reversion shall be to both of them but if it be by Deed indented the rent shall go to one only according to the literal reservation Vide Litt. 80. 346. But if the Lease had been made by several Limitations as Habendum one Manor for 20 s. and the other Manor for 10 s. then the Lease and the Reversion had been several but here the rent shall not rule the reversion but the reversion the rent and the rent shall be of the same nature as the reversion Tenant for life makes a Feoffment in Fee upon condition and re-enters for the condition broken now by that re-entry the Freehold is reduced to the Lessee for life and the Fee unto the Lessor but the Forfeiture remains Two Ioyntenants one of them makes a Feoffment in Fee of his Moiety upon condition and for the breach of the condition re-enters the Ioynt Estate is revived And he conceived that the Grantee of part of the Estate or part of the Land should not take advantage of the condition and he said that the Bargainor is an Assignee within the Statute If Tenant in Tail makes a Lease for years and afterwards bargains and sells the reversion the Vendee hath a Fee simple determinable and may enter for the condition broken If a reversion be granted to two and to the Heirs of one of them they are Assignees within the Statute and if he who hath but an estate for life surviveth he also is an Assignee for the entire reversion passeth out of the Grantor and that is my Rule Iudgment was given against the Re-entry LXXXIII Pasc 30 Eliz. In the Kings Bench. Surrender LEssee for 21 years took a Lease of the same Lands for 40 years to begin immediately after the death of J. S. It was holden in this case that the same was not any present Surrender of the first term but if J. S. dye within the term then it is a Surrender for it may be that J. S. shall survive the first term Pasc 30 Eliz. In the Kings Bench. LXXXIV Anderson and Heywoods Case Copyholder A Copyholder of an Inheritance of a Manor which is in the hands of the King is ousted of his Copyhold It was holden that he hath not gained any Estate so as he may make a lease for years upon which the Lessee may maintain Ejectione firmae but he hath but a possession against all Strangers And it was holden in this case that if a Copyholder dyeth 1 Leon. 100. Rumny and Eves his heir within age he is not bound to come to any Court during his Nonage to pray admittance or to tender his Fine also if the death of his Ancestor be not presented nor proclamations made he is not at any mischief although he be at full age Pasc 30 Eliz. In the Kings Bench. LXXXV Cook and Songates Case IN Assumpsit Assumpsit the Plaintiff declared whereas Lis controversia had been moved between the Plaintiff Lord of the Manor c. and the Defendant claiming certain Lands parcel of the said Manor to hold the same by Copy c. And both the said parties submitted themselves to the Iudgment and Arbitrement of Mr. Godfrey a man learned in the Law. concerning the said Land and the title of the Defendant to the same The Defendant in consideration that the Plaintiff promised to the Defendant that if the said Mr. Godfrey should adjudge the said Copy to be good and sufficient for the title of the Defendant that then he would suffer the said Defendant to enjoy the said Land accordingly without molestation the Defendant reciprocally promised to the Plaintiff that if the said Mr. Godfrey should adjudge the said Copy not to be sufficient to maintain the title of the Defendant that then he would deliver and surrender the possession of the Land to the Plaintiff without any Suit. And shewed further that the said Mr. Godfrey did award the said Copy utterly to be insufficient c. Yet the Defendant continued the possession of the said Land It was moved that the same was not a good and sufficient consideration to ground an Assumpsit But Gawdy Iustice said it was a good and sufficient consideration because it was to avoid Controversies and Suits And afterwards Iudgment was given for the Plaintiff Trin. 26 Eliz. In the Kings Bench LXXXVI Taylors Case IN Assumpsit the Case was Assumpsit That the Defendant promised to carry certain Apples for the Plaintiff by Boat from Greenwich in the County of Kent to London and the Apples being in the Boat the Boat in which they were by a great and violent Tempest was sunk in the River of Thames so as the said Apples perished c. It was holden to be no Plea in discharge of the Assumpsit by which the Plaintiff had subjected himself to all adventures LXXXVII Trin. 26 Eliz. In the Kings Bench. Devise A. Seized of Lands in Fee and having Issue two Sons Richard and Gilbert by his Will willed That if his Son Richard dye before Issue so that the Land descend to my Son Gilbert then I will that my Overseers shall have the Government of my Lands and of my Son Gilbert Richard took a wife and dyed she being young with Child with a Daughter the Devisor died the Daughter was born It was adjudged in this Case that by this Devise the Daughter was excluded from the Inheritance and that Gilbert should have the Land. Trin. 32 Eliz. In the Kings Bench. LXXXVIII Lukes Case LUke Esq of Tedcaster was Indicted upon the Statute of 13 Eliz. cap 8. for being a Broker in a Vsurious Contract for which he encurred a Praemunire Who pleaded Not Guilty upon which they were at Issue and at the day of the Return of the Distringas the Iurors appeared and the same day that the Iury was to be taken Popham Attorney General sent for the Distringas and for certain causes for the Queen would not proceed Note that the Attorney was informed that the Iury was partial It was moved by Cook that the Attorney could not stay the Proceedings the Writ being returned and the Iury appearing he could not stay the Tryal for no President is thereof Popham The Entry shall be in this case Vicecomes non misit breve Cook That is false and the Sheriff is sworn to make a true return but by consent of the Parties such a thing may be done for Consensus tollit Errorem Quaere 33 Eliz. In the Exchequer LXXXIX The Queen and Painters Case Accompt of the King against a Stranger SIr William Pelham was Surveyor of the Ordnance and delivered the money of the King to Painter Clerk of the Ordnance It was holden in this case That for the said money the Queen might have Accompt against Painter although he wanted a privity which cannot be so in case of a common person for if any Receiver make one his Deputy I shall not have an Accompt against him Popham Attorney General If one of
where the Suit is Tam pro Domina Regina quam pro seipso CXXII Trin. 32 Eliz. In the Exchequer Debt IF Rent-corn be reserved upon a Lease for years and it is behind for two or three years the Lessor may have Debt for the Corn and shall declare of so much Corn and it shall be in the Detinet but yet he shall not have Iudgment to have Corn but so much mony as the Corn was worth every several year being accompted Clark Baron doubted if he shall recover the price of the Corn as it was at the time when it was payable or it was at the time of the Action brought Manwood The Law is clear that the Lessee shall pay according to the price it was at the time of the payment and delivery limited by the Lease Clark said A is bound to pay and deliver to the Obligee 10 Bushels of Wheat and no place is appointed where the payment shall be made the Obligor is not bound to seek the Obligee in what place soever as it is in Case of payment of mony for that the importableness therefore shall excuse him which Manwood granted CXXIII Trin. 27 Eliz. In the Exchequer NOte It was holden by the Barons Fine for Alienation without Licence that for Fines for Alienation without licence not only the Land aliened but the other Lands of the Alienor shall be chargeable Mich. 30 Eliz. In the Exchequer CXXIV Prowses Case IT was holden in the Case of one Prowse by Egerton Solicitor Tythes upon the Statute of 31 H. 8. where an Abbot had a Rectory impropriate and also Land within the same Parish c. and so paid no Tythes because he could not pay them to himself and for no other cause was discharged and after the Dissolution the Rectory is granted to one and the Land to another that in such Case the King nor his Patentees should not be discharged of Tythes for the Lands were not discharged in Right but if the Lands in the hands of the Abbot were discharged in Right as by composition or lawful means there the King and his Patentee should be discharged from payment of Tythes And it was said by Burliegh Lord Treasurer that if the Composition or Custom was that the Abbot and his Successors should be discharged without extending to Farmors or Lessees if the Abbot made a Lease and the Lessee paid Tythes as he ought and after the Reversion cometh to the King the Lessee should pay Tythes during his Lease but after the Lease determined the King and his Patentee should not pay but should be discharged by the said Statute and said the like matter was in the Chancery Trin. 30 Eliz. The Abbot of Tewkesbury having the Rectory impropriate of Tewkesbury 11 H. 7. purchased Lands within the said Parish to him and his Successors Unity no discharge of Tythes after the dissolution the King granted to G. the Rectory and to W. the Lands and if W. should pay Tythes was referred to Manwood and Periam who gave their Resolution that Tythes were payable Trin. 30 Eliz. In the Kings Bench. CXXV Ropers Case ROper was robbed by Smith and within a week after the Robbery he preferred an Indictment against him and within a month after the Robbery he sued an Appeal against Smith and prosecuted it until he was out-lawed and thereupon Cook moved to have Restitution and they of the Crown Office said that the Fresh-suit was not enquired for upon an Appeal one shall not have Restitution without Fresh-suit Restitution Cook The Books are if the Defendant in the Appeal of Robbery be attainted by Verdict Fresh Suit. the Fresh-suit shall be enquired of But here he was attainted by Outlary and not by Verdict and so the Fresh-suit could not be enquired of and here the Indictment is within a week and the Appeal within a month after the Robbery is a Fresh-suit Wray Chief Iustice In our Law he is to pursue the Felon from Town to Town but the suing of the Appeal is no Fresh-suit vide 21 F. 4.16 Restitution grounded upon Outlawry and Appeal of Robbery without Fresh-suit enquired of 1 H. 4. 5. if he confess the Felony and so is 2 R. 3. 13. Trin. 30 Eliz. In the Kings Bench. CXXVI Piers and Leversuches Case IN Ejectione firmae by Piers against Leversuch It was found by Verdict that one Robert Leversuch Grandfather of the Defendant was Tenant in Tail of the Land whereof c. and made Lease for years to Purn who assigned it over to Piers the Plaintiffs Father Robert Leversuch died W. his Son entred upon Piers who re-entred W. demised the Lands without other words to P. for life the remainder to Joan his wife for life the remainder to the Son of P. for life with warranty and made a Letter of Attorney to re-enter and deliver seisin accordingly P. died before that the Livery was executed and afterwards the Attorney made Livery to Joan W. died Edward his Son and Heir entred upon his Wife she re-entred and let the Land to the Plaintiff who upon an Ouster brought the Action Heal Serjeant When P. entred upon W. Leversuch the Issue in Tail he was a Disseisor and by his death the Land descending to his Heir the entry was taken away of W. Leversuch Cook contrary P. by his entry was not a Disseisor but at the Election of W. for when P. accepted such a Deed of W. it appeared that his intent was not to enter as a Disseisor and it is not found that the said P. had any Son and Heir at the time of his death and if not then no descent and there is not any disseisin found that P. expulit Leversuch out of the Land and Iudgment was given against the Plaintiff And Cook cited a Case which was adjudged in the Common Pleas it was Skipwiths Case Grandfather Tenant in Tail Father and Son the Grandfather died the Father entred and paid the rent to the Lessor and died in possession and it was adjudged the same was not any descent for the paying of the rent explained by what title he entred and so shall not be a Disseisor but at the Election of another Trin. 33 Eliz. In the Kings Bench. CXXVII Penhalls Case PEnhall was indicted upon the Statute of 5 E. 6. for drawing his Dagger in the Church against J. S. without saying that he drew it with intent to strike the Party and for that cause the Indictment was holden void as to the Statute It was moved if it should not bee a good Indictment for the Assault so as he should be fined for the same By Sands Clerk of the Crown and the whole Court the Indictment is void in all for the conclusion of the Indictment is contra formam Statuti and then the Iury cannot enquire at the Common Law. Trin. 33 Eliz. In the Kings Bench. CXXVIII Weshbourns Case WEshbourn and Brown were Indicted upon the Statute of 8 H. 6. and exception was
of the body of the Husband and he said a Scire facias did lye upon the Fine well enough for the Fine is not void but only erroneous and being in its force this Writ doth well lye And he cited to this purpose 7 E. 3. Fitz. Sc. fac 136. where upon such a Fine levied and such Exception ut supra taken to it To which it was said by Herle that forasmuch as the Fine is excepted and yet in its force we ought to grant Execution and also 30 H. 6. none can take the first Estate in the Fine but he who is named in the Writ of Covenant but every Stranger may take by way of Remainder and such was the Opinion of the whole Court As to the matter in Law all the Court agreed That notwithstanding the Recovery the Demandant should have Execution for here the Land which by pretence of the said Recovery shall be Recoverd in value cannot go to the Estate which is given for the Estate given was to the Husband and Wife and the Heirs of the body of the Husband and then the Tenant against whom the Recovery was had was impleaded as sole Tenant in which Case the Vouchee when he comes in is to warrant a sole Estate but not another but now the Land to be recovered in value shall go to the Husband alone and the Wife shall have nothing so as the true Estate is not warranted and so not answered And he cited the Case of 38 E. 3. 5. in a Formedon the Tenant vouched himself for to save the tail and shewed that one A. was seized and gave the Land in Demand to the now Tenant and to E. his Wife in tail which E. is now alive and by award the Voucher was disallowed Because it was there said by Knevyt the Recovery in value cannot be according to the gift 45 E. 3. 18. Tenant in tail discontinues and takes back an Estate in Fee is impleaded and voucheth the Donor he shall be ousted of the Voucher for that he is in of another Estate and afterwards the Plaintiff had Iudgment to have Execution Mich. 33 Eliz. In the Common Pleas. CXCIII Foles and Griffins Case DEbt upon Obligation by Foles against Griffin the Condition was That if the Obligee may enjoy certain Tythes demised to him by the Defendant during his Term against all Persons paying yearly the Rent of three pound that then c. To which the Defendant said that the Plaintiff did not pay the said Rent c. Beaumont Serjeant moved that the Plea is not good but he ought to say that the Plaintiff enjoyed the Tythes until such a Feast at which time such Rent was due which Rent he did not pay for which c. Quod Curia concessit Mich. 33 Eliz. In the Kings Bench. CXCIV Young and Taylors Case IN Debt upon an Obligation upon Condition to perform the Arbitrament the Obligation was laid to be made in the Parish of Bow in London and the submission was of all things depending between them so that they made an Award of the premisses before such a day and said further that no Arbitrament was made The Plaintiff Replicando said that the Arbitrators made an Award in the Parish of Pancras in Warda praedict and layed a breach c. The Defendant rejoyned that 300 l. was depending in Controversie between them for a certain thing of which no Arbitrament was made upon which they were at Issue and tryed by a Visne of the Parish of Bow only which passed for the Plaintiff It was moved in stay of Iudgment That the Trial was not good for no place is alledged where the Controversie of 300 l. is depending for which cause it shall be tried where the Bond and Arbitrament was made to which it was said That the alledging the place where the Arbitrament was made is superfluous for which Cause the Trial is good And also the Submission being conditional the Award ought to be of all things submitted or else it is void contrary if it be no Condition Vide Cook 8 Part Baspoles Case Mich. 32 Eliz. In the Common Pleas. CXCV. The Queen and the Bishop of Lincolns Case THe Queen brought a Quare Impedit against the Bishop of Lincoln and others And the Case was That F. Bishop of Lincoln Predecessor of the Defendant was Patron of the Church and presented to the same being void one Garth who being inducted took another Benefice by which by reason of the Statute of 21 H. 8. the first Benefice became void and remained void by the space of seventeen years whereupon the Queen was entituled to present to the same by Lapse The said F. then Bishop presented to the same and afterwards was translated to Winchester and the Defendant now Bishop was suffectus And he certified into the Exchequer that the Incumbent presented by the said F refused to pay his Subsidy upon which he was deprived and if now the Queen shall present by reason of her Title by Lapse notwithstanding the plenarty after or if the Title by Lapse of that Presentment of the Bishop was c. was a great Question And the Case late adjudged between Beverly and Cornwel was cited but there the Case was that the Clark presented where the Presentment appertained to the Queen by Lapse died but here he is deprived which may be the Covin betwixt the Ordinary and him Fenner argued to the contrary and put divers Cases to prove that the Prerogative of the Queen did not alter the right of the Parties As the Queen hath a Seignory consisting of Homage Fealty and Rent and the Queen grants the Seignory to a Stranger reserving the Rent and afterwards the Tenancy Escheats the Rent is gone The Queen leases for years rendring rent to a Stranger upon Condition who enters upon the Lessee the Condition of the Queen is suspended The Queen purchaseth Lands in Borough English hath Issue a Son and dyeth seized he hath the Land now by descent afterwards a younger Son is born that Land shall be divested out of the possession of the King and the Royalty of his person doth not alter the right of descent And afterwards forasmuch as the same deprivation is the act of the Incumbent the refusal the act of the Ordinary himself the sentence and not the act of God in the case before cited It was the Opinion of the Court That Iudgment should be given for the Queen CXCVI. Windham and Meads Case WIndham brought an Action upon the Case upon the Common Law of England concerning Hostlers The Case was That the Servant of Windham brought his Masters horse to the Inn and there it was stollen To which the Defendant said That the said Servant brought the said Horse to the said Inn to be put to Pasture and thereupon the said Horse was put to grass and was there stollen it was ruled in that Case that the Inn-keeper should be excused but if the Inn-keeper of his own head without direction of the Owner
that It was agreed by the Court that that had been a good Exception if the matter had not been relieved by the Statute of 27 Eliz. of Demurrers Another matter was objected upon the Statute of 32 H. 8. cap. 37. upon the words of the said Statute so long as the Lands remain in the possession of the Tenant in Demeasn who ought immediately to have paid the said Rent And it was said by Anderson and Rhodes that the Conusans was good enough and within the relief of that Statute For Lewknor was the immediate Purchaser and although he had let the Lands to another at will that did not make any thing for yet the Estate of the Land is within the words of the Statute for the Land remains in the Seisin of the first Purchaser And note that in this case Bouchier dyed before the Lease expired so as the Rent was not determined in his life And afterwards Iudgment was given for the Defendant Mich. 30 Eliz. In the Kings Bench. CCXXXV Rawlins and Somerfords Case IN Ejectione firmae the Case was Cartwright possessed of a house for the term of 30 years demised a Stall parcel of it to Wartow for two years and afterwards assigned the whole house to Rawlins for all the years Rawlins redemised the same Stall to Cartwright for twenty years but Wartow did not attorn but before the said Redemise Cartwright by Deed indented demised the said Stall to Wartow for six years after the said two years ended and afterwards Rawlins redemised all the house to Cartwright for 21 years rendring rent with clause of re-entry and upon the Indenture of the said Redemise was endorsed that before the sealing and delivery c. it was agreed between the Parties that Wartow should have the said Stall according to the Lease for six years to him made And afterwards Cartwright redemised the said Stall to Rawlins for ten years and afterwards the Rent was behind And if the Rent reserved by Rawlins upon his demise to Cartwright was suspended or not was moved a question Cook argued it was not suspended for Rawlins had in the Estate but an Interest in futuro which cannot suspend the Rent before in possession And he put the Case 31 E. 1. Fitz. Discent 17. Lord and Tenant the Tenant is attainted of Felony and dyeth now the Seignory is not presently extinct For if the Lord takes Fealty of the Son the Seignory doth continue in Esse and Vide Acc. Fitz. N. B. 144. 26 E. 3. 72. Houghton the rent is suspended as if I lease Land and an Advowson rendrint rent and I take back an Estate in the Advowson now the rent is suspended But as to that it was answered That there the party hath a present interest in the Advowson but so it is not in the Case at Bar. And by Cook A. seized in Fee of three Acres makes a Lease of two of them for 21 years rendring rent and afterwards the Lessee leaseth one of the said Acres for years to the Lessor to begin two years after it is not a present suspension of the rent until the Lease come into possession c. And afterwards it was adjudged that by the Lease in futuro the rent was not suspended Pasch 28 Eliz. Rot. 255. Mich. 26 Eliz. In the Exchequer CCXXXVI The Guardians of the Monastery of Otleries Case IN the Exchequer it was found by Special Verdict 1 Leon. 4. That the Guardian and Chanons Regular of Otlery were seized of the Manor of O c. and that 22 H. 7. at a Court holden granted the Lands in question to W. and W. his Son for their lives by Copy according to the Custom of the said Manor and afterwards 30 H. 8. they leased the same Land by Indenture to H. rendring the ancient and accustomed rent and afterwards surrendred their Colledge c. and afterwards W. and W. dyed And if the said Lease so made during the Estate Customary notwithstanding the Statute of 31 H. 8. were good or not that was the Question being within a year before the Surrender c. And it was argued by Egerton Solicitor That the said Lease was void by the Statute the words of which are Whereof or in the which any Estate or Interest for term of Life year or years at the time of the making of any such Lease had his Being or Continuance and was not then determined finished or expired And therefore we are to see if this right or possession which W. and W. had at the time of the making of the said Lease was an Interest or Estate for Life And as to the word Estate est nihil aliud than measure of time for an Estate of Fee-simple is as much as to say an Interest in the Lands for ever and so of the rest and therefore W. and W. had at the time of the making of the Lease an Estate for the thing demised And although such Customary Tenants are termed in Law Tenants at will yet they are not simply so nor meer Tenants at will but Tenants at will secundum Consuetudinem Manerii which Custom warrants his possession here for life and therefore it is a more certain estate than an estate at will for the Copyholder may justifie against his Lord and so cannot a Tenant at will whose estate is determinable at the will and pleasure of his Lessor and although this estate is but by custom and by no conveyance yet it is such an estate which the said Statute intends non refert by what conveyance the estate is raised so it be an estate and this estate being supported by custom is acknowledged in Law to be an estate and so accounted in our Law and the Law hath notably distinguished Copyhold tenancies by the custom and tenancies at will at the Common Law for a Copyholder shall do fealty and have aid of his Lord in an Action of Trespass he shall have and maintain an Action of Trespass against his Lord his wife shall be endowed the husband shall be Tenant by the Curtesie without a new Admittance So customary Tenancies are within the Rules and Maxims of our Law As in the Case of Horewood There shall be a possest o fratris of it without admittance and it was adjudged 8 Eliz in the Kings Bench That if a Copyholder surrender to the use of another for years and the Lessee dyeth his Executors shall have the residue of the term without any admittance M. 14 15 Eliz. A Copyholder made a Lease for years by Indenture warranted by the custom the Lessee brought Ejectione firmae it was adjudged maintainable in the Common Pleas Although it was objected That if it be so then if the Plaintiff recover he should have an Habere facias possessionem and there Copyholds should be ordered by the Common Laws of the Land. 10 Eliz. Lord and Copyholder for Life the Lord grants a Rent-charge out of the Manor whereof the Copyhold is parcel the Copy-holder surrendreth to the use of
Copy-hold 88 Not within the Statute of Wills. 236 If a Copyholder in possession surrender the Reversion of his Land post mortem suam to the Lord to an use nothing is thereby passed 8 Tenant for Life of a Copyhold remainder in fee he in the remainder may surrender his Estate if there be no Custom to the contrary 9 In what Case a Copyholder ousted cannot make a Lease for years upon which the Lessee may maintain Ejectione firmae 30 If a Copyholder dyeth his Heir within age he is not bound to come to any Court during his Non-age to pray admittance or tender his Fine 31 If the death of his Ancestor be not presented nor proclamations made he is not at any mischief although he be at full age ibid. A Copyholder may surrender by Attorny 111 241 Costs The Plaintiff shall have Costs upon 5 Eliz. for hunting in his Park notwithstanding the Statute gives treble damages 36 If the Plaintiff be Non suited in an Action upon an Escape the Defendant shall not have Costs 182 Debt SHall not be brought against the Husband upon a Contract by the Wife 42 For Rent 18. For Rent-Corn reserved upon a Lease for years shall be brought in the Detinet 47 Upon a Concessit solvere according to the Law Merchant and Custom of the City of Bristol 105 Devise To a Colledge in Vacancy of a Head. 223 If one possessed of a Term deviseth that his Son shall have the same when he comes to the age of 18 years and that his Wife whom he makes Executrix shall enjoy it in the mean time and dye and the Wife take Husband she shall have the Term as Executrix till the Son accomplish the age of 18 years 1 Of Lands part to the eldest Son in Tail and part to the younger Son in Tail with this clause That if any of the Sons dyed without Issue the whole Land to remain to a Stranger in Fee the Sons entred respectively and the younger dyed without Issue the Stranger entred but his Entry was not lawful for the eldest Son shall have the Land by the implicative Devise 14 By a Father to his Son and Heir 35 200 237 Who shall first take by a Devise 37 Emblements WHere by Law they belong to the Executors 1 Entry If a Disseisor of 100 Acres le ts the same to divers for years the Entry in one Acre by the Disseisee is an Entry against them all 8 And if one makes a Lease for years rendring 10 l. for the first two years and afterwards 30 l. every year with Condition to Re-enter if the Rent of 30 l. or any part be behind the Lessor enters for Non-payment of the 10 l. his Entry is lawful for it was but one Rent of which the 10 l. was parcel ibid. Entry Congeable 39 Error He who is special Heir by the Custom as of Burrough English shall have the Writ of Error and not the Heir at Common Law. 5 Estate Executed 37 Estrepement In Partition ought not to be granted and why 60 Evidence Maybe good enough to maintain a Declaration though it vary from it 14 Execution An Infant once discharged out of Execution shall never be in Execution again 6 Execution of a Statute shall bind the King. 10 Where not good upon a Capias without a Scire Facias 24 If the Bail be taken in Execution before the Capias ad Satisfaciend against the Defendant be filed they may avoid this Execution by Error but not by Plea or Surmise 24 If the Plaintiff takes out Execution within a year and a day after Judgment obtained although he doth not prosecute it in two or three years yet when he pleaseth he may proceed upon it and shall not be put to a Scire Facias 44 Exposition of Words The words sub Conditione ea Intentione in a Feoffment be not a Condition but an Estate executed presently according to the intent 2 Domus est nomen collectivum and contains many Buildings as Barns Stables c. 16 Omnes Dimissiones being general words shall not be restrained to special Leases 17 The word growing though it sound in the Present Tense yet it shall be taken also in the Future Tense 36 So the word being but otherwise if the words had been tunc being 37 The word paying if it creates a Condition or not Quaere 50 Proviso semper put on the part of the Lessee upon the words of the Habendum makes a Condition but contrary of a Proviso on the part of the Lessor 71 The Provost Fellows and Scholars of Queens Colledge in Oxford as Guardians of the Hospital c. in S. make a Lease of Lands parcel of the Possession of the said Hospital by the name of Praepositus Socij Scholares Collegij Reginalis in Oxonia Gardianus Hospitalis c. and good without saying Gardiani in the Plural Number 85 Extinguishment If Lessee for 10 years grant a Rent-Charge to his Lessor for the same years and the Lessor grant the Remainder in Fee to the Lessee for years by this the Rent is extinguished 2 Felo de se IF the Queen grants to A. Catalla Felonum de se within such a Precinct where one indebted to the Queen having Goods is Felo de se the Queen shall have the Goods to satisfie her Debt 6 Feoffment To Uses 23 By one Coparcener cestuy que use of the whole is not only a Feoffment of that moiety she might lawfully dispose of but also of the other moiety by disseisin 52 Fines of Lands Where a Fine levied by the Husband of Lands whereof he and his Wife are Donees in Special Tail shall bar the Issue and where not 2 Fine by the Husband where avoids a Lease e contra 15 Fines levied to Uses 22 Issue of a Tenant in Tail the Remainder to the King shall be barred by a Fine 40 Fine for Alienation Not only the Land aliened but the other Lands of the Alienor shall be chargeable for the Fine for Alienation without Licence 47 Forfeiture If Lessee for years being sued for Rent claims Fee in the Land and hath none it is a Forfeiture 3 Of an Obligation with Condition That the Grantee of the next Avoidance of an Advowson should enjoy the same without any disturbance or claim of the Grantor 18 An Obligation to perform a Covenant that the Lessee of a Term shall enjoy it without expulsion or any Act done or to be done by the Lessor shall not be forfeited by Non-fesance 38 39 Of an Obligation conditioned to perform an Award 190 If Tenant for life joyn the Mise upon the meer Right it is a Forfeiture 128 Where Tenant for life is impleaded if he maketh default or confesseth the Action it is a Forfeiture ibid. If Tenant for life bargains and sells his Land by Deed inrolled although no Fee passeth yet it is a Forfeiture 129 contra 124 Grant. BY the King of the Office of the Kings Bench. 19 Recital in Grants of the King.
being sown the Executors of A. take the Corn it was holden the Obligation was not forfeited for that by the Laws the Corn did belong to the Executors II. Pasc 23 Eliz. A Man possessed of a Term devised the same to his Son when he came to the age of 18 years Devise and that his Wife should have it in the mean time and made his Wife his Executrix and died before the Son came to the age of 18 years the Wife took Husband It was holden that she should have the Term as Executrix till the Son came of the age of 18 years III. Mich. 23 Eliz. A Man made a Feoffment in Fee sub Conditione ea intentione that his Wife should have the Land for her life the remainder to his younger Son in Fee The Feoffee died without making such an Estate the Heir of the Feoffor entred it was resolved that it was not a Condition but an Estate which was executed presently according to the intent Trin. 8 Eliz. IV. Manning and Andrews Case Vide 1 Leon. 256. 1 Leon. 345. Fine levied a Bar. HVsband and Wife Donees in special tail the Husband levied a Fine of the Lands It was holden if the proclamations pass in his life time or before the Wife by her entry had avoided the Fine the Issue should be barred otherwise if the Husband had died before the proclamation had passed 27 Eliz. In the Common Pleas. V. Buckhursts Case Extinguishment LEssee for 10 years granted a Rent Charge to his Lessor for the said years the Lessor granted the remainder in Fee to the Lessee for years It was the opinion of the Iustices that the rent was gone because the Lessor who had the rent was Party to the destruction of the Lease which is the ground of the rent 26 Eliz. VI. Pulmants Case Assumpsit ONe who is indebted promiseth to pay it upon request in an Action upon the Case upon that Promise the Party needs not to express the Assumpsit with the request it being an old debt but otherwise it is where there is such a promise without any duty precedent VII Hill. 26 Eliz. In the Kings Bench. Assumpsit A Man in consideration of 20 l. paid him promiseth to assign to J. S. the Lease of a Stranger It was adjudged that an Action would lie upon such a promise because the Assumor might purchase the House and then assign it Hil. 26 Eliz. In the Kings Bench. VIII Rawson and Browns Case A. Being in prison at the suit of B upon an account Assumpsit and in custodia Marescalli The Marshal suffers him to escape A. being at liberty promiseth to B. that if he will permit him to be at large and further if he do such an act that he will pay to him 10 l. which he doth not pay whereupon B. brings Assumpsit against him it was adjudged that the Action would not lie for that both the considerations ought to be proved and A. was at large before 31 Eliz. In the Kings Bench. IX Strangborough and Warners Case NOte Assumpsit That a Promise against a Promise will maintain an Action upon the Case as in consideration that you do give to me 10 l. on such a day I promise to give you 10 l. such a day after 31 Eliz. X. Escrigs Case IF an Executor promiseth to a Creditor Assumpsit that if he will forbear to sue him until such a time that then he will satisfie the Creditor his debt in that case the Execuor is liable to pay the debt of his own goods adjudged 30 Eliz. In the Kings Bench Rot. 30. XI Kirkman and Reignotts Case A Lease was made to two Habendum to them Occupant and to two others for their four lives and the longer liver of them It was resolved that the two named in the Habendum should not take any thing and that if the two first die there should be no Occupancy for the lives of the two in the Habendum was intended an Estate to them and not a Limitation of the Estate of the first two Pasc 30 Eliz. XII Barkhouse Case DEbt against Lessee for years for rent Forfeiture The Defendant claimed Fee in the Land whereas he had no Fee It was resolved that it was a forfeiture XIII Pasc 31 Eliz. In the Common Pleas. Avowry IT was resolved by the Iustices that an Avowry might be for part of a Rent Mich. 28 Eliz. In the Kings Bench. XIV Strangden and Burnets Case IN an Action of Trover and Conversion of Goods to his proper use in Ipswich The Defendant pleaded that the Goods came to hands in Dunwich in the same County and that the Plaintiff gave unto him all Goods which came to his hands in Dunwich Pleadings absque hoc that he is guilty of any Trover or Conversion in Ipswich It was ruled to be a good manner of pleading by reason of the special Iustification Vide 27 H. 6. But where a Iustification is general the County is not traversable at this day Vide 19 H. 6 7. 24 Eliz. In the Common Pleas. XV. Infant AN Infant made a Lease for years rendring rent and when he came to his full age he said to his Lessee God give you joy of it It was holden by Mead Iustice that thereby the Lease was affirmed and made good Pasc 25 Eliz. XVI Fullers Case ONe is bound to pay his rent at a day certain payment before the day adjudged doth not discharge him 29 Eliz. In the Kings Bench. XVII Carter and Martens Case Payment TWo are bound for a Debt the Principal makes the Surety his Executor who pays the Debt generally Quaere if it shall be as Executor or as Obligor XVIII Pophams Case Bargain and Sale. LAnd was bargained and sold the Bargainee levies a Fine of the Lands and afterwards within the six months the Deed is enrolled It shall pass by the Fine and the Conusee shall have the Land for the Enrollment shall relate to the time of the bargain and sale 18 Eliz. XIX Henninghams Case IT was adjudged in this Case that he who is special Heir by the Custom as of Borough English Land shall have the Writ of Error and not the Heir at the Common Law. Hil. 19 Eliz. Adjudge XX. Parry and Herberts Case LEssee for years upon Condition that he shall not grant over the Land by Will or otherwise Condition and he deviseth the same to his Executors who except it only as Executors and not as Devisees It was holden that the Condition was broken because he had done as much as in him lay to have granted it over In the Exchequer XXI Sir Thomas Hobbies Case A Man hath issue two Sons and is attainted Heirs the eldest Son purchaseth Land and dyeth without issue the second Son shall inherit the Land as Heir to him notwithstanding the attainder of the Father because the blood is not corrupted between the two Sons
which Ayliffe concessit Wray Chief Iustice was absent in the Star-Chamber Trin. 26 Eliz. In the Kings Bench. XLV Harvey and Harveys Case Suit for Legacies Prohibition CLare Harvey libelled against Sebastian Harvey the Executor of Sir James Harvey their Father for a legacy bequeathed to him by his Father in his Will. By which he willed that after his death his Goods should be divided and parted betwixt his Children according to the laudable custom of London and averred in his libel that the Goods and Chattels whereof the Testator died possessed amounts to such a sum and that it belonged unto him being one of his children to demand so much Virtute Legationis praedict The Defendant came and prayed a Prohibition and Wray Chief Iustice conceived he ought to have it for here is not any legacy but the Testator setteth forth his meaning that his pleasure is that the custom of London should be observed in the disposition of his Goods and the said Clare is put to his Writ de rationabili parte Bonorum But yet afterwards a special Consultation was granted Pasc 27 Eliz. In the Common Pleas. XLVI Sandersons Case Leet NOte It was adjudged by the Court that Pound-breach is not inquirable in a Leet for it is not a common Nusans But Rhodes Serjeant said that excessive Toll is inquirable in a Leet Vide Book of Entries 390. XLVII Pasc 37 Eliz. In the Common Pleas. Abatement of Writ IN a Quare Impedit by the Queen exception was taken to the Writ because the words were quod permittat ipsam praesentare ad Rectoriam de D. where it ought to be ad Ecclesiam the Court awarded that the Writ should be openly amended in Court by a Clerk of the Chancery Amendment XLVIII Pasc 27 Eliz. In the Common Pleas. Pleadings IN a Writ of Entry for Disseisin the Tenant said that the House in demand is within the City of London and that the said City is an ancient City and that King Henry 3. concessit Civibus Civitatis praedict quod non implacitentur de terris tenementis suis c. extra Muros Civitatis praedict and said that he himself is a Citizen of London and demanded judgment of the Writ and to the Pleading he further said Sed illis rectum teneatur infra Civitatem praedictam secundum Consuetudinem Civitatis praedict Exception was taken to the Plea because the Tenant did not shew before that by their custom they ought to be impleaded And by the Opinion of the whole Court the Tenant ought to have shewed that the Citizens for their lands there ought to be impleaded in the Hustings c. And the general words in the Plea Sed illis rectum reneatur infra Civitatem praedictam secundum consuetudinem Civitatis praedict do not supply the defect aforesaid And afterwards it was awarded that the Tenant plead Ouster Mich. 21 Eliz. In the Common Pleas. XLIX Hunt and Sones Case AN Action upon the Case by W. Hunt against W. Sone Assumpsit 2 Leon. 107. Owen 42. 3 Cro. 118. 1 Roll. 29. 30. ibid. The Plaintiff declared Quod cum idem Hunt was seised in his Demesn as of Fee of certain lands and shewed the same in certain praedict Sone in consideration that the said Hunt permit the said Sone occupare terras praedict ab eodem die 20 Julij 27 Eliz. usque ad secundum diem Novembris which should be in Anno 1589. assumed and promised that he the said William Sone ad festum omnium Sanctorum proxime sequend 10 l. 2 s. 6 d. ac ab inde annuatim durante dict termino 20 l. 5 s. ad festa Annunciationis Beatae Mariae ac omnium Sanctorum per aequales portiones solvend eidem Hunt bene fideliter contentare vellet at licet praedict W. Hunt permisit praefat Sone occupare terras praedict a dict 20 die Julij 27 Eliz. Usque ad secundum diem Novemb. 28 Eliz. Licetque etiam post dict 20 diem Julij 27 Eliz. ante praedict diem secund Novemb. An 28 Eliz. dict fest omnium Sanctorum An. 27. Supradict ac fest Annunciationis Beatae Mariae Virginis ac fest omnium Sanctorum 28 Eliz. praeterierunt praedict tamen W. Sone dict 10 l. 2 s. 6 d. ad praedict fest omnium Sanctorum proxime sequend post permissionem assumptionem praedict ac aliam 10 l. 2 s. 6 d. ad fest Annunciationis 28 Eliz. ac alia 10 l. 2 s. 6 d. ad fest omnium Sanctorum An. 28. Eliz. superdict nondum solvit The Defendant pleaded that the Plaintiff entred into parcel of the Premises 6 October 28 Eliz. eadem occupare eundem Sone non permisit upon which they were at Issue and it was found for the Plaintiff it was moved in stay of Iudgment that the Plaintiff had no cause of Action before that all the Term was expired for it is an entire Assumpsit and cannot be severed by action and therefore it was said that if I promise to pay you 10 l. viz. at such a Feast 5 l. and at such a Feast other 5 l. there before the last day of payment no Action lieth for the sum of 20 l. is one sum entire But if I promise to pay another at Easter next 10 l. and at Midsummer as much here they are several Assumpsits and upon default of payment of the first sum an Action will lie without excepting the latter payment But at last the Court agreed That Iudgment notwithstanding that exception should be given for the Plaintiff and that the Declaration was good enough as well in respect of the Exception aforesaid as also that the word Licet was effectual enough to set forth the permission L. Hil. 31 and 32 Eliz In the Common Pleas. A. Disseised B. of two Acres of Land and leased one of them to C. at will and the other Acre to D. at will and they entred accordingly B the Disseisee by Lease leased both Acres to E. for years and entred into one of the Acres in the name of both and sealed and delivered the Lease to E. It was holden by the Court to be a good Lease to maintain an Ejectione firmae of both Acres LI. Mich. 32 Eliz. In the Common Pleas. 2 Cro. 655 656 plus 2 Roll. 416. Johnson versus Smart cont A. Seised of certain Lands and having two Sons devised part of his Lands to his eldest Son in tail and the other part of his Lands to his younger Son in tail with this clause in the Will that if any of his Sons dyed without Issue that then the whole Land should remain to a stranger in Fee and dyed the Sons entred into the Lands devised to them respectively and the younger Son died without issue and he to whom the Fee was devised entred It was adjudged That this Entry was not lawful and that the eldest Son should have the Land by the implicative devise Mich. 32 Eliz. In the
Defendant that these Matters of Forgery were not within the Statute of 5 Eliz. nor also the Perjury or the procurement thereof upon which the Lords of the Council there Upon the Statute of 5 Eliz. of Perjury referred the consideration of the said Statute to both the Chief Iustices who at the next day in Court declared their Opinions upon the said Matters i. e That the said Matters did not extend to the Forgery of a Deed containing a gift of Chattels personals which see clearly by the Statute which as to that purpose extends but to Obligations Bills Obligatorie Acquittances Releases or other Discharges and that also a Deed of Assignment of a Lease of Lands in Ireland is not within the said Statute and also they were of opinion that the said Perjury and the procurement of it was not punishable by the said Statute because the Oath was taken coram non Judice for the Town-Clerk of London could not take an Oath in such a case Note no more than a private person But because that the Bill in the perclose and conclusion of it was contrary to the Laws and Statutes of this Realm the two Chief Iustices were of Opinion That the said Court might punish these Offences as Misdemeanors at the Common Law but not according to the Statute and afterwards Shyriffe was fined and by Order of the Court to stand upon the Pillory Mich. 29 Eliz. In the Exchequer Chamber LXXX The Queen and Lord Vauxes Case Bills IN the Exchequer Chamber before the Chancellor c. the Lord Vaux brought a Writ of Error upon a Iudgment given against him in the Court of Exchequer and assigned for Error that a Bill was exhibited against him that the Lord Vaux had taken certain goods of the Queen at Westminster in the County of Middlesex and also had intruded into the Rectory of Ethelborough in the County of Northampton whereas the Queen ought to have brought several Bills being for several causes arising within several Counties But it was resolved by the whole Court That the Bill of the Queen was good enough and here is no mischief for if the Defendant will plead Not Guilty two several Venire Facias shall be awarded one into Middlesex the other into the County of Northampton Mich. 27 Eliz. In the Common Pleas. LXXXI Owen and Morgans Case GEorge Owen brought a Scire Facias against Morgan to have Execution of a Fine levied 8 Eliz. by which Fine the land was given to the Conusee and his heirs the Conusee rendred the same to the husband and wife and to the heirs of the body of the husband Note that the husband was the Conusor the remainder in Fee to the now Demandant and note that the Writ of Covenant was between the Conusee Plaintiff and the husband Deforceant without naming the wife And afterwards the husband suffered a common Recovery without naming of the wife Common Recovery the hushand and wife died without Issue and now Owen to whom the remainder was limited by the Fine brought a Scire Facias in bar of which the Recovery was pleaded It was argued by Shuttleworth Serjeant That the said Recovery had against the husband was a good bar Feme not party to the Writ of Covenant not bound by a Recovery and should bar the remainder and the wife ought not to be named in or party to the Recovery for that nothing accrued to her by the Fine because she was not party to the Writ of Covenant and to the Conusans vide 32 H. 8. Fines 108. None can take by the Fine but those who are named in the Writ of Covenant but every Stranger may take by way of Remainder Vide etiam 7 E. 3. Br. Fines 114. 6 E. 3. Fitz. Fines 117. 7 E. 3. Fitz. Scire Facias 136. It is said by Herle if such a Fine ut supra be taken it is good as long as it is in force LXXXII Sir Richard Lee and Arnolds Case Post 93. SIr Richard Lee Kt. seized of three Manors made a lease of them to Sir Nicholas Arnold for certain years reserving for the one Manor 5 l. and for the other Manor 10 l. and for the third Manor 10 l. upon condition that if the said rents or any of them or any part c. be behind a re-entry into all the Manors and afterwards he bargained and sold the reversion of one of the said Manors to William Winter in Fee and afterwards by Deed indented and inrolled bargained and sold the two other Manors and for the rent of one of the said Manors the Vendee did re-enter into all the Manors Manwood Here are several reservations Reservation of Rents upon a joynt Lease several rents and several leases for although that the words are joynt yet by construction they are become several as Land given to an Abbot and a Secular man although here be joynt words yet they are Tenants in Common Litt. 296. And if I sell to you two Horses the one for 5 l. and the other for 5 l. here are two several contracts the Parties to whom these reversions are assured ut supra are Assignees within the Statute of 32 H. 8. by which it is enacted that Assignees may take advantage of Conditions for such an Assignee is not meerly in by act of law as the Lord by Escheat and he is not such an Assignee but is in by conveyance The Lessor enters upon his Lessee Assigns and makes his Feoffment and the Lessee re-enters now the Feoffee is an Assignee and this condition is destroyed in part and continued in part Condition destroyed in part good in part If one hath Common in the land of another for 20 beasts and releases his Common for 10 beasts the Common for the residue remains but if he purchaseth part of the land in which he hath Common the whole Common is destroyed A Feoffment to two with warranty and one of them releases the warranty all the warranty is gone As to the condition for as much as it is not collateral but incident to the reversion it may be severed and is of the same nature as the rent and reversion A man possessed of lands for 20 years and seized of other lands in Fee Conditions divided leaseth all the land for 10 years reserving rent with clause of re-entry and dieth now the Heir hath a reversion for the land in fee and the executor for the other land so the condition is divided according to the reversion so if lands were given to one in general tail and others in special tail he thereof makes a lease rendring rent and dieth having several Issues inheritable to each tail now the condition shall go according to the rent and he conceived that the Grantee of parcel of the reversion is an Assignee within the said Statute Grantee of parcel of the Reversion is an Assignee within 32 H. 8. Of Conditions as if a Lease for years
the Exchequer lend unto another 500 l. of the Queens money and takes a Bond for it in his own name yet the Queen shall have an Accompt against the Borrower Mich. 29 Eliz. In the Exchequer XC Pelhams Case IN the Exchequer Chamber before the Chancellor Treasurer Savile Rep 43. Grant of Office of Sheriff and Barons there in the Case of Pelham the Case was That the Queen had granted by her Letters Patents that Pelham should not be Bailiff Constable nor other Officer or Minister Licet eligatur yet it was holden that the Queen might make him Sheriff for that Grant doth not extend to Officers Royal as Grants of Amercements do not extend to Amercements Royal and also the Office of Sheriff doth not lye in Election but if the words had been Licet eligatur per nos then it should have been otherwise And such was the Opinion of Bromley then Lord Chancellor Trin. 19 Eliz. In the Kings Bench XCI Godbolts Case IN the Case of one Godbolt It was agreed Sales that the sale of a Bailywick of a Hundred was not within the Statute of 5 E. 6. cap. 16. For such an Office doth not concern the Administration of Iustice nor is it an Office of Trust XCII In Temps Eliz. A. Granted to B. a Rent-charge out of his Lands to begin when J. S. died without Issue of his Body J. S. dyes having Issue which Issue dyes without Issue Dyer held that the Grant shall not take effect for J. S. at the time of his death had Issue and therefore from thence the Grant shall not begin and if not then then not at all And Manwood said that if the words had been to begin when J. S. is dead without Issue of his Body then such a Grant shall take effect when the Issue of J. S. dies without Issue c. If Donee in Tail hath Issue which dies without Issue the Formedon in the Reverter shall suppose that the Donee himself died without Issue for there is an Interest Difference between an Interest and a Limitation and there is a diversity between an Interest and a Limitation for if I give Land between A. and B. for term of their lives if any of them dye the Survivor shall hold the whole but if I give Lands to A. for the lives of B. and C. now if B. and C dye the whole Estate is determined because it is but a Limitation and B. and C. have not any Interest Vide to this purpose 34 Eliz. Brudnels Case in Cook 5. p. 9. XCIII Temps Roign Eliz. In the Common Pleas. A. Seized of a Manor leased the same for years rendring rent with clause of re-entry and afterwards levied a Fine Sur Conusans de droit c. to the use of himself and his Heirs the rent being demanded is behind Dyer A. cannot re-enter for although the rent in right passeth without Attornment yet he is without remedy for the same without Attornment and it would be hard without Attornment to re-enter It was here moved further if the Conusor be an Assignee within the Statute of 32 H. 8. Manwood The reversion of a Termor is granted by Fine there wants Privity for an Action of Debt Waste and Re entries But if the Conusee dieth without Heir although that in right it was in the Conusee yet the Lord by Escheat shall make Avowry and yet the Conusee by whom he claims could not And in the Case at Bar the Conusee himself could not but the Conusor being Cestuy que use who is in by Act of Law shall Avow and re-enter without Attornment for the Conusor is in by the Statute of 20 H. 8. Harper The Heir of the Conusee shall Avow and re-enter before Attornment Dyer 13 H. 4. The Father leaseth for years rendring rent with clause of re-entry the Father demands the rent which is not paid the Father dyeth the Son cannot re-enter for the rent doth not belong unto him and therefore in the Case at Bar the Conusor cannot Avow for the rent before Attornment therefore not re-enter And in Case of Bargain and Sale the Bargainee is Assignee within the Statute but not the Conusor in this Case Temps Roign Eliz. XCIV 15 Eliz. Sir Francis Leak and Sir Walter Hollis Upon Attainder of Treason who shall seize the Goods for the Queen AT the Assizes the Opinion of Dyer and Stamford was demanded upon this matter One seized of Lands and Tenements and possessed of Goods within the Duchy of Lancaster was Attainted of High Treason and a great Question arose between Sir Francis Lake Kt. Bailiff of the Duchy and Sir Walter Hollis Sheriff which of them ought to seize for the Queen and their Opinion then was that the same did appertain to the Office of the Sheriff if in the Patent of the Sheriff there were not special words to the contrary XCV 15 Eliz. In the Common Pleas. TEnant at Will made a Lease from year to year Lease by Tenant at Will if a Disseisin Dyer conceived that it was not a Disseisin but the Lease was void and he said that the Book of 12 E. 4. 12. was not Law. For he who disseiseth a man ought to claim Inheritance in the land whereof the disseisin is done Harper conceived that the said Book of 12 E 4. 12. was good Law for a Lease at Will is a Lease at the will of both parties and therefore when the Lessee makes a Lease for years his will is determined and he will not hold at will. Manwood agreed with Dyer for if Tenant at Will lease for years rendring rent before that the Lessee for years entreth the Tenant at Will shall not have any rent for it was not a perfect contract otherwise it is where a man seized of Lands leaseth the same ut supra If one entreth into my land and occupieth the same of his own head claiming to hold the same at my will and afterwards I demand of him a certain rent for the occupation of my land he is now my Tenant at Will which all the Iustices granted Mich. 30 Eliz. In the Kings Bench. XCVI Cutter and Dixwels Case ACtion upon the Case for that the Defendant exhibited a Bill to the Iustices of Peace against the Plaintiff containing and complaining That the Plaintiff is an enemy to all quietness seeking by all means to disquiet his neighbours and hath used himself as a lawless person and having Process to serve upon one in the Parish scil J. S. did keep the Process and would not serve it but on the Sunday in the time of divine Service not having regard to her Majesties laws or the quiet of his neighbors Vpon which Bill the Iustices to whom it was exhibited awarded Process against the Plaintiff to find Sureties for his good behaviour by virtue of which he was taken and imprisoned It was the Opinion of all the Iustices in this Case that upon this Matter an Action upon the Case would not
he conceived that during the vacation the rent should go to the King and therefore perhaps he especially limited it to be paid to the Dean and Chapter of York and there the Proviso did not make a Condition For although it was limited to be paid to the Dean and Chapter in the time of the vacation with a Proviso or by way of Promise yet there it is a Condition for all is one Corporation for the Dean and Chapter are part of the Corporation to whom it was reserved before for it was reserved before to the Bishop and his Successors But 15 and 16 Eliz. Andrews and Cromwells Case where John Blunt sold a Manor to Andrews and his Heirs and Blunt covenanted to suffer a Common Recovery for the better assurance thereof and afterwards there was a Proviso Provided always That Andrews re-grant the Advowson which was appendant to the Manor to Blunt for his life and because there it stands substantivè by it self therefore it was holden to be a Condition and yet truly it was not the meaning that for not granting of a pelting Advowson that the whole former Estate of the Manor being of great value should be defeated yet notwithstanding it was holden to be a Condition and there also the Opinion of Br. 35 H. 8. is controuled That where also the Opinion of Br. 35 H. 8. is controuled that where a Proviso is jumbled amongst Covenants that it doth not make a Condition Proviso never makes a Covenant therefore either the Sentence shall be void or it shall be a Condition As if a Lease for years be made Proviso that the Lessee for years do not commit Waste it is no covenant He said as to the second point that the same was adjudged between Andrews and Cromwel where a rent was payable every half year and there as here the whole rent was demanded and it was good for he is not to pay the one moiety and he is at his peril to pay the one moiety and he who denies the whole denies every part Et quicquid dicitur de toto dicitur de partibus It was adjourned Hil. 29 Eliz. In the Common Pleas. CLXII The Lord Mountjoyes and Barkers Case IN an Ejectione firmae upon a Special Verdict the Case was this King Ed. 6. granted the Manor and Hundred of Tremington in Fee rendring rent to hold of the Manor of East Greenwich in Socage reddendo annuatim 136 l. Queen Mary reciting the first Grant in the first year of her reign granted the rent and fealty and the Manors of Cauford D. S. Et etiam Manerium nostrum Hundredum de Tremington although she had not the Manor to the Marquess of Exceter after which the Marchioness being seized of the Manor of Cauford holden in Capite and of other Lands 4 and 5 Philip and Mary devised the Manor of Cauford D. S. and whereas she had nothing in the Manor of Tremington but the rent and fealty out of it she devised the same with the others to the Lord Mountjoy and also she devised divers Legacies and Annuities to her Servants and others And devised by the same Will that they should be levied of the Manor of Tremington and of the Manors of D. S. whereas D. S. were not Manors but Farms And one Barker was found Heir to the Devisor who claimed to have the third part The first question was If the rent and fealty here holden in Capite passed by the name of the Manor or not and if they passed what quantity passed Walmsley They do not pass by that name for this rent nec in rei veritate nec in reputatione was ever taken for a Manor Also she hath named it in her Will between those which are very Manors by which it appeareth that her intent was not to pass it unless it was a Manor as the other which sense is also fortified that they shall be levied parcelled and taken by which I conceive her meaning was that there should be some place to which the Devisees might resort to levy it Further It is taken for Law in Wills that a thing implyed shall not destroy a thing expressed But if by implication the Rent should pass then the Manor of Cauford should not pass which was her express will to pass As 16 Eliz. Dyer 330. where a man deviseth his Lands to one and his Heirs Males and if he dye without Heir of his Body c. Here he shall not have Tail general to the Heirs of his Body but to the Heirs males of his body for that was the express limitation and the other after but implication So 16 Eliz. Dyer 333. in Chapmans Case But our Case is better for that there are not words sufficient to warrant any implication for nec in veritate nor in common speech was it ever taken for a Manor 27 H. 6. 2. 22 H. 6. 39. Green Acre may pass by the name of a Manor although it be but an Acre of Land because it is known by such name In 27 H. 8. a man having suffered a common Recovery to his use willed that his Feoffees should sell c. So in Chapmans Case a man in his Will limited a Remainder to his Family there it is taken the same is a Remainder to those which are his next of Blood. So 41 E. 3. a man deviseth Land to A. his Daughter in truth she being a Bastard she shall have it because she is known by the name of Daughter So if there be Grandfather Father and Son the Father dyeth and the Son gives Lands to his Father and his Heirs the Grandfather shall have it for that the Son so called him 19 H. 8. Lands are devised to the right Heirs of J. S. who is attainted having Issue a Son the Son shall not have the Land for the word Heir intends one who may inherit but he cannot because a man attainted cannot have an Heir And that is a stronger Case than our Case in which there is not any affinity with a Manor for it is but a sum in gross but if it had been an Acre of Land peradventure it should have passed but being Rent Common Estovers or other Profits they cannot pass for they have not any resemblance to the Mannor but peradventure a man having a Manor parcel in Demesn and parcel in Services if he alieneth his Demesns and afterwards deviseth his Manor the Services will pass Gawdy All the difficulty of the Case is this If by the Devise the rent out of Tremington shall pass for if not then the third part thereof cometh to Barker And I conceive clearly That the rent shall pass for Wills shall have a favourable construction according to the intent of the Devisor and no part thereof shall be void if by any means it may be made good for intent then appeareth that something should pass out of the Manor of Tremington for otherwise a Clause in her Will would be frivolous For it is precisely found by the Iury that
on the other side That the Estate of the Alien is so weak that a confirmation cannot enure upon it for an Alien cannot take but to the use of the King and cannot be infeoffed to anothers use and if he be such use is void For there is not a sufficient seisin in an Alien to carry an use And it hath been adjudged on Forset Case Where an Alien and the said Forset were Ioynt-Purchasers and the Alien dyed that Forset should not have the whole by Survivour but that upon Office found the Queen should have the moiety Vide 11 Eliz. Dyer 283. Mich. 30 Eliz. In the Common Pleas. CLXXVI Jermine and Arscots Case THe Case between Jermine and Arscot was this A seized of Lands in Fee had Issue six Sons and one Daughter and devised the Manor of c. parcel of his said Lands to J. S. for ninety years if the said J. S. and G. his Wife or any of them should so long live the remainder to P. his eldest Son and the Heirs males of his Body the remainder to his other Sons in tail the remainder to his Daughter Provided That if the said P. his Son or any of the Sons of the Devisor or any of the heirs males of their bodies should endeavour by any Act or Thing to alien bargain or discontinue c. that then after such attempt or endeavour and before such Bargain and Sale c. were executed that the estate of such Person attempting should cease as if he were naturally dead and that then the premises should remain and come to such person to whom the same ought to come remain or be by the intent and meaning of his Will and died P. levied a Fine of the Manor he in the next remainder entred and claimed the Land by force of the Devise This Case was this Term argued by Walmesly Serjeant that an Estate tail cannot cease for it is an Estate of Inheritance and here is not any limitation for the Estate tail by the meaning of the Devisor shall remain revivable upon the death of the Offender but a Limitation determines the Estate utterly which is not here but here it appeareth as well by the meaning of the Devisor as by the words of the Devise that the Estate tail upon such act should be suspended and it cannot be resembled to the Case cited on the other side 22 E. 3. A Rent granted to one in Fee and that it shall cease during the Nonage of every Heir the Rent is but suspended between the Parties and Privies to the Gift as in the Case of Littleton of Re-entry and Retainer quousque but that a Stranger should re-enter and retain quousque that cannot be And in the Case of Scholastica reported by Plowden the Estate tail by such Offence is determined by the limitation But in our Case by the meaning of the Devisor only suspended so our Case is not like to that Case Shuttleworth to the contrary The purpose of the Devisor appeareth to be the continuance of the Land in the name and Family of the Caries and as to the difference of ceasing and suspending of an Estate tail the same is not to the purpose for the Tenant in tail himself may suspend his Estate tail therefore à fortiori the Donor upon the Creation of the Estate tail As by Littleton Tenant in Tail grants totum statum suum the Estate tail is thereby suspended and by Anderson if in such a Case after such a grant Tenant in tail levy a Fine in our Case If Tenant in tail offend and the party to whom the next interest is limited enters and after the Offender levies a Fine to a Stranger there although his Estate was determined by the offence yet the Estate tail is bound by the Fine Ad quod caeteri Justiciarii murmurabant Tenant in tail hath Issue two Sons the eldest in the life of his Father levieth a Fine and after the Father dieth the Estate tail is bound contrary if the Father had survived his eldest Son And afterwards in the end of this Term Iudgment was given against the Plaintiff for by the Will here is a good limitation and an estate to cease upon an act and upon another contingent to be revived is good enough Vide 30 E. 3. 7. A Lease for life rendring rent and if the rent he behind that the Lessor shall return quousque agreement be made so as a Freehold may cease and rise again according as the same is limited And all this was agreed by Rhodes Periam and Windham and afterwards Walmsley for the Plaintiff took an Exception to the Bar for that the Defendant pleaded Quod Petrus Cary tempore levationis finis praedict non habet exitum and doth not say that tempore quo ipse Henricus clamabat reversionem praedict the said Peter had not Issue for he said if Peter had Issue when Henry claimed the Reversion nothing had vested on him by the said claim But all the Court besides Anderson said that needed not be but if the matter had been such the same should come on the part of the Plaintiff Also they said That the Estate was vested in Henry without claim and although after the Offence committed and before claim Peter have Issue yet Henry should retain the Land during the life of the Offender against such Issue born after the Fine levied for by the Fine levied the Reversion vested in Henry without any claim by force of the said limitation CLXXVII Mich. 30 Eliz. In the Common Pleas. Alien suffers a common Recovery 9 Co. 141. LAnd was given to an Alien in tail the Remainder over to another in Fee the Alien suffered a common Recovery and died without Issue All this matter was found by Office. It was moved That this Office should have return so as upon the matter the Alien was not Tenant of the Land at the time of the Recovery suffered But the whole Court held the contrary and that the Recovery was good and should bind him in the Remainder Mich. 30 Eliz. In the Common Pleas. CLXXVIII Seixtbark and Percies Case EJectione firmae of Lands in Knolton and Woodland the Parties were at Issue and the Venire facias was of Knolton only and it was found for the Plaintiff It was shewed in stay of Iudgment that the Venire facias was not well awarded for it ought to have been De vicineto de Knolton Woodland which was granted by the Court And that that defect was not relieved by any Statute for it is a Mis-trial and for that cause Iudgment was stayed and a Venire facias de novo granted 30 Eliz. In the Common Pleas. CLXXIX The Provost of Queens Colledge in Oxfords Case THe Provost Fellows and Scholars of Queens Colledge in Oxford are Guardians of the Hospital and Meason de Dieu in Southampton and they make a Lease of Lands parcel of the Possession of the said Hospital to one Hagel for term of years by the name of
Praepositus Socii Scholares Collegii Reginalis in Oxonia Gardianus Hospitalis c. And in an Ejectione firmae upon that Lease it was found for the Plaintiff It was objected in Arrest of Iudgment That this word Gardianus ought to be in the Plural Number Gardiani for the Colledge doth consist of many persons and every one of them capable and not like to Abbot and Covent The Court was all of Opinion that the Exception is not to be allowed but that as well the Lease as the Declaration were both good for the Colledge is a Body and as one Person and so it is as well Gardianus 30 Eliz. In the Common Pleas. CLXXX Greens Case AN Action upon the Statute of Huy and Cry was brought by Green The Case was Upon Statute of Hue and Cry. That the Plaintiff delivered to his Servant certain monies to carry the same from Bristol to London in which journey the Servant was robbed upon which matter the Master brought his Action It was moved That the Plaintiff by the Statute of 27 Eliz. c. 13. is not a person able to bring this Action because he was not examined twenty days before the Action was brought but the Exception was disallowed for the Court was clear of Opinion that the Master should not be examined but the Servant CLXXXI 30 Eliz. In the Common Pleas. THis Case was moved upon the Statute of 1 and 2 Phil. and Mary cap. 12. The Town of Coventry was within the Hundred of Offley in the County of Stafford and Queen Mary by her Letters Patents made the said Town a County And now a Distress was taken in the residue of the said Hundred and brought into the Town of Coventry and if that be within the Statute was the question It was holden by the Court clearly That now the Town of Coventry is exempted out of the Hundred aforesaid and is a thing by it self and it is a good challenge for the Hundred of Offley that the Iuror challenged dwells in the Town of Coventry for now it is not parcel of Offley as to the King But as to the Lord of the Hundred the said Town remains parcel of it notwithstanding the Queens Grant. And the Citizens of Coventry shall do suit at the Court of the Hundred but in an Action upon the Statue of Hue and Cry of a Robbery committed in the residue of the Hundred the Citizens shall not be charged 25 Eliz. In the Common Pleas. CLXXXII Dolmans Case A. Seized of a Mannor to which two parts of the Advowson was appendant presented and afterwards aliened the Manor cum pertinentiis the Alienee presented and purchased the third part of the Advowson and presented again one J. S. Chaplain to the Earl of Rutland who had a dispensation and took another Benefice and was inducted 1 Eliz. and died 11 Eliz The Queen presented for Lapse and her Clerk was instituted and inducted the Alienee Lord of the Manor died seized inter alia this Manor was allotted to the Wife of Dolman for her part and he brought a Quare Impedit It was moved If Dolman should not joyn in this Quare impedit with her who had the third part and by Walmsley he need not Vide 22 E. 4. 8. By Brian If an Advowson descend to four Coparceners and they make Partition to present by turns and the third presents when the second ought for that time his presentment is gone but when it comes to his turn again he shall present which proves that they are several Tenants CLXXXIII Mich. 26 Eliz. In the Common Pleas. ONe recovered certain Copyhold Lands in the Court of the Lord of the Manor by Plaint in the nature of a Writ of Right It was moved in the Common Bench If a Precept may be made and awarded out of the said Court for the Execution of the said Recovery and to put him who recovered in possession with the Posse Manerii Posse Manerii Comitatus differ as in such Case at the Common Law with Posse Comitatus it was resolved clearly that force in such Cases is not justifiable but by Mandate out of the Kings Courts Hil. 29 Eliz. In the Common Pleas. CLXXXIV Anne Bedingfields Case DOwer was brought by Anne Bedingfield against Thomas Bedingfield the Tenant brought out of Chancery a Writ de Circumspecte agatis containing this matter that it was found by Office in the County of Norfolk that the Husband of the Demandant was seized of the Manor of D. in the County of Norfolk and held the same of the Queen in Chief by Knight Service and thereof died seized the Tenant being his Son and Heir apparent and of full age by reason of which the Queen seized as well the said Manor as other Manors and because the Queen was to restore the Tenements tam integre as they came to her hands it was commanded them to surcease Domina Regina inconsulta It was resolved that although the Queen be intituled to have Primer Seisin of all the Lands whereof the Husband died seized yet this writ cannot extend to any Manors not found in the Office for by the Law the Queen cannot seize more Lands than those which are found in the Office and therefore as to the Land found in the Office the Court gave day to the Tenant to plead in chief And it was argued by Gawdy Serjeant for the Tenant that the Demandant ought to sue in the Chancery because the Queen is seized to have her primer Seisin And cited the Case 11 H. 4. 193. And after many Motions the Court clearly agreed that the Tenant ought to answer over for the Statute of Bâ—gamis cap. 3. pretends that in such Case the Iustices shall proceed notwithstanding such Seisin of the King and where the King grants the Custody of the Land it self 1 H. 7 18 19. 4 H. 7. 1. Ã multo fortiori against the Heir himself where he is of full age notwithstanding the Possession of the King for his Primer Seisin by the Statute of Bigamâ—s where the Heir was of full age there the wife could not be endowed in the Chancery But now per Prerogativa Regis cap. 4. Such women may be there endowed si Viduae illae voluerint And after many Motions the Court Awarded that the Tenant should plead in Chief at his peril for the Demandant might sue at the Common Law if she pleased Vide Cook 9. Part Acc. CLXXXV Savages Case ONe Savage was presented to a Benefice and afterwards took another and then purchased a Dispensation which was too late and then was qualified and afterwards accepted of the Archdeaconry of Gloucester and Underhil who had the Archdeaconry libelled against the said Savage in the Spiritual Court. Vide the Case reported in the first Part of Leonards Reports Sect. 442. Ideo Quaere there CLXXXVI Pasc 26 Eliz. In the Kings Bench. HVsband and wife Copyholders for Life the Husband surrendred to the Lord who granted the Land over by Copy to a Stranger
or his Servant had put the Horse to grass and afterward the Horse is stollen there an Action upon the Case doth lye Trin. 29 Eliz. In the Common Pleas. CXCVII Neals Case IN a false Imprisonment by Neal against the Mayor Sheriffs Citizens and Commonalty of the City of Norwich the Original Writ was directed to the Coroners of the said City And Exception was taken to the Writ because it was not directed to the Sheriffs of the said City but to the Coroners Sed non allocatur for the Sheriffs are parcel of the Corporation as it is to see by the name by which they of Norwich are incorporated And also it hath been adjudged That a Sheriff cannot summon himself and therefore by the Award of the Court the Writ was allowed to be good Trin. 29 Eliz. In the Common Pleas. CXCVIII. Sir John Bromes Case SIr John Brome 33 H. 8. acknowledged a Fine of certain Lands the Kings Silver was entred and the Conusans taken but the Fine was never engrossed and now he who claimed under the Fine came in Court and prayed that the Fine might be engrossed and the Court examined them upon their Oaths to what use the Fine was levied and in the Seisin and Possession of what persons the Lands whereof the Fine was levied had been after the Fine Vpon which Examination it appeared fully to the Court that the Party to whom the Fine was levied was seized after the Fine and suffered a Common Recovery of the Land and that the said Land had been enjoyed according to the said Fine at all such times since c. Whereupon the Court commanded that the Fine be ingrossed Vide Acc. 8 Eliz. Dyer 254. Trin. 29 Eliz. In the Exchequer CXCIX The Lord Dacres and Philip Fines Case THe Case between the Lord Dacres and Fines was Tenant in Tail in remainder upon an Estate for Life of Lands holden in Capite levied a Fine thereof without Licence 3 Leon. 261. and Process issued against the Tenants for Life It was holden by all the Barons that by Plea he should be discharged it was holden That if the Conusor had any other Lands ubicunque in Anglia the Fine for Alienation should be levied upon them But it was moved If the Tenant should be driven to plead it because it appears upon Record that the Conusor was but Tenant in Tail in Remainder and that was in an Office containing such matter which was pleaded by another in another Cause before by which Office it appeared that the Lord Dacres was Tenant in Tail the Remainder in Tail to Philip Fines and now Fines had levied a Fine sur Conusans de droit c. and because the same appeared on Record Manwood awarded that the Process against the Tenants of the Lord Dacres should be stayed Trin. 29 Eliz. CC. Paston and Townsends Case IN Trespass by Paston against Townsend The Defendant pleaded that Tindal was seized in Fee by protestation and dyed seized and the Land descended To which the Plaintiff replyed and said c absque hoc that Tindal was seized in Fee upon which they were at Issue On the part of the Defendant to prove the Issue it was given in Evidence to prove the Issue in his right that the said Tindal long time before his death was seized and aliened and never after was seized It was said that that Evidence did not prove the Issue for the Defendant for the Seisin in Fee intended in the Issue is in the nature of a dying seized and so Periam conceived that the Defendants Plea did not intend any other Seisin a dying seized and the dying seized is taken by Protestation to avoid the doubleness So as the Seisin upon which the Issue is taken ought to be intended a Seisin continuing until the time of the death of Tindal and Seisin at large or a general Seisin at any time during the life of Tindal quod Anderson concessit Trin. 29 Eliz. In the Kings Bench. CCI. Griffith and Prices Case ERror by Griffith against Price upon a Iudgment in Chester in Ejectione firmae and the Error assigned was because the Original bore date 16 April 28 Eliz. and the Plaintiff declared of an Ejectment 17 April 28 Eliz. So as it appeareth that the Action was brought before there was any cause of Action and that was holden to be Error And also Ejectione firmae is not a personal Action and afterwards the Iudgment was Reversed Trin. 30 Eliz. In the Kings Bench. CCII. Harris and Caverleys Case A Iudgment was given in London between Harris and Caverley upon the Statute of 5 E. 6. for buying of Woolls and upon that Error was brought in the Kings Bench quod nota For this Writ of Error upon a Iudgment given in London ought to be sued before the Maior Vide â— N. B. 22 23. And Wray asked Wherefore the Writ of Error was brought here To which it was answered by Dodding Clark that the Record was removed by Certiorari out of the Kings Bench at the Suit of the Defendant to the purpose to bring a Writ of Error quod coram vobis residet And the Error was assigned in this that by the Statute of 18 Eliz. cap. 5. it is enacted that upon every Information that shall be exhibited a special Note shall be made of the Day Month and Year of the exhibiting of the same into any Office or to any Officer who lawfully may receive the same And here upon this Information there is not any such Note according to the said Statute And in truth no Information may be exhibited for there is not any Officer there appointed for that matter for the entry in such Cases in that Court is Talis venit deliberavit hic in Curia Miloni Sands c. But in the Case at Bar the Entry is Talis venit deliberavit in Curia but without shewing to whom But note that the words of the said Statute of 18 Eliz. are in the disjunctive into any Office or to any Officer and that such Information shall not be of Record but from that time forwards and not before wherefore here this Information is not upon Record and then no Iudgment can be given upon it Cook This Information may be well sued in London for the words of the said Statute of 5 E. 6. give Suit in any Court of Record of the King And the Court in London is a Court of Record of the King and every Court of Record hath an Officer to receive Declarations and Pleas and if it be delivered into the Office it is good enough 2. The Offence is laid in the Parish of Bow in Warda de Cheap alibi in Civitate London and so there is not any place laid where the Offence shall be tryed Cook This Alibi is a Nugation Trin. 31 Eliz. In the Kings Bench. CCIII Peuson and Higbeds Case IN Assumpsit the Plaintiff declared that in consideration that he by his Servant had delivered to the Defendant two Bills
was That Francis Bunny was seized and 1 May 20 Eliz. by Deed indented enfeoffed N. H. to the use of the said Fr. Bunny for term of his life the Remainder to D. in tail the Remainder to E. in tail the Remainder over to F. in Fee In which Deed of Feoffment a Proviso was That if it should happen one P. P. to dye without Issue Male of his Body that then it should be lawful for the said Fr. Bunny at any time during his life by his Deed Indented to be Sealed and Delivered in the presence of three credible Witnesses to alter change diminish or amplifie any use or uses limited by the said Deed aliquem usum vel usus inde alicui personae c. Limitare post mortem ipsius Fr. to begin After which the said Fr. Bunny 1 Aprilis 23 Eliz by his Deed Indented did renounce relinquish and surrender to the said N. H. D. E. F. all such Liberty Power and Authority which he had after the death of the said P.P. without Issue ut supra And further remised released and quit-claimed to them the said Condition Promise Covenant and Agreement and all his said Power Liberty and Authority and further granted to them and their Heirs that at all times then after as well the said Condition Promise Covenant and Agreement as the said Power Liberty and Authority should cease and to all purposes should be void after which P. P. dyed without Issue 1 Maij 23 Eliz. after which 20 March 24 Eliz. the said Fr. Bunny by Indenture between him and the said D. Sealed and Delivered ut supra altered the former uses and covenanted and agreed with the said D. that from thenceforth the said N. H. and his Heirs should be seized to the use of the Plaintiff and his Heirs c. And note that in this Case Fr. Bunny being but Tenant for life enfeoffed one Tomson upon whom the said D. entred for a Forfeiture And it was argued by Altham That by the Feoffment by Fr. Bunny to Tomson the Liberty and Power aforesaid was not extinct or lost for this Liberty and Power was not then a thing in esse for then was P. P. alive and also the Liberty is meerly collateral to the Land whereof the Feoffment was made 39 E. 3. 43. Fitz The Son and Heir apparent disseised his Father and thereof made a Feoffment to a stranger the Father dyed now against his own Livery the Son shall not enter but if the Son dyeth then his Son shall enter which proves that the Livery is not so violent to determine a future right but that afterwards it may be revived à fortiori in our Case where the thing pretended to be extinct is meerly collateral 36 E. 3. Fitz. garr 69. In an Assise of Common the Release of the Father with Warranty is not a bar because it is of another thing 15 H. 7. 11. Cestuy que use wills by his Will that his Feoffees shall sell his Lands and dyes the Feoffees make a Feoffment to the same use yet they may well Sell so as against their Livery the authority to sell remains to them And he put Brents Case Dyer 340. A future use limited to a Wife which shall be shall not be prevented by a Fine or Feoffment and so by the Statute of fraudulent Conveyances 27 Eliz. cap. 4. where a Conveyance is made with clause of Revocation if afterwards the party who made such a Conveyance shall Bargain Sell or Grant the said Land to another for Money or other good Consideration paid or given the first Conveyance not being revoked that then such former Conveyance against the latter Purchasor shall be void c. The other matter was admitting that the said Power and Liberty be not extinct by the said Feoffment if by the Indenture of Renunciation Relinquishment Release c. it be destroyed and he said that a thing which is not in esse cannot be released Litt. 105. 4 H. 7. 10. A Lease for years to begin at a day to come cannot be released before it comes in esse 11 H. 6. 29. Br. Damages 138. In Detinue the Defendant would confess the Action if the Plaintiff would release the Damages and the Plaintiff would have so done but could not before Iudgment for before Iudgment the Plaintiff had not Interest in the Damages but he is intituled to them by the Iudgment So Lands in ancient Demesne are recovered at the Common Law and Execution had accordingly and afterwards the Tenant releases to him who recovers and afterwards the Lord reverseth the Iudgment the Tenant notwithstanding his release may enter for his Title which accrued to him by the reversal was not in esse at the time of the release Vide 98. contr And it was adjudged 23 Eliz. in the Case of one Falsor That where Lessee for years devised his term to his Wife if she should so long live and if she dyed within the term that then the residue of his term should go unto his Daughter which should be then unpreferred and dyed his Daughter unpreferred released to her mother all her right in the said Land the mother dyed within the said term the release shall not bind the daughter for that at the time of that release she had no title Cook to the contrary And he said That by the Feoffment the said Power and Liberty is extinct And he agreed the Case cited before 15 H. 7 for in such Case the Vendee of the Feoffees shall be in by the Devise and not by the Feoffees 9 H. 7. 1. The Husband makes Discontinuance of the Lands of his Wife and takes back an Estate to him and his Wife by which the Wife is remitted they have Issue the Wife dyeth the Husband shall not be Tenant by the Curtesie for he hath extinguished his future right by his Livery 12 Ass P. ultimo A Praecipe against A who loseth the Land by an erronious Iudgment and after Execution had enters upon the Demandant and makes a Feoffment his Writ of Error is gone 38 E. 3. 16. In a Scire Facias to execute a Fine the Plaintiff recovers and makes a Feoffment in Fee and afterwards the Tenant by Scire Facias by Writ of Disceit reverseth the Iudgment now the Plaintiff in the Scire Facias shall not have a new Scire Facias 34 H. 6. 44. A. recovers against B. by false Oath and after Execution had B. enters and makes a Feoffment to a stranger who Enfeoffs him who recovers it is a good Bar in an Attaint 27 H. 8. 29. The Feoffees to an use are disseised the Disseisor Enfeoffs Cestuy que use who Enfeoffs a stranger now by that Feoffment his right to the use is gone And as to the release the same is not properly a release but rather a defeasance to determine the Power and Authority aforesaid as if A enfeoffed B. with Warranty and afterwards B. covenants with A. that the said Warranty shall be void
he could not put in a true Inventory and upon that the Plaintiff prayed a Prohibition surmising that he himself claimed Property in the said Goods and the Ecclesiastical Court would not allow of it and the Trial of the said Goods did belong to the Common Law And a Prohibition was granted Trin. 33 Eliz. In the Kings Bench. CCLXII Mountjoyes and Andrews Case IN Scire Facias upon a Iudgment in Debt The Defendant pleaded that heretofore a Fieri Facias at the Suit of the now Plaintiff issued directed to the Sheriff of Leiceâ—â—er by force of which the said Sheriff took divers Sheep of the Defendant Execution adhuc doth detain them Retorn of Writ It was holden by the Court a good Plea although he doth not say that the Writ was returned for the Execution is lawful notwithstanding that and the Plaintiff hath remedy against the Sheriff CCLXIII Vide this Case reported by Cook 1 Part by the name of Capells Case THe Case between Hunt and Gately in the Exchequer Chamber was now argued by Fenne That the Rent granted by him in the Remainder upon an Estate tail is good and shall bind the Land after the Estate tail determined notwithstanding the common Recovery suffered by the Tenant in tail in possession Before the Statute of Westm 2. of Donis Condic c. no Remainder could be limited upon an Estate tail for that which remained in the Donor was but a possibility and therefore then a Formedon in Remainder did not lye But the said Statute which provided a Formedon in the Descender provided also by Equity a Formedon in the Remainder for a Formedon in the Reverter as appeareth by the said Statute was in use in Cancellaria And now here in our case is a Remainder lawfully vested in the Grantor which he may dispose of as he sees good and therefore when he grants a Rent-charge out of it the same is a thing vested in the Grantee and by no subsequent act can be divested and although the Estate which was charged be now charged by the Recovery yet it is the same Land which was charged and therefore the charge shall continue as if a gift in tail be rendring Rent and the Donee levieth a Fine yet the Rent remaineth and the Donor shall distrain 48 E. 3. 3 9. So here If after the grant of this Rent Tenant in tail in possession levies a Fine by which the Remainder which was charged is discontinued and afterwards the Conusor dyes without Issue the Grantee shall distrain upon such possession which passed by the Fine As if A. lease to B. for life and afterwards grants a Rent out of the same Land to C. B. aliens in Fee and dyes although that A. cannot re-enter but suffers the said torcious Estate gained de novo by wrong to continue yet B upon such possession shall distrain for the Rent for it is the same Land which was charged and by Law a thing in abeyance may be charged As if a Parson grant a Rent-charge to begin after his death and the Patron and Ordinary confirm it it shall bind although the Grant doth not take effect in the life of the Grantor but when the Freehold is in abeyance So if the Patron and Ordinary in the time of Vacation grant a Rent-charge out of the Parsonage the same is good and shall bind the Successor and yet at the time of the Grant the Freehold of the thing granted is in abeyance Vide 5 E. 6. Dyer 69. That a Rent which is not in esse shall be bound by a Iudgment 22 E. 3. 19. 5 E. 3. Fitz. Dower 343. By Bracton Jus concerning a real thing is threefold 1. Jus terrae scil the Ownership of the Land. 2. Jus in terra as a Rent Common c. 3. Jus ad terram scil Right permanent And by this Common Recovery in our case Jus terrae shall be bound but not Jus in terra And he said That if Land be given to A. in tail the Remainder to the Kings Villain in Fee and before any claim by the King A. suffers a common Recovery and dyes without Issue this Recovery shall not bind the King. And as to the Case of 26 H. 8. 2. which hath been Objected against the falsifying of the Recovery where a Parson made a Lease for years and afterwards in a Quare Impedit brought against him and the Patron they pleaded faintly to the intent to make the Lessee lose his Term now such a Lessee cannot falsifie in such case the Parson by another way might have defeated the Lease as by Resignation but in our case the Grantor of this Rent by no way might defeat his Grant And he said a common recovery did not bind Dower therefore nor this rent And if Tenant in tail in possession grants such a rent and after suffers a common recovery the rent shall stand why not also in the case of a remainder for upon them both as well the remainder as the possession the recovery operatur And recoveries shall always bind the possession and no farther and shall not disprove the right but the possession And the recovery by it self doth not bind the possession but in respect of the Voucher without which no recovery shall bar and that in respect of the recompence which the Law presumes c. which recompence cannot extend to this Rent-charge and then there is no reason that he to whom it was granted should be prejudiced by this recovery and always in case of recompence the Law is very precise As if I grant unto you an Annuity of 30 l. per Annum until you be presented to a competent Benefice a litigious Benefice is not a recompence intended nor shall determine the Annuity nor a Benefice of 15 l. If two make an exchange for their Lives and one of them dyeth the exchange is not determined but the Heir of him who dyeth shall enter and retain the Land as long as the other shall live Ad quod Manwod Chief Baron subsidebat And there is a great difference between a Lease for years and a Rent-charge for at the Common Law upon such Recovery the Lessee for years was bound contrary of a Rent-charge for it was unreasonable that a thing not demanded by the recovery should be bound by it especially because that the Land rendred in value shall not be charged with the rent Walmesley Serjeant contrary A remainder upon an Estate tail is debile fundamentum and cannot uphold with assurance a Rent-charge against a common recovery and it cannot be found in any Book but in 5 E. 4. 2. That a remainder upon an Estate-tail expectant may be charged for an Estate-tail is in Law presumed to be perpetual and therefore what Lands are entailed by Fee the words of the Fine are Sibi haeredibus de Corpore suo exeuntibus imperpetuum And it is the common learning in our Books that every Estate of Inheritance be it Fee-simple or Fee-tail shall be
intended to be continued till the contrary be shewed And the Authority which the Owner of a Remainder hath upon it is but conditional scil If the Tenant in tail in possession doth not countermand it by a recovery c. And also the possession upon which the Avowry is made is not the same possession which was charged but is a Foreign possession gained by the recovery and therefore before the proper possession be recontinued there can be no Distress nor Avowry for the Land is not reduced in the privity of Estate which was charged and if he in Reversion upon such Estate tail would grant his reversion rendring rent and afterwards the Tenant in tail in possession suffers a common recovery and dyeth without Issue Now the reversion being destroyed the rent is gone And he put this Case Tenant in tail grants a Rent-charge to begin after his death without Issue and afterwards suffers a common recovery and dyes without Issue it is a good rent and shall bind the Recoveror c. At another day in the Exchequer Chamber the Case was argued again by Snagg Serjeant for the Defendant and he was very long in proving that a remainder might be charged as in this case But the Court discharged him of that and directed him to argue to this Point If this recovery did discharge the rent c. wherefore he argued That these common recoveries are false and feigned things false in the Title and covenous in the Proceedings and all in prejudice of a third person And Vide 14 H. 8.3 such common recoveries are holden fraudulent and therefore by fraud and covin being so odious in our Law we ought not to give and allow unto them so much force as is due to unfeigned recoveries for these common recoveries do not go in disaffirmance of the former possession nor in any eviction of it but for the most part in affirmance and the Estate gained by this recovery is under the Estate of him against whom the recovery was had and he is in by him for common Recoveries are no other but common Assurances And in our Case the imagined Recompence cannot come to him who hath by the recovery lost his rent and therefore it is not reason that the recovery should bind as to this rent Vide 12 E. 4. 19 20. Tenant in tail discontinueth and takes back an Estate to him in Fee and afterwards a common recovery is had against him it shall not bind the tail for the presumed recompence shall go to the Estate which he hath lost scil the Estate in Fee and not to the Estate tail whereof at the time of the recovery he was seized So in our Case the Land which by Fiction of Law is to be yielded in value upon this Voucher shall not extend to the benefit or recompence of the Grantee of the Rent-charge but only to H. who hath lost his remainder and his new remainder which comes in lieu of the former shall not be charged with this rent And therefore the remainder which by this recovery is drawn out of H. transit cum suo onere cum acciderit shall answer and shall yield the rent according to the purport of the Grant. As 33 H. 6. 4 5. two Ioyntenants are The one grants a Rent-charge and afterwards releases to his Companion he shall hold the Land charged notwithstanding that he be now fully in by the Feoffor And if there be Lord and Tenant and the Tenant grants a Rent-charge in Fee and dyeth without Heir so as the Land goes to the Lord in point of Escheat yet the Lord shall hold the Land charged And as to the Statute of Fraudulent Conveyances 27 Eliz. cap. 4. the same cannot extend to this Grant for here this Grant is upon consideration of Nature made to his own Son for his advancement Popham Attorney General to the contrary And that neither the Grantee of this Rent nor he who makes Conusans in his right shall falsifie this recovery And he put a difference where the party who leaseth or chargeth a remainder is bound by the recovery voluntarily and where involuntarily for where the recovery is suffered voluntarily there the Grantee or Lessee shall not be bound by that recovery but they shall falsifie But where as our Case is there the Party who chargeth or leaseth is bound involuntarily by such recovery there all Interests are bound and the charge is subject to the same mischief as the remainder it self out of which it is issuing Vide 7 H. 7. 12. He in the remainder in Fee shall not satisfie a recovery had against the Tenant for life but he is put to his Writ of Entry ad terminum qui praeteriit in which he shall falsifie and not by Entry much less he in the remainder upon an Estate tail shall not falsifie and falsifier lyes properly where the Party who grants or leaseth against his Grant or Lease practiseth by such recovery to avoid or defeat his own Estate and by consequence the Interest of his Grantee or Lessee But in our Case there is not any such matter for the Grantor H. was not party or privy to this recovery nor Tenant nor Vouchee and therefore no Covin and then no Voucher and all the Cases in our Law of falsifying of recoveries are upon such matter And he put the Case of 19 E. 2. Fitz. Title Assise 82. where the Conusee of a Statute Merchant having sued Execution one who had no right impleaded the Conusor and by Covin recovered against him and by Execution upon that recovery ousted the Conusee it was holden he should have an Assise and falsifie for here he who party to the recovery Donee in tail the remainder over in Fee upon condition suffers a common recovery the Condition is gone And as to the Statute of 21 H. 8. cap. 15. Falsifying is not given in our Case by the said Statute the words of which are Where divers Men have leased their Land to Farm and afterwards after such Leases made the Lessors their Heirs and Assigns have suffered Recoveries Within which words our Case is not for he against whom the recovery was had was not our Grantor his Heir or Assign So if there be Tenant in tail the remainder over to another in Fee he in the remainder makes a Lease for years and afterwards Tenant in tail in possession suffers a common recovery the Lessee shall not falsifie for that Lease was not made by him against whom the recovery was had And it is clear that by the Common Law the Grantee of a Rent-charge cannot falsifie against the Grantor his Heirs or Assigns But it was a doubt as it appeareth 7 H. 7.11 If upon a faint pleader the Lessee for years might be received for the Statute of Gloucester extends but to default or re-disseisin but now by the Statute of 21 H. 8. cap. 11. in three Cases Default Reddition and Faint pleading such Resceipt lyes which proves that in case of rent
and a Writ de novo awarded CCXCVIII A. Is bound to B. upon Condition to stand to the Arbitrement of certain persons who award that B shall make a Release to A. of all Actions Debts Duties and Demands at the request of A. and afterwards A. comes to B. and requires him to make him a Release who said to him That he was unlearned and that he would go to one to make it and the next day after the request he seals and delivers it to A. who accepts of it It was holden by Windham and Mead That notwithstanding that Acceptance the Obligation was forfeited for they said That presently after request he ought to have done it in the speediest manner that might be Vide acc ' 15 E. 4. 31. Vide also Wottons Case 16 Eliz. Dyer 338. Mich. 26 Eliz. In the Common Pleas. CCXCXI The Dean and Chapter of Christ Church and Parotts Case Grants of the King. NOte in the Common Pleas in a Case between the Dean and Chapter of Christ Church in Oxford and Parott It was holden by the Iustices that if the King grants Lands unto a Corporation by another name than that which they were named before yet the Land shall pass and the Letters Patents shall be to them as a new Incorporation c. Mich. 19 Eliz. In the Common Pleas. CCC Beechers Case Jurors BEecher being a Gentleman of the Middle-Temple was Retorned in an Attaint and before the Retorn of the Pannel he became a Minister of the Church and now at the day of the Retorn he appeared and prayed to be discharged according to the Priviledge of those of the Ministry But the Court would not allow of his prayer because that at the time of the Pannel made he was a Lay-man Wherefore he was sworn one of the Iury. Hil. 19 Eliz. In the Kings Bench. CCCI. Vernon and Sir Thomas Staveleys Case TEnant in Tail made a Lease for the life of the Lessee according to the Statute of 32 H. 8. Discontinuance and by Wray and Gawdy Iustices the same was not a Discontinuance But if Tenant in Tail levyeth a Fine which bindeth his Issue by the Statute of 4 H. 7. 32 H. 8. that same is a Discontinuance Look upon the Statute of Leases and of Fines the words in the former are scil Such Fines shall be good and effectual in the Law but in the other scil Such Fines shall be a bar against the Conusor and his Heirs And if Tenant in Tail after such a Fine dyeth without Issue the Donor cannot enter but is put to his Formedon And as to the principal Case Dyer agreed in opinion with Wray and Gawdy Trin. 28 Eliz. Rot. 1027. CCCII Milborne and the Inhabitants of Dunmowes Case MIlborne brought an Action upon the Statute of Winchester against the Inhabitants within the Hundred of Dunmow in the County of Essex It was found by Special Verdict Upon Statute of Hue and Cry. That the Plaintiff was robbed the 23 of April inter horam secundam Matutinam tempore Nocturno ante Lucem ejusdem diei and the Opinion of the Court was clear That the Plaintiff should be barred for the said Statute provides for ordinary Travel as in the case of Archpole who came to his Inn after Sun-set ante Noctem in tempore diurno which is an usual time for Travellers to come to their Inn but the Law doth not receive any in protection of this Statute which travel in extraordinary hours for it is the folly of the traveller to take his journey so out of season and the inhabitants are not bound to leave their houses and attend the high-ways tempore Nocturno And another reason was alledged by the Iustices because that the said Statute appoints Watch to be kept in the time of night à festo Assensionis usque festum Sancti Mich. and this Robbery was done the 23 of April so out of the said time And afterwards Iudgment was given against the Plaintiff CCCIII. Hil. 29 Eliz. In the Common Pleas. Devises SErjeant Fenner demanded the Opinion of the Court upon this Case A. devised Lands to his Wife for life and afterwards to B. his Son and his Heirs when he should come to the age of 24 years and if his Wife dyed before that his said Son should attain to the said age of 24 years that then J S. should have the said Lands until the said age of the said Son A dyed J. S. dyed the Wife dyed the Son being within the age of 24 years If the Executors of J. S. should have the Lands after the death of J. S. until the said age of the Son was the question Anderson and Periam conceived that he should not for this Interest limited by the Will to J. S. was but a possibility which was never vested in him and therefore could not by any means come to his Executors Rhodes and Windham doubted of it And Fenner put the Case 12 E. 2. Fitz. Condition 9. where Land is Mortgaged to J. S. upon payment of Money to the said J. S. or his Heirs such a day and before the said day J. S. by his Will deviseth That if the Mortgagor pay the Money that then A. B. shall have them that this Devise of that possibility is good which Case all the Iustices denied And Windham put the Case between Welden and Elkington 20 Eliz. Plowd 519. where Lessee for years devised his term to his Wife for so many of the years of the said term as she should live and if she dyed within the term that then his Son Francis should have the residue of the years not incurred Francis dyed intestate the Wife dyed within the term the Administrator of Francis had the residue of the term and yet nothing was in Francis the intestate but a possibility A Lease was made to one Hayward his Wife and one of his Children Habendum to Hayward for 99 years if he so long live and if he dye within the said term that then the said Wife should have the said term for so many of the years as should be to come at the time of the death of her Husband and if she dyed also within the said term that then the Child party to the Demise should have the same for so many of the years of the said term as should be not expired at the time of the death of the Wife And the case of Cicell was cited Dyer 8 Eliz. 253. A Lease was made to William Cecill pro termino 41 annorum si tam diu vixerit Et si obierit infra praedictum terminum extunc Eliz. uxor praedict Will Cicell habebit tenebit omnia singula praemissa pro residuo termini praedict incompleti si tam diu vixerit Et si praedict Eliz. obierit infra terminum praedict Tunc Willielmus Cicell the Son c. shall have and hold it pro residuo termini praedict completi And it was holden by Catlin and
Land Rents and Reversion until of the Issues and Profits thereof certain Sums of Mony should be paid to his younger Sons and dyed And Exception was taken to the pleading because it is not specially shewn that the Land devised was holden in Socage And that was holden a sufficient Exception And the Court was of Opinion That the Opinion of Dyer Devises Whiddon and Bendloes in 16 Eliz. was not Law for by the common Law no Land was devisable but by Custom which ought to be pleaded where Title is made by Devise Tenances And now by the Statute all Lands holden in Socage are devisable and but two parts of the Land holden by Knight Service and therefore he who would make Title to himself by a Devise ought to shew the Tenure of it and so it was lately adjudged in the Kings Bench in Thompsons Case And by Anderson and Periam This Feoffment was well executed for the manner of it Attorneys make Livery for the Letter of Attorney is Conjunctim divisim ad intrandum in omnia singula praemissa and upon these words one Attorney may make Livery in one parcel of the Land and the other Attorney in the other parcel and in this case if one of the said Attorneys make Livery in one part only without medling with the residue by himself or by any other the same shall pass for it is not necessary that all pass or nothing at all 7 Eliz. Dyer 79. CCCXI. The Dutchess of Suffolks Case ADrian Stokes and the Lady Francisca Dutchess of Suffolk his Wife brought a Quare Impedit against the Bishop of Exeter and others The Bishop pleaded and demanded Iudgment of the Writ because he said It appeareth by the Writ Quod praedicta Francisca uxor praefati Adriani nominatur in dicto Brevi Domina Francisca Ducissa Suffolk ubi per Legem terrae eadem Francisca by her Marriage betwixt the aforesaid Adrian and her the said Frances had lost her name of Dignity and ought to be named Francisca uxor praefati Adriani Wherefore and because the said Frances is named Lady Dutchess of Suffolk in the said Writ therefore he demanded Iudgment of the Writ And afterwards the Plaintiffs did discontinue their Suit and durst not proceed Vide the Case 7 E. 6. Dyer 79. Mich. 4 5 Phil. Mary CCCXII The Queen Due and Kirbys Case THe King and Queen brought a Writ of Disceit against Due and Kirby and declared That Colley was seized of certain Lands in Fee and holden of the King and Queen as of their Manor of Westbury which Manor is ancient Demesne and so seized levied a Fine to the said Due for Conusans de droit c. Due rendred unto Colley for life the Remainder over to Kirby in Fee Colley dyed Kirby entred as in his Remainder Kirby pleaded That the Land is Frank-fee c. upon which they are at Issue which Issue depending not tryed Due dyed It was moved that the Writ should abate But it was allowed for this Action is but Trespass in its Nature for to punish the said Disceit And Due had nothing in the Land but is named only because he was party to the Disceit And no Land is to be recovered but only the Fine reversed Pasc 26 Eliz. In the Kings Bench. CCCXIII. Russels Case RUssel was condemned in an Action of Debt Execution and after the year and day the Plaintiff sued a Capias ad satisfaciend ' against him and he was taken by force of it and committed to the Marshal as in Execution It was holden by the Court That the same was a void Execution and not only avoidable by Error and therefore the Defendant was discharged for it is not at any Execution and the Plaintiff may have a Scire Facias when he will. Pasc 26 Eliz. In the Kings Bench. CCCXIV Wroth and Capells Case BEtween Wroth and Capell the Case was 3 Leon. 102. That A. was indicted upon the Statute of 8. H. 6. and Exception was taken to the Indictment because there were no words of Freehold in it or to prove that the party grieved had any Freehold whereof he might be disseised But because the words of the Indictment were Expulit disseisivit which could not be true if the party expelled and disseised had not Freehold therefore the Exception was not allowed c. Another Exception was taken to the Indictment for that the words were in unum Tenementum intravit and this word Tenementum is too general and an incertain word and therefore for that cause the party was discharged But the Indictment was further in unum Tenementum 10 Acras terrae eidem pertinent and as to those Acres he was put to answer CCCXV. Pasc 26 Eliz. In the Common Pleas. Execution NOte It was agreed by the Court and affirmed by the Clarks That if an Action of Debt be brought upon an Obligation against two upon one Ioynt Praecipe and the Plaintiff hath Iudgment to recover that one Ioynt Execution ought to be sued against them both but if the Suit were by Original and several Praecipe's Execution might be sued forth against any of them Mich. 8 9 Eliz. In the Common Pleas. CCCXVI. Belfield and Rous's Case IN Dower by Sibill Belfield who was the Wife of Anthony Rous against Thomas Rous they were at Issue upon Detinue of Charters and it was found for the Demandant and it was further found That the Husband of the Demandant of whose Seisin she demanded Dower dyed having Issue Charles Rous Quodque idem Carolus dict' Sibill perceperunt receperunt per spacium sex annorum proxime post mortem dict' Anthonij the Issues and Profits of the said Lands whereof the Demandant now demands Dower and that the said Charles afterwards dyed without Issue after whose death the said Thomas Rous entred c. And Iudgment was given for the Demandant and to recover damages after the death of her Husband CCCXVII Pasc 7 Eliz. In the Common Pleas. Uses BEfore the Statute of Vses a Feoffment is made to the use of a Man sole and a Woman sole and their Heirs and afterwards they inter-marry and afterwards the Statute of Vses came It was the Opinion of the Iustices That they should hold the Land in such sort as they held the Vse scil by several and divided Moieties for by the said Statute the possession shall be executed to the Vse in such Nature Condition and Quality as it was before Mich. 28 29 Eliz. In the Kings Bench. CCCXVIII Sir Gervaise Clyftons Case A Quo Warranto was brought against Sir Gervaise Clyfton 3 Leon. 184. Quo Warranto and shewed That the said Sir Gervaise was seized of a Manor and a Messuage within which he claimed to have a Court with view of Frank-pledge and other Liberties and that without any Grant or Authority usurpavit Libertates praedictas That the Defendant pleaded Quod non usurpavit Libertates praedictas
Bayliff of his Lord could not do better than admonish the said Bayliff of his duty for it concerned the Honour of his Master and also his Inheritance in the said Liberty But if the said Townsend had been a meer stranger to the said Earl so as no such privity had been betwixt them the same had been clearly Maintenance in Townsend as it was lately adjudged in that Court in the case of one Gifford where the parties being at Issue and a Venire Facias to the Sheriff to retorn a Iury a stranger wrote to one of the Iurors who was retorned in the Pannel praying him to appear at the day and to do in that cause according to his Conscience and the same was adjudged Maintenance And afterwards upon full hearing of the cause the said Townsend by the Sentence of the Court was acquitted of any Maintenance with great allowance and approbation of many Lords of the Counsel there present Bromley Cancellario tantum exclamante CCCXXVII Mich. 15 16 Eliz. In the Common Pleas. IN a Writ of Partition the Defendant prayed in Aid the Plaintiff counterpleaded the Aid upon which Issue was joyned and found for the Plaintiff It was the Opinion of the Court That it was peremptory for the Defendant And the Plaintiff shall have the Partition scil Quod fiat Partitio and the reason thereof is for the delay of the Plaintiff and for the vexation of the Country who are to try it otherwise it had been if it had been adjudged against the Defendant upon a Demurrer CCCXXVIII Mich. 21 Eliz. In the Kings Bench. IN a Formedon of a Manor the Tenant pleaded Ioynt-tenancy by Fine with J. S. The Demandant averred the Tenant sole Tenant as the Writ supposed and upon that Issue was joyned and found for the demandant Vpon which a Writ of Error was brought and Error assigned in this That whereas upon Ioyntenancy pleaded by Fine the Writ ought to abate without any Averment by the Demandant against it the Averment hath been received against the Law And by Southcote at the common Law If the Tenant plead Ioyntenancy by Deed the Writ should abate without any Averment but that was remedied by the Statute of 34 E. 1. but Ioyntenancy by Fine doth remain as it was by the common Law for he hath punishment enough in that because by that Plea if it be false he hath by way of conclusion given away the Moiety of the Land in demand to him with whom he hath pleaded Ioyntenancy and the Law doth not intend that he will so slightly depart with his Land for the abatement of a Writ Else in a Praecipe quod reddat the Tenant confesseth himself to be Villain to a Stranger the Writ shall abate without any Averment of Frank-estate for the Law intends that the Tenant will not enthrawl himself without cause Wray to the same intent But the Demandant may confess and avoid the Fine as to say That he who levied the Fine was his Disseisor upon whom he hath before entred c. And if Tenant in Fee-simple be impleaded and he saith he is Tenant for life the Remainder over to A. in Fee and prayeth in Aid of A. the Demandant shall not take Averment That the Tenant the day of the Writ brought was seized in Fee. Note That in this Fine Ioyntenancy was pleaded but for parcel and it was holden by â—ray and Southcote That the whole Writ should abate as in a Writ against many the misnosmer of the one shall abate the whole Writ against all the Defendants and so where the Demandant enters into parcel of the Land in demand if the Land in demand be one entire thing it shall abate the Writ in all In this Case the Demandant ought to have in his Writ a Foreprise of the Land parcel of the Land in demand whereof the Ioynt-tenancy by Fine is pleaded for this dismembring of the Manor and destruction of the Land whereof the Ioyntenancy is pleaded is peravail and beneath the Gift whereof the Formedon is conceived and therefore in respect of the title of the Demandant it remains in right parcel of the Manor and therefore it ought to be demanded accordingly with a Foreprise But if A. gives to B a Manor except 13 Acres in Tail there if after upon any Discontinuance the Issue in Tail is to have a Formedon in such Case there needs not any Foreprise for the said 10 Acres were never severed from the Manor upon the Gift But if Land in demand be several as 20 Acres but two this Foreprise is not good Vide Temps E. 1. Fitz. Br. 866. Praecipe unam bovat ' terrae except a Selion and the Writ was abated for every demand ought to be certain but a Selion is a parcel of Land uncertain as to the quantity in some places it is an Acre in some more and in some less Another point was That because that the Tenant hath admitted and accepted this Averment scil Sole Tenant as the Writ supposeth if the Court notwithstanding the admittance of the Tenant ought without exception of the party ex Officio abate the Writ And Wray conceived that it might for it is a possitive Law As if a Woman bring an Appeal of Murder upon the death of her Brother and the Defendant doth admit it without Challenge or Exception yet the Court shall abate the Appeal 10 E. 4. 7. And Vide the principal Case there Non ideo puniatur Dominus And if an Action be brought against an Hostler upon the common Custom of the Realm and in the Writ he is not named Common Hostler and the Defendant doth accept of such a Writ without any Exception unto it yet the Court shall abate the Writ ex Officio Vide 38 H. 6. 30. CCCXXIX Mich. 21 Eliz. In the Kings Bench. NOte this Case A. makes a Feoffment in Fee to B. and binds himself only to warranty without more B. is impleaded and voucheth A. who enters into the Warranty and loseth so as Iudgment is given against B. and also to recover in value against A. who before Execution dyeth It was the opinion of the Court that B. should have Execution in value against the Heir of A. CCCXXX Mich. 21 Eliz. In the Common Pleas. A. Seized of Lands in the right of his Wife for the term of the life of the Wife made a Feoffment in Fee to the use of his said Wife for her life In that case the wife is remitted and it is not like Townsends Case Plowd Com. 111. for in that case the Entry of the Wife was not congeable for she was Tenant in tail which Estate was discontinued by the Feoffment of her Husband Periam Iustice cited Siâ—enhams case Baron seized in the right of his Wife for the term of the life of the Wife They both surrendred and took back the Land to them and a third person And it was holden that the Wife was not presently remitted but after the death of her Husband
she might disagree CCCXXXI Mich. 21 Eliz. In the Common Pleas. A. B. and C. three Brothers A. hath issue and dyeth the middle Brother Purchaseth Land and deviseth the same to his Son in Tail and if he die without Issue that the Land shall remain to the King and Lineage of the Father sc of the middle Brother and if the Son of the eldest Son or the youngest Brother should have the Land was the Question and it was the opinion of the Lord Dyer That the Son of the eldest Brother should have it CCCXXXII Mich. 21 Eliz. In the Common Pleas. A Lease for life was made to B the Remainder to C. and D. in Tail It was holden that in this case C. and D. cannot disagree to that Remainder without matter of Record for they are Tenants in Common but if the Remainder had been limited to them in Fee so as they took joyntly it had been otherwise for then by the disagreement of the one the other shall take the whole Land. Mich. 32 Eliz. In the Kings Bench. CCCXXXIII Waite and Coopers Case IN Ejectione firmae between Waite and Cooper It was found by Verdict That Cranmer late Archbishop of Canterbury was seized of the Manor and Borough of Southwark in the right of his Bishoprick and that the Prior of Morton was seized of the House in which the Ejectment is supposed and held the same of the said Archbishop as of his said Manor and Borough after which 30 H. 8. the said Archbishop gave to the King the said Manor and Borough with confirmation of the Dean and Chapter and that the same year the said Prior surrendred by which the said King was seized as well of the said Manor and Borough as of the said House and afterwards the King by his Letters Patents gave the said House and other Lands in Middlesex and Essex to Curson and Pope in Fee tenend in Libero Burgagio per fidelitatem tantum non in Capite pro omnibus serviciis demandis And afterwards King Edw. 6. gave the said Manor and Borough to the Mayor and Commonalty of London Curson and Pope covey the said House to Welsh in Fee who dyed without Heir All the Question was What Tenure is here reserved upon the Words and Grant made by King Hen. 8. to Curson and Pope It was said It could not be a Tenure in Burgage because here is not any Rent reserved which see by Littleton 162 163 164. And the Lord Anderson at the first very strongly insisted upon that Another matter was because here is reserved for all the Lands and Tenements but one Tenure so that if the Court should adjudge the Tenure reserved to be Burgage then Lands at the Common Law out of Boroughs should be holden in Burgage Also a Tenure in Burgage cannot be created without these words ut de Burgagio And to that purpose Shute Iustice agreed Vide Br. Tenures 94. Mich. 29 Eliz. In the Kings Bench. CCCXXXIV Fullers Case NOte It is holden by the whole Court in Fullers case That if one give 300 l. to another to have an Annuity of 50 l. assured to him for 100 years if he his Wife and four of his Children so long shall live That this is not within the Statute of Vsury So if there had not been any Condition but care is to be taken that there be no Communication of borrowing of any Money before Trin. 30 Eliz. In the Kings Bench. CCCXXXV Goore and Winkfields Case 3 Leon. 223. DEbt upon an Obligation by Goore against Winkfield the Obligation was written in this Form Know all by these Presents That I H. Winkfield am bound to William Goore in the Sum of c. for the payment of which Sum I give full power and authority to the said Goore to keep the said Sum upon the Profits of the Bayliwick of Swinstall from year to year until the same be paid To which the Defendant pleaded That the Plaintiff had levied parcel of the said Sum c. and did not shew how much and therefore the pleading was holden not good And it was clearly agreed by the whole Court That the Plaintiff was at Liberty either to bring his Action upon the said Obligation or to levy the Debt according to the Clause aforesaid Pasc 26 Eliz. In the Kings Bench. CCCXXXVI Powley and Siers Case POwley brought Debt against Sier Executor of the Will of one A. The Defendant demanded Iudgment of the Writ For he said That one B. was Executor of the said A. and that the said B. constituted the said Defendant his Executor so as the Writ ought to have been brought against the Defendant as Executor of an Executor and not as immediate Executor of the said A. The Plaintiff replyed That the said B. before any probate of the Will or any Administration dyed and so maintained his Writ upon which the Defendant demurred Wray was for the Writ for although here be not any Probate of the Will of A. or any other Administration yet when B. makes his Will and the Defendant his Executor it is an acceptation in Law of the Administration and Execution of the first Will. Gawdy and Ayliff Iustices that the Writ was not good Vide 23 Eliz. Dyer 372. Mich. 19 Eliz. In the Kings Bench. CCCXXXVII Taylors Case TAylor was Outlawed in Debt where a Supersedeas upon Record was delivered to the Sheriff before the award of the Exigent It was holden that the Party should avoid the same by Plea Then it was moved If the Plea should be pleaded by Attorney or in Person To which it was said by the Iustices That where matter in fact is pleaded in avoiding of an Outlawry he ought to plead it in Person but matter of Record by Attorney And so Ford Prothonotary said it was agreed in the Case of Sir Thomas Chamberlain 7 Eliz. and so it ought to be in the principal Case here CCCXXXVIII Mich. 18 Eliz. In the Kings Bench. NOte It was agreed for Law in the Kings Bench if Lessee for years grant all his Estate and Interest to A rendring rent by Indenture and for default of payment a re-entry And the Grantor demandeth the rent and A. demands an Acquittance but the Lessee for years refuseth in such case A. may refuse to pay such rent for the rent is to be paid in this nature without an Acquittance but contrary if Lessee for years had leased parcel of his Estate rendring Rent with Clause of Re-entry c. CCCXXXIX Mich. 18 Eliz. In the Kings Bench. THe King seized of a Manor to which an Advowson is appendant a Stranger presented and his Clerk in by 6 Months It was holden that in such case the Grantee may present for the Advowson was always appendant and the Inheritance thereof passed to the Grantee for it was not made disappendant by the usurpation as in the case of a common person for the King cannot be put out of possession But the Patentee shall not have Quare Impedit
another thing 15 H. 7. 11. Cestuy que Use declares by his Will That his Feoffees shall sell his Lands and dyeth the Feoffees make a Feoffment to the same use yet they may sell so as against their Livery the Authority to sell remains to them And he cited Brents case Dyer 340. where a future Vse is limited to his Wife that shall be shall not be prevented by a Fine or Feoffment And vide the Statute of Fraudulent Conveyances 27 Eliz. where a Conveyance is made with Clause of Revocation if afterwards the party makes such a Conveyance bargain sell or grant the said Lands for money or other good consideration paid or given the first Conveyance not being revoked that then such former Conveyance against the last Purchasors shall be void Another matter was admitting that the said Power and Liberty be not extinct by the said Feoffment If by the said Indenture or Renunciation Relinquishment Release c. it be destroyed And he said that a thing in esse could not be released Litt. 105. 4 H. 7. 10. A Lease for years to begin at a day to come cannot be released before that it come in esse 11 H. 6. 29. Br. Damages 138. In Detinue The Defendant would have confessed the Action if the Plaintiff would have released the Damages and the Plaintiff would have so done but could not before Iudgment for before Iudgment the Plaintiff had not interest in the damages but he was intituled to them by the Iudgment so Lands in ancient Demesne are recovered at the Common Law and Execution had accordingly and afterwards the Lord reverseth the Iudgment the Tenant notwithstanding that Release may enter for his title which accrued to him by the reversal was not in esse at the time of the Release And it was adjudged 23 Eliz. that where Lessee for years devised his term to his Wife if she should so long live and if she dyed within the said term that then the residue of his term should go unto his daughter who then should be unpreferred and dyed the daughter released to her mother all her right in the said Land the mother dyed within the term That that Release did not bind the daughter for that at the time of the Release she had not any title Cook contrary And he said That by the Feoffment the said power and title was extinct and he well agreed the case cited before of 15 H. 7. for in such case the Vendee of the Feoffees shall be in by the Devise and not by the Feoffees 9 H. 7.1 The husband makes a discontinuance of the Land of his wife and takes back an Estate to him and his wife by which his wife is remitted they have Issue the wife dyeth the husband shall not be Tenant by the Courtesie for he hath extinguished his future right by the Livery 12 Ass ultimo A Praecipe brought against A. who loseth the Land by erronious Iudgment and after Execution had enters upon the demandant and makes a Feoffment his Writ of Error is gone 38 E. 3.16 In a Scire Facias to execute a Fine the Plaintiff recovers and makes a Feoffment in Fee and afterwards the Tenant in the Scire Facias by Writ of Error reverseth the Iudgment in the Scire Facias Now the Plaintiff in the Scire Facias shall not have a new Scire Facias 34 H. 6.44 A Recovery against B. by false Oath and after Execution had B. enters and makes a Feoffment to a Stranger who enfeoffs him who recovers it is a good bar in an Attaint 27 H. 8.29 The Feoffees to an Vse are disseised the Disseisor enfeoffeth Cestuy que Use who enfeoffs a Stranger now by that Feoffment his right to the Vse is extinct And as to the Release the same is not properly a Release but rather a Defeasance to determine the power and authority aforesaid as if A. enfeoffeth B. with warranty and afterwards B. covenants with A that the said Warranty shall be void that Covenant shall enure to defeat and determin the Warranty And afterwards in the principal Case Iudgment was given against the Plaintiff See more of this Case in Cook 1. part Trin. 29 Eliz. In the Kings Bench. CCCLV. Owen and Morgans Case Ante 26. 93. GEorge Owen brought a Scire Facias against Morgan to have Execution of a Fine levied 8 Eliz. by which Fine the Land was given to the Conusee and his Heirs and the Conusee rendred the same to Husband and Wife Note that the Husband was the Conusor the remainder in Fee to the now demandant and Note that the Writ of Covenant was between the Conusee Plaintiff and the Husband Deforceant without naming of the Wife and afterwards the Husband suffered a common Recovery without naming of the Wife The Husband and Wife dyes without Issue and now Owen to whom the remainder in Fee was limited by the Fine brought the Scire Facias in bar of which the Recovery was pleaded It was argued by Serjeant Shuttleworth That the Recovery had against the Husband only was a good bar and should bind the remainder and he said That the Wife ought not to be named in or party to the Recovery for nothing accrued to her by the Fine because she was not party to the Writ of Covenant nor party to the Conusance and none can take by the render who was not party to the Writ of Covenant and to the Conusance Vide 30 H. 8. Fines 108. None can take the first Estate by the Fine but those who are named in the Writ of Covenant c. but every Stranger may take by Remainder Vide 3 E. 3. Er. Fines 114. 6 E. 2. Fines 117. 7 E. 3. Scire Facias 136. It is said by Horton If such a Fine is accepted it is good The Case was adjourned CCCLVI. A. Seized of a Manor to which two parts of the Advowson were appendant presents and afterwards aliens the Manor with the appurtenances the Alienee presents and purchaseth the third part of the Advowson and presents again one A. who was Chaplain to the Duke of Rutland and had a Dispensation from the Pope 1 Eliz. before the Statute was repealed and was instituted and inducted and afterwards accepted of a plurality viz. another Benefice and dyed 11 Eliz. The Queen presented for Lapse and her Clerk was instituted and inducted The said Lord of the Manor dyed seized inter alia and that Manor was allotted to the Wife of D. for her part and he brought a Quare Impedit It was moved if D. should not joyn in the Quare Impedit with him who had the third part and by Walmsley he is not to joyn in it 22 E. 4. by Brian If an Advowson descends to four Coparceners and they make partition to present by turns and the third doth present when the second ought for that time the presentment is gone but when it comes to his turn again he shall present which proves that they are as several
and before the 13 Weeks past the Lessor dyed and the Plaintiff his Executor brought Debt for the Rent It was adjudged by Cook and the other Iustices That the Action did not lye forthe Rent For the Rent being to be paid at Mich. or within 13 Weeks after the Lessee hath Election to pay it at any of the days and before the last day it is not due and when the Lessor dyeth before that day his Executors have not any right to the Rent but after the death of the Lessor having but an Estate for life the Rent is gone But if the Lessor had had a Fee-simple in the Land and had dyed before the last day the Heir should have had the Rent as incident to the Reversion But if the Lessor had survived both days the Rent had been a thing vested in him and his Executors should have had it but if the Rent had been reserved at Mich. and if it be behind by 13 Weeks that then it should be lawful for the Lessor to enter if the Lessor survive Mich his Executors shall have Debt for the Rent for then the Rent is due and the 13 Weeks are but a Dispensation of the Entry of the Lessor until that time And in this case as well as where the Rent is reserved at two days in the disjunctive it is sufficient that the Rent be demanded at the latter day without demanding of it at the first day Mich. 10 Jac. In the Common Pleas. CCCCIV Sir Baptist Hix and Fleetwood and Gotts Case Roll. tit Condition THe Case was Fleetwood and Gotts bargained and sold Weston Park being 300 Acres of Land to Sir Baptist Hix for 11 l. for every Acre which did amount to 25 30 l. and in the premises of the Indenture of Bargain and Sale it was agreed by the parties That the said Park being Wood-Land should be measured by a Pole of 18 Foot and a half And further it was covenanted That Fleetwood and Gotts should appoint one Surveyor and Hix another who should measure the said Park and if it by the measure should exceed the Number of Acres mentioned in the Indenture that then Hix should add to them according to the proportion of 11 l. for every Acre and if it wanted of the Measure then the said Fleetwood and Gotts should repay to Hix the Surplusage of that Mony according to the proportion of 11 l. the Acre And upon the Indenture Hix brought Covenant and Assigned a Breach because upon Measure it wanted 70 Acres and the Defendants did demur upon the Declaration because the Plaintiff had not therein shewed by what measure it was measured for they said by Shirley That although it was agreed in the first part of the Indenture that the measure should be by a Pole of 18 Foot and a half yet when they come to the Covenants there they do not speak of any Measure for which cause it shall be taken for such a Measure as the Statute speaks of scil a Measure of 16 Foot and a half the Pole and by such Measure there wants not any part of the Acres Dodderidge contr And he put this ground That if certainty once appeareth in a Deed and afterwards in the same Deed it is spoken indifferently Reference shall be unto the certainty which appeareth And therefore if by an Indenture Lands be given to a man Haeredibus masculis and afterwards in the same Deed it appears it is Haeredibus de Corpore suo It shall be an Estate-tail because the first words were indefinite and the last certain by which it appeared that he passed but an Estate in Tail And 4 E. 4. 9. b. the words of a Declaration was Noverint universi per praesentes nos J. S. teneri c. W. B. in 20 l. solvendum eidem J.S. It was holden by the Court the same did not make the Obligation void because it appeared by the first part of the Obligation that he should be bound to the Plaintiff and therefore the intent being so the Plaintiff might declare of a Solvendum to himself And the words J. S. should be Surplusage And 22 E. 3. 4. the Abbot of Selby granted quandam annuam pencionem 〈◊〉 ad rogatum J.E. illam scilicet quam idem J. E. habuit ad terminum vitae suae Et solvendam quousque sibi de beneficio Competo provisum fuerit It was holden by the Court in a Writ of Annuity brought That the word sibi should have reference to B. the Grantee and not to J. E. And Cook said That the original Contract did leave the Measure in this Case and for that he vouched Redwellys Case in Plowd Comment A Lease rendring Rent at Mich. at D. and if it be behind for a month after demand that the Lessor shall re-enter it shall be demanded at the first place Trin. 12 Jac. In the Star-Chamber CCCCV. Sir Richard Egertons Case IN this Case the Wife of Sir John Townsend being sentenced in 1000 l. and in Execution in the Fleet for the Costs of the Plaintiff these Points were resolved by the Court 1. If a man be Sentenced in the Star-Chamber to pay a Fine and to Imprisonment and the Delinquent renders his Body to Prison that notwithstanding the Body continues in Prison the King shall be satisfied the Fine out of the Profits of the Delinquents Lands 2. If a Feme Covert be sentenced there and she renders her Body to Prison and there abides That the Lands of her Husband shall be sequestred and the Profits thereof for the Fine of his Wife And that now upon the Statute of Recusancy the Lands of the Husband for the Recusancy of his Wife if he do not render her to Prison and discharge the same 3. If a man be Sentenced in the Star Chamber to pay a Fine and to have Imprisonment and he yield himself to Prison That before his Fine be also paid he shall not proceed in any Action at the Common Law against the Party in the same Suit. Pasc 12 Jac. In the Common Pleas. CCCCVI Crane and Parkins Case IN Trespass The Defendant pleaded that the Land in which was parcel of the Manor of Broughton Astley demisable by Custom and shewed That the Custom of the Manor was that if any Tenant for life dyed that the Lord for three years Fine ought to grant the same to his Heir and pleaded a Grant of the Manor to the Lord Grey of Grooby And also pleaded another Custom of the said Manor That if any Tenant for life of the said Manor had a Wife and dyed that the Wife shall have in the Land her Widows Estate And that after the death of the Wife that the Son for a Fine of three years paid to the Lord should have it for his life and that the Defendant claimed as Son according to that Custom The Plaintiff made Title as Lessee for years to the Lord Gray of the Manor and traverseth that there was not any such Custom
Mich. 29 Eliz. In the Kings Bench. XXII Barton and Edmunds Case AN Infant and another were bound for the debt of the Infant Infant the Infant at his full age promised to save the other harmless the Infant died It was adjudged that upon this Assumpsit Assumpsit an Action upon the Case did lie against his Executors XXIII Mich. 36 Eliz. In the Kings Bench adjudged IF an Executor promise to pay a Debt when he hath not Assets It was the Opinion of all the Iustices that no Action upon the Case lieth against him but if he hath assets then it is otherwise And the Heir if he hath nothing by descent is not subject to an Action upon such a promise Mich. 28 Eliz. XXIV The Lord Pagets Case Indictments AN Indictment was Quare vi armis clausam A. B. apud D. fregit whereas A. B. then had a Lease at Will of the land the matter was for digging of Turfs the Indictment was holden to be good XXV 25 Eliz In the Kings Bench. Indictments INdictment De uno Equo where it was a Gelding holden not good But otherwise it is where Trespass was brought de Equo castrato and the Iury found a Gelding and adjudged for the Plaintiff 26 Eliz. XXVI Tucker and Nortons Case Execution AN Infant in Execution upon condemnation in Debt sued a Writ of Error his Father and Brother bailed him It was said the Recognisance shall be by them two only that the Infant shall appear and if the Iudgment be affirmed that they pay the mony and not that they shall render his body to prison for when he is once discharged out of Execution he shall never be in Execution again XXVII Mich. 29 Eliz. In the Common Pleas. Nobleman Recognizance IT was holden by the Iustices That a Nobleman shall be bounden with his bail in a Recognizance that he shall render his body and that upon the Statute of 13 E. 1. If he hath not goods or lands his body shall be taken in execution for the Law in such case excepts only Clarks XXVIII Hil. 26 Eliz. In the Exchequer Felo de se THe Queen granted to one Catalla utlagatorum felonum de se within such a Precinct One indebted to the Queen having Goods is felo de se within the Precinct Resolved the Queen should have the Goods to satisfie her debt 26 Eliz. In the Kings Bench. XXIX King and Cottons Case LEssee for life the remainder in tail the remainder in fee Disseisin Lessee for life makes a Deed of Feoffment of the Land and delivers it and makes a Letter of Attorney to another to deliver Seisin who enters and makes Livery accordingly adjudged that the Attorney is a Disseisor 26 Eliz. In the Kings Bench. XXX Gerrards Case THe Owner of the Lands severed his Tythes Prohibition and a stranger took them and carried them away The Parson libelled in the Spiritual Court against the Owner of the Land for the Tythes who thereupon prayed a Prohibition It was adjudged no Prohibition should issue in this Case for that he might plead the same matter in Bar in the Spiritual Court. Hil. 31 Eliz. XXXI Willet and Wilkinsons Case NOte it was adjudged Surrender that if Lessee for years take another Lease from the Guardian in Soccage that the same is a Surrender of his first Lease Note the second Lease was made in the name of the Guardian Trin. 26 Eliz. XXXII Ould and Conyes Case IT was adjudged Commoner Conies that a Commoner cannot kill Conies which destroy his Common though he hath not any other remedy Trin. 29 Eliz. In the Kings Bench. XXXIII Mayes Case ONe sent a Letter by a Carrier to a Merchant for certain Merchandizes to send them to him receiving a certain sum of mony the Merchant sent the Merchandizes by the Carrier without receiving the mony It was the opinion of the Iustices that the Buyer should not be charged for the mony for it was a conditional bargain and it was the folly of the Merchant to trust the Carrier with the Wares Mich. 30 Eliz. XXXIV Haltons Case A Recognizance was acknowledged before Sir N. Read one of the Masters of the Chancery Recognizance Inrollment and the Recognizor died before it was enrolled it was doubted if it might be enrolled at the Petition of his Executors it was agreed by the Iustices that it might be well enough for it is like to a Conusans of a Fine before a Iudge which may be removed out of the hands of the Iudge by Certiorari and yet it is not a Record till the perfection of it At the same time it was doubted also if the Chancery would aid a man when there wanted the words Heirs in a Deed where the land was sold for mony Chancery compel Attornment But it was agreed that after a Fine levied the Chancery might compel the Tenant to Attorn Hil. 27 Eliz. XXXV Holland and Hopkins Case IN Ejectione firmae it was agreed by the Court that if a Disseisor be of an 100 Acres and he lets the same to divers for Years that the entry into one Acre by the Disseisee is an entry against them all but if they had been Tenants for life Quaere for that then he might have his Action against them And it was said Entre congeable that if one makes a Lease for years rendring for the first two years 10 l. and afterwards 30 l. every year with condition if the rent of 30 l. or any part of it be behind that the Lessor enter The Lessor enters for not payment of the 10 l. that his entry is lawful for the 10 l. was parcel of the rent for it was but one rent Trin. 29 Eliz. In the Kings Bench. XXXVI Clamp and Clamps Case Copyholder Surrender A Copyholder in possession surrendred the Reversion of his land post mortem suam to the Lord to an use c. It was adjudged that thereby nothing passed XXXVII Trin. 21 Eliz. In the Common Pleas. A Lease was made of a Mannor with all Gardens Orchards Yards c. and with all the profits of a Wood except to the Lessor forty Trees to take at his pleasure It was a Question if the Lessee should have the Wood It was the opinion of Dyer That the Wood was not comprised within the Lease but the Lessee should only have the profits as pawnage Leases herbage c. And he said it was a Case adjudged a man made a Lease of a Wood ad faciendum maximum proficuum meliori modo quo poterit that the Lessee thereby could not cut the Trees nor do waste Mich. 33 Eliz. In the Exchequer XXXVIII Butler and Lightfoots Case IT was holden by the Barons Copyholder Surrender 3 Leon. 239. That if Tenant for life be of a Copyhold the Remainder over in Fee to another he in the Remainder may surrender his Estate if there be no custom to
Common Pleas. LII Frice and Fosters Case IN Ejectione firmae the Plaintiff declared upon a Lease made 14 Jan. 30 Eliz. to have from the Feast of Christmas then last before for three years and upon the Evidence the Plaintiff shewed a Lease bearing date the 13 day of January the same year and it was found by Witnesses that the Lease was sealed and delivered upon the Land the 13 day of January Variance Whereupon Puckering and Cowper Serjeants moved on the part of the Defendant that for that variance between the Declaration and the Evidence of the Plaintiff that the Iury might be discharged Evidence good to maintain Issue But Anderson Chief Iustice said that the Evidence was good enough to maintain the Declaration for if the Lease was sealed and delivered the 13 of January it was then a Lease 14 January Quod caeteri Justiciarii concesserunt LIII Mich. 32 Eliz. In the Common Pleas. IN a Quare Impedit against the Bishop of Coventry and Lichfield The Case was that A. seised of an Advowson in Fee Quare Impedit by Executors the Church voided the Bishop collated wrongfully A. dyed Collation it was holden that his Executors might have a Quare Impedit upon that disturbance and that by the equity of the Statute which gave an Action of Trespass to Executors of Goods carried away in the life of the Testator 4 E. 3. cap. 7. and that the Clerk should be removed at the suit of the Executors Mich. 32 Eliz. In the Kings Bench. LIV. Harvey and Thomas Case THe Case was that the Husband seised of Land in the right of his Wife made a Lease of it for years Fine by the Husband where avoids a Lease ê contra 1 Roll. tit Charge in Marg. 389. Plow Quaer 31. 261. ib. plus and afterwards he and his Wife conveyed the Land to a stranger by Fine the Husband died Wray Chief Iustice was of opinion that the Conusee should hold the Land discharged of the Lease Gawdy contrary In case of a Rent granted or a Recognizance acknowledged by the Husband the Conusee of the Fine shall avoid any of them But in this Case the Conusee meddles with the Land it self and an Estate in the Land is conveyed by the Husband which none but the Wife or her Heirs shall avoid and if the Wife after the death of her Husband accept the Rent upon such a Lease by that the Lease is confirmed Mich. 33 Eliz. In the Kings Bench LV. Blaby and Estwicks Case IN Assumpsit It was moved in stay of Iudgment Assumpsit that one of the Defendants was dead after verdict but notwithstanding that Allegation Iudgment was given Attornment for the Court cannot take Notice of it judicially nor any of the Parties hath day in Court to plead it and therefore the Court is not to have regard to such Informations Wray It is not honourable for us upon such surmises which cannot be tryed to delay Iudgment and also the Party is not without remedy for he may have a Writ of Error 33 Eliz. In the Kings Bench. LVI Hore and Briddleworths Case HOre brought Trespass against Briddlesworth Quare clausum Domum suam fregit the Defendant pleaded and put the Plaintiff to a new Assignment i. e. a House called a Stable a Barn and another House called a Carthouse and Garnier And that was assigned for Error for that Assignment is not warranted by the Declaration Gawdy said it was good enough for Domus in the Declaration contains all things contained in the new Assignment but if the Declaration had been of a Close and the new Assignment of a Barn it had not been good Wray Chief Iustice Domus est nomen collectivum and contains many Buildings as Barns Stables c. And such was the Opinion of the Court. Mich 33 Eliz. In the Kings Bench. LVII Mans Case Prohibition MAn was sued before the Commissioners in Ecclesiastical Causes for an Incestuous Marriage viz. for marrying his Wives Sisters Daughter and although it be not expresly within the Levitical degrees yet because more farther degrees are prohibited the Archbishop of Canterbury and other the Commissioners gave Sentence against him Consultation upon which he sued a Prohibition upon the Stat. of 32 H. 8. c. 38. The Prohibition was general where it ought to be special that it be not within the Levitical degrees and therefore a Consultation was granted Trin. 26 Eliz. In the Kings Bench. LVIII Doylies Case Appeals IN an Appeal de Roberie against Doyly It was agreed by the Iustices that the Party robbed shall have an Appeal of Robbery 20 years after the Robbery committed and shall not be bound to bring it within a year and a day as in the Case of an Appeal of Murder Vide contr 22 Ass 97. vide Stamford 62. Trin. 26 Eliz. In the Kings Bench. LIX Ruishbrook and Pusanies Case THe Plaintiff brought Trespass for pulling down his Hurdles in his Close The Defendant justified by reason that one Beddingfield was Lord of the Mannor of D. and that the said Beddingfield and all those whose Estate he had in the said Mannor had had a free course for their sheep in the place where c. And that the Tenant of the said Close could not there erect Hurdles without the leave of the Lord of the Mannor and that the said Beddingfield let to the Defendant the said Mannor and because the Plaintiff erected Hurdles without leave c. in the said Close he cast them down as it was lawful for him to do The Plaintiff replyed of his own wrong without cause c. It was holden by the Iustices to be an ill Plea Traverse for the Plaintiff ought to have traversed the Prescription 19 Eliz. In the Common Pleas. LX. Par Marquess of Northamptons Case PAr Marquess of Northampton took to Wife the Lady Bourchier Heir of the Earl of Essex Leases by a Baron contrary to Act of Parliament void 3 Leon. 71. who levied a Fine of the Lands of the Lady sur Conusans de Droit c. with a Grant and Render to them for Life the remainder to the right Heirs of the body of the said Lady And afterwards by Act of Parliament â—5 H. 8. It was enacted That the said Lady should retain part of her Inheritance and dispose thereof as a Feme sole and that the said Marquess should have the residue and that he might lease the same by himself without the Wife for 21 years or lesser term yielding the ancient Rent being Land which had been usually demised c. The Marquess leased the same for 21 years and afterwards durante termino praedict he let the same Land to another for 21 years to begin after the determination of the former Lease It was moved that the last Lease was void for three Causes 1. Because the Marquess had but for Life and then it cannot be intended that the Statute would enable
be made rendring rent with clause of re-entry The Lessor grants the Reversion for life such a Grantee is an Assignee within the said Statute Jefferies The Condition is gone A. leaseth two Acres for years rendring rent with clause of re-entry the Lessor accepts a surrender of one Acre the whole Condition is gone but the rent shall be apportioned A Parson leaseth land whereof he is seized in his own right and land whereof he is seized in the right of his Church for years rendring rent with clause of re-entry and dieth the rent shall go according to his respective capacity and the Condition divided Condition apâ—â—â—â—â—â—ned So if part of the land so demised be evicted the Rent shall be apportioned and the Condition also And he said that the Bargainee is not an Assignee within the Statute Barham If the Reservation doth not make the lease several yet it shall make the Reversion several c. Mead 6 Eliz The Court was moved in this Case A. leased for years rendring rent with clause of re-entry and afterwards became bound to another by Recognizance the Recognizee extended the moiety of the rent and Reversion in Execution Condition suspended and the clear Opinion of the Court was that the Condition was suspended If A. let lands for years rendring rent with clause of re-entry to a Man and to a Feme sole and afterwards the Lessor intermarries with the Feme the Condition is suspended Mounson Iustice The Demise is joynt although that the Reservation be several Cestuy que use is seized of an Acre in possession and of another in reversion and makes a Lease for years of both rendring rent Severance here are several rents 13 E. 3. A. seized of two Acres of lands before the Statute of Westminster 3. made a Feoffment thereof to hold the one Acre by Knight Service and the other in Socage the Tenancy in such case is several 9 Ass 24. a lease is made of a Mill. and of a Wood rendring for the Mill 10 s and for the Wood 20 s. these are several rents and so here they are several rents and several conditions Two Tenants in Common make a lease for years rendring rent upon clause of re-entry the condition is several according to the reversion for joynt words in the Letter have sometimes as the matter requires constructions in the severalty As A and B covenant by Indenture and are reciprocally bound the one to the other to perform all Covenants contained in the said Indenture the same is to be construed such Covenants which on the part of A. are to be performed and so of the other part B. And he conceived that by the distracting of the reversion the condition was gone a condition by an act in law may be divided but not by the act of the party Conditions by act in Law divided not by act of the Party As a man makes a lease for years rendring rent with clause of re-entry takes a Wife and dyeth The Wife recovers the third part of the land devised for her Dower now that third part is discharged of the condition during the estate in Dower but the residue is subject to the condition and vide F. N. B. 21 the Heir at Common Law shall have a writ of Error for his part and the Heir in Borough English for his part two Ioyntenants make a lease for life upon condition and one releaseth the condition Statute of 32 H. 8. of Conditions taken by Equity the same barred the condition And he conceived that the Bargainee is an Assignee for the Statute of 32 H. 8. shall be taken by Equity c. As if a man leaseth lands for years to begin at Michaelmas next and before Michaelmas he makes a Feoffment and at Mich. the Lessee enters the Feoffee is an Assignee within the Statute two Ioyntenants make a lease for years rendring rent with clause of re-entry and the one releaseth to his companion he is an Assignee within the Statute Manwood He is an Assignee and in by the Bargainor The words of the Statute of 32 H. 8. are Grantees or Assignees to or by any Person or Persons and here the Bargainee is an Assignee to the Bargainor as to the use and for the possession he is an Assignee by him He who is in by a common recovery is not an Assignee although the recovery was to his use for the Writ disaffirms his possession if Tenant for llfe be disseised and he in the reversion confirms the estate of the Disseisor and the Tenant for life re-enters the Disseisor is now an Assignee but otherwise it is if he in the reversion doth release to the Disseisor and he conceived that the Lessor should recover part of the land in an action of Waste or enter in part of the land for a forfeiture for an alienation in fee that the condition remains Harper Several reservations do not make several leases for the reservation is not of the essence of the lease for it is good without any reservation and whereas it hath been said that a Lease is a contract I say Difference between a Reservation and a Contract that there is a great diversity between a reservation and a contract for if I sell to you a Horse for 40 s. and afterwards I take this Horse out of your possession yet I shall have an action of Debt for the 40 s. But if I lease land to you reserving rent and afterwards enter into parcel of the land demised I shall not have the rent and if I lease two Acres for years with several reservations I shall have but one action of waste but several Avowries according to the several reservations And here if any part of any of the said rents be behind the party may re-enter into the whole therefore the lease is but una eadem And I conceive that the Assignee of the Assignee is by the Statute to take advantage of the condition even to the twentieth degree as a warranty to one of his Heirs and Assigns extendeth to the twentieth Assignee But here in our case he is not such an Assignee that shall take advantage c. for he is in by the Statute scil in the Post but not in the Per and here the Bargainee hath but an use by the act of the Party and the possession of the Statute of 27 H. 8. But admitting that he is an Assignee yet he is an Assignee but of part and therefore shall not have advantage Condition suspended in part is suspended in all c. When a condition is suspended in part it is suspended in all A. leaseth lands for years upon condition and afterwards the lessor confirms his Estate in part for life the condition is gone Dyer The Lease is one and entire although there be several reservations for here are not several capacities nor several interests 42 Ass Two Ioyntenants lease for life rendring rent to one of them yet the rent and
lie Mich. 27 Eliz. In the Kings Bench. XCVII Baspoles Case THe Father seized of Lands is bound in an Obligation 3 Leon. 118. 2 Leon. 10 1. Stiles 148 Devise to his Son and Heir and devised his Land to his Wife until his Son shall come to the age of 21 years the remainder to the Son in Fee and no other Land descends to the Son from his Father It was moved that the Heir in this case at his Election might wave the Devise and take by descent or è contra Vide 9 E. 4. 18. per Needham It was the Opinion of Gawdy and Fenner Iustices that the Son should be adjudged in by descent Clench held the contrary Mich. 27 Eliz. In the Kings Bench. XCVIII Onions Case IN an Action upon the Statute of 5 Eliz. for hunting in his Park the Statute gives treble damages It was the Opinion of the Iustices that notwithstanding that the Statute gives treble damages Costs that the Plaintiff should have Costs also XCIX Mich. 27 Eliz. In the Kings Bench. IN Debt the Plaintiff had Iudgment to recover and a Scire Facias issued against the Bail before any Capias issued against the Principal Bail. and the Bail was taken and now they came and shewed this matter to the Court and prayed to be discharged Wray Iustice said They shall be put to their writ of Error for being but Error in Process we may reverse our own Iudgment C. Mich. 14 Eliz In the Common Pleas. A Man seized of a Pasture within which are two great Groves and Wood known by the name of a Wood leased the same by Indenture for years and also in the same Pasture were certain Hedgrows and Trees there growing sparsim by the same Indenture bargained and sold to the Lessee all Woods and Vnderwoods in and upon the Premisses and further that it shall and may be lawful to the Lessee to cut down and carry away the same at all times during the term Harper said the Hedg-rows did not pass by these words for they are not known by the name of Woods 14 H. 8. 2. Manwood held the contrary Mounson contrary to Manwood for the words of the Grant may be supplied by other in it viz. Woods Dyer held that these Hedgrows should pass for the Grant is general It was further moved if by these words the Lessee might again cut them c. or but once Harper Manwood and Mounson three of the Iustices held That he might cut them but once But Dyer held the contrary said so it should be if the words had been growing upon the Premisses and this word growing although it sounds in the present tense yet it shall be taken also in the future tense if not that the word tunc be laid for that is a word of restraint The case which was argued in the Chancery 27 H. 8. where I was present was this The Prior of St. Johns let a Commandry Provided that if the said Prior or any of his Brethren there being Commanders will dwell thereupon then the said Lease to be void And it was doubted if that Proviso did extend to the Successor for this word being in the present tense and yet it was holden by Fitzherbert that it should be taken in the future tense and so to extend to the Successor but otherwise if the words had been nunc being 15 Eliz. In the Common Pleas. CI. Conies Case A Man seized of Lands in Fee devised Devises that his wife should take the profits of his Lands until Mary his daughter and Heir should come to the age of sixteen years and if the said Mary died that J.S. should be his Heir Manwood said Tail. That the daughter after she had attained the age of sixteen years should have the Lands in Tail for Devises shall be construed according to the interest of the Devisor if they have any certainty or reason but no intent shall be taken against reason and certainty It is certain the daughter shall not have Fee-simple for that should have descended to her without any Devise and these words if she dye cannot be intended a condition for it is certain that she shall dye but if the words had been If she dye before the age of sixteen years J. S. should be his Heir that had been a condition and if the words had been That after the death of Mary J. S. should be his Heir So as the Estate Tail remains in the daughter Mounson and Harper contrary And that she shall have but for life Mounson said That if Mary had been a Stranger to the Devisor she had taken nothing Devisee who shall first take And this case was put by Barham Serjeant A man devised 100 l. to his youngest daughter and 100 l. to his middle daughter and 100 l. to his eldest daughter and that all these sums should be levied of the Profits of his Lands It was holden by the better Opinion that the youngest daughter should be first paid and then the middle and then the eldest daughter c. and that he said was Conies Case CII 6 Eliz. In the Common Pleas. A Man made a Lease for life and afterwards made a Lease to another for years to begin after the death of the Tenant for life the Lessee for years died intestate the Ordinary committed Letters of Administration to A. the Tenant for life and A. joyned in the Purchase of the Fee-simple of the Land demised It was holden by the Iustices in this Case that the Fee was executed for one Moiety for the remainder for years Estate executed was not any impediment to the execution of it Manwood conceived that the Term was not extinct for the same is not properly a term Extinguishment but only an Interest of a Term which cannot be surrendred Mounson He hath the Term in auter droit as Administrator and therefore it cannot be extinct Dyer If an Executor hath a Term and purchaseth the Fee-simple the Term is determined A woman Termor for years takes Husband who purchaseth the Fee the Term is extinct by Manwood for the Husband hath done an act which destroys the Term scil the Purchase But if a woman being a Termor marrieth with him in the Remainder the Term continueth for here it is not the act of the Husband but the act of Law. It was the Opinion of Dyer Tenants in Common that in this case the Tenant for Life and the Administrators should be Tenants in Common of the Fee. CIII Mich. 17 Eliz. In the Common Pleas. THe husband is seized in right of his wife of certain customary lands in Fee and he and his wife by licence of the Lord make a Lease for years by Indenture rendring rent have Issue two daughters and the husband dyeth the wife takes another husband and they have Issue a son and a daughter the husband and wife dye the son is admitted to the Reversion and dyeth without Issue and by Manwood
all the Iustices in the Case between Townsend and Pastor two Coparceners are in the use of a Manor after the Statute of 1 R. 3. the one of them enters and makes a Feoffment in Fee of the whole Manor that this Feoffment is not only of the moiety of the Manor whereof she might lawfully and by the said Statute make a Feoffment but also of another moiety by disseisin Mich. 26 Eliz. In the Kings Bench. CXXXVII Bulwer and Smiths Case BUlwer brought an Action upon the Case against Smith and declared how that H. H. had recovered against the Plaintiff in the Common Pleas 20 l. and before Execution died and that the Defendant knowing that at D. in the County of Norfolk malitiose deceptive machinans to Outlaw the Plaintiff upon the said Iudgment in the name of the said H.H. c. in performance of his said purpose at W. in the County of Middlesex took out a Capias ad satisfaciend in the name of the said H.H. against the now Plaintiff upon the said Iudgment directed to the Sheriff of London and Non est inventus being returned upon that took out an Exigent in the name of the said H.H. which Writ by the procurement of the Defendant was retorned and then the Plaintiff was Outlawed and afterwards the Defendant in the name of the said H. H. took out a Capias utlagatum against the Plaintiff directed to the Sheriff of Norfolk by force of which the Plaintiff was arrested and imprisoned for two months until he had gotten his Charter of Pardon by reason of which Outlawries the Plaintiff had forfeited all his Goods and Chattels and upon the said Declaration the Defendant did demur in Law and the principal cause of the demurrer was because that the Action might have been laid in Middlesex where the wrong began scil the Capias ad satisfaciend the Outlawry for this imagination at D. in the County of Norfolk set forth in the Declaration cannot give to the Plaintiff this Action But if divers conspire in one County for to indite one and they put the same in Execution in another County the Party aggrieved may lay his Action in which of the said two Counties he pleaseth 22 E. 4. 14. for a Conspiracy is more notorious than an imagination imaginatio est unius conspiratio plurimorum And in this Case the Deliverance of the Capias at D. in Norfolk is but accessary and the suing of the Process aforesaid at Westminster is the principal upon the part of the Plaintiff it was said that such an action might be laid in the County where the Plaintiff was wronged and the Plaintiff is not tied to lay his Action in the County where the original matter which was but conveyance to the said wrong was done A imprisoned upon a Capias ad satisfaciend in Middlesex escapes into Surrey the Action upon the escape shall be laid in Surrey Reteiner of a Servant in one County who departs in another County the Master shall lay his Action in which of the said Counties he will 15 E. 4. 18 19. 41 E. 3. 1. A Writ of Disceit was brought in the County of York and the Case was that in a Praecipe quod reddat of Land the Tenant shewed forth a Protection at Westminster the which was allowed for a year and within the year the Tenant stayed in the County of York upon his own occasions the said Writ of Disceit was holden to be well laid for there the wrong began notwithstanding that the Original i. e. the casting of the Protection was in Middlesex for the disceit is that the Tenant contrary to the pretence of the Protection continued at York for the Protection was quia Moraturus And always where the cause of the Action consists of two things whereof the one is matter of Record and the other is matter of Fact there the Action shall be laid in such County where the matter in fact may be more properly tried Vide 11 R. 2. Fitz. Action sur le Case 36 Br. Lieu 84. in the principal Case at Bar the Court was of Opinion that the Action was well brought in the County of Norfolk Another Exception was taken to the Declaration because the Plaintiff hath there set forth whereas his true name is John Bulwer by which name he now sues he was sued and outlawed by the name of John Buller and then the now Plaintiff upon that matter was never sued nor outlawed and then is not grieved by the Defendant but John Buller for here in his Declaration there is not any averment that John Bulwer and John Buller are one and the same and not divers Persons But the Exception was disallowed for the whole Court held that for As much as the Plaintiff hath declared that he by the name of John Buller was sued and Outlawed the same is an averment in Law c. and amounts to so much Another matter was objected because it appeareth in the Declaration that H. H. was dead before this Process was sued and then the Outlawry was erronious and so the Plaintiff is not at any mischief but that he may reverse the Outlawry by Error as in Conspiracy the Defendant pleads that the Indictment upon which the Plaintiff is arraigned is vitious and erroneous and so his life was never in jeopardy But as to that it was said by the Court that the erronious proceedings of the Defendant shall not give advantage to himself but because the Plaintiff was vexed by colour and reason of the Outlawry and put to his Writ of Error which cannot recompence the loss and damage by him sustained by reason of the Outlawry aforesaid it is reason that the Plaintiff have his Action wherefore Wray Chief Iustice ex assensu Sociorum gave Iudgment for the Plaintiff CXXXVIII Mich. 27 Eliz. In the Kings Bench. Upon the Statute of 23 Eliz. of Recusancy CErtain Persons were indicted upon the Statute 23 Eliz. for refusing to come to the Church and upon the same were Outlawed and now they came to the Kings Bench ready to make their submission and to conform themselves according to the said Statute and thereupon they prayed to be discharged But the Court would not receive such Submission but advised them to purchase their Pardon for the Outlawry and then to tender their Submission which they did accordingly and at another day came again and shewed to the Court their Pardon whereupon the Clerk of the Court asked them if they would conform themselves according to the said Statute who said they would wherefore they were discharged Mich. 27 Eliz. In the Kings Bench. CXXXIX Christian and Adams Case Action for words AN Action upon the Case was brought for speaking these scandalous words of the Plaintiff scil the Plaintiff did conspire the death of the Defendant it was found for the Plaintiff and moved in Arrest of Iudgment that upon the matter the Action did not lye for the bare conspiring of the death of a man
is not punishable by the Law of the Land no more than if many conspire to indict one but do not put it in Execution it is not punishable but if A. saith that B. lyeth in wait to kill him or rob him there an Action lyeth for insidiatores viarum are punishable But the Opinion of the whole Court was that because these words sound in great discredit of the Plaintiff it is reason he have his Action and so Iudgment was given for the Plaintiff Mich. 27 Eliz. In the Kings Bench. CXL The Lord Stafford and Sir Rowland Heywoods Case THe Lord Stafford brought an Action upon the Case against Sir Rowland Heywood Kt. Abatement of Writ Exception was taken to the original Writ viz. ad respondend c. Quare colloquium quoddam habebatur inter Dominum Stafford Row. Heywood de assurando Castrum to the said Lord Stafford by the said Sir Rowland c. Dictus Rowlandus Castrum illud non assuravit c. where the said Writ said cum colloquium quoddam habebatur for the cause of the Action is not colloquium habitum but the not assurance of the Castle according to the promise made super colloquium praedictum and for that cause the Writ was abated CXLI Mich. 27 Eliz. In the Kings Bench. NOte by the Court If one who is not a common Informer be barred in any Information or Action upon a penal Statute he shall pay costs notwithstanding the Preamble of the Statute of 18 Eliz. cap. 5. be for the redressing of divers Disorders in common Informers but if pars gravata be barred in such case he shall not pay costs Trin. 32 Eliz. In the Exchequer CXLII Robinsons Case GEorge Robinson Lessee for years of the Manor of Drayton Basset the Reversion to the King devised his term to his wife as long as she should keep her self a Widow with the Remainder over if she married or died and made his Wife and his Son William his Executors the said William being within age and therefore the administration was committed to the Wife alone and she only proved the Will and afterwards the Wife granted all her Interest to the said William and dyed And by Cook nothing passed by this Grant for William had the same before for every Executor hath the whole Interest Popham contrary for at the time of the Grant the Son was within age and had not administred nor proved the Will therefore in effect the wife was sole Executrix and by Egerton Solicitor if during the said Executorship by the wife one doth trespass upon the Lands the wife only shall have the Action of Trespass without naming her Co-Executor which Cook denied and he cited the Case 10 H. 7. 4 where two Executors are and the one only is possessed of goods of the Testator and a Stranger takes them our of his Possession to whom the other Executor releaseth and after the Executor out of whose possession the goods were taken brings an Action of Trespass against the Trespasser who pleads the Release of the other Executor and it was holden a good Plea for the possession of the Plaintiff was also the possession of his Companion The Case was further that Thomas Robinson in pleading shewing that G. Robinson was possessed and the same devised to his wife who granted to William Robinson who devised it to the Defendant And the other side shewed that the said Thomas granted the said term to Paramour and upon that grant they were at Issue if now against his own pleading Thomas might give in evidence that Thomas could not grant for that he had not any thing to grant for if the gift made by the wife to William was void and he had the term as Executor then he could not devise it but his devise to Thomas was void and then Thomas could not grant it and so Ne grant pas It was also shewed that the said Thomas granted the same to Paramour by Indenture if now against that Indenture he might give in evidence such special matter ut supra and if the Party shall be concluded if the Iury shall be concluded to give the Verdict Secundum veritatem facti for they are sworn to say the truth and by Popham and Egerton as well the Iurors as the Parties are bound and concluded by the confession of the Parties on the Record and here all confess that William devised to him virtute cujus he was possessed The Queens Attorney to that said That true it is that Thomas Robinson was possessed but further said that the said Thomas granted it to Paramour and so the Interest of Thomas is confessed on both sides Therefore the Iury shall not be received to say the contrary And by Manwood Chief Baron if the Parties admit a thing by not gainsaying it Jurors where bound by confession of the parties where not the Iury is not bound by it but where upon the pleading a special matter is confessed the Iury shall be bound thereby And afterwards the Issue was found against Robinson the Defendant 33 Eliz. In the Kings Bench. CXLIII Applethwait and Nertleys Case IN an Action upon the Case the Plaintiff declared that the Defendant promised in consideration that the Plaintiff at the request of the Defendant would marry his Daughter to give to the Plaintiff 40 l. and said he had married his Daughter and yet the Defendant Licet saepius requisitus would not pay it It was moved by Cook in stay of Iudgment that the Declaration is vitious because there is not set forth the place and time when the request was made for the Assumpsit being general it is by Law to be paid upon request Fenner If the promise was expresly to be paid upon request the Declaration was not good And afterwards Iudgment was given for the Plaintiff Hil. 30 Eliz. In the Common Pleas. CXLIV Wats and Kings Case SAmuel Wats Plaintiff in Ejectione firmae against W. King upon a Special Verdict it was found that W. Wallshot was seized in Fee and he with one Oliver Shuttleworth Octab. Mich. 3 4 Phil. Mary levied a Fine Sur Conusans de droit c. to John Hooper who granted and rendred by the same Fine to Oliver for a month the remainder to the said W. Wallshot and to one Anne Cook and the heirs of their bodies c. the remainder to the right heirs of the said W. Wallshot in Fee and that with Proclamation William and Anne intermarry have issue John now alive W. Wallshot 4 5 Phil. Mary levy a Fine with Proclamation to Edward Popham Esq to the use of the said Edward and his heirs W. Wallshot 18 Eliz. died Anne took to husband Richard Stephens and they in the right of the said Anne entred and by Indenture demised the said Land to Richard Hoose the Father Richard the Son and Mary his wife for the term of their lives rendring to the said Richard Stephens and Anne his wife and to the heirs of the body
Assumpsit MEgot brought an Action upon the Case against Broughton and Davy upon Assumpsit and it was found by Nisi Prius for the Plaintiff and afterwards before the day in Bank Broughton dyed and after Iudgment given Davy the other Defendant brought a Writ of Error in the said Court scil in the Kings Bench where Iudgment was given and assigned an Error in fact scil the death of Broughton depending the Writ vide 2 R. 3. 21. and this Case is not like to Trespass for Trespass done by many are several Trespasses but every Assumpsit is joynt If the Court may reverse their own Judgment and if the Court upon this matter might reverse their own Iudgment was the Question the Case was not resolved but adjourned CLII. Trin. 31 Eliz. In the Common Pleas. IT was found by Office that J. S. held by the Queen and dyed without Heir whereas in truth he had an Heir scil A. S. who leased the Lands for an hundred years and afterwards traversed the Office Office trove and had an Ouster le mayne le Roy. Now the matter was moved in the Common Pleas by Fenner in behalf of the Sheriffs of London before whom the matter depended to whom it was said by Anderson Chief Iustice Conveyance by the Heir upon Entrusion That where the King is entituled by an Office to a Chattel as to a wardship c. there if the Heir without any intrusion bargain and sell levy a Fine or lease for years during the possession of the King it is void against the King but shall bind the Heir but where the King is intituled to the Fee-simple as in this Case such a Conveyance is meerly void Hil. 31 Eliz. In the Kings Bench. CLIII Samuel Starkeys Case HOmine replegiando by Samuel Starkey to the Sheriffs of London Who returned that the said Starkey was indicted to be de mala fama deceptione Domini Regis with divers other general words and namely that he had deceived J. S. a Clothier and that he was a common Cozener and thereof being found guilty Iudgment was given by the Mayor and Recorder That he should be disfranchized of his Freedom and should be fined and imprisoned for a year and further said that he had not paid his Fine nor the year expired Cook Such Return hath not been seen and it is directly against the Statute of Magna Charta Wray Chief Iustice gave a Rule that the Sheriffs should make their Return at their perils before such a day Hil. 31 Eliz. In the Kings Bench. CLIV. Bushy and Milfeilds Case IN Error brought by Bushy and Milfeild It was assigned for Error that where in the first Action the Iury gave four pence Costs and the Court gave de incremento three and twenty shillings that in the Iudgment the four pence was omitted Error It was the Opinion of the Court That for that Cause the Iudgment should be reversed although it be for the advantage of the Party so where the Iudgment is quod sit in misericordia where it ought to be Capiatur Hil. 29 Eliz. In the Common Pleas. CLV Bingham and Squires Case BIngham brought Debt upon an Obligation against Squire Obligation 3 Leon. 151. The Condition was If Squire did procure a Grant of the next Avoidance of the Archdeaconry of Stafford to be made to the said Bingham so as the said Bingham at the said next Avoidance may present that then c. The Case was That afterwards by the means and endeavour of Squire the Grant of the next Avoidance was made to Bingham but before the next Avoidance the present Archdeacon was created a Bishop so as the presentment of that Avoidance belonged to the Queen It was adjudged in this Case that the Condition was not performed and that by reason of these words scil So that Bingham may present And afterwards Iudgment was given that the Plaintiff should recover Hil. 26 Eliz. In the Common Pleas. CLVI Mansors Case A. Man bound himself in an Obligation to make an Assurance of Lands the first day of Jan. and the last day of December he to whom the Assurance was to be made scil the Obligee the said last day before Sun-setting came to the Obligor with a Deed ready to be sealed and prayed him to seal it who said to him that he was a man unlearned and said he would shew the same to his Counsel and then he would seal it And if the Obligation was forfeited or not because he did not seal it presently was the question And Fenner argued that it was not for when a thing is to be done upon request then he who makes the request ought to give sufficient and convenient time to perform the Condition I agree That where the Condition is absolute there if the Condition be not performed he shall not be excused by the default of another As if a man be bounden to marry A.S. and she will not marry him or to enfeoff J. S. and he refuseth as 3 H. 6. is the Obligation is forfeited Yet in these Cases if the Obligee himself be the cause that J. S. will not take the Feoffment or he will not marry A. S. the Obligation is not forfeited So in our Case for by his late request it is impossible for me to perform the condition for before my Counsel shall have perused it the time will be past If a man be bound to enfeoff one of Lands in Barwick request ought to be made so long time before that after that he may go to Barwick So if one be bounden to pay 1000 l. to J.S. he ought to make his Tender so long time before the last instant of the last day that the mony may conveniently be told This Case was in question A man made a Feoffment of the Manor of D. with the Appurtenances to which an Advowson was appendant and covenanted that the Manor upon request should be discharged of all manner of Incumbrances and before that the Feoffor had granted the next Avoidance to J. S. the Incumbent died the Clark of the Grantee was instituted and inducted the Feoffee requested the Feoffor to discharge the Incumbrance The opinion of many Sages of the Law was that he had not made his request within convenient time So if a man be bounden to infeoff the Obligee to have and to hold to him and his Heirs as long as J. S. shall have Issue of his Body If the Obligee demand Assurance after the death of J. S. without Issue yet the Obligation is not forfeited In 22 E. 4. if Lessee for the life of another continues possession for two or three weeks after the death of Cestuy que use where he could not have more speedy notice of his death he shall not be a Trespassor In 15 Eliz it was holden in Wottons Case That where he was bound to make a Feoffment to J. B. and J. B. came to him in Westminster Hall and tendred to him a Writing
neither at the time of the Will nor at the time of her death she had nothing of the said Manor of Tremington but the said Rent of one hundred thirty and six pounds Also it may be taken that she who devised was ignorant of the Law and conceived that it was a Manor when she had Rents and Services out thereof notwithstanding that those who are learned in the Law know that a Manor could not pass without there was two Suitors at the least 21 R. 2. Devise 27. Lands are devised to one for life the remainder Ecclesiae Sancti Andreae in Holborn there it is holden in an Ex gravi Querela that the Parson should recover for otherwise the Devise should be void if the Parson should not have the Lands and in Wills shall subserve and give place to the intent of the Party and therefore if a man deviseth that his Lands shall be sold for the payment of his debts his Executors shall sell them and to that intent the naming of them Executors is sufficient Plow Com. 523. in Weldens Case it is vouched to be adjudged that if one after the Statute of 27 H. 8. deviseth that his Feoffees shall be seized to the use of A. in Fee that it was a good Devise of the Lands to A. and yet then he had not nor could have any Feoffees c. But the Party was ignorant of the Statute and his intent to pass the Land was apparent in that Case the words were as much impertinent to the matter as in our Case for there he had not any Feoffees as here she hath not any Manor Br. recites That in 38 H. 8. it was holden by Baldwin Shelly and Morgan that if a man who had Feoffees to his use would after the Statute of 27 H. 8. that his Feoffees should make an Estate to J. S. that the Land should pass to J. S. 26 H. 8. Feoffments Faits 12. Land cannot pass by the Deed of an House for it cannot be parcel of an House but an Acre of Land may be given by the name of a Carve and a Carve of Land by the name of a Manor and yet a Carve can be no more a Manor than this rent yea Rents and Services more resemble a Manor than a Carve of Land. It cannot be intended that her Will was here to pass the Manor it self which was not in her but in another Also she by four years before had the rent and therefore it shall be intended that it was her meaning to pass the same which she her self received and no other thing and although in the Devise the rent be specially named and the Manor also yet the same shall not alter the Case for if a man grant the Reversion upon an Estate for life and by the said Deed grants the Land and the Tenant attorns and the Grantee deviseth all his Land the Reversion shall pass without all question If a man grant the Advowson of D. and in the same Deed the Church and Rectory of D. and the Grantee deviseth the Rectory of D. the Advowson shall pass In Adams Case Plow Com. 195. a man leaseth his Capital Messuage rendring rent there the question is If the Reversion or Rent shall pass It was adjudged That all which he had passed As to that that it cannot be levied out of the Rent for that no place is therein of Distress I say that she did not know whether a lesser rent might be paid out of a greater rent and 1 H 4. Multure was granted reserving rent and the Grant was good The words of the Will are All which Manors Lands and Tenements c. she devised to the Lord Mountjoy and these words expound her meaning for although the word Rent be not within the word Manor yet the words Lands and Tenements do comprehend it and words subsequent in Wills may express the Premisses As 16 Eliz. Dyer 333. Chapman seized in Fee of two Houses having three Brothers devised the House in which A. inhabited to his three Brethren and A. to dwell there and they not to raise the rent and devised the House in which B. his Brother dwelt to him and that he pay to C. his Brother 3 l. for to find him at School and otherwise to remain to the House Proviso that the Houses shall not be sold but shall go to the next of the Name and Blood which are Male and dyed B. his brother dyed without Issue the eldest of the two middle brothers entred and had Issue a Son and dyed It was a Question If the Son or the middle brother should have the House And it was holden that the Son of the eldest should have it in Tail which Exposition was by reason of the words in the Proviso that it should not be Sold and that it should go to the Heirs Males Shuttleworth The rent shall not pass by the Devise for the construction of a Will ought to be according to the words or according to the intent collected out of the words and not by a thing out of the Will for then a stranger shall be the maker of the Will of another And 19 H. 8. if a Will be doubtful it ought to be expounded for the Heir at the Common Law. And if the rent ought to pass it ought to have apt words and not the name of a Manor And thereupon he put the Case that where one deviseth certain Lands to one and afterwards his Goods Leases and other things to another All his Goods and Terms shall pass but not his Lands for that there wanteth apt words to pass them for the word other things shall not pass them and this set order ought to be observed for the avoiding of confusion And the Rent and Services shall not pass for the two parts admitting the words sufficient for they cannot be divided But Periam said That the rent might be divided Anderson said That it should be but a Rent-seck Periam said it was a Rent distrainable of Common Right but Anderson doubted of it but they all agreed that it might be divided but there should not be two Tenures Fenner The Rent should pass by the Devise of the Manor for there is do difference betwixt a Manor and a Seigniory in gross amongst Lay-men and then their intent shall be taken although it was not written by apt words for in Grants a Reversion shall be taken for a Remainder and à Fortiori a Devise And 7 E. 3. a Manor shall pass by the name of a Knights Fee and 19 H. 8. a Wood shall pass by the name of Land and 38 E. 3. by grant of totam terram which A. held in dower the Reversion shall pass Afterwards in Mich. Term the Plaintiff discontinued his Ation And Periam told me I being at his House that the Opinion of the Court was against the Plaintiff and if it had not been discontinued they would have given Iudgment accordingly Now this was the intent of the Lord Mountjoy The
the Husband dyed the Wife recovered and entred and surrendred to the Lord and by Wray the Stranger to whom the Lord granted it after the Surrender by the Husband should have the Land and not the Lord himself against his own Grant. Pasc 28 Eliz. In the Common Pleas. CLXXXVII Chomley and Conges Case CHomley brought Trespass of Assault and Battery made to his Wife against Cony and upon the general Issue it was found for the Plaintiff It was moved in Arrest of Iudgment that the Action was not well brought for the same being an Action of Trespass done to the person of the wife the Writ ought to be brought and prosecuted in both their Names for now if Iudgment be given for the Husband and he dye before Execution the Wife to whom the wrong was done should not have Execution but the Executors of the Husband and afterwards upon advice the Plaintiff had Iudgment to recover Vide Cont. 9 E. 4. 51. 38 H. 6. 25. Pasc 28 Eliz. In the Common Pleas. CLXXXVIII Blithe and Colegates Case Vide this Case Reported by Cook 2 Part of his Reports REplevin by Blithe and Colegate who made Conusans as Bayliff to Roger Beckwith Son and Heir of Elizabeth Beckwith for damage feasant and upon a Special Verdict the Case was That the said Eliz. was seized and took to Husband Christopher Kenne and by an Indenture made by the said Eliz. without the assent of her said Husband by the name of Elizabeth Beckwith bearing date 14 March 14 Eliz. declareth the uses of a Fine to be levied c. 1. To the use of the said Elizabeth for life without impeachment of Waste and after to the use of the Conusees for their lives and after to the use of the said Elizabeth and her Heirs And that afterwards the said Christopher Kenne before any Fine levied in Feb. 20 Eliz. by Indenture between himself and the said Elizabeth his Wife of the one part and R. W. of the other part without the consent of the said Elizabeth declared that the uses of the said Fine so to be levied should be to the use of the said Christopher and Elizabeth for life c. And afterwards the said Fine was levied by the Husband and Wife and the only Question upon the matter was if the uses declared by the Wife or the uses declared by the Husband should stand It was argued by Shuttleworth Serjeant that the uses declared by the Husband should stand and that the Declaration by the Wife should be rejected for a Feme Covert is not sui juris but is sub potestate vâ—ri And therefore â—7 Ass 17. a Feme Covert without her Husband acknowledgeth a Fine the Husband shall avoid it and as to the Declaration of the uses it is no other thing but the shewing of the meaning of the Parties to the Fine how and in what manner the Land of which the Fine is levied shall be disposed of by the Fine but such a power cannot be in a Feme Covert For if an Infant levy a Fine and declare the uses by Indenture the Declaration is void and the Fine shall be to his own use and that was adjudged in the Court of Wards The same Law in case of a man of Non sanae memoriae and if an Ideot levy a Fine and declare uses upon it the Declaration is void and the Fine shall be to his own use and that Case also hath been adjudged in the Court of Wards And by intendment of the Law every Wife is at the disposition of her Husband as in a Praecipe quod reddat against the Husband and Wife the Wife makes default it shall be accounted the default of the Husband for the Law intends that the Wife is ameanable by the Husband 21 Ass The Husband seized in the right of the Wife made a Feoffment in Fee and in making of Livery his Wife interrupts him it was not any interruption or impediment quo minus the Livery operetur for cui ipsa in vita contradicere non potuit c. So in a Praecipe quod reddat against the Husband and Wife the Husband pleads one plea and the Wife another the Plea of the Husband shall be admitted 33 H 6. 43. 89 Ass 1 And the Husband may in some case prejudice his Wife in point of Inheritance as by Cession Vide E. 4 2. Fitz. Cui in vita 22. And he argued much upon the ground where it shall be said the folly of the Wife to take such a Husband If the Husband be seized in the right of his Wife they sell the said Land and for Assurance levy a Fine to the Vendee now the Husband alone shall have an Action of Debt for the mony upon the Sale which proves that it is the Sale of the Husband alone which see 48 E. 3. 18. Fenner Serjeant contrary And first he confessed that the Declaration by the Wife is utterly void and also the Declaration by the Husband and therefore when the Husband and Wife levy a Fine the Conusee in judgment of Law is in by the Wife and not by the Husband so as the Husband as to the right is a Stranger to the Land and to the Estate which passeth by the Fine although he be Party to the Fine for that is not for any Interest which he hath in the Land but for the conformity of Law which disables a Wife to levy a Fine without her Husband and therefore it is not any reason that the husband alone shall be received to declare the uses for he is no Proprietor of the Land in right especially forasmuch as in account of the Law the whole passeth from the Wife And the Law in divers Cases frames its Iudgment according to the possession of the Wife and that in acts done by the Husband 14 H. 8. 6 where A seized of a Rent-charge in Fee issuing out of the Land of the Wife A releases the Rent to the Husband and his Heirs the same shall enure to the Wife Vide 38 E. 3. 10. From such Cases the Law respects the nature of the Seisin and the manner of the possession And as to the Case vouched out of Dyer 12 Eliz. where the Husband and Wife were seized of a Messuage to them and to the Heirs of the Husband they suffer a common Recovery and the Husband alone declareth the uses the same is good for in that Case the Fee was in the Husband and always he who hath the Fee ought and may declare the use if all who have interest will not joyn and therefore if Lands be given to two and to the Heirs of one of them if they both joyn in a Fine he which hath the Fee may by himself declare the uses But if there be two Ioyntenants in Fee they both ought to joyn in the Declaration of the uses or otherwise make several Declarations of their several Moieties So if Cestuy que use and his Feoffees joyn in a Fine and make
several Declarations the Declaration of the Feoffees shall stand for that the Land passeth from them So if Cestuy que use and his Feoffees make a Feoffment in Fee 21 H. 7. And to that purpose he put the Case reported by Plowden 15 Eliz. 464. Husband and Wife seized in right of the Wife they levy a Fine sur Conusans de droit come ceo c and the Conusee renders the Land to the Husband and Wife and to the Heirs of the Husband the Husband dieth the Wife discontinues the Land the same is not within the penalty of the Statute of 11 H. 7. For notwithstanding the Wife be now in by the purchase of her Husband yet that purchase is not within the meaning of that Statute because the Law respects the original Seisin which was in the Wife and so it was adjudged Vide Term. Mich. 30 Eliz. Pasc 25 Eliz. In the Kings Bench. CLXXXVIII The Earl of Northumberlands Case THe Earl of Northumberland brought Debt for Arrearages upon Account The Defendant shewed that before the said Account the Plaintiff of his own wrong imprisoned the Defendant and he so imprisoned assigned Auditors and so the Account was made by Duress It was holden a good Plea by the Iustices of both Benches Pasc 25 Eliz. In the Common Pleas. CLXXXIX Clark and Kemptons Case IN Ejectione firmae the Case was 1 Leon. 141. Smith and Burds Case Co. 10 Rep. 129. b. Payment of Rents The Defendant leased for years to the Plaintiff rendring rent payable at Michaelmas and the Annunciation or fourteen days after Et si contingat the said rent to be behind post aliquod terminorum vel festorum praedictorum in quo solvi debet by the space of 14 days post aliquod festum praedict that then c. It was adjudged in this Case that the Lessee had fourteen days after the said fourteen days mentioned in the Reservation without danger of the penalty of the condition and the last words post aliquod Festorum praedict for the contrariety shall be rejected Pasc 31 Eliz. In the Kings Bench. CXC Harris and Whitings Case DEbt upon an Obligation by Harris and his Wife as Executors of Giles Capel against Whiting the Condition was that if the Obligor before the Feast of Pentecost pay such a sum so as the Obligee be ready at the payment thereof to enter into a Bond of 200 l. with Sureties to purchase such Land c. that then c. The Defendant pleaded that he was ready to pay c. and that the Obligee was not ready to enter into such Bond ut supra The Plaintiff Replicando said that he was ready absque hoc that the Defendant was ready to pay It was moved that the Traverse was not good for the first Act here was to be done by the Obligee viz. to enter into the Bond ut supra for otherwise the Obligor had not any means to compel the Obligee to enter into it But by Wray Chief Iustice the first Act is to be done by the Obligor and at the Payment the other party is to do that which to him belongs to do Trin. 29 Eliz. In the Kings Bench. CXC Ralph Morris Case RAlph Morris and his wife libelled against one in the Ecclesiastical Court for that the Defendant called the Wife of the Plaintiff Veneficam Sortilegam Incantatricem Daemoniorum And now came the Defendant into the Kings Bench surmising that the matter of the Libel is determinable by the Law of the Land and thereupon prayed a Prohibition and it was holden that although the Offence of Witchcraft be in some cases punishable in our Law yet the same doth not take away the Iurisdiction of the Ecclesiastical Law and to call one Witch generally an Action doth not lye in our Law as it hath been adjudged But to say He hath bewitched such a one an Action doth lye And by Wray Witchcraft which is made Felony by any Statute is not punishable by the Ecclesiastical Law but in case of Slander upon such a Witchcraft such slanderous words are of Ecclesiastical Iurisdiction and for Witchcraft which is not Felony the Ecclesiastical Court shall punish the party and afterwards in the principal Case a Consultation was awarded Trin. 29 Eliz. In the Common Pleas. CXCI. Tyrrels Case TYrrel Warden of the Fleet of an Estate of Inheritance let the said Office for years and afterwards is condemned in London in many Actions of Debt and is there detained in Execution for the sum of fourteen hundred pounds and now one Iden sued the said Tyrrel in the Common Pleas in an Action of debt for 50 l. and had Iudgment to recover and thereupon the said Tyrrel is brought to the Bar and Iden prays he be committed to the Fleet in Execution for his Debt It was first moved by the Court if there was not a practize between Iden and Tyrrel for to deliver him out of the Compter in London to a more easie Prison c. But it was moved by Fenner who was of counsel with the Creditors in London that it should be very dangerous to commit Tyrrel Prisoner to the Fleet because he had the Inheritance of Custody of the said Prison and if the Lessee under whose guard he shall be surrenders his Interest or if he doth not pay his Rent so as in default thereof Tyrrel re-enter or if that the Term expire before that the Creditors of Tyrrel be satisfied then here is an Escape and discharge of Execution and we are without remedy But as to that it was said by Rhodes Windham and Anderson That if the Lessee surrender it shall be an Escape in him and he shall answer for the same Afterwards by Order of the Court Tyrrel was committed to the Fleet in Execution and the Sheriffs of London discharged Mich. 29 Eliz. In the Common Pleas. CXCII Owen and Morgans Case THe Case between Owen and Morgan which was agreed Trin. 29 Eliz. was this Richard Owen was seized of Ante 26. Post 222. c. and levied a Fine to Owen and Morgan and to the Heirs of Owen and they granted and rendred the said Land to the said Richard and Lettice his Wife not Party to the said Writ of Covenant nor to the Conusans and to the Heirs of the body of the said Richard the Remainder over to the said Owen now Demandant in Fee The Husband alone without the Wife suffered a Common Recovery the Wife died the Husband died without Issue If this Recovery by the Husband only should bind the Remainder was the Question And now the Lord Anderson declared openly in Court for himself and in the name of his Companions the other Iustices that the Demandant ought to have Iudgment that the said Recovery should not bind the Remainder But first he spake to the Fine it self for the Wife is not named in the Writ of Covenant nor the Conusans but in the Render the Land is rendred to the Husband and Wife and the Heirs
that the same is not any Claim to avoid the said Fine upon the Statute of 4 H. 7. Pasc 29 Eliz. CCXIII. The Queen and Sir John Savells Case A Bill of Intrusion was exhibited by the Queen in the Exchequer against Sir Robert Savell Kt. who pleaded in bar her pretence and upon Issue joyned the matter was tryed by the Records and thereupon Iudgment was given for the Queen and an Injunction for the Possession awarded accordingly Sir Robert dyed and now Sir John Savell Son and Heir of the said Sir Robert brought a Writ of Error in the Exchequer Chamber upon the Statute of 31 E. 3. The perclose of which Writ was ad grave damnum ipsius Johannis Savell filii haeredis dicti Roberti It was objected against the Writ That no Writ of Error upon the said Statute of 31 E 3. lay upon such proceedings which at the time of the making of the said Statute was not in force For tryal of an Issue in the Exchequer by Record was enacted by the Statute of 33 H. 8. and the Statute of 31 E. 3. extended to give a Writ of Error upon such Iudgments which were given by Verdict Confession or Demurrer and not upon tryal by Records which was given but of late times But to this objection it was answered by the Lord Chancellor and the other Iudges That long time before the said Stat. of 33 H. 8. Issues joyned in the Exchequer have been tryed by the Records and he when he was the Queens Solicitor had seen divers Presidents to that intent in the time of Hen. 6. Mich. 29 Eliz. In the Kings Bench. CCXIV. Houtiers Case DEbt was brought upon a Concessit Solvere according to the Law of Merchants and Custom of the City of Bristol Exception was taken because he did not mention the Custom in his Declaration And because in the end of his Plea he saith Protestando se sequi querelam secundum Consuetudinem Civitatis Bristol the Plea was awarded good and the Exception disallowed CCXV Mich. 29 Eliz. In the Kings Bench. A Man was indicted upon the Statute of 4 Eliz. of Perjury in a Court-Leet And the Indictment was That he at the Leet of the Earl of Bath super Sacramentum suum coram Senescallo c. Exception was taken to it because it saith at the Leet of the Earl of Bath whereas every Leet is the Kings Court although that another hath the profit or commodity of it And it was said that the Steward of a Leet is not an Officer of Record and also his Oath was If he had done a Rescous or not with which he was charged And by Drew It is not within the Statute for it ought to be either before a Iury in giving Evidence or upon some Article But the Iustices in that were of opinion against him Mich. 25 Eliz. In the Common Pleas. CCXVI Howen and Gerrards Case IT was adjudged in this Case That Partition of Lands made by the Bayliff of a Franchize was not good within the Statute of 31 H. 8. of Partition but it ought to be done by the Sheriff himself Mich. 28 Eliz. In the Kings Bench. CCXVII Strangder and Burnells Case AN Action upon the Case of Trover of Goods and converting them to his own use in Ipswich The Defendant pleaded That the Goods came to his hands in Dunwich in the same County and that the Plaintiff gave to him all Goods which came to his hands in Dunwich absque hoc that he is guilty of any Trover or Conversion in Ipswich It was holden to be a good manner of pleading by reason of the special Iustification Vide 27 H. 6. But where a Iustification is general the County is not traversable at this day Vide 19 H. 6 7. 62 Eliz. In the Common Pleas. CCXVIII Hodges Case IF one enfeoffeth his Son and Heir apparent and no use is expressed nor Consideration it was said It should be to the use of the Son and so hath the Law been taken and so it is in Case of a Covenant to stand seized to the use of the Son. The Court said that there was a difference betwixt the Cases or in the Case of Feoffment they seemed to be of Opinion that the Deed should have no operation but in the other Case it may be otherwise upon construction of the Result of the Vse to the Father 28 Eliz. In the Kings Bench. CCXIX. Mark Stewards Case AN Assumpsit before Action brought may be discharged by word otherwise after Action brought Mich. 30 Eliz. In the Common Pleas. CCXX Verney and Verneys Case IN Dower by Verney against Verney The Case was That Lessee for years by Fine to whom the Land was rendred by Fine for years upon the Default of the Tenant prayed to be received and it was Counter-pleaded because the Statute of Gloucester gave no Receit but where the Termor might have Recovery by Writ of Covenant but where the Lease as in our Case doth commence by render by Fine there cannot be any recovery by Covenant But it was the Opinion of the Lord Anderson That such a Termor shall be received CCXXI Mich. 32 Eliz. In the Exchequer Chamber IN the Exchequer Chamber before the Chancellor Treasurer c. A Writ of Error was cast upon the Statute of 31 E. 3. cap. 12. It was moved by Egerton Solicitor to the Queen for the Defendant That the Writ of Error ought to abate for false Latine for the Writ is Pertenet where it ought to be Pertinet But by Manwood Anderson and Wray The same is no Exception but notwithstanding that the Court may proceed to the Examination of the Errors For the same is not properly a Writ but rather a Commission to the Chancellor Treasurer c. and therefore it was ordered that the Party should proceed to the assignment of the Errors Mich. 31 Eliz. In the Exchequer CCXXII The Queens Fanes and the Archbishop of Canterburies Case THe Queen brought a Quare Impedit against Fane 1 Leon. 201. the Archbishop of Canterbury the Bishop of Chichester and Hudson Incumbent and counted that John Ashburnham was seized of the Advowson of Burwash and was Outlawed in an Action of Debt during which Outlawry in force the Church voided by which it did appertain to the Queen to present The Archbishop and Bishop pleaded that they claimed nothing but as Metropolitan and Ordinary Fane pleaded That King E. 4. ex gratia sua speciali c. and in consideration fidelis servic c. granted to the Lord Hastings the Castle and Barony of Hastings and Hundred c. Et quod ipse haberet omnia Bona Catal. Tenentium residentium non residentium aliorum resident quorumcunque hominum de in Castro Baronia c. seu infra eadem pro numero debit c. tam ad sectam Regis c. quam c. utlagatorum Et quod ipsi liceret per se vel ministros suos c. and from him derived to
upon all that matter it was holden that the said Francis was inheritable 19 Eliz. In the Kings Bench. CCXXIV. Grey and Edwards Case IN an Attaint by Grey against Edwards it was holden by Wray Gaudy and Jeoffries That if one makes a Deed and that by these words Dedi conveyeth Lands to another without any words of Bargain and Sale and that for a sum of mony If the Deed be debito modo enrolled the use shall pass as well as if the words of Bargain and Sale had been in the Deed because that a sum of mony was paid for the Land. 19 Eliz. In the Kings Bench. CCXXV. Webbs Case IN Action upon the Case the Plaintiff declared That whereas Cobham was indebted to J. S. and J. S. to the Defendant the said Defendant in consideration that the Plaintiff would procure the said J. S. to make a Letter of Attorney to the Defendant to sue the said Cobham promised to pay and give to the Plaintiff 10 l. It was objected Here was not any Consideration for to induce the Assumpsit for the Defendant by this Letter of Attorney gets nothing but his Labour and Travel But the Exception was not allowed of For in this Case not so much the Profit which redounds to the Defendant as the Labour of the Plaintiff in procuring of the Letter of Attorney is to be respected Temps Roign Eliz. CCXXVI Heggor and Felstons Case IN Trespass the Case was A Copyholder surrendred to the use of his Wife for Life and after to the use of his Daughter in Fee the Wife is admitted It was holden that the Daughter after the death of the Wife Copyholder Surrender by Attorney might without any admittance surrender the same Land for the first admittance was sufficient And Manwood said that Roper was Steward of a Mannor and one of the Copyholders of the said Manor being in Ireland he made a Commission to one to receive a Surrender from him there and it was holden a good Surrender CCXXVII Trin. 32 Eliz. In the Exchequer NOte by Manwood chief Baron for a Rule to all Counsellors That they do not advise any Collectors of Subsidies or Fifteens to exhibite any Bills in the Exchequer Chamber for the not payment of Subsidies for such Bills shall not be allowed hereafter because they have remedy by Distress Also it was That if any be assessed for the Fifteens which he ought to pay or if two Towns ought to pay together and one Town be taxed more than it ought to be or hath been accustomed those who are grieved by such Assessment may have a Commission out of the Exchequer which is called ad aequaliter taxand and that was put in practice in a case between Bartace and Hind where one of these was Lord of Little Marlow and the other of Hedsore It was also holden That Fifteens are to be levied of Goods and Chattels properly and a Township is sometimes richer than at other times and therefore it is not reasonable they pay their Fifteens always according to the same proportion But Clark Baron held where the Custom hath always been that the Fifteens shall be taxed according to the quantity of Acres then the rate and proportion shall be always on whosoever holdeth the Land. And as to the Commission ad aequaliter taxand Manwood and Fanshaw said That they could shew twenty Presidents of it Trin. 30 Eliz. In the Kings Bench. CCXXVIII Harris Case THe Case of Harris of the Middle Temple was Tenant in tail in remainder upon an Estate for life is attainted of Felony 2 Leon. 122. Hughs Qu. 13. 3 Leon. 185. 1 Inst â— If he hath forfeited his Remainder during his Life Popham Attorney General He hath forfeited it to the Queen for after his attainder the Law will not suffer it to remain in him and it cannot vest in the Lord of whom the Land is holden for the person attainted being Tenant in tail in remainder was not very Tenant to the Lord therefore if in none of them the Queen shall have it and the Law shall punish the offence so sharply that it suffer nothing to remain in him So Tenant in Dower and by the Courtesie And it is a Maxim What a man hath in his own right he may forfeit but it is not a certain rule Whatsoever a man may grant he may forfeit as Guardian in Socage and Executors may grant that which they cannot forfeit 2 Leon. 126. A man seized in the right of his wife is attainted of Felony the Queen shall have but the profits of the Land during the life of the Husband Vide Register 292. Where the husband seized in the right of his wife of certain Lands is outlawed of Felony the King seizeth and hath the Lands during the life of the husband after the death of whom issued a Diem clausit extremum Vide F.N.B. 254. D. Cook Tenant in tail in possession is attainted of Felony the King shall have but the profits but as our Case is being Tenant in tail in remainder upon an Estate for Life nothing shall be forfeited during his life and after the death of the Tenant in tail so attainted of Felony the Issue in tail may enter for the King hath not the Freehold for if the King had the Freehold the Issue in tail could not enter without Office vide Old Natura Brevium in the Writ of Escheat That the King shall have only the profits At another day it was argued by Egerton Solicitor That the Queen hath the Interest of him in the Remainder during his life for a man so attainted cannot be receiv'd against the Queen and if a man attainted of Felony purchaseth Land and dyeth his wife shall not be endowed of it And he said that this Remainder vested in the Queen without Office then not pardoned by 23 Eliz. It hath been objected That if the Remainder be in the Queen without Office by this attainder of Felony by the Common Law then also in case of attainder for Treason and then what need was there that the Statute of 33 H. 8. should be made which enacteth That in cases of Treason it shall vest in the King without Office. As to that I answer That that Statute was made in affirmance of the Common Law and also for other things given to the King by the Statute which were not given by the Common Law as Conditions Rights c. So as the King might grant over without Office and also the Subject have a Petition of Right before Office which was not at the common Law 33 H. 8. 20. in the saving in the end of it And as to the Statute of 18 H. 6 cap. 6. such things were in the King without Offce for by the common Law before Office the King might grant them but he could not grant them if they were not vested in him and the said Statute was made to such intent that the Queen should be fully informed of her Title c. by
A. who is admitted he shall not hold the Land charged and so it was adjudged in the Court of Common Pleas. CCXXXVII Mich. 23 Eliz. In the Common Pleas. IT was holden by all the Iustices in the Common Pleas That the Queen might be put out of possession of an Advowson by two Vsurpations and shall be put to her Writ of Right of Advowson as a common person shall be for it is a thing transitory and if the Queen after such Vsurpations grant the Advowson the Grant is void and so it was adjudged CCXXXVIII Mich. 23 Eliz. In the Common Pleas. THe Case was Tenant in tail the remainder over to another in Fee makes a Lease for life according to the Statute and afterwards dyes without Issue and afterwards he in the Remainder grants his Remainder by Fine before any Entry and by Fenner the Conusee cannot now enter upon Tenant for life nor avoid his lease for by the Livery to the Tenant for life a Freehold passeth which cannot be avoided without an Entry As if a Parson makes a lease for life rendring rent and dyeth the Successor accepteth the rent now the lease is affirmed vide 18 E. 4. 25. and then when before any Entry he in the remainder grants his remainder the Grantee shall have it but as a remainder and so the Estate of the Tenant for life which before was voidable is now made good and so it was holden by Windham and Periam But by Mead and Dyer by the death of Tenant in tail without Issue the lease for life is become void for the Estate out of which the Estate for life is derived is determined by the dying without Issue Ergo c. Vide 21 H. 7. 12. A lease for life is made upon condition That if the Lessor pay to the Lessee at such a day 20 l. that his Estate shall cease now by the performance of the Condition the Estate is determined without any Entry CCXXXIX 32 H. 8. In the Common Pleas. NOte by all the Iustices of the Common Pleas That if a man holds of the King in chief by Knights Service and also holds of another Lord by Knights Service and dyeth his heir within age and the King seizeth the Wardship of the Body and Land and afterwards the heir cometh of full age and before Livery sued the other Lord grants over his Seignory to another and the heir Attorns It is a good Attornment and also Seisin of the Services had by such Lord by the hands of such an heir before Livery sued is good enough and shall bind him afterwards in an Avowry c. Temps H. 8. Vide 31 H. 8. Rot. 420. CCXL Sir William Hollis Case SIr William Hollis brought a Quare Impedit against the Bishop of Coventry Godfrey Fuliamb Kt. and William Waltham Clark The Case was Sir Ralph Langford Kt. was seized of the Manor of D. to which the Advowson was appendant and presented to the same Church one A. his Clark who was admitted c. And afterwards the said Sir Ralph granted the next Avoidance of the same Church to Sir Godfrey Fuliamb James Fuliamb George Fuliamb and William Walton eorum uni conjunctim divisim afterward the said Sir Ralph granted by fine the said Manor with the Advowson to Sir William Hollis in Fee the Church became void the said Sir Godfrey Fuliamb presented the said Waltham his Clark who was admitted c. And upon Argument at the Bar and Bench It was adjudged against the Plaintiff and the Presentment of Sir Godfrey sole without the others was good Notwithstanding also that Waltham the Presentee was one of the Grantees of the next Avoidance Tr. 31 H. 8. Rott 420. Vide 21 E. 4. 66. 35 H. 6. 62. See this Case lately Reported in Sir George Mores Reports by the name of Sir Godfrey Fuliambs Case CCXLI. Temps Roign Eliz. NOte by Hind and Hales the Kings Attorney Iustices of Assize in the County of Essex in the Case of the Bishop of London and one Heron Keeper of Cronden Park if the Keeper of my Park or any of his Servants without his assent of their own heads and without my commandment kill my Deers within the said Park being within his keeping or abateth or pulleth down any house within the Park or Barn for to lay Hay for the Deer there or cutteth any Trees Wood or Vnderwoods there growing and sells the same or gives it to another that in all these cases the Keeper of the Park shall forfeit his Office And it was agreed by them That such a Keeper hath not any estate or possession in the Park or in the Lodge but the possession remains always in the Owner of the Soil of the Park and the Keeper hath but the occupation and keeping and the surveying of the same for such a Keeper cannot justifie the holding of the Lodge with force in a Writ brought upon the Statute of 8 H. 6. by the Owner of the Park but it was agreed that he who hath the inheritance in such an Office shall not forfeit his Office for the causes aforesaid Hil. 29 Eliz. In the Common Pleas. CCXLII. Fitz and Pierces Case IN Ejectione firmae by Fitz against Pierce Pierce was outlawed and now came and shewed by way of Plea that the outlawry was erronious in this videlicet ad Com' meum tent ' 30 Jan. 29 Eliz. whereas the said day was Dies Dominicus and so there was no County Court It was the Opinion of Windham that the same matter did well lye in Plea for it is matter apparent within the Record as in the case of Brecket and Fish Plowd Com. 266. Rhodes and Periam were of a contrary Opinion and said the case cited is not like to the case at Bar for there it appeareth to the Court as Iudges when every Term beginneth and endeth but it is otherwise in our case si 30 die Januarii be dies Dominicus necne for it shall be tryed by the Country c. Trin. 32 Eliz. In the Kings Bench. CCXLIII Keenes Case RAlph Keene Vicar of B. was Indicted for stopping quandam viam valde necessariam Indictment Nusance for all the Kings Subjects there passing Exception was taken to it because it wanted the word Regiam and the word necessariam doth not imply any matter for a Foot way is necessary Addition Also here the Party hath not any addition It is R. K. but it is not said Clarke and for these causes the Party was discharged Trin. 32 Eliz. In the Kings Bench. CCXLIV Peake and Pollorts Case ACtion upon the Case by Peake against Pollort Words upon these words Thou art a malicious and sedicious man and movest the Queens Subjects to Sedition It was the Opinion of the Court that the words were not actionable for they were too general for it may be that the Defendant hath stirred up the Tenants of a Manor to Tumults and Sedition which is not any great Scandal And the Statute of
any thing which sounds to the disinheriting of him in the reversion although in truth the same doth not touch the Inheritance yet it is a forfeiture Vid. 39 E. 3. 16. If Tenant for life pleads any thing against the right of him in the reversion it is a forfeiture and by Finchden and Belknap he cannot plead in the right 5 Ass 3. Tenant for life is impleaded in a Praecipe by a stranger and confesseth the Action upon which the Demandant hath Iudgment the Lessor enters against whom the Demandant sueth Execution The Lessor brought an Assise and had Iudgment to recover for it is a forfeiture because the Tenant for life hath admitted the reversion in another because it is an alienation to the disinheriting of the Plaintiff and of the Lessor 12 E. 3. Fitz Resceipt 14. where Tenant for life pleaded in chief or cannot deny or gainsay the Action of the Demandant or makes default by Covin he shall forfeit his Estate But if a rent be demanded against Tenant for life and he rendreth the same it is no forfeiture 12 Ass 31. Tenant for life is impleaded by Covin between him and the Demandant and pleads in chief without aid prayer upon which Iudgment is given he in the reversion enters in a Juris utrum against Tenant for life who pleads feintly traversing the point of the Action he in the reversion shall not be received for in as much as the Tenant hath traversed the Action he is not within the Statute of West 2. 3 5. Default Reddition but he in the Reversion may enter by the Common Law 22 E. 3. 2. In Scire facias to execute a Fine against Tenant for life who pleaded to the Inquest whereas in truth the Land in demand was not comprised within the Fine Iudgment is given for the Demandant in the Scire facias he in the reversion may enter In our principal case here is apparent and manifest Covin for the Tenant for life voucheth without cause and this Recovery is by assent and is to the use of the Vendee who is Tenant for the life of another and therefore by the Common Law he in the Remainder may enter before Execution sued And it is well known that these common Recoveries are used for to dock Remainders in Tail and that was the scope of this Recovery And as to the Case of 5 E. 4. 2. Tenant for life is impleaded in a Praecipe quod reddat who voucheth a stranger the Demandant counterpleads the Voucher and it is found for him he in the Reversion hath no remedy but by a Writ of Right and if the Vouchee entreth and loseth by Action tryed or default ut supra that Book is to be intended of a Recovery executed for there in such case he in the Reversion hath not an Entry but is put to his Writ of Entry by the Common Law Vide Br. Title Forfeiture 87. 24 H. 8. Tenant for life is impleaded and prays in the Aid of a stranger he in the Reversion may enter but if he doth not enter until the other hath recovered then he cannot enter but is put to his Writ of Entry Ad terminum qui praeteriit vel de ingressu ad Communem Legem and therein he shall falsifie the Recovery and there by Brook Voucher of a stranger is not cause of Forfeiture for it doth not disaffirm the Reversion in the Lessor And he vouched 24 E. 3. 68. where Tenant for life pleaded in the right with aid prayer And so he argued that before Execution he in the Remainder might enter but after Execution is put to his Action But in our Case although that Execution be good yet he in the Remainder may enter for it is found by Verdict that at the time of the Recovery he was within age and that when he dyed that he in the next Remainder was within age and then no Entry shall be imputed and then he shall not be driven to his Action As if Tenant by the Courtesie makes a Feoffment with warranty and dyeth and the same descends to his Heir within age yet he shall enter although he hath not avoided the warranty in the life of his Ancestors Also he said that the Statute of 32 H. 8. extended to this Case for Sir William Pelham the Vendee was but Tenant for life and although that he be but Tenant for the life of another yet he is Tenant for life as fully as if he were Tenant for his own life or otherwise Tenant for life or lives Note this the words of the Statute As upon the Statute of 20 E. 1. which gives Resceipt de defensione juris the words are Cum quis aliquod breve Domini Regis impetret versus Tenentem per Legem Angliae vel feod taliat ' vel sub Nomine Dotis vel alio modo ad terminum vitae upon these words it is holden 11 H. 4. That where Land was given to one and his heirs for the life of another that upon such an Estate he in the reversion should be received by reason of these words vel alio modo ad terminum vitae c. And although he who enters at the time of the recovery was not next in remainder to the particular Estate yet he is within the Statute of 32 H. 8. For he was in remainder at the time of the recovery and at the time of the entry he in the immediate remainder was dead and then he the next in remainder Vide 15 E. 4. 9. by Litt. If I grant my Services to one for life and he in a Praecipe brought against him pleads in the right or grants to another the said Services in Fee it is not a Forfeiture for it is no Discontinuance It will be objected That the words of the Statute of 32 H. 8. are That such recoveries shall be utterly void and if so then he in the reversion cannot be damnified and then no cause of Forfeiture So that it may be easily answered That where Tenant for life doth any thing which sounds to the disinheriting of him in the reversion by matter of record although the same doth not devest or otherwise prejudice the Inheritance yet it is a Forfeiture Cook to the contrary Here in our Case is not any Covin in Sir William Pelham the Bargainee he was deceived by the Bargainor for he did not know but that the Bargainor was seized in tail according to the Covenant in the Indenture by which the Bargainor covenanted that he was seized in tail at the time of the Bargain and also to do any other act for assurance of the Estate of the Bargainee and it was lawful for him to Vouch his Bargainor and although he voucheth a stranger it is not a Forfeiture 39 E. 3. 16. Aid prayer of a stranger is a Forfeiture and the reason of that is because he acknowledgeth the reversion to be in a stranger and that is the cause of Forfeiture Vide Book of Entries 254. Where upon
Aid prayer the Party to have Aid shewed such Special matter But in our Case the Tenant for life hath vouched his Bargainor and not without cause for he hath a warranty from him and the Demandant cannot Counterplead it for he had a Seisin whereof he might make a Feoffment As to the Case 14 E. 3. Fitz. Resceit 135. Lessee for life in a Praecipe against him without Aid prayer pleadeth to the Enquest the first day he in reversion may enter It is true he may enter and enter into the Resceit but not into the Land for a Forfeiture For then Fitzherbert would have abridged that Case in the Title of Entre Congeable and not in the Title of Resceit And the Book in 5 Ass 3. is good Law for there the Tenant doth confess the reversion to be in another but in our Case the Tenant voucheth which is a lawful Act and according to the Covenants of his Purchase And although the recovery was by agreement yet it is not for that a Forfeiture for if the Tenant for life voucheth truly it is not a Forfeiture Before the Statute of West 2. cap. 3. which gave resceit to a woman and to those in reversion where the particular Tenant is impleaded and made default reddere noluerit no remedy for these Cases but a Writ of Right but no Entry and that was for the credit which the Law gave to recoveries car si puissoit then is resceit given but that only in the two Cases aforesaid But afterward because it was found that many particular Tenants being impleaded would plead faintly The Statute of 13 R. 2. gave resceit in such case And upon what reasons were these Acts made if in such cases the Entry was lawful But after these two Statutes another practise was devised for such particular Tenants would suffer recoveries secretly in such sort that those in the reversion could not have notice of it so as they could not ante judicium and prayer to be received for the remedy of which mischief the Statute of 32 H. 8. was made by which all recoveries had against the Tenant by the Curtesie or otherwise for life or lives by agreement of the Parties of any Land whereof such particular Tenant is seized should be void as Tenant by the Curtesie c. should be void against him in the reversion And yet an Evasion was found out of that Statute for such particular Tenant would make a Feoffment with warranty and then the Feoffor should be impleaded in a Writ of Entry and he vouch the Tenant for life who should vouch over and such a Recovery was out of the Statute of 32 H. 8. for the recovery was not against such particular Tenant c. For the remedy of which mischief the Statute of 14 Eliz. was made by which it was provided that such recoveries had where such particular Tenant shall be vouched should ve void if such recovery be had between them by Covin And he conceived That the Forfeiture is not in respect of the recovery it self but of the Plea pleaded by the Tenant And here in our Case there is not any Covin found or that Sir William Pelham knew that he was but Tenant for life but it was found that the recovery was with their assent and that was lawful as this Case is for they may agree to have such recovery for further assurance and so Sir William Pelham hath not vouched any but his Bargainor and that according to their Covenants and this Bargainor was not a bare Tenant for life but had also a remainder in tail although not immediately depending upon the Estate for life which he cut off therefore it was not meerly a feigned recovery And Vide 5 E. 4.2 Br. Forfeiture 87. where Tenant for life being impleaded in a Praecipe voucheth a stranger it is not a Forfeiture for it doth not disaffirm the reversion c. contra of Aid prayer for a stranger may release with warranty to Tenant for life upon which he may vouch And he reported in his Argument That Bromley Chancellor of England sent him to the two chief Iustices to know their Opinions upon these Points and they were of opinion That the Voucher of a stranger was not any Forfeiture and also that after the recovery was executed he in the remainder could not enter but they conceived that the right of him in the remainder was not bound And he said That after the recovery executed he in the remainder could not enter which see Br. Forfeiture 87. 24 H. 8. For if Entry in such Case had been lawful infiniteness of Suits would follow which would be a thing against the credit of recoveries As to the Objection of the Infancy the same will not help the matter 6 H. 8. Br. Saver default 30. Recovery had against an Infant in which he voucheth and loseth is not erronious contrary upon default And if an Infant Tenant in tail suffereth a recovery it is discontinuance for in such Recovery Infancy is not respected And in a Scire Facias upon a Iudgment had against the Father the Heir shall not have his age And he cited a Case out of Bendlowes Reports 5 Eliz. Tenant for life the remainder over to a stranger in Fee Tenant for life is disseized by Covin in a Praecipe quod reddat against the Disseisor he voucheth the Tenant for life who entreth into the Warranty generally and voucheth over the common Vouchee It was adjudged that that recovery was out of 32 H. 8. for the recovery was not had against the particular Tenant but he was but Tenant in Law quia Vouchee and also the recovery is a good bar to him in the remainder notwithstanding that he was within age at the time of the recovery And at another time it was argued by the Barons and Clark said That he conceived that the Entry of him in the remainder was lawful It hath been objected that Pelham did not know that the Bargainor had but for life or that any other person had any remainder in the Land that is to no purpose to excuse him for 42 E. 3. every Purchasor ought at his own peril to take notice of the Estates and Charges upon the Lands which he purchaseth For the Law presumes that none will purchase without advice of Counsel and without knowing the Titles of the Land. And although Statutes have been made to provide against the practises of particular Tenants yet that is no Argument that no other remedy was before And by Littleton If Tenant for life joyneth the Mise upon the meer right it is a Forfeiture And he held strongly That the Iudgment did not take away the Entry a cause of Forfeiture being given before the Iudgment 5 Ass 3. He in the Reversion after Iudgment and Execution may enter See also 22 Ass 31 to the same purpose For where Tenant for life is impleaded he ought to wait upon him in the Reversion and expect Instructions from him in
by a Writ of Right So if the Vouchee had entred and lost c. As to that Case we ought to consider That every Book reported in our Law is not Law But let us observe of what Authority the Case is truly it is the conceit of the Reporter himself for he puts the Case and resolves it but there is no Iudge or Serjeant named in the Case c. The other Case is 5 E. 4. 2. Note by Hendon clearly If my Tenant for life voucheth a stranger who entreth into the Warranty generally and doth not know how to bar the Demandant the Tenant shall recover in value and the reversion of him who hath in value shall be to me in lieu of my former reversion as release to Tenant for life shall enure to him in the reversion But that is but the Opinion of one Serjeant c. But I answer to these Books If the Demandant in such recovery have a good title so as the Tenant or the Voucher as Hendon saith know not how to bar the Demandant there such a Voucher of a Stranger is not a Forfeiture nor such recovery suffered thereupon for against his will and volens nolens he suffered it But if the Tenant had good matter to bar the Demandant and no good cause of Voucher that the vouching of a stranger or suffering of a recovery is a Forfeiture of his Estate And here in our Case the Defendant had not any title The Tenant or Vouchee had not any Warranty or cause of Voucher But the Tenant might have barred the Demandant if he pleased And he said That the Voucher only doth not make the Forfeiture but much rather the Recovery for when Iudgment is given and Execution had then is the Fee plucked out of him in the reversion 6 R. 2. If Tenant for life claimeth a Fee it is a Forfeiture but here Pelham hath done more for he hath gained Fee by the Iudgment therefore à Fortiori it shall be a Forfeiture But let us a little see what medlings or attempts by the particular Tenant are causes of a Forfeiture and what not 5 Ass 3. Where A. brings an Entry against Tenant for life by collusion to oust B. of his reversion supposing that the Tenant for life held of his Lease The Tenant confesseth the Action upon which Iudgment is given B enters and his entry adjudged lawful for that recovery is adjudged in Law but an Alienation to the disinherisin of him in the reversion and here it appears That such recovery by Covin is but an Alienation and without any strength of a recovery And he cited many other Cases cited before by Altham 14 E 3. Resceit 135. Where Tenant for life pleads in chief or prays in aid of a stranger where he might bar the Demandant and will not it is a Forfeiture And also 22 E. 3. 2. 27 E. 3. where Tenant for life in a Quid juris clamat Attorns unto the Conusee upon a Fine levyed by him who hath not any thing in the Land the same is a Forfeiture and yet that Attornment doth not divert the Reversion out of the Lessor 50 E. 3.7 8. Land was given by Fine in tail the remainder over to a stranger in Fee the Donee took a Wife and dyed without Issue the Wife accepted Dower assigned by a stranger he in the Remainder brought a Scire facias against the Wife that she is Tenant in Dower of the Assignment of a stranger and pleaded to the Title the Demandant recovered she hath lost her Dower for she hath not pleaded dutifully as she ought being a particular Tenant Temps H. 4. Tenant for life loseth his Land in a Recovery against him against his will and thereupon brings Quod ei deforceat and declares upon an Estate tail and recovers the same is a Forfeiture because he hath challenged a higher Estate c. 5 H. 7. Tenant for life joyns the Mise upon the meer Right 2 H. 6. Lessee for years being ousted brings an Assise and recovers 1 H. 7. Accepts a Fine of a stranger sur Conusans c. come ceo que il ad de son done All these are Forfeitures In our principal Case here the Tenant who suffered the Recovery did not plead at all to defend the Right but where he might have barred the Demandant he gave strength to his pretended Title and made it a perfect Title and by suffering the Recovery and Iudgment to pass had taken away the Reversion out of the Lessor to whom he owed Fealty and therefore it is a Forfeiture And without doubt it is apparent to the Court that the Demandant in this Recovery hath not any Title for the Recoverers in such Cases are but Assignees and Purchasors which appeareth by the Statute of 7 H. 8. cap. 4. which gives Distress and Avowry to Recoverers c. As to the inventing of Recoveries it was a necessary Device for it was to take away Estate tails which were the causes of grand Mischiefs and Inconveniencies in this Realm and it was great reason for Tenant in tail might by the Common Law alien his Land post prolem suscitat and then he had an Inheritance and might commit Waste But he was so restrained by the Statute of Westm 2. all the Realm and the Subjects of it were inveigled thereby Ioyntures of Wives Leases of Farmers Mortgages to Creditors Statutes and other Assurances defeated by their deaths which was against the Common Law and all Conscience These matters tending to the knowledge of the Iustices and the Mischiefs thereupon ensuing very frequent and that Tenant in tail was become a perillous Fellow and there was no safe dealing with him Then they taking into consideration that several Warranties and Assets and collateral Warranty without Assets for that in it self implyed Assets did bar him Icil. the Entail upon that consideration they grounded the practice and usage of common Recoveries so that by that means Tenant in tail has potestatem alienandi as he had at the Common Law because his authority was restored to him and injury done to no man But as to Tenant for life he never had potestatem alienandi And as to that which hath been said That the Recovery shall stand in force till after the death of the Tenant for life and in our Case here Tenant in tail is living certainly if the Law should be such great mischief would follow for then greater Ioyntresses the Widows of great Persons having allowed unto them great and sumptuous Houses and Lands furnished with Timber of great value might suffer such Recoveries and so having plucked the Fee out of the Heirs might commit Waste and the same should be dispunishable c. which should be an intolerable Mischief And so he concluded that this suffering of a Recovery was a Forfeiture and Iudgment was given accordingly CCLII Grendon and Albanies Case JOhn Grendon brought Trespass for breaking of his Close against Tho Albany And upon the pleading the Case
the Statute of 33 H. 8. gives to the King Conditions yet it doth not give the performance of them or ability to the King to perform them And there are three Reasons wherefore this Condition cannot pass to the King 1. There is a Condition in the Proviso which precedes the Condition of the Tender viz. If the said Francis my Nephew be given to intolerable Vices then if the said Sir Francis deliver or offer c. and in the whole pleading it is not averred that the Nephew was given to intolerable Vices therefore the precedent Condition not being performed the second Condition is not ripened nor in season 2. The substance of this Condition consists in the will and pleasure of Sir Fr. Englefield therefore it cannot be given to the Queen 3. The prejudice which should come to Francis the Nephew if this Condition should come to the Queen Vide Br. Temps H. 8. A Foundership cannot Escheat or be forfeited by Attainder of Felony or Treason for it is a thing annexed to the Blood which cannot be separated and he said also that the Condition was gon before that tender for the Conveyance by which the Condition was granted was made void by the Act of 29 H. 8. cap. 3. by which it is Enacted That every person within two years after the last day of this Session shall openly shew and bring forth into the Exchequer his Conveyance and there in the Term time in open Court shall Exhibit the same to be entred and inrolled of Record and here the end of the Session was such that all the Terms of the said two years were passed before the tender made by the Queen and although the two years were not past yet all the Terms were past and the Conveyance ought to be shewed in Term time therefore the true time is incurred before the Tender and then the Conveyance is void and by that the Condition gon When the Queen was Tenant for the life of Sir Francis and makes a Lease for years and afterwards by the Condition hath the Inheritance if now she shall avoid the Lease made by her when she was Tenant for life A Disseisor makes a Lease or grants a Rent-charge and afterwards the Disseisee releases unto him he shall not avoid his own Act. A man seized in the right of his Wife makes a Lease for years hath Issue and so is intitled to be Tenant by the curtesie the Wife dyeth he shall not avoid his Lease Feoffor and Feoffee upon condition joyn in a Lease for years the Condition is performed on the part of the Feoffor he shall not avoid his Lease And the Prerogative of the Queen shall not alter the matter against aequum bonum As to the Statute of 29 Eliz. it was not the intent of that to avoid Estates claimed for or by the Queen for the Estate was made for the benefit of the Queen As to the words of the Statute every person or persons which hath or claimeth to have c. the Queen is not within the words If a Statute ordains attendance or restraint of any Liberty which was before at the Common Law there the Queen shall not be within it As to attendance the Queen is not bound to make claim upon a Fine levied As to re-grant the Queen is not bound by the Statute of Westm 3. Quia emptores terrarum also where matter of penalty is imposed Also here is an Oath to be taken c. the Queen being Tenant for the life of another leaseth the Woods and grants to the Lessee power to cut the Woods and convert them to his own use Now if after the Inheritance cometh to the Queen if the Queen may impeach her Grantee truly the property of the Woods and Trees was in the Queen at the time of the Grant and although the Inheritance came to the Queen afterwards yet the same shall not overthrow the first Interest of the Grantee Lessee for life or for years before the Statute of Gloucester could not be impeached for Waste therefore as I conceive the property of the Trees was in him for there was no remedy for them against him See the reason of that in Dr. and Student Quasi the property of the Trees pass to the Lessee with the Demise which shall be taken strongly against the Lessor If the Lessee cutteth the Trees the Lessor shall not have Trespass against him nor Detinue for the Trees Lessee without impeachment of Waste cutteth the Trees and leaves them upon the Land and dyes his Executors shall have them and not the Lessor The Lessor grants omnes boscos arbores suas nothing passeth for they pass to the Lessee if they be not excepted The Lessor against his own Lease cuts the Trees without the agreement of the Lessee Trespass lyeth 5 H. 4. 56. The Heir being in Ward cut Trees in his Lands in the possession of his Guardian who brought an Action against the Heir it was adjudged maintainable although the Free-hold was in the Heir Egerton Solicitor to the contrary Admit the use in Sir Francis be the ancient use yet it is but for life and then when the Queen having the Estate of Sir Francis makes a Lease for 40 years with the grant of the woods the said Lease was void for the Queen was deceived in her Grant Sir Francis was punishable for Waste therefore the Queen having his Interest ought not in Iustice to have cut the great Wood. And it is to be presumed That if the Queen had known the smallness of her Estate she would not have made so great a Lease nor such a Grant of the Wood. The King seized of Land in his own right reciting by his Letters Patents that he hath it by Attainder of J. S. gives the same to another the Gift is void The King licenceth one to appropriate an Advowson without being informed that the same is holden in chief it is void A licence to alien whereas in truth the Land is holden in tail the Reversion or Remainder in the King is also void and here in our case the Queen hath but a particular Estate for the life of another and here out of that petty Estate is drawn a Lease for 40 years where Lessee for life was 60 years of age at the least and also a Grant of all the Trees If the Queen hath a particular Estate and grants totum Statum suum without reciting of such particular Estate the Grant is void the Queen hath the Profits of the Lands of one who is Outlawed in a personal Action and grants to another the Land it self it is void for it is a wrong to a third person which the King cannot do But here the Special Interest of the Queen ought to be recited Now when the Queen being Tenant for the life of another makes Leases ut supra and afterwards the Fee cometh to the Queen the Estate out of which the Leases are derived being determined the Leases also are determined scil
the Estate for the life of another by the accession of the Fee-simple and the Queen is in by a new right It was adjudged 29 Eliz. here That where the Queen had the Land of a Fugitive for the life of another and leased the same to another Quam diu in manibus nostris fore contigerit and after the Fee-simple of the Fugitive came to the Queen by his Attainder the same Lease was void King E. 6. gave to his Sister Mary Manerium de B. for her life secundum tenorem effectum Testamenti sive ultimae voluntatis of King Hen. 8. whose Will was that she should have it as long as she remained unmarried she granted a Rent-charge King E. 6. dyed by which the Fee descended to the said Mary being Queen of England and afterwards she married He made it a Quaere if the Rent be not gone Dyer 3 4 Phil. Mary 240. But Bendloes Reports the same Case to be adjudged That the Rent was gone Sir Francis Englefield 1 Eliz. with leave of the Queen went beyond Sea his Licence expired the Queen directed to him a Privy Seal with her Commandment to return which he received but did not return but adhered to the Queens Enemies there upon which the Queen seized his Lands and 8 Eliz. granted a Manor parcel thereof and all profits thereof quam diu in manibus nostris fore contigerit afterwards by Act 14 Eliz. for there was some doubt if the Queen might make Leases grant Copyholds or usual Woodfalls of such Lands or only take the ordinary profits thereof as vesturam terrae it is explained that during the Interest of the Queen she might do ut supra as Tenant for the life of another might do upon which a new Seizure was made for the Queen and a Steward appointed by the Queens Letters Patents who held a Court and took Surrenders in the hand of the Queen and granted Admittances c. And it was resolved by the two Chief Iustices That the two Seizures gave not the Queen any other or better Seisin in the said Manor than she had before by the first Seizure at the Common Law notwithstanding both the said Statutes and so the Courts holden by the Queen void and all Surrenders and Admittances also And so it is adjudged 23 Eliz. Dyer 375. upon which it may be concluded That if by the said Statutes or any of them had had a new right the last Copy had been good notwithstanding the Grant of the Manor before Also for 8 Ass the King grants Custodiam terrae haeredis quam diu in manibus nostris fore contigerit the Heir being a Daughter and after a Son is born now the Grant of the King is void Tenant in tail the Reversion in the King discontinues the Discontinuee is attainted the King seizeth and leaseth for years Tenant in tail is attainted of Treason now the Queen shall avoid her own Lease So if the Disseisor be attainted upon which the Queen seiseth and leaseth and afterwards the Disseisee is attainted And he cited the Case of the Abbot of Colchester 13 Eliz. The Abbot committed Treason and afterwards by the Statute or by Surrender the Abby came to the Crown who leased the Land for years the Abbot is attainted of the said Treason now the King shall be seized by force of the Attainder and shall avoid his Lease As to the Leases made to the Defendant by the Queen one was made after the Statute of 29 Eliz. and the same is not saved by the saving there for the words are of Estates then in esse 1. Such Estate as they had before the making of the Act As to Leases made before they are drowned in the Fee-simple which accrued to the King by the Attainder c. and here by this Statute the Estate of the Queen for the life of another is not saved by the Statute and then the Leases derived out of it are not saved The Queen is not bound by the said Statute to exhibit any Conveyance for she shall not take any Oath according to the Statute and if the Queen be not within the Body of the Act she is not within the saving Now as to the Condition The Statute of 33 H. 8. gives to the Queen Vses Rights Conditions It hath been Objected That such Conditions are intended to be given to the King which are to be performed on the part of the Donee Lessee Grantee Covenantee but not on the part of the Grantor c. For it was in the will of the Grantor if he would perform them or not and a Will cannot be transferred over But as to that it may be answered That a Will by Parliament may be transferred over for Parliamentum omnia potest It hath been Objected If that shall be said the Will of Sir Francis which now is the Will of the Queen it shall be a great prejudice to Francis Englefield the Nephew for now he shall be doubly bridled by his Vncle and by the Queen It hath been Objected That here is a Conditional Condition 1. If the Nephew shall be given to intolerable Vices and it is not added to enable the Queen to take advantage of the Condition that he is otherwise than of good behavior and conversation but the words of the Proviso clear the matter 1. Lest he should be given to intolerable Vices and not if he be given c. So as it is not a Condition to a Condition but a Motive to a Condition And the Statute of 29 Eliz. by which Sir Francis was attainted gives to the King all conditions It hath been objected that in the said Statute of 29 Eliz. is a saving by which Leases made by the Queen are preserved But if that Proviso be well observed it doth not extend to our case 1. That Act extends to make void any Grant Lease c. made by the Queen after the Treason committed c. but that shall be of such force as if the said Act had not been made As to that I say That this Statute doth not add or detract from such Leases but leaves them as it found them for the Statute gives to the Queen the Condition which Condition avoids the said Leases for it avoids the Estate of the Queen out of which the said Leases are derived And although that the Conveyance as to the benefit of Sir Francis or his Nephew be void by the Statute for not Inrollment of them yet it is not utterly void as to the Queen also The Statute of 1 Eliz. Enacts That Leases made by Bishops against the Form of the Statute shall be void Yet they shall not be void against the Bishop himself or against the Lessor Exception hath been taken for that the tender of the King is not found by Office But he needs no Office for the tender is the Act of the Queen her self there she ought not to be informed of it for to what purpose shall the Queen be certified
of that which she her self hath done The Queen makes a Lease for years upon Condition that the Lessee surrender to her the Manor of B here for the not doing of it no Office is requisite Tenant of the King in Capite aliens by Fine that needs no Office for that appears upon Record so here And although the Condition be returned in the Exchequer after the Term yet it is well enough for the Exchequer is never shut as to take and receive Money Certificates made to be Inrolled although it be shut as to all Iudicial Acts. And although no tender at all be certified it is not to the purpose for the tender makes the Estate void without any other thing And it is not like to a Capias ad satisfaciendum for that is Ita quod Habeas Corpus c. therefore the Arrest is not sufficient by it self but the same ought to be remembred with an Ita. quod c. But as to that which hath been said That the Queen shall not avoid her own Lease the same is not so nor in case of a common Person As if Tenant in tail enfeoffeth his Heir within age who makes a Lease for years at his full age Tenant in tail dyes Now the Issue shall avoid his own Lease for he is remitted A Disseisor levies a Fine to a stranger the Disseisee enters upon the Conusee and enfeoffs the Disseisor now he shall avoid his own Fine à multo fortiori in the Case of the King. Now it is to see If the Grant of the Wood by the Queen being Tenant for the term of anothers life be good or not He conceived it was not for she was deceived in her Grant not knowing that she was but a particular Tenant It was Objected That the Queen hath property and right in the Trees and Woods forasmuch as no Waste or Trespass lyeth against her if she cast them down Certainly the Lessee if the Trees and Woods be not excepted hath the property in them but not the absolute property for the Writ of Waste shall say ad exhaered ' Qâ—erentis for he cannot cut them Id enim tantum possumus quod de jure possumus perhaps the Lessee shall have the Wind-falls because they are severed from the Inheritance by the act of God not of the Lessee himself and see 27 H. 6. Waste 8. and also in Statham titulo Waste A. leaseth to B. for life without impeachment of Waste a stranger cuts Trees and the Lessee brings Trespass he shall not recover damages for the value of the Trees for the property of the Body and the Tree is in him who hath the Reversion he may give it by which it appeareth that the Lessee is not to recover but only for the cropping and the breaking of his Close à fortiori in case where the Lease is made without the clause absque impetitione vasti as the Case at bar is And therefore when the Queen having so feeble an Estate makes such a Grant scil Grants all the Woods c. the Grant is void for she was deceived in her Grant by which if it should be good she should wrong her Subject A Grant to the Queen shall have a reasonable construction as the Grant of a common Person A. grants to the Queen Common in all his Lands the Queen by that Grant shall not have Common but in Lands commonable not in his Land where his Corn is growing or in his Orchard or Gardens Tenant for life grants all the Wood upon his Land nothing passeth but that which he may lawfully grant So in Cases of Grants of the King 22 Ass 49. the King grants to one bona catalla tenent ' suorum fugitivorum qualitercunque dampnorum the Grantee shall not have the Goods and Chattels of one who hath killed the Kings Messenger So in Grants of Amercements the Grantee shall not have a Special Amercement c. So here the Grant of all Woods ought to be intended of such Woods as Vnderwoods which the Queen might lawfully grant without wrong to another And he said That when the Queen hath granted the Land and the Woods for 40 years that Grant cannot be divided and the words of the Grant are That it shall be lawful to cut the Woods during the space of 43 years Now forasmuch as the Lease is surrendred ut supra the liberty of cutting the Woods is gon also A man bargains and sells his Manor with all Woods upon it growing the Deed is not Inrolled so as the Manor doth not pass the Woods shall not pass in gross for the Grant shall not be divided See more after Sect. 276. Trin. 31 Eliz. In the Kings Bench. CCLIV Brown and Peters Case PHilip Brown Executor of Eliz. Brown brought an Action upon the Case against John Peter as Executor of W. Brown and declared That the said William Brown was indebted to the said Eliz. in 80 l. Cumque ad specialem instantiam of the said William Brown It was agreed that the said William Brown should retain the said Sum in his hands until the said Eliz. should come of full age In consideration thereof he promised to give her 100 l. It was found for the Plaintiff who had Iudgment to recover and now the Defendant brought Error and assigned for Error because the place of the Agreement was not shewed Sed non allocatur for that is the Consideration which is not traversable also it is not shewed certain that Brown retained the 80 l. for so long time Sed non allocatur for he shews in his Declaration That the said Sum was in the hands of the said William Brown and it shall be intended that so it there continued Trin. 31 Eliz. In the Kings Bench. CCLV. Higham and Cookes Case EJectione firmae by Higham against Cooke The Plaintiff declared upon a Lease for years to have and to hold to him from the Sealing and Delivery of it and declared that the Sealing and Delivery was 1 Maij and the Ejectment the same day And this matter was moved in Arrest of Iudgment that the Ejectment could not be supposed the same day for the Lease did not begin till the next day ensuing the Sealing Ejectment c. But the Exception was not allowed by the Court for where the Lease is to begin from the time of the Sealing and Delivery or by these words for 21 years next following the Ejectment may be well supposed to be the same day for the beginning of the Lease is presently upon the Sealing and Delivery and such a Lease shall end the same time and hour as it began CCLVI. Trin. 28. Eliz. In the Kings Bench. IN an Action upon the Case upon Assumpsit the Case was Land was devised to a Feme-sole for term of her life and she let the same to the Plaintiff for 5 years to begin after the death of the said Woman and afterwards by Deed bearing date 18 October leased the same Land to the same Plaintiff
Defendant And further found That as it appeared by an Exemplification out of the Exchequer That it was a Chauntry of H. G. and that Tho. was then a Chauntry Priest there and that the said Chauntry with all the Profits and Obits were 6 l. 13 s. 4 d. the tenth of which is a Mark which was payable to the King 26 H. 8 And that by another Exemplification in 2 E. 6. it appeared that the Dean and Chapter of Pauls certified to the Commissioners of the said King Cantaria H. G. A. B. Executores Testamenti H. Gilford by force of the said Will 7 E 2. granted and assigned to the Dean and Chapter aforesaid and their Successors the said Lands and Tenements to the intent that they should maintain for ever a Chaplain to pray for the Soul of the said H. G. and all Souls And the Incumbent of the said Chauntry is one G. and that the said Executors granted to the Mayor and Commonalty of London the Rent of 20 s. out of a Shop in Cheap with the Patronage of the said Chauntry to the intent that they should maintain the Chauntry accordingly and recited all the said Lands and Rents assigned and that the Rent of them was 14 l. 1 s. the Salary of the Priest 6 l. 13 s. 4 d. for Bread and Wine 3 s. 4 d. the Chamberlain of London 20 s. being deducted and so there remaineth 4 l. 3 s 4 d. And that the said Chaplain received above his Wages yearly by reason of the said Obit other Profits as Procession pence and Feeding days 33 s. 4 d. And found further the Act of 1 E. 6. and further said That the Church of St. Paul at the time of the said act was a Cathedral Church and the Fee of the Bishop of London and that the profits and rents devised and ordained to the said Dean and Chapter were in the said Certificate of 2 E. 6. and that the said Lands at the time of the making of the said Act and for five years before were not in the actual possession of the said King H. 8 nor E. 6. and that by force of the Statute of 1 E. 6. the said Lands came to the possession of the said King as Chauntry Land and that the said King granted it to Tho. Butcher in Fee who bargained and sold the same to Dobson who thereof enfeoffed Thoragill upon whom the said Nicholas Wilford entred claiming his Lease And further found That 45 s. parcel of the said rent of 9 l. due at the Feast of St. John Baptist 11 Eliz. for the said Capital Messuage was arrear by half a year after the said Feast and was lawfully demanded by the said Rich. Thoragill and for not payment he re-entred and let the same to Tho. Buttell c. Bell. The Executors by this Devise have not a bare authority but an interest for if one seized of Lands in Fee deviseth That his Executors grant a Rent-charge to one in Fee out of his said Lands by that Devise the Executors have a Fee-simple in the Land otherwise they could not make such a Grant So here in the Case in question and also by the same reason the Executors have a Fee-simple in the Land for otherwise they could not grant a Rent in Fee nor the Land to the Dean and Chapter in Fee by which the Chaplain in perpetuity ought to be found And although but one Chauntry was erected where three were intended but the Land devised was not sufficient for all three so that now by the erecting of one Chauntry only the Executors performed the trust as near to the intent of the Devisor as it could be and as the Land devised might extend unto it is not material if here be a Condition or a Confidence in the words of the Grant to the Dean and Chapter ad inveniendum c. for if it be a Condition and broken no advantage shall be taken of it for it is out of the Statute and if it be a Confidence then it is performed as near the intent of the Devisor as it might be and the Condition being performed although not exactly yet so near as it may be it is well enough performed As a Feoffment upon Condition that the Feoffee shall make a Gift in tail to Husband and Wife and the Heirs of the Body of the Husband the Husband dyeth now the Gift cannot be modo forma and therefore if it be it may be scil as near the intent of the parties as it may be it is good and therefore if the Land be given to the wife for life without impeachment of waste the remainder over it is sufficient in case of a Trust and Confidence 1. It was moved If here be any Chauntry in the Case And a Chauntry is nothing else but a Sustentation for a Priest that chaunts in a place certain for the Souls of the dead And Chauntries are in two sorts the one incorporated as by the King by his Letters Patents the other not incorporated as our case is And truly the greatest number of Chauntries were not corporal but were Chauntries but in reputation and not Revera but yet such Chauntries in reputation are within the Statute which see by the words of it accepted taken or reputed as Part or Member of any Chauntry It hath been Objected That nothing passeth to the King by that Statute but that which is parcel or belonging to the Chauntry but this Land is not parcel nor belonging to any Chauntry for all the Land is in the Dean and Chapter As to that we ought to have regard unto the intent of the Devisor which was to make the Land a Chauntry And so in the time of Hen. 8. it was retorned in the Exchequer for the First-fruits of the Chauntry of Hen. Gilford and we ought not to respect the Conveyance it self which was made by the Executors to the Dean and Chapter but also the disposition of the Devisor so as both ought to be put together if they be not contrary one to the other and if they be then the last shall be taken And when the intent of the Devisor may stand with the act of the Executors to construe That the Land shall make the Chauntry according to the intent of the Devisor for the Executors have given all the Land to the Dean and Chapter to find a Priest and things belonging to a Chauntry and the Executors have given the said Land to the said intent and the assignment of the special portion out of it is but a shewing how the profits of the Lands shall be bestowed For I conceive That the Land at the time of the disposition aforesaid was not of any better value than it was appointed to be imployed as aforesaid and if the Dean and Chapter by their industry have made and improved it to a greater value they shall take advantage thereof till it be given to the King by the Statute and it shall not be said properly a Rent but
was 100 years since Quod mirum videbatur Curiae hic Audita Querela pleaded And afterwards the Court said to Walter Sue your Audita Querela and upon that you shall have a Supersedeas Mich. 29 Eliz. In the Common Pleas. CCLXIX Sir Richard Lewknors Case Post 225. SIr Richard Lewknor seized of Willingford Park leased the same for years and dyed the Lessee assigned over his term excepting the Woods and Vnderwoods standing growing and being in and upon the premises the Assignee committed Waste the term expired the daughters and heir of Sir Rich. and the husband of the third daughter Coparceners being dead as tenant by the Curtesie brought an Action of Waste against the Assignee and the opinion of the Court was that the husband ought not to joyn in that Action for he can recover nothing for damages he cannot have for the waste was not done to his disinheresin and the Land he cannot have because the term is expired Snag Serjeant I conceive that the exception in the Assignment is good for an Exception of Trees by the Lessor himself in his Lease is good and by reason thereof the Lessee shall not have Fire-bote Hey-bote c. which otherwise he should have and the property of the Trees is in the Lessor and also the Soil 14 H 8. 1 2. 28 H. 8. Dyer 19 vide 46 E. 3. 22 a Lease for years was made with such Exception and the Lessor brought an Action for the Trees cut Qâ—are clausum tregit and that proves that the Soil also is excepted and then the Action of Waste lyes against the Lessee who hath excepted to himself the Wood and the Soil and not against his Assignee Walmsley Serjeant to the contrary And he said where Land is demised the absolute property of the great Trees is in the Lessor and the Lessee hath in such case a qualified property And he cited 2 H. 7. 14. the Lessor commands the Lessee to dig gravel in the Land demised or licenseth him so to do such commandment or licence is not good for the lessor hath nothing to do with the Gravel nor hath any property in it but such licence to cut Trees had been good and Vide 10 H. 7.2 3. Waste is assigned in the breaking de uno muro lapideo the Defendant pleaded the licence of the Plaintiff to break it and upon that they were at Issue And he said If the lessor cutteth trees upon which the lessee brings an Action of Trespass he shall not recover damages according to the value of the trees cut down but for the Trespass to the Soil and for the loss of the Shadow and the Acorns c. and if the lessee cutteth down trees the lessor cannot take them because he hath other remedy Where a reversion is granted to A. and B. and to the Heirs of B. Waste is done A. and B bring an Action of Waste B. shall recover all the damages and A. nothing which proves that all the Interest in the Land demised is in B and not in A. therefore here in the principal Case the Exception is void for that which the Law allows to the former is only House-bote Hedge-bote Plough-bote Fire-bote And he said that the lessee fells the trees and the vendee cuts them down that waste lyeth against the lessee which proves that in that case the Soil doth not pass with the trees by the exception of the trees the Soil is also excepted as a servant to the trees viz. to nourish the trees and if he who excepts the trees cuts them down or roots them up the lessee shall have the Soil And he said that for the property that the lessor hath in the trees if he cuts them down the rent shall not be apportioned And if the lessor granteth the trees to one and his heirs there shall be no Attornment which had been requisite if the Soil had passed At another day it was argued by Shuttleworth Serjeant and exception taken because it is too general scil Quod fecit vastum in terris quas Sir R. Lewknor pater duarum querentium cujus Haeredes ipsae sunt praefato Ford dimisit c. And the Plaintiffs counted the Reversion was entailed by Act of Parliament to the said Sir R. Lewknor and so the Writ ought to be special scil Cujus Haeredes de corpore ipsae sunt for although there be not any such form in the Register yet that is to no purpose for in novo casu novum est remedium apponendum And he compared it to the Case in F. N. B. 57. where Land is given to husband and wife and the heirs of the body of the wife the wife dyeth the husband commits waste the Writ shall be Idem A. de domibus in B. quas tenet ad vitam suam ex dimissione quam inde fecit praefato A. M. quondam uxori ejus haeredibus de corpore ipsius M. matris dicti R. cujus haeres ipse est exeuntibus And Vide 26 H. 8. 6. Cestuy que use leaseth for years the lessee commits waste the Feoffees bring an Action of waste the Writ containeth the special matter although there was not any such Writ in the Register Fenner and Walmsley contrary for there is not any such form in the Register Cujus haeredes de corpore c. and we are not to devise a new form in this case but it is sufficient to shew the special matter in the Count also the words in the Writ are true for the Plaintiffs are Heirs to Sir R. Lewknor and the Count is well pursuant and agreeing to the Writ for they are Heirs although they are but Heirs special of his Body And the Court awarded the Writ good and said that the case is not like the case in Fitz. N. B. 57. nor to 26 H 8. before cited for in the first case the Plaintiffs cannot shew of whose Demise the Tenant holdeth unless that he also shew the special Conveyance scil That the Land was given to the Husband and Wife and to the Heirs of the Body of the Wife for always the Demise to the Tenant ought to be shewed certain which cannot be in both these cases if not by disclosing also the Title to the Inheritance and the Estate in it Another Exception was taken to the Count That where the two Defendants were Tenants in Common of the said Lands demised the Writ is tenuerunt which is intended a Ioynt-tenure But this Exception was not allowed And Vide 44 E. 3. in Waste the Plaintiff counted upon divers Leases and Fitz. N. B. 60. F. and the Writ shall suppose one Tenet and not divers Tenets Another Exception was taken to the Writ because the two Coparceners and the Heir of the third joyned in the Writ whereas the Husband of the third Sister being Tenant by the Curtesie was alive Vide 22 H. 6 21 22. But that Exception for the Tenant by the Curtesie joyns to no purpose for
of the Conusee it might now be Inrolled It was the Opinion of all the Iustices That upon the request aforesaid it might be Inrolled like as it was of a Conusance of a Fine taken before a Iudge which may be removed out of his hands by a Certiorari although it be not a Record before that it be certified in the speaking of that Case It was made a question whether the Court of Chancery might help a man who purchased Lands for valuable Consideration where there wanted the words Heirs in the Deed of Purchase or not but the point was not resolved But in that Case it was agreed by all the Iustices That after a Fine is levied of Land Chancery Attornment that the Chancery may compel the Tenant of the Land to Attorn And so where an Annuity or Rent is granted to one for life or in Fee and the Deed is Executed Sealed and Delivered but no Seisin is given to the party of the Rent or Annuity the Court of Chancery may decree a Seisin of the Rent to be given and the Rent to be paid to the Grantee and that was said to have been often times decreed in the said Court of Chancery CCLXXXIV Mich. 30 Eliz. In the Common Pleas. Intrusion Trespass NOte by Anderson Chief Iustice If one intrude upon the Possession of the King and another man entreth upon him that he shall not have an Action of Trespass for that Entry for that he who is to have and maintain Trespass ought to have a Possession But in such Case he hath not a Possession for every Intruder shall answer to the King for his whole time and every Intrusion supposeth the Possession to be in the King which all the other Iustices agreed except Periam who doubted of it And Rhodes Iustice said and vouched 19 E. 4. to be that he cannot in such Case say in an Action of Trespass Quare Clausum suum fregit CCLXXXV Mich. 29 Eliz. In the Common Pleas. NOte It was holden by Popham Chief Iustice Remainder and so said by him to have been resolved upon a Special Verdict in the County of Somerset 20 Eliz. That where a Lease was made unto Husband and Wife for their Lives the remainder to the Heirs of the Survivor of them that the same was a good remainder notwithstanding the incertainty and that in that case after the death of the Wife he should have Iudgment to recover the Land. But if a man be possessed of a term for 20 years in the right of his Wife and he maketh a Lease thereof for 10 rendring rent to him his Executors and Assigns and dyeth that in such case though the Wife surviveth yet he shall not have the rent because that she cometh in paramount the Lease But if a man be possessed of a term in the right of his Wife Mortgage and Mortgageth for payment of a certain Sum of Money at a day certain and before the day the Wife dyeth and the Husband payeth the Money at the day and then dyeth whether his Executors or the Administrators of the Wife should have the term was not then resolved Ideo Quaere that Case Trin. 32 Eliz. In the Exchequer CCLXXXVI Bartase and Hinds Case NOte Manwood Chief Baron gave it for a general Rule for all Counsellors at Law That they did not advise any Collectors of Subsidies or Fifteens to exhibit Bills in the Exchequer Chamber for the Non-payment of Subsidies c. for such Bills should not be allowed hereafter because they had remedy by Distress Also it was holden That if any be assessed for the Fifteen which he ought to pay or if two Towns are to pay together and the one Town be taxed more than it ought to be or had been accustomed those which are grieved by such Sesment may have a Commission out of the Exchequer which is called Ad aequaliter taxand ' and that was put in ure in a Case between Bartase and Hind where one of them was Lord of the Town of Little Marloe and the other of Hedford And it was also holden That Fifteens are to be levied of Goods and Chattels properly and one Township sometimes is richer than another and therefore it is not reason that they pay their Fifteen always according to the same proportion But by Clark Baron where the Custom hath been that the Fifteen should be taxed according to the quantity of Acres there the Rate and Purport shall be always one whosoever holds the Land and as to the Commission Ad aequaliter taxand ' Manwood and Fanshaw said That they could shew above twenty Presidents of it Mich. 17 18 Eliz. In the Kings Bench. CCLXXXVII Barnard and Tussers Case Debt BArnard recovered in a Scire Facias upon a Recognizance against Tusser and afterwards brought an Action of Debt upon the same Recovery and it was adjudged maintainable notwithstanding that it was Objected That the Iudgment in such Scire Facias is not to recover Debt but to have Execution of the Iudgment And by Wray Chief Iustice If in a Scire Facias to have Execution of an Annuity the Plaintiff hath Iudgment upon such Iudgment he shall have an Action of Debt Mich. 17 18 Eliz. In the Kings Bench. CCLXXXVIII The Earl of Arundel and Bradstocks Case THe Case was The Earl of Arundel let Lands to Bradstock for years upon condition that the Lessee should not do any Act by which his Goods and Chattels might be forfeited Bradstock committed Felony and before any Attainder he obtained his Charter of Pardon It was holden in this case That the Earl might lawfully enter but if the words of the Condition had been Whereby the Goods ought to be forfeited chen it had been otherwise for before Attainder they ought not to be forfeited Mich. 17 18 Eliz. In the Kings Bench. CCLXXXIX Taylors Case Outlawry How avoided by Plea in Person TAylor was Outlawed in Debt and a Supersedeas of Record was delivered to the Sheriff before the awarding of the Exigent It was holden that the party should avoid the same by Plea then it was moved if the Plea should be pleaded by Attorney or in Person To which it was said by Manwood That where matter in fait is pleaded in avoidance of an Outlawry it ought to be pleaded in Person but matter of Record by Attorney And Ford Prothonotary said It was so agreed in Sir Thomas Chamberlains Case in 7 Eliz. and so it was adjudged in this Case CCXC. Mich. 17 18 Eliz. In the Kings Bench. THe Case was The Prior of Norwich made a Lease for life by Indenture by which the Lessee covenanted to find Victuals to the Cellerer at all times when the Cellerer came thither to hold Court the Priory was dissolved and the Possessions given to the Dean and Chapter newly erected It was holden in this case That the Lessee should perform that covenant to him who supplyed the Office of Cellerer scil the Steward And
Dyer that these Remainders were void for the term is determinable upon the death of William Cecill the Father and the residue of the said term cannot remain And by the Lord Anderson the Remainders of the term limited ut supra are utterly void for every Remainder ought to be certain but here is no certainty for it may be that the first possessioner of the term may live longer so as he in the Remainder cannot know what he shall have And such was also the Opinion of Rhodes And he put the Case between Gravenor and Parker 3 4 Phil. Ma. Dyer 150. A Lease was made to A. for life by Indenture Et provisum fuit by the same Indenture That if the Lessee dyed within the term of sixty years then next ensuing that then his Executors should have in right of the Lessee so many of the years as should amount to the number of sixty years to be accounted from the date of the Indenture and it was holden That that secondary Interest to the Executors was void and that the words concerning the same did sound in Covenant CCCIV. Trin. 31 Eliz. In the Common Pleas. THe Case was A made B. and C. his Executors Executors Action they took upon them the charge of the Administration and afterwards B. dyed and now an Action of Debt was brought against the surviving Executor and the Executor of the other Executor and the Writ was abated because against the surviving Executor it ought only to be brought Pasc 30 Eliz. In the Common Pleas. CCCV Smith and Babbs Case SMith brough an Action upon the Case against Babb for stopping of Water incessanter decurrent by his Land Action upon the Case Stopping of Water by which his Land was drowned and his Grass rotted Exception was taken to it because it is not alledged That the Water had so run time out of mind Gawdy Iustice If the Water hath run there but for one year if the Defendant hath diverted it so as he hath drowned the Plaintiffs Land the Action will lye well enough Trin. 26 Eliz. In the Common Pleas. CCCVI Basil Johnsons Case BAsil Johnson one of the Clerks of the Chancery Priviledge of a Clerk in Court. was impleaded in the Common Pleas by Bill of Priviledge by an Attorney of the said Court and now Basil came into Court and shewed that he is one of the Clerks ut supra and prayed his Priviledge but the whole Court was against it because the Plaintiff is as well priviledged in this Court as the Defendant is in the Chancery and was first interessed in his Priviledge by the bringing of his Writ but the Defendant was not entituled to his Priviledge before the Arrest and afterwards by the award of the Court the said Basil was ousted of his Priviledge 32 Eliz. In the Common Pleas. CCCVII Collier and Colliers Case Prohibition BEtween Collier and Collier the Case was That the Plaintiff was Sued for Incontinence in the Spiritual Court and there they would have him Answer upon his Oath if he ever had Carnall Knowledge of such a Woman upon which he prayed a Prohibition Vide inde F. N. B. 41. a. Register 36. Et nemo tenetur seipsum prodere But the Court would advise of it 32 Eliz. In the Common Pleas. CCCVIII Mountney and Andrews Case Execution IN a Scire Facias by Mountney against Andrews of Grays-Inn upon a Iudgment in Debt the Defendant pleaded That heretofore a Fieri Facias at the Suit of the now Plaintiff issued to the Sheriff of Leicester by force of which the said Sheriff took divers Sheep of the Defendants and that as yet he doth detain and keep them It was holden by the whole Court to be a good Plea although he did not say That the Writ was retorned for the Execution is lawful notwithstanding that and the Plaintiff hath his remedy against the Sheriff Hil. 29 Eliz. In the Common Pleas. CCCIX Dawbney and Gores Case BEtween Dawbney Plaintiff and Gore and Gon Defendants in a Writ of Disceit In Arrest of Iudgment it was moved That two are accountable to one and the one of them accounts without the other that that is not any account and then no account can be assigned in that As to that it was said by Popham Attorney-General That notwithstanding that one be not compellable to account without his Companion and by way of Action of Account the one shall not account without the other unless the Process be determined against him and then he who appeareth hath accounted and the other against whom the Process is determined hath purchased his Charter of Pardon the account made by his Companion shall bind him Vide inde 41 E. 3. 13. Yet if one of the Accomptants will account willingly the same is a good account And in account if one confesseth and the other pleadeth in bar the confession of the one shall bind the other and such was the Opinion of the Court. Another matter was moved in this case because that one Tedcastell and Swinnerton being accountable to the said Gores and Dawbney they have accounted to Dawbney only and he alone hath accepted of the account and that is not any account therefore no desceit but the Action of Account doth remain To which it was answered by Popham That the same was a good account being accepted by Dawbney and should bind the Gores for an Account is a personal thing as an Obligation which may be released by one of the Obligees Vide 14 E. 4. 2. Where one was accountable to two and the one of them did assign Auditors before whom the Accountant is found in Arrearages and thereupon both of them brought Debt upon Account and well And so none of the Exceptions were allowed by the Court. Mich. 33 Eliz. In the Common Pleas. CCCX Trivilians Case THo Trivilian Tenant in tail of White Acre Black Acre and Green Acre leased White Acre for years to B. and Black Acre to C. and afterwards made a Feoffment of all three Acres to F. and others by Deed in which Deed was comprised a Letter of Attorney in which he ordained Harris and three others his Attorneys joyntly and severally to enter in the Premises and every part thereof in the name of the whole and possession in his name to receive and afterwards to make Livery c with other ordinary and usual words and it was expressed in the said Deed of Feoffment that the Feoffment should be to the intent to perform his last Will and afterwards one of the said Attorneys entred into the Land demised for life and expelled the Tenant for life and made Livery and Seisin to the Feoffees accordingly and afterwards the said Harris another of the Attorneys scil one of the Ioynt Lessees being one of the three Attorneys made Livery of the Land demised for years and after the Feoffor in the time of Queen Eliz. by his last Will devised That the Feoffees should be seized of the
infra Messuagium praedict ' modo forma and thereupon it was demurred in Law for it was said That the Defendant ought to have said Non usurpavit Libertates praedictas nec eorum aliquam for he ought to answer singulum and also he ought to have pleaded as well to the Manor as to the Messuage for if the Defendant hath holden Court within any place of the Manor it is sufficient And the Case 33 H. 8. Br. Travers sans ceo 367. was cited and Information was in the Exchequer That the Defendant had bought Wools of A.B. contrary to the Statute the Defendant pleaded That he had not bought of A. B. and the Plea was not allowed for he ought to have said That he had not bought modo forma for if he had bought of A. B. or J. S. the same is not any matter nor traversable which Cook denied to be Law And he conceived also that the Information upon the Quo Warranto is not sufficient for by the same the Defendant is charged to hold a Court and it is not shewed what Court and it may be it was a Court of Pypowders Turn c. And Vide 10 E. 4. 15 16. a Quo Warranto contains two things 1 Claim 2. Vsurpation And here the Defendant hath answered but to the Vsurpation and it hath said nothing as to the Claim And it hath been holden here heretofore that he ought to make answer to both And it hath been holden in a Reading upon the Statute de Quo Warranto which is supposed to be Frowicks Reading That a Quo Warranto doth not lye of such Liberties which do not lye in Claim as Goods of Felons c. which lyeth only in point of Charter CCCXIX. Temps Roign Eliz. THe Prior of Bath leased his Manor of A. to C. for life rendring rent and afterwards the Priory was dissolved the King leased the whole Manor cum pertinenciis to Sir Walter D. Kt. Dyer The matter depends upon this point If the Demesne be severed from the Services during the life of the Lessee And he conceived That the Lord cannot hold a Court if such a power be not reserved to him upon the Lease Weston The Manor nor is in suspence during the Lease for a Reversion upon an Estate for life and Services in possession cannot be united to make a Manor but contrary if but parcel had been leased Quod Curia concessit Welch The Demesnes are severed from the Services for ever as if they had been granted in Fee but here having regard to the Lessor the Demesnes and Services are united and made one Manor but as to the Lessee and all others the Services are in gross and of that Opinion was also Dyer And he said If a Bishop leaseth his Demesnes of his Manor for life and dyeth the Reversion shall be in his Successor and was in himself for his life in the right of his Church And if Husband and Wife seized of a Manor in the right of his Wife lease the Demesnes of the said Manor for life yet he hath the Reversion in the right of his Wife and in such Case it doth remain a Manor but if the Husband sole had made the Lease he had gained the Reversion to him and so severed it from the Manor CCCXX Temps Roign Eliz. Devises A. Devised that his Wife should take the Profits of his Lands until his daughter should come to the full age of 25 years and if the daughter dyed within the age of 18 years then his wife should have the Land for her life the remainder over to J. S. The daughter became of the age of 18 years and dyed before she came of the age of 20 years and Dyer held clearly That the Remainder was gone for the daughter accomplished and survived the age of 18 years And he said that the case late depending in the Kings Bench was this The Husband devised the Profits of his Lands to his Wife for 25 years and that then his Son should have it in Tail to him and to the Heirs of his Body c. now before the 25 years expired he hath Fee and if he hath Issue then his Estate is changed into Tail But by Carus he hath both Estates scil Fee-tail and Fee-expectant CCCXXI. Temps Roign Eliz. Surrenders A Woman Tenant in Tail made a Lease not warranted by the Statute took a Husband had Issue and dyed the Husband being Tenant by the Courtesie surrendred to the Issue It was holden that he should not avoid the Lease during the life of the Tenant by the Courtesie But yet some held That the Surrender ought to be by Deed as a Lease to A. for life the Remainder to B. for life the Remainder to C. in Fee if B. surrenders to C. it must be by Deed. CCCXXII Temps Roign Eliz. THe Case was this A. leaseth Lands to B. for years Extent rendring Rent with Clause of re-entry and afterwards Debt is recovered against him It was holden That now the Moiety of the Rent and the Reversion was extendable by Elegit and upon such Extent Condition suspended the Condition is suspended during the Extent as well in the Lessor as in the Party who hath the Extent Temps Roign Eliz. CCCXXIII Mitchell and Nordens Case Procedendo upon Aid-Prayer in Dower ELizabeth ' c. Dilectis Jacobo Dyer c. Monstravit nobis Elizabeth ' Mitchell quae fuit uxor c. Quod cum ipsa prosecuta fuit coram vobis sociis vestris c. Breve nostrum de Dote unde nihil habet versus Thomam Norden c. Et praedictus Thomas venit dixit Quod vir praedictae Elizabethae was seized and leased to him for life with warranty and for that cause he vouched to warranty Tristriam ' Mitchell Filium Haeredem dict' Richardi infra aetatem existen ' in Custodia eo quod dictus Richardus die quo obiit c. Et hoc paratus est verificare Unde non intendit quod vos praefati Justiciarii nostri nobis inde inconsultis ulterius procedere velletis Et petiit auxilium de nobis habuit Et super hoc dies datus est tam praefatae Eliz. quam dict Tho. Norden à die Pasc c. Et dictum fuit praefatae Eliz. Quod sequatur penes vos quarum quidem allegatione praetextu vos in placito praedict ulterius procedere distulistis adhuc differtis in ipsius Eliz. dispendium gravamen Et super hoc eadem Eliz. venit hic coram nobis in Cancellaria nostra Et petit Breve nostrum de Procedendo inde in hac parte vobis dirigend ' Super quo quaesita fuit in eadem Curia Cancellariae nostrae à Gilberto Gerrard Attornato nostro generali qui pro nobis in hac parte sequitur si quid dicere scivit aut potuit per quod dict' Tristriamus infra aetatem in custodia nostra
holden by the Iustices that the Fee was executed for a Moiety for the Remainder for years was not any impediment unto the Execution thereof Manwood conceived that the Term was not extinct for it is not properly a term but as an interest of a term which cannot be surrendred Mounson He hath the term in auter Droit viz. as Administrator therefore it cannot be extinct Dyer If an Executor hath a term and purchaseth the Fee-simple the term is determined A Woman Tenant for years taketh a Husband who purchaseth the Fee the term there is extinct Manwood True there for the Husband doth an act which destroyeth the term viz the purchase But if a Woman being a termor marrieth with him in the reversion the term continueth for here is no act of the husband but the act of the Law. Dyer was of Opinion That the Tenant for life and the Administrator should be Tenants in Common of the Fee. The Case was adjourned CCCXLIV Mich. 20 Eliz. In the Common Pleas. THe Case was The Husband is seized in the right of his Wife of certain customary Lands in Fee. He and his Wife by Licence of the Lord makes a Lease for years by Indenture rendring rent have Issue two Daughters the Husband dyeth the Wife takes another Husband and they have Issue a Son and a Daughter the Husband and Wife dye the Son is admitted to the reversion and dyes without Issue And by Manwood the said reversion shall descend to all the Daughters notwithstanding the half blood for the Estate for years which is by Indenture by licence of the Lord is a Demise or Lease according to the order of the Common Law and according to the nature of the Demise the possession shall be adjudged which possession cannot be said the possession of the Copyholder for his possession is customary and the other is contrary and therefore the possession of the one shall not be the possession of the other and so no Possessio Fratris in this case But if there had been a Guardian by the custom or this Lease had been made by surrender then the Sister of the half blood should not inherit And by Mead the case of the Guardian hath been so adjudged Mounson to the same intent And if a Copyhold descend to the Son he is not a Copyholder before admittance but he may take the profits of the Lands and punish a Trespasser CCCXLV. Mich. 15 Eliz. In the Common Pleas. THe Case was A man seized of Lands in Fee devised that his Wife should take the profits of his Lands until Mary his Daughter and Heir should come to the age of 16 years and if the said Mary shall dye that J. S. should be his Heir Manwood The Daughter after she hath attained the age of 16 years shall have the Land in tail for Devises ought to be construed according to the intent of the Devisor as near as it may be collected but no intent shall be taken against all reason and certainty It is certain that the Daughter shall not have the Fee-simple for the same should have descended to her without any Devise and these words if she dyed cannot be intended a Condition for it is certain that she shall dye But if the words had been before the age of 16 years That after her death J. S. should be his Heir in such case it had been a Condition And when it is said That J. S. should be his Heir it shall be intended his Collateral Heir so as the Estate tail remains in the Daughter Mounson and Harper contrary And that she should have but for life And by Mounson if J. S. had been a Stranger to the Devisee she should take nothing And this case was put by Barham Serjeant A man devised 100 l. to his youngest daughter 100 l. to his middle daughter and 100 l. to his eldest daugher and that all these Sums should be levied out of the profits of his Lands And it was the better Opinion of the Court that the youngest daughter should be first paid and then the middle and then the eldest daughter and that was one Coniers Case Mich. 16 Eliz. In the Common Pleas. CCCXLVI The Archbishop of Yorks Case 3 Leon. 159. THe Case was The King granted to the Archbishop of York the Toll of Corn sold in the Market of Rippon and afterwards the King granted to the Mayor and Citizens of York to be discharged of Toll through the whole Realm and afterward the Archbishop exchanged his Manor of Rippon with the King for another Manor It was moved if now the Citizens of York should be discharged of Toll for the Grant to the Archbishop was eigne to the Grant to the Citizens of York to be discharged of Toll in Rippon Dyer conceived that they should not be discharged for the King had no right and when the King grants over the Manor of Rippon the Grantee shall have the Toll notwithstanding the Grant made to the Citizens for the Grant made to them was void as to discharge them of Toll at Rippon for the Grant to the Citizens shall not take effect after the Exchange for the Grant was void ab initio But if the Grant of the King to the Archbishop had been but for life then the Grant afterwards made to the Citizens should have taken effect after the Estate for life determined And the better Opinion of the Court was that Toll should be paid Mich. 29 Eliz. In the Exchequer CCCXLVII The Bishop of Londons Case THe Case was The King Lord Mesne and Tenant the Mesnalty is holden in Chief and the Tenancy by Service the Mesnalty Escheats by Attainder now if the Tenancy shall be holden in Chief Manwood It hath been holden that no Tenure in Capite may be if not by the making of the King And he said That if before the Statute of West 3. the Tenant of the King had made a Feoffment to hold of him so that now there is Lord Mesne and Tenant and afterwards the Mesnalty comes to the King by Attainder and if by the said Mesnalty to the Crown the Seigniory paramount be extinct then the Tenancy is not holden in Chief but if the Mesnalty be drowned in the Seignory it is otherwise Some held That there was a difference where the Mesnalty comes to the Seigniory and where the Seigniory comes to the Mesnalty Quaere Trin. 26 Eliz. In the Kings Bench. CCCXLVIII Burgess and Fosters Case IN Ejectione firmae the Case was That the Dean and Chapter of Ely were seized of the Manor of Sutton whereof the place c. is parcel demised and dimisable by Copy according to the custom And that the said Dean and Chapter by their Deed granted the Stewardship of the said Manor to one Adams to execute the said Office per se vel legitimum suum deputat ' eis acceptabilem After which the said Adams made a Letter of Deputation to one Mariot ad Capiend ' unam sursam redditionem of
Tenants and therefore ought not to joyn c. It was Adjourned Temps Roign Eliz. In the Kings Bench. CCCLVII The President of Corpus Christi Colledge Case NOte It was holden by Cholmley Serjeant Plowden and many others in the Case of the President of Corpus Christi Colledge in Oxford That if the said Master or President of any such Colledge by his Will deviseth any Land to his Colledge and dyeth such Devise is void For at the time when the Devise should take effect the Colledge is without a Head and so not capable of such Devise for it was then an imperfect Body And so it was holden by the Iustices upon good advice taken thereof CCCLVIII Temps Roign Eliz In the Kings Bench. IN a Warrantia Chartae the Defendant said that the Plaintiff had not any thing in parcel of the Land the day of the Writ brought If in a Praecipe quod reddat the Tenant aliens and afterwards vouches the Vouchee is not bound to enter into the Warranty But here in this Case it may be That at the time that the Plaintiff requested the Defendant to warrant he was Tenant of the Land in which Case the warranty is attached and then if ever the Land be recovered against him he shall have this Writ and of this Opinion was Brown Iustice For the Land which the Defendant had at the time of the request is bound by the request but if he alieneth after the request he shall not have the Warranty CCCLIX Mich. 9 Eliz. In the Kings Bench. A Man seized of a Manor in which there are divers Copy-holds and the Custom there is That if any Copyholder leaseth his Land above the term of one year that he shall forfeit his Copyhold A Copyholder committed such a Forfeiture and afterwards the Lord leased the Manor for years and the Lessee entred for the Forfeiture and Weston said that his Entry was not lawful for although that the Heir may enter for a Condition broken in the time of his Ancestor because he is privy in blood yet the Lessee or Feoffee cannot do so for he is a Stranger such a one of whom an Estranger shall not take advantage Dyer If this forfeiture be preserved by Homage and enrolled in the Court Rolls the Lessee may well afterwards enter for by the forfeiture the Copyhold Estate is void and determined as if a Leafe for years be made rendring Rent upon Condition to cease if the Rent be not paid here presently by the not payment the Interest of the term is determined and of that the Grantee of the Reversion shall have advantage CCCLX Mich. 10 Eliz. In the Common Pleas. AN Action upon the Case was brought for stopping of a way The Plaintiff declared that the Duke of Suffolk was seized of a House in D. and let the same to the Plaintiff for life and that the said Duke and all those whose Estate c. have used time out of mind c. to have a way over the Land of the Defendant to the Park of D. to carry and recarry Wood necessary for the said House from the said Park to the same House and further declared That the Defendant Obstupavit the way It was moved by Carus That upon that matter no Action upon the Case lay because the Freehold of the House is in the Plaintiff and also the Freehold of the Land over which c. is in the Defendant But if the Plaintiff or the Defendant had but an Estate for years then an Action upon the Case would lye and not an Assize and it is not material If the Plaintiff had but an Estate for years in the Park quod fuit concessum per totam Curiam It was also holden That this word Obstupavit is sufficient without any more without shewing any special matter of the stopping as the erecting of any Gate Hedge Ditch c. for Obstupavit implyes a Nusance continued and not a personal disturbance as forestalling or saying to the Plaintiff upon the Land where c. that he should not go over or use the said way for in such case upon such a disturbance an Action upon the Case lyeth But as to a local and real disturbance the word Obstupavit amounts to Obstruxit and although in the Declaration is set down the day and year of the stopping yet it shall not be intended that it continued but the same day for the words of the Declaration are further By which he was disturbed of his way and yet is and so the continuance of the disturbance is alledged and of that Opinion was the whole Court. Leonard Prothonotary He hath declared of a Prescription habere viam tam pedestrem quam equestrem pro omnibus omnimodis Carriagiis and upon that Prescription he cannot have a Cart-way for every Prescription est stricti juris Dyer That is well observed and I confess that the Law is so and therefore it is good to prescribe habere viam pro omnibus Carriagiis without speaking either of a Horse or a Foot-way CCCLXI. A. Enfeoffed B. to the intent that B. should convey the said Land to such person as A. should sell it A. sold it to C. to whom B. refused to convey the Land and thereupon he brought an Action upon the Case against B. And by Wray Chief Iustice and Gawdy Iustice here is a good consideration for here is a trust and that which is a good consideration in the Chancery is in this case sufficient Shute Iustice was of a contrary Opinion And afterwards Iudgment was given for the Plaintiff Mich. 29 Eliz. In the Common Pleas. CCCLXII Sir Richard Lewknors Case SIr Richard Lewknor seized of Wallingford Park Ante 162. made a lease thereof for years and dyed the Lessee granted over his term to another excepting the Wood the term expired and an Action of Waste was brought against the second Lessee by the Coparceners and the Husband of the third Coparcener being Tenant by the Courtesie Shuttlewood and Snag Serjeants did argue That the Action would not lye in the form it was brought and the first Exception which was taken by them was because the Action was general viz. Quod fecit vastum in terris quas Sir Roger Lewknor pater praedict ' of the Plaintiff cujus haeredes ipsae sunt praefat ' Defendent demisit And the Count was that the Reversion was entailed by Parliament unto the Heirs of the Body of Sir Richard Lewknor and so they conceived that the Writ ought to have been special cujus haeredes de Corpore ipsae sunt For they said that although there is not any such Writ in the Register yet in novo Casu novum est apponendum remedium And therefore they compared the Case to the Case in Fitz. N. B. 57. viz. If Land be given to Husband and Wife and to the Heirs of the Body of the Wife and the Wife hath Issue and dyeth and the Husband committeth waste the Writ in that case and the like
shall be special and shall make special recital of the Estate And so is the Case 26 H. 8. 6. where Cestuy que use makes a lease and the Lessee commits waste there the Action was brought by the Feoffees containing the special matter and it was good although there was not any such Writ in the Register cujus haeredes de Corpore and we are not to devise a new form in such case but it is sufficient to shew the special matter to the Court. And the words of the Writ are true for they are Heirs to Sir Roger Lewknor and the Count is sufficient pursuant and agreeing to their Writ for they are Heirs although they are not special Heirs of the Body and so the Court was of Opinion that the Writ was good notwithstanding that Exception And Anderson and Periam Iustices said That the Case is not to be compared to the Case in Fitz. Nat. Brevium 57. for there he cannot shew by whose demise the Tenant holdeth if he doth not shew the special Conveyance viz that the Land was given to the Husband and Wife and to the Heirs of the Body of the Wife Nor is it like to the Case of 26 H. 8. for the same cause For always the demise of the Tenant ought to be specially shewed and certainly which it cannot be in these two Cases but by the disclosing of the title also to the reversion Another Exception was taken because that the Writ doth suppose Quod tenuerunt which as they conceived is to be meant that tenuerunt joyntly whereas in truth they were Tenants in Common Walmsley contrary because there is not any other form of Writ for there is not any Writ which doth contain two tenuerunts and the words of the Writ are true quod tenuerunt although tenuerunt in Common but although they were not true yet because there is no other form of Writ it is good enough as Littleton If a Lease be made for half a year and the Lessee doth Waste yet the Writ shall suppose Quod tenuit ad terminum annorum and the Count shall be special 40 E. 3. 41 E. 3. 18. If the Lessee doth commit Waste and granteth over his term the Writ shall be brought against the Grantor and shall suppose Quod tenet and yet in truth he doth not hold the Land and the Writ shall not contain two Tenets and such also was the Opinion of the Court. The third Exception was because that the Writ was brought by the two Coparceners and the Heir of the third Coparcener without naming of Tenant by the Courtesie And thereupon Snag cited the Case of 4 E. 3. That where a Lease is made for life the Remainder for life and the Tenant for life doth waste he in the Reversion cannot have an Action of Waste during the life of him in the Remainder So in the like case the Heir of the third Coparcener cannot have waste because there is a mean Estate for life in the Tenant by the Courtesie And to prove that the Tenant by the Courtesie ought to joyn in the Writ he cited the Case of 3 E. 3. which he had seen in the Book at large where the Reversion of a Tenant in Dower was granted to the Husband and to the Heirs of the Husband and the Tenant in Dower did waste and they did joyn in the Action of Waste and holden good And so is 17 E. 3. 37. F. N. B. 59. 22 H. 6. 25. Walmsley contrary for here in our Case there is nothing to be recovered by the Tenant by the Courtesie for he cannot recover damages because the disinherisin is not to him and the term is expired and therefore no place wasted is to be recovered and therefore it is not like to the Books which have been vouched For in all those the Tenant was in possession and the place wasted was to be recovered which ought to go to both according to their Estates in Reversion but so it is not here for in as much as the term is expired the Land is in the Tenant by Courtesie and so he hath no cause to complain And such also was the Opinion of the whole Court that the Writ was good notwithstanding the said Exception Then concerning the principal matter in Law which was whether the Writ was well brought against the second Lessee or whether it ought to have been brought against the first Lessee It was argued by Shuttleworth That it ought to have been brought against the first Lessee for when he granted over his term excepting the Trees the Exception was good ergo c. For when the Land upon which the Trees are growing is leased out to another the Trees pass with the Lease as well as the Land and the profit of them is in the Lessee during the term and therefore when he grants his term he may well except the Trees as well as the Lessor might have done And that is proved by the Statute of Marlbridge for before that Statute the Lessee was not punishable for cutting down the Trees and that Statute doth not alter the property of the Trees but only that the Lessee should render damages if he cut them down c. Also the words of the Writ of Waste proveth the same which are viz. â—n terris domibus c. sibi dimissis And the Lessee might have cut them down for Reparation and for Firewood if there were not sufficient Vnderwood which he could not have done if the Trees had not been excepted And in 23 H. 8. Br. it is holden that the excepting of the Trees is the excepting of the Soil And so is 46 E. 3. â— where one made a Lease excepting the Woods and afterwards the Lessee did cut them down and the Lessor brought an Action of Trespass Quare vi armis clausum fregâ— c. and it was good notwithstanding Exception was taken to it And it is holden 12 E. 4. 8. by Fairfax Littleton That if the Lessee cut the Trees that the Lessor cannot carry them away but he is put to his Action of Waste Fenner and Walmsley Serjeants contrary And they conceived that the Lessee hath but a special property in the Trees viz. for Fire-boot Plough-boot House-boot c. and if he pass over the Lands unto another that he cannot reserve to himself that special property in the Trees no more than he who hath Common appendant can grant the principal excepting and reserving the Common or grant the Land excepting and reserving the Common or grant the Land excepting the Foldage The grand property of the Trees doth remain in the Lessor and it is proved by 10 H. 7. 30. 27 H. 8. 13. If Tenant for life and he in the Reversion joyn in a Leafe and the Lessee doth Waste they shall joyn in an Action of Waste and the Tenant for life shall recover the Free-hold and the first Lessor the damages which proves that the property of the Trees is in him As to
But all the Court held the contrary and that the Copy should bind the Feoffee and the ceremony of admittance was not necessary For otherwise every Copyholder in England might be defeated by the sole act of the Lord viz. his Feoffment But the Lord by his own act which shall be accounted his folly hath lost his advantages viz. Fines Heriots and such other Casualties Mich. 29 Eliz. In the Common Pleas. CCCLXV Boxe and Mounslowes Case THomas Boxe brought an Action upon the Case against John Mounslowe That the Defendant slandred him in saying That the said Thomas Boxe is a perjured Knave and that he would prove the said Thomas Boxe had forsworn himself in the Exchequer c. and supposed the said words to be spoken in London 4 Feb. 28 Eliz. Et praedict ' Johannes Mounslowe per Johannem Lutrich Attornatum suum venit defendit vim injuriam quando c. Et dicit quod praedict ' Tho. Boxe actionem suam versus eum habere non debet quia dicit quod praedict ' Thomas Boxe being one of the Collectors of the Subsidies before the speaking of the said words viz. 27 28 Eliz. in Curia Scaccarij apud Westm ' did Exhibt a Bill against the said John Mounslowe containing That the said John being assessed in ten pounds in Goods the said Thomas Boxe came to him and demanded of him sixteen shillings eight pence which the said John Mounslowe did refuse to pay and that demand and refusal was supposed to be in London in Breadstreet Et pro verificatione praemisiorum adâ—unc ibid ' Sacramentum Corporale per Barones praefat ' Thomae Boxe praestitit The said Thomax Boxe swore the said Bill in substance was true ubi revera the said John Mounflowe did not refuse per quod the said John Mounslowe postea viz. praedict tempore quo c. dixit de praefat ' Thoma Boxe praedict verba c. pâ—out ei bene Leuit The Plaintiff replyed that the Defendant spake the words de injuria sua propria absque causa per praefat Johannem Mounslowe superius allegata Et hoc petit quod inquiratur per Curiam praedict defendens similiter And a Venâ—re Facias was awarded to the Sheriffs of London and it was found for the Plaintiff and damages 400 l. And now it was moved in Arrest of Iudgment that there was no good Trial nor the Issue well joyned for the Issue doth consist upon 2 points triable in several Counties viz the Oath which was in the Exchequer and that ough to have been tryed in Middlesex and the matter which he affirmed by the Oath viz the demand and the refusal to pay the subsidy and that was alledged to be in London and is there to be tryed and the Issue viz. de 〈…〉 propria goeth to both for the ubi revera will not amend the Case as Penam Iustice said and both are material For the Defendant ought to prove that the Plaintiff made such Oath and also that the substance and matter of the Oath was not true for otherwise the Plaintiff cannot be proved perjured And therefore the Counties here if they might should have joyned in the Tryal And the Opinion of the Court was against the Plaintiff For Anderson and Wincham said That if this Issue could have been tryed by any one of the Counties without the other it should most properly and naturally have been tried in Middlesex where the Oath was made for the Perjury if any were was in the Exchequer But they said The Issue here was ill joyned because it did arise upon two points triable in several Counties which could not joyn whereas the Plaintiff might have taken Issue upon one of them well enough for each of them did go to the whole and if any of them were found for the Plaintiff that he had sufficient cause to recover Gawdy moved that it should be helped by the Statute of Ieofails which speaks of mis-joyning of Issues Anderson The Issue here is not mis-joyned For if the Counties could joyn the Issue were good but because that the Counties cannot joyn it cannot be well tryed But the Issue it self is well enough Windham and Rhodes were of the same Opinion but Periam doubted it Anderson said That if an Issue tryable in one Court be tryed in another and Iudgment given upon it it is Error And afterwards Lutrich the Attorney said That it was awarded that they should re-plead Nota quod mirum For first the Statute of 32 H. 8. cap. 30. speaks of mis-joyning of Process and not mis-joyning of Issues and admit that this Case is not within any of those Clauses each of them being considered by it self yet I conceive it is contained within the substance and effect of them being considered together Also I conceive it is within the meaning of both Statutes viz. 32 H. 8. cap. 30. 18 Eliz. cap. 14. for I conceive the meaning of both Statutes was to waste delays circuits of Actions and Molestations and that the party might have his Iudgment notwithstanding any defect if it were so that notwithstanding that defect sufficient title and cause did appear to the Court. And here the Plaintiff hath sufficient cause to recover if any of the points of the Issue be found for him For if it be found that the matter and substance of the Oath be found true which might be tryed well enough by those in London the Plaintiff had cause to recover Wherefore I conceive that the Verdict in London is good enough and effectual And note that Rhodes said that he was of Counsel in such a case in the Kings Bench betwixt Nevil and Dent. CCCLXVI Mich. 19 Eliz. In the Common Pleas. 3 Leon. 103. THe Case was A. granted B. a Rent-charge out of his Lands to commence when J. S. dyes without Issue of his Body J. S. dyes having Issue and the Issue dyeth without Issue Dyer said That the Grant shall not take effect for J. S. at the time of his death had Issue and therefore the Grant shall not then commence and if he dyeth then not at all by Manwood And Dyer and Manwood said If the words had been to begin when J. S. is dead without Issue of his Body then such a Grant should take effect when the Issue of J.S. dyes without Issue c. And they said That if the Donee in tail hath Issue which dyeth without Issue the Formedon in Reverter shall suppose that the Donee himself dyed with Issue for there is an Interest And there is a difference betwixt an Interest and a Limitation For if I give Lands to A and B. for the term of their lives if either of them dyeth the Survivor shall hold the whole But if I give Lands to A. for the lives of B. and C. now if B. or C. dyeth the whole Estate is determined because it is but a Limitation and B. and C. have not any Interest CCCLXVII Temps Roign
Eliz. In the Common Pleas. THe Prior of Bath let his Manor of A. to C. for life rendrint Rent and after the Priory dissolved the King let the whole Manor with the appurtenances to J. S. Dyer The matter depends upon this point If the Demesus be severed from the Services during the life of the Lessee And he conceived that the Lord could not hold a Court if such power were not reserved upon the Lease contrary if but parcel had been leased quod fuit concessum Welch The Demesns are severed from the Services for ever as if they had been granted in Fee but here having regard to the Lessor the Demesns and Services are united and make one Manor But as unto the Lessee and all others the Services are in gross and such also was the Opinion of Dyer And he said That if a Bishop Leases the Demesns of his Manor for life and dyeth the Reversion shall be in his Successor and was in him in his life time in the right of his Church and if Husband and Wife seized of a Manor in the right of the Wife let the Demesns of the said Manor for life yet he hath the Reversion in the right of his Wife and in such Case it remains a Manor but if the Husband alone had let it he had gained the Reversion to him and severed it from the Manor CCCLXVIII Trin. 33 Eliz. In the Common Pleas. THe Case was 3 Leon 252. A man 30 Eliz. made a Feoffment in Fee to the use of himself for life and after to the use of his first Son and his Heirs The Father and the Feoffees before Issue For mony by Deed gave granted and enfeoffed J. S. and his Heirs who had no notice of the use the Tenant for life had Issue and dyed the Issue entred Glanvill The use limited to the first Son is destroyed for without regress of the Feoffees it cannot rise and it is gone by the Livery Vide Plow Com. 347. And also he put the Case of the Earl of Kent who by the Release of the surviving Feoffees a dormant use was destroyed and could not afterwards be revived Harris The use might rise without the entry of the Feoffees and he put a difference betwixt an use created before the Statute and created after for in the first case they ought to enter and if they be disabled by any Act as in the case of Gascoign and the Earl of Kent it shall never rise but in the latter case all the authority and confidence is by the Statute taken out of the Feoffees and the use contingent shall rise without aid of the Feoffees by the operation of the Law for the Land is bound to the uses and charged with them as upon a Recovery in a Warrantia Chartae the Land of the Defendant is charged pro loco tempore and according to the common Experience in Conveyances for payment of the Kings Debts as in the case of Bowden and Dennis the Debtor of the King made a Feoffment in Fee unto the use of himself and his Heirs until he should make a default of payment of such a Sum to the Queen at such a day and for default to the use of the Queen and her Heirs Cooper There needs no entry of the Feoffees and he put the difference before put by Harris between an use created before and an use created after the Statute and now the Feoffees have not any power to revive or destroy such uses but are only as instruments to convey the uses for the use is created upon the Livery and is transferred by the Statute if the person to whom the use is limited be capable thereof at the time of the limitation and he put the Case of Feoffments to uses 30 H 8. and there is a great difference betwixt uses limited before and after the Statute for they have not such a Seisin whereof they may make a Feoffment And he put the Case of Cheny and Oxenbridge Cheny let to Oxenbridge for 60 years and afterwards enfeoffed Oxenbridge to the use of Cheny himself and his Wife for their lives with divers Remainders over and it was adjudged in the Court of Wards that by that Feoffment the term was not extinct And he put the Case of the Lord Paget adjudged in the Kings Bench A Feoffment was made to the use of the Feoffor for life the Remainder to him whom the Feoffor should name at his death in Fee the Feoffor and the Feoffees for good consideration levy a Fine to a stranger and afterwards the Feoffor names one and dyes the party named by the Feoffor shall have the Land notwithstanding the Fine Beaumount The contingent use here is utterly destroyed and it appears by the preamble of the Act of 27 H. 8. that the makers of the said Act did not favour Vses but their intent was utterly to root out Vses and if contingent Vses which are not nor can be executed by the Statute should stand in force the mischief would be That no Purchasor would be secured of his Purchase but should always be in danger of a new born use not before known And he grounded his further Argument upon the reason of Manwood and Dyer Where a man makes a Feoffment in Fee to the use of himself and his Wife that shall be and afterwards he and his Feoffees and those in remainder make a Feoffment to divers new Feoffees and unto new Vses and afterwards takes another wife and dyes it seemed to the said 2 Iustices that by that Feoffment ut supra the contingent Vse was destroyed for when the Estate which the Feoffees accepted of is taken away which is the root and foundation of the Vses which are the Branches and Body of the said Tree it necessarily follows that they also be taken away And forasmuch as the Feoffees by their Livery are barred to enter for to recontinue the Estate which should yield the said Vses they also are gone and extinguished Yelverton conceived that notwithstanding the Feoffment that the use did rise in its due time according to the limitation of it Quaere the Case was not Resolved but Adjourned CCCLXIX Trin. 33 Eliz. In the Common Pleas. IN a Replevin the Defendant avowed for Damage feasant the Plaintiff in bar of the Avowry shewed That he is inhabitant of such a Town and shewed that every inhabitant in every Messuage in the said Town had used to have Common in the place where c. Glanvill The Prescription is not good for want of capacity in the party who pretends interest for it is not certain but applyed to a multitude and he put divers cases to prove the same as 22 H. 6. 21 H. 7. 1. Mariae Dyer 100. The King grants a Rent probis hominibus de Islington the same is void for they are not capable Harris The Prescription is good and he agreed that a confused multitude could not prescribe in matter of Interest but in an Easement or Discharge as