lawfully endowed and paid his first Fruits and Tenths Resolved by all the Court that it shall be presumed that the Vicaridge was lawfully endowed And that it is a dangerous President to examine Originalls of Impropriations and Endowments of Vicaridges for that they may perish And so it was decreed for the Plaintiff Hill 4. Jac. Regis Bedle and Beard Anno 31. Ed. 1. The King being seized of the Mannor of Kâ—mbolton to which the Advowson of the said Church was appendant by Letters Patents granted the said Mannor wish the Appâ—â—tenances to Humphry de Bohun Earl of Hereford in tayl generall Humphry de Bohun the Issue in tayl by his Deed. 4 Ed. 3. granted the said Advowson then full of an Incumbent to the Prior of Stonely and his Successors And at next avoydance they held In proprios usus Upon this Appropriation Concurrentibus his quae in jure requiruntur the Prior and his Successors held the same till the dissolution of the Monastery 27. H. 8. The said Mannor descended to Edward Duke of Buckingham as Issue to the Estate Tayl. And the Reversion descended to H. 8. The Duke 13 H. 8. was attaint of High Treason 14 H. 8. The King granted the said Mannor c. with all Advousons appendant c. to Richard Wingfield and his Heirs Males 16 H. 8. It was Enacted that the said Duke forfeit all Mannors c. Advousons c. which he had c. in 4 H. 8. The King 37 H. 8. granted and sold the said Rectory of Kimbolton as impropriate in Fee which by mean conveyance came to the Plaintiff for 1200 li. 37 Eliz. Beard the Defendant got a Presentation of the Queen by Lapse pretending the said Church was not lawfully impropriate to the Prior. 1. For that Humphry who granted to the Prior had nothing in it nothing passing to his Ancestor by these words Manâ—rium cum pertinentiis 2. Or for that having no more but an Estate Tayl by his death his Grant was void But Resolved by the Lord Chancellor Ellesmere with the principal Judges and upon consideration of Presidents that the Plaintiff shall enjoy the Rectory for though by any thing which can now be shewn the Impropriation is defective yet it shall be now intended in regard of the antient and continual possession that there was a lawfull grant of the King to the said Humphry who granted in Fee so that he might lawfully grant it to the said Priory Omnia pâ—â—sumitur Solâ—mniter esse acta And all shall be presumed to be done which might make the antient Impropriation good And antient Grants and Acts shall not be drawn in question though they cannot be shewn for Tempus edâ—x rerum Letters Patents and Writings may consume be lost or imbezilled And therefore the Church was allowed to be rightfully impropriate and the rather in regard of the antient and long possession of the Owners of the said Rectory Mich. 4. Jac. Regis Case of Forfeiture by Treason Hill 43 Eliz. A Case was moved to all the Justices Tenant in Tayl before the Statute of 27 H. 8. made a Feoffment in Fee to the use of himself and his Wife in Tayl. And after the said Statute the Husband was attaint of High Treason 31 H. 8. and dyed The Wife continued in possession and dyed their Issue enter and die and this descends to his Issue and all this found by Office The Question was if the Issue in Tayl or the King shall have the Land 1. And it was objected that the antient Estate Tayl cannot be forfeited because it was discontinued and such right of Action cannot be forfeited As was agreed in the Marquess of Winchesters Case 2. The Feoffor himself in this Case had not any right to the antient Estate Tayl it being extinguished by his Feoffment and therefore by his Attaint could not forfeit what he had not 3. The Issue in Tayl in remitted to that antient right which cannot be forfeited And the new Estate Tayl derived under the discontinuance which may be forfeited by the Statute 26 H. 8. cap. 13. is continued and by Act in Law viz. the discent and remitter avoided And the Kings Estate may be divested out of the King by remitter As if Tenant in Tail grant Land to the King c. and the King grant the Land to the Tenant in Tail for life the remainder to his Son and Heirs for life Tenant for life dies the Issue by and in Law is remitted and the Kings Estate is divested out of him This accords with Plow Com. 489. Nicols Case 1. Resolved that in this Case the Issue in Tail is barred for though right of Action cannot be given to the King by the 26 H. 8. yet when Tenant in Tail discontinues his Estate to the use of himself in Tail and after is attaint of Treason now by that Statute he doth not onely forfeit the new Estate in Tail but by this the right of the antient Estate is barred for ever And so note out of the said Statute a diversity between a naked right of Action not forfeitable and an Estate of Inheritance forfeiâ—able coupled with an antient right for which the Forfeiture of the possession is barred by the said Act And iâ— is not like the Case in Plow Com. of Remitter for this is no barre of an antient right Pasch 4 Jac. Regis Case at a Committee aoncerning Bishops At this Parliament held Pasch 4 Jac. Regis It was strongly urged at a Grand Committee of Lords and Commons in the Painted-Chamber that such Bishops as were made after the first day of the Session were not lawful Bishops 1. Admitting them Bishops yet the manner and form of their Seals Stiles Process and Proceeding in their Ecclesiastical Courts were not consonant to Law Because by the Statute 1 Ed. 6. cap. 2. it is provided That thenceforth Bishops should not be Elective but Donative by Letters-Patents of the King And for that at this day all Bishops were made by Election not Donation of the King therefore the saâ—d Bishops are not lawful 2. By the same Act it is provided That all Summons c. and Process in Ecclesiastical Courts shall be made in the King's Name and Stile and their Seals Engraven with the Kings Arms and Certificates made in the Kings Name It was therefore concluded Thâ—t the said Statute being still in force by Consequence all Bishops made after the Act 1 Jac. were not lawful Bishops And the Proceedings being in the Name of the Bishop makes them unlawful Quia non obserâ—ata forma infertur adâ—ullatio actus Upon Consideration had of these Objections by the Kings Commandment it was Resolved by Popham Chief Justice of England â—nd Coke Attorney of the King and after affirmed bâ— the Chief Baron and the other Justices Attendant to â—he Parliament that the said Act of the 1 Ed. 6. cap. 2. is not now in force being repealed annulled and annihlated by three several Acts of Parliament Any whereof being
Justices That forasmuch as no Corruption and Circumvention was proved in any of the Parties of which they may be Indicted at the Suit of the King or punished in this Court that the Fine shall stand And it was not apparent to the Commissioners he was within Age seeing he wanted but six Weeks but if they had known it it had been a Misdemeanour in them And for this in this Court Mich. 24. 25 Elliz. 15. Between William Cavendish and Anne his Wife one of the Co-Heirs of Henry Knightly against Robert Worsley and Katharine another Co-Heir and Trafford and others Defendants The Case was That Robert Worsely and Katharine his Wife being within Age acknowledged a Note of a Fine before Trafford and another of the Defendants by Dedimus Potestatem And by the Decree the Commissioners knew Katharine was within Age and therefore every one of them was Fined but the Fine stands Mich. 38 and 39 Eliz. In this Court one Alexander Gilderbrand seized of Lands in Windham in the County of Norfolk in Fee one Hubbard procured one Roger to take upon him the Name of Alexander Gilderbrand who was then beyond Sea to acknowledge a Fine to the said Hubbard of the said Lands and they were Fined in this Court and the Lands ordered to be re-assured to Alexander on pain of a greater Fine But the Fine was not drawn off the File nor Damages awarded to the party grieved Mich. 12 Jac. Regis Mansfield's Case 23 Eliz. In the Court of Wards the Case was this Henry Bushly seized in Fee of Lands in Northmims in the County of Hartford by his Will in writing demised the said Lands to Henry Bushly his Son in Tail the remainder to William Bushly And because his Son was within Age he demised the Education of him to Thomas Harrison whom he made his Executor Afterward it hapned that Henry the Son became a deformed Cripple and proved an Ideot a Nativitate which Ideot by the practice of Nichols and others was ravished from his Guardian and carryed upon mens shoulders to an unknown place and there kept in secret till he had acknowledged a Fine of his Lands to one Bothome before Justice Southcot 9 Eliz. and by Indenture the use of the Fine was declared to be to the use of the Cognizee and his Heirs which Bothome 12 Eliz. conveyd the said Land to one Henry Mansfield And 22 Eliz. the said Henry Bushly the Son was by Inquisition found an Ideot a Nativitate And upon this 33 Eliz. the Court of Wards took order for possession of the Lands And it was moved That though the Fine binds the Ideot yet the Indentures are not sufficient to direct the Uses But it war Resolved That forasmuch as he was enabled by the Fine as to the Principle he shall not be disabled to limit the Uses which are but as accessory The same is the Law of an Infant and a Feme-Court And the said Mansfield brought an Action of Trespass in the Common-Pleas against one Trott Farmer of the said Lands and the Issue was tryed at the Bar and the Deformed Ideot brought out of the Court of Wards to be shewn to the Judges of the Common-Pleas and to the Jurors And the Judges hearing that Mansfields Title was under the Fine levyed by that Ideot the Lord Dyâ—r and Court caused a Juror by consent to be withdrawn and the Lord Dyer said That the Judge who took the Fine was never worthy to take another yet notwithstanding all the Fine stood good Mich. 12 Jac. Regis Warcombe and Carrel's Case 20 Octob. 6 Eliz. In the Star Chamber the Case was Edward Carrel an Apprentice of the Laws for a great sum of money bought the Wardship of Joan the Daughter and Heir of Warcomb in the County of Hereford and marryed her to Edw. Carâ—el his youngest Son And after Hill 5 Eliz. the said Joan fell sick and being of the Age of 19 years and having no Issue Edward her Husband perswaded her to acknowledge a Fine of her Inheritance by which should be conveyed an Estate to the Husband and Wife in Tail the remainder to the right Heirs of the Wife and Cognizance was taken by Ded. Potest directed to Sir Thomas Sanders and one Châ—snel of Grays-Inne before Easter divers Judges being here who might have examined her and on Friday in Easter Week she dyed but the Fine l'argent du Reigne was entred as of the last Term viz. Hâ—llary Term 4 days before the Wives death The Original Writ of Covenant bore Test 15 Jan. ret Crastin Pur. and the Ded. Potest 18 Jan. And James Warcombe Cosin and Heir of Joan complained by Bill against Edw. Carrel for getting the said Fine by indirect Practâ—ces and thereupon the Sentence of the Court was as followeth This day a right honourable Assembly being in this Court the matter depending in the same between James Warcombe Esque Plaintiff and Edw. Carrel of London Gent. Defendanâ— as well concerning the validity of a Fine levyed by the said Edward and Joan his wife which â—oan as the Plaintiff alleâ—dges was under age at the time of the Fâ—â—â— levyed and also for certain undue means committed by the said Edw. Carrel in the suing out and getting the said Fine and upon hearing all that could be alleadged on both parts the said Fine was by the Opinion of the whole Conrt adjudged good and effectual in Law And also no fault judged to be in the said Edward Carrel in suing out the said Fine but that the sâ—me was sued out in duâ— form and order of the Laws of this Realmâ— and this is within the Rule Facta tenent multa quae fieri prohibentur And as Carrel was not punished though he knew his Wife within Age so nor Hungate shall be punished though she knew her Son so and the rather by reason of that antient Verse Iâ—ges Communes sinescit Faemina iles M Clericus â—t Cultor Judix sibi parcet et ultor And by Sentence all were dismissed c. Among the Records in â—he Treasury Inter placita c. de Term. Sanct. Mich. 42 Ed. 3. Rot. 27. â— Cornubiâ— Helena filia Hugonis Alloâ— brought an Appeal of Robbery against I awâ—ence Boskosleak Rich. Câ—horta Jo. Gilmin and Joan his Wife and others and the Defendants plead not guilty and were found not guilty Nec unquamse subtraxerunte Iden praedictus Laurentius omnes alii c. cant inde quieti El praedicta Elena pro falso appello suo committitur c. et super hoc praed Laurentius alii petunt juxta forman Stat. quod Juâ—atores inquirant quae damna c. Et super hoc quaesitum est à praefatis Juratoribus c. Quidicunt quod praed Laurentius sustinuit ad valentiam 10 l. c. et sic singulatim de caeteris c. dicunt etiam quod Helena praed non est sufficient c. et quod Johannes Riddel sen Jo. Riddel jun. c. abettaverunt praed
of the Perjury by all the Lords in the Star-Chamber and it was Resolved by all That it was by the Common-Law punishable before any Statute Hayes Case in Cur-Wardorum By Inquisition in the County of Middlesex Anno 6 Jac. by vertue of a diem clausit extremum after the death of Humphry Willward it was found that the said Humphry died seized of a Messuage and 26 Acres of Land in Stepney and that John Willward was his Heir being 14 years and 9 days old and that the Land was held of the King in capite by Knights Service John Willward died within age and by Inquisition in Middlesex 8 Jun. Anno Jac. by vertue of a Writ of Deveneront after the said John's death it was found that John dyed seized in Ward to the King and that the said Messuage and Lands at the time of the said John's death were holden of the Dean of Pauls as of his Mannor of Shadwel All the mean Rates incurred in John's life-time are paid to the King 1. The Questions are 1. Whether by John's death and finding of the mean Tenure in the Deveneront the fiâ—st Office granted to Points be determined 2. Whether the Tenure found by the first Office may be traversed And as to these Questions it was Resolved by the two Chief Justices and chief Baron That where the said John dyed the Office found by force of the Diem clausit extremum after Humphries death whereby the King was entituled to the Guardianship of John hath taken its effect and is executed and does remain as Evidence for the King after Johns death but yet is not traversable for it is traversable during the time it remains in force onely and the Jurors upon the Deveneront after the death of the said John are at liberty to find the certainty of the Tenure and they are not concluded by the first Inquisition and with this agrees 1 H. 4. 68. And this appears by the diversity between the Writ of Diem clausit extremum and the Deveneront which is but in one Point to wit the Diem clausit extremum is general And the Deveneront is not general but does restrain onely the Lands and Tenements quod deveneront c. And thus it was Resolved nono Jacobi in the Court of Wards in the Case of Dune Lewis Award of Capias Uâ—lagatum by Justices of the Peace In this same Term the Opinion of all the Court of Common-Pleus was That if one be out-lawed before Justices of Assize or Justices of Peace upon an Indictment of Felony that they may award a Capias Utlagatum and so was the Opinion of Pâ—riam Chief Baron and all the Court of Exchequer as to Justices of Peace for they that have power to award process of Outlawry have also power to award a Capias utlagatum See 34 H. 8. c. 14. See Lamb. Justice of Peace fol. 503. contra But see 1 Ed. 6. cap. 1. Justices of Peace in case of Profanation of the Sacrament shall award a Capias Utlagatum throughout all England Hersey's Case Star-Chamber John Hersey Gent exhibited his Bill in the Star-chamber against Anthony Barker Knight Thomas Barker Councellor at Law Robert Wright Doctor of Divinity Ravenscroft Clerk and John Hai is and thereby charged the Defendants with forging the Will of one Margery Pain and the Cause came to Hearing ad requisitionem defendentium and upon hearing the Plaintiffs Councel there appeared no Presumption against any of the Defendants but that the Testament was duly proved in the Ecclesiastical Court and upon an Appeal was also affirmed before Commissioners Delegates and Decreed also in Chancery So that it appeared to the Court that the said Bill was preferred of meer malice to slander the Defendants Now because the Defendants had no Remedy at Law for the said Slander and if it should pass unpunished it may encourage men It was Resolved by the Court That by the course of the Court and according to former Presidents the Court may give Damages to the Defendants and so it was done viz. 200 l. to the Doctor of Divinity 200 Marks to the Knight 40 l. to the Clerk 120 l. to the Woman And it was said that Creare ex ihilo quando bonum est est divinum sed creare aliquid ex nihilo quando est malum est diabolicum et plus Maledicite nocâ—nt quam Benedicite docent Hill 2 Jac. Regis Theodore Tomlinson brought an Action of account for Goods against one Philips in the Common Pleas and thereupon Philips sued Tomlinson in the Admiralty supposing the Goods to have been received in Forraign Parts beyond Sea and Tomlinson being committed for refusing to answer upon his Oath to some Interrogatories brought his Habeas Corpus Upon which it was resolved by the Court of Common plea in thrâ—e Points viz. 1. That the Court of Admiralty hath no Cognizance of things done beyond Sea and this appears plainly by the Statute 13 R. 2. cap. 5. and the 19 H 6. fol. 7. 2. That the Proceedings in the Court of Admiralty are according to the Civil Law and therefore the Court is not of Record and so cannot assess a Fine as the Judges of a Court of Record may 3. It doth appear that the Interrogatories were of such things as were within their Jurisdiction and the Parry ought by Law to answer This Case was intended by my Lord Coke to be inserted into his 7th Report but that the King commanded it should not be Printed but the Judges resolved ut supra Corven's Case Right to Sâ—ats in the Church Corven did Libel against Pym for a Seat in a Church in Dâ—vonshire And Pym by Sergeant Hutton moved for a Prohibition upon this Reason that himself is seized of a House in the said Parish and that he and all whose Estates he hath in the House have had a Seat in an Isle of the Church And it was Resolved by the Court that if a Lord of a Mannor or other Person who hath his House and Land in the Parish time out of mind and had a Seat in an Isle of the same Church so that the Isle is proper to his Family and have maintained it at their Charges that if the Bishop would dispossess him he shall have a Prohibition But for a Seat in the Body of the Church iâ— a Question ariseth it is to be decided by the Ordinary because the Freehold is to the Parson and is common to all the Inhabitants And it is to be presumed that the Ordinary who hath Cure of Soules will take Order in such Cases according to right and conveniency and with this agrees 8 H. 7. 12. And the Chief Justice Dame Wick her Case 9 H. 4. 14. which was The Lady brought a Bill in the Kings-Bench against a Parson Quare Tunicam unam vocatam A Coat Armor and Pennons with her Husband Sir Hugh Wick his Arms and a Sword in a Chappel where he was buried and the Parson claimed them as Oblations And it is there
positivi Juris est And he holds that a Portion is due by the Law of Nature which is the Law of God but it pertains to the Law of Man to assign Hane vâ—l illam portionem And saith further That Tythes may be exchanged into Lands Annuity or Rent c. And also that in Italy and other the East-Countries they pay not Tythes but a certain Portion according to the Custom And forasmuch as the Tenth Part is now due Ex Institutione Ecclâ—â—â—ae that is by their Canons and it appears by 25 H. 8. cap. 19. That all Canons c. made against the King's Prerogative c. are void and that Law was but Declaratory for no Statute or Custome of the Realm can be abrogated by any Cannon c. and that well appeareth by 10 H. 7. fol. 17. cap. 18. The second Point which agrees with the Law at this day which was adjudged in the said Record 25 H. 3. is That the Limits and Bounds of Towns and Parishes shall be trayed by the Common-Law and not by the Spirituall Court And in this the Law hath great Reason for thereupon depends the Title of Inheritance of the Layfee whereof the Tythes were demanded for Fines and Recoveries are the common Assurances of Lay-Inheritances and if the Spiritual Court should try the Bounds of Towns if they determine that my Land lyeth in another Town than is contained in my Fine Recovery or other Assurance I am in danger to lose my Inheritance and therewith agrees 39 Ed. 3. 29. 5 H. 5. 10. 32 Ed. 4. Consultation 3 Ed. 4. 14. 19 H. 6. 20. 50 Ed. 3. 20. and many other Presidents to this day And Note There is a Rule in Law that when the Right of Tythes shall be tryed in the Spiritual Court and the Spiritual Court hath Jurisdiction of the same that our Courts shall be oâ—sted of the Jurisdiction 35 H. 6. 47. 38 H. 6. 21. 2 Ed. 4. 15. 22 Ed. 4. 13. 38 Ed. 3. 36. 14 H. 7. 17. 13 H. 2. Jurisâ— 19 and when not ousted 12 H. 2. Jurisdiction 17. 13 â— 2. ibid. 19. 7 H. 4. 34. 14 H. 4. 17. 38 Ed. 3. 56. 42 Ed 3. 12. And the Causes why the Judges of the Common-Law would not permit the Ecclesiastical Judges to try Modum Decimandi being pleaded in their Court is because that if the Recompence which is to be given to the Parson in satisfaction of his Tythes doth not amount to the value of his Tythes in kind they would overthrow the same And that appears by Linwood among the Constitutions Simonis Mepham tit de Decimis cap. Quoniam propter fol. 139. b. verbo Consuetudines And that is the true Reason and therefore a Prohibition lyes and therewith agrees 8 Ed. 4. 14. and the other Books aforesaid and infinite Presidents See 7 Ed. 6. Dyer 79. and 18 Eliz. Dyer 349. the Opinion of all the Justices Mich. 6 Jacobi Regis In the Exchequer Baron and Boyse Case In the Case between Baron and Boys in Information upon the Stat. 5 Ed. 6. cap. 14. of Ingrossers after Verdict it was found for the Informer that the Defendant had ingrossed Apples against the said Act. The Barons held clearly that Apples were not within the Act and gave Judgment against the Informer upon the matter apparent to them and caused the same to be entred in the Margin of the Record where the Judgment was given The Informer brought a Writ of Errour in the Exchequer Chamber and the onely Question was Whether Apples were within the said Act. The Letter of which is viz. That whatsoever person c. shall ingross or get into his or her hands by buyiâ—â— c. any Corn growing or other Corn or Grain Butter Cheese Fish or other dead Victuall c. to sell the same again shall be accepted c. an unlawsul Ingrosser And though the Sâ—at 2 Ed. 6. 6. 15. numbreth Butchers Brewers Bakers Cooks Coster Mongers and Fruiterers as Victuallers yet Apples are not dead Victuals within the 5 Ed. 6. there being no Provisoe for Coster-mongers and Fruiterers in the said Act as there are for Buyers and Sellers of Corn and other Victualâ— Also ever since the Act they have bought Apples by Ingross and sold them again and yet no Information was ever before this for the same being for Delicacy more than necessary Food But the Stat. 5 Ed. 6. is intended of things necessary for sustenance of man where the Statute of 2 Edward the 6. 15. made against Conspiracies to enhance the Prices was done by express words to extend it to things which are more of pleasure than profit But this was not resolved by the Justices because the Information was conceived upon that Branch of the Statute concerning Ingrossers Hill 27 Eliz. in Chancery Hill 27 Eliz. In Chancery the Case was thus Ninian Menvil seized of certain Lands in Fee took a Wife and levyed a Fine of the said Lands with Proclamations and afterwards was indicted and outlawed of High-Treason and dyed The Conusees convey the Land to the Queen who is now seized The five years pass after the Husband's death the Daughters and Heirs of the said Ninian in a Writ of Errour in the Kings-Bench reverse the said Attainder M. 26 and 27 Eliz. and thereupon the Wife sues to the Queen by Petition containing all the special matter Which Petition being indorsed by the Queen Fait droit aux Parties c. the same was sent into Chancery as the manner is And in this Case divers Objections were made against the Demandant 1. That the Fine with Proclamations should bar the Wife of Dower and the Attainder of her Husband should not help her for as long as that remained in force the same was a Bar also of her Dower But admit the Attainder of the Husband shall avail the Wife the same being reversed by a Writ of Errour and so in Judgment of Law as if it had never been and against which a man might plead there is no such Record agreeing with the Book 4 H. 7. 11. and the Case in 4 H. 7. 10. b. is A. seized of Land in Fee was Attaint of Hâ—gh-Treason The King grants the Land to B. and afterwards A. committed Trespass upon the Land and after by Paâ—l A. was restored and the Attainder void This shall be as auciplable and ample to A. as if no Attainder had been Afterwards B. brinâ—s Trespass for the Trespass Mesne and it was adjudged 10 H. 7. f. 22. b. that the Action of Trespass was not maintainable because the Attainder was annulled ab initio 2. It was objected That the Wife could not have a Petition because there was not any Officâ— by which her Title of Dower was sound viz. her Marriage her Husbands Seizin and Death for it was said that though he was marryed yet if her Husband was not seized after the Age that she is Dowable she shall not have Dower And the Title of him that sueth by Petition ought to be
found by Office as appears by the Books 11 H. 4. 52. Ass 31. 30. Ass 28. 46 Ed. 3. bre 618. 9 H. 7. 24. c. 1 As to the first it was Resolved That the Wife should be endowed and that the Fine with Proclamations was not a Bar to her and yet it was Resolved That the Act 4 H. 7. c. 24. shall barre a Woman of her Dower by such a Fine if the Woman bring not her Writ of Dower within five years after the Husbands death as was adjudged Hill 4 H. 8. Rot. 344. in the Common-Pleas and 5 Eliz Dyer 224. For by the Act the Title of Feâ—e-Covert iâ— saved by taking Action in 5 years after she is uncovert c. But it was Râ—solved That the Wife was not to be aâ—dâ—d by that saving for in respect of her Husbands Attainder she had not any Right of Dower at his death nor could sue for the same after his death But it was Resolved That the Wife was to be aided by another former saving in the same Act viz. And saving to all other persons viz. who were not Parties to the Fine such Action Right c. as shall first grow or come c. to them after the Fine ingrossed and Proclamations made by force of any Gift in Tail or other Cause or Matter before the Fine levyed so that they take their Action and pursue their Title within 5 years after such Right come to them c. And in this Case the Action and Right of Dower accrewed to the Wife after the Reversal of the Attainder by reason of a Title of Record before the Fine by reason of the Seizin in Fee had and Marriage made before the Fine levyed according to the meaning of the said Act. And as to the Point of Relation it was Resolved That sometimes by construction of Law a thing shall relate ab initio to some intent and to some not for relatio est fictio Juris to do a thing which was and had essence to be adnulled ab initio betwixt the same Parties to advance a Right but not to advance a Wrong which the Law hates or to defeat Collateral Acts which are lawful and chiefly if they concern Strangers for true it is as hath been said that as to the mean profits the same shall have relation by construction of Law till the time of the first Judgment given and that is to favour Justice and advance his Right that hath Wrong by the Erroneous Judgment But if a Stranger hath done a Trespass upon the Land in the mean time he who recovereth after the Reversal shall have an Action of Trespass against the Trespassors and if the Defendant pleads there is to such Record the Plaintiff shall shew the Special Matter and maintain his Action And for the better apprehending the Law on this Point it is to know That when any man recovers any Possession or Seizin of Land in any Action by Erroneous Judgment and afterwards the Judgment is reversed as is said before and thereupon the Plaintiff in the Writ of Errour shall have a Writ of Restitution and that Writ reciâ—es the first recovery and the Reversal of it in the Writ of Errour is That the Plaintiff in the Writ of Errour shall be restored to his Possession and Seizin Una cum exitibus thereof from the time of the Judgment c. Tibi praecipimus quod cadem A. ad plenariam seizinam tenementor praed c. restitui facias per Sacramentum proborum c. diligâ—nter inquiras ad quantum exitus proficua tenementor illor c. a tempore falsi Judicii c. usque ad Oct. Sanct. Mich. anno c. quo die Judicium illu c. revocat fuit c. et quâ—liter hoc praecept c. in Octâ—b c. By which it appears that the Plaintiff in the Writ of Errour shall have Restitution against him who recovereth of all the mean Profits without any regard by them taken for the Plaintiff in the Writ of Erâ—our cannot have Remedy against a Stranger and therefore the words of the said Writ command the Sheriff to inquire of the Issues and Profits generally c. And therefore the Plaintiff in the Writ of Errour after the Reversal shall have any Action of Trespass for a Trespass mean and therewith agreeth Brian Chief Justice 4 H 7. 12. a. See Butler and Baker's Case in the third Part of my Reports good matter concerning Relations So as it was Resolved in the Case at Bar though to some intent the Reversal hath relation yet to bar the Wife of her Dower by fiction of Law by the Fâ—ne with Proclamations and five years past after the Husbands death when in truth she had not cause of Action nor any Title so long as the Attainder stood in force should be to do a Wrong by a fiction in Law and to bar the Wife who was a meer stranger and could have no Relief till the Attainder was reversed As to the other Objection That the Demandant on the Petition ought to have an Office found for hâ—r It was Resolved That it needed not in this Case because the Title of Dower stood with the Queens Title and affirmed it Also in this Case the Queen was not intitled by any Office that the Wife should be driven to traverse it for then she ought to have had an Office But in case of Dower though that Office had been found for the Queen which doth not disaffirm the Title of Dower in such Case the Wife shall have her Petition without Office See Sâ—dlers Case in the Fourth Part of my Reports And the Case put on the other side was utterly denied by the Court for it was Resolved That if a man seized of Lands in Fâ—e take a Wife of eight years of Age and alien his Lands and after the Wife attains to the Age of nine years and afterwards the Husband dyeth that she shall be endowed because the Title of Dower being not consummate till the death of the Husband and there being Marriage Seizin in Fee age of 9 years and the Husbands death for that cause she shall be endowed it being sufficient that the Marriage Seizin and Age happen during the Coverture So if a man seized of Lands in Fee take a Wife and after she elopes from her Husband now she is barrable of her Dower if during the elopement the Husband alien and after the Wife is reconciled she is Dowable So if a man hath Issue by his Wife and the Issue dyeth and afterwards Land discends to the Wife or she purchase Lands in Fee and dyes without other Issue the Husband for the Issue which he had before the Discent or Purchase shall be Tenant by the Courtesie But if a man taketh an Alien to Wife and afterwards he aliens his Lands and after that she is made a Denizen she shall not be endowed for she was not by her Birth capable of Dower but by her Denization it began But
County of Hereford in his Denâ—esne as of Free and found the other Points of the Writ and it was holden by the two Chief Justices and the Chief Baron 1. That Mâ—ssâ—agium vel Tenementum is uncertain for Tenementum is nomen collectivum and may contain Land or any thing that is holden 2. It was holden That it was void for the whole because no Town is mentioned in the Office where the Mâ—ssuage or Tenement c. lyeth and it was holden that no melius inquirendum shall issue forth because the whole Office is incertain and void Trin. 7 Jac. Regis In the Court of Wards The Attorney of the Court of Wards moved the two Chief Justices and the Chief Baron in this Case A man seized of Lands in Fee-simple covenants for the advancement of his Son and his Name Blood and Posterity that he will stand seized of them to the use of himself for life and after to the use of his eldest Son and to such Woman as he shall marry and the Heir-males of the body of the Son and afterwards the Father dyeth and after the Son takes a Wife and dyeth if the Wife shall take an Estate for Life And it was Resolved by the said two Chief Justices and Chief Baron That the Wife should take well enough being within the consideration which was for the advancement of his Posterity and without a Wife the Son cannot have Posterity Secondly It was Resolved that the Estate of the Son shall support the use to the Defendant and when the Contingent happeneth the Estate of the Son shall be changed according to the Limitation viz. to the Son and the Woman and the Heirs of the Body of the Son And so it was Resolved in the Kings-Bench by Popham Chief Justice and the whole Court in Sheffields Case in Q. Elizabeths time Trin. 7 Jac. Regis In the Court of Wards Spary's Case John Spary seized in Fee in the Right of his Wife of Lands holden by Knight-service had Issue by her and 22 Dec. 9 Eliz. alienated to Edward Lord Stafford The Wife dyed the Issue of full age the Alienee holds the Lands And 10 years after the Fathers death and 12 years after the Mothers Office is found 7 Jac. finding all the special Matter after the Mothers death The Question was Whether the mean Profits are to be answer'd to the King And it was Resolved by the two Chief Justices and Chief Baron that the King should have the mean Profits because the Alienee was in by Title and untill Entry the Heir has no Remedy for the mean Profits but that the King might seize and make Livery because the Entry of the Heir is lawful by the Stat. 32 H. 8. Trin. 7 Jac. Regis In the Court of Wards It was found by force of a Mandamus at Kendal in Westmerland 21 Dec. 6 Jac. that George Earl of Cumberland long before his death was seized in Tail to him and to the Heirs-male of his body of the Castles and Mannors of Browham Applâ—by c. the remainder to Sir Ingram Clifford with divers Remainders in Tail the remainder to the right Heirs of Henry Earl of Cumberland Father of the said George and that the said George Earl so seized by Fine and Recovery conveyed them to the use of himself and Margaret his Wife for their Lives for the Joynture of Margaret and after to the Heir-males of the body of George Earl of Cumberland and for want of such Issue to the use of Francis now Earl of Cumberland and the Heir-males of his body and for want of such Issue to the use of the right Heirs of the said George And after by another Indenture conveyed the Fee-simple to Francis Earl By force of which and of the Statute of Uses they were seized accordingly and afterwards the 30 of Octob. 3 Jac. George Earl of Cumberland dies without Heirs male of his body c. And found further that Margaret Countess of Cumberland that now is was alive and took the profits of the Premisses from the death of the said George Earl till the taking the Inquisition and further found the other Points of the Writ 1. And first it was objected Here was no dying seized found by Office and therefore the Office shall be insufficient But to that it was Resolved That by this Office the King was not intitled by the Common-Law for then a dying seized was necessary But this Office is to be maintained upon the Stat. 32 and 34 H. 8. by force of which no dying seized is necessary and so it was Resolved in Vincents Case Anno 23 Eliz. 2. The second Objection was It doth not appear that the Wives Estate continued in her till the Earles death for the Husband and Wife had aliened the same to another and then no primer seizin shall be as is agreed in Binghams Case And to that it was Resolved That the Office was sufficient prima facie for the King because it is a thing collateral and no point of the Writ And if such Alienation be the same shall come in of the other part of the Alienee by a Monstrans de droit And the Case at Bar is a stronger Case because it is found the Councess took the Profits from the death of George the Earl till the finding the Office Trin. 7 Jac. Regis In the Court of Wards Wills Case Henry Wills seized of the 4th Part of the Mannor of Wryland in the County of Dâ—von holden of Q. Eliz. iâ— Socage Tenure in capite of the said 4â—h part enfeoffed Zathary Irish and others and their Heirs to the use of the said Henry for his Life and after his Decâ—ase to Thomas Wills his second Son in Tail and after to the use of Richard Wills his youngest Son in Tail and after the said Henry so seized as aforesaid dyed All this Matter is found by Office And the Question was If the King ought to have primer seizin in this Case that Livery and Ouster le mayne should be sued by the Statutes of the 32 and 34 H. 8. And it was Resolved by the two Chief Justices and the Chief Baron that not if in this Case by the Common-Law no Livery or Ouster le main shall be sued and that was agreed by them all by the experience and couâ—se of the course See 21 Eliz. Dyer 362. and 4 Eliz. Dyer 213. And two Presidents were shâ—wed which were Decreed in the same Court by the Advice of the Justices Assistants to the Court. One in Trin. 16 Eliz. Thomas Stavely enfeoffed William Strelley and Thomas Law of the Mannor of Ryndly in Nottingh â—shire on condition that they re-enfeoffe the Feoffor and his Wife for their Lives the remainder to Thomas Stavely Sâ—n and Heir apparent of the Feoffer in Fee Which Mannor was holden of Q. Elizabeth in Socage Tenure in capite And it was Resolved That no Livery or Ouster le maine shall be sued in such Case because of the saving of the Stat. 32 H. 8.
this was done upon the Motion of Haughton Sergeant Mich. 7 Jac. Regis In the Court of Wards Samme's Case John Samme's being seized of Grany Mead by Copy of Court-Roll of the Mannor of Tellesham the Great of which Sir Thomas Beckingham c. and held the same of the King by Knights Service in capite Sir Thomas by Deed indented dated 22 Decemb. 1 Jacobi between him of the one part and John Sammes and George Sammes Son and Heir of John on the other part did bargain sell enfeoffe c. to John Sammes the said Mead callâ—d Grany Mead to hold to the said John Sammes and George Sams and their Heirs and Assigns to the onely use of the said John and George and their Heirs and Assigns for ever and Sir Thomas by the same Indenture covenants to make further Assurance to the said John and George c. and Livery and Seizin was deliver'd accordingly John Sammes the Father dyeth George Sammes his Son and Heir within Age the Question was Whether Geo. Sammes should be in Ward to the King or no And in this Case three Points were Resolved 1. Forasmuch as George was not named in the Premisses he cannot take by the Habendum and the Livery according to the Indenture gives nothing to George it being to him as void but though the Feoffment be good onely to John and his Heirs yet the use limited to John and George and their Heirs is good 2. If the Estate had been conveyed to John and his Heirs by the Release c. as it may well be to a Tenant by Copy of Court Roll the use limited to them is good 3. But the third was of greater doubt If in this Case the Father and Son were Joint-Tenants or Tenants in common And it was Resolved That they were Joint-Tenants and that the Son in the Case at Bar should have the said Grange by the Survivor for if at the Common-Law A. had been enfeoffed to the use of him B. and their Heirs though that he was onely seized of the Land the use was jointly to A. and B. for a use shall not be suspended or extinct by a sole Seizin or joint Seizin of the Land and therefore if A. and B. be enfeoffed to the use of A. and his Heirs And A. dyeth the entire use shall descend to his Heirs as appears 13 H. 7. 6. in Stoner's Case and by the Statute of 27 H. 8. cap. 10. Of Uses And when it was said that the Estate of the Land which the Father hath in it as to the moiety of the use which he himself hath shall not be devested out of him To that it was Answered and Resolved That that shall well be for if a man make a Feoffment in Fee to one to the use of him and the Heirs of his body in this Case for the benefit of the Issue the Statute of Uses devests the Estate vested in him by Common-Law and executes the same in himself by force of the Statute And it is to be known that an Use of Land which is but a pernency of Profits is no new thing but part of that which the Owner of the Land had and therefore if Tenant in Borough-English or a man seized on the part of his Mother make a Feoffment to another without consideration the younger Son in the one case and the Heir on the part of the Mother on the other shall have the use as they should have the Land it self if no Feoffment had been made as it is holden 5 E. 4. 7. See 4 and 5 P. and M. Dyer 163. See Fenwick and Milford's Case Trin. 31 Eliz. So in 28 H. 8. Dyer 11. the Lord Rosses Case 13 H. 7. 6. by Butler So in the Case at Bar the Use limited to the Feoffee and another is not any new thing but the pernancy of the old profits of the Land which may well be limited to the Feoffee and another jointly But if the use had been onely limited to the Feoffee and his Heirs there because there is not any Limitation to anothers person nec in praesenti nec in futuro he shall be in by force of the Feoffment And it was Resolved That Joint-Tenants might be seized to an use though they come to it at several times as if a man make a Feoffment in Fee to the use of himself and to such a Woman which he shall after marry for term of their lives or in tail or in fee in this Case if he marry a Wife after she shall take jointly with him though they take the use at several times See 17 Eliz. Dyer 340. but otherwise it is of Estates which pass by the Common-Law as 24 Ed. 3. Joynder in Action 10. If a Grant be made by Deed to one man for life the remainder to the right Heirs of A. and B. in Fee and A. hath Issue and dyeth and afterwards B. hath Issue and dyeth and then Tenant for Life dyeth in that case the Heirs of A. and B. are not Joynt-Tenants because by the death of A. the remainder as to one moiety vested in his Heir and by the death of B. the other moiety vested in his Heir at several times And upon the whole matter it was Resolved That because in the principal Use the Father and Son were Joint-Tenants by the Original Purchase that the Sonne having the Land by Survivor should not be in Ward and accordingly it was so Decreed Pasch 39 Eliz. Rot. 233. In the Kings-Bench Collins and Harding's Case The Case was A man seized of Lands in Fee and also of Lands by Copy of Court-Roll in Fee according to the Custom of the Mannor made one intire Demise of the Lands in Fee and of the Lands holden by Copy according to the Custom to Harding for years rendring one intire Rent and afterwards the Lessor surrendred the Copy-hold Land to the use of Collins and his Heirs and at another time granted by Deed the Reversion of the Free-hold Lands to Collins in Fee and Harding attorned and afterwards for the Rent behind Collins brought an Action of Debt for the whole Rent And it was objected That the reservation of the Rent was an entire Contract and by the Act of the Lessee the same cannot be apportionâ—d and therefore if one dâ—mise 3 Acres rendring 3 s. Rent and afterwards bargains and sells the reversion 〈◊〉 one Acre the whole Rent is gone because the Contract is entire c. Also the Lessee by that shall be subject to two Fealâ—â—es where he was subject but to one before To these Points it was answered and Resolved That the Contract was not entire but that the same by Act of the Lessor and Consent of the Lessee might be divided and severed for the Rent is incident to the Reversion and the Reversion is severable and by consequence the Rent also for accessorium sequitur naturam suâ— principâ—lis And as to the two Fealties to that the Lessee shall be subject though the Rent