and so Goods in such case are to be taken largely and so is it likewise of Lands viz. any Land be it Land in Use upon Trust by Revocation By the Law Debts are first to be paid then Legacies then childrens preferments There is a difference where the Land was never in the man and where it was once in him C. 8. Part. 163. Mights Case Might Purchased lands to him and to his heir It was resolved that this original Purchase could not be averred to be by Collusion to take away the Wardship which might accrue after the death of Might for they were Joynts and the survivor shall have the whole Note that there was no fraud for that it was never in him but if it had once been the Lands only of Might and then Might had made the conveyance to him and his heir then it would have been fraud to have deceived the King of the Wardship In the Case at Barr Hatton hath not aliened the land For an Alienation is alienum facere and here he hath not made it the land of another having a power of Revocation Sir John Packington Mortgaged his lands for 100l The Mortgagee enfeoffed W. and within the time of Redemtion Packington and he to whom the money was to be paid agreed that Packington should pay him 30l of the said 100l and no more and yet in appearance for the better performance of the Condition it was agreed that the whole 100l should be paid and that the residue above 30l should be repaid back to Packington which was done accordingly It was resolved in that Case that the same was no performance of the Condition because it was not a payment animo solvendi And so in this Case there was not any allienation animo 〈◊〉 For Sir Christopher Hatton gave the Lands but yet he kept the possession and received the profits of them And if Sir Christopher Hatton had given the land with power of Revocation or reserving as in this Case he did an Estate for his own life it had been all one If a man deviseth the profits of such lands the lands themselves do pass And a Conveyance of lands upon Condition not to take the profits is a void condition in Law Lit. 462 463. A Feoffment is made upon confidence and the Feoffor doth occupie the land at the will of the Feoffees and the Feoffees do release unto the Feoffor all their right Litt. 464. there it was said that such a Feoffor shall be sworn upon an Inquest if the lands be of the value of 40s per annum and that by the Common Law Therefore it seemeth that the Law doth intend That when a man hath Feoffees in Trust that the lands are his own and then if in such case the Commonwealth shall be served shall not the King who is Pater reipublicae be served so as he may be satisfied his debts If the Case of Walter de Chirton had never been yet I should now have the same opinion of the Law in such Case as the Judges then had The King is not bound by Estopels nor Recoveris had betwixt strangers nor by the fundamental Jurisdiction of Courts as appeareth 38. Ass 20. where a Suit was for Tythes in the Exchequer being a meer spiritual
Iacobi in the Kings Bench. 430. OWFIELD against SHIERT A Writ of Error was brought to reverse a Judgment given in an Action of Debt The Action of Debt was upon a Concessit solvere c. pro diversis summis pecuniae and the opinion of the Court was That Debt doth not lie upon Concessit solvere pro diversis summis c. because it is incertainty But the same Term in another Case viz. Stacies Case That by Custom of London it was holden that Debt doth lie upon a Concessit solvere pro diversis summis And it was then said That in an Action upon the Case it was good to say That in consideration de diversis summis Concessit solvere and so it hath been adjudged Trin 21 Jacobi in the Kings Bench. HAWKSWITH and DAVIES Case Intratur 431. Pasch 19. Jur. Rot. 83. LEssee for years of divers parcels of Lands reservant Rent and for not payment a reentrie The Lessee assignes part of the Land to A. and other part to B. and keeps a part to himself afterwards the Lessee levies a Fine of all the Lands unto the use of the Conusee and his heirs afterwards the Lessee paies the Rent for the whole unto the Conusee and afterwards the Rent becomes behind and the Conusee enters for the Condition broken and made a Lease to the Plaintiffe who thereupon brought an Ejectione firme and all this matter was found by special Verdict and it was moved that by the assigning of the Lessee of part of the lands to one and part to another that the Condition was gone and destroyed but notwithstanding it was agreed by all the Justices that the Condition did remain and was not gone nor destroyed And they said that this Case was not like unto Winters Case in Dyer 308 309. where the Lessor did assigne over part of the Reversion to one and part unto another for that in that Case the Lessor by his own Act had destroyed the Condition but in this Case it is the Act of the Lessee and therefore no colour that the Condition be gone and destroyed And so it was resolved for the Plaintiffe and Judgment given accordingly Trin. 21 Jacobi in the Kings Bench. 432. KILLIGREW and HARPER'S Case HArper in consideration of 100l. doth assume and promise to Killigrew That the Lady Weston and her Son shall sell to Killigrew such Lands Proviso that Killigrew such a day certain pay to the said Lady and her Son 2000l At which time the Lady and her Son shall be ready to assure and convey to Killigrew the said lands And for want of payment of the said 2000l at the said day that Killigrew shall lose the said 100l. and that the Contract for the Land shall be void Killigrew brought an Action upon the Case sur Assumpsit against Harper and all this matter was found by special Verdict Athow Serjeant argued that the Action would lie because the Lady and her Son were to do the first act viz. to make the Assurance 22 H. 6. 57. Rent is reserved upon a Lease for years in which are divers Covenants and a Bond is given for the performance of all the Covenants within such Indenture of Lease the Rent is behind the Bond is not forfeited unlesse the Lessor doth make a demand of the Rent because the Lessor is to do the first act viz. to demand the Rent Yelverton contr ' That the Action will not lie The question is Of whose part is the breach The Assumpsit is grounded upon the Consideration and not upon the Promise The Jury find that Killigrew was not ready to pay the 2000l. and that the Lady and her Son were not ready to assure the land The Agreement was for which not time is expressed That the Lady and her Son should convey such lands Then the Agreement was That Killigrew should pay at such a day certain at which day the Lady should be ready c. and if Killigrew made default of the payment of the 2000l. then he was to lose the said 100l. which he gave to Harper to procure the Bargain and also that the Bargain should be void Ley Chief Justice If Killigrew had paid or tendred the 2000l. at the said day and the Lady and her Son had not been ready at that time to have assured the lands Killigrew should have had an Action upon the Case for the 100l. and recovered damages If the Lady had been to have done the first action then the Action would have been maintainable but in this Case Killigrew is to do the first act and therefore the Action will not lie Dodderidge If it had been indefinite then the Assurance and Conveyance is to be before the Payment but here the bargain is to pay the mony first Harper promiseth to Killigrew in consideration of 100l. that Killigrew shall buy such lands then comes the time of payment and assurance of the land at that time shall be made Proviso that if he do not pay the 2000l then Killigrew to lose the 100l. and the Contract to be void so there are two penalties so as of necessity the 2000l must first be paid for otherwise how can the Contract be void for not payment For if the Conveyance shall be first made then it was present before the mony paid and so the clause viz. Then the Contract to be void should be of no effect Haughton Justice agreed Chamberlain Justice You have bound your self with a penalty and the bargain ought to be performed as it was made And so being made that the mony should be first paid at which time the conveyance shall be made and for want of payment that Killigrew should lose the 100l. and also the Contract to be void The opinion of the whole Court was against the Plaintiffe that the Action would not lie and so Judgment was given Quod nihil capint per Billam Trin. 21 Jacobi in the Kings Bench. 433. Sir ARTHUR GORGE and Sir ROBERT LANE'S Case AN Action of Debt was brought upon a Bond for not performance of Covenants The Case was Lane did marry with the daughter of Gorge and in consideration of marriage and also of 3000l portion given in marriage by Gorge Lane did covenant That he within one year would make a Jointure of lands within England then of the value of 500l per annum over and above all Reprises to his said wife so as Sir Henry Yelverton and Sir John Walter Councellors at Law should devise and advise In Debt for the breach of these Covenants Lane pleaded That he did inform Gorge of lands which he was determined should be for her Jointure but neither Yelverton nor Walter did devise the Assurance Paul Crook did demur upon the Plea and first shewed That Lane did not give notice to Yelverton and Walter as he ought to have done by law For in this case it is not sufficient to give notice to Gorge but the notice ought to be to the Councellors otherwise how could
they devise the assurance for her jointure 2. Heer is no place named where the Notice was for it is issuable whether he gave Notice or not and then there being no certain place named no visne can be upon it 3. He doth not shew where the Lands are for it might be as in truth it was the Lands were out of England and by the Covenant they ought to be within England 4. He doth not shew that the Lands were of the value of 500l per annum over and above all Reprises as they ought to be by the Articles 5. He sheweth that they were his Freehold but doth not shew that the lands were his lands of Inheritance of which a Jointure might be made The opinion of the whole Court was that the Exceptions were good and that the Plea in bar was no good plea. Dodderidge If the word had been Such as his Councel shall devise then the Notice ought to have been given to the party himself and he is to inform his Councel of it 6 H. 7. 8. But here two Councellors were named in certain and therefore the Notice ought to be given to them for he hath appointed Councellors The whole Plea in bar is naught For if he hath an estate in tail then there ought to be a Fine in making of the Jointure and if there be a Remainder upon it then there ought to be a Recovery So because that Lane hath not informed the party what estate he had in the lands they could not make the Assurance Ley Chief Justice Where a man is bound to make such Assurance of lands as J. S. shall advise here he need not shew his Evidences but he ought to shew to the party what the land is and where it lieth and the Obligee is to seek out the estate at his peril And then J. S. may advise the Assurance conditionally viz. That if he hath Fee then to have such an assurance and if an Estate in tail then such an assurance and if there be a Remainder over then to devise a Recovery Curia All the Errors are material The Bail for Lane before any Judgment given against him brought Lane into Court and prayed that they might be discharged and Lane taken into custody Dodderidge Justice said There is a difference betwixt Manucaptors which are that the party shall appear at the day for there the Court will not excuse them to bring the party in Court before the day But in case of Bail there they may discharge themselves if they bring the body of the Defendant into Court at any time before the Retorn of the 2. Scire facias against the Defendant For when one goeth upon Bail it is intended that he notwithstanding that is in â—â—stodia Mariscalli For the Declarations are in custodia Mariscalli Marschalsiae Quod hota so is the difference Trin. 21 Jacobi in the Kings Bench. 434. WHEELER and APPLETON'S Case AN Action upon the Case was brought for these scandalous words viz. Thou hast stollen my Peece and I will charge thee with suspition of Felony Which were found for the Plaintiffe It was moved for the staying of Judgment That the Action was not maintainable For the Declaration is A Peece innuendo a Gun And here the innuendo doth not do its part for it might be a peece of an Oak or a 225. peece of Gold which is commonly called a Peece and in this Case the words may be intended such a Peece 17. Jacobi in the Kings Bench betwixt Palmer and Râ—ve Thou hast the Pox and one may turn his finger in the holes of his legs Adjudged that for these words the Action would lie because it cannot be meant otherwise then of the French pox 41 Eliz. in the Kings Bench the Defendant said of the Plaintiffe Thou art forsworn and thou hast hanged an honester man then thy self the Action did lie For the first words Thou art forsworn no Action will lie C. 4. part 15. but the later words prove that it was in course of Justice and that he was perjured So in this Case admitting that the first words will not bear an action yet the later words make them actionable For the first words ought to be meant of a thing which is Felony Heck's Case C. 4. part 15. there it was adjudged for the Plaintiffe although the first words would not bear action yet the later words make them actionable I will charge thee with suspition or flat Felony an Action doth not lie Hecks Case proves it Another Councellor argued that the Action would not lie The first words are not actionable For so many things as there are in the world so many peeces there may be and here it might be a peece of a thing which could not be Felony Betwixt Roberts and Hill 3 Jacobi in the Kings Bench it was adjudged Roberts hath stollen my wood the words were not actionable for it might be wood standing and then to cut and take it away it is not Felony but Trespass Ley Chief Justice I charge thee with flat Felony If the words be spoken privately to a man no Action lieth for them but if they be spoken before an Officer as a Constable or in a Court which hath conusance of such Pleas then the Action will lie for the party by reason of such words may come into trouble But if a man charge one with flat Felony and chargeth the Constable with him then an Action will not lie because it is in the ordinary course of Justice C. 4. part 14. If a man maketh a Bargain with another to pay him twenty Peeces for such a thing it shall be taken by common intendment twenty 22s. peeces of gold which vulgarly are called Peeces But to endite a man for 20 Peeces is not certain and therefore such Indictment is not good and the Action in our Case will not lie for my Peece is an incertain word Dodderidge Thou hast stollen my Peece What is that For we call 22s. in gold a Peece You ought to tell it in certain And here the innuendo will not make the scandal but the words of scandal ought to proceed out of the parties own mouth and an Innuendo cannot make that certain which was uncertain in the words of the speaker And therefore the Action here will not lie Haughton Justice If the whole matter had been set forth in the Declaration as to have shewed that the parties before this speech had had speeches of a Gun then the Action in this case would have been maintainable but here the word Peece is incertain and the Action will not lie Chamberlain Justice If the speeches had been concerning a Gun lost then upon these words spoken the Action would have lien but not as they are here spoken For the two words there ought to have been matter subsequent as upon the charging with Felony to have delivered him to an Officer And so by the whole Court it was adjudged Quod querens nihil capiat per
the Kings Bench by the opinion of the whole Court the Judgment was reversed Trin. 21 Jacobi Intratur Hill 20 Jac. Rot. 137. in the Kings Bench. 444. KITE and SMITH's Case ONe Recovered by Erronious Judgment and the Defendant did promise unto the Plaintiffe That if he would forbear to take forth Execution that at such a day certain he would pay him the debt and damages And Action upon the Case was brought upon that Promise And now it was moved by the Defendants Councel That there was not any Consideration upon which the Promise could be made because the Judgment was an Erronious Judgment It was adjourned But I conceive that because it doth not appear to the Court but that the Judgment is a good Judgment that it is a good Consideration Otherwise if the Judgment had been reversed by a Writ of Error before the Action upon the Case brought upon the Promise for there it doth appear judicially to the Court that the Judgment was Erronious Trin. 21 Jacobi in the Kings Bench. 445. TOTNAM and HOPKIN's Case AN Action upon the Case was brought upon an Assumpsit And the Plaintiff did declare That in Consideration of c. the Defendant 1 Martii did promise to pay and deliver to the Plaintiffe 20 Quarters of Barley the next Seed-time Upon Non Assumpsit pleaded it was found for the Plaintiffe It was moved for the Defendant That the Plaintiffe ought to have shewed in his Declaration when the Seed-time was which he hath not done But it was answered That he needeth not so to do because he brings his Action half a year after the Promise for not payment of the same at Seed-time which was betwixt the Promise and the Assumpsit Dodderidge Justice If I promise to pay you so much Corn at Harvest next If it appeareth that the Harvest is ended before the Action brought it is good without shewing the time of the Harvest for it is apparent to the Court that the Harvest is past And here the Action being brought at Michaelmas it sufficiently appears that the Harvest is past And Judgment was given for the â—laintiffe Trin. 21 Iacobi Iatratur Hill 1â— Iacobi Rot. 652. inter Hard Foy in the Kings Bench. 446. KELLAWAY's Case IN an Ejectione Firme brought for the Mannor of Lillington upon a Lease made by Kellaway to Fey It was found by a special Verdict That M. Kellaway seised of the Mannor of Lillington in Fee holden in Soccage did devise the same by his Will in writing in these words viz. For the good will I bear unto the name of the Kellawayes I give all my Lands to John Kellaway in tail the Remainder to my right Heirs so long as they keep the true intent and meaning of this my Will To have to the said John Kellaway and the heirs of his body untill John Kellaway or any of his issues go about to alter and change the intent and meaning of this my Will Then and in such case it shall be lawfull to and for H. Kellaway to enter and have the Land in tail with the like limitation And so the Lands was put in Remainder to five several persons the Remainder to the right heirs of the Devisor M. Kellaway dyed without issue John Kellaway is heir and entred and demised the same to R. K. for 500 years and afterwards granted all his estate to Hard. Afterwards John Kellaway did agree by Deed indented with W. K. to levy a Fine of the Reversion to W. and his heirs H. Kellaway entred according to the words of the Proviso in the Will and made the Lease to Foy who brought an Ejectione Firme against Hard. And whether H. Kellaway might lawfully enter or no was the Question It was objected That in the Case there is not any Forfeiture because the Fine was without proclamations and so it was a Discontinuance only The first Question is If the Remainder doth continue The second is If it be a Perpetuity or a Limitation John Kellaway is Tenant in tail by Devise untill such time as John Kellaway or any of his issues agree or go about to alter or change the estate tail mentioned in the Will with Proviso to make Leases for 21 years 3 lives or to make Jointures Then his Will is That it shall be lawfull for H. K. to enter and to have the Land with the same limitations If it be a Perpetuity then it is for the Plaintiffe but if it be but a Limitation then it is for the Defendant The Fine was levied without proclamations and H. K. entreth for the Forfeiture Damport It is no Perpetuity but a Limitation which is not restrained by the Law as Perpetuities are Untill such time as c. shall discontinue c. The Jury find an Agreement by Indenture The act which is alleadged to be the breach is Conclusivit agreavit not to levy a Fine with proclamations but to levy a Fine without proclamations which is but a Discontinuance Yelverton If the Fine had been with proclamations then without doubt he in the Remainder during the life of him who levied it had been barred The Devise was To have to them and to the heirs of their bodies so long as they and every of their issues do observe perform fulfill and keep the true meaning of this my Will touching the entailed Lands in form following and no otherwise And therfore I M. Kellaway do devise unto John Kellaway the issue of his body the Remainder c. â—o have to the said John Kellaway and the issue of his body untill he or any of his issue shall go about to conclude do or make any act or acts to alien discontinue or change the true meaning of this my Will That then my Will is and I do give and bequeath to H K in tail And that it shall be lawfull for him the said H. K. or his issue to enter immediately upon such assent conclusion or going about to conclude c. And that H. K. and his issue shall leave it untill he or any of them go about c. C. 9 part Sundayes Case 128. where it was resolved That no Condition or Limitation be it by act executed or by limitation of an Use or by a Devise can bar Tenant in tail to alien by a common Recovery v. C. 3. part acc The Case was not resolved but it was adjourned to another day to be argued and then the Court to deliver their opinions in it Trin. 21. Intratur Trin. 20 Jacobi Rot. 811. in the Kings Bench. 447. KNIGHT's Case IN this Case George Crook said That Land could not belong to Land yet in a Will such Land which had been enjoyed with other might pass by the words cum pertinaciis As where A. hath two houses adjoyning viz. the Swan and the Red-Lyon and A. hath the Swan in his own possession and occupieth a Parlour or Hall which belongs in truth to the Red-Lyon with the Swan-house and then leaseth the Red-lyon
house and then by his Will deviseth his houses called the Swan The rooms of the Lyon which A. occupied with the Swan shall pass by the Devise although of right those rooms do belong to the Lyon-house Pasc 36 Eliz. Ewer and Heydon's Case A man hath a house and divers lands in W. and also a house and lands in D. And by his Will he deviseth his house and all his lands in W. D. there the house which is in D. doth not pass for his intent and meaning plainly appears that his house in D. doth not pass But if he had devised all his lands in W. and had not spoken of the house the house had passed A Case was in the Common-Pleas betwixt Hyam and Baker The Devisor had two Farms and occupied parcel of one of the Farms with the other Farm and devised the Farm which he had in his possession The part of the other Farm which he occupied with it did pass with the Farm devised Dodderidge Justice The Devise is in the Case at Bar All his Farm called Locks to his eldest Son and all his Farm called Brocks to his younger Son And the Land in question was purchased long after that the Devisor purchased Brocks but that Land newly purchased was not expresly named in the Will and therefore it shall discend to the heir viz. the eldest Son Land is not parcel of a house and in strictness of Law cannot appertain to a house Yet Land is appertaining to the Office of the Fleet and the Rolls but that is to the Office which is in another nature then the Land is For the Land newly purchased the Jury did not find the same to be usually occupied with Brocks it shall not pass with Brocks although it be occupied together with Brocks I do occupie several Farms together and then I devise one of the Farms called D. and all the lands to the same belonging the other Farms shall not pass with it although they be occupied all together Haughton Justice What time will make lands to belong unto a house All the profits of the lands used with the house for a small time will serve the turn Ley Chief Justice There are two manner of belongings One belonging in course of Right and another belonging in case of Occupation To the first belonging there ought to be Prescription viz. time out of mind But in our Case Belonging doth borrow some sense from occupying for a year or a time And then another year to occupie it will not make it belonging in the later sense In strictness of Law Land cannot be said to belong to a house or land but in vulgar reputation it may be said belonging And in such case in case of grant the Land will not pass as appertaining to Land C. 4. part Terringham's Case But in our Case it is in case of a Will Usually occupied is not to be meant time out of mind Here other lands were belonging to Brocks and so the words of the Will are satisfied But it might have been a Question if there had been no other lands belonging to it Dodderidge Justice If the Devisor had turned all the profits thereof to Brocks then it had passed by the Will Ley Chief Justice This occupying of it promiscuously doth make it belong to neither At another day Ley Chief Justice said Here is nothing which makes it appear to us that this Land doth belong to Brocks For the Jury find not that it was occupied either with Brocks or Locks and so this Land belongs to neither of them Dodderidge There is not any Question in the Case It is not found that it doth belong And then we must not judge it belonging The ground of this question ariseth out of the matter of fact and it ought to be found at the least that it is appertaining in Reputation Haughton The Jury find that Knight was seised of Brocks and of lands belonging to it And that he was seised of Locks and of lands belonging to that And lastly they find that he was seised of this Land in question but they do not find that it was any wayes belonging to Brocks or Locks It was adjudged for the Plaintiff and that the Land did not pass by the Devise but that it did discend to the heir Trin. 21 Jacobi in the Kings Bench. 448. SELY against FLAYLE and FARTHING IN an Ejection Firme the Verdict was found for the Defendant Three of the Jurors had Sweet-meats in their pockets and those three were for the Plaintiffe untill they were searched and the Sweet-meats found with them and then they did agree with the other nine and gave their Verdict for the Defendant Haughton Justice It doth not appear that these Sweet-meats were provided for them by the Plaintiffe or Defendant and it doth not appear that the said three Jurors did eat of the Sweet-meats before the Verdict given And so I conceive there is not any cause to make void the Verdict given but the said three Jurors are fineable Dodderidge Justice Whether they eat or not they are fineable for the having of the Sweet-meats with them for it is a very great misdemeanour And now we cannot tell which of the Jurors the three were and because it was not moved before the Jurors departed from the Bar it is now too late to examine the Jurors for we do not know for which three to send for The nine drew the three which had the Sweet-meats to their opinions and therefore there is no cause to stay Judgment But if the three Jurors had drawn the nine other to them then there had been sufficient cause to have stayed the Judgment but as this case is there is no cause And therefore per Curiam Judgment was given for the Defendant according to the Verdict Trin. 21 Iacobi in the Kings Bench 449. NOte It was vouched by George Crook and so was also the opinion of the whole Court That by way of Agreement Tythes may pass for years without Deed but not by way of Lease without a Deed. But a Lease for one year may be of Tythes without Deed. Trin. 21 Iacobi in the Kings Bench. 450. THe Plaintiffe recovered in Debt in the Kings Bench and a Capias ad Satisfaciendum was awarded and immediately upon the awarding of the Capias the Defendant dyed Quaere if in such case an Action of Debt lieth against the special Bail The Executors having nothing a Scire-facias doth not lie against the Bail And in the Common-Pleas in that case the Court was divided two Judges being against the other two Judges Ideo quare Trin. 21 Jacobi in the Kings Bench. 451. LEONARD's Case IN a Scire facias to have Execution of a Recognizance the Case was That a special Supplicavit for the Peace was directed out of the Chancery to A. and B. Justices of the Peace and to the Sheriffe of the County of c. to take a Recognizance of L. M. N. for the Peace and good behaviour and the
pay the money there he shall recover damages besides the dutie Here the Action was brought before the request made and so no damage to the Plaintiff and the Judgment was that the Plaintiff recuperet damna predict viz. the damages laid in the Declaration Dodderidge Justice The Judgment ought to be Consideratum est quod Gleede recuperet damna quae sustinuit and not damna predict which are mentioned in the Declaration and then a Writ is awarded to enquire of the damages quae sustinuit The Judgment was reversed per Curiam Mich. 1 Caroli in the Kings Bench. Rot. 189. 455. TAYLOR and HODSKIN's Case IN an Ejectione firme upon a special Verdict it was found That one Moyle was seised of divers Lands in Fee holden in Socage and having issue four daughters viz. A B C D. A. had issue N. and died And afterwards Moyle devised the said Lands unto his wife for life and after her decease then the same equally to be divided amongst his daughters or their heirs Moyle died and afterwards his wife died and Hodskins in the right of B C D. three of the daughters did enter upon the Lands N. the daughter of A. married F. who entred and leased the Lands to the Plaintiff Taylor Whitfield for the Plaintiff The only point is Whether N. the daughter of A. one of the sisters shall have the fourth part of the lands or not by reason of the word Or in the Will It is apparent in our books C. 10. part 76 the Chancellor of Oxfords Case C. 3. part Butler and Bakers Case That Wills shall be construed and taken to be according to the intent of the Devisor And therefore Br. Devise 39. A devise to one to sell to give or do with at his will and pleasure is a Fee-simple And in our Case if N. shall not take a fourth part the word heirs should be of no effect C. 1. part in Shellies Case All the words in a Deed shall take effect without rejecting any of them and if it be so in a Deed à fortiori in a Will which is most commonly made by a sick man who hath not Councell with him to inform or direct him In this Case the three sisters who were living at the time of the Devise took presently by way of remainder and the word heirs was added only to shew the intent of the Devisor That if any of the three sisters had died before his wife that then her heir should take by discent because her mother had taken by purchase And by reason of the word heirs the heir of A. shall take by purchase and the disjunctive word or shall be taken for and as in Mallories Case C. 5. part A reservation of a Rent to an Abbot or his Successors there the word or shall be taken for and reddendo singula singulis Trin. 7. Jacobi in the Common Pleas Arnold was bound in a Bond upon Condition that he suffer his wife to devise Lands of the value of 400l to her son or her daughter and she devised the Lands to her son and her daughter And it was resolved that it was a good performance of the Condition And there the word or was taken for and And there Justice Warburton put this Case If I do devise all my goods in Dale or Sale it shall be a Devise of all my goods in both places and or shall be taken for and. In this Case the word heirs was not added of necessity for the heir of any of the sisters to take by purchase but only to make the heir of A. to take part of the Lands The Court was of opinion that it was stronger for the Plaintiff to have it or in the disjunctive For they said that if it were and then it would give the three sisters the Fee and not give the heir of A. a fourth part but being or there is more colour that she shall take a fourth part by force of the Devise It was adjourned Trin 2 Caroli Rot 913. in the Kings Bench. 456. ASHFIELD and ASHFIELD's Case THe Case was An Enfant Copyholder made a Lease for years by word not warranted by the Custome rendring Rent The Enfant at his full age was admitted to the Copyhold and afterwards accepted of the Rent The question was Whether this Lease and the acception of the Rent should bind or conclude the Enfant Crawley Serjeant argued That it was a void Lease and that the acception should not bar him It is a ground in Law That an Enfant can do no Act by bare contract by word or by writing can do any Act which is a wrong either to himself or unto another person or to his prejudice In this Case if the Lease should be effectual it were a wrong unto a stranger viz. the Lord and a prejudice unto himself to make a forfeiture of the Inheritance If an Enfant commandeth A. to enter into the land of I. S. and afterwards the Enfant entreth upon A. A is the Disseisor and Tenant and the Enfant gaineth nothing So if A entreth to the use of the Enfant and the Enfant afterwards agreeth to it in this Case here is but a bare contract and an agreement will not make an Enfant a Disseisor No more shall he be bound by a bare Deed or matter in writing without Livery 26 H. 8. 2. An Enfant granteth an Advowson and at full age confirmeth it all is void Br. Releases 49. Two Joynt-Tenants one being an Enfant releaseth to his Companion it is a void Release 18 E. 4. 7. An Enfant makes a Lease without reserving Rent or makes a Deed of grant of goods yet he shall maintain Trespass nay though he deliver the goods or Lease with his own hand the same will not excuse the Trespass nor will it perfect the Lease or make the grant of the goods good If the Contract have but a mixture of prejudice to the Enfant it shall be void ◠Jacobi in the Kings Bench Bendloes and Holydaies Case An Obligation made by an Enfant with a Condition to pay so much for his apparel because the Bond was with a penaltie it was adjudged void If Tenant at Will make a Lease for years he was a Disseisor at the Common Law before the Statute of West 2. cap. 25. 12 E. 4 12. Tenant at Will makes a Lease for years 10 E. 4. 18. 3 E. 4. 17. But if an Enfant be Tenant at will and he maketh a Lease he is no Disseisor In our Case if he had made Livery then I confess it had been a defeisible forfeiture and he mignt have been remitted by his entrie upon the Lord. Farrer for the Plaintiff The Lease is not void but voidable 7 E. 4. 6. Brian 18 E. 4. 2. 9 H. 6. 5. An Enfant makes a Lease for years and at full age accepts of the Rent the Lease is good because the Law saith that he hath a recompence Com. 54. A Lease for years the remainder
removed but if the VVrit of Error want only form but is sufficient for the matter in substance the VVrit shall not abate but the partie may have a new VVrit of Error coram vobis residet c. Trin. 3 Caroli in the Kings Bench. 464. MILL's Case ACtion upon the Case for these words Thou hast Coyned Gold and art a Coyner of Gold Adjudged the Action will not lie for it may be he had Authority to Coyn and words shall be taken in mitiori sensu Pasch 3 Car in the Kings Bench. 465. BROOKER's Case THe question was VVhether the Feoffee of the Land might maintain a VVrit of Error to reverse an Attaindor by Vtglary and the Case was this William Isley seised in Fee of the Mannor of Sundridge in Kent had issue Henry Isley who was Indicted of Felony 18 Eliz. and 19. Eliz. the Record of the Indictment was brought into this Court and thereupon 20 Eliz. Henry Isley was outlawed William Isley died seised Henry Isley entred into the Mannor and Land as son and heir and being seised of the same devised the Mannor and Lands to C. in Fee who conveyed the same to Brooker and Brooker brought a Writ of Error to reverse the Outlawry against Henry Isley Holborn argued for the King and said that Brooker was no way privy to the attaindor of Henry Isley but a meer stranger and therefore could not maintain a Writ of Error And first he said and took exception that he had not set himself down Terre-Tenant in possession Secondly he saith in his Writ of Error That the Mannor and Lands descended to Henry Isley as son and heir when as he was attainted The third exception was That he saith that Henry Isley did devise the Lands and that he could not do because he was a person Attainted Fourthly he said that Brooker was not Tenant so much as in posse 4 H. 7. 11. If it were not for the words of Restitution the partie could not have the mean profits after the Judgment reversed 16 Ass 16. Lessee for years pleaded to a Precipe and reversed it the question was whether he should be in statu quo vi Librum for it is obscure If this Attaindor of Henry Isley were reversed yet it cannot make the devise good For there is a difference betwixt Relations by Parliament which nullifie Acts and other Relations Vi. 3 H. 7. Sentlegers Case Petition 18. The violent Relation of Acts of Parliament If a Bargain and Sale be the Inrollment after will make Acts before good but a Relation by Common Law will not make an Act good which was before void C. 3. part Butler and Bakers Case A gift is made to the King by Deed enrolled and before the enrollment the King granteth away the Land the Grant is void yet the enrollment by Relation makes the Lands to pass to the King from the beginning Admit in this Case that Brooker were Terre-Tenant yet he is not a party privy to bring a Writ of Error to reverse the Attaindor of him who was Tenant of the Land and I have proved That although the Attaindor were reversed yet he hath nothing because the Devise was void and is not made good by Relation It is a rule in our Books that no man can bring a VVrit of Error but a partie or privy 9 E. 4. 13. 22 E. 4. 31 32. 9 H. 6. 46. b. Ass 6 C. 3. part in the Marquiss of Winchesters Case The heir of the part of the mother cannot have the VVrit of Error but the heir of the part of the father may So if erronious Judgment be given in the time of profession of the eldest son and afterwards he is dereigned he shall have the Writ of Error In 22 H. 6. 28. The heir in special taile or by Custom cannot have Error But yet M. 18 Eliz. in Sir Arthur Henninghams Case it was adjudged That the special heir in tail might have a Writ of Error The Baile cannot maintain a Writ of Error upon a Judgment given against the Principal because he was not privy unto the Judgment therefore it shall be allowed him by way of plea in a Scire facias I never find that an Executor can have Error to reverse an Attaindor but for the misawarding of the Exigent Marshes Case was cited C. 5. part 111. Fitz 104. Feoffee at the Common Law could not have an Audita Quaerela in regard he was not privy 12 Ass 8. 41. Keâ—laway 193. There the Terre-Tenant brought a Writ of Error in the name of the heir and not in his own name 24 H. 8. Dyer 1. There it is said That he who is a stranger to the Record shall have Error To that I answer That he in the Reversion and the particular Tenant are but one Tenant for the Fee is demanded and drawn out of him But in the principal Case at Barr no Land is demanded but a personal Attaindor is to be reversed Also there it is put That if the Conusee extend before the day there it is said that the Feoffee may have Error 17 Ass 24. 18 E. 3. 25. Fitz. 22. To that I answer That the Feoffee is privy to that which chargeth him for the Land is extended in his hands and if the Feoffee there should not have a Writ of Error the Law should give him no manner of remedy for there the Conusor himself cannot have Error because the Lands are not extended in his hands Also it is there said that the Feoffee brought a Scirefacias against him who had execution of the Land To that I answer That that is by special Act of Parliament Also there it is said That if the Parson of a Church hath an Annuity and recovereth and afterwards the Benefice is appropriated to a Religious house the Soveraign of the house shall have a Scirefacias I answer That in that Case he is no stranger for that he is perpetual Parson and so the Successor of the Parson who recovered 12 H. 8. 8. There a Recovery was against a Parson and there Pollard said that the Patron might have Error I answer That Pollard was deceived there for it is said before that the Parson hath but an Estate for life and then he viz. the Patron is as a Recoverer who shall have a Writ of Error Dyer 1. But the Parson hath the Fee and therefore Pollard was mistaken as it appeareth by Brook Fauxi fier de Recovery 51. 19 H. 6. 57 Newton A false verdict is had against a Parson the Patron cannot have an Attaint There is a difference if one be partie to the Writ although not partie to the Judgment Error 72. A Quare Impedit was brought by the King against the Patron and the Incumbent and Judgment only was had against the Patron and the Incumbent Parson brought a Writ of Error but if he had not been partie to the Writ he could not have maintained Error So in Attaint the partie to the Writ though not to the Judgment shall
Dodderige Justice the encroachment doth not make it to be no parcell of the Mannor Ley chief Justice it is not layed to be a Disseisin but an Encroachment and therefore it is not so strong as a Disseisin with a Discent but in Right it belongs to the Mannor Tenant in Tail makes a Feoffment to the use of himself and deviseth the Lands to A. the Devise doth prevent the Remitter Haughton Justice the Discent is Traversed The Father dieth seised and hath issue two Sons and that the Lands discended to him the other may say That the Land is borough English and that the Lands discend unto him Absque hoc that they discended to the Eldest Dodderidge Justice Regularly you shall not Traverse the Discent but by the dying seised but in this Case it ought to be of necessity sc â— in case of a Devise the Traverse must be of the Discent for here they cannot traverse the dying seised for if they traverse the dying seised then they overthrow their own Title sc the Devise but here in Case of a Will the partie shall traverse the Discent for he cannot say that it is true that the Lands did discend and that he Devised it c. The heir cannot traverse that which entitles him by Discent but here his Title is by the Devise and not as heir Finch Recorder the Devise is not of the four Foot for if we confess the dying seised of the four Foot which was holden in Capite then we should overthrow our own Devise The Office finds that he died seised of the whole and therefore of the four foot He being never seised we traverse the dying seised thereof and we deny that he ever had it so the Traverse is good without making of us any Title unto it for we desire not to have it Dodderidge Justice If a man deviseth to his heir it is a void Devise for the discent shall be preferred But if one hath Issue four daughters and he deviseth to one of them it is good for the whole Land so devised to her and no part of the Land so devised shall discend to the other the Lands being holden in Socage Ley Chief Justice and the whole Court did agree That they might deny and traverse the four Foot if the Ancestor had no Title unto it and Judgment was given accordingly against the King quod nota Trin. 21 Jac. in the Kings Bench. 490. PAYNE and COLLEDGES Case AN Agreement was made between Payne and Colledg That if Payne being Chirurgion did Cure Colledg of a great Disease viz. A Noli me tangere That then he should have 10l and that if he did not cure him That then for his pains and endeavours Colledg would give him 5l In an Action upon the Case brought by Payne he doth not shew in his Declaration in what place he used his endeavour and Industry And there is a difference where the Plaintiff is to do any thing of Skill and Industry for there he may do the same at several times and in several places and so this Case differs from the Cases in our books 15 H. 6. Accord 1. is expresly in the point There the Defendant pleaded an Accord That if the Defendant by his Industry c. And exception was taken because that he did not shew a place 3 E. 4. 1. Debt brought by a Servant and declares that he was reteined by the predecessor of the Defendant c. and that he had performed his Service c. It was moved in Arrest of Judgment and Exception taken as in our Case because he did not shew where he did the Service for that is issuable and Denly there said That he need not shew the place because he might do it in several places Bridgeman Serjeant contrarie If the issue had been upon a Collateral matter it had been good enough but here the issue is taken upon an endeavour and you ought to alleadg a place for the tryal of it Dodderidge Justice The Jury was from the place where the Agreement was made the verdict will not make good the Declaration although the Jury have found the whole matter of fact for it doth not appear to us That that was the Jury which could try his endeavour The Case of 3 E. 4. of the Servant was to serve him seaven years and there he need not shew any place where he did his Service but only that he obeyed his Master in his Service for the seaven years If the Plaintiff in this Case had shewed but any one place of doing his endeavour in it had been sufficient but here he sheweth no place at all And therefore Judgment was given That Querens nihil Capiat per Billam Trin. 21 Jacobi in the Kings Bench. 491. The Lord ZOUCH and MOORES Case IN an Action of Trespass for cutting down of Trees in Odiham Park in Hampshire It was found by special Verdict That King Henry the eighth was seised of the Mannor and Park of Odiham And by his Letters Patents 33 of his Reign did grant unto Genny the Office of Stewardship of the said Mannor and the Office of Parkership of the said Park with reasonable Herbage and by the same Letters Patents did grant unto him the Mannor of Odiham cum pertinaciis and 100. Loads of Wood excepting the Park the Deer and the Wood for fifty years if he should so long live Then they found That after that Genny did surrender and restore the Letters Patents in the Chancery to be cancelled and that in truth they were cancelled and that the said Surrender was made to the intent to make a new Lease thereof unto Pawlet and that this Lease of 33 H. 8. being surrendred That King Henry the 8. Anno 36. of his Reign reciting the Letters Patents made to Genny to be dated anno 32 H. 8. whereas in truth they were dated 33 H. 8. and that they were surrendred and that the intent of the Surrender was to make a new Lease to Pawlet Did grant the same to Pawlet as before they were granted to Genny excepting as before They further found That King Philip and Queen Mary 5 6 of their Reigns being seised of the said Mannor and Park in jnro Coronae reciting that Henry the 8. anno 36 of his Reign had granted unto Paulet as before omitting the Proviso which was for 50 years if he should so long live and the Exceptions before And reciting that those Letters-Patents were surrendred ea intentione to make a new Lease in forma sequente They in consideration of good service and 200l paid did grant the Office as before and by those Letters-Patents did grant Herbage generally whereas the first Patent was reasonable Herbage And by these Letters-Patents did grant to him the Mannor cum pertinaciis except the grand trees and woods in the Park and Felons goods which were granted by the first Letters Patents for 50 years And here was a Rent reserved and a Proviso that for doing of Waste that the
certain Farme Lands called Estons and that a Fine was levied of Lands in Eslington Eston and Chilford whereas Eston lay in another Parish appell D. Calthrope argued That the Land in Eston did passe by the Fine although the Parish was not named for that the Writ of Covenant is a personall Action and will lie of Lands in a Hamlet or lieu conus 8. E. 4 6. Vide 4. E. 3. 15. 17. Ass 30. 18. E. 3. 36. 47. E. 3. 6. 19. E. 3. Brev. 767. 2. He said That it was good for that the Plea went only to the Writ in abatement but when a Concord is upon it which admits it good it shall not be avoided afterwards 3. He said That a Fine being a common assurance and made by assent of the parties will passe the Lands well enough 7 E. 4. 25. 38. E. 3. 19. And he vouched Pasch 17. Jacobi in the Kings Bench Rot. 140. Monk and Butlers Case Where it was adjudged that a Fine being but an arbitrary assurance would passe Lands in a Lieu conus and so he said it would do in a common recovery And Richardson said That if a Scire facias be brought to execute such a recovery Nul tiel ville ou Hamlet is no plea and the Fine or recovery stands good Vide 44. E. 3. 21. 21 E. 3. 14 Stone And the opinion of the Court was That the Lands did well passe by the Fine Mich. 8. Caroli in the Kings Bench 509 CAWDRY aud TETLEY's Case CAwdry being a Doctor of Physick the Defendant Praemissorum non ignorans to discredit the plaintiff with his Patients as appeared by the Evidence spake these words to the plaintiffe viz. Thou art a drunken Fool and an Asse Thou wert never a Scholer nor ever able to speak like a Scholer The opinions of Jones and Crook Justices were that the words were actionable because they did discredit him in his Profession and hee hath particular losse when by reason of those words others do not come to him And Palmers Case was vouched Where one said of a Lawyer Thou hast no more Law then a Jackanapes that an Action did lie for the words Contrary if he had said No more Wit And William Waldrons Case was also vouched where one said I am a true Subject thy Master is none that the words were actionable Mich. 4. Caroli in the Kings Bench. 510 The King and BAXTER SIMMON's Case THE Case was this Tenant in tail the Remainder in taile the Remainder in Fee to Tenant in tail in possession Tenant in tail in Remainder by Deed enrolled reciting that he had an estate tail in Remainder Granted his Remainder and all his estate and right unto the King and his Heirs Proviso that if he pay ten shillings at the Receipt of the Exchequer that then the Grant shall be void Tenant in tail in possession suffers a common Recovery and afterwards deviseth the Lands to I. S. and dieth without Issue 18. Jacobi Afterwards 21. Jac. he in the Remainder in tail dieth without issue but no seisure is made nor Offence found that the lands were in the Kings hands Noy who argued for the King The first Point is When Tenant in taile recites his estate and grants all his estate and right to the King and his Heirs what estate the King hath And if by the death of Tenant in tail without issue the estate of the King be so absolutly determined that the Kings possession needs not to be removed by Amoveas manum And he argued That when the Lands are once in the King that they cannot be out of him again but by matter of Record 8. E. 3. 12. Com. 558. And a bare entry upon the King doth not put the King out of possession of that which was once in him And so was it adjudged 34. Eliz. in the Lord Paget's Case as Walter chief Baron said And Noy took this difference 8. H. 5. Traverse 47. and 8. E. 2. Traverse 48. If a particular estate doth determine before that the King seise there the King cannot afterwards seise the Lands But if the King hath once the Lands in his hands or possession there they cannot be devested out of him but by matter of Record So F. Nat. Br. 254. If a man be seised of Lands in the right of his Wife and be outlawed for Felonie for which the Lands come into the Kings hands and afterwards hee who is outlawed dieth there a Writ of Diem clausit extremum shall issue forth which proveth That by the death of the Husband the Lands are not immediately out of the King and setled in the Wife againe 22. E. 4. Fitz. Petition 9. Tenant in taile is attainted of Treason and the Lands seised into the Kings hands and afterwards Tenant in taile dieth without Issue he in the Remainder is put to his Petition which proveth that the Lands are not presently after the death of Tenant in taile without issue out of the King But he agreed the Cases If Tenant in taile acknowledgeth a Statute or granteth a Rent charge and dieth that the Rent is gone and determined by his death as it is agreed in 14. Assisarum The second point argued by Noy was That although that there was not any seizure or Offence found which entituled the King Yet the Deed enrolled in the Chancery which is returned in this Court did make sufficient title for the King as 8. E. 3. p. 3. is The Judges of Courts ought to Judge upon the Records of the same Courts In 8. H. 7. 11. a Bayliff shewed That a Lease was made to T. his Master for life the Remainder to the King in Fee and prayed in Ayd of the King And the Plaintiff in Chancery prayed a Procedendo And it was ruled That a Procedendo should not be granted without examination of the Kings title Thirdly he said That in this case he who will have the Lands out of the possession of the King ought to shew forth his title and in the principall case it doth not appear that the Defendant had any title Vide 10. H. 7. 13. Athowe Serjeant argued for the Defendant he said That in this case the King had an estate but for the life of Tenant in tail And therefore he said That If Tenant in tail grant totum statum suum that an estate but for his own life passeth as Litt. is 145. and 13. H. 7. 10. acc So If Tenant for life the remainder in taile bee and he in the Remainder releaseth to Tenant for life in possession nothing passeth but for the life of Tenant in tail 19. H. 6. 60. If Tenant in tail be attainted of Treason or Felonie and Offence is found and the King seiseth the lands he hath an estate but for the life of Tenant in tail And he cited 35. Eliz. C. 2 part 52. Blithmans case Where Tenant in tail Covenanted to stand seized to the use of himself for his own life and after his death to the use
to Thomas Spence and his Wife and the Survivor the Rent of seventeen Pounds yearly and every year during the terme Proviso that if the Rent be arrere by forty daies that Thomas and his Wife or the Survivor of them should enter Thomas Spence died his Administrator did demand the Rent and being denied entred for the Condition broken Calthrope argued That the reservation to the Wife was void because she had not any interest in the Land and also never sealed the Indenture of Assignment but was as a stranger to the Deed and so he said that the Wife could not enter for the condition broken nor make any demand of the Rent The 2l l Point was Admitting that the wife could not enter nor demand the Rent Whether the Administrator of the Husband might demand it and enter for the condition broken because the words are Yeilding and paying to Thomas Spence and Jane his Wife and the Survivor of them during the term and no words of Executors or Assigns are in the Case and he conceived the Administrator could not and so he said it had been resolved in one Butcher and Richmonds Case about 6. Jacobi Banks contrary and he said It was a good Rent and well demanded and the reservation is good during the Term to the Husband and Wife and although the word Reddendo doth not create a rent to the Wife because the Husband cannot give to the Wife yet the Solvendo shall gain a good rent to the Wife during the life of the Wife and the reservation shall be a good reservation to him and his Administrators during the Survivor Vide C. 5. part Goodales Case 38. E. 3. 33. 46. E. 3. 18. and admitting that the rent shall be paid to the Wife yet the condition shall go to the Administrator 2. The word Solvendo makes the Rent good to the Wife and amounts to an agreement of the Lessee to pay the Rent to them and the Survivor of them and that which cannot be good by way of reservation yet is good by way of grant and agreement and many times words of reservation or preception shall enure by way of grant Vide 10 E. 3 500. 10. Ass 40. 8. H. 4. 19. Richard Colingbrooks Case 41. E. 3. 15. 13. E. 2 Feasts and Fasts 108. Richardson Justice The Reservation being during the term is good and shall go to the Administrator Jones Justice contrary It is good only during the life of the Lessor and so was it adjudged in Edwyn and Wottons Case 5. Jacobi Crook Justice accorded The Administrator hath no title and the Wife is no party to the Deed and therefore the Rent is gone by the death of the Husband If it had been durante termino generally perhaps it had been good but durante termino praedicto to him and his Wife it ceaseth by his death And the words durante termino couple it to him and his Wife and the Survivor and it cannot be good to the Wife who is no party nor sealed the Deed neither can it inure to the Wife by way of Grant And the words Reddendo and Solvendo are Synonima and the Administrator is no Assignee of the Survivor for she cannot assign because she hath no right in the Rent Barkley Justice The intention of the parties was That it should be a continuing Rent and Judges are to make such Exposition of Deeds as that the meaning of the parties may take effect I do agree That the Wife could not have the Rent neither by way of Reservation nor by way of Grant if she were not a party to the Indenture but here she is a party to the Deed for it is by Deed indented made by the husband and wife and the husband hath set his Seal to it And 2. The Solvendo doth work by way of Grant by the intent of the parties The Reddendo shall go and relate as to the husband and the Solvendo to the wife and he agreed the Case 33. H. 8. Br. Cases because there expressum facit cessare tacitum but in case of a Lease for years the words Reserving Rent to him shall go to the Executor who represents the person of the Testator and 27. El. it was adjudged in Constables Case and Littleton agrees with it That the Executor shall be possessed and is possessed in the right of his Testator And therefore if an alien be made an Executor in an Action brought by him the Tryal shall not be per medâ—â—tatem lâ—nguae And this Case is the stronger because the Reservation is during the Term. And C. 3. part in Malleries Case That the Law shall make such a construction Upon reservation of Rent upon a Lease as may stand with the intent and meaning of the parties and therefore in that where an Abbot and Covent made a Lease for years rendring Rent yearly during the Term to the Abbot and Covent or to his Successors it is all one as if it had been to him and his Successors and although the words be joint or in the Copulative yet by construction of Law the Rent shall be well reserved during the terme for if the reservation had been only Annually during the terme it had been sufficient and his Successors should have had the Rent Quaere the principall Case for the Judges differed much in their opinions Hill 8. Caroli in the Kings Bench. 517 The KING against HILL AN Information was by the Kings Atturney against Hill and others upon the Statute of 32. H. 8. of Maintenance Where the Point was A man was out of Possession and recovered in an Ejectione firme in May 2. Car. and Habere Possessionem was awarded and 29. Sept. 4. Car. he sold the Land And whether he might sell presently or not was the Question And it was determined That he being put in possession by a Writ of Habere facias possessionem that he might sell presently Vide Com. Crookers Case and C. Littl. acc and so was it holden in Sir John Offley's Case 7. Car. in this Court Barkley Justice If a Disseisor doth recover in an Ejectione firme if he afterwards sell the Land it is a pretended Title Jones Justice It was adjudged 36. El. in the Common Pleas in Pages Case in the Case of a Formedon That if a man be out of Possession for seven years and afterwards he recover that he may sell the Lands presently Crook Justice There is a difference where the recovery is in a reall Action and where it is in an Ejectione firme It was Master Browneloes Case in the Star-Chamber resolved by all the Judges of England That a Suit in Chancery cannot make a Title pretended nor Maintenance Barkley Justice put this Case If Husband and Wife bargaineth and selleth whereas the Wife hath nothing in the Land and afterwards a Fine is levied of the same Lands by the Husband and Wife it shall have a relation to conclude the Wife and to make the Wife to have a Title ab initio It was