condition to re-enfeoff and she with her Husband makes the re-enfeoffment it is good so a Woman being Lessee for Life and with her Husband attorn upon a Grant of Reversion is good and shall binde the Wife after the Death of the Husband 3 Ed. 3. 42. 4 Ed. 3. Attornment 12. 15 Ed. 3. Attornment also this Estate was made to the Wife when she was sole and for that it shall be accounted her folly that she would take such a Husband that would forfeit her Estate but with that agreed the reason of the Booke of 20 H. 6. 28. Where a woman Tenant was bound by the ceasing of her Husband and so he concluded and prayed Judgment for the Plaintiff and so it was adjourned see another argument of this case in Michaelmas Tearm 9. Jacobi 1611. by Haughton and Nicholls Serjeants Pasch 9. Jacobi 1611. In the Common Bench. Pitts against Dowse IN an Ejectione firme upon not guilty pleaded The Case was this A man makes his Will by these words I bequeath all my Lands to my Son Richard except my Chauntery Lands And I devise all my Chauntery Lands to be devided amongst all my Children men and women alike except my Son Richard And if Richard die without Issue the remainder to A. My second Son the remainder to B. My third Son the remainder to C. My fourth Son the remainder to my next of blood and so from Heire to Heire And so likewise I would to be done upon my Chauntery Lands and Tenements in case all my aforesaid Children die without Issue Then I would the one halfe of my Chauntery Lands to remaine to the next of kin and the other half to the Hospitall of M. And the question was what estate the Heire of the eldest Son shall have in the Chauntery Lands and it was argued by Dodridge the Kings Serjeant that the Heire of the eldest Son shall have estate tayl in the Chauntery Lands the Devisor devises no estate to Richard his eldest Son in the Chauntery Lands nor limitts any estate of that in certaine and for that he seemed that the youngest Sons and Daughters shall be Tenants in Common for life and by this manner of Interpretation every part of the Will shall be for first he excludes Richard himselfe so that he shall have nothing in that and then by the Limitation to the younger Children to be equally divided between them makes them Tenants in Common see 28. H. 8. 25. Dyer 155. And he cited Lewin and Coxes Case to be adjudged Michaelmasse 41. and 42. of Eliz. Pasche 42. Eliz. Rot. 207. Where a man devises Lands to his two Sons to be equally divided and adjudged that they are Tenants in Common so devise to two part and part like and equally divided and equally to be divided is all one and for that there is no other words to make an estate of Inheritance it shall be an estate for life and the remainder shall be directed according to the estates limited of the other Land And he seemed that the words in the last sentence all my aforesaid Children shall extend to Richard his eldest Son as well as to the others and so all the Will shall stand in his force which may be Objected that Richard the eldest Son shall be excluded out of the Possession and for that see 6. Eliz. Dyer 333. 29. Chapmans Case and also he cited one case to be adjudged Trinity 37. Eliz. Rot. 632. betweene Bedford and Vernam where a man deviseth all his lands in Alworth and afterwards purchaseth other Lands in the same Town and afterwards one comes to him to take a Lease of this Land newly purchased which the Testator refused to Let. And said that these Lands newly purchased should goe as his other Lands And upon his Death bed adds a Codycell to his Will but saith nothing of his purchased Lands and adjudged that the purchased Lands shall passe and so concluded and praied Judgement Harris Serjeant that it is a new Sentence and Richard is excluded and it shall be a good Estate tayl to the youngest Children and foresayd Children shall be intended them to which the Chauntery Lands are limited see Ratcliffes case 3. of Coke adjudged that they shall be Tenants in Common by the devise to he equally divided and thall not be surviving but every youngest Children shall have his part in tayl though that the first words do not containe words of Inheritance yet the last words in case all my Children die without Issue declares his intent that they should have an estate tayl see the 16. of Eliz. Dyer 339. 20. Claches Case that when he hath disposed of part devised to Richard then disposeth of the residue and the sentence begins with And so likewise and that shall be intended in the same manner as he had disposed of the Lands devised to Richard for he hath devised the remainder otherwise that is to an Hospitall and so concludes and praies Judgement accordingly Coke cheife Justice saith that it was adjudged between Coke and Petwiches 29. Eliz. that if a man devise a house to his eldest Son in tayl and another house to his second Son in tayl and the third house to the third Son in tayl and if any of them die without Issue the remainder to the other two equally this shall be but for life for this enures to the quantity of the Land and not to the quality of the Estate And he said that Richard is excepted without question for it is but a Will and every of the youngest Sons therein shall have the Chauntery Land one after another and Richard shall have no part and the Chauntery shall have nothing till they all are dead and he likened that to Frenchams Case where Lands were given to one and to his Heires Males and if he died without Issue the remainder over the Issues Females shall not take though that it be if they die without Issue for expresse it makes to cease only and so it was adjourned Petoes Case PEto suffers a common Recovery to the use of himselfe for life the remainder to his eldest Son in tayl with diverse remainders over to the intent that such Annuities should be paid as he by his last Will or by grant declares so that they did not exceed the summ of sixty pound and if any of the said Rents be behind then to the use of him to whom the Rent shall be behind till the Rent be satisfied with clause of distresse Rent of twenty pound was granted to his youngest Son for his life the grantee distraines for the Rent and in Replevin avowes the Plaintiffe replâ—es that by the non-paiment the use riseth to the youngest Son by which it was objected that the Rent shall be suspended Quere if without demand or if the distresse shall be demanded or that the use shall not rise till after the distresse and to the distresse well taken and agreed by all that the Plaintiff shall take nothing by
for the intent of a Will must be certain and agreeable to Law and there must not an intent out of the words of the will be sought out and the whole Court held that the Plaintiff was barred YOung versus Radford Pasch 10 Jacobi Rotulo 1515. Action upon an Ejectment brought and the Jury found a speciall Verdict and the Case was that Elizabeth Rudford was possessed of a house full thirty years and she took a Husband the Husband and Wife morgage the Term the Wife dies and the Husband redeems the Land and marries another wife and then dies and makes his Wife Executrix and she maries the Lessor The Defendant takes Administration of the Goods of the first Woman and it was held void and Judgement for the Plaintiff PEttison versus Reel Pasch 12 Jacobi Rotulo 2350. An ejectment brought and Triall and Verdict for the Plaintiff and exception taken in arrest of Judgement to the Venire Facias because this word Juratum was omitted for the Writ was posuerunt se in illam and omitted the word Juratum and this was amended by the Court. When a Title is to be tryed upon an Ejectment and a Lease to be executed by Letter of Attorney the course is this that the Lessor do seal the Lease onely and the Letter of Attorney and deliver the Letter of Attorney but not the Lease for the Attorney must deliver that upon the Land and upon an Ejectruent brought of Lands in two villages of a house and forty Acres of Land in A. and B. and a speciall Entry in the Land adjoyning to the house to wit the putting in of a Horse which was drove out of the Land by the Defendant and this was adjudged a good Entry for the Land in both the Villages by the opinion of the whole Court ARden versus Mich. 12 Jacobi The Plaintiff delivers that whereas such a day and year at Curdworth in the said County did demise to the Plaintiff two Acres of Land with the Appurtenances in the Parish of C. and the Venire facias was of the Parish of C. and after a verdict exception was taken because it was not of Curdworth but it was adjudged good by the Court and to prove the Lease made Lanheston an Attorney swear that the Lessor sealed the Lease and subscribed it but did not deliver it and by word gave authority to one W. to enter into the Land and to deliver the Lease upon the Land to the Plaintiff as his Deed and by that authority he entred and delivered the Lease as his Deed to the Plaintiff and it was adjudged good MArsh versus Sparry Hill 14 Jacobi Rotulo 1859. An Ejectment brought ex dimissione G. W. and the Originall was made ex divisione and after a Triall Serjeant Hitchaw moved the Court that the Originall might be amended and make ex dimissione and the Court granted it and the Cursitor was ordered to amend it and also in the end of the Originall it was written Barnabiam and it should have been Barnabas and that also was ordered to be amended by the Court. CRadock versus Jones Trin. 14 Jacobi Rotulo 2284. An Ejectment brought upon a Demise made by Cotton Knight the Defendant pleads not guilty and a Challenge to the Sheriff and prayes a Venire facias to the Coroners because the Sheriff is cozen to the Plaintiff and shews how and because the Defendant did not deny it a Venire facias was awarded to the Coroners and after a verdict it was alledged in arrest of Judgement because it was not a principall Challenge and a Venire facias de novo awarded to the Sheriff PArkin versus Parkin 13 Hill Jacobi Rotulo 979. And Ejectment brought and verdict and after a Triall Exception taken to pleading of a Deed inrolled the Action was brought in the County of York and pleaded thus ut infra sex menses tunc proximos sequent coram milite uno Justic c. in West-Riding Com. Eborum ad pacem c. conservand Assign W. C. Clerico pacis ibidem debito modo de Recor. irrotulat and Exception was because the inrollment was not made according to the Form of the Statute because it did not appear that the Justice before whom the Deed was inrolled was a Justice of the Peace of the County of York but of the West-Riding and it was not alledged that the Land did ly in the West-Riding and note that the Defendants Plea in Barr was insufficient because the Defendant did not confesse nor avoid the Count and the Plaintif by his Replication doth not shew any Title to the Land because it did not passe by the inrollment and so he hath lost his Suit and although the Barr be insufficient yet notwitstanding the Plaintif shall not recover GReenely versus Passy Hill 5 Iacobi Rotulo 808. An Ejectment brought the Defendant pleads not guilty and the Jury found it Specially that one Woodhouse was seised of Land in Fee and did infeof the Husband and Wife to have and to hold to the said Husband and Wife and the Heirs of their bodies between them to be begotten by vertue of which Feofment the Husband and Wife were seised of the whole Land in Fee Tail to wit c. the Husband infeofs the youngest Sonne of the land in Fee and afterwards the Husband dies and the woman survives and afterwards she dies before any Entry by her made into the Land and further find the lessor to be the eldest son of their bodies and that the younger Son infeoffed the Defendant and afterwards the eldest Sonne entred into the Land and made the lease in the Declaration and whether the Entry of the eldest Son was lawfull or no was the question upon the Statute of 32 H. 8. that Fines or Feoffements made by the Husband c. during coverture be or make any discontinuance c. or be hurtfull to the said wife or her Heirs and Sir Edward Cook held that the Heir is not barred of his Entry by the Statute PAcy versus Knollis Trin. 6. Iacobi Rotulo 291. An Ejectment brought the Defendant pleaded not guilty and the Jury found it Specially and the question is upon the words of the Will to wit And I give to Katharine my Wife all the Profits of my Houses and Lands lying and being in the Parish of Billing and L. at a certain street there called Broke-street and the Jury found that there was not any Village or Hamlet in the said County called Billing and that the Land supposed to be devised lieth in Byrling-street no mans verbal Averment shall be taken or admitted to be contrary to the Will which is expresly set out in the Will If I have two Thomas to my Sonnes and I give it to Thomas it shall be intended my youngest Son because my eldest Son should have it by Discent the Will was held by all the Court to be good HEllam versus Ley Trin. 7. Jacobi rotulo 2718.
goes to issue upon it for if they discend to issue upon such a Plea and it be found against the Defendant it is peremptory and he shall loose the Land but upon demurrer it is not peremptory but onely to answer over Which mark VVOrkley versus Granger Mic. 5. Jacobi An Ejectment brought for two Houses and certain Lands c. And upon a speciall Verdict The case was one Heâ— Wels and his wife nere seised of a parcel of Land to them and the Heirs of their bodies begotten as for the joynture of the wife the remainder to the Heirs of the Husband in Fee the Husband bargains and sels the Land to Stamp and his Heirs in Fee And afterwards the Husband and one Winter leavie a Fine of that Land to another who grants that Land back again to Winter for one month the remainder to the husband and wife and the heire of their bodies to be begotten the remainder to the husband and his heirs The Husband dyes the Wife survives and makes a Lease to the Defendant for ninety nine yeers if she should so long live the woman dyes and the Plaintiffe claims under the bargainee and in this Case two points were debated First what Estate passed to the bargainee and Digges of Lincolnes Inne who argued for the Plaintiffe that the bargainee had a Fee simple determinable which issued out of both the Estates as it was held by Periam in Alton Woods Case And he said that the Proclamations upon the Fine are but a repetition of the Fine as it is held in Bendlones Rep put in the Case of Fines in Cooks 3. Rep. And see Pinslees Case for then for the same cause the Issue in tayl is bound although the Fine be levied by the Husband alone by the Statute of the 4. H. 7. and 32 H. 8. because he cannot claim but as Heir to the Father as well as to the Mother and therefore his Conveyance is bound and see 16. E Dyd 332. Husband and Wife Tenants in speciall tayl The husband is attainted of Treason and executed having Issue the woman dyes the Issue shall never have the Land And if husband and wife Tenants in speciall tayl And the Husband levies a Fine to his own use and devises the Land to his wife for life which remainded over rendring Rent the husband dyes the woman enters pays the Rent and dyes the Issue is barred for two causes first by the Fine which had barred his Conveyance of the intayl secondly by the Remitter waived by the Mother 18 Eli Dyer 531. See 5 H. 7. Assise Thorp and Tirrels Case Secondly the Lease made by the woman was determined by her death and it was said that the woman had not any qualitie of an Estate tayl but onely she might take the profits during her life within the Statute of 11 H. 7. And when she dyes the Estate is denised See Austens Case Doctor Wyat Tenant in tail leased for yeers And dyed without Issue the Lease was determined See first of Eliz title Executors And 31 H. 8. Dyer Where a Bishop made a Lease for yeers and afterwards makes another Lease to one of the Lessees c. And Fleming held that if the woman survived as under Tenant in speciall tayl and made a Lease for 21. yeers it is out of the Statute of 32 H. 8. and so it was adjudged in Wattes and Kings Case LAne versus Alexander Hill 5. Jaco The Plaintiffe declares in Ejectment upon a Lease made to him by Mary Planten for three yeers the Defendant saies c. that the Land is Copihold Land of the Mannor of H. in Norff. whereof the Queen Eliz was seised in Fee and long time before the Lessor had any thing there in Court such a day that J. S. her Steward at the Court c. granted the Land to the Defendant by Copie in Fee according to the custome and so justifies his entry upon the Plaintiffe The Plaintiffe replies and saies that long time before the Copy granted to the Defendant to wit at a Court of the Mannor held such a day the 43. Eliz the Queen by Copy c. granted the Land to the Lessor for life according to the custome by force whereof he entred and made a Lease to the Plaintiffe The Defendant by way of rejoynder maintained his barr and traverses with that the Queen at the Court of the Mannor by J. S. her Steward such a day c. granted the Land to the Lessor and upon this the Plaintiffe demurred in Law generally And Yelverton moved that the traverse was good in this Case upon the day and Steward and the difference is where the act done may indifferently be supposed to be done on the one day or the other there the day is not traversable as in the Case of a Deed made such a day there the day of the Deed is not traversable for it passes by the livery and not by the Deed. And the livery is the substance and the day but a bundance 10 E. 4. And the Law is the same if the day in trespasse wherein the day is not traversable For although it be done upon another day it is not materiall But when a man makes his title by an especiall kinde of Conveyance as in this case the Plaintiffe makes his title by one Copy there all that is concerned in the Copy is materiall and the party cannot depart from it for he claims not the Land by any other Copy but by that which is pleaded as is in the 18 H. 6. 14. where an Action is brought for taking his Servant and counts that he by Deed retained with him his Servant the Monday in one week in such a case it is a good plea for the Defendant to say that the Servant was retained by him such a day after without that that the Plaintiffe did retain him the Monday And the Law seems to be concerning Letters Patents wherein the day and place are traversable being the speciall conveyance of the party from which he cannot depart And also it seems that although the day in the principall case be traversed yet the Statute of 18 Eliz of Demurrers aids it it being but a generall Demurrer and the day being onely matter of form But the whole Court were of opinion that the day was not traversable in this case For the Queen granting an ancienter Copy to the Plaintiffs Lessor then to the Defendant and the traverse should have been without this that the Queen did grant in manner and form c. to the Plaintiffs Lessor and the Case is the same in the Letters Patents for there the traverse should be without this that the Queen granted in manner and form c. And the day and place shall not come into the traverse But Justice Fennor was of a contrary opinion for the Reason delivered by Yelverton before and he also and the Lord cheif Justice held it to be holpen by the Statute of 18 Eliz for it is but
that it was collaterall warrantry where in truth it was a lineall warranty and it was held naught because the warranty was in Law a lineall warranty the Case was that Land was givenby Feoffment made to the use of the Feoffer for life remainder in Tail Tenant for life dies Tenant in Tail had Issue a Son and two Daughters and the Father and Son joyn in a Feoffment with warranty and after the Father and Son die without issue and the Daughters bring a Formedon and this is a lineall warranty PIt versus Staple Trin 14 Jac. rotulo 112. Formedon in le discender against three which plead non-Tenure and issue thereupon joyned and found specially that two of them were Lessees for life the remainder to the third person and whether the three were Tenants as is supposed by the writ was the question and the better opinion was that it was found for the Demandant for the Tenants should have pleaded severall Tenancy and then the Demandant might maintain his writ but by this generall non-Tenure if any be Tenant it is sufficient but in some Cases the Precipe may be brought against one who is not Tenant as a morgagor or morgagee COmes Leicester versus Comit. Clanriccard In Formedon upon a Judgement given in part for the Demandant and part for the Tenant the Tenant brought a writ of Error and had a Supersedeas upon it and afterwards the Demandant prosecuted a writ of Seisin and delivered it to the Sheriff and he executed the writ and immediately afterwards the Tenant delivered the Supersedeas to the Sheriff and the Tenant moved the Court and prayed a writ of restitution and it was granted him because the Tenant had done his indeavour and had not delayed the prosecuting the writ of Error COmes Clanriccard Francisca uxor Ejus Demandants versus R. S. milit vicecomit Lyple for three messuages c. which R. late Earl of Essex and Frances late wife of the said Earl by Fine in the Court of the Lady Elizabeth late Queen of England before her then Justices at Westminster levied and gave to William Gerrard Esquire and F. Mills Gentleman and the Heires of the said W. for ever to the use of Elizabeth Sydney Daughter and Heir of P. S. Milir and the Heirs of the Body of the said E. comming and for default of such issue to the use of the said F. then wife of the said Earl and the heirs of the said Fr. and which after the death of the said Eliz. ought to revert to the said Fr. by form of the gift aforesaid and by force of the Statute in such case provided because the said Eliz. died without Heir of her Body The Tenant pleaded in abatement of the writ because the writ ought to revert to the woman alone and it should have been to the Husband and wife and upon a demurrer Judgement was that he should answer over the writ may be either to revert to the Husband and wife or to the wife alone and herein the Tenant vouch two vouches and one is Essoined and an idem dies given to the other and Serjeant Harris demanded of the Court if he should Fourcher by Essoin because the Statute of Westminster the first is that Tenants Parceners or Joint Tenants shall not fourcher in Essoin therefore they two should not fourcher by Essoin but the Court held that before appearance it could not appear to the Court whether they were Tenants or not and therefore before appearance they shall have severall Essoins and Westminster the first is expounded by Gloucester the tenth which is that two Tenants shall not fourcher after appearance and at the day of the adjournment of the last Essoin the Tenant was Essoined and such Essoin was allowed and adjudged by the whole Court and the reason hereof seemed to some to be because the Tenant might be informed of the Vouchee that he vouched was the same person or no for he might be onother person for if he should be an estranger and demand the place and the Demandant could not hold him to the warranty the Demandant should loose his Land and they held that upon severall Processe to wit upon the view and upon the summons to warranty which are divers Processes the Tenant ought to be Essoined and the Court held that this Essoin was at the Common Law if the Tenant and the vouchee at the day given to the Tenant and the vouchee make default Judgement shall be given against the Tenant to wit a petty Cape and nothing against the vouchee SHotwell versus Corderoy In Formedon the Tenant prayes in aid â—nd the prayee in aid and Tenant vouch and the Vouchee was essoined and adjourned and at that Day the Attorney of the Tenant without the Prayer in aid cast an Essoin and an Idem dies given the Prayee in aid and it was quashed for they shall not have severall Essoines but joynt Essoines A Formedon brought of Lands in A. B. C. The Tenant pleads a Fine of all by the name of the Mannour and Tenements in A. B. And it was objected that he said nothing to the Land in C. but the Courtheld that by the name of the Mannor the Land in all the Villages would pass and the Demandant may if he will plead as to the Land in C. that it was not comprised in the Fine Hill 7. Jacobi rotulo 76. vel 69. Formedon in the Discender the Writ was general that J. L. gave to T. L. and the Heirs Males of his Body upon the Body of D. V. Widow lawfully to be begotten which D. the said T. afterwards took to Wife and which after the Death of the said T. c. Son and Heir Male of the Body of the said T. upon the Body of the said D. lawfully begotten to the said J. L. younger Son and Heir of the said J. L. Son of the said T. ought to descend by form of the Gift aforesaid c. and whereof he saith that the said T. was seised c. and 2 Eliz. of the said Tenements did infeoff the Plaintiff in Fee to the use of the said T. L. and his Heirs c. and note in the Count no mention made of the Marriage If a Gift be made in tail to D. and his Heirs Males the Remainder to A. in tail D. discontinues in the Life of A. and D. dies without Issue and the Heir of A. brought his Writ as the immediate Gift to A. his Ancestor who never was seised in his Life and for that cause the Writ was naught but if A. had been seised of the Land then it had not been necessary to have shewed the first Gift to D. by the opinion of the whole Court Actions upon the Statute of Hue and Cry NEedham versus Inhabitant Hundredi de Stoak Trin. 8. Jac. rotulo 534. Action brought upon the Statute of Hue and Cry by the Servant who was robbed in his own name and part of the Goods
H. 6. 3. This priviledge by the canon which gives that shall be taken strictly And so is the opinion of their own expositors see Panormitan Canon 37. So that there is an apparant difference between that and the lands which came to the King by the statute of 31. H. 8. For by that the King is discharged of paiment of tythes and so are his Patentees It seems to me that the construction of the Cannon may be in another course different from the rules of the common law as it was ajudged in Buntings case that a woman might sue a Divorce without naming her Husband very well and 11. H. 7. 9. The pleading of the sentence or other act done in the spiritual Court differs from the pleading of a temporall act done in temporall Courts and 34 H. 6. 14. a Administration was committed upon condition that if the first Administrator did not come into England that he should have the Administration which is against the Common Law for there one authority countermands another and 42 Ed. 3 13. A Prior which hath such priviledge to be discharged of Tithes makes a Feoffment and his Feoffee payes Tithes to the Prior and this was of Lands which were parcell of the possessions of Saint Johns of Jerusalem and upon that he inferred that this priviledge is personall and if it be so it is determined by dissolution of the order as it is determined in 21 H 7. 4. That all Parsonages impropriate to them by the dissolutions are become prsentable and so of these which were annexed to the Templers for these shall not be transferred to Saint Johns though that the Lands are 3 Ed. 1. 11. By Herle accordingly Fitz. Natura Brevium 33 K. and 35. H. 6. 56. Land given in Frankalmaine to Templers and after transferred to Hospitallers of Saint Johns the priviledge of the Tenure is paid and so shall it be in case of Tithes being a personall priviledg that shall not be transferred to the King and to the Statute of 32. H. 8. The generall words of that do not extend to discharge the Land of Tithes though that the Statute makes mention of Tithes if there be not a speciall provision by the Statute that the Lands shall be discharged and this appears by the words of the Statute of 31 H. 8. where the general words are as generall and beneficiall as the words of this Statute and yet there is aspeciall provision for the discharge of the payment of tithes by which it appears that the generall words donot discharge that and so the generall words of 1 Ed. 6. are as larg and beneficiall as the generall words of the Statute of 31 H. 8. And yet this shall not discharge the Land of payment of Tithes and this compared to the Case of the Marquesse of Winchester of a writ of Errour that that shall not be transferred to the King by Attainder of Land in taile for treason by the Statute of 26 H. 8. or 33 H. 8. And so of rights of action and so it was adjudged in the time of H. 8. that if the founder of an Abby which hath a Corrody be attaint of Treason the King shall not have the Corrody and he agreed that the Hospitall of Saint Johns of Jerusalem is a house of Religion for this is agreed by Act of Parliament and the word Religion mentioned in the Statute more then seventeen times and also it seems to him that the Statute of 31 H. 8 shall not extend to that for this gives and establishes Lands which come by grant surrender c. And that shall not be intended those which come by Act of Parliament no more then the statute of 13 Eliz. extends to Bishops 1. and 2. Phillip and Mary Dyer 109. 38. The statute of Westminster the 2. chap. 41. Which gives Contra formam collationis to a common person founder of an Abby Priory Hospital or other house of religion without speaking expresly of a Bishop and yet it seems that this extends to an alienation made in Fee simple or Fee taile by the Bishop 46 Ed. 3. Forfeiture 18. But it is resolved in the Bishop of Canterburies Case 2 Coke 46 that the statute of 31 H. 8. shall not extend to these lands which come to the K. by the statute of 1 Ed. 6. to make them exempt from paying of Tithes and to the Case in 10. Eliz. that is but an opinion conceived and that the Prior hath this priviledge from Rome and that the Farmer shall pay Tithes and the question was in the Chancery and upon consideration of the statute of 31 H. 8. It seems that the Patentee himself shall be discharged as long as by his own hands he tills it and the statute of 32. H. 8. Upon which the state of the question truly consists was not considered and also it was not there judicially in question And to the case of Spurling against Graves in Prohibition consultation was granted for that that the statute was mistaken and so the award was upon the form of the pleading only and not upon the matter and so he concluded and prays consultation Houghton Serjeant to the contrary and he agreed that it is a personall priviledg and if the Order of St. Johns had been dissolved by death that then the priviledg shall be determined and this appears by the Stat. of 2. H. 4. 4. before cyted and also the case of 10. Eliz. Dyer 277. 60. did doubt of that but he relyed upon the manner words of pleading that is that Hospitallers are not held to pay Tithes it is as a reall composition made betwixt the Lord and another Spirituall person of which the Tenants shall take advantage as it is resolved in the Bishop of Winchesters case Also as if a man grant a Rent charge if the Grantee dye without Heir the grant is determined But if the Grantee grant that over and after dyes without Heir yet the Rent continues 27. H. 8. Or if Tenant in tayl grant Rent in fee and dies the grant is void But if he after suffers a recovery or makes a Feofment the Rent continues good till the Estate taile be recontinued as it is resolved in Capels case So here the order of Templers hath been determined by death the priviledg hath been determined but insomuch that the Land was transferred by Parliament to the King this continues Also the words of the Statute of 32. H. 8. are apt not only to transfer all the Interest which the Pryor had in his Lands but also his Priviledges and Immunities to the King and he agreed it is not material if the words Tythes are mentioned in the Statute or not But the word upon which he relyes and which comprehends this case is the word Priviledg which takes away the Law for where the Law binds them to pay Tithes the priviledg discharges them And the words of the Statute are taken in the most large extent that is all Mannors c. Priviledges
a Fee simple conditionall and not an Estate tayl and he said that the sole question was if the Statute of Westminster 2. conevrted and changed Fee simple conditionall of copy-hold into an Estate tayl for if it be not an Estate tayl within this Statute it shall not be an Estate tayl at all for Littleton saith before the making of the said Statute these Estates were Fee simple conditionall and for that cannot be by prescription also he said that copy-hold Estate was so base an Estate that at the Common Law a copy holder had no remedy but only in the Court of the Lord But as to Littleton who sayth that he may have a Formedon in discender to that he saith that the Heire which hath Fee simple conditionall may have it by the Common Law for this was at the Common Law before the making of that Statute of Westminster 2. As it appears by 4. Ed. 2. Formedon 50. 10. Ed. 2. Formedon 55. And by Bendlowes in the Lord Barkleys case in the Commentaries 239. b. by Benlose where it is said by him that a Formedon in discender was not at the Common Law but in a speciall case where an Assise of Mortdancester would not serve the Issue that is if a man had Issue a Sonn and his Wife died and after that he takes another Wife and Land was given to him and to his second Wife and to the Heires of their two Bodyes begoten and they have another Sonn and the Wife dies and after the Father dies and a stranger abates there he sayth that before the Statute the youngest Soon could not have an Assise of Mortdancester and for that he shall have a Formedon in discender which was no other but a writ founded upon his Case see 10 of Ed. 2. Formedon 55. And for that when Littleton speakes of an Estate tayl of copy-hold that ought to be understood of Fee taile which may be Fee simple conditionall and so Littleton may be reconciled 〈◊〉 will well agree with himself also it seems that Copy-hold is ouâ—â—f the intent and meaning of the Statute of Westminster 2. For at the common Law in ancient times this was base Estate and not more in reputation then villinage and also if such an Estate then might be created of that which shall be perpetuall and no means to barr it for surrender of that doth not make any discontinuance and Recovery was not known till 12. Ed. 4. and he saith that in ancient time the name of Copy-holder was not well known for in ancient time they were called Tenants in Villinage and Tenants by copy is but a new terme see Fitzherberts Natura Brevium 12. b. and the old Tenures fol. 2. and Bracton lib. 2. charter 8. In gifts made to servants calleth them Villaines and Sokemen and in the old Tenures it is said that the Lords may expell them and upon this he inferred that if it be so baseâ— Tenure though it be of Lands and Tenements yet they shall not be intended to be within the intent of the makers of the Statute of Westminster 2. and also by a second reason that is that it was not the intent of the makers of the Statute that this should extend to any Lands but only to those which are free Lands for the parties are called Donees and Feoffees and the will of the Giver should be observed according to the forme in the Charter of his gift manifestly expressed by which it appears that it ought to be of such Land of which a gift may be made and also the Statute provides that if the Donee levy a fine that in right it should be nothing by which also it appears as to him it seemed that it ought to be of such Land of which a fine may be levied And also for a third reason which was the great Inconvenience which would ensue upon it for then the Donees have no meanes to dispose of that nor give that for the advancement of his Wife nor her Issues and also the Lord shall loose his signiory for the Donee shall hold of him in Reversion and not of the Lord and it is resolved in Heydens Case 3 Coke 8. a. That when an act of Parliament alters the service Tenure Interest of the Land or other thing in prejudice of the Lord or of the custome of the Mannor or in prejudice of the Tenant there the generall words of such act shall not extend to Copy-holders see the opinion of Manwaod cheife Baron there and he agreed that admitting it shall be an Estate taile that then Surrender shall not make discontinuance and so he concluded and prayed Judgment for the Plaintiffe his Clyent see Hill and Vpchars Case which was adjudged in the Kings Bench and the principall case was adjourned untill the first Saturday of the next Tearme See Hillari 7. Jacobi in this Book in Replevin the Plaintiff was non-suited between the same parties See also Pasche 9. Jacobi 149. Hillary 1610. 8. Jacobi in the Common Bench. Wallop against the Bishop of Exeter and Murray Clark IN a Quare impedit the case was Doctor Playford being Chaplaine of the King accepted a Benefice of presentation of a common person and after he accepted another of presentation of the King without any dispension both being above the value of eight pound per annum if the first Benefice was void by the Statute of 21 H. 8. chapter 13. or not was the question for if that were void by the acceptance of the second Benefice without dispensation then this remaines a long time voide so that the King was intituled to present by Laps and presented the Plaintiff the Statute of 21 H. 8. provides that he which is Chaplain to an Earle Bishop c. may purchase license or dispensation to receive have and keep two Benefices with cure provided that it shall be lawfull to the Kings Chaplaines to whom it shall please the King to give any benefices or promotions spirituall to what number soever it be to accept and receive the same without incurring the danger penalty and forfeiture in this Statute comprised upon which the question was if by this last Proviso Chaplaine of the King having a Benefice with cure above the value of eight pound per annum of the presentation of a common person might accept another Benefice with cure over the value of eight pound also of the presentation of the King without dispensation the words of the Statute by which the first Church is made void are and be it enacted that if any parson or parsons having one Benefice withcure of Soules being of the yearly value of eight pound or above accept and take any other with cure of Soules and be instituted and inducted in possession of the same that then and immediately after such possession had thereof the first Benefice shall be adjudged in the law to be void See Hollands case 4. Cooke 75. a. This case was not argued but the point only opened by Dodridge Serjeant
Mannor held in cheife and of other Mannors and Lands held of a Common person in socage and had Issue foure Sonns Thomas William Humphrey Richard And by his Deed 12 Eliz. covenants to convey these Mannors and Lands to the use of himself for his life without impeachment of wast and after his desease to the use of such Farmors and Tenants and for such Estates as shall be contained in such Grants as he shall make them and after that to the use of his last will and after that to the use of VVilliam his second sonn in tayle the Remainder to Humphrey his third Son in tayle the Remainder to Richard the fourth Sonn in tayle the Remainder to his own right Heires with power of Revocation and after makes a Feoflment according to the covenant and after that purchases eight other acres held of another common person in socage and after makes revocation of the said Estates of some of the Mannors and Lands which were not held by Knights service and after that makes his Will and devises the Land that he had purchased as before and all the other Land whereof he had made the Revocation to Thomas his eldest son the Heirs Males of his body for 500. years provided that if he alien and dye without Issue that then it shall remaine to William his second sonne in tayle with the like proviso as before and after dyed and the Jury found that the Lands whereof no revocation is made exceeds two parts of all his Lands Thomas the eldest sonne enters the 8. Acres purchased as before and dyes without Issue male having Issue a Daughter of whom this Defendant claimes these eight Acres and the Plaintiff claims them by William the second Son And Dodridge the Kings Serjeant argued for the Plaintiff intending that the sole question is for the 8. acres purchased and if the devise of that be good or not by the Statute of 34. H. 8. And to that the point is only a man which hath Lands held in cheife by Knights service and other Lands held of a common person in Socage conveys by act executed in his life time more then two parts and after purchases other Lands and devises those if the devise be good or not And it seems to him that the devise is good and he saith that it hath been adjudged in the selfe same case and between the same parties And this Judgment hath been affirmed by writ of Error and the devise to Thomas and the Heirs males of his body for 500. years was a good estate tayle and for that he would not dispute it against these two Judgments But to the other question hee intended that the devise was good and that the Devisor was not well able to doe it by the Statute of 34. H. 8. And hee intended that the statute authoriseth two things 1. To execute estates in the life time of the party for advancement of his Wife or Children or payment of his debts and for that see 14. Eliz. Dyer and that may be done also by the common Law before the making of this statute But this statute restrains to two parts and for the third part makes the Conveyance voyd as touching the Lord But the statute enables to dispose by Will a parts where he cannot dispose any part by the Common Law if it be not by special Custome but the use only was deviseable by the common Law this was altered into possession by the statute of 27 H. 8. and then cometh the statute of 32. and 34. H. 8. and enables to devise the Land which he had at the time of the devise or which he purchased afterwards for a third part of this Land should remain which hee had at the time of the devise made and if a third part of the Land did not remain at the time of the devise made sufficient should be taken out of that but if the Devisor purchase other Lands after hee may those wholly dispose And for that it was adjudged Trin. 26. Eliz. between Ive and Stacye That a man cannot convey two parts of his Lands by act executed in his life time and devise the third part or any part so held by Knights service and also he relyed upon the words of the statute that is having Lands held by Knights service that this shall be intended at the time of the devise as it was resolved in Butler Bakers Case That is that the statute implies two things that is property and time of property which ought to be at the time of the devise But here at the time of the devise the Devisor was not having of Lands held by Knights service for of those he was only Tenant for life and the having intended by the statute ought to be reall enjoying and perfect having by taking and not by retaining though that in Carrs Case cited in Butler and Bakers Case rent extinct be sufficient to make Wardship yet this is no sufficient having to make a devise void for any part Also if the Statute extend to all Lands to be after purchased the party shall never be in quiet and for that the Statute doth not intend Lands which shall be purchased afterwards for the Statute is having which is in the Present tence and not which he shall have which is in the Future tence and 4. and 5 P. and M. 158. Dyer 35. A man seised of Socage Lands assures that to his Wife in joynture and 8. years after purchases Lands held in cheife by Knights service and devises two parts of that and agreed that the Queen shall not have any part of the land conveyed for Joynture for this was conveyed before the purchase of the other which agrees with the principall case and though to the Question what had the Devisor It was having of Lands held in Capite insomuch that he had Fee-simple expectant upon all the estates tayl he intended that this is no having within the Statute but that the Statute intend such having of which profit ariseth and out of which the K. or other Lord may be answered by the receipt of the profits which cannot be by him which hath fee-simple expectant upon an estate tayle of which no Rent is reserved and also the estate tayle by intendment shall have continuance till the end of the world and 40. Edw 3. 37. b. in rationabili parte bonorum it was pleaded that the Plaintiff had reversion discended from his Father and so hath received advancement And it seems that was no plea in so much that the reversion depends upon an estate tayle and upon which no Rent was reserved and so no advancement So of a conveyance within this Statute ought such advancement to the youngest sonne which continues as it is agreed in Binghams Case 2 Coke that if a man convey lands to his youngest sonne and he convey that over to a stranger in the life time of his father for good consideration and after the Father dies this
shall be barred And the second those which have Right title or interest accrued after the Fine levied by reason of any matter which preceded the Fine and in both cases the Estate which is barred ought to be turned into a right or otherwise it shall not be barred the which cannot be here for the estate is given by the Custome and it is to have his beginning after the Death of the first Tenant and though that the first Tenant commit Forfeiture yet he in remainder cannot enter for his time is not yet come as in 45 Ed. 3. is a collaterall Lease with warranty to the Tenant for life in possession this shall not be a barr insomuch that it is made to him which hath possession so if a man make a Feoffment upon condition and the Feoffee levy a Fine with proclamations and five yeares passe and the condition is broken the Feoffee may enter at any time otherwise if the Fine had been levied after the condition broken and so if the Lord be intituâ—ed to have Cessavit and Fine is levied by the Tenant and five yeares passe he shall be barred and this was the cause of the Judgment in Saffins case insomuch as the Lessee had present interest to enter and this was altered into a Right by the Feoffment and then the Fine was a Barr but here he in Remainder hath no right till after the Death of him which was the first Tenant and then his right to the possession begins and then if a Fine had been levied with proclamation this shall be a Barr and so he concluded that Judgment should be entered for the Plaintiffe Coke cheife Justice accordingly and he agreed also that the sole question is if by acceptance of a Bargaine and sale by the first Tenant for life the Remainder be turned into a right and he sayd that right sometimes sleepeth but it never dyes but this shall be intended the right of the Law and not right of Land for that may be barred by Writ of Right at the Common Law and he intended that Copy-holdes are within the Statutes of Fines be they Copy-hold for life yeares in tayl or in fee for the third part of the Realme is in Copy-holdes and two parts in Lease for yeares and if these shall not be within the Statute then this doth not extend to three parts of the Realme and it is agreed in Heydons case 3 Coke 8. a. That when an act of Parliament doth not alter the Tenure Service Interest of Land or other thing in prejudice of the Lord or of the custome of the Mannor or in prejudice of the Tenant there the generall words of such act of Parliament shall extend to Copy-holds and also it is resolved to be within the Statute of 32 H. 8. Of Maintenance and also it is within the expresse Letter of this which containes the word Interest and Copy-holder hath interest and so also of Tenant by Statute Merchant then the question will be if the acceptance of a Bargaine and sale turnes that to a right and he intended that his Estate for life remaines though that it is only passive in acceptance of Bargain and sale and for that it shall not be prejudice more then if Tenant at will accepts a Bargaine and Sale for his Estate at will this notwithstanding remaines but if Lessee for years or life accepts a Fine upon conusance of right this is a forfeiture insomuch that it is a matter of record and it shall be an estoppel to say that he did not take Fee by that doth not admit the Reversion to be in another also insomuch that the Bargain and sale was executed by the Statute for this cause it shall not be prejudice as it was adjudged in the Lady Greshams case in the Exchequer 28 Eliz. Where two severall conveyances were made with power of Revocation upon tender of ten pound and adjudged by act of Parliament that a revocation was good and also that no license of alienation shall be made insomuch that it was by act of Parliament which doth no wrong and it is for the Trespasse for which the party ought to have license and if it be not Trespasse there need no license before hand nor pardon afterwards So if a man makes a Lease for yeares remainder for yeares the first Lessee accepts Bargaine and Sale this shall not turn these in remainder to prejudice Thirdly it seemes to him also that notwithstanding the acceptance of the Bargain and Sale the first Copy-hold Estate for life remains in Esse and is not determined For this differs from an Estate of Land for it shall not be subject to a Rent granted by the Lord the first Estate remaines till all the remainders are determined for the first tenant for life cannot surrender to the Lord also it is customary estate for by the Common Law this being granted to three successively this shall be determined and extinct for the third part for they three take into possession and the word successively shal be taken as void but here the Custome appoints that the remainder shall not have his beginning till the death of the first-Tenant and that they should take by succession and for that there is a difference between this customary Estate and other Estates at the Common Law and other surrenders for if a Copy-holder surrender to the use of another for life nothing passeth but for life only the Lord hath not any remainder by this Surrender and if this Tenant for life commits forfeiture he in reversion shall not take advantage of that and if at the Common Law Tenant for life remainder for life or in fee be and the first Tenant for life makes a Feoffment and after levies a Fine and resolved that he in reversion should not be bound till 5 years are incurred after the death of the 1. Tenant for life for then his title of Entry first accrues in apparancy and before that is in secrecy of which he in remainder is not held to take notice and so in this case he in remainder shall not be bound till five yeares are incurred after the death of the first Tenant and the rather insomuch as the first Estate remaines for that that the first Tenant was only passive and not active and so he concluded that Judgement shall be given for the Plaintiff insomuch that the Fine was no Bar and upon this concordance of all the three Justices in opinion no other Justices being present this Tearm Judgment was entered accordingly Pasche 1612. 10. Jacobi in the Common Bench. Danyell Waters against the Deane and chapter of Norwich IN covenant The case was this in 37 H. 8. the then Deane and Chapter of Norwich made a Lease to one Twaits for fifty yeares which ended 35 Eliz. in time of Ed. 6. The then Dean and Chapter surrendred all their possessions to the King which those newly endowed and incorporated by the name of Deane and Chapter of the foundation
against three Executors two of them are out lawed and the third pleads and Verdict against him and it was resolved that the Judgement shall be against all by the Statute of 9. Ed. 3. for they all are but one Executor and the Cost shall be against him which pleades if the others confesse or suffer Judgement by default And there shall be but one Judgement and not diverse see 17 Ed. 3. 45. b. 11 H. 6. Upon a Venire Facias awarded the Sheriff returnes but 21. and the Habeas Corpora was against 21. only and this was also returned and upon that ten appeared and upon this Tales was awarded and triall had and but ten of the principall Pannell sworne And this was Error but if twelve of the principall Pannell had appeared and served it seemes that it shall not be error for so it was resolved in Graduers case where twenty three were returned but twelve appeared and tryed the Issue and this was resolved to be good and no error Michaelmasse 7 Jacobi 1609. In the common Bench. Buckmer against Sawyer A Man seised of Land in Gaelvelkind hath Issue three Daughters that is A. B. and C. deviseth all his Land to A. in tayl the remainder of one halfe to B. in tayl the remainder of the other halfe to C. in tayl and if B. died without Issue the remainder of her Moytie to C. and her Heires and if C. died without Issue the remainder of her Moytie to B. and her Heires the Devisor dies A. and B. dies And the question was if C. shall have a Formedon in remainder only or severall Formedons for this Land And it seemed to all the Justices that one Formedon lieth well for all for that that it was by one selfe same conveiance though that the Estate come by severall deaths and this Action was to be brought by the Heire of C. after the death of C. See the three and four Phil. and Mary Dyer Note that after appearance of a Jury and after that divers of them were sworn others were challenged so that it could not be taken by reason of default of Jurors But a new Distringas awarded and at the day of the returne of that these which were sworn before appeared and then were challenged But no challenge shall be allowed for that that they were sworn before if it be not of after time to the first appearance Michaelmasse 7. Jacobi 1609 In the Common Bench. Baylie against Sir Henry Clare BAYLIE against Sir Henry Clare the Writ was of two parts without saying in three parts to be divided And it seemed to Nicholls Serjeant which moved this that it was not good but error But the opinion of the Court was that it was good See 17. Ed. 3. 44. 19. Ed. 3 breife 244. 17. Assise with this difference that if there are but three parts and two are demanded there it is good without saying in three parts to be devided for when parts are demanded it is intended all the parts but one and that it is only one which remaines see the Register fol. 16. 12. Assise And it was adjudged in the Kings Bench in the case of one Jordan that demand of two parts where there are but three parts is good see 39. H. 6. Salford against Hurlston in Formedon which demanded two parts where there is but three and so of three parts where there is but four it is good without saying in three or four parts to be divided But if a man grant his part this shall be intended the halfe for Appellatio partis dimidium partis contenetur and a Writ of Covenant ought to be of two parts without saying in three parts to be divided for so is the forme and if in such case in three parts to be divided be incerted the Writ shall abate see Thelwell in his digest of Writs 146. and by Coke if a man bring Ejectione Firme for ten Acres and by evidence it appeares that he hath but the halfe Ex vigore Juris it shall not be good but he said he would submit his opinion to the Judgement of ancient Judges of the Law which have often time used the contrary Note that the Husband may avoid his Deed that he hath Sealed by the duresse of Imprisonment of his Wife or Son But not of his Servant and so Mayor and Commonalty may avoid a Deed sealed by duresse of Imprisonment of the Mayor for it is Idemptity of person between the Husband and the Wife See 21. Ed. 4. and 7. Ed. 4. A man may avoid Seâ—sin for payment of Rent by coersion of distresse but not his Deed. Michaelmasse 7. Jacobi 1609. In the Common Bench. Payn and Mutton IN an Action upon the case by Payne against Mutton the Plaintif counts that the Defendant called him Sorcerer and Inchantor And agreed by all the Justices that Action doth not lie for Sorcerer and Inchantor are those which deale with charmes or turning of Bookes as Virgill saith Carminibus Circes socios mutavit ulissis which is intended Charmes and Inchantments and Conjuration is of Con et nico that is to compell the Divell to appeare as it seemes to them against his will but which is that to which the Devill appeares voluntarily and that is a more greater offence then Sorcery or Inchantment which was adjudged that Action doth not lie for calling a man Witch and said that he bewitched his Weare that he could not take any Fishes Dodridge the Kings Serjeant saith that an Action lieth for calling a woman gouty pockye Whore and said that the Pox had eaten the bottome of her Belly out and so it was adjudged that it lieth well for these words get thee home to thy pokey Wife the Pox hath eaten off her Nose But for the Pox generally Action doth not lie But if he saiâ—h that he was laid of the Pox then Action well lieth for then it shall be intended the great Pox. Note that in Prohibition and Replevin the Defendant may have nisi prius by Proviso without default of the Defendant for he himselfe is re vera Defendant and there are two Actors that is the Plaintiff and Defendant But the Court appointed that Presidents should be searched the Plaintiff is not bound to prosecute Cum Effectu in this Court as he is in the Kings Bench And it was agreed that the manner of Pleading was agreement as for Returno Habendo in the Replevin and Pro consultatione habenda in the Prohibition Michaelmas 7. Jacobi 1609. In the Common Bench Miller and Francis MYLLER Plaintiff in Replevin against Thomas Francis the case was Richard Francis was seised of Land held in Socage and deviseth that to John his eldest Son for a hundred yeares the Remainder to Thomas his second Sonn for his life and made his four other youngest Sonns his Executors and after made a Feoffment to the sayd uses the Remainder to the sayd John his eldest Son in tayl
which was Obligamus nos vel quemlibet nostrum adjudged to be joint and severall at the Plaintiffs Election Action of Debt upon an Obligation to perform an award and the breach assigned for exhibiting a chancery Bill and adiudged no Breach Action of Debt for Tithes the Defendants time ended before the Coâ—n carried yet held good for the Plaintiff An Action will lie against a stranger that shall carry away the Corn before the Severance Dower may be brought against the Heir or Committee of the Ward Nota. He in Reversion received after Default made by Tenant for Life Return of the Sheriff adjudged insufficient being too general No Writ of Error lies untill the value be inquired upon Implication not good in a Surrender though it be in a Will Challenge because the Sheriff married the Daughter of the Lessors Wife and held no cause Nota. How to execute a Lease to try a Title the Land being in many mens hands Originall against four and count against 3. without a Simulcum and held naught The intent of a will must be certain and agreeable to Law Nota. How to execute a Lease by Letter of Atturney A Venire facias of the Parish adjudged good A mistake of the Cursitor in the Originall amended after Triall Nota. Though the Defendants Plea be naught yet the Plaintiff shall not recover because he shewed not any Title by his replication The question is upon the Statute of 32 H. 8 upon Feoffements made by Husbands during the coverture A verbal averment shall not overthrow a will The mistaking of the Town not hurtfull in a Will Property of Goods cannot be in obayance Difference between Prescription and Custome Copihold Land cannot be demised for three years without license or custome Record of Nisi prius amended by the Roll. Concord with satisfaction a good Plea in Eiectment Misconveyance of process what it is and helped by the Statute A feme covert cannot make a Letter of Atturney to deliver a Lease upon the Land When a demand shall be made to the person and when upon the Land A Lease made to three for their lives with a Covenant that the Land should remaine to the survivor of them for ninety yeares a good interest in the survivor A precise Verdict makes the Declaration good which otherwise is naught A demand of Rent to avoid a Lease upon a condition ought to be in the most open place After an Imparlance cannot plead in abatement 22 H. 6. 6. Foxlies Case 5 Rep. 111. The day of a Copihold of Court roll traversed and adjudged naught Houses in London passe by the delivery of a bargain and sale without inrolment An Ejectment will not lye de aquae cursu A Servant is a sufficient Ejector if he dwell with the pretended owner He that is a Purchaser of Copihold hath nothing in it nor can he surrender to another before admittance How an Abatement shall be traversed 1 E. 4. acr 1 E. 4. 9. acr The Bill amended after a Writ of Error brought and before the Record was removed Where the Prenomen destroyesthe quantity inthe declation Where words in a Declaration shall be voyd rather then the Declaration shal be voyd Nonage shall be tryed where it is alleadged and not where the Landlyes Essoin lies in a writ brought by Journes account although he was essoined upon the first Writ By Deed an implicationbe intended Nota. By the Name of a Mannour the Land in all the Villiages will pass Nota. Action brought by the Servant in his own name part of the Goods being his Masters Nota. Nota. The Record of Nisi prius amended upon motion The Process in Partition Error in Partition upon the first Judgement Defendant pleads he had brought a Writ for the same land and adjudged no plea. Process in a Quare Impedit Exception taken to the Venire and over-ruled Severall Quare impedits may be brought against severall men Admittance of a Resignation by fraud takes not away the Kings Title The state is determined by the death of Tenant in Tail A presentment by words good Nota. A subsequent debt to the Qu. related to award an assurance made upon good consideration The King hath lost his presentation by the Clerks death Defendant pleads another writ depending against the said Bishop good The Bishopsplea shall not prejudice the Incumbent Nota. Liberty to make Leases A devise for years in confidence the condition must goe to the estate and not to the use The scisin of rent reserved upon a Feosment within the time of limitation not to be traversed Nota. The beast of a stranger shall not be distreined for rent except they have been upon the land some time Demand not necessary in a Replevin for rent Nota. Exctâ—tion to the advowry too late after judgment entred Replevin not within the statute of 3. Iac. Iudgment arrested for that the plea was naught Nota. Nota. The Plea naught for want of amendment Amends made to the Bailiff not good If one inclose part it is an Extinguishment of Common for cause of vicinage Avowry amended after Entry by consent One of the Juroâ—s names mistaken in the Pannell of the Return and amended upon the Sheriffes Oath that he was the same man If two men distrain one Mare and both have Judgement no Return Court Baron in order to the Mannor Nota. Nota. A lease for life to three to hold successively naught The pannell of the Habeas Corpus amended upon Oath Nota. Atturnment not necessary for a Copy-holder Demand necessary for a Nomine pene Common Appurtenant and purchase part the Common is gone but not if Appendant Nota. Nota. Demand of Rent service upon the Land sufficient Nota. A Commoner may take the cattell of the Lord damage fesant Judgment arrested for not shewing in what place the Messuage did lye to which the Common did belong Common when the field and acres unsown the sowing of parcell shal not debar him of his common in the residue When a Deed is perfected and delivered as a Deed one agreement after pleaded in defeasance thereof and when the agreement is parcell of the Original contract it may be pleaded The Defendant in his Demurrer â—nswers not the whole Declaration and Judgement reversed The mistake of the day of an Act by way of Bar not prejudiciall A confession after an issue joyned refused A Constable cannot detaine one but for Felony Marshalsey hath no authority to hold plea in debt except both are of the Houshold Judgment before a wrong Officer erroneous The Court could not mitigate damages in trespass which was locall The Defendant justifies the imprisonment by the command of the Maior of London and naught Just of Peace cannot command his servant to arrest in his absence without warrant in writing If a servant be beaten dye the Mr. shall not have an action for the losse of his service Declaration shall not abate for false Latin A man cannot prescribe to be a Justice of the Peace If
the Rent is gone If I make a Lease for Life reserving a Rent to me and my Executor neither the Executor nor the Heir shall have the Rent Justice Walmsley held this difference in making a Lease to two during their Lives if one die the other shall have it otherwise it is if it be made to one during the Life of two and one of them die in this case the Lease is ended and there is difference between a reservation of Rent and Lease for Reservation is according to the will and pleasure of the Lessor and Justice Walmsley said if a Lessee for years granteth a Rent to A. during the Life of B. and C. this Reservation is good although one should die which Sir Edward Cook denied and Judgement was given for the Plaintiff in Hills case If I make a Lease for years reserving a Rent and then I grant demise and to farm let Reversionem domus for years and the Rent to have and to hold the Reversion and the Rent from a time past if the Lessee cannot get an Attornement yet it is a good Lease in Reversion and shall take effect after the end of the first Lease habendum terram habendum reversionem est terra revertens and no difference If the Husband with his own money purchaseth for his Wives Joynture Land to them and the Heirs of their two Bodies the Remainder in Fee to the Wife and they have Issue two Sons and the Husband dieth and the Wife suffereth a Recovery to the use of the youngest Son the eldest Son notwithstanding shall have the Land by the Statute of Joyntures Hill 6. Jac. If I set-out my Corn and after take it away the Parson may sue me in the Spiritual Court or bring an Action of Trespass against me but if the Parson sue in the Spiritual Court a stranger for taking away the Tithes which were set out this is a Praemunire in the Parson Tenant at will shall pay his Rent when he holdeth over his terme but Tenant at sufferance shall not pay any Rent if a man hold over his terme and pay his old Rent he shall be accounted Tenant at will For one joynt Debt for one Contract you cannot plead Nil debet for part and demur for the rest for he pleads Nil debet and the matter in Law is reserved Licet saepius requisit is a sufficient Request upon a Bond because it is a Debt Unto an Action brought against a man upon a Bond pleads Denis age the case was this that when the Obligation was sealed and delivered the Defendant was of full age but at the time when the Bond bore Date he was under age and at the Assises the Judge there ruled that at the time of making the Bond was when the Bond was sealed and not when it bore Date The Court were of opinion that where a Bishop holds Land discharged of Tithes and he makes a Feofment of the Land the Feoffee shall be discharged of Tithes and the like if the King hath ancient Forest-land discharged of Tithes and the King grants this Land the Grantee is discharged of Tithes and it is a general Rule that he which may have Tithes may be discharged of Tithes If I let Land for years reserving Rent if I command one to put his Cattle into the Land I cannot distrain them for my commandement is a wrong and an Action of case will lie against the commandor If I make a Lease and bid the Tenants cut down the Trees yet I may have an Action of waste against my Lessee In Sir Cheydens case the commandment to take Possession was void unless he had commanded him to expell the Tenant and then he might joyn either to distrain or bring an Action of Debt for the Lease was made by him and two more 28 H. 8. If I make a Lease to the Husband and Wife covenant to do no waste or repair Houses and the Husband dieth and the Wife surviveth and holdeth in if the Wife commit waste or not repair the House no Action lieth against the Wife but to such a Lease the Wife is tied to pay the Rent or to perform a condition made by the part of the Lessor but not observe or perform Covenants of the Lessee Pasch 10. Jacobi The Court much doubted whether one that had a Park and was used to pay one Shoulder of Deer for all manner of Tithes and the Park is dis-parked should now pay Tithes in kinde or not For Wooll and Lamb no Action upon the Statute for not setting out of Tithes for they are no predial Tithes and no Action lies upon this Statute for small Tithes An Administration granted durand minori aetate execut is not within the Statute of 21 H. 8. And by the Civil Law the Judge may after Administration by him granted revoke it and grant it to another And if an Administration be granted to a Feme Covert yet she shall sue in their Court as a Feme sole One Briefly married an Administratrix and entred into Bonds for the Intestates Debts and afterwards the Wife leaveth her Husband and refuseth the Administration and it was granted to another and now B. prayeth a Prohibition for that he may be sued for Debts and denied by the Court untill he be sued This Administration was first granted by Doctor B. and after by him revoked and a new granted by him to the Wives Brother and afterwards he revoked that and established the first Administration and the Appeal A Feofment in Fee by Deed indented Rent reserved it is good but without Deed cannot reserve Rent If Land be devised by three upon condition to pay them 100. l. equally to be divided and one of them dieth his Executor or Administrator shall have the Money and so it is if one were bound to pay Money The Commissary granted Administration of the Intestates Goods to the Wife and did make a Divident of his Estate to some of the rest of his Kindred and this was-held not to be warranted by Law and more then the Ordinary could do because the Administratrix is chargeable to pay all Debts and Promises of the Intestate and to bring up his Children which she cannot do if the Goods be taken away Vbi delinquit ibi punietur If a Copy-holder of Inheritance accept a Lease for years of his Copy-hold the Copy-hold is gone by the opinion of the whole Court If a Legacy be granted of Land this shall not be sued for in the Spiritual Court but if one by Will devise Land to be sold for payment of Legacies this shall be sued for in the Spiritual Court by the opinion of the whole Court If two Fulling-mils be under one Roof and a rate-tithe paid for the Mils and after you alter these Mils and make one a Corn-mill your Rate is gone and you must pay Tithes in kinde or if you have but one
pair of Stones in your Mill and pay a Rate for them then if you put on another pair of Stones new Tithes must be paid in kinde If one in Fee make a Lease for Life and after granteth a Rent-charge if the Grantors Cattle come upon the Ground I may distrain them although I cannot distrain the Tenant in Possession but the Grantor cannot avoid it If the condition of a Bond be to discharge a Messuage of all Incumberances then one may plead generally that he did discharge it of all Incumberances but if it be to discharge it of such a Lease then I must shew how If a man devise his Trees to his Executors to pay his Debts the Executor must in convenient time cut down the Wood. And so if a man sell his Trees the Vendee must sell them in a convenient time If I grant you out of my Mannour 10. l. per ann and recite but five pounds the Recitall shall not diminish the Grant And so if I grant you ten pounds out of my Mannor and recite 20. l. this shall not inlarge it If I infeoff two of Land habendum to me in Fee and habendum to the other in Fee they are Tenants in common In the Court of Wards one Dymack was a Purchasor by Bargain and Sale and before inrolment D. dies and after his Death the Indenture was inrolled the Question was whether his Son shall be in Ward for the Land and it was adjudged that he is Heir to the Land and is in by the Statute of 27 Eliz. of Bargains and Sales and not by the Statute of Uses My Lord Hobard held that if an Executor pay a Bond made upon a usurious Contract it shall be a Devastavit in the Executor and if he be bound to present one to a Church and he present one upon a Simonaical Contract the Bond is broken Hill 10. Jac. Resolved if one make a Lease of a Mannour reserving Rent and afterwards the Lessor grants the Reversion of forty acres thereof now if an Action of Debt be brought by the Grantee he may aver the rate of the Acre and if the Defendant plead Nil debet per patriam the Jury shall rate the value and although the value be found less by the Jury then the Plaintiff surmiseth yet the Plaintiff shall recover after the proportion For Acts in Law no Attornement is necessary as if a Lease made for years reserving a Rent which is assigned to a Woman for Dower she shall have the Rent without Attornement In Cambels case upon an Elegit returned that the Lessor was seised in Fee and that by vertue of the Judgement the moity was delivered to the Plaintiff and for the Rent reserved upon the Lease for years before Judgement If a man top a Tree under the growth of 21. years and suffer the body to grow and afterwards when the boughes are grown out again he doth lop and top it again I shall pay no Tithes although the Tree was not priviledged at the first cutting by the opinion of the whole Court If a Debt be recovered in a Court of Record that Debt cannot be assigned over to any man by the opinion of the whole Court Mich. 10. Jac. Pasch 14. If Money be to be paid upon proof made there the triall shall be the proof to be made before but if it be to pay Money within 3. Moneths after proof there proof must be made first but if it be upon proof before A. then proof being made before A. this extending proof shall tie the party but Warburton held the contrary and he resembled this to a surmise to have a prohibition which is no binding proof for the Jury may pass against the proof in the surmise when a Bond is to pay Money upon proof this is a legal proof by Law if it be laid generally to be paid by proof if it were by proof before two Justices or two Aldermen this shall be intended a sufficient proof when the Action shall be brought upon the Bond and if the Defendant say that due proof was not made then they shall say that before the two Justices c. it was proved by testimony before them and then the Judges shall judge whether it be a sufficient proof or not If I devise Lands to my Executors for three years for the payment of my Debts this is Assetts in the Executors hands but if I devise my Land to be sold for the payment of my Debts it is no Assets before it be sold Mich. 9. Jacobi It was held in the Common Pleas by the whole Court that in the Kings case the consideration of the Money paid is never to be proved Likewise in a common case of Bargain and Sale in consideration of Money paid where in truth none was paid yet it is good and the Bargainee is not tied to prove the Payment for the Bargainer may have an Action of Debt If a Legacy be granted out of Leases and a Suit in the Spiritual Court for this shall not be prohibited but otherwise it is if it were out of Fee Simple Lands HE le versus Frettenden Resolution upon two Cases upon the Statute of E. 6. for not setting forth of Tithes Videlicet A man possessed of Corn sels it and before two Witnesses sets out his Tithes and afterwards privately takes away his Tithes and the Parson sues him upon the Statute of treble Damages for not setting forth of Tithes and the Defendant proves by Witnesses that he set forth his Tithes yet this Fraud is helped for the words are without fraud or deceit In the second case one secretly sels his Corn to one who was not known and afterwards the Vendee commands the Vendor to cut the Corn which he doth and takes away the whole Corn without setting forth his Tithes and the Question was who should be sued for the Tithes and the Court held the first Vendor should be sued for it was fraudulent If a man be found guilty of Felony and after receives his Pardon he shall not be Legalis home to pass upon a Jury If a Venire facias be against an Arch-bishop the Venire facias shall be Tam milites quam alios liberos c. because he is a Lord of the Parliament If a man be obliged in a Statute staple his Copy-hold Land is not extendable but it is upon a Statute of Bankrupt If a man have Common in three Acres and purchase one of the three Acres his Common is extinct If a man of the Cinque Ports shall come to London he may be there arrested and shall not have the Priviledge of the Cinque Ports Difference between those things which are in the Prender and such things that are in the Render for if I take not such things as are in Prender according to my Prescription it is void If I have Estovers in Woods to be taken every other year if I
omit to take them every other year I cannot take them in the third year But for Rent and such other things that are in the Render I ought to have it when ever I demand it as it best pleases me And note that in such case one prescribed for eight Loads of Wood to be cut and taken as appertaining to a Messuage which was held naught by the whole Court for the Prescription should be laid for Estovers to be imployed upon Repairs of the said Messuage or to be spent in it for a man cannot prescribe to have a Prescription to come and cut down my Wood which is as much as I that have the Free-hold can do For the claim to take and sell my Wood cannot be good And the Court held it a good Prescription to prescribe to have Common every other year although you shew not the Commencement as to shew what time of the year when it begins If a man hath Common of Pasture in divers Closes and parcels of Ground where he hath some Land of his own there and in all other cases where one is to prescribe he need not to make his Title to every peice but to say he hath Common in loco in quo c. in t alia and need not to speak of the rest of the Land in the residue of the Feild because he hath Land of his own Common appendant belongeth to arrable Land not to Pasture Land If two Issues be joyned and in the awarding the Venire facias these words Videlicet Quoad triandum tam exit istum quam praedictum alium exit superius junct were omitted and after a Verdict such Default was moved in Arrest of Judgement and the Exception over-ruled and held good notwithstanding that omission The whole Court were of opinion that local things shall not be made transitory by laying the Action in a forrain Shire as for Corn growing in one Shire and an Action of Trover brought in another COmes Cumbr. versus Comitem Dorset It was moved by the Defendant that whereas the Plaintiff had prosecuted a Distring Jur. and onely eleven of the Jury appeared and the Inquest remained to be taken for want of Jurors and that at such time neither Plaintiff nor Defendant desired a Tales and afterwards the Defendant in another Terme prayed a Tales of that Writ which the Plaintiff had prosecuted and the Court denied to grant it because he prayed not a Tales when the Distress was retorned and if he would have a Tales he must purchase anew a Plur. distring and if then the Jury fill not the Defendant may pray a Tales and the Court ought to grant it And note upon the first Habeas Corpus the Defendant shall not have a Tales but in Default of the Plaintiff IF the Chamberlain of the County Palatine of Chester make an insufficient Return to the Court of Common Pleas upon a Writ issued out of that Court the Sheriff shall be amerced because the Sheriff is the Officer responsible to the Court. The King hath power to make and create a Leet anew where none was before A Distress is incident of Right but in a Court Baron a Prescription must be laid to distrain J. Rogers versus Powell My Lord Cook held that the Surrender of a Copy-hold in Tail is not any Discontinuance and Justice Foster of the same opinion In Doctor Husseys case in a Ravishment de gard wherein the Judgement is penal the Habeas Corpus was denied by the Court to be amended being a blank Writ after a Verdict but was adjudged Error For the Proviso in the Statute of Jeofailes 18 Eliz. excepts Actions upon penal Statutes One Jury was impannelled of the Town of Southampton and called to the Bar and made Default and the men of that Town shewed to the Court a Grant made to the Inhabitants of that Town that no Return should be made of the men of that Town to be of any Jury and prayed the Allowance of their Charter and the Court appointed them to plead their Charter and it was done accordingly TRier versus Littleton A special Verdict was found whether Fraud or not Fraud and the Jury did not finde the Fraud expresly but they found Circumstances that the Deed might seem thereby to be fraudulent but the Court will not adjudge it Fraud where the Jury do not expresly finde the Fraud for the Judges have nothing to do with matter of Fact and so by the whole Court no Fraud Tenant for Life Remainder for Life Remainder in Tail Remainder in Fee the first Tenant for Life suffereth a Recovery the Remainder in Tail is barred although the second Estate for Life be no party Baron Feme seised of the Wives Land for Life of the Wife Remainder to the Husband and Wife in Tail and afterwards the Husband doth bargain and sell the Land by Deed inrolled and a Precipe is brought against the Bargainee and he voucheth them in Remainder this is a good Recovery to barr the Estate Tail If an Information be brought against three upon the Statute of Maintenance and two of them appear and the third doth not appear the Plaintiff may declare against the two that do appear before the other appears for it is but a Trespass and Contempt as in Trespass and Conspiracy but it is otherwise in Debt upon a joynt Contract for there the Plaintiff cannot declare against one untill the Process be determined against the other by the opinion of the whole Court If Judgement be entred in Trespass of Oct. Hillarii the Writ to inquire of Damages may bear teste of any other Return of that Terme besides of Octab. Hillarii for the Terme is as one Day and so hath been adjudged upon a Writ of Error in the upper Bench but it is otherwise held in the Common Pleas. If a Bargain and Sale be void in part it is void in all If an Officer or priviledged person of the Court of Common Pleas sue another priviledged man of any other Court whatsoever yet he of the Common Pleas that first sued shall force the other priviledged person to answer in the Common Pleas but if a priviledged man be sued with another as Executor no Priviledge lies Summons and Severance lies between Executors Plaintiffs and if one of the Executors be outlawed or excommunicated he may be demanded and if he comes not shall be severed by an award without Process after he hath appeared and the other shall proceed without him but if he had not appeared then Summons and Severance shall issue out against him FLetcher versus Robson An Extent upon a Statute Merchant issued out against Robson the Cognisor and the Sheriff returned that the Cognisor was possessed of divers Goods and seised of Lands which he delivered to the Cognisee and that the Cognisee accepted of the Land and because the Sheriff did not return that he had not any other Lands Goods or Chattels it was
adjudged insufficient and a new Writ awarded but many held that in the case of a Cognisor it was well enough but not in the case of a Purchasor If one knowledge a Statute and after a Judgement is had against the Cognisor now against the Cognisor the Statute shall be preferred but not against an Executor If a man plead a Bond knowledged to the King in the Exchequer it must be averred to be a true Debt If a Debt be assigned to the King in this case no priority of Execution If one staul a Debt by 20. s. a year this shall not stay my Execution the Court were of opinion that an Extent would not be good at Barwick for the Writ runs not there If a Judgement be given in a Court of Record it shall be preferred in case of an Executor before a Statute But if a man acknowledge a Statute and afterwards confess a Judgement and if the Land be extended upon the Judgement the Cognisee shall have a Scire facias to avoid the Extent upon the Judgement otherwise in case of Goods for therein first come first served for if I have a Judgement against one and afterwards he acknowledgeth a Statute and by vertue of the Statute the Goods of him being dead were taken in the Executors hands then upon the Judgement a Scire facias was sued and afterwards a Fieri facias of the Testators Goods it was held that the Goods first extended were lawfully extended and shall be good A Judgement was had against Sir Fr. Freeman and an Extent came to the Sheriff and afterwards and before any thing was thereupon done one Fieri facias against the Executor upon a Judgement given before the acknowledging the Statute was delivered to the Sheriff and the Question was whether the Extent or Fieri facias shall be first executed And note if the Land be first extended upon the Statute and afterwards an Elegit upon a Judgement obtained before the acknowledging the Statute come also to the Sheriff the moity of the Land extended shall be delivered to the Plaintiff upon the Judgement HIll 15. Jac. The case of Villainage is within the Statute of Limitation and in the case of M. Corbet it was held that the Prescription of the Seisin of the Plaintiff and his Ancestors as Villain was more then needeth and the Issue thereupon taken was good by the whole Court after Exception taken thereupon and Judgement was given for the Plaintiff In every Elegit the Sheriff must return and set out the moity distinctly unless they be Tenants in common and in that case he must return the special matter An Extent issued out against one Greisley by the name of Greisley Esquire who was at the time of suing out the Writ made Knight and Baronet and it was naught and the Plaintiff prosecuted a new Writ MIch 10. Jacobi A Tenant by Statute Staple or Elegit that hath extended an Abbots Lease or a Lease made out of an Abbots Lease is not bound to shew it because he cometh in by Act of Law but any other that cometh in under the Lease must shew it by the opinion of the whole Court And note that in Hillary 10. Jac. two Inquisitions taken at several Dayes by several Juries upon one Statute Merchant were adjudged naught one was taken of the Land and the other for Land and Goods and Extent of the whole fourth part was naught for it should be of the moity of the fourth part and mark it was of a Lease which was but a Chattell and the Sheriff might have sold it as Goods but seeing he had extended it in this case he should receive benefit but as in a common Extent COmyrrs versus Brandling A Lessee that had a Lease of the value of 100. l. and after the Teste of the Elegit and before the Sheriff had executed the Elegit assignes his terme to one who assignes it over to the Plaintiff in the Scire facias and afterwards and before the last Assignement the Sheriff executes the Elegit and delivers the Lease to the Plaintiff tenend c. for satisfaction of the Debt which came to but 43. l. 6. s. 8. d. it was held by all the Judges that the Sheriff could not deliver the Lease at another value then what the Jury had found it at and the Sale made by the Sheriff is as strong as if it had been made in open Market and that all the Goods and Chattels are bound after the Teste of the Elegit and cannot be sold by the Owner after the Teste of the Writ If a later Extent be avoided by an ancient Extent after the ancient Extent is satisfied the later Extent shall have the Land according to his first Extent without any re-extent by the opinion of Serjeant Hutton if the Husband charge the Lease of the Wife and dieth the Wife shall hold the Land discharged HIll 12. Jac. The Earl of Lincoln against Wood the Earl of Lincoln did arrest Wood upon a Capias upon a Statute Merchant Wood being in Execution obtained in the Chancery an Audita Quaerela and did put in Bail there and had a Supersedeas and was discharged of his Imprisonment and the Audita Quaerela and Bail sent into the Common Pleas to be proceeded on The cause of the Audita Quaerela was grounded upon the performance of the Defeasons of a Statute and after this case was debated for the Bailment of Wood and held by the Court to be good it was allowed of If the Act for Dissolution of Monasteries had not given the Land to the King the Founders ought to have had them And if an Hospital or religious House is impeached upon the Statute of Superstitious uses it must be proved to be regular for they must be religious that are dissolved by E. 6. JOules versus Joules Alderman purchased Land of one against whom a Judgement was given long before the Purchase and the Vendor afterwards became unable to pay the Judgement and long after the Plaintiff in the Judgement purchased a Scire facias against the Defendant and had Judgement against the Defendant by Default and afterwards had an Elegit and by vertue of that the Sheriff extends the Land of Joules the Purchasor who prayes the aid of the Court because the whole Land was not extended but he was forced to bring his Audita Quaerela If I make a Lease for years reserving a Rent during my Life and my Wives Life if I die the Rent is gone because she is a stranger she shall never have the Rent because she hath no Interest in the Land if one of them die nothing can survive to the other and a Limitation must be taken strictly otherwise it is by way of Grant that shall be taken strongly against the Grantor If 2. Tenants in common joyn in a Lease for years to bring an Ejectment and count Quod cum dimisissent c.
that is naught for it is a several Lease of their Moities and you must declare Quod cum one of them demised one moity and the other the other moity and good If a Tenant in Socage hath Issue and die his Issue being under the age of 14. years the next Freind of the Heir to whom the Inheritance cannot descend shall have the Guard of the Land untill the Heir come to the age of 14. years and he is called Guardion in Socage and in pleading a Lease for Life you are never to alleadge the place where the Lease was made because it passeth by Livery which was executed upon the Land He that pleads a Demise ought to shew that the Lessee entred and he that pleads a Descent ought to shew that he entred and an Exchange is a good Plea in Bar but it shall never be adjudged a good Exchange except this word Escambium be used in the Charter of Exchange HOpkins versus Radford A Defendant shall take no benefit of his own wrong In Sir James Harringtons case the Original was returned Quinque Pasch and the issue joyned that day and the Venire facias returned that day and held naught by the Court upon the first motion A future Lease cannot be surrendred but drowned For things in Action a Deed of Gift is void as Debts without Specialty although he say Goods Chattels and Specialties but for other Debts by Specialty and Goods it is good and for the Debts in Action after the Death of the Party Administration is to be granted and the Administrator is to have the Goods RAiner versus Mortimer One had Judgement upon a Scire facias to have Execution and a Capias ad satisfaciendum returnable 15. Martini and that Writ was returned Album Breve and a Testatum thereupon and the Defendant taken and this matter was moved to the Court and a Supersedeas prayed that the Testatum issued out erroneously because the Capias was not returned and it was granted by the whole Court because the Capias was not returned One seised in Fee may bargain and sell grant and demise Land to others and their Heirs to the use of one for years because he hath a Fee-simple but Lessee for years cannot bargain and sell his Lease to the use of one for years If a Marriage is intended between two men and one of them in consideration that the other hath upon the Marriage assured Land to his Son he doth assume to pay to my Son such a Summ immediately after the Marriage if the Money be not paid the Son must have the Action and not the Father MIch 5. Jacobi 61. One Jury-man appear in Court and when he came to the Barr to be sworn he informed the Court that he was eighty years old and prayed to be dischargâ—d and the Court could not grant it nor pass him by and swear others without committing Error except the Parties would consent for it is Error to skip a Juror who is returned if he appear and therefore the Juror was drawn by the consent of the Parties TRin. 6. Jacobi Upon a Levari facias out of a Court Baron Goods cannot be sold without a Custome to sell the Goods and if Goods be attached by Pone out of a Court Baron the Defendant shall not lose his Cattle otherwise it is if it be a Process out of the Common Pleas then the Defendant loseth his Cattle for not appearing if you lay that you have a Court time out of minde to be held before a Steward you must shew what Pleas you have used to have Conusance of A Sheriff returned but 21. onely upon a Venire facias and at the Triall ten onely appeared and a Decem tales was awarded and tried and Verdict for the Plaintiff and this matter was moved in Arrest of Judgement for that the Sheriff had returned but 21. and the Court were of opinion that if 12. of them had appeared that it had been good notwithstanding but because 10. onely appeared of the principal therefore it was naught and Judgement arrested for that cause If a Juror be sworn of the principal and the Jury remain when the Jury comes again he shall be sworn again TRin. 6. Jac. rotulo 251. Dunnall versus Giles A special Verdict and the Question was a man being possessed of a terme devises the whole terme to A. for Life and if he dies within the terme to B. during the minority of C. and that C. when he comes to full age shall have the Remainder of the terme and held a good Devise To devise Land or Terme or Lease all one it is an Executory Devise If one surrender Land to the use of an Estranger that is to resty the use in Reversion for the Land is in him immediately If a man hath a Rent in esse you cannot grant that in Reversion after your Death but if I surrender to the use of one after my Decease is not good by his opinion of Warburton and Daniel If the Sheriff shall by vertue of a Fieri facias levy the Debt and Damages of a man and make a Return that the said Goods remain in his hands for want of Buyers the Property remains still in the Defendant although the Sheriff hath Possession of the Goods A Sheriff may sell Goods levied upon a Fieri facias out of his County In Watermans case the Issue was whether a Copy-holder in one Town had Common in Land lying in another Town and the Plaintiff shews that he is Lord of the Hundred of C. within which Hundred one of the Villages lie and prayes a Venire facias of the Town next adjoyning to the said Hundred and it was granted and tried and Exception to the Triall for that the Venire was not of both Villages An Alien born being no free Denizen may defend and bring a Writ of Error and it is no Plea to say that he is an Alien born Note by the Common Law the Lord of the Mannour may come and take away a Tree cut down upon the Copy-hold Land by his Copy-holder without laying a special Custome for it If there be an unlawfull Marriage as the Brother doth marry his Sister and they have Issue and one of them dieth before any Divorce had between them now after the Death of one of them the Issue cannot be bastarded as in Cordies case 39 E. 43. 22 E. 4. After a general Imparlance one cannot plead an Outlary in Barr to an Action of Trespass or Case but it must be pleaded in abatement except he be outlawed after the last Continuance for you shall plead nothing in Barr but what goeth to the pit of the Action now the Damages in Trespass or Case are not forfeited by Outlary as Debt because of the incertainty To the Owner of the Soil on both sides of the way of common right belong the Trees that grow in the Lane whether
he be Lord or Free-holder The best badge of truth is the usage of taking the profit of the Trees 11 H. 4. rot 80. Where the Court ex officio should inquire and that omitted the Court may supply it but where an Attaint lyeth that is not to be supplied as in a Valore Maritagii the value is the point of the Writ and if that be omitted by the Jury never to be supplied by Writ Cheyneys case Valore Maritagii and intrusion were at the Common Law before the Statute and the Statute doth but inlarge the Common Law for by the Statute the Judgement is otherwise then at the Common Law It is vain to plead the Execution of a Writ of Seisin upon a Recovery but to plead that he did enter MIch 10. Jac. If I purchase Land by a name and alleadge it to be in a wrong Parish or Shire it is good notwithstanding the mistake by the Court. A stranger shall be bound by a Law made for the publique good but he must come within the place where it was made The King cannot grant precedency in publique things as to go by Water or by passage on the Land as by Coach if a Bond bear Date Super altum mare then it must-be sued onely in the Admiral Court otherwise it cannot be sued there Every Bishop hath his Cathedral and Councel and the Councel and Bishop there decide matters of Controversie the Prebends have their names from their affording of help to the Bishop and in time of the vacancy of the Bishop the Arch-bishop is Guardian of the Spiritualties and not the Dean and Chapter TRin. 14. Jac. rotulo 1810. Birtbrook versus Battersby Exception raken after Triall The Action was laid in Westmerland and the Jurata written at the end of the Record was Ebor. ss ura Inter c. and recites the Day of Triall in the County of York and the place where the Triall was at York and prayed that it might be amended and it was granted to be amended by the whole Court INt. Bullen Jarvis The Venire facias was made in this Form Videlicet Liberos legales homines de B. and it should have been De vicineto de B. and it was notwithstanding held good and amendable by the Roll for it shall be intended that the Jurors are inhabiting in the Town of B. although the Sheriff returns the Jurors of other places and none of them be named of B. and the Venire facias was returned by A. B. Ar. without naming him Vic. and it was amended by the Court. GRiffin versus Palmer Trin. 15. Jac. rotulo 924. Issue taken whether the Lands contained in the Fine were ancient Demesne or not pretending they were parcell of the Mannour of Bowden in the County of Northampton which was pretended to be ancient Demesne and the Doomesday Book was brought into the Court and by that Book it appeared that the Mannour of Bowden was in the County of Leicester and not in the County of Northampton but the Councel affirmed that the Mannour was both in the County of Leicester and Northampton but it valued not for the Doomsday Book was against the Plaintiff The Court was moved to amend a Venire facias which was Album Breve but the Court would not grant it although the Sheriffs name was put to the Pannell but if the Sheriff upon the Venire facias had returned that the Execution of that Writ did appear in a certain Pannell annexed to that Writ and had not put his name to the Writ of Venire facias but to the Pannell in such case the Court would have amended the Venire facias Lessee at will cannot grant one his Estate if one occupy with Tenant at will this is no Disseisin to the Lessor If a Tenant for seven years suffer Trees to grow above the age of 21. years they are Timber and it is waste to cut them Tenant at will shall pay his Rent when he holdeth over his terme but Tenant at sufferance shall not pay any Rent If a man holdeth over his terme and pay his old Rent he shall be accounted Tenant at will If one being sick giveth Notes to make his Will and after by infirmity of sickness he becometh so weak that his memory faileth him and these Notes are made into a Will this is a good Will otherwise it is if he become lunatique after the Notes given MIch 15. Jacobi One Warter was committed to the Fleet by the Lord Treasurer of England and the Prisoner was brought to the Common Pleas by Habeas Corpus which was returned and no cause of the Commitment expressed and for that cause the Prisoner was set at liberty and bailed TRinity Terme 15. Jacobi Hanson one of the Attorneys of the Common Pleas delivers a Note to the Sheriffs Clerk of the names of divers Jurors that were to be returned and of divers others that were not to be returned in a case concerning one Butler and for this Offence he was put out of the Roll of Attorneys In Spilmans case if I have Estovers in Land and cut down Estovers and a stranger taketh away the Estovers I shall have an Action against him that taketh them away although he have there Common of Estovers also If the Husband sow the Ground and die the Executors and not the Heir shall have the Corn but if the Father sow the Land and dieth or the Heir sow the Land and the Wife recover Seisin in Dower she shall have the Corn. The setting open a Shop on the Sabbath day is punishable by Statute Law and so is a House of Bawdry and not to be dealt with by the high Commissioners So long as the Land is occupied by him that hath the Fee-simple which did formerly belong to the Order of the Cistercians it shall pay no Tithes but if he let it for years or life the Tenant shall pay Tithes HIll 11. Jac. rotulo 90. A Recovery was had upon a Writ of Entry in le post for a common Recovery between Hartley and Towers in the County of Bucks the Attorney who prosecuted the Recovery by negligence did not file the Writ of Entry which was prosecuted orderly and all Fees paid when the Recovery was passed And in Easter Terme 14. Jac. it was moved that the Writ of Entry might be filed and it was granted although the Tenant was dead the Writ of Entry was returnable Octabis Purificationis MIch 14. Jacobi My Lord Hubbard Justice Warburton and Winch held that when there were but three Judges of the Common-Pleas they might argue Demurrs and if two of them were of one minde and one of the other the Judgement should be given according to their opinions My Lord Cook said that for the Body of the Church the Ordinary is to place and displace in the Chancell the Freehold is in the Parson and it is parcell of his Gleab Tpespass will
lie by the Heir for pulling down the Coat-Armor c. of his Ancestors set up in the Church A Pew cannot belong to a House Fraud shall never be intended except it be apparent and found and that conveyance which at the time of the making was good shall never by matter ex post facto be adjudged to be fraudulently made for before primo Eliz. at the Common Law A conveyance made for natural affection without valuable consideration is not to be avoided none shall avoid it but such as come in upon valuable considerations Lands devised to one in Tail upon condition that he shall not alien and for Default of such the Remainder to R. in Tail this is a Condition and no Limitation by the whole Court and the Heir at the Common Law may enter for the Alienation Matters of instance which are between party and party as for Tithes and Matrimony are not to be dealt withall by the high Commissioners if they proceed inverso ordine that cannot be holpen in the Common Pleas but by superior Magistrate if they be Judges of the cause If one in Norfolk come within another Dioces and commit Adultery in another Dioces during the time of his residence he may be cited in the Dioces where he committed the Offence although he dwell out of the Dioces by Cook Warburton and Winch. If the King grant Lands to A. and his Heirs Males and doth not say of his Body he is but Tenant at will Tamen quaere A Deputy of an Office for Bribery cannot make his Master be punished corporally but pecuniarily equity shall not barr me of the benefit of Law Note the Probate of Wils and Administrations did not belong to the Ordinary originally but to the Common Law If two Aliens be at Issue the Inquest shall be all English but if between an Alien and Denizen that Inquest shall be de medietate Linguae 21 H. 6. 4. A Judgement given against a dead person is not void but Error 28. Ass 17. A Juror was committed to the Fleet For making his Companions stay a whole Day and a Night having no reason for it and without the Assent of any of the rest of his Fellows and after was bailed but not untill the Court was advised 8 E. 3. 75. In a Writ of Estate Probanda every Juror ought to be of the Age of 42. years If I grant Land to one and his Heirs in the Premises of the Deed Habendum to him and the Heirs of his Body he shall have the Land in Tail and the Fee-simple after the State in Tail when the Estate is certain in the Premises the Habendum shall not controll it If one make two Executors one of seventeen years of Age and the other under Administration during the minority is void because he of seventeen years old may execute the Will of Administration during the minority in such case be granted and the Administrator brings his Action the Executor may well release the Debt Pigot and Gascoins case If a Record go once to Triall and warning given if the first Attorney be alive the Plaintiff is not tied to give warning again but if the Attorney be dead he is If no place of Payment be in a Will which appointeth Money to be paid there must be a Request to pay the Money for he is not bound to seek all England over for him otherwise it is if it were by Bond. In every case where the Plaintiff might have Judgement against the Defendant there if the Plaintiff be non-suit the Defendant shall have his Costs if the Plaintiff be non-suit TRin. 11. Jac. In cases of remitting causes from the inferior Judge the Arch-deacon cannot remit the cause to the Arch-bishop but he must remit it to his Bishop and he to the Arch-bishop It was held by the Court that one might distrain for a Legacy In a special Verdict the Plaintiff must begin to argue first OLive versus Hanmer A Writ of Error was brought upon a Judgement by Nil dicit for want of a Warrant of Attorney and the Record certified and a Certior are to the Clerk of the Warrants and Error assigned for want of a Warrant And the Court was moved that a Warrant might be filed and it was granted and a Warrant filed accordingly Pasch 12. Jac. An Action was brought against Baron feme and an Attorney appeared for the Husband alone and the Court held it was the Appearance of Baron feme in Law PAsch 12. Jacobi Sheriff versus Whitsander One Judgement was confessed in Trin. 42. Eliz. rotulo 504. And afterwards in Trinity Terme 43. Eliz. the Defendant brought a Writ of Error bearing Date the 12. of May Anno 43. and upon that Writ the Record was certified 25. May and afterwards Error was assigned in the upper Bench for want of a Warrant of Attorney by the Defendant And Mich. 43. 44. Eliz. the Warrant of Attorney was received and entred upon Record by Order of Court of Common Pleas. And the like was Pasch 2. Jac. rotulo 1956. Int. Bathgrone and Smith and the like Mich. 1. Jac. rotulo 1306. Inter Smith Kent CRane versus Colpit Question was whether the Attornement of an Infant be good or not and by the whole Court it was held good by three Reasons First he gives no Interest Secondly it is to perfect a thing Thirdly he is a Free-holder IT was held in the case of Gage an Attorney who as an Administrator brought an Action of Priviledge that his Priviledge ought not to be allowed And after a Bill was filed against Drury an Attorney as Executor and held that the Bill would not lie but in both cases the Suit should be by Original BEarbrook versus Read The name of Confirmation must stand for Sir Francis Gawdy was christened Thomas and confirmed Francis by that name he must be called SIr Henry Compton was sued for Cloathes of his Wife bought without his command or privity and the whole Court were of opinion that if the Wife should buy Merchandises and thereof make Cloathes and wear those Cloathes although the Husband know nothing of them yet he shall pay for them PAsch 10. Jac. The Court was moved to know whether the Wife of a Bankrupt can be examined by the Commissioners upon the Statute of Bankrupt and they were of opinion she could not be examined For the Wife is not bound in case of high Treason to discover her Husbands Treason although the Son be bound to reveal it therefore by the Common Law she shall not be examined An Infant shall not be examined If an Administration be granted to one during the minority of two Infants and one of them dieth the Administration continueth still Actions of Debt LOvelace versus Cocket Mich. 6. Jac. rotulo 1001. Action of Debt brought upon an Obligation for the Paiment of Money at a
arbitrated or else it is void and in every award there must be satisfaction of that which was awarded POwel versus Crowther trin 9. Jacob. rotulo 313. det port e un three executors which appeared at several terms and plead severally ne unques execut the plaintiff proceeds to triall against one of them and was non-suit And then one of the other defendants take the record down by proviso and the plaintiff was again non-suit and both the defendants desire costs before the third issue was tried but costs was onely given to the first and denied to the second for his trial was erroneous because by the first triall the originall was determined If a defendant wage his law no excuse of sickness or water can save his default but in real actions he may excuse himself by such accidents If the condition of a Bond be to discharge a messuage of all incumbrances there one may plead generally that he did discharge it of all incumbrances but if it be to discharge it of such a Lease there he must shew how NOrton versus Sims Pasch 11. Iacob rotulo 346. debt upon a Bond entred into by an under Sheriff to his high Sheriff that the under Sheriff shall not meddle with the execution of executions and shall discharge the Sheriff from all escapes and the plaintiff shewes a breach in the under Sheriff for an escape by reason whereof the Sheriff paid the debt and damages question was whether this covenant be good or not Judgment for the plaintiff A high Sheriff may make an under Sheriff to be at will An under Sheriff hath the same authority an high Sheriff hath it is a void condition to save a man harmless from all men but good if it be special if the condition be to discharge and acquit I must shew how An under Sheriff was before the Conquest A Bond made to the Sheriff by the under Sheriff to discharge of all escapes this is good and lawful If any part of the condition of a Bond be against a Statute-law it is void in all but otherwise if part be against the common-law See Boswels case 10. Rep. when a man is under Sheriff he may do all ministerial things the Sheriff may do but not judicial If the under Sheriff will covenant that he will not meddle with executions above 20. l. this covenant of his own accord is good if a Sheriff binde his under Sheriff that he shall not return Venire Facias nor intermeddle with executions untill he be acquainted it is against Law and naught by all the Court A Bond to perform divers Covenants some against Law and others lawfull it is good for lawfull things and void for the rest The Death of one of the Parties in an Original Writ doth abate the Writ it is otherwise in a Judgement If Husband and Wife sue a Scire facias and the Husband dieth the Scire facias shall abate for it is no more a judicial Writ but as it were an Original to revive a Judgement The Court were of opinion in the case of Sir H. Dowckray that where he had delivered Money to his Servant to provide Victuals and the Servant buyes the Victuals in his Masters name and payes not for them and afterwards an Action is brought against the Master for the Money and he offers to wage his Law and the Court held he could not safely wage his Law because the Victuals came to his own use and therefore he is chargeable and must have his Remedy against his Servant But if the Master did forbid the Tradesman to deliver any Wares except his Man paid for them in that case if the Tradesman deliver Wares the Master may safely wage his Law as it was adjudged in Sir H. Comptons case MAntell versus Gibbs Trin. 7. Jacobi rotulo 1254. An Action of Debt brought upon an Obligation to which the Defendant pleads that an Estranger was imprisoned by another stranger and kept in Prison untill the Defendant as Surety of the stranger made the Bond and it was held a naughty Plea and a Repleader awarded ALston versus Walker Mich. 6. Jacobi rotulo 1342. Land was Mortgaged and a Promise that if the Mortgager at such a time and place should pay the Money to the Mortgagee his Heirs or Assignes that then the Mortgage should be void the Mortgagee died and the Money was paid to his Executors and it was adjudged to be no performance of the Condition for the Executor was not named and the Money ought to be paid to the Heir who should have the Land if the Money were unpaid and not the Executor STurges versus Dean Trin. 7. Jacobi rotulo 2915. An Action of Debt brought upon a Bill for Money to be paid within fifteen Dayes after his Return from Ierusalem he proving his being there the Defendant pleads that he did not prove-his being there to which the Plaintiff demurrs he making proof that is if it be true Sir Edward Cook and Daniel held that the proof should be made upon the Triall and the proof should be subsequent But Warburton and Foster held that the proof shall be precedent because it was restrained to a certain time but it had been otherwise if no time had been appointed NOrton versus Goldsmith Trin. 7. Iac. rotulo 3100. An Action of Debt brought upon an Obligation with a Condition that Chamberlain his Under-sheriff should not meddle with Executions beyond such a summ and alleadges a Breach for intermeddling with Executions contrary to the Condition and the opinion of the whole Court was that the Bond was void PAin versus Nichols Trin. 8. Iac. rotulo 134. An Action of Debt brought upon the Statute of Ed. 6. for not setting forth of Tithes and the Plaiutiff declared as well for Prediall Tithes for he might well bring his Action and for other Tithes as of Lamb and Wooll for which no Action would lie and upon a Triall the Jury found for all as well for those that would as would not bear an Action and after a Verdict this Exception was taken and Judgement arrested BOoth versus Davenant Trin. 8. Iacobi rotulo 805. A Bail taken in the then Kings Bench and an Action of Debt brought upon that Recognisance which was that if it happened the Defendant in that Action to be convicted then the Manucaptors granted and every of them granted that as well the Debt as Damages and Costs which should in that Action be adjudged the Plaintiff should be levied upon their Lands and Chattels And in Easter Terme 7 Iacobi the Defendant upon a Capias ad satisfaciendum awarded against him did not render his Body but afterwards Mich. 7. Jacobi he did render his Body and the Court accepted of it and discharged the Bail and whether the Bail should be discharged or not was the Question and the Court held the Bail should be discharged and Judgement was given for the Defendant RAyson versus Winder Pasch
in the upper Bench. BRownsworth versus Trench Trin. 10. Iacobi rotulo 3628. An Action of Debt brought upon an Escape against a Bailiff of a Liberty and after a Triall Exception was taken to the Declaration because it was not alleadged therein that the Sheriff made a Warrant to the Bailiff upon the Execution but it was onely alleadged that at A. aforesaid by vertue of the Warrant aforesaid he took the Prisoner and saith not within his Liberty aforesaid and the Exception was held void Trin. 10. Iacobi An Action of Debt brought by Executors and the Defendant pleads that the Plaintiffs were not Executors and tried and found for the Defendant and the Defendant upon the Statute for Costs desired Costs because the Jury found against the Plaintiff that he was not Executor and if a Verdict passe against one that is not an Executor he shall pay Costs but Costs were denied by the whole Court for the Jury might finde an untruth BAlder versus Blackborn Trin. 16. Iacobi rotulo 465. An Action of Debt brought for Rent reserved upon a Lease for years the Case this Land was devised to a Woman in this manner that she should have the profits of the Land untill the Daughter of the Devisor should be eighteen years old and the Woman made the Lease in question reserving Rent and afterwards married and then died and if the Husband after her Death should have the Land untill the Daughter of the Devisor came to eighteen years old was the question and adjudged he should hold the Land for the Devise of the profits is the Devise of the Land and is not like a Lease made by a Guardian in Socage which ends by the Deâ—… of the Guardian the Declaration was for one Mesuage demised the fourth of May 15. Jac. for one year and so from year to year as long as both parties should agree paying twenty four pounds by the year and Nil debet per patriam was pleaded and the Jury found it specially that one I. W. was seised of the Tenement and held it in Socage and made it his last Will in writing and by that did devise to A. his Daughter the said Tenement and her Heirs for ever at the full Age of eighteen years the words of the Will were Item I will that my Wife and Executrix shall have the Education of my Daughter with the portion of Money and profits of my Land to her own use without account untill my Daughters Age aforesaid provided she shall pay the out-rents and keep her Daughter at School and by that Will made his Wife Executrix and the said W. died and his Wife survived and took upon her the Executorship and married with one P. the Woman performed the Condition and afterwards died and Judgement was given for the Plaintiff that it was a terme and that the Husband should have it An Action of Debt was brought against an Executor and the Case was thus Administration was committed to one during the minority of the Executor who wasted the Goods of the Testator and after the Executor attained the Age of seventeen years an Action of Debt was brought against the Executor and the opinion of the Court was prayed whether he might plead generally ne unques Executor or excuse himself by pleading the special matter and the Court doubled but most safe to plead the special matter An Action of Debt was brought for Rent reserved by Indenture payable at two Feasts or within twenty daies then next following and the Plaintiff declared upon a Lease for the Rent and because ten pound at the Feast of the Anunciation 10. Jacobi was behind and unpaid the Action was brought the Defendant pleads Non demisit and a Verdict for the Plaintiff and after a Triall exception was taken to the Declaration because it was not alleadged that the Rent was arrere at that Feast and twenty daies after but it was not allowed after a Verdict because he should have taken advantage thereof before RAtliff versus Executors Pasch 15. Jacobi An Action of Debt brought upon an Obligation to perform Covenants in an Indenture The Defendant pleads performance of the Covenants the Plaintiff alleadges a breach upon this Covenant that the Lessee should injoy the Land without any lawfull interruption or disturbance of the Lessor or his Executors and shewes that the Executors entred upon him in the Land and outed him and shews not any interruption for any just cause and adjudged good in the upper Bench. WHitton versus Bye Trin. 16. Jacobi It was adjudged in the upper Bench in an Action of Debt brought by a Lessor against a Lessee for years for Rent reserved during the Tearme being behind and unpaid that a Release pleaded to be made by the Lessor to the Lessee six years before the Rent was arrere of all Demands was a good Barr One cannot reserve a Rent to a stranger it must be reserved according to the privity WAinford Administrator Kirby versus Warner Trin. 13. Jacobi rotulo 1906. An Action of Debt brought upon a Bond to which the Defendant pleads that the intestate was indebted to him in such a sum and that he retained c. in his hands to satisfie himself of the Debt due to him And that he had not assets over to satisfie the Plaintiff to which Plea the Plaintiff demurrs because he did not plead generally fully administred but an Exception was taken because he shewed not that the Condition of the Bond was for payment of Money STone versus Goddard Trin. 14. Jacobi rotulo 2258. An Action of Debt brought upon divers Emissets of divers Wares Videlicet unum ahenum for five shillings unum scabum for six shillings and so divers other words which the Court could not understand what they signified in regard no Anglice was put to them and the Defendant pleaded Nil debet per patriam and the Jury gave a Verdict for the Plaintiff and Damages given for the whole Debt and moved in Arrest of Judgement and Judgement that the Plaintiff should have no Judgement for the insufficiency of his Declaration WEeks versus Wright unum Clericorum R. B. The Plaintiff exhibited a Bill against the Defendant for Money due upon an Obligation and Issue was joyned and the Cause tried and a Verdict for the Plaintiff and after Triall the Defendant moved in Arrest of Judgement that the Bill was not filed that it was not helped by the Statute of Jeofayles nor within that Statute for it is an Original but afterwards the Court granted that a new Bill should be filed so that the matter might be put to arbitrement and if the Arbitrators could not determine the matter the Court would And note the Court seemed to be of an opinion that the want of a Bill is not helped by the Statute WItchoct Linesey versus Nine Trin. 9. Jacobi rotulo 726. An Action of Debt brought upon an Obligation to perform the Covenants contained in an
31 H. 8. of Monasteries which gives the Houses dissolved to the King but in the same degree and qualitie as the Abbot had them And the Abbot was charged with the power given by himself and so was the King Which mark VVAnto versus Willingsby Pasch 5. Jacobi The Bishop of Exceter in the time of H. 8. by his Deed gives Land c. to Nicho Turner and by Bill his Cousin in consideration of service done by Turner and for other considerations him moving to them and the Heirs of their bodies and dyes They have Issue Jo. and William N. T. dies and Sybill marries Clap. and they alien the Land to Iohn in Fee Sybill and Iohn leavie a Fine to Walther in Fee of the Land And afterwards Sybill infeoffes William her younger Son who infeoffes Willinghby Io enters and leaseth to Walther and Willingby for the tryall of his title seals a Lease to ward who declares of so many Acres in Sutton Cofeild And the Jury upon a not guilty pleaded foundby the Verdict that the Bishop gave the Tenements aforesaid by his Deed the tenor of which Deed follows c. And by the Deed it appeared that the Lands did lye in Little Sutton within the Lordship of Sutton Cofeild And notwithstanding the Plaintiffe shall recover For first it was held not to be any Joynture within the Statute of 11 H. 7. for it is not any such gift as is intended by the Statute for the Bishop was not any Ancestor of the Husband and the Husband took nothing by that but it was a voluntary recompence given by the Bishop in reward of the service passed And the Statute intended a valuable confideration And also the Bishop might well intend it for the Advancement of the woman who appeared to be Cozen to the Bishop And Tanfeild held if the woman were a Doneâ— within the Statute of 11 H. 7 she could be but for a moyetie for the gift was before the marriage and then they took by moyeties And the Baron dying first the woman came not to any part by the husband but by the course of Law as survivour But quaere of this conceit for the other Judges did not allow it And secondly they held that the Fine of Io. the elder Son of Sybill levied to Walther destroyed the entry of Io. and of Walther For although in truth the Fine passed nothing but by conclusion yet Io. the Son and Walther his Conusee shall be estopped to claim any thing by way of forfeiture against that Fine on the womans part then any title accruing after the Fine For they shall not have any new right but Io the Son upon whom the Land was intayled is barred by the Fine Thirdly although upon view of the Deed made by the Bishop the Land which by the Declaration is layed to be in Sutton Cofeild by the Deed appears to be in Little Sutton yet this is helped by the Verdict by which it is found expresly that the Bishop gave the Lands within written and therefore being so precisely found the Deed is not materiall Which mark KNap versus Peir Iewelch Pasc 5. Jacobi An Ejectment brought for Lands in Wiccombe which were the Deans and Chapters of Chichester And in this case it was agreed by the whole Court that if it be a Corporation by prescription it is sufficient to name them by that name they are called And the Court held that if a man demands Rent upon the Land to avoid a Lease upon a condition the Demand ought to be made in the most open place upon the Land The Dean and Chapter of Chichester made a Lease to one Raunce the Lessee of the Defendant of Lands in Wiccombe rendring Rent payable at the Cathedrall Church of Chichester upon such a condition it was agreed by the whole Court that the Demand ought to be made in the Cathedrall Church of Chichester although it was of the Land Leased And the Demand ought to be made at the setting of the Sun the last instant of that day and when he made his Demand he ought to stand still and not walk up and down for the Law did not allow of walking Demands As Pipham said and he ought to make a formall demand And because those whom the Dean and Chapter did send to make the demand of Rent said bear witnesse we are come hither to demand and receive such Rent it was held by the Court that such a demand was not good And they held the demand ought to be made at that part of the Church where the greatest and most common going in is And in this case it was said by Popham that if a man make a Lease to one for yeers to commence at a day to come and then he lease to another for yeers rendring Rent upon a condition to commence presently And he enter And the first Lease commence and he enter the Rent and Condition reserved upon the second Lease is suspended A man leases for years rendring Rent after he leaseth to another to commence at a day to come and the first Lessee attorns the second shall not have the Rent reserved upon the first Lease by Popham but he doubted of it And Popham and Tanfeild held none contradicting that the Letter of Attorney made by the Dean and Chapter to demand their Rent was not good because the Letter of Attorney was to make a general demand on any part of the Land which the Dean and Chapter had leased And that ought to have been speciall onely for that Land And secondly it was to demand Rent of any person to whom they had made a Lease And the Letter of Attorney ought to be particular and not generall of any person TOmpson versus Collier Mich. 5. Jacobi The Plaintiffe declares upon a Lease of Ejectment made by Robinson and Stone of one Messuage and fourty Acres of Land in the Parish of Stone in the Countie of Stafford The Defendant imparled tryall another Terme and then pleads that within the Parish of Stone there were three Villages A. B. and C. And because the Plaintiffe hath not shewed in which of the Villages the Land he demanded Judgement of the Bill c. And the Plaintiffe demurred upon this Plea And adjudged for the Plaintiffe For first after an Imparlance the Defendant cannot plead in abatement of the Bill for he hath admitted of it to be good by his entring into defence and by his Imparlance And secondly the matter of his Plea is not good because the Defendant hath not shewed in which of the Villages the House and fourty Acres of Land did lye And that he ought to have done For where a man pleads in abatement he alwayes ought to give to the Plaintiffe a letter writ with mark And the whole Court held that this Plea was not in barr but that he should answer over And Williams Justice took this difference that when a man demurrs upon a Plea in abatement And when he
matter of form For if the Jury finde a prior grant of the Queen to the Plaintiffs Lessor although it be at another Court it is sufficient and so by consequence the day is not materiall in substance which mark But Williams Justice and the rest held the traverse to be naught for by that the Jury should be bound to finde the Copy such a day by such a Steward which ought not to be and that it was matter of substance not helped by the Statute of 18 Eliz. DArby versus Bois Hill 5. Jacobi An Ejectment brought for an House in London and upon not guilty pleaded The Jury found a speciall Verdict And the case was Tenant in tail of divers Messuages in London 7 January 44 Eliz bargains and sels the said Houses to J. S. and delivers the Deed from off the Land the 8. of January the same yeer Indentures of Covenants were made to the intent to have a perfect recovery suffered of those houses and the ninth of January after a Writ of right is sued in London for those Messuages returnable at a day to come And the tenth of January the same yeer the Tenant in tail makes livery and seisin to J. S. of one of those Houses in the name of all And the other Messuages were in Lease for yeers and the Lessees did not atturn And the question was if the Messuages passed by the bargain and sale or by the livery And it was adjudged that they passed by the bargain and sale And Yelverton took a difference between severall Conveyances both of them Executory and where one of them is executed presently as in Sir Rowland Heywoods Case where divers Lands were given granted leased bargained and sold to divers for yeers the Lessees were at election whether they would take by the bargain and sale upon the Statute of 27 H 8. or by the demise at the Common Law But otherwise it is if one be executed at first for then the other comes too late as it is in this Case for by the very delivery of the bargains and sale the Land by the custome of London passes without inrollment for London is excepted and this custome was found by the Verdict And therefore it being executed and the Conveyance being made perfect by the delivery of the Deed without any other circumstances the livery of sesin comes too late for it is made to him that had the Inheritance of the Messuage at that time And the possession executed hinders the possession executory for if a bargain and sale be made of Land and before inrollment the bargain takes a deed of the said Land this hinders the inrollment because the taking of the livery did destroy the use which passed by the bargain and sale which was granted by the Court. And another reason was given because it appeared that the intent of the parties was to have the Land passe by the bargain and sale because it was to make a perfect Tenant to the Precipe as appears by the subsequent acts as the Indentures Covenant and the bringing the Writ of Right c. All which will be made frustrate if the livery of seisin shall be effectuall and when an Act is indifferent it shall be taken most neer to the parties intents that may be if a man hath a Mannor to which an advowson is appendant and makes a Deed of the Mannor with the appurtenances And delivers the Deed but doth not make livery of seisin yet now although the Deed in it self was sufficient to passe the Advowson yet because the party did not intend to passe it in Posse but as appurtenant if the Mannor will not passe no more shall the Advowson passe alone as it was agreed 14 Eliz in Andrews Case Which mark And the whole Court gave Judgment accordingly that the Defendant who claimed under the bargain sale should enjoy the Land CHalloner versus Thomas Mich. 6. Jacobi A Writ of Error was brought upon a Judgement given in Ejectment in the Courâ— of Carmarthen and Yelverton assigned the Error because the Ejectment was brought de aquae cursu called Lothar in L. and declares upon a Lease made by D. de quidam rivulo aquae cursu And by the opinion of the whole Court the Judgement was reversed for rivulut seâ— aque cursus lye not in demand nor doth a precipe lye of it nor can livery and seisin be made of it for it cannot be given in possession but as it appears by 12 H. 7. 4. the Action ought to be of so many Acres of Land covered with water but an Ejectment will well lye by if a stang for a precipe lies of them and a woman shall be indowed of the third part of them as it is 11. E. 3. But if the Land under the water or River do not pertain to the Plaintiffe but the River onely then upon a disturbance his remedy is onely by Action upon the Case upon any diversion of it and not otherwise Which observe VVIlson versus Woddell Mich. 6. Jacobi The Grand-father of the Plaintiffe in an Ejectment being a Copy holder in fee made a surrender thereof to L Woddell in fee who surrendred it to the use of Margery I. for life who is admitted c. But L Woddell himself never was admitted The Grandfather and Father dye the Son who is Plaintiffe was admitted and enters upon the Land Margery being then in possession and the Defendant then living with her as a servant in those Tenements and this was the speciall verdict And Judgment was given for the Plaintiffe And the Court was of an opinion that the Defendant was found to be a sufficient Trespassor and Ejector though he be but a Servant to the pretended owner of the Land because the Verdict found that the Defendant did there dwell with Margery And in such case he had the true title and had made his entry might well bring his Action against Master or Servant at his election And perhaps the Master might withdraw himself that he could not be arrested And secondly it was adjudged that the surrender of J. S. of a Copy-hold is not of any effect untill J. S. be admitted Tenant And if I. S. before admittance surrender to a stranger who is admitted that that admittance is nothing worth to the estranger For J. S. had nothing himself and so he would passe nothing and the Admittance of his grantee shall not by implication be taken to be the admittance of himself for the admittance ought to be of a Tenant certainly known to the Steward and entred in a Roll by him and it was held that the right and possession remained still in him that made the surrender and that is descended to his Heir who was the Plaintiffe And they took a difference between an Heir to whom the Copy descended for he may surrender before admittance and it shall be good because he is by course of the Law foe the custome that makes him Heir
may take the power of the County to make a replevin upon the plures replevin a replevin will not lye of deeds or charters concerning Land and no return habend lyes upon a justistification and if a discontinuance be after a second deliverance the return habend shall be irreplegiable And if the Defendant after an advowry will not gage deliverance he shall be imprisoned for the contempt no disclaimer lies upon a justification but upon an advowry And if the replevin was sued by writ and the Sheriffe return thereupon that the cattell are not to be found then a withernam shall be awarded against the Defendant and if a nihil be returned then a capias alias plur withernam and thereupon an Exigent and if hee do at the return of the exigent find pledges to make deliverance and be admitted to his Fine then the Plaintiff shall declare upon an uncore detent and goe to tryall upon the right of the cause of distress and if it be found for the Plaintiff he shall recover his costs and dammages And if for the Defendant he shall have a return habend But if upon the return of the Plures repleg the Defendant appear then no withernam lies but he must gage deliverance or be committed and the Plaintiff shall count against him upon an uncore detent and so proceed to the rightfull taking of the distress And if it be found for the Plaintiff if the Cattell be not delivered he shall recover the value of the goods and costs and dammages if for the Defendant costs and dammages and a return habend WIlkins versus Danre Trin. 6. Jacobi rotulo 930. The Defendant avowed a rent charge granted to his Father in fee with a clause of Distress the Plaintiff demands Oyer of the deed which was a grant of the rent to one and his heirs to hold to him his Heirs Executors and Assigns to the use of the said H. and his Assigns during the life of a stranger And whether it was in fee or for life was the question and whether the habendum be contrary to the premises or do stand with the estate If the habendum had been to him and his Heirs during his own life this had been void but it was held otherwise for a strangers life and no occupancy can be of a rent CHappell versus Whitlock Mich. 6. Jac. rotulo 1316. The question was upon a liberty in the deed to make Leases provided they shall not exceed the number of three lives or twenty and one years and the lease was made for 80. years if two live so long if he make a Lease absolute it must not be above twenty and one years but in this case it is uncertain MAnning versus Camb Pasch 7. Jacobi rotulo 341. in Replevin the Defendant avows damage fesant by reason of a devise made to the Advowant by will for one and twenty years by one Lockyer who was seised of the Land in fee The Plaintiff saith that true it is that Lockyer was seised in fee of the Land in question and by the said Will devised the Land to the said D. for the said years in confidence only to the use of it if she should remain unmarried and afterwards and before the taking dyed thereof seised J. L. being then Sonne and Heir of the said Lockyer after whose death the Land descended to the said J. as Son and Heir c. after whose death the Legatees entred into the Land and were thereof possessed to the use and confidence above said the reversion belonging to the said J. L. And the woman took Manning to her Husband by reason wherof the said term devised by the said L. to the said A. and J. to the use and confidence above-said ended the said being under the age of 14. years to wit of the age of two years by reason whereof the custody of the Heir did belong to the Husband and Wife by reason whereof they seised the Heir and entred into the Land and maintained their count the Defendant confessed the Will and the devise for years in confidence and further that after the term he devised the Land to his sonne in fee and a demurrer The condition must go to the estate and not to the use COuper versus Fisher Trin. 6. Iac. rotulo 513. The Defendant as Administrator of Foster advows for rent reserved upon a Feofment made in fee of the Mannor reserving rent in fee to the Feoffer in the name of a Fee-farm-rent with a clause of Distress for the not paying of it and that the rent did desend to the issue of the Feoffer And for the rent due to the Heir the Feoffer in his life advows the Plaintiff in his barre to the Advowry saith that neither the intestate nor his Ancestors nor any other whose estate the said T. hath in the rent were ever seised of the same rent within forty years then last past before the taking c. And a demurrer pretending that he ought to alledg seisen in the Advoury with forty years And it was held by the whole Court that the seisin is not to be alledged being it was by deed made within the time of prescription neither is the seisin but where the seisin is traversable there it must be alledged and in no other case and the Judgment was given for the Advowant Mich. 8. Jacobi An Advowry was made for an amerciament in a Court leet and shews that he was seised of the Mannor in Fee and that he and all c. have had a Court leet and the Plaintif traverses that he was seised of the Mannor in Fee and the Court held If the Defendant had a reputed Mannor it would maintain the Avowry though he had indeed no Mannor in truth REynolds versus Oakley The Defendant avows for rent reserved upon a lease for life and the Plaintiff shews that the place in which c. did adjoyn to the close of the Plaintiff and that the Cattell against the Plaintiffs will did escape into the other close and that he did presently follow the Cattell and before he could drive them out of the close the Defendant did distrain the Plaintiff's Beasts And whether the Distress were lawfull or not was the question And the Court held in this case because the Beasts were always in the Plaintif's possession and in his view the Plaintiff would not distrein the Cattell of a stranger but if he had permitted the Beasts to have remained there by any space of time though they had not been levant and couchant the Lessor might have distreyned the Beast of a stranger BLown versus Ayer Hill 40. Eliz. rotulo 1610. In a Replevin the question was upon these words to wit the said Abbot and Covent granted to the said R. that he and his Assigns Fierboot Cart-boot and Plowboot sufficient by the appointment c. without making wast under the penalty of forfeiting the devise whether those words make a condition or no and
village is in question or could come in Issue yet it was resolved by the whole Court but him that those of the village of Bail might well know whether the Plaintif being an inhabitant within the village in which the Leet was were a chief Pledge at the Court or no for to have cheif pledges doth properly belong to a Leet which Leet is within the village and therefore they of the Mannor cannot have so good knowledge of the matter as they of the Mannor and village together and therefore they all ought to have been of both as in the Case of Common or a way from one village to a house in another village this ought to be tried of both villages and so also of the Tenure of Land in D. held of the Mannor of Sale the triall must be as well of the village where the Land lies as of the Mannor of which the Land is holden as it was adjudged Hill 45. El. in the then Queens Bench in the Case between Lovlace and and Judgement was reversed and see 6 H. 7. and Arundels case in my Lord Cooks Reports BVrglacy versus Ellington Burglacy brought a Replevin against Ellington for the taking of his cattell c. the Avowant pleads that one W. B. was seised of the place in which c. in his Demesne as of Fee and being so seised died by reason whereof the Land descended to one Crist. his Daughter and Heir who took to Husband the Avowant the Plaintiff in his Barr to the Avowry confesses that W. B. was seised and that it descended to C. who took to Husband the Avowant but he further said that the 16 of April primo Jac. the Husband and Wife by their Deed indented and inrolled did bargain and sell the same Land unto one Missenden and a Fine levied by them and that M. the 30 of James bargained and sold it to F. M. in Fee and he being so seised licensed the Plaintiff to put in his cattell the Avowant replies if in the said Bargain and Sale made by the Husband and Wife a Proviso was contained that if the said Ellington should pay one hundred pounds a year after then c. and pleaded the Statute of 13 Eliz. of usury with an averment that the profits of the Land were of the value of twelve pounds by the year the Plaintif rejoyned that true it is there is such a clause in the Indenture but he further said that before the sealing of the Indenture it was agreed by word that the said Ellington should have and receive the profits and not the Plaintif and thereupon the Avowant demurres and the Case was thus Ellington bargains his Land to M for the payment of one hundred pounds a yeare after to be paid and that the Bargainee should have the profits the bargainor enters as upon a void Sale because of the statute of usury for by the Proviso â—he is to have the hundred pounds and ten pounds for the forbearance and by the Law he is to have the profits and the which did amount above ten pounds by the hundred the bargainee to avoid the usury pleaded an agreement by word before the sealing of the Bargain and Sale and the question arising upon this was if the Bargainee might plead this verball agreement for the avoiding of the Deed which did suppose the contrary and Moore of Lincolns â—nne counsell was of opinion that he could not put that maxime that every thing must be dissolved by that by which it is bound and his whole argument depended upon that and he cited divers Cases as 1 H. 7. 28. 28 H. 8. 25. 1 Eliz. Dier 16. 9. Rutlands Case 5 Rep. and Cheyney 6 Case there but the whole Court without any argument were of opinion that he might plead the verball agreement and avoid the usury and first they all agreed that when a Deed is perfected and delivered as his Deed that then no verball agreement afterwards may be pleaded in destruction thereof as it is in the Cases put but when the agreement is parcell of the Originall contract as here it is it may be pleaded and secondly otherwise it would bring a great mischief being the custome so to do by word but if it had been expressed within the Deed that the Bargainee should have the profits and that it was delivered accordingly that no agreement or assignment of the profits could now avoid it for it is an usurious contract and therefore the whole court gave Judgement for the Plaintif that he might well plead the agreement Actions of Trespass and Battery JOhnson versus Turner Trin. 44 Eliz. Trespasse brought for breaking the Plaintifs house and the taking and carrying away his goods the Defendant justifies all the Trespasse the Plaintif as to the breaking of the House and taking the goods and the matter therein contained demurres upon the Defendants Barr the Defendant joins in demurrer in this form to wit because the Plaintif aforesaid as to the breaking of the House and taking the goods is sufficient demands Judgement and Judgement given in the Common Pleas for the Plaintiff and a Writ to inquire of Damages upon which Damages are assessed for the breaking of the House and taking the goods and whether the subsequent words to wit and the matter therein contained go to the whole matter in the Barr to wit to the carrying of the Goods away also for when the Defendant joyned in Demurrer with the Plaintiff he joyned specially to wit to the breaking of the House and taking the Goods but nothing of the carrying them away and so as to the carrying of them away nothing is put into Judgement of the court yet the Writ to inquire is for the whole and the Judgement also and the carrying of the Goods away being parcell of the matter and for which greater Damages are adjudged and that being not put into the Judgement of the Court by the Demurrer therefore the Judgement is erronious for there is a discontinuance as to the carrying of the Goods away which is part of the matter and this businesse concerned Mr. Darcy of the privy chamber concerning his patent for Cards PVrrell versus Bradley Pasch 1 Jacobi The Plaintif declares in Trespass wherefore by force and Arms such a day the Defendant did assault him and one Mare price six pounds from the person of the Plaintiffe then and there did take and Yelverton moved for the Defendant in arrest of Judgement and the Declaration was not good for the Plaintif did not shew any property in the Mare for he ought to have that it was his Mare or the Mare of the Plaintif for as it is laid in the Declaration the words may have two intendments that the property of the Mare was to the Defendant and then the taking was lawfull or that the property was in the Plaintif and then the taking was wrongfull and it being indifferent to whether it shall be taken most strongly against the Plaintif for his
an inquiry of damages between the Plaintiffs and Dawby according to the Award upon the Roll which is the warrant for the Venire facias and it was shewed that the Jury knew nothing of the matter for which they were warned for they ought to have onely given their Verdict against Scullard and not against Dawby and it was likened where two matters are in Issue and they give a Verdict for one and nothing for the other it is naught for all And this was the opinion of the whole Court except Justice Williams who relyed upon 9. Eliz. Dyer Sir Anthony Cook and Wottons Case in partition against two one confessed the Action and the other pleaded to Issue and the Venire facias was to try the Issue between the Plaintifs and the two Defendants and it was amended by the opinion of the Court But marke the difference for no damages are to be recovered in partition but it is otherwise in Trespass and therefore in Cooks Case it was found by the Court that it was as if a meer stranger to the Record had been named in the Venire facias WInckworth against Man Mich. 5. Jacobi The Plaintiff declares for a Trespass in one Acre of Land in D. and abuts that East West North and South and upon not guilty pleaded the Jury found the Defendant guilty in halfe an Acre within written and moved in Arrest of Judgment because upon the matter no Trespass had been found for there is no such moity bounded as the Plaintiff had declared for the whole Acre is onely bounded by the Plaintiff containing his Trespass within those bounds and the Defendant ought to be found a Trespassor within those bounds for otherwise it is not good and it is impossible for the moity of one Acre to be within those bounds But the whole Court except Fenner were of opinion that the Plaintiff should have his Judgement for if the Plaintiff layeth his Action for a Trespass committed in one Acre and the Jury find that onely to be in one foot of it it is good and here they have found the Trespass in the moity of the Acre bounded which is sufficient in this Action where damages onely are to be recovered but if it had been in Ejectment the Verdict had been naught for it is incertaine in what part he should have his Writ of Habere facias possessionem BVckwood against Beale Mich. 5. Jacobi In an action of Trespass it was sayd by the Court That if a Sheriff execute a Capias and there is no Originall to warrant it he is excused it for he is not to examine whether the Originall be sued out or no and for this Trewyrmards Case 38 H. 8. And so if a Bailiff execute a Process made to him by the Steward for damages recovered in the Mannor in a thing in which they had no authority to hold Plea The Bailiff is excused and shall not be punished because he is not to examine the jurisdiction of the Court 7 H. 4. 27. 22 Ed. 3. 22. Ass But if Process come to the Sheriff to arrest J. S. and he arrest J. N. or to make execution of the Goods of J. S. and he make execution of the Goods of I. N. he is a Trespassor for in this Case he must take notice at his perill of the Person and the Goods for when he arrests I. N. or does execution upon his Goods he doth it without warrant And so if I. S. sue a Replevin to the Sheriff to replevin his Cattell and I. S. comes to the Sheriff and shews him the Cattell of I. N. and saith they are his Cattell and he makes replevin of the Cattell he is a Trespassor to I. N. and the Sherif may have an Action of Trespass against I. S. for his false information for the Sherif must at his owne perill take notice whose Cattell they be 3 H. 7. 14 H. 4. but if there be any fraud in the matter he may averr that MOnrey versus Johnson An Action of Trespass brought for entring into a mans House The Defendant pleads that he was a Constable c. And it was held by the whole Court that a Constable may justifie his entry into the House of any man for Felony or Treason STrickland against Thorpe Pasch 6. Jacobi Thorpe brought an Action of Trespass against Strickland wherefore he broke his close the 20. of June 3 Jacobi with a continuance thereof untill the sixth of November after and upon a not guilty pleaded it was found for the Plaintif and Judgment entred but it was entred nothing of the Fine because it is pardoned And upon a Writ of Errour brought he assigned for Errour that the Judgment should have been entred with a Capiatur because the King and Parliament pardoned all offences before the 25. of September and therefore the Trespass being alleadged to have been continued untill the sixth of November following onely part of the Trespass was pardoned and therefore as to that it should have been a Capiatur but the whole Court were of opinion that the Judgment was well entred for the first Trespass which was by force and Armes being pardoned all that depends on that was pardoned and the continuance of the Trespass being onely as to the entring and consuming the Grasse is for increase of damages onely but not for the Kings Fine for the first entry being only with force and Arms makes the Trespass REpps against Bonham Trin. 6. Jacobi The Case in Trespass was that a Feofment was made of three Acres to R. Repps and Mary his Wife for their lives and afterwards to the first second and third Son of the body of the sayd Mary and after to the heirs of the body of the said Mary by the said Richard to be begotten and they had no Son but one Daughter Richard levies a Fine of the Land and Mary dyes the Plaintif enters and the Defendant pleads Richards Fine and adjudged that the Plaintif is not barred by the Fine for Richard had onely an Estate for life and the Estate tayle was in the woman only by the opinion of the five Justices for they said that the Husband is only named to declare what heir of the body of the woman should inherit and not any Heir but such an Heir as Richard her present Husband should beget And if the limitation had been to the Heirs of the body of the woman by her Husband and by I. S. to be begotten the Inheritance had been only in the woman but by the last words for if shee had no Heirs by her Husband and afterwards marries I. S. the Heirs that shee should have by I. S. should inherit And they were all of opinion that the Inheritance was only in the woman because the word Heir which makes the estate of inheritance is annexed only to the body of the woman but if it had been to the Heirs which the Husband should have got of the body of the woman there the
BAnks against Barker Hill 12. Jac. rotulo 1979. In an Action of Trespass the venire facias was well awarded upon the case of the venu in Westown and of the Mannor of D. and the Writ of Venire was mistaken to wit of the venu of Westown and exception being taken after tryall the Court was moved for the amending of the venire facias by the roll and it was denyed because the Jury did come of another venu then they ought by the Law of the Land to come and therefore could not be amended but afterwards the Court seemed to be of an opinion that the awarding of the venu in the roll was mistaken because it was of the venu of the Villiage and Mannor and it should have been of the Mannor only being to try a custome of the Mannor FOrrest against Headle Hill 13. Jac rot 1123. An Action of Trespass brought and a continuando of the Trespass unto the day of the shewing forth the Plaintifs Originall to wit the 20. day of November which day was after the shewing forth of the Originall and because the Jury gave damages for the whole time which ought not to be it was proved that the Judgment upon the verdict might stay but by the whole Court the videlicet was held idle and Judgment given for the Plaintiff COcks against Barnsley Hill 10. Iac. rotulo 2541. An Action of Trespass brought and a speciall verdict found and the question was whether Land held in ancient Demesne was extendable for debt and an action of Trespass brought for that cause And Justice Nichols held it was extendable for otherwise if it should not be extendable there would be a fayler of Justice for if a Judgment should be had against a man that had no other Land but what was in ancient Demesne and that it could not be extendable there would be a fayler of Justice which the Law doth not allow of but an Assize or a re-disseisin doth not lye of Land in ancient Demesne because of the Seisin that must be given by the Common Law and it would be prejudicial to the Lord which the Law allows not and Wynch and Hubbard were of the same opinion For ancient demesne is a good plea where the Free-hold is to be recovered or brought in question but in an action of Trespass it is no plea. And note that by this execution neither the Free-hold nor Possession is removed but only the Sheriffe enters to make execution upon a Judgment had in the Common bench in debt which is a proper Action to be brought there WRight and his Wife against Mouncton Hill 12. Iac. rotulo 43. An Action of Trespass brought to which the Defend pleaded not guilty And the Husband only made a challenge that he was servant to one of the Sheriffs and prayes a processe to the Coroners and the Defendant denies the challenge and therefore notwithstanding the challenge the Venire issued to the Sheriffs and after a tryall exception was taken because the woman did not joyne in the challenge and it was held that the Husband and Wife should joyn in the challenge although the cause of challenge proceded from the Husband only but after tryall it was helped by the Statute of Ieofailes and judgment given for the Plaintiff BIde against Snelling Hill 16. Iac. rotulo 1819. An Action of Ejectment brought and also a Battery in one and the Writ and after a verdict it was moved in Arrest of Judgment because the Battery was joyned with the Ejectment The damages were found severally and the Plaintiff had released the damages for the Battery and prayed Judgment for the Ejectment Winch held the Writ naught but Judgment was given for the Plaintiff notwithstanding STeward and his Wife against Sulbury An Action of Trespass brought wherefore by Force and Armes the Close of the Wife while she was sole at D. hath broken and the wood of the said D. to the value of 1005. there lately growing hath cut down and carried away and in his Count shews that he hath cut downe two acres of wood and exception was taken because he declared of so many acres of wood and not of so many loads of wood to wit twenty c. loads and held by the Court to be a good exception BLackeford against Althin Trin. 14. Jac. rotulo 3376. An action of Trespass brought wherefore by Force and Armes a certain Horse of the said Plaintiffs took away c. The Defendant conveys to himselfe a certain annuity granted to him by one John Hott The Plaintiff shews that one William Hott Father of the said Iohn Hott the Grantor was seised of Land in Fee which Land was Gavel-kind Land and devised it to his Wife for life the remainder to Iohn Hott the Elder and Iohn Hott the Younger his Sonne and the Heirs of their bodies And afterwards William dyed and the Woman entred and was seised for life and the two sonnes entred and were seised in tayl and being so seised Iohn Hott the younger had issue Iohn Hott c. and traverses without this that Iohn Hott the Father at the time of granting the annuity was seised of the Tenements aforesaid with the appurtenances in his Demesne as of fee as c. And the Defendant as before saith that the said J. H. the Father at the time of the granting the annuity aforesaid was seised and after the tryall it was moved in Arrest of Judgment supposing it was mistried because the issue was that the said J. H. the Father at the time of the grant c. And it doth not appear that the said J. H. was nominated Father neither could it appear that the said J. H. was the Father and so the word Father was idle and the Court were of opinion that it was helped by the Statute of Ieofailes and the word Father was idle and judgment was given for the Plaintiff A. brought an Action of Battery against the Husband and Wife and two others the Wife and one of the others without the Husband pleads not guilty and the Husband and the other pleaded seu assault demesne and tryed and alledged in arrest of Judgment because the Woman pleaded without her Husband and Judgment was stayed and a Repleader alledged and this case was confirmed by a case which was between Yonges and Bartram HArvy against Blacklole Trin. 8. Jacobi rotulo 1749. An Action of Trespass brought wherefore by force and Armes his Mare so strictly to a Gelding did fetter that by that fettring the Mare aforesaid did dye If a stranger take a Horse that cometh and strayeth into a Mannor the Lord may have his action of Trespass If my stray doth stray out of my Mannor and goeth into another Mannor the day before the yeare be ended I cannot enter into the other Mannor to fetch out the stray If I take an Horse as a stray and onother taketh him from me the Action lyeth not by the Owner against the second taker
Lords Estate 231. Copy-holder what Action he shall have ibid. Capiatur upon a Judgement assigned for Error where 211. Common appendant apportionable aliter appurtenant 180. Copy-holder barred by a Fine if not claiming within five years 181. Cognisance as Bailiff 181. Commoner may take the Cattell of the Lord damage feasant where 187 Common in a field and Acres unsown sowing of parcell shall not destroy the Common 189. Consideration to raise an use 193. Challenge where it lyeth 194. 195. 196. Challenge none against the Jurors returned by the Eslizors 194. Commoner what Actions he shall have and how 227. Commoner may have an Assise against the Lord 227. Common is incident to a Copy-hold Estate 220. Commoner cannot chase the Lords Cattell if they surcharge the Common 208. Confession after Issue joyned refused 196. Commoner cannot bring an Action but the Lord may 197. Constable cannot detain one but for Felony 198. Continuando where proper 223 224. 234. Cursus aque granted 229. D. DOuble prosecution for one thing actionable where 12. Demand and deniall makes a good conversion 17. Denis age pleaded to a Bond 30. Distresse where good ratione concessionis non posaessionis 32. Devastavit may be by paying of money upon an usurious contract 33. Distresse in a Court Baron by prescription 36. Devise Executory where good 41. Devise of Land in Tail conditionally 45. Demand not necessary 10. Debt how and where it lies 50 Devastavit returned where 50. Debt lies for money levied 51. Debt against a Sheriffe for an Escape 51. Debt in Debet and detinet where 56. Default of the clerk amended 56. Demand alledgable ibid. Debt for performance of covenants 61. Debt upon Obligation in Italian 62. Debt for non performance of award 65. Damages from request 70. Deprivation given in Evidence 73 Dammages where to be severed 73 Debt lies not for fees of a Sollicitor 74. Debtee take Administration 74. Demand necessary in nomine penae 76. Devise of the profits good of the Land it self 80. Debt against an Executor after full age for Devast of an Admistrator duravit minor aetate 81. Debt lies for him for use money is delivered 83. Debt upon the Statute of perjury 83. 84. Debt against the Bailiff 86. 87. Debt upon the Statute of Edw. 6 for Tithes 87 Debt for Rent Arrear 89. Debt for Flemish money but demanded by English value 91 Demand of Rent where to be 97 Debt for Tithes Plaintiff need not to be named Rector 99 Debt for Tithes the statute mistaken is not good 101 Debt by a Bill for money received to anothres use 104 Debt for non-performance of Covenants 114 Devastavit when it ought to be retained 117 Debt upon a Lease made to an Infant 121 Debt for Tithes after the toarm ended 124 Demurrer to an action for non-performance of an Award 125 Dower against the Heir or Committee 127 Dower of Tythes how 172. Demand when to the Parson when to the Land 135 Debt contingent cannot be discharged where 110 Deed of gift good against him who makes it non obstante 13. Eliz. and against his Executors and Administrators 111 Demand of Rent to avoid a Lease where to be made 138. Discontinuances 155. Darraign Presentment where 159 160. Demurrer for doublenesse of Plea 164. Devise for years in confidence 196. Demand not necessary in Replevin for Rent 171. Distresse of a thing intire by two no return in Replevin adjudged 171. Distresse for Common Right 177 Distresse where it is good for the Rent but not for the nomine penae without demand 179 Demand of Rent-service how 181. Demurrer to part of the declaration what it effects 92 Disseisin of a Common what 197. Damages for Trespass locall cannot be mitigated by the court 204. Declaration shall not abate for false Latine 206. Damages none in partition 209. Damage where it shal be intire 233 Damage released for part 235. E. ELegit how executed 38. Elegit from the Teste binds Goods and Chattells 38. Extent upon Extent 39. Estovers 44. Entry Writ filed after the death of the Tenant 44. Error as to Costs where 3. Exception to a Declaration 8. Executor at what age 46. Exceptions to an Award 48. Exceptions to a Plea 51. Exception to a Venire facias 52. Estoppell 57. Error assigned 65 66. 59 Executor an Assign in Law 78 Executor de seu tort shall not prejudice the rightfull 79 Escape against a Bailiffe of a liberty 80 Executor his election for part is not good 83 Escape lies not against the Sheriffe where 85. 119 120 Executor de seu tort cannot retain money to pay himselfe 104 105 Election of Execution either against Principall or Baile 122 Error lies not before 〈◊〉 value 〈◊〉 inquired of 〈…〉 Executor shall not paâ—… 4. Jac. cap. 3. 107 Elegit to a forreign Sheriffe upon a testatum in London 107 108 Ejectment doth not lye De aequae cursu 142 Ejectment sufficient by a servant in present Relation 143 Ejectoris in traverunt and after he did expulse in num singulari 149 Essoine lyes by Writ of Journeys accompts though allowed in the first Writ 152 Essoine where it lyeth 154 Extinguishment of Common by inclosure where 174 Exceptions to an Avowry 179 Evidence what shall be given 207 Enquiry of Damages the Plaintiff not bound to prove the property of his goods taken but the value only 214 Estovers if the Owner cut all the wood downe what remedy 220 Exception taken for incertainty 232 Estray how to be used and the nature of it 236 F. FRench Pox actionable 11 Filching fellow not actionable 13 Forsworn Knave where it is actionable 13 Forging Knave where actionable 16 Feme where not bound to performe the Covenant of her Husband 31 Fraud not â—â—nended 45 Feme Covert cannot convert 3 Feoffment to uses 60 Feme Covert cannot make a letter of Attorney 134 Formidon in descender 152 153 Felony committed is good cause for to arrest one suspected but not to defame one 2 Feme cannot plead without her Husband 197 Free Warren what 228 G. GRant by the King where good 27 Grant not enlarged by a bare recitall 32 Guardian in socage who 40 Gift by Deed void quoad chose and Action 40 Goods not saleable upon execution out of a Court Baron without Custome 41 Guardian of the spiritualties who 43 Generall release pleaded 54 Grantee of a Reversion what action he shall have 56 H. HAbeas Corpus to the Marshalsey 61 Hue and Cry 155 Hundred charged in Robbery 156 Hundred not chargeable after the yeare and day 156 Hundredors in a Jury how many necessary 193 Husband and Wife where they shall be joyned and where severed in an action 209 I. INcertainty in the Declaration 10 Justification disallowed 11 Indebilatque assumpsit where good 14 Iustification by the Sheriffe 17 Judgment arrested for default in the Declaration 21. 23 Judges of the fact who 36 Inquisitions where naught 38 Juror appearing cannot be discharged 41 Issue cannot be bastarded after death
observed with the feare of God And another Canon That custome of not Tything or of the manner of Tything if they paid lesse then the tenth part see Panormitan upon that seek of the Case between Vesey and Weeks in the Exchequer upon the Statute of 27. H. 8. for the dissolution of small Monasteries Also the Lord Darcy in quo warranto was discharged of purveyance by Patent granted by the King Edward 6. of such priviledges which such a one had and by the same reason the King shall be discharged of Tythes by the Act of Parliament also he remembred the Book of 10. Eliz. Dyer 277. 60. to be resolved in the point and also 18. Eliz. Dyer the Parson of Pekerks case 399. 16. upon the Statute of 31. H. 8. and so concluded and prayed judgment for the Plaintiffe and that the Prohibition should stand and it was adjourned Trinity 9. Jacobi Priddle against Napper UPon a speciall verdict the cause was The Prior of Mountague was seised of an Advowson and of divers acres of Land and the 20. of H. 8. the King licensed him to appropriate that and 21. H. 8. the Bishop which was Ordinary assented and after that the Church became void that the Prior might hold it appropriate and 27. H. 8. the Incumbent dyed so that the Appropriation took effect and was united to the possession of the Rectory Appropriate and also of the Land out of which Tythes were due to the said Prior in respect of the said Rectory and then the Priory is dissolved and the Impropriation and the Lands also given to the King by the Statute of 31. H. 8. which granted the Impropriation to one and the Lands to another And if the Patentee of the Land shall hold it discharged of the payment of Tythes in respect of that unity was the question And Harris Serjeant for the Defendant in the Prohibition that the unity ought to be perpetuall and lawfull as it was adjudged between Knightley and Spencer 2 Coke 47. a. cyted in the Arch-Bishop of Canterburies case and for that unity by or by lease for years or for two or three years as in the case at the Barre shall not be sufficient to make discharge of the payment of Tithes and so it was adjudged Pasche 40. Eliz. Rot. 454. between Chyld and Knightley that is that the unity of the possession ought to be of time that the memory of man doth not run to the contrary And in the argument of this Case it was said by Popham cheif Justice that if no Tithes were paid after the Statute that then it shall be intended that no Tithes were paid before the Statute and so he concluded and prayed Consulation see 2 Coke 48. a. The Arch-bishop of Canterbury for the reason by which unity of possession is discharged of payment of Tithes that is for that that some houses of Religion were discharged by Buls of the Pope and many were founded before the Councell of Lateran and for that it shall be infinite and in a manner impossible to find by any searches the means by which they are discharged the unity is no discharge in respect of it selfe for the reasons aforesaid and none may know if Tithes were paid or not before the union And if Tithes be not paid in time of memory by a house of Religion and they lease of that for years and receive Tiths then the lease expiâ—es two yeares before the Dissolution of the same house the King shall not be discharged of the payment af Tithes by the Statute of 31. H. 8. by Coke and Walmesley against Warburton and Foster Dorwood against Brikinden UPon the Statute of 5 Ed. 3. a man libelled in the Spiritual Court for Wood cut and a Consultation was granted Yet the Defendant in the Court Christian might have a new Prohibition if it appeared the first Consultation was not duly granted So if a man libell for Tithes for divers years and Prohibition is granted for part of the years and after that a Consultation is awarded yet the Plaintiffe may have a new Prohibition for the residue of the time notwithstanding the Statute of 50 Ed. 3. and that it be upon one selfe same libel Admirall Court NOte that the Admirall cannot imprison for any offence but if the Court hath Jurisdiction of the Originall cause and sentence is there given this sentence may be executed upon the Land 19. H. 6. But no Ordinary may meddle out of his own Diocesse 8. H. 6. 3. 2. H. 4. The Parson of Salt-ashes Case That this Court tooke notice of Jurisdiction of all Ecclesiasticall Courts and Ordinaries for they write unto them for tryall of Bastardy and Matrimony And there are 3. Legates First a born Legate as the Arch-bishop of Canterbury and Yorke Remes and Pylazam Second a Latere as all Cardinalls The third a Lagate given as those which have their Authority by commission and Lynwood Provinc saith that the Arch-Bishop of Canterbury as Arch-Bishop cannot meddle out of his Diocesse of Canterbury and his Peculiars but as a Legate borne which is in respect of his Office he hath prerogative and if a man inhabit in one Diocesse and ought to pay tithes to another which inhabits in another Diocesse there the Ordinary ought to prefer the suit to the Metrapolitan but seek what Ordinary shall transfer it Trinity 9. Jacobi 1610. in the Common Bench. Jones against Boyer HEnry Jones Parson of Bishopton sued Bowen the Executor of Holland the last Incumbent in the Arches for Dilapidations upon which a Prohibition was prayed upon the statute of 23. H. 8. for that that it was sued out of his Diocesse which was Saint Davids but it appears that the Vicar generall of the same Ordinary hath made generall request to the Metropolitan to determine that without shewing any cause speciall and if the inferiour Ordinary may transmit any cause but only for the causes mentioned in the statute of 23. H. 8. And if the causes ought to be expressed in the Instrument was the question note that the generall words of the statute of 23 H. 8. chap. 9. Rastall Citation 2. are afterwards many particulars or in case that any Bishop or any inferiour Judge having under him Jurisdiction in his own right and title or by commission make request or instance to the Arch-Bishop Bishop or other inferiour Ordinary or Judge to take treat examine or determine the matter before him or his substitute And that to be done in case only where the Law civill or Canon doth affirm execution of such request or instance of Jurisdiction to be lawfull or tollerable and for the better discussing of this question the Judges had appointed to heare two Doctors of the Civill Law which at this day attended the Court the first Doctor Martin said that these generall words have reference to the Executor and not to the maker of the request and this request may be made for all causes but ought to be made to him which hath
any private Prison And it seemes if any do against this Statute that an action of false Imprisonment lies For every one ought to be committed to the Common Goal to the intent that he may be dilivered at the next Goale delivery and also if any be committed to any of the Counters in London unlessthat it be for debt that an action of false Imprisonment lieth for that for these are private Prisons for the Sheriffes of London for Debt only Note in Debt for ten pound the Defendant confesseth five pound and for the other five pound pleades that he oweth nothing by the Law and at the day the Plaintiff would have been nonsuited And it was agreed by all that if he be nonsuited that he shall loose all as well the debt confessed as the other Note the yeare of the Reigne of the King was mistaken in the Record of nisi prius but the Record which remaines in the Court was very well and it was amended For insomuch that it was a sufficent and certaine Issue this was sufficent Authority to the Justices of nisi prius to proceed but nothing being mistaken but the yeare of the Reigne this shall be amended for it is only the misprision of the Clark see Dyer 260. 24 25. 9. Eliz. 11. H. 6. Note also if Tenant in Dower be disseised and the Disseisor makes a Feoffment the Tenant in dower shall recover aâ—l their dammages against the Feoffee for she is not within the Statute of Glocester chapter 1. By which every one shall answer for their time Hillary 8. Jacobi 1611. in the Common Bench. Reyner against Poell See Hillary 6. Jacobi fol IN second deliverance for copy-hold in Brampton in the County of Huntington the case was copy-hold Lands were surrendered to the use of a woman and the Heires of her Body and she took a Husband the Husband and the Wife have Issue 2. Sonnes and after Surrenders to themselves for their lives the remainder to the eldest Son and his Wife in fee the Husband and the Wife dye the eldest Son dies the youngest Son enters and Surrenders to the use of a stranger And the sole question upon which they relied if the Wife was Tenant in tayl or if she had fee simple conditionall and it was argued by Nicholls that the Wife was Tenant in tayl and to prove that he cited 2. cases in Littleton where it is expresly mentioned who may be Tenant in tayl see Sect. 73. 79. And who may have a Formedon see in the discender sect 76. And he grounded that upon reason for that that it cannot be denied But that fee simple might be of copy-hold according to the custome and as well as fee simple as well it may be an estate tayl for every greater containes his lesse and he said that this is grounded upon the reason of other cases as if the King grant to one to hold Plea in his Court of all actions of debt and other actions and then one action of debt is given in case where it lieth not at the common Law yet the Grantee may hold Plea of that But if a new action be framed which was not in experience at the time of the grant but is given after by Statute the grant shall not extend to that and to the Objection that copy-hold is no Tenement within the Statute of gifts c. As to that he saith that that shall be very well intended to be within the Statute as it is used and 4. H. 7. 10. A man makes a gift in tayl by deed the Donee hath an estate tayl in the deed as well as in the Land so Morgan and Maxells case Commentaries 26. And so of Office Honour Dignity and copy-hold also and Dyer 2 and 3. Phil And Mary 114. 61. It is found by speciall verdict that copy-hold Lands have been devisable by copy in tayl and so it is pleaded 2 and 3 Eliz. Dyer 192. b. And when a lesser estate is extracted out of a greater that shall be directed and ordered according to the course of the Common Law and for that the Wife shall have plaint in nature of a Cui in vita and 15. H 8. b. Title Tenement by copy of Court Roll it was said for Law that tayl may be of a copy-hold and that Formedon may well ly of that in descender by protestation to sue in nature of a Formedon in descender at the Common Law and good by all the Justices for though that Formedon in descender was not given but by Statute Yet now this Writ lieth at the Common Law and shall be intended that this hath been a custome time out of mind c. And the Demandant shall recover by advise of all the Justices and the like matter in Essex M. 28. H. 8. And Fitz. affirms that in the chamber of the Dutchy of Lancaster afterwards and also he saith that when custome hath created such Inheritances and that the Land shall be descendable then the Law shall direct the discent according to the Maximes and Rules of the Common Law as incident to every estate discendable and for that shall be possessio Fratris of a copy-hold estate 4. Coke 22. a. Brownes Case b. And there 28. a. Gravener and Tedd the custome of the Mannor of Allesley in the County of Warwick was that copy-hold lands might be granted to any one in fee simple and it was adjudged that a grant to one and the Heires of his Body is within the Custome for be that Estate Tayl or Fee simple conditionall that is within the Custome So he may grant for life or for yeares by the same Custome for Estate in Fee simple includes all and it is a Maxime in Law to him that may do the greater it cannot be but the lesse is lawfull and over he said that in all cases where a man was put to his reall action at the Common Law in all these cases a copy-holder may have plaint with protestation to prosecute in â—…re of the same action and to the objection that there cannot be an Estate tayl of copy-hold Land for that that the Tenant in tayl shall hold of him in revertion and shall not be Tenant to the Lord to that he said that this Estate may be created as well by Cepit extra manus Domini as by Surrender and then there is not any reversion or remainder but it is as if Rent be newly granted in tayl but he said there may be a reversion upon an Estate tayl as well as upon an Estate for life and he did not insist upon the Custome but upon this ground that if the Custome warrant the greater Estate which is the Fee simple the lesse shall be included in that And he did not argue but intended that it would be admitted that discent of copy-hold Land shall not take away entry nor Surrender of that nor shall make discontinuance so prayed Judgement and â—…rne Harris the youngest Serjeant argued for the Plaintiff that it shall be
have an Action upon the Statute of Offenders in Parkes for hunting in two Parkes 13 H. 7â—12 and 8 Ed. 4. 〈◊〉 One Action of Trespasse for Trespasses made at severall times and so one Action of Debt for diverse Contracts 11 H. 6. 24. by Martin 3 H. 6. Trespas 3 H. 4. But he argued that in reall or mixt Actions as ravishment of Ward for severall Wards or one Quare impedit for severall Churches this shall not be good Fitz. Ward 52. 3. H. 6. 52. And also he said that the Statute of 32 H. 8. chapter 34. by expresse words gives the same remedy to Grantees of Reversions that the Grantors themselves had and the Grantor without question may have an Action if he have not granted the Reversion and so he concluded and prayed Judgment for the Plaintiff and it was adjourned Hillary 8. Jacobi 1610. In the Common Bench. Sturgis against Dean see T. 65. A Man was bound to pay to the Plaintiff ten pound within ten dayes after his return from Jerusalem the Plaintiff proving that he had been there and the Plaintiff after ten dayes brought his Action upon the Obligation without making of any proofe that he had been there and if that were good or that he ought to make proofe of that before he brings his Action this was the question and also he ought to make proofe then what manner of proofe and it was moved by Haughton that when a thing is true and is not referred to any certain and particular manner of proof as before what shall be done or how the proofe shall be made the party may bring his Action and the other party may take his Issue upon the doing of the thing which ought to be proved the triall of that shall be proofe sufficient and in his count he need not to aver that he had been there see 10 Ed. 4. 11. b. c. 15 Ed. 4. 25. 7 R. 2. Barr 241. And here also the proofe if any should it ought to be made within ten dayes the which cannot be made by Jury in so short a time as it is said by Choke in 10 Ed. 4. 11. b. though that he agreed that when a man may speake of proofe generally that shall be intended proofe by Jury for that that this is the most high proofe as it is said in Gregories Case 6 Coke 20. a. and 10 Ed. 4. 11. b. But of the other part it was said by Sherley Serjeant that true it is that proofe ought to be made for the Defendant as the Case is in 10 Ed. 4. 11. That then such proofe should be sufficient for the Plaintiff may bring his Action before that the Defendant may by possibility bring his Action but where the Plaintiff ought to make the proofe there he ought to prove that before that he bring his Action and it shall be accounted his Folly that he would bring his action before he had proved that but all the Justices agreed that the Plaintiff need not to make any other proofe but only by the bringing of his Action but the Lord Coke took exception to the pleading for that that the Plaintiff hath not averred in his replication that he was at Hierusalem but generally that such a day he returned from thence and he said that a man might returne from a place when he was not at the same place as if he had been neere the place or in the skirts of Hierusalem and upon that it was adjourned see the beginning of that Trinity 8. Jacobi 462. a. Mich. 13. 200. and 204. Hillary 8. Jacobi 1610. in the Common Bench. Wickenden against Thomas THe Case was this 2. Executors were joyntly made in a Will one of them releases a Debt due to the Testator and after before the Ordinary refuses to Administer and it was agreed by all the Justices that the release was Administration and for that he hath made his Election and then the Refusall comes too late and so is void Bedell against Bedell IN wast the case was this A Man seised of Lands makes his Will and of that makes two Executors and devises his Lands to his Executors for one and twenty yeares after his Death upon trust that they should permit A. To injoy that during and to take all the profits all the Terme if he so long lived and if he â—ied within the Terme then that B. should take the profits and so with others remained in the same manner with the remainder over to a stranger in tayl one of the Executors refuseth to prove the Will or Administer and also to accept the Terme the other executor proves the Will Administers the Goods and enters into the Land according to the Lease and that assignes to A. according to the trust reposed in him and after that he in reversion in tayl brings an Action of wast against the Executors which proved the Will and he proved all the matter aforesaid and that before the assignement and that before that no wast was made and it seemes to all the Judges that this was a good Plea for the waveing of one Executor is good and though that he might after Administer as the book of 21. Ed. 4. Is for that the Interest of his Companion preserves his Authority where are 2 or more But if there be but one Executor and he refuseth and the Ordinary grants Administration to another he cannot then Administer againe and Coke cheife Justice cited that one Rowles made the Lord Chancellor which then was the cheife Justice of England and the Master of the Rolls his Executors and died and they writ their Letters to the Ordinary witnessing that they were Imployed in great businesses and could not intend the performance of the said Will and that for that they desire to be free of that and that the Ordinary would committ the Administration of the goods of the said Testator to the next of blood and this sufficient refusall And upon that the Ordinary committed the Administration accordingly And to the pleading that no wast was made before the assignement they all agreed that this was good and so it was adjourned for this time A man sould his Land upon a condition and after took a Wife and died the Heire entred for the Condition broken yet the Wife shall not be endowed so if the Condition had been broken before the Death of the Husband if he had not entred for he had but title of entery Hillary 8. Jacobi 1610. in the Common Bench. As yet Doctor Husseys Case MOore against Doctor Hussey and his Wife and many others in Ravishement of Ward The case was the Ward of Moore was placed at the University of Oxford to be instructed in the liberall Sciences and was married by the Wife of Doctor Hussey to the Daughter of the said Wife which she had by a former Husband And for that Moore brought this Writ against Doctor Hussey and his Wife and the Minister which married them and all
Cletherwoods Case of the Middle Temple but he said that Prescription to have all the Vesture of the Land is good for such a time and at the first day of the Argument of this Case Foster Justice seemed that the prescription was good and might have reasonable beginning that is by Grant as if they have Common together and they agree that one shall have all for one part of the yeare and the other for another part of the year and that shall be good to which Coke answered that that cannot be by Prescription to have that as Common and at another day Coke cited Shirland and Whites Case to be adjudged 26 of Eliz. in the Kings Bench to be prescription to have common in the Waste of the Lord and to exclude the Lord to have common in the place and adjudged to be void prescription and also he cited a case between Chimery and Fist where prescription was to have common in the Soile of the Lord and that the Lord shall have feeding but for so many cattell and adjudged that the Prescription was not good to exclude the Lord but a man may prescribe to have the first Crop or the first Vesture of anothers Land and it is good and with that agrees the resolution in Kiddermisters Case in the Star-Chamber Warburton justice said that this prescription is not for the excluding of the Lord but for their good ordering of their Lands according to the Book of 46 Ed. 3 25. before cited that the great Cattell should have the first feeding and after that the sheep Coke said that if it had appeared by the pleading that all the Demesnes of the Lord ought to be common and in consideration that the Lord had inclosed part and injoyed that in severall the Free-holders and Tenants of the Mannor which have Common over all the Residue and exclude the Lord and this shall be good by prescription and it is adjourned see 15 Ed. 2. Fitzherbert Prescription 51. And afterwards in Trinity Tearme 1612. 10. Jacobi this case was moved againe and all the Justices agreed as this Pleading is Judgment shall be given for the Plaintiff and they moved the parties to replead Pasch 9. Jacobi in the Common Bench. Portington against Rogers Trin. 8. Jacobi Rot. 3823. MARY Portington brought a Trespasse against Robert Rogers and others Defendants for the breaking of her house and Close upon not guilty pleaded and speciall Verdict found the Case was this A man had Issue three Daughters and made his Will in writing and by that devised certain Land to the youngest Daughter in taile the Remainder to the Eldest Daughter in taile the Remainder to the middlemost daughter in taile with Proviso that if my sayd daughters or any of them or any other Person or persons before enamed to whom any estate of Inheritance in possession or Remainder of in or to the said Lands limited or appointed by this my last Will and Testament or to the Heires before mentioned of them or any of them shall joyntly or severally by themselves or together with any other willingly apparently and advisedly conclude and agree to or for the doing or execution of any Act or Devise whereby or wherewith the said Premises so to them intailed as aforesaid or any part or parcell thereof or any estate or Remainder thereof shall or may by any way or means be discontinued aliened or put away from such person or persons and their Heires or any of them contrary to mine intent and meaning in this my Will otherwise then for a Joynture or shall willingly or advisedly commit or do any act or thing whereby the premises or any part thereof shall not or may not discend remaine or come to such persons and in such sort and order as I have before limited and appointed by this my last Will and Testament then I will limit declare and appoint that then my said Daughter or Daughters or other the said person or persons before named and every of them so concluding and agreeing to or for the doing or execution of any such act or Devise as is aforesaid shall immediately from and after such concluding and agreeing loose and forfeit and be utterly barred and excluded of and from all and every such Estate Remainder and benefit as shee or they or any of them should might or ought justly to have claime Challenge and demand of in or to so much thereof as such conclusion or agreement shall extend unto or concern in such manner and forme as if she or they or any of them had not been named nor mentioned in this my last Will and Testament and that the Estate of such person c. shall cease and determine c. And after that the youngest Daughter tooke a Husband and then shee and her Husband concluded and agreed to suffer a Recovery and so to barr the Remainder and upon that the Plaintiff being the eldest Daughter entred and upon the Entry brought this Action And Harris Serjeant argued for the Defendant that this shall be a condion and not a limitation and he said that Mews and Scholiasticas Case is not adjudged against him see the Commentaries 412. b. And it shall be taken strictly for that that it comes in Defesans of the Estate and then admitting it is a condition it is not broken for this conclusion and agreement is only the agreement of the Husband and though that the Wife be joyned yet be that for her benefit or prejudice that shall be intended only the Act of the Husband and he only shall be charged as in the 48 Ed. 3 18. Husband and Wife joyne in Contract and the Husband only brings Action upon that and 45 Ed. 3. 11. Husband and Wife joyne in Covenant and the Action was brought against them both and it was abated for that shall charge the Husband only 24 Ed. 3. 38 The Husband and the Wife joyne in an Action upon the Statute of Laborers and the Writ abated and so in cases of Free-hold as 15 Ed. 4. 29. b. The Husband and the Wife being Tenants for life joyne in praying aid of a stranger and this shall be no forfeiture of the Estate of the Wife and 48 Ed. 3. 12. a. Statute Merchant was made to the husband and Wife and they joyned in Defeasans that shall not be Defeasans of the Wife and 28 H. 8. Dyer 6. The Husband of the Wife Executrix aliens the Tearme which was let to the Testator upon condition that he or his Executors should not alien and by Baldwin by the alienation of the Husband the Condition was not broken for it was out of the words so here the agreement and conclusion being made by Husband and Wife shall be intended the Act of the Husband only and so out of the Words and by consequence out of the intent of the Condition and shall be taken strictly but he seemed that the Condition shall be void for the Words conclude and agree are words uncertain for what
shall be said conclusion and agreement within the said Provision and for that as it seemes it is so uncertain as going about but admitting that it is good yet it shall be good but to some purpose but not to restraine the Daughter which was Tenant in taile to do lawfull Acts as to suffer a Recovery or to levy a Fine as it is resolved in Mildmayes case 6 Coke 40. By which it appears that she hath as well power to dispose that by Recovery as of Fee simple notwithstanding that the Reversion remaines in the Giver as it appears by 12 Ed. 4. 3. For all lawfull Acts made by Tenant in taile shall binde the Issue as 44 Ed. 3. Octavian Lumbards Case Grant of Rent for Release of right is good and shall binde the Issue for there are foure incidents to an Estate tayle First That he shall not be punished for Waste Secondly That his Wife shall be indowed Thirdly That the Husband of the Wife Tenant in Tayle shall be Tenant by the Courtisie Fourthly That Tenant in Tayle may suffer common recovery So that a Condition which restraines him so that he cannot suffer a common Recovery is void for it is incident to his act and it is a lawful Act and for the benefit of the Issue as it is intended in respect of the intended recompence and he said that a Feoffment to a woman covert or infant shall be conditionall that they shall not make a Feoffment during their disability is good for that the Law hath then made them disable to make a Feoffment so a Lease for life or years upon condition that he shall not alien is good in respect of the confidence that was reposed in them by the Lessor and so concluded that the Condition in this Case which restraines Tenant in Taile generally from alienation First was uncertain in respect of the words conclude and agree Secondly for that it was against Law so void and for that prayed Judgment for the Defendant Hutton Serjeant for the Plaintiff he argued that the verball agreement of the Wife shall bind her notwithstanding the Coverture for that that this is for her benefit for in performance of the said agreement she suffers a recovery to the use of her selfe and her Heires and so Dockes the remainder and he agreed the cases put by the other part which concerne free-hold but he said in cases of Limitation of Estates as if Limitation be if a Ring be tendred by a woman that the Land shall remaine to her and she takes a Husband and after that she and the Husband tender the Ring this shall be sufficient tender and it shall be intended the Act of the wife and 10. H 7. 20. a. A man devises his Lands to a married woman to be sold she may sell them to her Husband And though that it be not any agreement of the Husband only yet here is an act done in a Precipe brought against the Wife and she vouches over for that is not only an agreement but an Act executed upon which the Estate Limited to the eldest Sister shall take effect and the 2. Coke the 27. a. Beckwiths Case If the Husband and the Wife joyne in a Fine of Land of the Wife the Wife only without the Husband may declare the use of that And he intended it was a Limitation and not a condition and so it might be well at this day in case of devise and then the Act shall be that the Estate is Limited to have beginning being made the Estate of the youngest Daughter which made the Act shall be destroyed and determined for if it be a condition then all the Daughters shall take advantage of that and this was not the intent of the Devisor for they are the parties which should be restrained by the devise from Alienation And also he cited Wenlocke and Hamonds Case cited in Bractons Case 3. Coke 20. b. Where a Copy-holder in fee of Lands devisable in Burrough English having three Sons and a Daughter deviseth his Lands to his eldest Son paying to his Daughter and to his other Sons forty shillings within two yeares after his death the Devisor maketh surrender according to the use of his Will and dieth the eldest Son admitted and doth not pay the money within the two yeares and adjudged that though the word paiment makes a condition yet in this case of devise the Law construes that to a Limitation and the reason is there given to be for that that is it shall be a condition then that shall discend upon the eldest Son and then it stands at his pleasure if the Brothers or Sister shall be paid or not and 29. Assis 17. cytes in Nourse and Scholasticas Case Commentaries 412. b. where a man seised of Lands in Fee devisable deviseth them to one for life and that he should be Chapleine and single for his Soule all his life so that after his decease the sayd tenements should remaine to the Commonalty of the same Towne to finde a Chapleine perpetuall for the same Tenements and dyed and adjudged that this shall not be a condition of which the heir shal take advantage but limitation upon which the remainder shall take effect and also he cyted S. E. Clâ—ers Case 6 Coke 18. a. b. 11 H. 7. 17. Pennants Case 3 Coke 65. a. That if a man makes a Lease for years upon a condition to cease that after the condition is broken grantee of reversion may take advantage of that so he said in the case at the Bar when the first Estate is determined and destroyed by the limitation then he to whom the Remainder is limited shall take advantage of that and not the Heire for as he intended an Estate of Inheritance may as well cease by limitation of devise as tearme as in 15 Ed. 4. Lands are given to one so long as he hath heires of his body the remainder over and if he dye without heires of his body the remainder over shall vest without entry and the Free-hold shall vest in him and 2 and 3. Phil. and Mary Dyer 127. and 56. Fisher and Warrens Case If a man devise Lands to one for life the remainder over upon condition that if he do such an act that his estate shal cease and he in remainder may immediately enter there he in remainder shall take advantage though he be a stranger for that that the Estate determines there without re-entry And he saith that the Case of Wellock and Hamond cyted in Barastons Case was a stronger Case then this for there the limitation was upon Fee-simple and here it is upon an Estate tayle and the Law hath favourable respect to devises as in Barastones Case is alteration of words for the better exposition of that for Shall is altered to Should and also see 16 Eliz. Dyer 335. 29. for the marshalling of absurd words in a Will for the expounding of that and 18 Eliz. Cheekes Case he cyted to be adjudged that
if a man devise his Lands to his Wife and after her death to his Son and the remainder to his sayd Wife in Fee-simple the Husband of the Wife having Issue shall not be Tenant by the Curtesie for alwayes the Judges have made such favourable construction of Wills that if Estates devised by Will might be created by act executed in the life of the party then it should be good by devise and to the objection that conclusion and agreement is uncertaine and so for that shall be voyd he saith that it is not so uncertaine as going about or resolve and determine an attempt or procure as in Corbets Case first of Coke 83. b. or as attempt or endeavour as in Germins and Arscotts Case there cyted fol. 285. a. See 6 Coke 40. a. Mildmayes Case and also the words subsequent are repugnant that the Estate tayle shall cease as if the Tenant in tayle were dead and not otherwise which is absurd and repugnant for the Estate tayle doth not determine by his death if he doe not dye without Issue And also he sayd that it is more reasonable that the perpetuity in Scholasticas Case for here the limitation depends upon agreement which is a thing certaine upon which the Issue may be joyned and also the condition doth stand with the nature of the Estate tayle and for the preservation of it and Recovery is against the nature of it for this destroyes the Estate tayle and is onely a consequent of it and not parcell of the nature of the Estate and this is the reason that Littleton saith That an Estate tayle upon condition that he should not alien is good for that preserves the Estate and also preserves Formedon for him in reversion if there be a discontinuance and with that agreed 13 H. 7. 23. 24. and he sayd that there was a Judgement in the point for his Clyent for another part of the Land and he cyted 31 Edw. 5. Fitz. Feoffment placito the last and Fitzherberts Natura brevium Ex gravi querela last Case and so concluded and prayed judgement for the Plaintiff and this Case was argued againe by Shirley Serjeant for the Defendant and he intended that the agreement is voyd to the Wife and shall be intended the agreement of the Husband onely for a marryed Wife cannot countermand Livery 21 Assis 25. and if a Woman makes a Feoffment upon condition to enfeoff upon request made by her and she takes a Husband she cannot make request after coverture 35 Assisarum So that he intended that this shall be intended the agreement of the Husband onely and not of the Wife and yet he argued that Declaration of a use by a marryed Wife shall be good according to Beckwiths Case But he sayd That the reason of that is for that that she is party to the Recovery which is a matter of Record and as long as the Record remaines in force so long the Declaration of the use shall be good and also he argued that if the condition being that if the Wife conclude or agree to any act to make discontinuance that then c. that that shall be intended unlawfull acts and Recovery is no unlawfull act and for that shall not be within the restraint of the Condition as the Earl of Arundels Case 17 Eliz. Dyer 343. and admitting that it is a limitation yet it shall be of the same nature as a condition and as well as a condition that Tenant in tayle shall not suffer Recovery is voyd So also is such Limitation void and so it was intended before the Statute of Donis Conditionalibus and it appeares by the pleading that the parties did not intend to take advantage of the agreement for it is pleaded that at the time of the Recovery suffered the youngest Daughter was seised of an estate tayl the which could not be if her estate were determined and destroyed by the agreement and conclusion so that the last words make the Forfeyture for the first are not unlawfull and before the execution of the Recovery the estate tayl is determined and so he concluded and praied Judgement for the Defendant Barker Serjeant argued for the Plaintiff It shall be intended a Limitation and not a condition for a Will shall have favorable construction according to the intent of the Devisor for a Joyntenant may devise to his Companion 49. Ed. 3. and Fitz. Na. Bre. Ex gravi querela last case A man devises Land to his Wife for life upon condition that if he marry that it should remain over to his Son in tayl and the Wife marries and the Son in remainder sues Ex Gravi querela by which it appeares that it was a Limitation and not a condition and 34 Ed. 3. devise was to one for life upon condition that if his Sonn disturbed him that then it should remaine over in taile upon disturbance he in Remainder in tail brings Formedon by which it appears it was a Limitation and with that agrees all the Justices in 29 Assisarum 17. And Wellock and Hamonds Case cited in Barastons Case before and 18. Eliz. Dyer If Land be limited to no third person by the Devise then the Heir shall enter for breaking the condition and also he said that it appears by Littleton and 13 H. 7 23. and 24 and 20 H. 7. and 17 Eliz. 343. the Earle of Arundells case which conditioneth that Tenant in taile shall not alien standeth with his Estate but not with Fee simple and so it is adjudged in Nowes and Scholasticas Case which is adjudged in the point which as he saith cannot be answered and the Words of the Condition are not that her Estate taile shall cease as if shee had been dead but as if she had not been named which is not so repugnant or absurd as the other and this compared to 34 Ed 3. Where the Estate was limited till it was disturbed And he also argued that the agreement of the Wife shall be a forfeiture notwithstanding the coverture for when the Estate is granted upon such condition he which hath the estate shall take it subject to the condition as if two Lessees are and one Seals the Counterpart onely yet the other shall be bound by the Covenants contained in it and 33 H. 6. 31. a Woman disavows to be Executor notwithstanding that shee was marryed and if Precipe had been brought against the Husband and Wife the default of the Husband shall binde the Wife and so she shall be punished for waste made during the coverture and so concluded and prayed judgement for the Plaintiff Foster Justice that an Estate of Free-hold shall not cease by agreement or conclusion without entry for it is a matter of Inheritance and Free-hold and it is not like to 33 H. 6. 31. which concerns Chattels and Goods and Walmesley Justice accorded with him Warburton Justice it hath been adjudged in Scholasticas Case that the condition was good and therefore he would not deliver his
cannot a Copy-holder which hath so base an estate And if this shall be so these mischeifes will insue That is that this base estate should be of better security then any estate at the Common Law for Fine shall not be a Barr of that for it cannot be levied of that also Recovery cannot be suffered of that for there cannot be a Recovery in value neither of Lands at the Common Law neither of Customary Lands for they cannot be transferred but by the hands of the Lord. And to Littleton he agreed and also 4 Ed. 2. which agrees with this where it is said that at Stebenâ—eath a Surrender was of Copy-hold Lands to one and the Heires of his Body but he said that that shall not be an Estate taile for then the Estate hath such operation that this setles a Reversion and Tenure betwixt the Giver and him to whom it is given but this cannot be of Copy-hold Land for this cannot be held of any but only of the Lord and to the others this Estate doth not lye in Tenure and yet he agreed that of some things which did not lye in Tenure Estate Tail may be but Land may be intailed but Copy-hold Estate is so base that an Estate tail cannot be derived out of it so that though that custome may make an Estate to one and the Heires of his Body yet this cannot be an Estate taile but Fee-simple conditionall and also he agreed that they might have Formedon in Discender but it is the same Formedon which was before the Statute as if Tenant in Fee-simple conditionall before the Statute would alien before issue but it was no Estate taile with the priviledges of an Estate taile before the Statute and to the other matter of Surrender that is the admittance of the parties which is an Estate taile that doth not conclude the Court as it appears by the Lord Barkleys Case in the Commentaries where the Estate pleaded severally by the parties is not traversed by any of them and so concludes and prayes Judgment c. And this case was argued again in Trinity Tearme next ensuing by Montague the Kings Serjeant for the Defendant and he said that there are three questions in the case First If Copy-hold land may be intailed Secondly Admitting that it may be intailed if Surrender makes discontinuance Thirdly If it shall be Remitter and to the first he seemed that it might be intailed and that it shall be within the Statute of Westminster 2. And first for the Antiquity of that he said that Littleton placed that amongst his Estates of Free-hold and hath been time out of minde and is a primitive Estate and not derived out of the Estate of the Lord and the Lord is not the Creator of that but the means to convey that after that it is cerated and what is created then shall have all the priviledges and Benefits which are incident to it and shall be nursed by the custome and is time out of minde and the Law alwaies takes notice of it and he cited 24 H. 4. 323. by Hankf Bracton Fitz. Na. Bre. 12 C. and Brownes Case 4. Coke which is not simply an Estate at the will of the Lord but at the VVill of the Lord according to the custome of the Mannor and when it hath gained the reputation of Free-hold then it shall be dircted according to the rules of the Common Law and 2. and 3. P. and Ma. Dier 114. 60. allow Copy-hold Estate to be intailed and he saith That no Statute hath more liberall exposition then the Statute of Westminster 2. 45. Ed. 3. Incumbrance shall not charge the Issue intaile also a Copy-holder shall have a Cui in vita also a Copy-hold is within the Statute of Limitation and so upon the Statute of buying of pretenced rights And it is alway intended when a Statute speakes of Lands and Tenements that Copy-hold Lands shall be within that And he saith That all the Objections which have been made of the contrary part are answered in Heydons Case but he relyed upon that that every reall Inheritance is within the Statute of Westminster 2. 4 Ed. 2. Formedon lyeth of Copy-hold Land 25 Ed. 3. 46. Estate tayle is of a Corrody and office which proves that Copy-hold is a reall Inheritance and for that shall be within the Statute 46 Ed. 3. 21. Gavelkinde Land may be intailed 6 Rich. 2. Avowry 2. 8. Rich. 2. 26. Copy-holder shall be charged with Fees of a Knight at Parliament 22 and 23. Eliz. Dier 373. 13. Lands in ancient Demesne were intayled and he said that the reason is that for that it is Inheritance and time hath applyed them to an Estate and so concluded and prayed Judgment for the Defendant Hutton Serjeant argued for the Plaintiff that Copy-hold Lands cannot be intailed for that is but a customary Estate and the Law doth not take any notice of it but onely according to Custome for there were no Estates tayle before the Statute for then all were Fee simple absolute or conditionall that is either implyed or by limitation which cannot be of an Estate tayle which is not within the Statute of Westminster 2. for no Actions are maintainable by that but those which are by the Custome and a Writ of false Judgment See Fitzherberts Natura brevium 12. 13 Ed. 3. F. Prescription 29. that it hath no Incidents which are incident to Estates at the Common Law without Custome as Dower See Revetts Case and so is Tenancy by the Curtesie and there shall be no discent of that to take away Entry and so of other derivatives And he seemed that it is not within the Statute for three reasons apparent within the Statute First That it is hard that Givers shall be barred of their reversions but in case of Copy-holds the Giver hath no remedy to compell the Lord to admit him after the Estate tayle spent but onely Subpena and in this Case the Lord may releive himselfe for the losse of his services for that the Statute provides no remedy for him Secondly That the Statute doth not intend any Lands but those of which there is actuall reversion or remainder and those which passe by Deed so that the will of the Giver expressed in the Charter may be observed and of which there may be a subdivision as Lord Mesne and Tenant for there shall be alwayes a reversion of the Estate tayle and the Donee shall hold of the Donor and not of the Lord. Also it seems that the Statute doth not intend to provide for any but those for whom the VVrit in the Formedon ordained by the Statute lyes and agreed that for Offices and such like Formedon lyeth if the party will admit Estate tayle to be discontinued Also the Statute intends those things of which a Fine may be levyed for the Statute provides that the Fine in his owne right should be nothing but by Copy-holder Fine cannot be levied and for that he shall not be within the
Statute and if the Words do not extend to that then the Equity of the Statute shall not extend to that and he said that Copy-hold is not within any of the Statutes which are made in the same yeare as the Statute which gives Elegit and such like and to Littleton that an Estate by copy is where Lands are given in Fee-simple fee-Fee-taile and that Formedon lies for that with which agrees 10 Ed. 2. Formedon 55. It seems that the Estate taile here mentioned shall be intended Fee-simple conditionall at the Common Law and the Formedon in Discender which was at the Common Law for alienation before Issue And so Littleton shall be intended For the Estate is within time of memory see Heydons case that a Copy-hold Estate is an Estate in being within the Statute of 31 H. 8. And Manwood there said that insomuch the Estate of that is created by custome and the Estate taile is created by Statute yet it shall not be within the Statute and he said that the case of 15 H. 8. B. Copy of Court 24. is repugnant in it self in the words of Formedon for he saith though that Formedon was given by Statute and was no otherwise in Discender yet now this Writ lies at the Common Law and it shall be intended that this hath been a custome there time out of minde c. And so he concluded and prayed Judgment for the Plaintiff Pasche 9. Jacobi 1611. in the Common Bench. Yet Bearblock and Read SEE the beginning before Hillary 8. Jacobi this Case was argued by Hutton Serjeant that the Plaintiff in the Action of Debt ought to Recover for if Executor may pay Debt due by the Testator by Obligation before Debt due by Judgement this shall be a Devastavit as it is resolved in Trewinyards Case 6. and 7. Edward 6. Dyer 80. 53. And he shall be charged for the Iudgement with his owne goods And so it was adjudged between Bond and Hales 31. Eliz. that Judgement at the Common Law shall be first satisfied before the Statute which is but a Pockett Record and Medium redditer in invitum Also it was adjudged in Harrisons Case 5. Coke 28. b. That Debt due upon an Obligation shall be first payd before Statute with Defeasans for performing of Covenants the which Defeasens is not broken and also it is adjudged between Pemberton and Barkham here cited that Judgement shall be satisfied before Statute Merchant or Staple or Recognizance though that the Statute be acknowledged before the Judgement had by the Testator See this Case in Harrisons Case 5. Coke 28. b. and in 4. Coke 60. a. Sadlers Case upon which he infers that if an Executor first satisfie a Statute or a Recognisance before a Judgement that this shall be a Devastavit as well as if he satisfies an Obligation first as in Trewynyards Case and that when the Plaintiff which hath Judgement the Executor may aid himselfe by Audit a querela by this matter subsequent Quere of Doctor Druryes Case as in 7 H. 6. 42. in Detinue against Gamishe and Judgment had for the Plaintiff If the Judgement be reversed restitution shall be made to every one which hath losse So here by Audita Querela if the Executrix hath not more then was taken in execution by the Statute and it seemes to him that the Judgement in the Scire Facias shall not be a Barr in this Action for the Judgment remaines Executrix and the Plaintiff may have Action of Debt upon that But of the contrary if the Plaintiff had brought Action of Debt upon the Judgement and had been barred then shall be barred in Scire Facias also But the Plaintiff this notwithstanding may have Scire Facias upon surmise that there are new assets come to the hands of the Executor and so he concluded and praied Judgement for the Plaintiff Nicholls Serjeant for the Defendant relies only upon the Judgement had upon the Scire Facias and that till that he Defeated the Plaintiff cannot maintaine Action of Debt for the Action of Debt is nothing but demanding of Execution and for that till the first Judgement be Defeated the Plaintiff hath no remedy at the Common Law All things which barr the Execution of the Judgement in Scire Facias these shall be Barrs in an Action of Debt as in Baxters Case here last adjudged in an Action upon the Case for slanderous words the Defendant pleads that he had justified the speaking of these words at another time in another Action brought against him and had a verdict and Judgement upon that and so demands Judgement and adjudged a good Plea till the first Judgement is reversed for Judgement is the saying of the Law and 13. Eliz. Dyer 299. 34. in Debt for Costs recovered in a Writ of entry the Defendant pleads that the Plaintiff hath sued an Elegit which was Executed and a good Barr in an Action of Debt and so 1. and 2. P. and M. Dyer 107. 24. In Debt for Dammages recovered in Assise the Defendant pleads in Barr that after the verdict given and before Judgement the Plaintiff entred into the Land and there no Judgement is given But it seemes if the Plaintiff fayl of Course that the Common Law prescribes that then he shall not have Execution for of those things which rightly are Acted let there be Executions but if the Defendant in the first Action had pleaded a release and Judgement was given upon that against him he cannot plead that againe for it runs into the thing Judged 34. Ed. 3. in Debt against an Executor and part of the assetts found the Plaintiff cannot have new Scire Facias without Averrment that there are new assetts and 34. H. 6. Action with averment that there are assets and Judgement good both waies and presidents shewed of both Courts And he intended that the Executor could not have helped himselfe by Audita Querela unlesse he feares to be impleaded but after Execution he cannot have Restitution and so concluded and praied Judgement for the Defendant Coke cheife Justice that there cannot be a Devastavit in the Wife unlesse that it be voluntary payment by her for the Statute of 23. H. 8. gives present Execution of a Statute Staple without Scire Facias So that the Wife had no time to plead the Judgement and for that this unvoluntary Act shall not be a Devastavit for she is no agent but only a sufferer And at the Common Law if the Plaintiff hath Judgement in an Action of Debt after the yeare he hath no remedy but new Originall and this mischeife was remedied by the Statute of Magna Charta which gives Scire Facias in place of new Action But it seemes to him that the Barr in the Scire Facias shall remaine good Barr till it be reversed as in 2 Rich. 3. A man hath election to have action of Detinue or action of Trespasse and he brings his action of Detinue and the Plaintiff wages his Law and after
is now out of the Statute for the advancement ought to be continuing until the death of the Father And so he saith also it was adjudged in Butler and Bakers Case that if a man devise Socage Lands and after sell to a stranger for good consideration his Lands held by Knights service this devise is now good for all for hee hath not any Land held by Knights service at the time of his death and so he concluded that the devise was good and prayed Judgement for the Plaintiff Houghton Serjeant for the Defendant he thought the contrary and hee argued that before the statutes of 32. and 34. of H. 8. men were disabled to devise any Land and for that they cannot provide for their Wives Children or for payment of their Debts and for remedy to that Feoffments to uses were invented and then to dispose the use by their Wills and then experience finds that to be inconvenient and then the statute of 27. H. 8. transfers the use into possession and then neither use nor land was deviseable without speciall Custome and then this was found to be mischeivous after five years experience and then was the statute of 32. H. 8. made and where by the statute of Marlebridg of those which did enfeoff their begotten sons a Feoffment by the Father to his son and Heir was void for all Now by this statute this is good for 2. parts and void only for the 3d part that for the good of the Lord but as to the party that is good for all as it is agreed in Mightes case 8 Coke Then to consider in the case here if all things concur that the statute requires and to that here is a person which was actually seised of Land held by Knights service in 12. Eliz. So that it is a person which then was having within the statute 2. If here be such conveyance for advancement of his children as is intended within the statute and to that he seemed that so notwithstanding that it may be objected that here is no execution to the youngest children insomuch that it is first limited to such Farmers and Tenants c. But he intended that this is no impediment Secondly also there is a limitation to the use of his last Will. Thirdly also there is a limitation to the use of such persons to whom he devises any estate by his Will But these are no impediments for the last is no other but a devise to himselfe and his heirs and there is not any other person knowne but meerely contingent and it is not like to a remainder limited to the right heirs of I. S. for there the remainder is in Abeiance but here it is only in contingency and nothing executed in Interest till the contingency happen and the not having of a son at the time shall not make difference as in 38. Edw. 3. 26. in formedon in Remainder where the gift was in one for life the remainder to another in tayle remainder in fee to another stranger and he in remainder in tayle dyes without Issue in the life time of the Tenant for life he in remainder in fee may have formedon in remainder without mentioning the remainder in tayle But here he intends that the devise shall be void in respect of the Lands first conveyed which were held in cheife by Knight service for the words of the statute are by act executed either by devise or by any of them and they are conjoyned and it is not of necessity that the time of the Conveyance shall be respected but the time of the value And notwithstanding that the Testator doth not mention any time But in so much as the provision of the statute is to save primor seisin and livery to the King as if the man had 20 l. by year in Socage and one acre in cheife and makes a conveyance of all that it shall be void first to the livery and priâ—or seisin to the third part So if he make conveyance of the 20 l. by yeare and leave the said acre held in cheife to discend and after that purchase other Lands to the value of the third part of all the conveyance of the 20 l. land notwithstanding which for the advancement of his Wife Children or payment of his Debts for he had a full third part at the time of his death which discended And he supposed that the having of a dry reversion depending upon the estate tall is sufficient having within the words and letter of the Statute and yet he agreed the ease put in Butler and Bakers case that if a man devise his Socage Lands and after alien his Lands held in cheife by Knight service to a stranger bonafide this is good So if he had made a reservation of his Lands held in chiefe to himselfe for his life in so much that his estate in that ended with his life and hee remembred the case cyted in Bret and case Comment That if a man devise a Mannor in which he hath nothing and after hee purchaseth it and dyes the devise is good if it be by expresse name But when a man hath disposed of two parts of his Land the Statute doth not inable him to devise the Residue but he hath done all and executed all the authority which the Statute hath given to him But he agreed also that the reversion is not such a thing of value which might make the third part discend to the Heir but it is uncertaine as a hundred and the other things of uncertain value contained in Butler and Bakers Case And also he intended that the remainder could not take effect insomuch that the condition is precedent and it is not found that the eldest Sonne hath aliened and then dead without Heir male and so he concluded and prayed Judgment for the Defendant In Replevin the Defendant avows for 9 s. Rent the Plaintiff pleads a Deed of feoffment of the same Land made before the Statute of quia emptores terrarum by which 6 s. 8 d. is only reserved and demands Judgment if he shall be received to demand more then is reserved by the Deed See 4 Ed. 2. Avowry 202. 10. H. 7. 20. Ed. 4. 7. Edw. 4. Lung 5 Ed. 4. 22 H. 6. 50. This Deed was without date and it was averred that it was made before the Statute of quia emptores terrarum which was made in the 18. of Edw. 1. And also it ought to be averred to be made after the beginning of the Reign of Richard 1. For a writing after the beginning of his Reign checks prescription But if a man hath a thing by grant before that he may claim by prescription for hee cannot plead the grant insomuch it is before time of memory and a Jury cannot take notice of that and for that the pleading before with the said averments was good If debt be due by Obligation and another debt be due by the same Debtor to the same Debtee of
against the surviving Donee of houses and Lands to him demised and agreed that the Writ was good but it was a question if the Count shall be generall or of a halfe only notwithstanding that both the parties were Tenants in Common of the reversion Michaelmas 1611. 9. Jacobi in the Common Bench. Ralph Bagnall against John Tucker after 83. TRINITY 9. or Micaelmasse 8. Jacobi Rot 3648. The Case was Copy-holder for life remainder for life purchaseth the Frehold and levies a Fine with Proclamations made five yeares-passe and then he died if the remainder were bound by the Fine or not was the question and it seemes that it shall not be Barr for he is not turned out of possession in right So if a man hath a Lease for remainder for yeares and the first Lessee for yeares purchase the free-hold and levie a Fine with Proclamations and five yeares passe this shall not barr the remainder for yeares insomuch that this was Interest of a Tearme and remaines an Interest as it was without any alteration and it was not turned to a Right And yet it was agreed that the Statute of buying of pretenced rights extends to Copy-holds See Lessures Case 5. Coke 125. See Pasche 1612. for the Judgement Note if an Attorney of this Court be sued here by Bill of Priviledge he ought not to find Bayle But if he be sued by Originall and comes in by Capias then he ought to find Bayle In covenant upon a Lease made by the Dean of Norwich Predecessor to the Dean that now is and the then Chapter of the Foundation of Ed. 6. King for injoying of Land devised to the Plaintiff for three Lives discharged of all incumbrances and also to accept surrender of the same Lease and to make a new and for breaking of covenant the same Dean and Chapter in such a yeare of the Raine of H. 8 had made a lease for years not determined by which the lands devised were incumbred upon which the Defendant demurred And Hutton Serjeant for the Defendant argued that the Lease was by the Statute of 13 of Eliz. as to the successor of the Dean which made it for that it was a Lease for years in being at the time of the making of that as it is resolved in Elmers Case upon the Statute of 1 Eliz. if a Bishop makes a Lease for years and after makes a Lease for life the Lease for life is void to the Successor and so it is in the case of Dean and Chapter and though that the words of the Statute are generally that such a Lease shall be void to all intents purposes and Constructions yet he intended that it shall not be voyd against the Bishop himselfe as it was resolved in the case of the next Advowson by the Bishop in Singletons Case cyted in Lincolne Colledge Case 3. Coke 59. b. And he intended if the Lease be voyd against the Successors that then the covenants also are void as it is agreed in the 28 H. 8. 28. Dyer 189. 190. and he cited one Mills case to be adjudged in the 29 and 30. Eliz. in the Kings Bench that if a Parson make Lease and avoid by non-Residence the Covenants also are void as well as the Lease and also he intended that the Lease for life was void insomuch that it was to be executed by a Letter of Attorney and the Attorney had not made livery till after two Rent dayes were past and for that the Livery was not good for when a man makes a Lease for life rendring Rent with Letter of Attorney to make livery here is an implyed condition that Livery shall be made before any day of payment be incurred and it is as much as if a man had made a Lease for life without any Letter of Attorney to make Livery before such a day there if the Attorney do not make Livery before the day but after the Livery is void insomuch as it is contrary to the Condition so in the case here for if Livery made be after a Rent day it may be made after twenty and so immediately before the end of the Tearme and if the Rent be void for this cause the Covenants also are void and if a man bargain and sell his Mannor and the Trees growing upon it the Trees do not passe without Inrollment insomuch that it was the intent of the parties that it should so passe and for that they do not passe without the Mannor also he intended that the Count is repugnant insomuch that that containes that the last Lease for life was made in the time of Ed. 6. and after by the Dean and Chapter of the foundation of Ed. 6. and after that containes that the same Dean and Chapter have made a former Lease in the time of H. 8. Which cannot be if the Dean and Chapter were of the Foundation of Ed. 6. and for that the Count ought to have contained the alteration of the foundation as in case of prescription as in Tringhams case 4. Coke 38. Wyat Wilds Case 8 Coke 79. 2. and 3. Phil. and Mary Dyer 124. A good Case and he intended that a declaration ought to have precise certainty as in 8. and 9. Eliz. 254. Dyer for a thing which cannot be presumed shall not be intended as it is agreed in Pigotts Case 5 Coke 29. a. otherwise of Plea in Barr for that is sufficient if it be good to common intent also he intended that there is variance between the Count and the Covenant for the declaration is that the Dean and Chapter covenanted with the Plaintiffs the Covenant is generall that is that the Dean and Chapter covenant and doth not say with who and for that the Count also shall not be good and so he concluded and prayed Judgment for the Defendant Haughton Serjeant for the Plaintiff intended that the Covenants shall not be voyd notwithstanding that the Lease it self be voyd he intended that a lease made by a Parson shal be good against himself but it shall be voyd by his death to the Successor but a Lease made by a Dean and Chapter shall be void to the Dean himself and the Covenant shall be in force notwithstanding that the Lease be void insomuch that the Covenants are collaterall and have not any dependance upon the Lease but to the inherent Covenants which depend upon the Lease and the Estate as for Reparations and such like shall be voyd by the avoidance of the Lease but he intended that Covenant to discharge the Land from incumbrances doth not depend upon the Interest but it is meerly collaterall and for that it shall not be void and with this difference he agreed all the Cases put of the other part as in 45 Ed. 3. 3. Lease was made to the Husband and Wife the Husband dies the wife accepts the Land and shall not be charged with collaterall Covenants notwithstanding that shee agrees to the Estate insomuch that they do not depend
upon the Estate and to the Livery made after two Rent dayes incurred he intended that Livery is good that notwithstanding for the deferring of the Execution of a letter of Attorney shall not defeat the Lease or other meane act which amounts to a Command for the Lessâ—r takes the profits in the mean time and it is not like to Littletons case that if a man devise his land to his Executors to be sold and they take the profits and do not make Sale that the Heir may enter insomuch that the Executors have not performed the Condition and it was not the intent of the Devisor that they should take the profits in the Interim to their own use and he intended that the declaration was not repugnant for it is of the aforesaid Church and not of the Dean and Chapter aforesayd and also there need not such congruity as it were the Foundation of the Action insomuch that this is only Allegation of the truth of the matter see 1 H. 7. 18. For variance upon shewing in Deed and 17 Ed. 3. 33. b. and here the aforesaid shew that it is the same in substance though it vary in words and though that the name is altered yet are the same persons in substance and the same Body and though that it be as it is intended to be of another part yet it is but name and the Foundation then is not Issuable as if the King H. 8. had been the Founder and made speciall provision in the Foundation that after the Time of Ed. 6. it shall be said to be the Foundation of Ed. 6. this shall be good and so he concluded and prayed Judgment for the Plaintiff see after adjudged Michaelmas 9. Jacobi 1611. In the Common Bench. The Bishop of Ely THE Bishop of Ely granted an Office with the Fee for the exercising of that if it be an ancient office it is a good grant and if the Fee be newly increased yet Foster Justice thought that the Grant shall be good for the Office and for so much of the Fee as hath been anciently granted with the Office Michaelmas 1611. 9. Jacobi in the Common Bench. Holcroft against George French IN an Action upon the Case upon an Assumpsit if the consideration be Executory then the Declaration ought to contain the time and place where it was made and after it ought ro be averred In Facto when it was performed or executed accordingly but if it be by way of Reciprocall agreement then the Plaintiff may count that in consideration that he hath promised for the Defendant the Defendant hath promised to do another thing for him there he need not that the Declaration contain time or place for the consideration or otherwise that it is performed and executed But if in the first case where it is executory that is also an averment that it is executed there if the Defendant plead Non Assumpsit generally and do not plead the speciall matter he cannot after take exception to that Count for the Default aforesayd where he pleads specially to that as in an action of Trover the Conversion ought to be averred to be in a certain place and so in submission and Arbitrement they are contained in the declaration it need not to expresse any time or place certain but if the Defendant pleads that the Arbitrators made no award or that the parties have not submitted themselves to their award there the Plaintiff may reply that the Arbitrement or Submission was made at such a place and this was agreed by all the Justices Michaelmasse 1611. 9. Jacobi in the Common Bench Sir Edward Puncheon against Thomas Legate IT was adjudged in the Kings Bench and affirmed upon a Writ of Errour in the Kings Bench that an action upon the case upon an Assumpsit made by the Testator is very well maintainable against the Executor and this was for Money borrowed and so the Count speciall but not upon generall Indebitatus Assumpsit but is good without any averment that the Executors have assets over the payment of Debts due by specialty and Legacies and he sayd that the Record of the Case of 22 H. 8. with this agrees and that the book in this is misprinted and so Coke cheife Justice who publickly reported this Judgment in the Common place sayd which was adjudged in the 11 H. 8. in this Court Note that Land of which a Writ of Right Close lyeth shall be assetts in a Formedon and it is a Free-hold and not a Copy-hold and so are all Lands in ancient Demesne 3 Ed. 3. 14 H. 4. It is no matter what is known to the Judge if it be not in the form of Judgment Pasche 1611. fol. 50. HAughton Serjeant for the Defendant argued that the entry of him in Remainder is not lawfull insomuch that he intended it is not any forfeiture of the Estate tayle and first he argued that the condition is not good but repugnant to Law and for that voyd and yet he agreed that Tenant in tayl may be distrayned from making unlawfull Acts but here the condition tends to restraine him from doing of things which are lawfull as if a man makes a Gift in tayl upon condition that the Wife of the Donee shall not be indowed or that the Husband of the Donee shall not be Tenant by the Curtesie or that a Feoffee shall not take the profits of the Land though that the profits may be severed from the Land as in 16 Ed. 3. Formedon was brought of the profits of a Mill yet the condition is voyd insomuch that it is against the nature of an Estate tayl or in Fee-simple to be in such manner abridged so if a man makes a gift in tayl upon condition that the Donee shall not make waste the condition is void for the making of wast is a priviledge which is incident to an Estate tayle and for that the condition restraynes the Tenant in tayle of a thing which the Law inables him to do the condition is yoyd so a Donee in tayle upon condition that he shal not make a Deed of Feoffment or Lease for his own life as it is agreed in Mildmayes Case so here when the condition restraynes Tenant in tayl of concluding and agreeing the which in him is not any wrong no more then if a man should make a gift in tayl upon condition that the Donee should not bargaine and sell the Land this is voyd insomuch that he doth not make any wrong or discontinuance So in the case here for the thing which is restrayned that is concluding agreeing is in it self a lawfull act and also this is only the affections and qualities of the minde that they cannot make an Estate conditionall if an open act be not annexed unto it but he agreed that if a man make a gift in tayle or a Lease for life of white acres upon condition that the Donee or Lessee shall not take the profits of Black acre this is
of Ed. 6. and in the 8. Eliz. Salisbury then Deane and the then Chapter made a Lease to Thimblethorpe for 99. yeares to begin after the said Lease for fifty yeares made to Twaits And it doth not appeare by the pleading that Thimblethorpe entred But the succeeding Deane and Chapter in the 42. Eliz. made another Lease to Waters the Plaintiff for three lives rendring the ancient Rent quarterly with warrant of Attorney to make livery and it was not executed till after the end of three quarters of a yeare after the Sealing of it and when the time of three rent daies were Incurred And in this Lease the Deane and Chapter covenanted with Waters to acquit and save harmelesse the Lessee and the premises during the Tearme c. By reason of any Lease made by them or any of their Predecessors or by the Bishop And then the Plaintiff in his Court conveys the Lease made by Thimblethorpe to Doylye and that he intered and disturbed the Plaintiff and so assigned breach of covenant upon which this Action was founded upon which the Defendants demurr in Law And this was agreed by Dodridge the Kings Serjeant for the Defendants First that the Lease made to Waters was void and then the Covenants do not extend to charge the Defendants And he supposed the Lease to be void insomuch that the Attorney did not make Livery untill three Rent daies were incurred and the Lease was made as well for the benefit of the Lessor as for the Lessee for if the Lessee is to have the profits and the Lessor is to have the Rent And insomuch that the Livery was not made before a Rent incurred this tends to the prejudice of the Lessor and for that the Authority is countermanded and the Livery made after void for when a man hath a Letter of Attorney to make Livery he ought to make that in such manner as the Feoffer himselfe would make it and the Lessor cannot make that after a rent incurred for then he should loose that Rent Also Authority ought to be strictly pursued as in 36. H. 8. Dyer 62. 24. Letter of Attorney was made to three joyntly and severally to make Livery and reâ—…ved that two cannot do it see 11. H. 4. For it ought to be made joyntly or severally so here the Attorney ought to make the Livery as his Master will and that ought to be made before any Rent incurred And for this cause he intended the Lease to be void And then as to a Collaterall Covenant which is in effect no other but that the Plaintiff shall injoy the Land during the Tearme which is of an Estate which is nothing for if the Lease be void the Estate is nothing and the Lessee hath not any Tearme or Estate in the Land And he agreed that in the Record of Chedingtons Case 1 Coke 153. b. And in the Commentaries Wrotsleys Case 198. And 2. Eliz. Dyer 178. There is a difference betweene Tirminum Annorum and the time or space of yeares or the life of such a man but there is not any difference between a Tearme and an Estate Also he supposed that the words of the Covenant extend only to save the Plaintiff harmelesse of Leases made by these Defendants or any of their predecessors and this Lease was made to Twaits in time of H 8. Which was before their Corporation for they have been but named a Corporation in the time of Edward 6. and not before And then a Lease made in the time of H. 8. is not made by them nor by their Predecessors and so the Covenant doth not extend to that as it appeares by 8. Ed. 4. in case of prescription if Corporation be changed in manner and forme and the substance of their name remaine yet they ought to make speciall prescription then a fortiori in this case where the substance is changed and so he concluded and praied Judgement for the Defendants Nichols Serjeant for the first argued that the Livrey was well made for these Defendants shall be intended Occupiers and to have the profits of the Land till the Lessee entred or they waved the possession and so no prejudice and the Lessee shall not be charged with Rent till he enters or the Lessor wave the posaession as it was resolved in Bracebridges Case Com. 423. b. and in the Deane and Chapter of Canterburies Case there cited And for that the Livery shall be good and the Lessor not prejudiced by the deferring of it and then to the second that is the Covenant he agreed that if the Estate be created and Covenant in Law annexed to it if the Estate cease the Covenant also shall cease But if expresse Covenant be annexed then the Covenantor ought to have regard to performe it or otherwise an Action of Covenant lies against him notwithstanding that the Estate be avoided But here he intends it against him notwithstanding that the Estate be void But here he intends the Estate continues till Thimblethorp entred But admitting that he had entred yet the covenant shall bind the Covenantor as in 12. H. 4. 5. a. Parson makes a Lease for yeares and after is removed an Action of covenant lies against him and 47. Ed. 3. and 3. Ed. 3. If Tenant in 〈…〉 makes a Lease with expresse covenant and dies and the Issue outs the Lessee the Lessee shall have an Action of Covenant against the Executors of the Tenant in tayl and 9. Eliz. Dyer 257. 13. Tenant for life the Remainder over in Fee by Indenture makes a Lease without any expresse covenant and dies Lessee cannot have an Action of covenant against his Executors otherwise if there had been an expresse covenant See the booke and many Authorities there cited to this purpose and also he cited one Rawlinsons Case to be here adjudged that if a man which hath nothing in land makes a Lease and an expresse covenant for the injoying of that if he which hath right enters by which the covenant is broken Action of covenant lies upon the expresse covenant So that admitting that the Lease is void yet the covenant is good and shall bind the successors and so he concluded and praied Judgement for the Plaintiff and this case was argued at another day by Dodridge the Kings Serjeant by speciall appointment of the Judges and now he supposed that the Count containes that the same Dean Chapter which made the lease to Twaits in 37 H. 8. also made the Lease to Thimblethorp in the 18 El. w ch cannot be insomuch that the corporation was changed in the time of E. 6. for that cannot be the same Deane and Chapter for if a Prior Covent be translated into a Dean and Chapter and the Dean and Chapter will make prescription they ought to make that in speciall manner and not generally as Deane and Chapter as it is resolved 39. H. 6. 14. 15. and in 7. Ed. 4. 32. In Trespasse against the Abbot of Bermondsey it is
a possibility only which cannot be granted surrendred or released and yet he agreed that if Lessee for life grant or demise the land all his Estate passeth without making of any particuler mention of it as it is agreed in 10. Eliz. Dyer And for that when the Lessee hath devised the Lands to his Father for his life that which remaines is only a possibility for it doth not appeare for what yeares the Sister shall have it and for that meerely uncertaine 7. Eliz. Dyer 244. The King Ed. 6. appropriated a Church to the Bishop to take effect after the death of the present Incumbent the Bishop after that makes a Lease for yeares to begin after the death of the Incumbent and void for the uncertainty for the Bishop hath no perfit Estate but future Interest which is meerely impossibility and with that agreed Locrofts Case in the Rector of Cheddingtons Case 1. Coke where Lessee for yeares makes assignement of so many of the yeares as shall be to come at the time of his death and void for the uncertainty insomuch that it is meerely possibility for that which may be granted or surrendred ought to be Interesse Termini at least And he supposed it could not be released insomuch that he to whom the release is made hath all the Tearme if he lived so long and so he concluded and praied Judgement for the Plaintiff Harris Serjeant for the Defendant argued that the first devisee had two Titles one as Executor and another as a Legatee and before entry and after that he had entred also the Law doth adjudge him in as a Legatee and before that he enter he may that grant over notwithstanding that he hath not determined his Election for the Law vests the property and possession of that in him before any entry but to make an election there ought to be some open Act done as it is agreed in Welden Eltingtons Case where that the first devisee which was Executor also made expresse claime to have the Tearm as Legatee and not as Executor and so vested the remainder also see Com. 519. b. And so in Paramore and Yardlies Case Lessee for years devises his Tearme to his Executor during his life to educate his Issues the which the Executor doth accordingly and this open act was resolved to be a good election and in Mannings case 8 Coke 94. b. The Executor which hath the 1. Estate devised to him saith that he to whom the Remainder was limited shall have it after his Death and this resolved to be a good Execution and election and it is there resolved that such Election made by the particular Devisee is a good Execution for him in remainder but here is not this Election to have this as Legatee nor Executor for there is not any overt Act made by which this may be done Secondly he conceived that this is no remainder but Executory devise as it is agreed in Mannings Case and that this may be done by Devise which cannot be done by the party by act Executed and for that he conceived that there is no possibility but an Estate Executed and vested in him which is Executor though there be no election made nor Execution of the Legacy and admitting that it is but a possibility yet he conceived that it is Propinqua possibilitas insomuch that the Tearme is longer then it may be intended that any man might live insomuch that Adam lived but 950. yeares and this is five thousand yeares which is longer then any man in the world ever lived and he said that it is agreed in Fullwoods Case that possibility may be released to a possession and with this agreed the opinion of Strange in the 9 H. 6. 64. And so warranty may be released which is meerly in contingency as it is agreed in Littleton and power of revocation may be extinct by release of him that hath the possession of the Land and so he concluded and prayed Judgment for the Defendant Nicholls Serjeant for the Plaintiff conceived that the Remainder is in Esse and not determined by the Release And first he conceived that the Remainder was executed insomuch that the Release was made at the Request of the Father which was the first Devisee for this shewes his assent and implies that he took notice of his Remainder and assented to it and he sayd it was adjudged in Doctor Lawrences Case that the speaking of these words by the Executors that is that they were glad of the Devise was a good Execution and assent of the Legacy Secondly He conceived that it is only possibility and for that cannot be released or granted and he saith that the Law hath great respect of possibilities that Estates may revert and for that it is adjudged in the 13 of Richard 2. Dower 55. If Tenant for life grants his Estate to him in remainder in tayl for his owne life the Tenant enters takes a Wife and dies she shall not be Indowed but the Tenant for life shall have it againe and it shall be as it had been let to a stranger and to this purpose also he cited 18. Ed. 3. 8. Counter-Plea of voucher 8. And it was adjudged in Middletons Case 5. Coke 28. a. that an Executor before probate of the Will may release a Debt but not an Administrator before Administration granted see Com. 277 278. Fox and Greisbrookes Case and in 6. Ed. 3. Lessee for anothers life rendring Rent the Rent was behind and the Lessor releases to the Lessee all Debts he For whose life dies and there the Release determines and discharges the arrerages for it is a duty and Debitum is Latine as well for Debt as for duty also release bars the Lord and Writ of deceit for reverser of a Fine levied of land in ancient Demesne as it is 7. H. 4 and yet Littleton saith that release of a futrue thing shall not be a barr and for that if Conusee of Statute Merchant release all his Right in the land yet he may extend the Statute 15. assis And so if a mad man release and after come to his wits and dies Quere if the Heire may have a Writ of non compos mentis And he said that it was adjudged in the 25. of Eliz. If an Infant levie a Fine and after he levies another Fine this shall be a Barr in a Writ of error for the reversing of the first otherwise of a release And here to the principall case to a release made by the Son in the life time of his Father without warranty And so upon all these cases he concluded and prayed Judgment for the Plaintiff Shirley Serjeant for the Defendant argued that the acceptance of Release by the first Devisee shall not be execution of the Devise as it was adjudged in Barramores and Yardleys case by the Education of the Issue or a Devise upon condition to pay money and the Executor pays it this is a good execution
But here the thing which makes the execution is only release which enures as Release And for that the accepting of the release it cannot be execution of a Legacy But if the Executor to whom the first Devise was made had had any Co-executor and he would not have suffered him to joyn in occupation with him that had been full Declaration of his Intent that he took it as a Devise and not as an Executor as it is agreed in the 10 El. 277. Dyer 50. And he said also that it hath been agreed to him that it is such a possibility that cannot be granted as it is agreed in Fulwoods case 4 Coke 66. b. And he said it is not like to Harveys Bartons case where two Joynt-tenants for life were and one made a Lease for years to begin after his death and dyed and his companion survived him and agreed to be a good Lease against the Survivor notwithstanding the Contingency And he conceived that this might be released and that it is not like to contingent actions insomuch that it is a release of right in Lands see 5 H. 7. 31. b. Colts Assise where it is said if Lord Mesne and Tenant are and the Mesne is forejudged by the Tenant and after the Lord releases to the Tenant and after by Parliament it is enacted that the fore-judger shall be void yet the release shall be good against the Lord and so of actions by Executor before Probate and 14 Ed. 3. Barr Release of Dower by Fyne doth extingush it and Althams case 8 Coke if it be made to the Tenant of the Land that shall be a Barr. And 21 H. 7. fol. the last Release to a Patron in time of Vacation shall be a Barr in annuity brought against the Incumbent and if the Lessee for years be outed and the Disseisor makes a Lease for years to a stranger and the first Lessee release to them both this is good as it is 9 H. 6. and yet regularly such release is not good without privity But insomuch that it is of right to the Land and to one which hath possession it is very good So Release by Copy-holder extincts his Copy-hold right as it is resolved 4 Coke amongst the Copy-hold cases and yet hee agreed that some possibilities cannot be released as in Albayns case power of Revocation if it be not to the Tenant of the Land insomuch that this is a meer possibility So if an annuity depend upon a condition precedent but where the returning of the estate is to the party himselfe as in Diggs case 1 Coke 174. a. And also the release in this case is the more strong insomuch that the estate in this is recited as in the case of 44 Ed. 3. in release of Ayde And so he concluded that admitting there be no election and execution of the Legacy by the acceptance of the Release then the title of the Defendant is good and if it be a good election execution Yet he conceived that all the tearm remains in the first Devisee and that the remainder is destroyed by the release and so prayed Judgment for the Defendant and so it was adjourued Pasche 1612. 10. Jacobi In the Common Bench. Manley against Jennings IN Debt upon an Obligation with Condition to performe observe fulfil and keep all Covenants Grants Articles Payments contained in a Lease c. The Lessee doth not pay the Rent at the day and the Plaintiff without making of any request begins a Suit upon the Obligation and upon this matter pleaded in Barr the Plaintiff replyed that he was not demanded and upon this the Defendant demurred And Harris Serjeant for the Defendant argued that when any penalty is annexed to a payment of the Rent be that annexed to the estate or otherwise yet it ought to be requested and without request to pay it no penalty shaâ—l be incurred as in 22 H. 8. 57. a. b. by Newton Ashton and Port where a difference is taken between an Obligation taken for payment of Rent generally without any relation to a Lease and where it is only for performance of Covenants and Issue taken upon the request and after demurrer joyned and the question if the Lessee ought to tender it 14 Edw. 4. 4. accordingly And in 21 Edw. 4. 6. a. b. Pigott and Bryan agreed that there shall be no penalty nor Obligation forfeited without request where the Obligation is for performance of Covenants and not precisely for the payment of Rent and so he concluded and prayed Judgment for the Defendant Nichols Serjeant for the Plaintiff conceived that the Lessee ought to make tender upon the Land to save the penalty and this shall be sufficient and the Lessor need not to make request and this is the Obligation for performance of Covenants for this doth not alter the nature of the Rent but if it be for payment of Rent precisely there the Lessee ought to seek the Lessor or otherwise for not payment he shall forfeit his Obligation for there tender upon the Land shall not excuse him And for that if a man makes a Lease for years rendring Rent at Michaelmass with nomine poene if it be not payed within 10 dayes after Michaelmass and within the 10. dayes and these differences appear and are agreed in 22 H. 6. 57. and 6 Edw. 6. Brooke tender 20. And he conceived that the Books of 14 Ed. 4. 4. 20. Ed. 4. 6. and 11 Ed. 4. 10. depends upon these differences that is that a man shall not distrain for Rent charge without Request insomuch that it is as a Debt which is due upon Request and admit that the case were that a man made a Lease for yeares the Lessee covenants to pay the Rent at the day with a nomine pene in default of payment of that and after the Lessee assignes his Interest to one which Covenants to pay the Rent and performe all the Covenants in the Lease he demanded in this case who shall make the request that is the first Lessor or the Lessee insomuch that it is penall to the Assignee of them both and so many Suits may arise upon that and also he sayd that it was ruled here upon a motion in arrest of Judgment that in Debt upon an Obligation to performe Covenants there need not to be alledged demand upon Solvit or non Solvit put in Issue for it may be pleaded that it was tendered or payd and so he sayd it is confessed by the Demurrer that the Obligation is forfeited and for that he prayed Judgment for the Plaintiff Coke cited Myles and Dragles Case where a man was bound for performance of a Will he need not to pay Legacy devised by that for which is no day assigned without request so if the Obligation be for payment of Legacy expresly and no day assigned and so it was adjourned Trinity 1612. 10. Jacobi in the Common Bench. Gravesend Case IN Debt the case was this that is the
appears by 9 Edw. 4. 33. 37 H. 6. 32 H. 6. 1. Ed. 4. 2. 50. Ed. 3. And he conceived that the burying is not any Administration nor the taking of the goods into his custody to preserve them no more then in Trover and Conversion when a man takes the goods for to preserve them And he agreed that where a man intitles himselfe to goods by Administration committed by any but by the Bishop he ought to pleade specially that he which committed it had power to doe it But here it is not so but only conveiance and for that need not here such precise pleading of that insomuch it is only execution of Administration and for that it is good without intitleing the Arch-Deacon And he agreed that an Executor of his owne wrong may pay Debts due to another and shall be discharged And he agreed also that the Confession of one Executor shall bind his Companion and that Judgement shall be given upon that for the Plaintiff And they all agreed that the pleading that the Defendant hath no goods besides the goods which do not amount c. it was not good and for these causes they all agreed that Judgement ought to be given to the Plaintiff Trinity 10. Jacobi in the Common Bench. Tyrer against Littleton 9. Jacobi Rot. 299. IN Trespasse for taking of a Cow c. Upon not guilty pleaded by the Defendant the Jury gives speciall Verdict as it followes that is that the Husband of the Plaintiff was seised of eighty Acres of Land held of the Defendant by Harriot service that is the best Beasts of every Tenant which died seised that he had at the time of his death and that the Husband of the said Defendant long time before his death made a Feoffment of that Land in consideration of marriage and advancement of his Son to the use of his Son and his Heires with such agreement that the Son should redemise to his Father for forty yeares if he so long lived and that after the marriage was had and the Son redemised the Land to his Father and the Father injoyed that accordingly and paied the Rent to the Lord and after died and that the Plaintiff had no notice of his Feoffment and that the Husband at the time of his death was possessed of the said Cow and that the Defendant took it as the best Beast in name of Harriot and also found the Statute of 13. Eliz. of fraudulent conveiances to deceive Creditors and so praied the direction of the Court and this was agreed by the Plaintiff aforesaid Nicholls Serjeant first that all conveiances made upon good consideration and Bona Fide are by speciall Proviso exempted out of the Statute of 13. Eliz. chap. And he conceived that this is made upon good consideration and Bona Fide and for that it is within the said Proviso and also he said that as upon the Statute of Marlebridge there is fraud apparent and fraud averrable as it appeares 12. H. 4. 16. b. Where in ward the Tenant pleads that his Father levied a Fine to a stranger the Lord replies that this was by Collusion to re-enfeoff the Heire of the Tenant at his full age and so averred that to be by Collusion to out the Lord of his Ward and this is fraud averrable But if the Tenant had enfeoffed his Tenant immediately in Fee-simple this is apparent without any averment and the Court may adjudge upon it And so upon the Statute of 27. Eliz. chap. 4. it appears by Burrells Case that the Fraud ought to be proved in Evidence or confessed in pleading or otherwise this shall not avoid conveiance for it shall not be intended 6 Coke 78. a. and see 33. H. 6. 14. b. Andrew Woodcocks case upon which he inferred that this is but a fraud averrable if it be a fraud at all and of this the Court could not take notice if it be not found by the Jury and he said upon the Statute of 32 H. 8. Of Devisees as it appeares by Knights Case 8 Coke and 12. Eliz. Dyer 295. 8 9 10 10 11 12 13 14 15 16 17. And so he concluded and praied Judgement for the Plaintiff Harris Serjeant for the Defendant argued that the Circumstances which are found in the speciall Verdict are sufficient to satisfie the Court that it is fraud for as well as the Court may give direction to the Jury upon Evidence that it is fraud and what not as well may the Court Judge upon the special matter being found by special Verdict at large as in 9 El. Dyer 267. and 268. that is the special matter being found by special verdict at large as in 9 El. Dyer 267. 268. that is the speciall matter is found by Inquisition upon Mandamus and leave to the Court to adjudge if it be fraud or not and in 12 El. 294. and 295. 8. the speciall matter was found by Jury upon Eligit directed to the Sheriffe and by him returned to the Court And in Trinity 27. Eliz. between Saper and Jakes in Trover the Defendant pleades not guilty and gives in Evidence as assignement of a Tearme to him with power of revocation And the Court directed the Jury that this was fraudulent within the Statute of 27. Eliz. to defraud a purchasor and in Burrells Case 6. Coke 73. a. before the fraud to the Court upon Evidence to the Jury and the Court gave direction to the Jury that it was fraud and that upon the Circumstances which appeares upon the speciall Evidence And so in this case he conceived that insomuch the circumstances appear by the Verdict that the Jury may very well adjudge upon it and so he concluded and praied Judgement for the Defendant Coke cheife Justice that the Statute of 13. Eliz. Doth not aid the Defendant insomuch that the Feoffment was made for good consideration and for that shall be within the said Proviso for if that shall be avoided at all that shall be avoided by the Statute of Marlebridge which is ouly affirmance of the Common Law and this is the reason that not withstanding the Statute speakes only of Feoffment by the Father to his Son and Heire apparent yet a Feoffment to a Cosin which is Heire apparent is taken to be within the Statute and in the 24. of Eliz. in Sir Hamond Stranges Case It was adjudged that if the Son and Heire apparent in the life time of his Father purchase a Mannor of his Father for good consideration this is out of the Statute and so it was adjudged in Porredges Case also he said that the Law is an Enemie to fraud and will not intend it being a conveiance made for consideration of a marriage to be fraudulent no more then if the Father had made a Feoffment to the use of a stranger for life the remainder in Fee to his Son and Heire the which is not within the Statute of Marlebridge as it is agreed in Andrew Woodcocks Case 33.
defects and with this agreed the expresse Booke of 11 Edw. 3. Fitz. Ayde 32. and so he concluded that it should not be granted Warburton Justice doubted and insomuch that the granting of ayde where it is not grantable is no error but otherwise of the denying of that where it ought to be granted he would be advised But he conceived that the cause for which ayde is granted is not the feeblenesse of the Estate of him which prays it onely but to the intent that they may joyne together and one defend the other for Tenant for life may plead some Plea which he in reversion may plead saving the joyning of Issue in a Writ of Right and he had a Manuscript of the 11 Rich. 2. where Tenant for life the remainder for life the remainder for life was and the first Tenant for life had ayde of them both in remainder and so concluded Coke cheif Justice that aid ought not to be granted in this Case insomuch that he which is the first Tenant hath greater Estate then he in Remainder for his Estate in Remainder is more Remote and uncertaine and to the Book of 11 R. 2. He agreed that the ayd was granted of all in Remainder but there they in Remainder had Estate tayle and he sayd that ayd is to be granted in two Cases in personall Actions to maintain Issue and when Tenant for life prays in ayd of him in Remainder or Reversion without which they cannot answer nor plead nor Issue cannot be deduced but so it is not here for the first Tenant for life may answer and plead to the Issue as well without him in Remainder for life as with him for if Tenant for life Remainder in tayl Remainder in fee if the first Tenant for life be impleaded he shall have ayd of him in Remainder in tayl otherwise if the Reversion had been to the first Tenant for life with a mesne Remainder in Tayle 41 Ed. 3. 42 Ed. 3. 10 Ed. 3. And 11 Ed. 3. Receit 118. Tenant for life Reversion for life Remainder in fee was he in Reversion for life shall be received upon default of the first Tenant for life and if he will not then he in Remainder in fee shall be received and yet he shall not have Wast as it appears by 24 Ed. 3. for this destroyes the first Estate but the receit maintains and preserves it and he sayd that the 11 Ed. 3. Ayd 32. before cited rules this case and so of 4 H. 6. And so he concluded and insomuch that Warburton doubted of it it was adjourned Trinity 10. Jacobi 1612. In the Common Bench. Yet Rowles against Mason See before 57. WINCH Justice argued that the Defendant is not guilty and that the Plaintiff shall take nothing by his Writ for he conceived that the verdict is uncertaine insomuch that it is not found that Livery and Seisin was made upon the Lease for three lives of the Mannor but onely one Memorandum that it was made in the house of the Lord but it is not found that this House was parcell of the Mannor but after it is found that the Lessee by force of this was seised by which it is implyed that it was very well executed and this being in speciall verdict would be very good he conceived there were two principall matters in the Case First Upon the Bargaine and Sale of Trees if they be re-united to the Mannor or remaine undivided Secondly Upon the two customes the which he conceived depend upon a question for the first warrants the second And to the first When a man devises a Mannor for three lives and by the same Deed in another clause bargaines and sells the Trees and then insues the Habendum and this is of the Mannor only and limits Estate of that for three lives without mention of the Trees hee conceived that the Trees passe before the Habendum absolutely and it is not like to a Bargaine and Sale of a Mannor with Trees or Advowson appendant and here the purpose and intent appeares that they shall pass together and as appendant But in the first case they shall passe as a Chattell immediately upon the delivery of the Deed before any livery made upon this to pass the Mannor and if Livery had never been made yet he shall have the Trees see 23 Eliz. 379. 18 Dyer Where a man devises and grants a mannor and trees Habendum the Mannor for one and twenty yeares without mention of the Trees and yet by Windham Periam and Meade against Dyer the Lessee cannot cut and sell the Trees for there was all in one sentence that is the grant of the Trees and the Demise of the Mannor see the 8 Coke Pexells Case how a Grant shall be construed and where that shall be intended to pass Inheritance and where to pass but a Chattell where a man grants a Chattell and ten pound yearly to be payd and in 7 Ed. 4. If a man hath Inheritance and a Lease in one Town and he by one and the same Deed gives Grants Bargaines and sells all to one Habendum the Inheritance to him and his Heires this is no forfeiture of the Lease insomuch that the Fee doth not passe of that so in the Principall Case Fee-simple passeth in the Trees and Free-hold in the Mannor and he conceived that by the Demise over the Land and Trees are not re-united and this he collected out of Herlackendens Case 4. Coke and 12. Eliz. Bendlowes a man made a Lease for anothers life and bargaine and sold the Trees to him for whose life Lessee dyes he for whose life becometh occupant of the Land he shall have severall Estates one Estate in the Land and another Estate in the Trees and so in Ives Case 5 Coke 11. a. Lessee takes a Lease first of Land except the woods and after takes a Lease of the Woods and Trees and they remaine distinct and though that after there are generall words in the Lease that is of all Meadowes Pastures Profits Commodities c. That is not materiall for these shall be referred to all such things which belong to the Land and so he concluded this point that the Trees remain severall from the Land and do not passe to Hoskins by the Demise of the Copy-hold only and so he cannot take advantage of the forfeiture otherwise he did not doubt but that the particular Sum might take advantage of the forfeiture Secondly for the customes he conceived that the first that is that the Copy-holder for life might nominate his Successor and is good and so for the second that such Copy-holder may cut and sell all the Trees growing upon his Copy-hold and he conceived that the validity of the custome ought to be adjudged by the Judges and the Truth of that by the Jury and when it is found true by a Jury and that it hath such antiquity that exceeds the memory of man then this obtaines such priviledge as the
Grant his Intent was cleerly to pass all but Williams if he had sayd Totum Molendinum suum or all his Estate in the Mill there paradventure it should haue been otherwise and so a difference where he saith he grants the Mill and all his Estate in that and where he grants all his Estate in the Mill for in the first case all passes by the Grant of the Mill and these words which are after are but words explanatory as â—rooke sayd and it was adjourned And after in Easter Tearm next insuing Hitcham the Queens Attorney came again and prayed that the Judgment be affirmed and Yelverton of Grayes Inne sayd that he hath considered of Nokes Case 4. Coke and this was all one with this case for the case was thus A man lets a House in London by these words demise Grant c. That the Lessee should injoy the House during the Tearm without eviction by the Lessor or any claiming from or under him and the Lessor was bound to peform all Covenants Grants Articles and Agreements as our case is and there by the whole Court that the sayd express Covenant qualifies the generalty of the Covenants by the Words Demise and Grant which is all one with our case for first he granted Totum Molendinum and after covenant that he should injoy c. against himself and all which claime in by from or under him and after binds himself to perform all Grants Covenants Articles and Agreements and so it seems to him that it is au expresse Covenant in this Case as well as in other and qualifies the generall Covenant implyed by the word Grant and then the Grantee being outed by a title Paramount no Action of Debt upon such Obligation and prayed that the Judgment be reversed and the Justices sayd they would consider Nokes Case and the next day their opinions were prayed again and the cheife Justice sayd that he had seen Nokes case and said that there is but a small difference between the cases but he sayd that some diflemay be collected For first in our case is a Recitall of the Estate of the Grantor that is that all belongs to him as Survivor and for that this was a manner of Inducement of the Grantee to be more willing and forward to accept of the Grant and to give the more greater consideration for it but in Nokes case there is no recitall and so this may be the diversity Secondly In Nokes Case the Tearm past all in Interest at the first and the Grantee or Lessee had once the effect of this Lease in Interest of the Lessor but in this case when two Tenants in Common and one grants Totum molendinum there passes but a half at the first and so the grant is not supplyed for the other halfe and then if the speciall Covenant shall qualify the generall c. The Grantee shall not have any remedy for a half at all and this may be the other diversity but admitting that none of these will make any difference then he sayd that all the Court agreed that this point in Nokes Case was not adjudged but this was a matter spoken collaterally in the case and the case was adjudged against the Plaintiff for other reasons for that that he did not shew that he which evicted this Tearm had title Paramount for otherwise the Covenant in Law was not broken and for this reason Judgment was given against the Plaintiff and not upon the other matter and so the whole Court against Nokes Case And the cheif Justice sayd that to that which is sayd in Nokes case that otherwise the speciall Covenant shall be of no effect if it cannot qualify the generalty of the Covenant in Law he sayd that this serves well to this purpose that is that if the Lessor dyes and any under the Testator claim the Estate that the Action of Covenant in this case lies against his Executors which remedy otherwise he cannot have for if a man makes a Lease by these words Devise and Grant and dyes Action of Covenant doth notly against his Executors as it is sayd in the 9. Eliz. Dyer 257. But otherwise upon expresse Covenant and then this expresse speciall Covenant shall be to this purpose And also it seems to him that if a man devise and grant his Land for years and there are other Covenants in the Deed that in this case if the Lessor binds himself to perform all Covenants that he is not bound by his Bond to perform Covenants in Law and he cited that to this purpose the Books of 22 H. 6. and 6 Ed. 6. B. Tender that if a man makes a Lease for yeares rendring Rent this is Covenant in Law as it is sayd 15 H. 8. Dyer and a man shall have Debt or Covenant for that and yet if a man binds himself in a Bond to perform all Covenants where there are other Covenants in the Deed and after doth not pay the Rent no action of Debt lyeth upon this Obligation nor the nature of the Debt altered by that and he sayd that the Munday next they would pronounce Judgment in the Writ of Errour accordingly if nothing shall be sayd to the contrary and nothing was sayd Hillary 7. Jacobi 1609. In the Kings Bench. Bartons Case THE Case was this A man was taxed by the Parish for Reparations of the Church and the Wardens of the Church sued for this Taxation in the spirituall Court and hanging this Suit one of the Wardens released to the Defendant all Actions Suits and Demands and the other sued forward and upon this the Defendant there procured a Prohibition upon which matter shewed in the Prohibition was a Demurre joyned and Davenport of Grayes Inne moved the Court for a Consultation and upon all the matter as he sayd the point was but this If two Wardens of a Church are and they sue in the Court Christian for Taxation and one Release if that shal barr his Companion or not And it seems to him that this Release shall not be any Barr to his Companion or Impediment to sue for he sayd that the Wardens of a Church are not parties interested in Goods of the Church but are a speciall Corporation to the Benefit of the Church and for that he cited the Case in 8 Ed. 4. 6. The Wardens of the Church brought Trespass for goods of the Church taken out of their possession and they counted Ad damnum Parochianorum and not to their proper damage and the 11 H. 4. 12. 12 H. 7. 27. 43 H. 7. 9. Where it is sayd expresly that the Wardens of the Church are a corporation only for the Benefit of the Church and not for the disadvantage of that but this Release sounds to disadvantage of the Church and for that seems to him no Barr also this Corporation consists of two persons and the Release of one is nothing worth for he was but one Corps and the moyity of the Corps could not release
every Knight and that diverse of those Fees were received and this office being litigious were delivered to be detained in Deposito and to be delivered to him which was Officer and the plaintiff brought an Action by the name of Chester as Officer and recovered those Fees and this was resolved good Seisin and also that Seisin after the grant of the Office and before the investing of the Patentee by the Marshall was good for the Investing was but a ceremony it was also resolved that where an office extends to all the parts of England and that here an Assise doth not lie in any County though that the dissesin were made in one County but the Assise be brough for the profit of the office in one County and not for the office it selfe 43. Ed. 3. Feoffments and Deeds That by Grant of the profits of a Mill and Livery the Mill it selfe passes so that taking of the profits is dissesin of the office also it was objected that the Demandant was no officer for though that he hath a Patent of it yet he was not Invested nor Installed in the office which appeares to the Marshall and for that he was no Officer and so hath no cause to have Action And that this is an office which is incident and annexed to the office of Earle Marshall and though that he be not Earle Marshall yet there are Commissioners have his power and authority and for that the Investing and Instalment of the Plaintiff in the said office appeares to the said Commissioners but it was resolved cleerely by all the Justices that the Demandant was Officer by the Kings Grant without any Installation or Investing and that this without that all the Fees and Profits of the office appertayning to him and that the Investing and Installation was but a ceremony in the same manner as if the King hath a Donative and gives that to another the Donee shall be in actuall possession by the gift without any Induction or other ceremony But admitting that the office were annexed to the office of Earle Marshall then it was agreed that the Commissioners cannot give it as the cheife Justice of the Common â—ench hath divers offices appertaining to his place and he may dispose of them But if he die the King in time of vacancy nor the most ancient Judges cannot give or dispose of any of them being void as it appeares by Serrogates Case Eliz. Dyer And so the cheife Justice is made and allwaies hath been made by Patent and so are the other Justices and for that they cannot be made by Commissioners and so the cheife Justice of England hath all times been made by Writ and for that cannot be made by Patent nor by Commission And so in the case at the Barr though that the Commissioners have the power and authority of the Earle Marshall yet they are not Earle Marshall it was also objected that the Fees were not due to the Plaintiff for that he did not attend But to that it was answered and resolved that the Fees were due to the office and for that non attendance of the office was no forfeyture of the Fees And upon these resolutions the Recognitors found for the Demandant according to the direction of the Court. Trinity 7. Jacobi 1609. In the Kings Bench. Godsall GODS ALL and his Wife The Proclamations of the Fyne were well and duly entred in the Originall remaining with the Chirographer But in the Transcript with the Custos brevium was error and it seemeth that this notwithstanding the Fyne was good but the Transcript was amended Trinity 7. Jacobi 1609. In the Kings Bench The Town of Barwicke THE King which now is by his Letters Patents Incorporated the Mayor Bayliffs and Burgesses of Barwicke and granted to them the execution of the Returne of all Writs And after a Writ of Extendi facias was directed to them and they made no returne of that and upon this was the question if that shall be executed by them or by the Sheriff of Northumberland And it seemed to Nicholls Serjeant that argued for the Plaintiff in the extent that desired execution and the returne of that that they ought to make execution and returne for it seemes to him that this was English and that this appeares by the Act of Parliament by which the Incorporation was confirmed and so it appeares also by the Letters Patents of the King by which the Incorporation is made for if it were not English neither the Letters Patents nor the Act of Parliament are sufficient to make Incorporation of that and also they certified Burgesses to the Parliament of England And the Kings Bench sent Habeas Corpus to it and for the not returne of that inflicted a Fyne upon the Corporation See 21. Ed. 3. 49 and 1. Ed. 4 10. But Hutton Serjeant seemed to the contrary and that they ought not to make execution for he said it is a part of Scotland and not part of England and it was conquered from that and it was a Sherifwicke and hath the same priviledges of ancient times which they now have by their new Grant See 24 Ed. 1. and 2. Ed. 2. Obligation c. That one Obligation dated there shall not be tryed in England and also that it is not within the County of Northumberland nor part of it nor the Sheriff of Northumberland cannot meddle in it see 2. H. 7. 31. 26. H. 6. 23. and it is adjourned It seemes that Jacob and James are all one name for Jacobus is-Latine for them both but Walmesley conceived that if he be Christened Jacob otherwise it is as if one be Christened Jacob and another James then they are not one selfe same name Note that Coke cheife Justices said that if Commissioners by force of Dedimus potestatem take a Fine of an Infant that they are Fynable and ransomable to the value of their Lands and that this shall be sued in the Star chamber Trinity 7. Jacobi 1609 In the Common Bench. Robinson RObinsons Case A man devises Lands to his Wife for life the remainder to his Son and if his Son dies without Issue not having a Son that then it should remaine over and it seemed that this it a good Estate tayl and it was adjudged accordingly If a man makes a Lease for three yeares or such a small Tearme to his Son or Servant to try an Ejectione Firme or if it be made to another Inferion by a Superior which cannot countenance the Suit it shall not be intended Maintenance nor buying of Tytles which shall be punished Trinity 7 Jacobi 1609. In the Common Bench. NOte an Attorney of the Common Bench was cited before the High Commission and committed to the Fleet for that he would not swear upon Articles by the Commissioners ministred and Habeas Corpus was awarded to deliver him and a Prohibition to the Court of high Commission see 1. and 2. Eliz. Scroggs case
annex Fee to a necessary Office to be taken of the Subjects but it was objected that the Alneger had no Fee and if he had that he was abridged of that by the Statute of 2 Ed. 3. 14. Where it is sayd that they shall be ready to make proofe when they should be required to measure without taking any thing of the Merchant but this refers only to the Maiors and Bailiffs of Towns where such Cloathes shall come and not to the Alneger and that the Statute of 11 Ed. 3. chapter 3. consists upon two parts First that Clothiers may make Cloth of what length and breadth that they will The second that no Cloth shall be brought into England Wales or Scotland but that which is made in them and then if the Clothiers have such liberty to make Cloath of what length and breadth they will then there is no need of Alneger As to that it was answered that there was need of him to see and search the Goodness of that as well as the length and breadth And also the Statute of 25 Ed. 3. chap. 4. Provides that all Clothes vendable which shall be sold whole Cloathes in England in whose hands soever they are shall be measured by the Alneger of the King and the Statute of 27 Ed. 3 chapter 4. Statute the first provides that no Cloathes shall be forfeited though they be not of the same Assise but the Alneger of the King shall measure the Cloath and mark it with such a mark that a man may know how much that contains so for these Statutes and for the reasons aforesaid it appears that it belongeth to the Office of an Alneger to survey measure and marke Cloathes as well by the Common Law as by the Statute Law It was objected first that the Statute of 27 Ed. 3. limits and appoints that the Alneger should measure broad Cloath and doth not make mention of any other Cloathes but broad Cloathes and for that it seems that he shall not meddle with any other Cloathes but it appears by diverse Accounts that he should meddle with Wadlowes and Sayes and the Statute of the 17 R. 2. chap. 2. Provides that none shall sell any Cloath before that it be measured by the Alneger of the King and that none shall make any deceit in Kerseys The second Objection that Cloathes of Lesser Assise then halfe broad Cloath the Alneger shall take nothing by the Statute of 27 Ed. 3. This is intended of Broad Cloath which hath used to be sold and these be in lenght above the broad Cloath and in breadth as Kerseyes and others were but as Remnants which have not been used to be sold no subsidye was due by the Common Law for that is granted by the Statute of 27 Eliz. And in this Grant two things are to be considered First the Statute of 2 Ed. 3. and the Statute made at Northampton where it was petitioned to the Parliament that the King would remit the penalties aad the Kiug should have recompence for the loss and for this the Statute gives subsidy this was no private gift but a publick gift and the reason of this was the retribution of his loss and the King payd for it and that for this he should have a Subsidy Secondly Woolls are the continuall Treasure of the Realm and let them be of what nature they will they are called Panui And for that when the King hath a settled Inheritance it is no reason that the slight of an Artist should prejudice the King And it appeares by the Statute of 11 H. 4. 7. that was made to prevent the barrelling of Clothes and the making of them into Garments and the transporting of them beyond Sea And also the third reason is usage for all other clothes pay Subsidy and there is no other Law to charge them but the Statute of 27 Ed. 3. 4. That this subsidy is setled in the King and no devise of man may divest it the Statute of 27. Ed. 3. and 47. Ed. 3. Set down and alter the length and breadth of clothes and yet the Custome remaines The fifth objection that the Statute doth not extend in equity to a thing which is not in Rerum natura at the time of the making of the statute which is false position for how can makers of statutes prevent all mischeifes Eaton and Studdes case Com. Aristotle in Ethicks liber 5. chap. 10. saith that Equitas est correctio legis generatim late qua parte deficit And Bracton in his first Book of new Division Ch. 3. saith that Equitas est rerum convenientia que in paribus causis paria desiderat jura omnia bene coequi paret dicitur equitas quasi equalitas and for that it is enacted by the Statute of 11 Ed. 1. Acton Burnell for understanding of the Statute that if praysers of Goods prayse them at too high a value that they themselves shall have them at the same price at which they were praysed and after another Statute is made which provides that lands shall be extended upon a Statute which is taken to be within the Statute of Acton Burnell which was made before and so it appears by Littleton that the Statute of Glocester provides that warranty by Tenant by the Curtesie shall not bind the Heir without Assets and an Estate tayl was not then created but it was afterwards created by the Statute of Westminster 2. which was made the 13 of Ed. 2. Yet this Warranty shall not binde the Heire in tayl and also two objections have been made against the Patent First That it was against an expresse statute Secondly That it did not observe any rate or proportion proportionable to the quantity of the peece to that he answered that it is not against any statute see 7 Ed. 4. 2. 27. H 7. 5. H. 8. 2. 1. and 2. Phil. and Mary It is not against any of those for those provides and ordaines that there shall be Wardens for the better performance of all things which are to be done by the Alneger and doth not deprive the King of any thing given to him by any former statute but adds further care and deligence and when there is a Law which adds care and Manner and Forme to a former Law That doth not abridge and deprive the former Law of any thing given by that and if the Wardens do not do their Office yet that cannot prevent but that the Alneger may do it which to him belongeth as in 1 Ed. 4. 2. For Indentures taken in Sheriffs Turnes which should be delivered by Indenture to the Justices yet the Justices may proceed though they be not delivered by Indenture and so it is in 43. Ed. 3. 11. The Sheriff ought to array his Pannell four daies before the taking of that and adjudged that if he doth not it shall be no error in 43. Ed. 3. Assise 22. and so the Statute of 5. and 6. of Ed. 6. provides that the Mayor appoints
to viewers and searchers this doth not abridge the power of the Alneger for this is but an addition of greater care and diligence and by the statute of 39. and 43. Eliz. If upon a search they find any forfeyture they shall have it but if they do not find the Alneger may find it and then the King shall have it And to the Second he answered that true it is for every 64. of clothes the Alneger ought to have foure pence for his Fee and though that some peeces of cloth are more broade then others yet the lobour of the Alneger to measure them is all one So he concluded and demanded Judgement for the plaintiff Hillary 7. Jacobi 1609. In the Common Bench. Rutlage against Clarke IN Account the Plaintiff declares that the Defendant hath received of his money by the hands of a stranger to give an account The Defendant pleades in Bar that he received to deliver over to a stranger the which he hath done accordingly without that that he received it to make any of account otherwise then in this manner and it was resolved that the Plea in Bar was good without traverse for when he received the money he is to deliver it over or to give an account of it to the Plaintiff so that he is accountable Conditionally but the traverse is repungnant to the Plea though it be otherwise or another way against the Book of 9. Ed. 4. 15 See 41. Ed. 3. 7. 1. Ed. 5. 22. H. 6. 49 21 Ed. 4. 4. 66 1. Ed. 5. 2. that it is a good Bar without traverse But Brooke in abridging the case of 21. Ed. 4. 66 in Title of account saith that it seemes that the traverse ought to be without that that he was his receiver in other manner and there and in the Book at large are that Justices that is Coke Nele and Vavasor against Bryan that it ought to be traversed But here in the principall case it was adjudged that the traverse made the Plea ill Hillary 7. Jacobi 1609. In the Common Bench. Dunmole against Glyles THE case was this Grand-Father Father and Son the Grand-Father was possessed of a Tearme for two and twenty yeares to come devised to the Son the Land for one and twenty yeares and that the Father should have it during the Mynority of the Son and makes the Son his Executor and dies the Son being within the age of one and twenty yeares the Father enters into the Land and makes a Lease for seven yeares by Indenture untill the Son came to full age the Father makes his Son his Executor and dies The Son enters by force of the devise made by the Grand-Father And the question was if the Son shall avoid the Lease made by his Father and it was agreed that he might in proofe of which a Judgement was cyted which was in the Kings Bench Mich. 5. of Eliz. Rot. 459. or 499. In the Prioresse of Ankoresse Case where a Tearme was devised to one and if he died within the Tearme then to such of the Daughters of the Devisor which then should not be preferred the Devisor dieth the Tearme was extended for the Debt of the first Devisee and then he died the extent was avoided by the Daughters not preferred and they grounded their Judgement upon the former Judgements in Weltden and Eltingtons case and Paramores and Yardleys case in the Comment and for that the Law intends that a Devisor is Inops consillij and for that his devise shall have favourable construction according to his intent appearing within the devise and it was said by Coke that in many cases a man may make such an Estate by devise that he cannot make by an Act executed in his life time as it was adjudged in Graveners case where a man devises his Lands to his Executors for payment of his Debts that there the Executors have Interest that there the Executor of Executors shal have that and such Estate cannot be executed by Act in the life of the Devisor and so it was concluded by them all that the Son shall avoid the Lease made by the Father for the Devise was Executory and doth not vest till the full age of the Son and then Executor and shall avoid all Acts made by the Father by which Judgement was given accordingly Freeman against Baspoule See 9. Coke 97. b. THE case was this A. was indebted to B. and they both died the Heire of A. for good consideration assumed to the Administrator of B. that he would pay to the said Administrator the said Debt and for the not payment of that according to the Assumption the Administrator after brought an Action and then the said Heire and the Administrator submitted themselves to the award and arbitrement of C. and became bound one to the other to stand to the award accordingly so that the said Arbitrator makes his award of all the matters and controversies between them before such a day C. the Arbitrator before the day recyted the Assumpsit and the debt as aforesaid and agreed that the Heire should pay the Administrator so much money and that published according to their submission And in Action upon the case Nullum fecit Arbitrium was pleaded and upon demurrer it was objected that the award was void First For that it was for one party only and nothing was arbitrated of the other and to prove this the Book of 7. H. 6. 6. was cited and 39. H. 6. 9. see 2 R. 3. 18. b. And this also appeares by the pleading of an award for he which pleades it that he hath performed all things which are to be performed of his part And that the other pleades performance of all thing which are to be performed of his part by which it appeares that there ought to be performance of both parts and by consequence one award to both parties according to 22. H. 6. 52. Secondly that the award was void for that that the submission was of all controversies so that the Arbitrator delivered his award of all controversies c. And there was no award of the said Suit between the parties and for that he hath not made an Arbitrement of all controversies and by that the award was void and to prove that the Bookes in 4 Eliz. Dyer 216. Pumfreies award and 19. Eliz. Dyer 356. 39. and 39. H. 6. 9. Where it is said that if the submission were of all things and the Arbitrement of one only that is a void Arbitrement Thirdly For that it was not limited within the award at what day nor at what place the money should be paid by the Heire to the Administrator and for this cause also it shall be void for it ought to be payd immediatly and if the Heire cannot find the Administrator he forthwith hath forfeyted his Obligation and for that in this point it is uncertain and for that shall be void as it is in Samons case 5. Coke 77. b. Where
c. and that the Plaintif was sued there by J. S. and that hee was summoned and upon a nihill returned a capias issued according to the Custome c. And that he being an Officer there did arrest and the Court ruled him to plead the Custome particularly for holding the Court and to prescribe c. And here it is shewn that the Maior is a Justice of Peace And it doth not appear whether he did it as a Justice of Peace or Maior as 14. H. 7 8. A Justice of Peace cannot command his servant to arrest one without a Warrant in writing in his absence And Popham chiefe Justice said That although the Judges knew the Authority of the Maior by which they arrested men yet because it did not appear to them judicially as Judges it must be pleaded And a Justice of Peace cannot command his servant to arrest one if not in his presence which was granted And Fennor Justice said that the servant is not an Officer to the Maior as he is a Justice of Peace but the Constable and Walker also added that the Plea was that the Maior commanded to imprison him presently without shewing any cause which was held naught for the maior ought to temper his Authority according to Law For the Judges cannot imprison without shewing cause but them and the Maior both may command an Officer to arrest a man without shewing the cause for else before he shall be examined he may invent and frame an excuse and the accessories will flye away And Williams Justice finds that it was incertain for the Plaintif by what authority he commanded it whether as Maior or Justice of Peace and his power as a Justice of Peace the Judges knew by common Law but his power as a Maior they knew not if it be not shewed by pleading and Judgement HVggins versus Butcher Trin. 4. Jac. The Plaintif declared that the Defendant such a day did assault and beat his Wife of which she dyed such a day following to his damage 100 l. And Serjeant Foster moved that the Declaration was not good because it was brought by the Plaintiff for a Battery done upon his Wife And this being a personall wrong done unto the woman is gone by her death And if the woman had been in life hee could not have brought it alone but the woman must have joyned in the Action for the damages must be given for the wrong offered to the body of the woman which was agreed And Tanfield said that if one beat the servant of J. S. so that he die of that beating the Master shall not have an Action against the other for the battery and loss of service because the servant dying of the extreamity of the beating it is now become an offence against the Crown and turned into Felony and this hath drowned the particular offence and prevails over the wrong done to the Mr. before And his action by that is gone which Fennor and Yelverton agreed to BRown versus Crowley Pasch 5. Jac. Action of Trespass brought against Croyley for wounding the Plaintif upon the hinder part of the left legge being rendred in Latin super posteriorem partem levis libaei and the Jury found for the Plaintiff And Harris moved in Arrest of Judgment for hee said that these words levis libaei made the Declaration vitious for the incertainty for he said that levis signified light and it was an improper word for left and that judgment ought to be respited for the incertainty And Yelverton argued that judgment ought to be given for the Plaintiff for he said the Declaration was not vitious for if the Plaintiff had declared generally that he had wounded broken or evill intreated him and had omitted those other words it had been sufficient and then the adding of those words which were not materiall but for damages did not make the Declaration vitious and he said that levus leva levum was Latin for left And whereas he hath said that he strook him super posteriorem partem levis libaei where it should have been levis libaei it was but false Latin and the Declaration shall not be made naught for false Latin And Popham said that hee shewing upon which part of the body the wound was were laid only to incense damages for the Declaration had been sufficient though they had been omitted And Justice Fennor agreed to Popham and he said it had been judged that where a man brought an Action against another for calling him strong Theife and the Jury only found that he called him Theife but not strong Theif yet the Plaintiff recovered for this word strong was to no other purpose then to increase dammages and Judgement was given for the Plaintif VIccars versus Wharton Pasch 5. Jac. Viccars brought an action of false imprisonment against Wharton and others and shews that he was imprisoned two dayes and two nights without meat or drink The Defendants come and shew that King Edward the 1. by his Letters Patents did incorporate one Village in Nottingham-shire with Bailiffs and Burgesses and that the King did ordain and make those Burgesses Justices of the Peace there and that the Defendant was Bailiâ—â— and a Justice of Peace there and that the Plaintiff did speak divers opprobrious and contumelious words of the Defendant by reason whereof they imprisoned him And shews further that the Bailiffs have used from the time of the making their Patent to imprison the disturbers of the Peace and it was held a naughty plea for a custome could not be shewn in such a manner And Tanfield held in this case that a man could not prescribe to be a Justice of peace but Justice Williams held he might prescribe to be a conservator of the Peace And Tanfield held that the King might grant that all the Burgesses and their Heires should be Burgesses which Justice Williams denyed HAll versus White Pasch 5. Jac. An action of Trespass brought against the Defendant for impounding the Plaintiffs Cattel the Defendant justifies for Common And upon that they were at issue in Derby-shire and the Jurors being sworn the Bailiff found one Bagshaw one of the Jurors rending of a Letter concerning the said cause and shewed it to the Judg and a verdict given by the Jury And this matter moved in the then Kings Bench to quash the verdict but denyed by the whole Court because the Letter and the Cause was not certified by the Postea and made parcell of it for otherwise the examination of that at the Barre after the verdict shall never quash it And so it was adjudged between Vicary and Farthing 39. Eliz. where a Church Book was given in Evidence of which you shall never have remedy except it be entred and made parcell of the Record BVtler versus Duckmonton Trin. 5 Jacobi In Trespasse upon a speciall Verdict the Case was that no demised Land to a woman if she should live sole and unmarried
the remainder to John D. bastard in Tail the Remainder to the Defendant Ro. Duckmonton in Fee the woman married with Ro. D. the Defendant the Term expired Jo. D. Tenant in Tail in remainder releases to the Husband and whether this should alter the estate of the Husband he being Tenant at sufferance was the question and adjudged by the whole Court that the Release was void and it was cheifly void because the Release was made to him in the Remainder to take effect as upon the Remainder and there was no privity and he had but a bare possession and no Freehold and 10 Eliz. Dier Lessee for years surrenders and afterwards the Lessor releases to him and held a void Release for the reason aforesaid and 31 and 32 Eliz. it hath been adjudged between Allen and Hill where a Devise was made to the woman for life if she would inhabite and continue in the house and he went and inhabited in Surrey and the Heire released to her and it was held void because she was but Tenant at sufferance and so no privity but Yelverton and Tanfield that such estate for life was not determined without Entry and Yelverton Justice demanded that when the Husband continued in possession after the Lease determined whether he should be in the Right of his Wife and so remain Tenant at sufferance whether he should be in his own Right or be as an intruder Disseisor and then the release made to him was good but no answer was given to him but Judgement was given that the release was void and Fennor put this Case Tenant for life remainder in Tail remainder in Fee he in the remainder in Fee released to Tenant for life a void release because of the mean remainder in Tail and cited 30 E. 3. and no answer was given to it and Yelverton said that if Tenant for life release to him in the remainder in Fee it is void because it shall be void as a surrender and this word release shall not recite as a surrender HOldesden versus Gresill Mich. 5 Jacobi An Action of Trespass brought for breaking the Plaintiffs Close called B. at L. and for taking of two Conies the Defendant to the whole Trespasse but the entring in the Close pleads not guilty and as to the Close justifies because he Common in the Close called B. for five Cowes and because very many Conies were there feeding and spoiling the Common the Defendant in preservation of his Common entred to chase and kill the conies to which the Plaintiff demurred in Law and Judgement was given that the justification was naught for a Commoner cannot enter to chase or kill the Conies for although the owner of the Soil hath no property in the Conies yet as long as they are in his Land he had the possession which is good against the commoner for if the Lord surcharge the common with Beasts the commoner cannot chase them out but the owner may distrain the Beasts of an estranger or dammage feasant or chase them out of the common for the stranger hat no colour to have his Beasts there and also conies are a matter of profit to the owner of the Soil for Housekeeping and therefore because it appears that the cause of Entry was to chase and also to kill which are not lawfull as against the Lord who is Plaintiff therefore the matter of the justification is not good for if the Lord surcharge the Soil with conies the commoner may have an Action of case against him for that particular dammage which is a sufficient remedy against the Plaintiff upon a full and deliberate considera-of all the Judges JEnnings versus Haithwait Mich. 5 Jacobi An Action of Trespass brought to which the Defendant pleaded not guilty the Jury found the Defendant Vicar of D. and that he such a day leased his vicaridg to J. S. for three years rendring rent which J. S. assigned one Acre parcell thereof to the Plaintif and the Defendant was absent severall quarters in one year to wit sixty dayes in every quarter but they did not find the Statute of 13 Eliz. adjudged for the Defendant for the Statute of the 13 Eliz. is a generall Law for although it extends but to those which have cure of Souls yet in respect of the multiplicity of Parsonages and vicaridges in England the Judges must take notice of it as a generall Law and adjudge according to the said Statute and so is the Statute of the 21 H. 8. for non-residence DRewry versus Dennys Mich. 5. Jacobi An Action of Trespass brought against a man and his Wife and the Plaintif declares that they did beat one Mare of the Plaintifs and committed diverse other Trespasses and upon not guilty pleaded the Jury found that the Woman beat the Mare and for the residue they found for the Defendant and the Verdict adjudged naught by the Court for it is altogether imperfect for they have found the Woman guilty of the beating the Mare and have given no Verdict concerning that for the Husband either by way of acquittall or condemnation and the finding the Defendant not guilty as to the residue doth only extend to the other Trespasses contained in the Declaration and not to the beating of the Mare And Williams and Cooke Justices said that where a Battery is brought against Husband and Wife supposing that they both beat the Plaintif or the Mare of the Plaintif and upon not guilty pleaded it is found that the Woman onely made the Battery and not the Husband this Verdict is against the Plaintif for it now appears that the Plaintifs Action was false for the Husband in this case shall not be joyned for conformity onely and there is a speciall Writ in the Register for this purpose and is not like a Battery charged upon I. D. and I. S. for there one may be acquitted and another found guilty and good because they are in Law severall Trespasses SAnds and others versus Scullard and others Mich. 5. Jacobi The Plaintiffs brought an Action of Trespass against the Defendants for entring their Close and Judgement was entred against Dawby one of the Defendants by nil dicit Scullard pleaded not guilty whereupon a Venire facias was awarded upon the Roll between the parties as well to try the Issue as to inquire of the damages And the Plaintiffs took their Venire facias to try the Issue between the two-Defendants and the two Plaintiffs And according to that was the Habeas Corpus and Distringas but the Plaintiffs knowing Dawby to be dead took their Record of Nisi prius against Scullard onely and he was found guilty And Yelverton moved in Arrest of Judgement and shewed the Venire facias and that there was no Issue joyned between the Plaintiffs and Dawby for Judgment was given against him by Nil dicit and the Writ ought to have made mention onely of the Issue between the Plaintiffs and Scullard And their ought to have been
are to be recovered agreement is a good Plea as in 47. Ed. 3. 24. and 10. Ed. 3. in Debt upon a Lease for yeares concord is a good Plea and 7. Ed. 4. 23. in Detinue for charters it is a good Plea and in 6. Ed. 6. Dyer 75. 25. it is a positive rule that in all Cases and Actions in which nothing but amends is to be recovered in Dammages there an agreement with an execution of that is a good Plea and for that in Detinue it shall be a good Barr So in Covenant it was adjudged in Blakes Case 6. Coke 43. 6. As where an Obligation is with a Condition to pay money at such a day the payment of another thing is good if the Obligation be to pay a certaine Sum of money But if a man be bound in a Sum of money to make another Collaterall thing the acceptance of an other thing Collaterall shall not be a Barr for money is to the measure and the price of every thing if a man be bound in two Horses to pay one acceptance of another thing shall be no Barr But the acceptance of such a Sum of money in satisfaction is good Barr for this is the just Estimation and measure of every thing see 12. H. 4 Where a man was bound in an Obligation with Condition that he shall make acknowledgement of the Obligation of twenty pound to the Obligee before such a day c. And agreements are much favoured for it is a Maxim and Interest of the Common-Wealth that there be an end of suits for by Concord small thing increase and by Discord great things are consumed and the beginning of all Fines is Et est Cordia talis c. and the 11. of Rich. 2. Barr. 242. In Debt upon a Lease for yeares the Defendant pleads that by the same Deed by which the Land is let the Plaintiff grants that the Defendant ought to repaire the houses lett when they are ruinous at the costs of the Plaintiff and he retaines the Rent for the repaire of the houses being ruinous and a good Barr And if it be a right of Inheritance or Free-hold that cannot be barred or extinct by acceptance of another thing though it be of other Land as of another Mannor as it is agreed in Vernons Case 4. of Coke A woman accepts Rent out of the Land of which shee is not Dowable in recompence of her Dower this shall not be a Barr 5. Ed. 4. 22. 3. Eliz. Dyer and he said that the book of 11. H 7. 13. is misprinted insomuch that it is reported to be adjudged But in truth this was not adujdged for then it would not say in 13. H. 7. 20. the residue before 11. H. 7. 13. And in the 16. of H. 7. warranty it is agreed that in wast against Lessee for yeares Agreement is a good Plea otherwise if it be against Lessee for life And if they have adjudged 11. H. 7. 15. which was so small a time before they would not have adjudged the contrary in 16. H. 7. and Hillary 6. Ed. 6. Bendlowes in wast against Lessee for yeares in the Tenet Agreement is affirmed to be good Barr And in the book of Reports in the time of H. 7. printed in time of H. 8. the yeare of the 11. of H. 7. there was no print at all And he then upon that inferrs that as well as a man might agree for Trees so well might he agree for Tearme and to the booke of 9. H. 5. 15. a. That release of one Plaintiff in an Action of wast is a good Barr he said that this is to be understood in wast of the Tenant and then it shall be a good Barr see in the 12. of Ed. 4. 1. a. Two joyne in an Action of wast and the one was summoned and severed the other recovered the halfe of the place wasted and in the 26. H. 6. 8. Agreement is a good Barr in an Action of wast and he intended that in all Actions by force and Armes where a Capias lies at the Common Law Agreement or Arbitrement are good Pleas as Ravishment of Ward which is given by Statute in lieu of Trespasse for taking of a Ward where a Capias lies at the Common Law and Agreement was a Bar and for that now Agreement shall be a Barr in Ravishment of a Ward And he intended that an Ejectione Firme which is Trespasse in his nature and the Ejectment is added of later times And in all their Entries this is entred Trespasse and severs the Trespasse from the Ejectment and the Ejectment will vanish and the Statute of 4. Ed. 3. chap. 6. which gives Action to Executor of goods carried away in the life time of the Testator extends to that which proves this to be Trespasse for by the Statute the Executors may have Ejectione Firme for Ejectment made to their Testator notwithstanding that ancient Demesne is a good Plea in that and in the 44. Ed. 3. 22. That is called an Action of Trespasse and so all the Entries are De Placito Transgressionis and in the book of Entries in Mayhme it is cited to be adjudged 26. H. 6. Trin. Rot. 27. that concord is a good Plea in an appeale of mayne 35. H. 6. 30. But in an Action in the realty it is no Plea otherwise in Quare Impedit for there nothing is to be recovered but that which is personall and he intended that Agreement by one of the Defendants in personall Action is a good Barr as in 36. H. 6. Barr concord made by the freind of one of the parties was a good Barr Statham Covenant accordingly and 35. H. 6. 〈◊〉 7. H. 7. One of the petty Jury in Attaint pleads agreement and good and in an Ejectione Frime Lease made to try Title is not within the Statute of buying of Titles if it be not made to great men but to a Servant of him which hath the Inheritance and cannot mainetaine or countenance the Action and Bracton fol. 220. Lessee for yeares hath three remidies if he be evicted that is Covenant Quare Ejecit infra Terminum against the Feoffee of the Ejector or an Ejectione Firme against the Immediate Ejectors and in Ejectione Firme the Tearme shall be recovered as 12. H. 4. 1. H. 5. and 11. H. 6. 6. Non-Tenure is a good Plea in Ejectione Firme ergo the Tearm shall be recovered 7. Ed. 4. 6. 13. H. 7. 21 and 14. H. 7. It is adjudged that the Tearme shall bee recovered in Ejectione Firme and so he concluded that the agreement shall be a good Barr because Wise men seeke peace Fooles seeke strifes And that Judgement shall be given for the Defendant which was done accordingly Mâ—hcaelmass 1611. 9. Jacobi in the Common Bench. Mallet against Mallet LANDS were given to two men and to the Heires of their two Bodies begotten and the one died without Issue and the remainder of the halfe reverted to the Donor and he brought an Action of wast
Common Law mâ—â— be done by Custome and that an Estate may be created by such nomination it appeares by the case where a Remainder is Limited to him which the first Tenant for life shall nominate and it is very good and to prove that the Custome is good he remembred the custome of Millam in Norfolke where he was borne that is that if any Copy-holder will sell his Land and agree of the price that at the next Court when a surrender is to be made the next of his blood and if he will not any other of his blood may have the Land and so every one shall be preferred according to the neerenesse of his blood and with this also agreed the Leviticall Law as it appeares Leviticus 25. chap. verse 15. which appoints this to be at the yeare of Jubile and the Common Law within one yeare after the Alienation and upon this he infers that if Custome may appoint Heire in the life of the party then a Fortiore he may appoint Successor after his death and he conceived that at the beginning the Copy-holders might have had absolute Fee-simple of the Lord and they rather made choice to have such Estate insomuch that they did not know if their Children would be towardly or not and for that content themselves with the nomination of a Successor only and so is the Custome at Hamm also in Middlesex if any Copy-holder will sell the next Cleivener which is he that dwelleth next unto him shall have the refusall giving so much as another will and he which Inhabits one the East part first and the South and the West and last the North shall be preferred is the only way in his course and there the Successor is nominated by the Heavens and by the quarters of the Earth and so is the custome in Glocester And if any Husband hath an Estate for twelve yeares his Wife shall have it for twelve years also and so ad Infinitum and this makes nomination and so of Free-hold and so if it be good without nomination it shall be good by nomination And if the Estate determine by the Death of the Tenant without nomination when the Lord revives the Copy-hold Estates the priviledge also shall be revived But he conceived that the Tenant cannot nominate part to one and part to another nor that divided in fractions And he saith that this point hath been adjudged in the Kings Bench by foure Judges against Popham 5. Jacobi between Ball and Crabb And so he concluded this point and to the second custome he said he would speake to that Transitive but not Definitve and that it hath been adjudged 45. Eliz. between Powell and Peacock that bare Copy holder for life could not prescribe to cut and â—ell the Trees otherwise of Tenant in Fee-simple for he hath them cherished and fostered And it is against common reason incongruent and against the Common Law that a Copy-holder for life may cut and sell the Trees and custome ought to have reason and congruence for 10. Ed. 3. 5. Leete cannot be belonging to a Church insomuch that it is Incongruent and so in Writes Case 2. Coke Tythes cannot be appurtenant to a Mannor insomuch that it is incongruent and a spirituall thing shall not be pertinent to a temporall and so è Converso And so in the 5. Assis 9. and Hill and Granges Case Com. Turbary cannon be appurtenant to Land insomuch that it is incongruent but it ought to be to a house so in time of Ed. 2. Tenant of the Mannor prescribes to have free Bull and Bare and it is not good for the reason aforesaid otherwise it is of the Lord of a Mannor and 9 H. 5. 45. custome in Leete to present common and adjudged that it it is not good insouuch that it wants congruity for it is not proper to the Court and upon this he concluded that bare Tenant for life cannot prescribe to cut Trees for it is not congruent that such an Estate shall have such a priviledge and this for three reasons First insomuch that Trees growing are parcell of the Inheritance Secondly in respect of the perdurablenesse of them for it shall be intended that they will indure forever and so will not his Estate for this is as a shadow as Job said and 't is absurd that shadow should cut downe the Tree And also it is for necessity of habitation and Plow and Husbandry And it is for the Common Wealth that Copy-holder of Inheritanc might cut them by such custome for otherwise he would not be incurraged to plant and preserve them And notwithstanding that in this Case the custome be generall that the Copy-holder may cut down all yet that shall have a reasonable construction avd that this notwithstanding he leave sufficient for House-boot as if a man grants Common without number yet the Grantor shall not be excluded but shall have his Common there for excesse shall not be allowed As if a man which distraines another for Rent he shall not take excessive distress the Lessee for life excessive Tallage of villaines nor upon excessive Fines of Copy-holders and so it was adjudged in Heyden and Sir John Lenthorps Case that the Lord shall not take all but leave sufficient for reparations and so was the opinion of Wray cheife Justice in the 33 of Eliz. In evidence to a Jury but here he is in nature of Tenant in Fee-simple and it shall be intended that he hath cherished the Timber and every Copy-holders Estate granted is as a new Grant and hath affinity with Tenant in Fee-simple and he agreed that if Lessee for life the Remainder for years Remainder for life be and the first Lessee for life makes a forfeiture he in Remainder for years shall take advantage of that and that it hath been adjudged that the Lord of the Mannor shall take advantage of forfeiture made by the Copy-holder without presentment made by the Homage and in one Bacon and Flotsims Case and so Lessee for yeares of a Mannor shall take advantage of Forfeiture notwithstanding the Imbicillity of his Estate but the principall matter upon which he relyed was that the Trees were severed from the Free-hold and if the Lessee dy his Executors shall have them insomuch that they are meer Chattells and this First in respect of the Words of the Lease that is demise and to farm let the Mannor but bargain sell give and grant the Timber Trees to be felled and carried away at his Will As if a man makes a Lease for years except the Wood and after grants the Trees the Lease determines the Lessor shall not have the Trees again Secondly They are in two divided Sentences and also in respect of divided properties for the Executor of the Lessee shall have them and Quando duo Jura concurrunt in una persona equum est ac si esset in diversis also past at severall times for the Trees pass by the delivery of the Deed and the Land
doth not pass till Livery and Seisin be made Also the intent of the parties is not that they shall pass together for if the intent were otherwise the Law would not devide them as it was adjudged Hillary 15. Eliz. in the Lord Cromwells case where Tenant in Tayl was of a Mannor with the Reversion to his right Heirs and he by his Deed gives and grants the Mannor and the Reversion of that and includes Letter of Attorney within the Deed to make Livery but Livery was not made and yet the Reversion doth not pass for his intent appeares that it should pass by Livery and Seisin and not by grant and also in Androwes case the Advowson appendant to a Mannor shall not pass without inrolment of Bargaine and Sale yet there were words there that that might passe by Grant for this was against their intent otherwise if a man makes a Lease for life or years of a Mannor and grants the Inheritance of the Advowson by the same Deed and so of the case of 23 Eliz. Dyer 374. Lessor deviseth Grants and to farm lets the Mannor and the Trees and they passe joyntly and the Reason is insomuch that it is but a Joynt sentence and not severall as it is here also he intended that the life of the Lessee for life is not averred and for that he shall be intended to be dead and for that it is a severall grant of the Trees of the Free-hold for the Interest of them is setled in his Executors for if he had made Sale of them before that the Copy-holder had cut them down then that had not been forfeiture see 5. H. 7. 15 Ed. 4. 14 Eliz. Dyer And then the Case is this Tenant for anothers life of a Mannor makes a Lease for yeares of the Free-hold of which an Estranger hath a Copy-hold Estate for life in Esse Lessee dies and he conceived that the Copy-holder shall not be an occupant for it ought to be Vacua Possessio and this was the reason of the judgment in Adams Case in 18 Eliz. Where a man makes a long Lease for years and after intending to avoyd this Lease makes a Lease to another old man for anothers life to the intent that the Lessee for yeares should be occupant when the old Lessee died and so drowned his Tearm and after the Lessee died and resolved that the Lessee for years shall not be an occupant insomuch that there was not Vacua Possessio and for this it seems to him that if Lessee for anothers life makes a Lease for years and dyes that the Lessee for yeares shall not be an occupant notwithstanding that he made speciall claim and that for the reason aforesaid but he agreed that a Lessee for anothers life makes a Lease at will and dies there the Lessee at Will shall be an Occupant insomuch that his Estate is determined and yet there is not Vacua Possessio according to 38 H. 6. 27. But he did not say there should be an occupant in these cases but cyted Bracton fol. 8. that if the Sea leave an Island in the midst of that the King shall have it and not Occupanti conceditur and so he concluded that the Plaintiff shall be barred and that Judgment shall be entred for the Defendant which was done accordingly and it was afterwards agreed upon motion in this case whether it would not make difference if the Trees were cut by the Copy-holder before that he hath made his nomination or not notwithstanding it was objected that when he hath made his nomination then he was only bare Tenant for life and the Priviledge executed and he in Remainder was also Tenant for life only for he cannot nominate till he comes to be Tenant in possession but this notwithstanding insomuch that they had power to make nomination that is the first Tenant again if the second died in his life time and the second if the first died in his life time and so the Peiviledge continues all the Justices continued of their opinions and according to that Judgment was entred for the Defendant and that the Plaintiff should be barred and should take nothing by his Writ Trinity 8. Jacobi 1610. in the Kings Bench. The Lord Rich against Franke. THE Lord Rich brought an action of Debt against Franke Administrator of one Franke and this was for a rent reserved upon a Lease for yeares made to the Intestate and the Action was brought in the Debet and Detinet for rent due in the time of the Administrator and verdict for the Plaintiff and after moved in Arrest of Judgement by the Councell of the Defendant that this Action ought to be brought in the Detinet only and not in the Debet and Detinet and Chibborn of Lincolnes Inne conceived that the Action was well brought in the Debet and Detinet and to that he sayd that Hargraves case 5 Coke is so reported to be adjudged but he saith that he hath heard the councell of the other part insisted upon that that this Judgment was reversed and for that he would under favour of the Court speake to that And hee conceived that the Action so brought is well brought for three Reasons The first shall be drawn from the nature of the Duty and to that the Case rests upon this doubt that is if the Administrator is now charged for this Rent as upon his own duty or as Administrator and it seems to him not as Administrator but as upon his own duty for he saith that it is not Debt nor duty till the day of payment as Littleton takes the diversity in his Chapter of Release between Debt upon an obligation and a Rent and the day not being incurred in time of the Intestate this cannot be his duty therefore that ought to be duty in the Administrator and to the cases of 19 H. 8. 8. Where the Executor of a Lessee for twenty years which had made a Lease for ten years rendring Rent brought action of Debt against the Lessee for ten years for rent incurred in the time of the Executor and this is in the Detinet only and the Case of 20 H. 6. 4. Where an Executor brings an action of Debt upon Arrerages of Account of an Assignement of Auditors by themselves in the Detinet only and he sayd that in these Actions the Executors were Plaintiffs and in all actions brought by Executors where they are Plaintiffs and the thing recovered shall be Asset the Action shall be brought in the Detinet but in our case they are Defendants and so the diversity and to the Objection that may be made to this Contract out of which this duty grows and arises it was made by the Intestate and not by the Administrator himself and so this is a duty upon the first Privity of the contract he answered that there is great difference when a thing comes due by the Contract of the Testator alone and ought to be payed in his time in