husband and therefore the prescription is not good that Potest ponere retes upon the land of another upon the Custome of the Sea for prescription must be in a thing done also by him the devise is not good according to the Custome for that is that she may devise and surrender and that ought to be all at one time and that in the presence of the Reeve and six other persons as well as the Surrenderer and the words of a Custome shall be so far performed as they may be Meade contrary And that these Witnesses shall be referred to the surrender onely for a devise may be without Witnesses And he said that sometimes the latter clause shall not refer to all the precedent matter but unto the latter onely as 7. H. 7. is Where a Praecipe was brought of lands in A. B. and C. in Insula de Ely the Clause in Insula de Ely is referred onely to C. And it was said That if in the principal Case the Will were good that then the husbands are Tenants in common and then the Action of Trespass is not maintainable Pasch 25. Eliz. in the Common Pleas. 23. THis Case was moved by Serjant Gawdy Thomas Heigham had an hundred Acres of lands called Jacks usually occupied with a house and he leased the house and forty Acres parcel of the said hundred Acres to I. S. for life and reserved the other to himself and made his Will by which he doth devise the house and all his lands called Jacks now in the occupation of I. S. to his wife for life and that after her decease the remainder of that and all his other lands pertaining to Jacks to R. who was his second son Whether the wife shall have that of which her husband died seised for her life or whether the eldest son should have it and what estate he shall have in it Meade The wife shall not have it for because that he hath expressed his Will that the wife shall have part it shall not be taken by implication that she shall have the whole or the other part for then he would have devised the same to her And therefore it hath been adjudged in this Court betwixt Glover and Tracy That if Lands be devised to one and his heirs males and if he die without heirs of his body that then the land shall remain over that he had no greater estate then to him and his special heirs viz. heirs Males and the reason was because the Will took effect by the first words Anderson Chief Justice It was holden in the time of Brown That if lands were devised to one after the death of his wife that the wife should have for life but if a man seised of two Acres deviseth one unto his wife and that I. S. shall have the other after the death of the wife she takes nothing in that Acre for the Cause aforesaid For the second matter If the Reversion shall pass after the death of the wife to the second son we are to consider what shall be said land usually occupied with the other and that is the land leased with it But this land is not now leased with it and therefore it cannot pass Windham The second son shall have the Reversion for although it doth not pass by these words Usualy Occupied as Anderson held yet because the devise cannot take other effect and it appeareth that his intent was to pass the land the yonger son shall have it Anderson Jacks is the intire name of the house and lands And that word when it hath reference unto an intire thing called Jacks and is known by the name of Jacks shall pass to the second son for words are as we shall construe them And therefore If a man hath land called Mannor of Dale and he deviseth his Mannor of Dale to one the land shall pass although it be not a Mannor And if I be known by the name of Edward Williamson where my name is Edward Anderson and lands are given unto me by the name of Edward Williamson the same is a good name of purchase And the opinion of the Court was that the Reversion of the land should pass to the second son Pasc 25. Eliz. in the Common Pleas. 24. The Lord MOUNTJOY and the Earle of HUNTINGTON'S Case NOte by Anderson Chief Justice and Periam Justice If a man seised of any entrie Franchises as to have goods of Felons within such a Hundred or Mannor or goods of Outlaws Waifes Strares c. which are causual There are not Inheritances deviseable by the Statute of 32. H. 8. for they are not of any yearly value and peradventure no profit shall be to the Lord for three or four years or perhaps for a longer time And such a thing which is deviseable ought to be of annual value as appeareth by the words of the Statute And also they agreed that the said Franchises could not be divided and therefore if they descend to two coparceners no partition can be made of them And the words of the Statute of 32. H. 8. are That it shall be lawful c. to divise two parts c. and then a thing which canot be divided is not diviseable And they said That if a man had three Manors and in each of the three such Liberties and every Manor is of equal value that yet he cannot devise one Mannor and the Liberties which he hath to it Causá quâ supra but by them an Advowson is deviseable because it may be of annual value But the Lord Chancellor smiling said That the Case of the three Manors may be doubted And there also it was agreed by the said two Justices upon Conference had with the other Justices That where the Lord Mountjoy by deed Indented and Inrolled did bargaine and sell the Manor of â—amford to Brown in Fee and in the Indenture this Clause is contained Provided alwayes And the said Brown Covenants and Grants to and with the Lord Mountjoy his Heirs and Assigns that the Lord Mountjoy his Heirs and Assigns may digg for Ore within the land in Camford which was a great Waste and also to digg Turffe there to make Allome and Coperess without any contradiction of the said Brown his Heirs and Assigns They agreed That the Lord Mountjoy could not devide the said Interest viz. to grant to one to digg within a parcel of the said Waste And they also agreed That notwithstanding that Grant That Brown his Heirs and Assigns owners of the Soile might digg there also like to the Case of Common Sans number The Case went further That the Lord Mountjoy had devised this Interest to one Laicott for one and twenty years and that Laicott assigned the same over to two other men And whether this Assignment were good or not was the Question forasmuch that if the Assignement might be good to them it might be to twenty and that might be a surcharge to the Tenant of the soile And as to that
the Justices did agree that the assignement was good but that the two assignees could not work severally but together with one stock or such workmen as belonged to them both And Cook who reported the opinions of the Justices was of Counsel with the Lord Mountjoy And note in that case it was said That Proviso being coupled with other words of covenant and grant doth not create a Condition but shall be of the same nature as the other words with which it is coupled Pasch 25. Eliz. In the Common Pleas. 25. WEBBE and POTTER'S Case In an Ejectione firme the Case was this JOhn Harris gave Land in Frankmarriage to one White And the words of the Deed were Dedi concessi I. W. in liberum maritagium Joannae filiae suae Habendum eidem J. W. haeredibus suis in perpetuum tenendum de Capitalibus Dominis fâ—odi c. with warranty to the Husband and his heirs Periam Justice although the usuall words of gift in Frankmarriage are not observed yet the Frankmarriage shall not be destroyed for the usuall words are In liberum maritagium cum Joanna filia mea in the ablative case And it was holden by all the Justices that notwithstanding that the Frankmarriage was good Also a gift in Frankmarriage after the espousals is good as it was holden by all the Justices And see Fitz. Tit. Taile 4. E. 3. and 2. H. 3. Dower 199. And he said That a gift in Frankmarriage before the Stat. of Donis c. was a Feesimple but now it is but a special tail and if it should not be in law a gift in Frankmarriage then the Husband and Wife have an estate but for their lives for they cannot have an estate taile for that there are not words of limitation of such estate in the gift And hee cited 4. E. 3. and 45. E. 3. 20. to prove his opinion and hee much relyed upon the intent of the Donor which ought to be observed in construction of such Gifts according to the Statute And because the Habendum is repugnant to the premisses and would destroy the Frank-marriage it is void and the premisses shall stand good and to prove that he cited 9. E. 3. 13. E. 1. 32. E. 1. Tit. Taile 25. 3. H. 4. by Hill And he took this difference Where a Remainder is limited upon a Gift in Frankmarriage to a stranger and where it is limited to one of the Donees for in the first case the Remainder is good for the benefit of the stranger but in the second case it is void And he said that if a Rent be reserved upon such a Gift that it should be void during the four degrees but afterwards the Reservation should be good And if the Donor grant the Reversion over and the Donee in Frank-marriage attourn now he shall pay rent to the Grantee for by Littleton he hath lost the Priviledg of Frankmarriage viz. the Aquitall and no privitie is betwixt the Grantee and the Donees 10. Ass 26. 4. H. 6. That it is not any taile if it be not Frankmarriage Windham Justice Although it be no estate in Frankmarriage yet is it an estate taile and he cited 8. E. 3. although there want the word Heirs Also if a man give lands to another semini suo it is good 45. E. 3 Statham taile If it be not Frankmarriage yet it is a good estate in taile 19. Ass Land was given to Husband and Wife in Frank-marriage infra annos nubiles and afterwards they are divorced the Wife hath an estate in taile Meade Justice did agree with Windham and said That although there be not any Tenure nor any Aquitall yet it may be a good Frankmarriage as if a Rent Common or Reversion be given in Frankmarriage it is good and yet there is not any Tenure nor aquitall Dyer Chief Justice conceived That it is not Frankmarriage because that the usuall words in such Gifts are not observed for he said that the gift ought to be in liberum Maritagium and not Joannae filiae suae for that is not the usuall form of the words And he said That if the word Liberum be omitted that it is not Frankmarriage for that he said is as it were a Maxime and therefore the usuall words ought to be observed And by the same reason such a Gift cannot be with a man but ought to be with a woman also such a Gift ought to be with one of the blood of the Donor who by possibilitie might be his Heir Also there ought to be a Tenure betwixt the Donor and Donee and also an Aquitall And if these grounds and ceremonies be not observed it is not Frankmarriage Also if it once take effect as a Frankmarriage and afterwards the Donor granteth the Reversion over or if the Reversion doth descend to the Donees yet it shall not be utterly destroyed but shall remaine as an estate taile and not as an estate for life because it once took effect in the Donees and their issues as a Frankmarriage 31. E. 1. taile 116. If a man give lands in Frankmarriage the remainder to the Donees and the heirs of their bodies yet it is a good Frankmarriage And if a man give Lands in Frankmarriage the Remainder to another in taile it shall not destroy the Frankmarriage because that the Donor hath the Reversion in Fee in himself and the Donees shall hold of him and not of him in the Remainder in taile but if the Remainder had been limited to another in Fee simple then it had been otherwise Also if the Donor grant the Services of the Donees in Frankmarriage reserving the Reversion to himself it is no good Grant although that the Donees attourne for that the Services are incident to the Reversion but if he grant the Reversion then they do passe And he concluded That the Husband had the whole and that the Wife had nothing for she was no purchaser of the premisses because that the Gift did not take effect as a gift in Frankmariage And he said that he doth not construe it so by the intent of the Gift for here is an expresse limitation of the Fee to the Husband and his heirs which shall not be contradicted by any intendment for an Intendment ought to give way to an expresse Limitation as a consideration implyed ought to give place to a consideration expressed And afterwards this yeer it was adjudged that it was not a Frankmarriage nor a Gift in taile but that it was a Fee simple And the Justices said that although the old books are That where it takes not effect as a Frankmarriage that yet it shall take effect as an estate taile those Books are against Law But they agreed That where once the Gift doth take effect as a Frankmarriage that by matter ex post facto it might be turned to an estate in taile Pasch 26. Eliz. In the Common Pleas. 26. MEade and Windham the other Justices being absent were of opinion That a
any remedy in this Court. Also he saith That he hath paid but doth not shew where and the other may say nâ—n solvit and so an issue shall be and no place from whence the Visne shall come Godfrey contrary If one be a lay man and the other a spirituall man then the tryall shall be at the common Law as it is holden 31. H 6. and 2. E. 4. And the defendant here is a lay man who makes prescription of a Modus decimandi for the discharge of Tithes in kind As to that which Cook said That he prescribes that he hath used to pay to the Parson and doth not say That it was due to the Parson and if he pay the Vicars Tithes to the Parson he doth wrong to the Vicar He saith That he hath paid and used to pay 4d. to the Parson in full satisfaction c. and reddâ—ndo singula singâ—lis it is good enough As to the doublenesse or repugnancy of the Prescription he said That the prescription is set forth according to the truth of the matter As to the place for that no issue can be taken upon it he answered That he conceived the issue will bee upon the Custome or Modus decimandi And Gawdy Justice agreed to that Suit Justice There is no Modus decimandi alledged for when he saith That he hath paid to the Parson that which the Vicar demands that is no answer Gaudâ— Justice The prescription is repugnant as Cook said and he said That the herbage is for all Kine as well for those which have Calves as those which have not No Prohibition granted Mich. 28 29. Eliz. in the Kings Bench. 64. WINDSMORE and HULBORD's Case THe Case was this A man gave lands to J. S. Habendum to him and to three other for their lives â—t eorum diutius viventi successivè The question was What estate J. S. had and if after his life there were any occupancy in the Case Cooke That J. S. had an estate but for his life onely because he cannot have an estate for his life and for the life of another where the interest commenceth both in praesenti but he may have an estate for his own life in present interest and the remainder thereof for anothers life But this Habendum by no means can create a Remainder And he said that as a Lease to one for life Habendum to him primogâ—nito filio suo was no Remainder primogenito filio although some held to the contrary So a Lease for years Habendum to him and to another was no Remainder to the other Also the word successivè doth not make a Remainder as 30. H. 8. Br. Joynâ—ts 53. where a Lease for life to three or for yeers to three Habendum successivè yet they have a joynt estate and successivè is void for he said It is uncertain who shall have it first and who secondly Also one cannot have an estate for his own life and for the life of another at the same time in present interest for the greater will drown the lesser But if the greater be in praesenti and the lesse in futuro as a lease for his own life the Remainder to him for another mans life it is otherwise As a lease for his own life the Remainder for yeers is good But if I make a lease to you for your own life and 100 years both to begin at the same time the Lease for yeers is drowned and an estate for his own life is greater then an estate for anothers life and shall drown the estate for anothers life Vide 19. E. 3. Surr. 8. where Tenant for life of a Manor did surrender to Tenant for life in Reversion And 12. H. 7. 11. and Perkins 113. That if there be a Lease for life to one the Remainder to another for life and the Lessee for life doth surrender to him in the Remainder it is good So Dyers Reports A lease is made to one for the term of another mans life without impeachment of Waste the Remainder to him for his own life he is now punishable for waste for the first estate is surrendred Gaudy Justice If a lease be made to one for his life and so long as another man shall live quaere what estate he hath 2. If there can be any Occupancy in the Case for if the estate be void the limitation upon the estate is void therefore if the estate for the other mans life be drowned in the estate for his own life that can be no Occupancy Also the Occupancy is pleaded That such a one entred and doth not say claiming as occupant For if one come hawking upon the land he shall not by such entry be an Occupant and in the book of Entries it is pleaded that he entred clayming as Occupant Clenche Justice Every Occupancy ought to be in possession for otherwise the Law casts the interest of it upon him in the Reversion But Gaudy and Suit Justices were utterly against him in that for then they said there should be no occupancy if the party were not in by Lease or such like means Mich. 28 29. Eliz. in the Kings Bench. 65. DIKE and DUNSTON'S Case IN an Action of Trespasse brought the defendant did justifie as Lessee to the Lord Mountagu and said that the Lord Mountagu for him and his Farmors had used to have a way over the land in which the trespass is supposed to be done And that by rooting of a cart wheel the way was so digged and drowned that he could not so wel use his way as before and that therefore he did fill up the cart roots and digged a trench to let out the water upon which the plaintiffe did demur in law For 15. H. 7. is that a Commoner cannot meddle with the soil so is 12. 13. H. 8. So he who hath Warren in the land of another man cannot meddle with the soile and as to that that he could not use his way so well as before it is not good for he ought to have said That he could not use his way at all otherwise the plea is not good As 6. E. 4. One is to lop his tree and he cannot do it unless it fall upon the Land of another there he may well justifie the felling of it upon the others Land because otherwise he could not lop it at all So if I give to one all the fish in my Pond he cannot dig a Trench to draw out the water unlesse he cannot otherwise take the fish as with Nets c. Also he justifies by reason that the Lord Mountagu for him and his Farmors c. And he was a Lessee and paid no rent therefore no Farmor Cowper contrary He shall not have an Action of Trespass for it is no losse or hinderance unto him but it is for his profit for the Land is the worse being drowned with water If a man do disseise me and fells trees upon the Land and doth repair the houses in an
haeredes de corpore and we are not to devise a new form in such case but it is sufficient to shew the speciall matter to the Court. Also 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 speciall Heirs of the body and so the Court was of opinion that the Writ was good notwithstanding that Exception And Anderson and Periam Justices said That the case is not to be compared to the case in F. Nat. Br. 57. c. for there he cannot shew by whose Demise the Tenant holdeth if he doth not shew the speciall conveyance viz. that the land was given to the Husband and Wife and the Heirs of the body of the Wife Nor is it like unto the case of 26. H. â— 6. for the same cause for alwayes the demise of the Tenant ought to be especially 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 Walmesley 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 tenet ad terminum annorum and the count shall be speciall 40. Ed. 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 44. Ed. 3. and Fitz. If one make divers leases of divers lands and the Lessee doth waste in them all the Lessor shall have one Writ of waste supposing quod tenet and the Writ shall not contain two Tenets And such was also 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 the Tenant by the Courtesie And thereupon Snagg cited the Case of 4. Ed. 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 this case the Heir of the third coparcener cannot have waste because the mean estate for life is in the Tenant by the courtesie And to prove that the Tenant by the courtesie ought to joyn he cited 3. E. 3. which he had seen in the Book it self 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 an Action of waste and not good And so is 17. E. 3. 37. F. N. B. 59. f. and 22. H. 6. 25. a. Walmesley 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 disinheresin is not to him and the term is expired and therefore no place wasted is to be recovered and therefore it is not like unto the Books which have been cited 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 it is not so here for in as much as the term is expired the land is in the tenant by the courtesie and so he hath no cause to complain And such also was the opinion of the whole Court viz. that because the term was ended that the Writ was good notwithstanding the said Exception Then concerning the principall matter in Law which was Whether the Writ were 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 passe with the Lease as well as the Land and the property of them is in the Lessee during the term and therefore when he grants his term hee may well except the trees as well as the first Lessor might have done And that is proved by the Statute of Marlebridge Cap. 23. for before that Statute the Lessee was not punishable for cutting downe the trees and that Statute doth not alter the properties of the trees but onely that the Lessee shall render damages if he cut them down c. Also the words of the Writ of Wast proveth the same which are viz. in terris domibus c. sibi dimissis Also the Lessee might have cut them down for reparations c. and for fire-wood if there were not sufficient underwoods which he could not have done if the trees had been excepted And in 23. H 8. in Brooke It is holden that the excepting of the trees is the excepting of the Soile And so is 46. E. 3. 22. Where one made a Lease excepting the woods and afterwards the Lessee did cut them down and the Lessor brought an Action of Trespasse quare vi armis clausum fregit c. and it was good notwithstanding that Exception was taken to it And it is holden in 12. E. 4. 8. by Fairfax and Littieton 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 Walmesley Serjeants contrary and they conceived that the Lessee hath but a speciall property in the trees viz. for fire-boot plough-boot house-boot c. And if he passe over the Lands unto another that he cannot reserve unto himselfe that speciall property in the trees no more then he who hath common appendant can grant the principall 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. and 27. H. 8 13. c. If Tenant for life and he in the reversion joyne in a Lease and the Lessee doth wast they shall joyne in an Action of Wast and 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 that that he was dispunishable at the common law that was the folly of the Lessor and although it was so at the
of the Justices was That the Fee was executed for a moitie Manwood If the Land be to one for life the Remainder for yeers the Remainder to the first Tenant for life in Fee there the Fee is executed so as if he lose by default he shall have a Writ of Right and not Quod ei deforceat for the term shall be no impediment that the Fee shall not be executed As a man may make a lease to begin after his death it is good and the Lessor hath Fee in possession and his wife shall be endowed after the Lease And I conceive in the principall case That the term shall not be extinct for that it is not a term but interesse termini which cannot be granted nor surrendred Mounson If he had had the term in his own right then by the purchase of the Fee the Term should be extinct But here he hath it in the right of another as Administrator Dyer If an Executor hath a term and purchaseth the Fee the term is determined So if a woman hath a term and takes an husband who purchaseth the Fee the term is extinct Manwood The Law may be so in such case because the Husband hath done an act which destroyes the term viz. the purchase But if the woman had entermarried with him in the Reversion there the term should not be extinguished for the Husband hath not done any act to destroy the term But the marriage is the act of Law Dyer That difference hath some colour But I conceive in the first case That they are Tenants in common of the Fee Manwood The Case is a good point in law But I conceive the opinion of Manwood was That if a Lease for yeares were to begin after the death surrender forfeiture or determination of the first lease for yeares that it shall not begin in that part for then perhaps the term in that part shall be ended before the other should begin Pasc 20. Eliz. in the Common Pleas. 3. A Man seised of Copyhold land descendable to the youngest Son by Custome and of other Lands descendable to the eldest Son by the common Law leaseth both for yeers The Lessee covenanteth That if the Lessor his wife and his heirs will have back the land That then upon a yeers warning given by the Lessor his wife or his heirs that the Lease shall be void The Lessor dieth the Reversion of the customary Land descends to the younger son and the other to the eldest who granteth it to the younger and he gives a yeers warning according to the Covenant Fenner The interest of the term is not determined because a speciall heir as the youngest son is is not comprehended under the word Heir but the heir at common Law is the person who is to give the warning to avoid the estate by the meaning of the Covenant But Manwood and Mounson Justices were cleer of opinion That the interest of the term for a moity is avoyded for the Condition although it be an entire thing by the Descent which is the act of Law is divided and apportioned and the warning of any of them shall defeat the estate for a moity because to him the moity of the Condition doth belong But for the other moity he shall not take advantage by the warning because that the warning is by the words of the Condition appointed to be done by the Lessor his wife or his heirs And in that clause of the Deed the Assignee is not contained And they agreed That if a Feoffment of lands in Borough-English be made upon condition That the heir at common Law shall take advantage of it And Manwood said that hee would put another question Whether the younger son should enter upon him or not But all Actions in right of the Land the younger son should have as a Writ of Error to reverse a Judgment Attaint and the like quod nota Pasc 22. Eliz. in the Common Pleas. 4 IT was holden by Meade and Windham Justices of the Common Pleas That a Parsonage may be a Mannor As if before the Statute of Quia emptores terrarum the Parson with the Patron and Ordinary grant parcel of the Glebe to divers persons to hold of the Parson by divers Services the same makes the Parsonage a Manor Also they held That a Rent-Charge by prescription might be parcel of a Manor and shall passe without the words cum pertinentiis As if two Coparceners be of a Manor and other Lands and they make partition by which the eldest sister hath the Manor and the other hath the other Lands and she who hath the Lands grants a Rent-charge to her sister who hath the Manor for equality of partition Anderson and Fenner Srjeants were against it Hill 23 Eliz. In the Common Pleas. 5. THis Case was moved by Serjeant Periam That if a Parson hath Common appendant to his Parsonage out of the lands of an Abby and afterwards the Abbot hath the Parsonage appropriated to him and his Successors Whether the Common be extinct Dyer That it is Because he hath as high an estate in the Common as he hath in the Land As in the case of 2 H. 4. 19. where it is holden That if a Prior hath an Annuity out of a Parsonage and afterwards purchaseth the Advowson and then obtains an Appropriation thereof that the Annuity is extinct But Windham and Meade Justices conceived That the Abbot hath not as perdurable estate in the one as in the other for the Parsonage may be disappropriated and then the Parson shall have the Common again As if a man hath a Seignorie in fee and afterwards Lands descend to him on the part of the Mother in that case the Seignory is not extinguished but suspended For if the Lord to whom the Land descends dies without issue the Seignorie shall go to the heir on the part of the Father and the Tenancy to the heir on the part of the Mother And yet the Father had as high an estate in the Tenancy as in the Seignory And in 21 E. 3. 2. Where an Assize of Nusance was brought for straightning of a way which the plaintif ought to have to his Mill The defendant did alledg unity of possession of the Land and of the Mill in W. and demanded Judgment if c. The plaintif said that after that W. had two daughters and died seised and the Mill was allotted to one of them in partition and the Land to the other and the way was reserved to her who had the Mill And the Assize was awarded And so by the partition the way was revived and appendant as it was before and yet W. the Father had as high an estate in the Land as he had in the Way Hill 23 Eliz. In the Common Pleas. 6. A Man makes a Feoffment in Fee of a Manor to the use of himself and his Wife and his heirs In which Manor there are Underwoods usually to be cut every one and twenty yeers and
a Prohibition And Suit and Clenche Justices He shall have a Prohibition for he claims onely a portion of Tithes and that by prescription and not meerly as Parson or by reason of the Parsonage but by a collaterall cause viz. by Prescription which is a Temporall cause and thing And it is not materiall whether it be betwixt two Parsons Vide 20. H. 6. 17. Br. Jurisdiction 80. and 11. H. 4. and 35. H. 6. 39. Br. Jurisdiction 3. Where in Trespasse for taking of Tithes the Defendant claimed them as Parson and within his Parish and the Plaintiffe prescribed That he and his predecessors Vicars there had had the Tithes of that place time out of minde c. And the opinion of the Court was that the right of Tithes came in debate betwixt the Vicar and the Parson who were Spirituall persons who might try the right of Tithes And therfore there the Temporall Court should not have the Jurisdiction Mich. 28 29 Eliz. In the Kings Bench. 56 IN an Indictment upon the Statute of 8. H. 6. of Forcible Entry the Case was this One was Lessee for yeers and the Reversion did belong unto the Company of Goldsmiths And one was indicted for a forcible Entry and the words of the Indictment were That expulit disseisivit the Company of Goldsmiths quendam I. S. tenentem expulit Cooke took exception to the Indictment and said that a disseisin might be to one although not in possession as to a Reversioner upon a term for yeers or upon a Wardship but he could not be expulsed if he were not in possession for privatiâ— praesupponit habitum And after it saith that the Tenant was expulsed and two cannot be expulsed where one onely was in possession therefore it ought to have said that the Tenant of the Free-hold was disseised and the Termor expelled and it applyes the word expulit to both And Fuller took another Exception that the Cart is set before the horse For he who had the Free-hold could not be disseised if his Termor were not first ousted and the Indictment is That the Tenant of the Free-hold was expulsed and disseised and then the Termor was expelled But Sui Justice as to that said that the later clause scil et quendam I. S. tenentem c. is but surplusage For if one enter with force and expell the Tenant of the Free-hold it is within the Statute of 8. H. 6. Then Fuller moved that the Indictment doth not shew the place where he expelled him But Cleâ—ch Justice said that that was not material for he could not expell him at another place then upon the Land As a man cannot make a Feoffment by livery and seisin at another place but upon the Land unless a Feoffment with Livery within the view And as to the Objection of Cook that the Indictment is that he disseised and expelled the Tenant of the Free-hold out of the possession of the Free-hold To that he answered that the possession of the Termor is the possession of him in the Reversion Mich. 28 29. Eliz. in the King 's Bench. 57 A Man seised of a Copy-hold in Fee made his Will and thereby he devised the same unto his Wife for her life and that after her death his Wife or her Executors should sell the Land He surrendred to the use of his Wife which was entred in hac forma viz. to the use of his Wife for life Secundùm formam ultimae voluntatis The Woman sold the Land during her life The question was Whether she might sell or not Suit Justice said That the intent doth appear that she might sell during her life for when it saith That she or her Executors should sell after her death it is meant the Estate which is to come after her death for the Wife after her death could not sell The second Point was When the surrender is to the Wife for life secundùm formam ultimae voluntatis Whether here she have the Land for life and the Fee also to sell Clenche If she had not the Fee to sell then the words Secundùm formam ultimae voluntatis should be void for the Surrender to the use of the wife for life gives her an Estate for life without any other words Suit If it were ad usum ultimae voluntatis without speaking what Estate the Wife should have no doubt but shee should have for her own use for life and that afterwards she might sell the Land but he said As the Case is put it is a pretty Case And it was adjourned Mich. 28 29. Eliz. in the Kings Bench. 58 THis Case was moved in Court A Copy-holder committed Waste by which a forfeiture accrued to the Lord who afterwards did accept of the Rent The question was Whether by this acceptance he were concluded of his Entrie for the Forfeiture Cook said He was not for it is not as the Case 45 E. 3. where a Lease is made upon Condition that the Lessee shall not do Waste and he commits Waste and then the Lessor accepts the Rent there he cannot enter But otherwise is it of a Copy-hold for there is a condition in Law and here in Fait and a condition in Fait may save the Land by an Acceptance but a condition in Law cannot for by the condition in Law broken the Estate of the Copyholder is meerly void And the Court agreed That when such a Forfeiture is presented it is not to Entitle the Lord but to give him notice for the Copy-hold is in him by the Forfeiture presently without any Presentment A man made a Lease for years upon condition that he should not assign over his Lease and it was reserving Rent and after he did assign it and then the Lessor accepted the rent there he shall not enter for the condition broken Lessee for years upon condition that he should not do Waste and the Lessor accepts of the Rent for the quarter in which the Waste was done yet he may enter but if he do accept of a second payment of the Rent then it is otherwise but if it were upon condition That if he do waste that his Estate shall cease There no acceptance of the Rent by the Lessor can make the Lease good It was adjourned Mich. 28 29. Eliz. in the Kings Bench. 59 THE Lord Admirall did grant the Office of Clark or Register of the Admirall Court to one Parker and Herold for their lives eorum diuâ—ius viventi And Herold bound himself in a Bond of Five Hundred Pound to Parker that the said Parker should enjoy the Office cum omnibus proficuis during his life And afterwards Herold did interrupt the said Parker in his Office upon which he brought an Action of Debt upon the Bond. The Defendant pleaded That such is the custome That the Admirall might grant the same Office for the life of the Admirall only and that he is dead and so the Office void and that he did interrupt him as it was lawfull
licence be to A. and B. or C. some conceived that A. or B. might alien but not C. Et èâ—converso Mich. 28 29. Eliz. in the Common Pleas. 105 IT was agreed by the whole Court That a Partition made by word betwixt Joyntenants is not good See Dyer 29. Pl. 134. and 350. Pl 20. doth agree and see there the reason of it Mich. 28 29. Eliz. in the Common Pleas. 105 IT was holden by the whole Court That if the Father do devise Lands unto his Son and Heir apparant and to a stranger that it is a good Devise and that they are Joyntenants for the benefit of the Stranger Mich. 28 29. Eliz. in the Common Pleas. 106 FULLER'S Case A. Promises unto the eldest son that if he will give his consent that his Father shall make an Assurance unto him of his Lands that he will give him ten pounds If he give his assent although no assurance be made yet he shall maintain an Action upon the promise But at another day Periam Justice said that in that case the son ought to promise to give his assent or otherwise A. had nothing if his son would not give his consent And so where each hath remedy against the other it is a good Consideration In Hillary Term after Fenner spake in arrest of Judgment upon the speciall Verdict That because that the Assumpsit is but of one part and the other is at liberty whether he will give his consent or not that therefore although that hee do consent that hee shall not recover the ten pounds Also he said That the promise was that if hee would give consent that his Father should make assurance to him and here the assurance is made to A. to the use of the Defendant and his Wife in taile so as it varies from the first Communication and also it is in tail Shuttleworth contrary in as much as he hath performed it by the giving of consent then when he hath performed It is not to the purpose that he was not tyed by a crosse Assumpsit to do it but if he had not given his consent he should have nothing At length Judgment was given for the Plaintiff And Periam Justice said in this Case That if a covenant be to make an Estate to A. and it is made to B. to the use of A. that he doubted whether that were good or not Mich. 28 29 Eliz. In the Common Pleas. Intratur Hill 28. Eliz. Rot. 1742. 107 WISEMAN and WALLINGER'S Case A Man seised of two Closes called Bl. Acre makes a Lease of them rendring Ten Shillings rent The Lessee grants all his Estate in one of them to A. and in the other to B. The Lessor doth devise all his Land called Bl. Acre in the tenure of A. and dieth The Devisee brings an Action of Debt for the whole Rent against the first Lessee And the Opinion of the whole Court was That the Action would not lie because they conceived That but the Reversion of one Close passed and also that the rent should not be apportioned in that Case because a terme is out of the Statute and a Rent reserved upon a Lease for years shall not be apportioned by the act of the Lessor as where he takes a Surrender of part of it But otherwise by Act in Law as where the Tenant maketh a Feoffment in Fee of part of the Land and the Lessor entreth And at another day Anderson Chief Justice said That if the Lessor of two Acres granteth the Reversion of one Acre that the whole Rent is extinct Mich. 28 29. Eliz. in the Common Pleas 108 A Lease for years is made of Land by Deed rendring Rent the Lessee binds himselfe in a Bond of Ten Pound to perform all Covenants and Agreements contained in the Deed the Rent is behind and the Lessor brings an Action of Debt upon the Bond for not payment of the Rent the Obligor pleads performance of all Covenants and Agreements the Lessor saie That the Rent is behind it was holden That it is no Plea for the Obligor to say That the Rent was never demanded But in this Bar he ought to have pleaded That he had performed all Covenants and Agreements except the payment of the Rents And as to that That he was alwayes ready to have paid it if any had come to demand it but as the first Plea is it was held not to be good And as to the demand of the Rent the Court was of opinion That it was to be demanded for the payment of the Rent is contained in the word Agreements and not in the word Covenants and then if he be not to performe the Agreements in other manner then is contained in the Deed of that agreement the Law saith That there shall be a demand of the Rent But if the Lessee be particularly expressed by covenant to pay the Rent there he is bound to do it without any Demand Mich. 28 29. Eliz. in the Common Pleas. 109 HOLLENSHEAD against KING THomas Hollenshead brought Debt against Ralph King upon a Recovery in a Scire fâ—cias in London upon a Recognizance taken in the Inner or Ouster Chamber of London and doth not shew That it is a Court of Record and that they have used to take Recognisances and Exception was taken unto the Declaration and a Demurrer upon it and divers Cases put That although that the Judgement be void that yet the Execution shall be awarded by Scire facias and the party shall not plead the same in a Writ of Error But Periam Justice took this difference Where Execution is sued upon such a Judgement and where Debt is brought upon it for in Debt it behoves the Party that he have a good Warrant and ground for his Action otherwise he shall not recover but upon a voidable Judgement he shall recover before it be reversed Mich. 28 29 Eliz. In the Common Pleas. Intratur Trinit 28. Eliz. Rot. 507. 110 COSTARD and WINGFIELD'S Case IN a Replevin the Defendant did avow for Damage Feasans by the commandment of his Master the Lord Cromwell The Plaintiffe by way of Replication did justifie the putting in of his Cattell into the Land in which c. by reason that the Towne of N. is an ancient Town and that there hath been a usage time out of mind That every Inhabitant of the same Towne had had common for all his cattel Levant and Couchant in the same Town and so justified the putting in of his cattell The Defendant said That the house in which the Plaintiffe did inhabite in the same Towne and by reason of Residency in which house he claimed common was a new house built within 30 years and within that time there had not been any house there and upon that Plea the Plaintiffe did demurr in Law Shuttleworth Serdeant for the Plaintiffe That he shall have common for cause of Resiance in that new house and the Resiancy is the cause and not the Land nor
taile and waives the Lands taken in Exchange and before any other entry the heir of B. enters upon the Land which was given in Exchange and the opinion of the whole Court was That it was no breach of the Condition because that was not the Land of the Devifor at the time of the devise therefore it was out of the Condition Mich. 28 29. Eliz. In the Common Pleas. 116. PLYMPTON'S Case AN Action of Debt was brought by one Plympton and his wife Executors of one Dorrington upon a Bond with Condition to perform Covenants of an Indenture of Lease whereof one Covenant was That he should pay forty shillings yearly at the Feast of the Annunciation or within fourteen days after And the breach assigned was for not payment at such a Feast in such a year The Defendant said That hee paid it at the Feast upon which they were at issue And upon evidence given to the Jury it appeared That the same was not paid at the Feast but in eight dayes after it was paid And the opinion of the Court was That by his pleading that hee had paid it at such a day certain and tendring that for a speciall issue That hee had made the day part of the issue and then the Defendant ought to have proved the payment upon the very day But if the Defendant had pleaded That hee paid it within the fourteen dayes viz. the eighth day c. that had not made the day parcell of the issue but then hee might have given evidence that he paid it at another day within the fourteene dayes Then for the Defendant it was moved That the Plaintiffe had not well assigned the breach in saying that he had not paid it at the Feast without saying Nor within the fourteen dayes But the Court said That the Jury was sworn at the Barre and bid the Councell proceed and give in their evidence for the time to take exception was past Mich. 28 29. Eliz. in the Common Pleas. 117. IT was the opinion of Anderson Chiefe Justice and so entred by the Court That if a Copie-holder doth surrender to him who hath a Lease for years of the Mannor to the use of the same Lessee That the Copie-hold estate is extinct For the estate in the Copie-hold is not of right but an estate at will although that custome and prescription had fortified it And Wray said That it had been resolved by good opinion That if a Copie-holder accept a Lease for years of the Mannor that the Copie-hold estate is extinct for ever Mich. 28 29. Eliz. in the Common Pleas. 118. Anderson Chiefe Justice and Periam Justice being absent in a Commission upon the Queen of Scots Shuttleworth moved this case to the Court. If the Queen give Lands in taile to hold in Capite And afterwards granteth the Reversion how the Donee shall hold Windham Justice and Fenner Serjant The tenure in this case is not incident to the Reversion and the Donee shall hold of the Queen as in grosse and so two Tenures in Capite for one and the same Land And thereupon Windham Justice cited 30. H. 8. Dyer 45 46. That the Queen by no way can sever the tenure in chiefe from the Crown And therefore if the Queen do release to her Tenant in Capite to hold by a penny and not in Capite it is a void Release for the same is meerly incident to the Person and Crown of the Queen But Rodes Justice held the contrary viz. That the Tenure in Capite doth not remain But it was said by Windham That if the Queen had reserved a Rent upon the gift in tail the Grantee of the Reversion should have it Also he said That the Queen might have made the Tenure in such manner viz. to hold of the Mannor or of the Honor of D. Shuttleworth If Lands holden of the Mannor of D. come to the King may he give them to be holden of the Mannor of S that should be hard Windham I did not say That Lands holden of one Mannor may be given to be holden of another Mannor perhaps that may not bee but Lands which is parcell of any Mannor may be given Vt supra Mich. 28 29 Eliz. in the Common Pleas. 119 SErjeant Fenner moved Case If Lands be given to the Husband and Wife and to the heirs of their two bodies and the Husband dieth leaving Issue by his Wife and the Wife makes a Lease of the lands according to the Statute of 32. H. 8. If the Lease be good by the Statute Windham and Rodes Justices conceived that it is a good Lease Fenner The Statute saith that such Lease shall be good against the Lessor and his Heirs and the Issue doth not claim as Heir to the Wife onely but it ought to be Heir to them both and he cited the case That the Statute of R. 3. makes Feoffments good against no heirs but those which claim onely as Heirs to the same Feoffors c. So here Rodes Justice There the word only is a word efficacy And Windham agreed cleerly That the Lease should binde the issue by the said Statute of 32. H. 8. Mich. 28 29. Eliz. In the Common Pleas. 120 WAlmesley Serjeant moved this Case If a man deviseth Lands in taile with divers Remainders over upon condition that if any of them alien or c. that then he who is next heir to him to whom the land ought to come after his decease if the said alienation had not been made might enter and enjoy the land as if he had been dead But Ady of the Temple said That the words of the Devise are viz. That if any of them alien or c. that then his estate to cease and hee in the next Remainder to enter and retain the land untill the aliener were dead Rodes Justice The Devise is good and an estate may cease in such manner so as it shall not be determined for ever but that his Heir after him shall have it And he put the case of Scholastica Plow Com. 408. where Weston fo 4. 14. was in some doubt that if the Tenant in talle had had Issue if the Issue should be excluded from the land or whether hee should have the land by the intent of the Devisor And therefore if it were necessary to shew that the Tenant in taile had not Tssue But Dyer said that the words of the Will were that such person and his Heirs who alien or c. should be excluded presently so as the estate by expresse words is to be determined for ever But it is otherwise in this Case Windham doubted of the Devise Fenner cited the Case 22. E. 3. 19. Where a Rent was granted and that it should ceâ—se during the Nonage of the Heir of the Grantee and it was good Windham When a thing is newly created he who creates it may limit it in such manner as he pleaseth Fenner 30. E. 3. 7. Det. 10. A Feoffment was made rendring Rent upon
Condition that if the Rent be behinde the Feoffor might enter and retain quousque there the estate shall be determined pro tempore and afterwards revived again Windham There the Feoffor shall have the land as a distress and the Free-hold is not out of the Feoffee Fenner The Book proves the contrary for the Feoffor had an Action of Debt for the Rent Mich. 28 29. Eliz. in the Common Pleas. 121 IN a Formedon the Tenant pleaded a Fine with proclamations The Plaintiff replyed No such Record It was moved that the Record of the Fine which remained with the Chyrographer did warrant the Plea and the Record which did remain with the Custos Brevium did not warrant the Plea and both the Records were shewed in Court and to which the Court should hold was the question Shuttleworth To that which was shewed by the Custos Brevium and he cited the Case of Fish and Brocket where the Proclamations were reversed because that it appeared by the Record which was shewed by the Custos Brevium that the third proclamation was alledged to be made the seventh day of June which seventh day of June was the Sunday and yet hee said It appeared by the Record certified by the Chyrographer that it was well done and yet the Judgment reversed Rodes Justice There is no such matter in the same case And 26. El. by all the Justices and Barons of the Exchequer in such case the Record which remains with the Custos Brevium shall be amended and made according as it is in the Record of the Office of Chyrographer Windham agreed And afterwards the said President was shewed in which all the matter and order of proceedings was shewed and contained and all the names of the Justices who made the Order And by the command of the Justices it was appointed that the said President should be written out and should remain in perpetuam rei memoriam And the reason of the said Order is there given because the Note which remains with the Chyrographer is principale Recordum Mich. 28 29. Eliz. in the Common Pleas. 122. AN Infant was made Executor and Administration was committed unto another durante minore aetate of the Executor and that Administrator brought an Action of Debt for money due to the Testator and recovered and had the Defendant in Execution and now the Executour is come of full age Fenner moved that the Defendant might be discharged out of Execution because the Authority of the Administrator is now determined and he cannot acknowledge satisfaction nor make Acquittances c. Windham Justice Although the Authority of the Plaintiffe bee determined yet the Recovery and the Judgement do remaine in force But perhaps you may have an Audita querela But I conceive That such an Administrator cannot have an Action for he is rather as a Bayliff to the Infant Executor then an Administrator Rodes agreed with him and he said I have seen such a Case before this time viz. Where one was bound to such a one to pay a certaine sum of money to him his Heirs Executors or Assignes And the Obligee made an Infant his Executor and administration was committed during his minority and the Obligor paid the money to that Administrator And it was a doubt whether the same was sufficient and should excuse him or not And whether he ought not to have tendred the money to them both Fenner That is a stronger Case then our Case One who is Executor of his own wrong may pay Legacies and receive Debts but he cannot bring an Action Windham Doth it appear by the Record when the Infant was made Executor and that Administration was committed as before Fenner No truely Windham Then you may have an Audita querela upon it Fenner said So we will Note Hil. 33. Eliz. in the Exchequer Miller and Gores Case An Infant pleaded in a Scire facias upon an Assignement of Bonds to the Queen That Saint-Johns and Eley were Administrators during his minority And it was holden by the Court to be no plea. But he ruled to answer as Executor Mich. 28 29. Eliz. in the Common Pleas. 123 SUggestion was made that a Coroner had not sufficient Lands within the Hundred for which a Writ issued forth to choose another and one was chosen It was moved by Serjeant Snag If theâ—eby the first Coroner did cease to be Coroner presently untill he be discharged by Writ Rodes and Windham Justices He ceases presently for otherwise there should be two Officers of one Coronership which cannot be Also the Writ is Quod loco I. S. eligi facias c. unum Coronatorem and he cannot be in place of the first if the first do not cease to be Coroner So if any be made Commissioners and afterwards others are made Commissioners in the same cause the first Commission is determined Snagg said That in the Chancery they are of the same Opinion but Fitz. Nat. Brevium 163. N. is That hee ought to be discharged by Writ Mich. 28 29 Eliz in the Common Pleas. 124 IN an Action of Debt brought against Lessee for years for rent he pleaded That the Plaintiff had granted to him the reversion in Fee which was found against him Walmesley Serjeant moved Whether by that Plea he had forfeited his terme or not Rodes and Windham Justices He shall not forfeit his Term and Rodes cited 33. E. 3. Judgement 255. Where in a Writ of Waste the Tenant claimed Fee and it was found against him that he had but an Estate for life and yet it was no Forfeiture Fenner and Windham It is a strong Case for there the Land it selfe is in demand but not so in our Case Rodes The Tenant shall not forfeit his Estate in any Action by claiming of the Fee-Simple but in a Quid juris clamat Walmesley and Fennèr Where he claimes in Fee generally and it is found against him there perhaps hee shall forfeit his Estate but where he shewes a speciall conveyance which rests doubtfull in Law it is no reason that his Estate thereby should bee forfeited although it be found against him Rodes 6. R. 2. Quid juris clamat 20. The Tenant claimed by speciall conveyance and yet it was a forfeiture But in the principall Case at Bar he and Windham did agree cleerly That it was no forfeiture Mich. 28 29 Eliz. In the Common Pleas. 125 AN Action upon the Case was brought because that the Defendant had spoken these words viz. That the Plaintiffe hath said many a Masse to J. S. c. Anderson Chief Justice Primâ facie did seem to incline That no Action would lie for the words although that a Penalty is given by the Statute against such Masse-Mongers For he said That no Action lieth for saying That one hath transgressed against a Penall Law Periam Justice contrary Anderson If I say to one That he is a disobedient Subject no Action lieth for the words Windham Justice That is by reason of the generality Puckering
it is not shewed that he used any other rite or Ceremony c. for there ought to be some Positive thing 3. He doth not shew the Place or Parish where he persisted in it and that is materiall and issuable The fourth Exception was Because it was Inquisitio câ—pta coram Johanne Peter Waltero Mildmay and so named four of them by vertue of a Commission directed to them and to others and doth not shew what others nec quod illi fuerunt praesentes and then if the Commission were to them all jointly and two only were present then it was coram non judice and so void 5. The Statute saies That if any Parson or Vicar but doth not say being Minister Dei. The sixth was That it was at another Church c. Wray Chief Justice If this Evasion should be allowed the Statute were not to the purpose The seventh was That it doth not shew where the persisting was for that is a speciall thing and materiall and issuable Wray Chief Justice conceived That that only was a materiall Exception and that the other Exceptions were but frivolous and were not good Hill 29. Eliz. In the Kings Bench. 138 WARREN's Case ONE Warren demanded by a Writ of Debt in the Common Pleas Forty Pound and upon his Declaration did confess himselfe satisfied of Twenty Pound and thereupon Error was brought in the King's Bench And the Judgement reversed because by his Declaration he had abated his Writ and he ought to have Judgement according to his Writ and not according to his Declaration The Error assigned was in the Outlawry and it was holden by all the Justices That if the principall Record be reversed for Error that the Outlawry which is grounded upon it shall be reversed also Hill 29. Eliz. in the Kings Bench. 139 ROOTE 's Case THE Case was in a Prohibition touching Tithes and the libell in the Spirituall Court was for Corn and Hay and other things and the Tenant of the land did prescribe to pay in one part of the land the third part of the tenth and in another part the moity of the tenth of Corn for all manner of Tithes And the Court did incline that the same was a good prescription And a Prohibition was granted to the Ecclesiasticall Court Hill 29. Eliz. in the King 's Bench. 140 A Man was possessed for the terme of six years of a Tavern in London and leased the same unto another for three years and it was convenanted betwixt them that during the three years quolibet mense monthly the lessee should give an Account to the lessor of the Wine which he sold and should pay unto him for every Tun sold so much money And afterwards the lessor granted the three years which were remaining of the six years to another and he did request the lessee to account and he would not whereupon he brought an Action of Covenant and the Defendant pleaded That he had accounted to the Assignee of the three years and upon that there was a Demurrer joyned And the better opinion of the Court was that it was no Plea because it was not a Covenant which did go with the land or the Reversion but was a collaterall thing and did not pass by the assignment of the three years Hill 29. Eliz. in the King 's Bench. 141 IT was adjudged That the bringing of a Writ of Error to reverse a Fine by an Infant during his nonage is not sufficient but the Fine by Judgement in the Writ of Error must be reversed during his Nonage Hill 29. Eliz. in the Common Pleas. 142 WIDALL and Sr. JOHN ASHTON's Case A Writ of Error was brought by Widall against Sr. John Ashston because in the other action being an action of Wast The Plaintiff there did declare that he was seised and so seised demisit pro termino annorum c. and did not shew of what estate he was seised And yet he did suppose that it was ad exhaeredationem ejus c. And the same by Beamount was taken for an exception as 7. H. 6. A man pleaded a Feoffment to two haeredibus and doth not say suis it is uncertain And in the principal Case it shall be supposed that he hath but an estate for life for it shall not be intended that he hath an estate of Inheritance without expressing of words to carry an Inheritance As 7. Ass If I grant a Rent to I. S. and do not name what estate he shall have in it he shall have but an estate for life But he said that the Presidents are that if the word seised had been left out it had been good enough For by the Book of Entries a man may say demisit without saying that he was seised demisit But if a man will plead a thing which is not necessary to be pleaded and mistake it it shall make his Plea naught as in Patridges Case Where a suite was upon the Statute of Maintenance It is sufficent to say contra formam Statuti But if he will plead specially the day and place of the Statute and mis-plead it it makes all naught Suit Justice I conceive that that is a fault incurable But upon the other side it was argued that in 21. H. 7. It is holden that he might plead quod demisit without that that he was seised and demisit as there in an Action of Debt And therefore it is but surplusage in the principal Case Vide 15. E. 4. A good Case where surplusage shall not hurt because it is not traversable And he urged that by the Statute of 18. El. the Declaration doth not abate for matter of form And he said that Counts and Declarations shall be taken by Intendment and it shall be intended that if bringeth Wast that he hath such an estate that he may maintain such Action In Adams Case in the Commentaries One shewed that such an Abbot was seised and that the Land came unto the King by Dissolution and that the King being seised did grant the same and did not shew of what estate the King was seised and yet it was holden good See a good Case to this purpose 18. E. 3. Formedon 58. And he said that the Defendant had pleaded Nul wast fait and therefore he had by his Plea affirmed the Declaration to be good Beamount He ought to have said reversione inde sibi haeredibus c. Clenche Justice I conceive that the Statute of 18. El. helps that Suit Justice No truly It was adjourned Hill 29. Eliz. in the Common Pleas. 143 AN Action of Covenant was brought by a Man against another who had been his Apprentize The Defendant pleaded that he was within age The plaintiff did maintain his Action by the Custome of London Where one by Covenant may binde himself within age And Exception was taken to it That that was a Departure Daniel It is no Departure for by 18. R. 2. an Infant brought an Action against Gardian in Socage and the
Execution of Justice is no wrong when it is for the King The King hath the precedency for the payment of his Debts to him as it appeareth in Stringfellows Case cited before by Justice Dodderidge And when Lands are once lyable to the payment of the Kings debts let the Lands come to whom you will yet the Land is lyable â—o his debt as it appeareth in Cavendishes Case Dyer 224 225. which was entred Pasc â— Eliz. Rot. 111. in the Exchequer 50. Ass 5. A man bindeth himself and his heirs and dieth and the heir alieneth the Land the Land is discharged of the Debt as to the Debtee But in the Kings Case if at any time the Land and Debt meet together you cannot sever them without payment of the Kings debt Vid. Littleton Executors and soe Administrators are chargeable in an Account to the King and the Saying of Mr Littleton are adjudged for Law and are Judgments A sale in Market over nor a Fine and Nonclaim shall not bind the King and so it is of things bought of the Kings Villeyn because Nullum tempus occurrit Regi A common person in London by Custom may attach a Debt in anothers hands As he may come into Court and shew that his debtor hath not any thing in his hand to satisfie his debt but only that debt which is in the hands of another man and that Custom is allowable and reasonable And if it shall be reasonable for a Subject so to attach a Debt will you have it unreasonable for the King Before the Statute of 25. E. 3. cap. 19. The King might protect his Debtor as it appeareth by the Register 281. and Fitz. 28. 6. But the Statute of 25. E. 3. gave the Partie a liberty to proceed to Judgement but doth barr him from taking forth of Execution upon the Judgment untill the King be satisfied his Debt In Dyer 296 297. a man condemned in the Exchequer for a Debt due to the Queen was committed to the Fleet and being in Execution he was also condemned in the Kings Bench at the Suit of a Subject upon a Bill of Debt in Custodia Mariscalli Marisâ—alciae Afterwards upon prayer of the Partie a Habeas Corpus cum causa was awarded out of the Kings Bench to the Warden of the Fleet who retorned the Cause ut supra and he was remanded to the Fleet in Execution for the Debt Afterwards a Command was given by the Lord Treasurer upon the Queens behalf to suffer the Prisoner to go into the Countrie to collect and levie monie the sooner to pay the Queen her Debt In that Case the Subject brought an Action of Debt against the Warden of the Fleet upon the Escape who justified the Escape by the said Commandment It was holden in that case That although the Partie was in Execution for both the Debts yet before the Queen was satisfied the Execution for the Subject did not begin For the King cannot have equall to have interest in the Body of the Prisoner Simul cum illo But if the Case were as Lassels case 3. Eliz Dyer then he might be in Execution for the King and for the Subject Lassels was taken in Execution at the Suit of a Subject and before the Writ was retorned a Writ for the Queen came to the Sheriffe and Lassels was kept in Execution for the Queen In that case Lassels was in Execution for them both viz. the Queen and the Subject So there is a difference where the Partie is first taken for the King and where he is first taken for the Subject Now I will consider of the Case at Barr Whether the Land might be extended notwithstanding the Conveyance made The Kings Debt is to be taken largely and so Goods in such case are to be taken largely and so is it likewise of Lands viz. any Land be it Land in Use upon Trust by Revocation By the Law Debts are first to be paid then Legacies then childrens preferments There is a difference where the Land was never in the man and where it was once in him C. 8. Part. 163. Mights Case Might Purchased lands to him and to his heir It was resolved that this original Purchase could not be averred to be by Collusion to take away the Wardship which might accrue after the death of Might for they were Joynts and the survivor shall have the whole Note that there was no fraud for that it was never in him but if it had once been the Lands only of Might and then Might had made the conveyance to him and his heir then it would have been fraud to have deceived the King of the Wardship In the Case at Barr Hatton hath not aliened the land For an Alienation is alienum facere and here he hath not made it the land of another having a power of Revocation Sir John Packington Mortgaged his lands for 100l The Mortgagee enfeoffed W. and within the time of Redemtion Packington and he to whom the money was to be paid agreed that Packington should pay him 30l of the said 100l and no more and yet in appearance for the better performance of the Condition it was agreed that the whole 100l should be paid and that the residue above 30l should be repaid back to Packington which was done accordingly It was resolved in that Case that the same was no performance of the Condition because it was not a payment animo solvendi And so in this Case there was not any allienation animo 〈◊〉 For Sir Christopher Hatton gave the Lands but yet he kept the possession and received the profits of them And if Sir Christopher Hatton had given the land with power of Revocation or reserving as in this Case he did an Estate for his own life it had been all one If a man deviseth the profits of such lands the lands themselves do pass And a Conveyance of lands upon Condition not to take the profits is a void condition in Law Lit. 462 463. A Feoffment is made upon confidence and the Feoffor doth occupie the land at the will of the Feoffees and the Feoffees do release unto the Feoffor all their right Litt. 464. there it was said that such a Feoffor shall be sworn upon an Inquest if the lands be of the value of 40s per annum and that by the Common Law Therefore it seemeth that the Law doth intend That when a man hath Feoffees in Trust that the lands are his own and then if in such case the Commonwealth shall be served shall not the King who is Pater reipublicae be served so as he may be satisfied his debts If the Case of Walter de Chirton had never been yet I should now have the same opinion of the Law in such Case as the Judges then had The King is not bound by Estopels nor Recoveris had betwixt strangers nor by the fundamental Jurisdiction of Courts as appeareth 38. Ass 20. where a Suit was for Tythes in the Exchequer being a meer spiritual
the possession is bound by the Judgment of Attaindor and the Act of Parliament 5 H. 7. 31. 7 H. 7. 15. 16 H. 7. 8. A discent of land shall not make a title against the King or any other who hath the land by an Act of Parliament But then in our Case If there should be a Remitter yet the same is overreached by the Office 〈◊〉 part 10. before the Statute of 33 H. 8. cap. 20. there ought to have been an Office found in the Case of Attaindor of Treason Br. Cases 103. Brook Office Devant c. 17. I do not mean an Office of intitling but an Office declaratory of a conspicuous title C. 5. part 52. There are two manner of Offices One which vesteth the estate and possession of the land c. in the King Another which is an Office of Instruction and that is when the estate of the land is lawfully in the King but the particularity thereof doth not appear upon record And the Office of Instruction shall relate to the time of the Attaindor not to make Queen Elizabeth in our Case in by discent but to avoid all meâ—ne Incombrances And is not this Remitter an Incombrance And for that purpose the Office shall relate For in things of Continuance Nullum tempus occurrit Regi C. 7. part 28. For so the rule of Nullum tempus c. is to be understood of a thing of Continuance and not a thing unica vice v. Fitz. Entre Congeable 53. Trav. 40. where it is said Where the King hath cause to seise for the forfeiture of Tenant for life if the Tenant for life dyeth the Reversion may enter for in that case Tempus occurrit Regi and the King cannot seize after the death of the Tenant for life 35 H. 6. 57. There is no discent against the King and if there be no discent then there is no Remitter The consequence of all this is That the Office doth relate to the Right And that the Monstrans de Droit doth not lie And the want of Office found for all this time was the fault of the Kings Officers and shall not prejudice the King But if the Office should not relate then the Monstrans de Droit would lie because then the King was in but by one single matter of Record We shew in the Office 33 Eliz. That there issued forth a Commission directed to certain of the Privy-Councel to enquire of the Treason and if Francis Bigot upon the Treason were Indicted And in our Case we shew immediately another Commission was directed to the Lord Chancellor and the two Chief Justices c. to arraign Francis Bigot And all that is confessed by Ratcliffe himself viz. modo forma And therefore the Objection which Glanvile made was frivolous viz. That it did not appear that Francis Bigot was attainted by Verdict by Confession or by Outlawry And so he concluded That for these causes the Judgment given in the Court of Common-Pleas ought to be reversed George Crook argued for Ratcliffe and he prayed that the Judgment might be affirmed I will argue only these points following 1. That Francis Bigot had not so much as a right of Action at the time of his Attaindor for he had not any right at all 2. Admit that he had a right of Action If this right of Action be given to the King by the said Statutes of 26 31 H. 8. It was objected That the right being clothed with a possession that the same is given to the King But I will prove the contrary 3. When Francis Bigot being Tenant in tail and being attainted and executed for Treason and then Katherine his wife dyeth being one of the Donees in tail 21 H. 8. and the lands discend to Ratcliff If the Office afterwards found shall relate to take away the Remitter I say it doth not but that his Remitter doth remain to maintain his Monstrans de Droit and he is not put to his Petition The chief point is What right Francis Bigot had at the time of his Attaindor 1. When Ralph Bigot being Tenant in tail 6 H. 8. made a Feoffment in Fee what right remained in Francis his Son The right is in abeyance viz. in nubibus that is in custodia Legis And then Francis Bigot had no right of that entail 21 H. 8. when he made the Feoffment Com. 487. There Jus is divided viz. Jus recuperandi Jus in randi Jus habendi Jus retinendi Jus percipiendi Jus possedendi but here Francis Bigot had not any of these rights Com. 374. if the Discontinuee of Tenant in tail levieth a Fine with proclamations and five years passe and Tenant in tail dyeth the issue in tail shall have other five years because he is the first to the right 19 H. 8. 7. C. 7. part 81. If Donee in tail maketh a Feoffment in Fee in rei veritate the Donee hath not jus in re neque ad rem C. 3. part 29. Litt. 649. There it appeareth that the right to an estate tail may be in abeyance Com. 552. Walsinghams Case There the King gave land in tail to Wyat who made a Feoffment unto Walsingham Afterwards Wyat was attainted of Treason and there the estate tail of Wyat was forfeited but the cause there was because that the reversion was in the Crown and so no discontinuance by his Feoffment because that the reversion was in the Crown In our Case no right of the estate tail was in Francis Bigot after the Feoffment unto his own use but the right is in abeyance It was objected That the Writ of Formedon is Discendit jus and the Monstrans de Droit was so I answer It is so in point of form in the Writ but not in substance C. 7. part 14. Tenant in tail makes a Lease for life and Tenant for life dyeth Now he hath an ancient right and the Donor may avow upon the Tenant in tail notwithstanding his Feoffment but that is by reason of privity and not by reason of any right he hath Jus recuperandi did discend to the issue in tail viz. Francis Bigot 21 H. 8. He who hath a right of Action giveth the same away by his Livery and Feoffment as appeareth by the Cases put in C. 1. part 111. It was objected That Cestuy que use was an Attorney or Servant therefore he doth not passe his own right for he cannot make an Attorney to make Livery and 9 H. 7. 26. was cited to be adjudged so But it is adjudged to the contrary M. 25 H. 8. in the Kings Bench rot 71. betwixt the Bishop of London and Kellet as it appeareth in Dyer 283. and Bendloe's Reports and C. 9. part 75. For there it is expresse that Cestuy que use may make a Letter of Attorney to make Livery which proves that he makes not the Feoffment as a Servant but as Owner of the Land It was objected That Cuesty que use was as an Executor but that I deny 49
is in the wife but the cause thereof is because it was once coupled with a possession C. 7. part Nevils Case There was a question whether an Earldom might be entailed and forfeited for Treason which is a thing which he hath not in possession nor use but is inherent in the blood And there resolved that the same cannot be forfeited as to be transferred to the King but it is forfeited by way of discharge and exoneration 12 Eliz. Dyer the Bishop of Durhams Case There if it had not been for the saving the Regal Jurisdiction of the Bishop had been given to the King by the Statute of 26 H. 8. This Statute of 26 H. 8. was made for the dread of the Traitor For the times past saw how dangerous Traitors were who did not regard their lives so as their lands might discend to their issue It was then desperate for the King Prince and Subject For the time to come it was worse The Law doth not presume that a man would commit so horrid an act as Treason so it was cited by Mr. Crook who cited the case That the King cannot grant the goods and lands of one when he shall be attainted of Treason because the Law doth not presume that he will commit Treason If the Law will not presume it wherefore then were the Statutes made against it If the Land be forfeited by the Statute of 26 H. 8. much stronger is it by the Statute of 31 H. 8. But then admit there were a Remitter in the Case yet by the Office found the same is defeated Without Office the Right is in the King Com. 486. c. 5. part 52 where it is said There are two manner of Offices the one which vests the estate and possession of the Land c. in the King where he had but a Right as in the case of Attaindor the Right is in the King by the Act of Parliament and relates by the Office Com. 488. That an Office doth relate 38 E. 3. 31. The King shall have the mean profits The Office found was found in 33 Eliz. and the same is to put the King in by the force of the Attaindor which was 29 H. 8. and so the same devests the Remitter Tenant in tail levieth a Fine and disseiseth the Conusee and dyeth the issue is remitted then proclamations pass now the Fine doth devest the Remitter C. 1. part 47 Tenant in tail suffereth a common Recovery and dyeth before Execution the issue entreth and then Execution is sued the Estate tail is devested by the Execution and so here in our Case it is by the Office C. 7. part 8. Tenant in tail maketh a Lease and dyeth his wife priviment ensient without issue the Donor entreth the Lease is avoided afterwards a Son is born the Lease is revived Com. 488. Tenant in capite makes a Lease for life rendring rent and for non-payment a re-entry and dyeth the rent is behind the heir entreth for non-payment of the rent and afterwards Office is found of the dying seised and that the land is hoâ—den in capite and that the heir was within age In the case the Entry for the Condition broken was revived and the Estate for life revived 3 E. 4. 25. A Disseisor is attainted of Felony the Land is holden of the Crown the Disseisee entreth into the Land and afterwards Office is found that the Disseisor was seised the Remitter is taken out of the Disseisee which is a stronger case then our Case for there was a right of Entire and in our Case it is but a right of Action which is not so strong against the King And for these Causes he concluded That the Judgment given in the Court of Pleas ought to be reversed And so prayed Judgment for the Lord of Sheffield Plaintiffe in the Writ of Error This great Case came afterwards to be argued by all the Judges of England And upon the Argument of the Case the Court was divided in opinions as many having argued for the Defendant Ratcliffe as for the Plaintiffe But then one new Judge being made viz. Sir Henry Yelverton who was before the Kings Sollicitor his opinion and argument swayed the even ballance before and made the opinion the greater for his side which he argued for which was for the Plaintiffe the Lord Sheffield And thereupon Judgment was afterwards given That the Judgment given in the Court of Pleas should be reversed and was reversed accordingly And the Earl Lord Sheffield now Earl of Mulgrave holdeth the said Castle and Mannor of Mulgrave at this day according to the said Judgment Note I have not set here the Arguments of the Judges because they contained nothing almost but what was before in this Case said by the Councel who argued the Case at the Bar. Pasch 21 Jacobi in the Kings Bench. 418. IT was the opinion of Ley Chief Justice Chamberlain and Dodderidge Justices That a Defendants Answer in an English Court is a good Evidence to be given to a Jury against the defendant himself but it is no good Evidence against other parties If an Action be brought against two and at the Assises the Plaintiffe proceeds only against one of them in that case he against whom the Plaintiffe did surcease his suit may be allowed a Witnesse in the Cause And the Judges said That if the Defendants Answer be read to the Jury it is not binding to the Jury and it may be read to them by assent of the parties And it was further said by the Court That if the party cannot find a Witnesse then he is as it were dead unto him And his Deposition in an English Court in a Cause betwixt the same parties Plaintiffe and Defendant may be allowed to be read to the Jury so as the party make oath that he did his endeavour to find his Witnesse but that he could not see him nor hear of him Pasch 21 Iacobi in the Kings Bench. 419. THe Husband a wife seised of Lands in the right of the wife levied a Fine unto the use of themselves for their lives and afterwards to the use of the heirs of the wife Proviso that it shall and may be lawfull to and for the husband and wife at any time during their lives to make Leases for 21 years or 3 lives The wife being Covert made a Lease for 21 years And it was adjudged a good Lease against the husband although it was made when she was a Feme Covert and although it was made by her alone by reason of the Proviso Pasch 21 Jacobi in the Common-Pleas 420. NOte that Hobart Chief Justice said That it was adjudged Mich. 15 Jacobi in the Common-Pleas That in an Action of Debt brought upon a Contract the Defendant cannot wage his Law for part and confesse the Action for the other part And it was also said That so it was adjudged in Tart's Case upon a Shop-book And vide 24 H. 8. Br. Contract 35. A Contract cannot be divided
the Kings Bench by the opinion of the whole Court the Judgment was reversed Trin. 21 Jacobi Intratur Hill 20 Jac. Rot. 137. in the Kings Bench. 444. KITE and SMITH's Case ONe Recovered by Erronious Judgment and the Defendant did promise unto the Plaintiffe That if he would forbear to take forth Execution that at such a day certain he would pay him the debt and damages And Action upon the Case was brought upon that Promise And now it was moved by the Defendants Councel That there was not any Consideration upon which the Promise could be made because the Judgment was an Erronious Judgment It was adjourned But I conceive that because it doth not appear to the Court but that the Judgment is a good Judgment that it is a good Consideration Otherwise if the Judgment had been reversed by a Writ of Error before the Action upon the Case brought upon the Promise for there it doth appear judicially to the Court that the Judgment was Erronious Trin. 21 Jacobi in the Kings Bench. 445. TOTNAM and HOPKIN's Case AN Action upon the Case was brought upon an Assumpsit And the Plaintiff did declare That in Consideration of c. the Defendant 1 Martii did promise to pay and deliver to the Plaintiffe 20 Quarters of Barley the next Seed-time Upon Non Assumpsit pleaded it was found for the Plaintiffe It was moved for the Defendant That the Plaintiffe ought to have shewed in his Declaration when the Seed-time was which he hath not done But it was answered That he needeth not so to do because he brings his Action half a year after the Promise for not payment of the same at Seed-time which was betwixt the Promise and the Assumpsit Dodderidge Justice If I promise to pay you so much Corn at Harvest next If it appeareth that the Harvest is ended before the Action brought it is good without shewing the time of the Harvest for it is apparent to the Court that the Harvest is past And here the Action being brought at Michaelmas it sufficiently appears that the Harvest is past And Judgment was given for the â—laintiffe Trin. 21 Iacobi Iatratur Hill 1â— Iacobi Rot. 652. inter Hard Foy in the Kings Bench. 446. KELLAWAY's Case IN an Ejectione Firme brought for the Mannor of Lillington upon a Lease made by Kellaway to Fey It was found by a special Verdict That M. Kellaway seised of the Mannor of Lillington in Fee holden in Soccage did devise the same by his Will in writing in these words viz. For the good will I bear unto the name of the Kellawayes I give all my Lands to John Kellaway in tail the Remainder to my right Heirs so long as they keep the true intent and meaning of this my Will To have to the said John Kellaway and the heirs of his body untill John Kellaway or any of his issues go about to alter and change the intent and meaning of this my Will Then and in such case it shall be lawfull to and for H. Kellaway to enter and have the Land in tail with the like limitation And so the Lands was put in Remainder to five several persons the Remainder to the right heirs of the Devisor M. Kellaway dyed without issue John Kellaway is heir and entred and demised the same to R. K. for 500 years and afterwards granted all his estate to Hard. Afterwards John Kellaway did agree by Deed indented with W. K. to levy a Fine of the Reversion to W. and his heirs H. Kellaway entred according to the words of the Proviso in the Will and made the Lease to Foy who brought an Ejectione Firme against Hard. And whether H. Kellaway might lawfully enter or no was the Question It was objected That in the Case there is not any Forfeiture because the Fine was without proclamations and so it was a Discontinuance only The first Question is If the Remainder doth continue The second is If it be a Perpetuity or a Limitation John Kellaway is Tenant in tail by Devise untill such time as John Kellaway or any of his issues agree or go about to alter or change the estate tail mentioned in the Will with Proviso to make Leases for 21 years 3 lives or to make Jointures Then his Will is That it shall be lawfull for H. K. to enter and to have the Land with the same limitations If it be a Perpetuity then it is for the Plaintiffe but if it be but a Limitation then it is for the Defendant The Fine was levied without proclamations and H. K. entreth for the Forfeiture Damport It is no Perpetuity but a Limitation which is not restrained by the Law as Perpetuities are Untill such time as c. shall discontinue c. The Jury find an Agreement by Indenture The act which is alleadged to be the breach is Conclusivit agreavit not to levy a Fine with proclamations but to levy a Fine without proclamations which is but a Discontinuance Yelverton If the Fine had been with proclamations then without doubt he in the Remainder during the life of him who levied it had been barred The Devise was To have to them and to the heirs of their bodies so long as they and every of their issues do observe perform fulfill and keep the true meaning of this my Will touching the entailed Lands in form following and no otherwise And therfore I M. Kellaway do devise unto John Kellaway the issue of his body the Remainder c. â—o have to the said John Kellaway and the issue of his body untill he or any of his issue shall go about to conclude do or make any act or acts to alien discontinue or change the true meaning of this my Will That then my Will is and I do give and bequeath to H K in tail And that it shall be lawfull for him the said H. K. or his issue to enter immediately upon such assent conclusion or going about to conclude c. And that H. K. and his issue shall leave it untill he or any of them go about c. C. 9 part Sundayes Case 128. where it was resolved That no Condition or Limitation be it by act executed or by limitation of an Use or by a Devise can bar Tenant in tail to alien by a common Recovery v. C. 3. part acc The Case was not resolved but it was adjourned to another day to be argued and then the Court to deliver their opinions in it Trin. 21. Intratur Trin. 20 Jacobi Rot. 811. in the Kings Bench. 447. KNIGHT's Case IN this Case George Crook said That Land could not belong to Land yet in a Will such Land which had been enjoyed with other might pass by the words cum pertinaciis As where A. hath two houses adjoyning viz. the Swan and the Red-Lyon and A. hath the Swan in his own possession and occupieth a Parlour or Hall which belongs in truth to the Red-Lyon with the Swan-house and then leaseth the Red-lyon
Statute of West 2. First they said That Copyholds are not within the letter of the Statute which speaks onely de tenementis per chartam datis c. Secondly they are not within the meaning of it 1. Because they were not untill 7 E. 4. 19. of any accompt in Law because they were but Estates at will 2. The Statute of West 2. provides against those who might makeâ— a dissen heresin by Fine or Feoffment which Copyholders could not do 3. Because if Copyholders might give lands in tail by the Statute then the Reversion should be left in themselves which cannot be 4. The Makers of the Statute did not intend any thing to be within the Statute of Donis whereof a Fine could not be levied For the Statute provides Quod sinis ipso jure sit nullus 5. Great mischiefs would follow if Copyholds should be within the Statute of West 2. because there is no means to dock the estate and no customary conveyance can extend to a Copyhold created at this day 37 Eliz Lane and Hills case adjudged in the Common-Pleas was cited by Justice Harvey where a Surrender was unto the use of one in tail with divers remainders over in tail The first Surrenderee dyed without issue And first it was agreed and adjudged That it was no discontinuance 2. If it were a discontinuance yet a Formedon in the Remainder did not lie because there ought to be a Custom to warrant the Remainder as well as the first Estate tail For when a Copyholder in Fee maketh such a gift no Reversion is left in him but only a possibility And the Lord ought to avow upon the Donee and not upon the Donor And there is a difference when he maketh or giveth an estate of inheritance and when he maketh a Lease for life or years for in the one case he hath a Reversion in the other not 2. A Recovery shall not be without a special custom as it was agreed in the Case of the Mannor of Stepney because the Warrantie cannot be knit to such an Estate without a Custom And for express authority in the principal Case he cited Pits and Hockleâ—'s ase which was Ter Pasc 35 Eliz. rot 334. in the Common-Pleas where it was resolved That Copyholds were not within the Statute of Donis for the weakness and meanness of their estates For if they were within the Statute of West 2. the Lord could not enter for Felony but the Donor and the Services should be done to the Donor and not to the Lord of the Mannor And so and for these mischiefs he conceived That neither the meaning nor the words of the said Statute did extend to Copyholds Hill 34 Eliz. Rot. 292. in the Kings Bench Stanton and Barney's Case A Surrender was made of a Copyhold within the Mannor of Stiversden unto one and the heirs of his body and after issue he surrendred unto another And it was agreed by all the Justices That the issue was barred And Popham did not deny that Case but that it was a Fee conditional at the Common-Law and that post prolem suscitatam he might alien And so it was agreed in Decrew and Higdens case Trin. 36. Eliz. rot 54â— in the Kings Bench and in Erish and Ives case 41 42 Eliz. in the Common-Pleas in an Evidence for the Mannor of Istleworth That no Estate tail might be of Copyhold without a Custom to warrant it Mich. 36 37 Eliz. in the Kings Bench it was adjudged That a Copyholder could not suffer a common Recovery and the reason was because that the Recovery in value is by reason of the Warrantie annexed to the Estate at the Common-Law which could not be annexed to a Customary estate And another reason was given because that he who recovers in value shall be in by the Recovery and the Copy of the Court-Roll only should not be his Evidence as Littleton and other books say it ought to be And Crook said That the Statute of Donis was made in restraint of the Common-Law And it should be very disadvantagious to the Lord if Copyhold should be construed to be within that Statute And therefore he conceived that the said Statute did not extend to Copyholds by any equitable construction And such difference was taken by Popham Chief Justice 42 Eliz. in the Kings Bench rot 299. in Baspool and Long 's Case For he said That a Custom which did conduce to maintain Copyholds did extend to them But a Statute or a Custom which did deprave or destroy them did not As if one surrender to the use of one for life the Remainder in Fee where the Custom is to surrender in Fee the Custom doth not extend thereunto because a Custom which goes in destruction of a Copyhold shall be taken strictly But if a man be Copyholder in Fee he may grant a Fee conditional Harvey Justice put some Cases to prove the small account the Law had of Copyholds at the time of the making of that Statute as 40 E. 3. 28. 32 H. 6. br Copyhold 24. And he said That there is not any book in the Law but only Mancels case in Plow Comment That the Statute of West 2. doth extend to Copyholds Hill 2 Caroli rot 235 in the Kings Bench. 459. LITFIELD and his Wife against MELHERSE A Writ of Error was brought upon a Judgment given in an Action upon the Case brought by Husband and Wife in the Common-Pleas for words spoken of the Plaintiffs wife And the Judgment in the Common-Pleas was That the husband and wife should recover And that was assigned for Error in this Court because the Husband only is to have the damages and the Judgment ought to be That the Husband alone should recover But notwithstanding this Error assigned the Judgment was affirmed by the opinion of the whole Court Pasch 2 Caroli rot 362. in the Kings Bench. 460 HOLMES and WINGREEVE's Case A Writ of Error was brought to reverse a Judgment given in the Court at Lincoln in an Action of Trespass there brought for taking away a Box with Writings And four Errors were assigned 1. Because the Plaintiffe did not appear by Attorney or in person at the retorn of the Attachment against the Defendant so as there was a discontinuance for the Plaintiffe ought to appear de die in diem 2. Because in his Declaration there he saith That the Defendant took a Box with Writings and doth not make any title to the Box nor shews that the same was lockt nailed or sealed 2 H. 7. 6. a. The certainty of the writings ought to be shewed that a certain issue may be taken thereupon Com. 85. 22 H. 6. 16. 14 H. 6. 4. 21 E. 3. He ought to shew the certainty of the writings 18 H. 1. Charters in a Box sealed C. 9. part Bedingfields case C. 5. part Playters case The Declaration was insufficient because the Plaintiffe therein did not name the certain number of the Fishes 3. He pleaded That he made a
certain Farme Lands called Estons and that a Fine was levied of Lands in Eslington Eston and Chilford whereas Eston lay in another Parish appell D. Calthrope argued That the Land in Eston did passe by the Fine although the Parish was not named for that the Writ of Covenant is a personall Action and will lie of Lands in a Hamlet or lieu conus 8. E. 4 6. Vide 4. E. 3. 15. 17. Ass 30. 18. E. 3. 36. 47. E. 3. 6. 19. E. 3. Brev. 767. 2. He said That it was good for that the Plea went only to the Writ in abatement but when a Concord is upon it which admits it good it shall not be avoided afterwards 3. He said That a Fine being a common assurance and made by assent of the parties will passe the Lands well enough 7 E. 4. 25. 38. E. 3. 19. And he vouched Pasch 17. Jacobi in the Kings Bench Rot. 140. Monk and Butlers Case Where it was adjudged that a Fine being but an arbitrary assurance would passe Lands in a Lieu conus and so he said it would do in a common recovery And Richardson said That if a Scire facias be brought to execute such a recovery Nul tiel ville ou Hamlet is no plea and the Fine or recovery stands good Vide 44. E. 3. 21. 21 E. 3. 14 Stone And the opinion of the Court was That the Lands did well passe by the Fine Mich. 8. Caroli in the Kings Bench 509 CAWDRY aud TETLEY's Case CAwdry being a Doctor of Physick the Defendant Praemissorum non ignorans to discredit the plaintiff with his Patients as appeared by the Evidence spake these words to the plaintiffe viz. Thou art a drunken Fool and an Asse Thou wert never a Scholer nor ever able to speak like a Scholer The opinions of Jones and Crook Justices were that the words were actionable because they did discredit him in his Profession and hee hath particular losse when by reason of those words others do not come to him And Palmers Case was vouched Where one said of a Lawyer Thou hast no more Law then a Jackanapes that an Action did lie for the words Contrary if he had said No more Wit And William Waldrons Case was also vouched where one said I am a true Subject thy Master is none that the words were actionable Mich. 4. Caroli in the Kings Bench. 510 The King and BAXTER SIMMON's Case THE Case was this Tenant in tail the Remainder in taile the Remainder in Fee to Tenant in tail in possession Tenant in tail in Remainder by Deed enrolled reciting that he had an estate tail in Remainder Granted his Remainder and all his estate and right unto the King and his Heirs Proviso that if he pay ten shillings at the Receipt of the Exchequer that then the Grant shall be void Tenant in tail in possession suffers a common Recovery and afterwards deviseth the Lands to I. S. and dieth without Issue 18. Jacobi Afterwards 21. Jac. he in the Remainder in tail dieth without issue but no seisure is made nor Offence found that the lands were in the Kings hands Noy who argued for the King The first Point is When Tenant in taile recites his estate and grants all his estate and right to the King and his Heirs what estate the King hath And if by the death of Tenant in tail without issue the estate of the King be so absolutly determined that the Kings possession needs not to be removed by Amoveas manum And he argued That when the Lands are once in the King that they cannot be out of him again but by matter of Record 8. E. 3. 12. Com. 558. And a bare entry upon the King doth not put the King out of possession of that which was once in him And so was it adjudged 34. Eliz. in the Lord Paget's Case as Walter chief Baron said And Noy took this difference 8. H. 5. Traverse 47. and 8. E. 2. Traverse 48. If a particular estate doth determine before that the King seise there the King cannot afterwards seise the Lands But if the King hath once the Lands in his hands or possession there they cannot be devested out of him but by matter of Record So F. Nat. Br. 254. If a man be seised of Lands in the right of his Wife and be outlawed for Felonie for which the Lands come into the Kings hands and afterwards hee who is outlawed dieth there a Writ of Diem clausit extremum shall issue forth which proveth That by the death of the Husband the Lands are not immediately out of the King and setled in the Wife againe 22. E. 4. Fitz. Petition 9. Tenant in taile is attainted of Treason and the Lands seised into the Kings hands and afterwards Tenant in taile dieth without Issue he in the Remainder is put to his Petition which proveth that the Lands are not presently after the death of Tenant in taile without issue out of the King But he agreed the Cases If Tenant in taile acknowledgeth a Statute or granteth a Rent charge and dieth that the Rent is gone and determined by his death as it is agreed in 14. Assisarum The second point argued by Noy was That although that there was not any seizure or Offence found which entituled the King Yet the Deed enrolled in the Chancery which is returned in this Court did make sufficient title for the King as 8. E. 3. p. 3. is The Judges of Courts ought to Judge upon the Records of the same Courts In 8. H. 7. 11. a Bayliff shewed That a Lease was made to T. his Master for life the Remainder to the King in Fee and prayed in Ayd of the King And the Plaintiff in Chancery prayed a Procedendo And it was ruled That a Procedendo should not be granted without examination of the Kings title Thirdly he said That in this case he who will have the Lands out of the possession of the King ought to shew forth his title and in the principall case it doth not appear that the Defendant had any title Vide 10. H. 7. 13. Athowe Serjeant argued for the Defendant he said That in this case the King had an estate but for the life of Tenant in tail And therefore he said That If Tenant in tail grant totum statum suum that an estate but for his own life passeth as Litt. is 145. and 13. H. 7. 10. acc So If Tenant for life the remainder in taile bee and he in the Remainder releaseth to Tenant for life in possession nothing passeth but for the life of Tenant in tail 19. H. 6. 60. If Tenant in tail be attainted of Treason or Felonie and Offence is found and the King seiseth the lands he hath an estate but for the life of Tenant in tail And he cited 35. Eliz. C. 2 part 52. Blithmans case Where Tenant in tail Covenanted to stand seized to the use of himself for his own life and after his death to the use
afterward the Husband suffers the wood to grow five and twenty yeers and afterwards hee dieth The question was Whether the Wife being Tenant for life might cut that Underwood And it was moved What shall be said seasonable Underwood that a Termor or Tenant for life might cut Dyer Chief Justice and all the other Justices held That a Termor or Tenant for life might cut all Underwood which had been usually cut within twenty yeers In 11. H. 6. 1. Issue was taken If they were of the age of twenty yeers or no. But in the Wood-Countries they may fell seasonable wood which is called Sylva caedua at six and twenty eight and twenty thirty years by the custome of the Country And so the Usage makes the Law in severall Countries And so it is holden in the books of 11. H. 6. and 4. E. 6. But they agreed That the cutting of Oakes of the age of eight yeers or ten years is Waste But by Meade Justice the cutting of Hornbeams Hasels Willows or Sallows of the age of forty yeares is no Waste because at no time they will be Timber Another question which was moved was That at the time of the Feoffment it was seasonable Wood and but of the growth of fourteen or fifteen yeers If this suffering of the Husband of it to grow to 25 years during the Coverture should bind the Wife so as she cannot cut the Woods Gaudy Serjeant said That it should not bind the Wife For if a Warranty descend upon a Feme Covert it shall not bind her So if a man seized of Land in the Right of his Wife be disseised and a Descent be cast during the Coverture it shall not bind the Wife but that she may enter after the death of the Husband But by Dyer Chief Justice and all the other Justices This Permission of the Husband shall bind the Wife notwithstanding the Coverture for that the time is limited by the Law which cannot be altered if it be not the custome of the Country As in the case of 17. E. 3. Where a man makes a Lease for years and grants that the Lessee shall have as great commoditie of the Land as hee might have Notwithstanding these words he cannot dig the land for a Mine of Cole or Stone because that the Law forbids him to dig the land So in the principall Case The Wife cannot fell the Wood notwithstanding that at the time of her estate she might and afterwards by the permission of the Husband during the coverture the time is incurred so as she cannot fell it because the Law doth appoint a time which if it be not felled before such time that it shall not be felled by a Termor or a Tenant for life but it shall be Waste Hill 23. Eliz. In the Common Pleas. 7. A Man makes a Lease of a Garden containing three Roodes of Land and the Lessee is ousted and he brings an Ejectione firme and declares that he was ejected of three Roods of Land Rodes Serjeant moved That by this Declaration it shall be intended that he was ejected of the Garden of which the Lease was made and so the Ejectione firme would lie And it was holden by the Lord Chief Justice Dyer That a Garden is a thing which ought to be demanded by the same name in all Precipes as the Register and Fitz. N. Brevium is And this Action is greater then an Action of Trespasse because by Recovery in this Action he shall be put into Possession But Meade and Windham Justices contrary And they agreed that in all reall Actions a Garden shall be demanded by the name Gardinum otherwise not But this Action of Ejectione firme is in the nature of Trespasse and it is in the Election of the Party to declare as here he doth or for to declare of the Ejectment of a Garden for a Garden may be used at one time for a Garden and at another time be ploughed and sowed with Corn. But they conceived that the better order of pleading had been if he had declared that he was ejected of a Garden containing three Roodes of Land as in the Lease it is specified Hill 23. Eliz. In the Common Pleas. 8. SErgeant Fenner moved this case That Land is given to the Wife in tail for her Joynture according to the Statute of 11. H. 7. The Husband dieth the Wife accepts a fine Sur conusans de droit come ceo c. of a Stranger And by the same fine grants and renders the Land to him for an Hundred years whether this acceptance of a Fine and Render by the Wife were a forfeiture of her estate so as he in the Reversion or Remainder might enter by the Statute Mead and Dyer Justices it is a forfeiture and Mead resembled it to the Case in 1 H. 7. 12. where it is holden That if Tenant for life do accept of a Fine Sur conusans de droit come ceo c. that it is a forfeiture and the Lessor may enter But Fenner asked their opinions what they thought of the principall case But haesitavernut because they said it was a dangerous case and is done to defraud the Statute of 11. H. 7. Pasch 23. Eliz. in the Common Pleas. 9. A Man made a Feoffment in Fee to two to the use of himself and his wife for the term of their lives without impeachment of waste during the life of the Husband the remainder after their decease to the use of I. his son for the term of his life And further by the same Deed Vult concedit that after their three lives viz. of the Husband Wife and Son that I. S. and I. D. two other Feoffees shall be seized of the same Land to them and their heirs to the use of the right Heirs of the body of the Son begotten It was moved That by this deed the two later Feoffees should be seized to the use of the right Heirs of the body of the Son begotten after the death of the Husband Wife and the Son But it was holden by all the Justices That the second Feoffees had not the Fee because by the first part of the Deed the Fee-Simple was given to the first Feoffees and one Fee-Simple cannot depend upon another Fee-Simple Notwithstanding that after the determination of the former uses for life the Fee-Simple should be vested again in the Heires of the Feoffer and that the words That the second Feoffees should be seized should be void But Dyer Chief Justice and the other Justices were against that because there wanted apt words to raise the later use As if a man bargain and sell his Reversion of Tenant for Life by words of Bargain and Sale only and the Deed is not Enrolled within the six months but afterwards the Tenant for Life doth attorne yet notwithstanding that the Reversion shall not passe because Bargain and Sell are not apt words to make a Grant And that Case was so adjudged in the Common Pleas as the
Assize brought against him the same shall be recowped in damages because that which was done was for his Commodity also it is incident to one who hath a way for to mend it All Prescriptions at the first did begin by Grants And if one grant to me his trees the Law saith That I may come upon the Land to fell them and carry them away off from the Land and I shall not be a Trespassor And by 9. E. 4. and Perkins If one grant to me liberty to lay a Conduit Pipe in his Land I may afterwards mend it toties quoties it shall want mending 32. E. 3. If one grant to me a way if he will interrupt me in it I may resist him and if he dig Trenches in the way to my hinderance in my way I may fill them up again The books of 12 13. H. 8. are not adjudged If Lessee for years be of a Meadow he may dig to avoid the water and may justifie so doing in Waste brought against him But it was said That in that Case the Lessee hath an interest in the soil so hath not he who claims the way in this Case Clenche Justice held That he could not dig the Soile Then the Defendant demanded What remedy he should have Suit Justice If he went that way before in his shooes let him now pluck on his boots Gawdy The pleading is not good for he saith That he could not use his way so well as before which is not good but he ought to plead that he could not use the way at all Mich. 28 29. Eliz. in the Kings Bench. 58 IN an Ejectione firme The party ought to set forth the number of the Acres for although he give a name to the Close as Green Close or the like it is not sufficient because an habere facias seisinam shall be awarded But in Trespasse the same may be Quare clausum suum fregit c. without naming the number of the Acres And so it was said it was adjudged in a Shropshire Case Mich. 28 29. Eliz. In the Kings Bench. 67. IN an Action upon the Case because that the Defendant had made a Gate in one Towne for which he could not go to his Close in another Town Cook took Exception that the Writ was Vi armis and it was agreed per curiam that for that cause it was not good Also the Visne was of one Towne only whereas it should have been of both for he said That in Hankford and Russels Case The Nusance was laid in one Town per quod his Mill in another Town could not grinde and upon Not guilty pleaded the Visne came from one Town only and it was adjudged that it was not good Mich. 28 29. Eliz. in the King Bench. 68 JOHN JOYCE'S Case AN Action upon the Case was brought against John Joyce Inn-keeper of the Bell at Maidstone in Kent for not scowring of a Ditch which ran betwixt the house of the said John Joyce and of another man and Judgement was given for the Plaintiffe against the Defendant Joyce and a Writ of Error was brought to reverse the Judgement and divers Errors were assigned The first Error which was assigned was That the Plaintiffe doth prescribe That all the Inhabitants of the Bell c. had used to scowre the Gutter c. And it was said That that was no good forme of prescription as in 12. H. 4. 7. Br. Presâ—ription 16. Where the Plaintiffe said That the Defendant omnes alii tenuram illam priushabentes mundare debuere consuevere talem fossatam and therefore the Writ was abated for it ought to have been quod ipsi praedecessores sui de tempere cujus contrarium c. Or that such a one and his Ancestors or Predecessors whose Estate the Defendant hath c. Also if a Copy-holder prescribe That he and all his Tenants tenementi praedict ' have used to have estovers in such a Wood c. it is not good but he ought to prescribe in the Manor The second Error was That the Prescription was uncertain for it is That all Tenants c. which extendeth to Tenants in Fee in Taile for Life or years and the Prescription is the foundation and ground of the Action and therefore it ought to be certain As if one make Title for entry for Mortmaine he ought to shew that he hath entred within the year and day 7. E. 6. Br. Prescription 69. It is holden That Tenant for years or at will cannot prescribe for common for the prescription ought to be alledged in the Tenant of the Free hold or to alledge a Corporation or the like In reason Tenant for years cannot prescribe for his Estate hath a certain beginning and a certain end therefore it is not of long continuance The third Error was That the Plaintiffe hath not alledged That the Defendant was Tenant at the time of the Action brought as in the Case of Clerkenwell and Black-Friâ—rs where the Plaintiffe brought his Action upon the Case for that the Defendant had turned the course of the water of a Conduit Pipe and the Declaration was Quod cum querens seisâ—â—us existat and doth not say existitit and so the Plaintiffe was not supposed Owner of the Scite and Messuage of Black-Friers but only at the time of the Action brought and not at the time of the diversion of the Water But Judgement was given and Error brought upon it The fourth Error was Because it was for scowring a Gutter betwixt the houses c. and doth not say That the house was contigue adjacens to his house 22. H. 6. Where Cattell escape into the Plaintiffs Close and thereupon Trespasse brought the Defendant said That it was for want of Fence of the Plaintiffs Close and it was holden no Plea if he do not say that the Plaintiffes Close was adjacens Clench Justice The Prescription ought to be That such a one and all those whose Estate he hath c. have used for them and their Farmors to repair the Gutter Cowper When the Prescription runs with the Land then he may prescribe in the Land as all those who have holden such Lands have used to scowre such a ditch and the same is good Gawdy Justice If he had said All those who had occupied such a house had used to scowre it had been good Godfrey If a man will alledge a Prescription or Custome he ought to set forth That it was put in use within time of memory In the Prescription of Gavelkind the party ought to shew that the Land is partable and so hath been parted Also he prescribed That omnâ—â— illi qui tenuerunt and doth not alledge a Seisin but by way of Argument Suit Justice held the pleading not good because the words were not contigue adjacens And for these causes the first Judgment was reversed Mich. 28 29. Eliz. in the Kings Bench. 69 GOMERSALL and GOMERSALLS Case IN an Action of Account the Plaintiffe charged
which implyes an Affirmative which yet seems to be repugnant to a Negative as in 21. H. 6. 19. In a Writ of Entrie the Defendant pleaded the deed of the Demandant after the darrein Continuance The Demandant said It was not his deed after the darrein Continuance And that was holden a Negative pregnans wherefore he was compelled to plead and say he made it by dures before the darrein Continuance such a day absque hoc that he made it after the darrein continuance and then Issue was taken upon it The same Case is in 5. H 7. 7. But there it is said That in Debt upon a Bond to perform an Arbitrement Non fecerunt Arbitrementum per diem is no Negative pregnans The same Law that non deliberavit arbitrium in Script 38. H 6. in Formedon Ne dona pas in taile is a Negative pregnans Vide 39 H. 6. The Case of the Dean and Chapter The second Exception was That he hath pleaded neque such nor such nor such had disturbed him by any indirect means but onely by due course of Law And that cannot be tryed neither by Jury nor by the Judges Not by the Jury because it is not to be put to them whether they had disturbed him by indirect means or by due course of Law for they shall not take upon them the construction What is an indirect means and what is the due course of Law for it appertaineth to the Justices to adjudg that Not by the Judges because hee hath not put it certain that it was a due course of Law by which he disturbed him As 22. E. 4. 40. In Debt upon a Bond the Defendant saith that it is upon condition That if the Defendant or any for him came to Bristow such a day and there shewed to the Plaintiff or his Councell a sufficient Discharge of an Annuity of forty shillings per annum which the Plaintiff claims out of two Messuages of the Defendant in D that then c. The Defendant said that A. and B. by the assignement of the Defendant came the same day to Bristow and tendered to shew to N and W. of the Plaintiffs Councell a sufficient Discharge of the Annuity and that they did refuse to see it and demanded judgment of the Action The Plaintiff did demur upon the Plea And after a long argument it was adjudged by all the Justices to be no Plea c. because it lay in the judgment of the Court to judg of it and he did not shew in certain what discharge he tendered as a Release Unitie of possession c. If a man be bound to plead a sufficient plea before such a day in Debt upon such a Bond it is no plea to say That he hath pleaded a sufficient plea before the day but hee ought to shew what plea he hath pleaded For the Court cannot tell whether it be a sufficient plea or not if it do not appear what manner of plea it is 35 H. 6. 19. The Condition of a Bond was That where the Plaintiff was indebted to J. S. in one hundred pounds If the Defendant acquit and discharge the Plaintiffe that then c. The Defendant pleaded That hee had discharged him c. and the Plaintiffe did demurre upon the plea because hee did not shew how and it was holden no good plea. So 38. H. 8. Br. Condition 16. per curiam in the Kings Bench where a man pleaded That he had saved him harmlesse it was no Plea without shewing how because he pleaded in the Affirmative contrary if he had pleaded in the Negative as Non damnificatus est Suit and Clenche Justices said That if he had pleaded That he was not disturbed by any indirect means it had been good enough Gaudy If he had said That he was not disturbed contra formam conditionis praedict ' it had been good as upon a pleading of a Statute Ne entra pas contra formam Statuti Clench If I be bound to suffer I. S. to have my house but not I. D. I ought to answer That I have suffered the one and not the other to have it Suit Justice They are both severall issues and one shall not be repugnant to the other Mich. 28 29 Eliz. In the Kings Bench. 75 STURGIE'S Case A Case was moved upon the Statute of 5. Eliz. Cap. 14. The Case as I conceive was thus Grandfather Father and Daughter Land descended from the Grandfather to the Father who made a Lease for one hundred years the Father died and the Daughter forged a Will of the Grandfather by which he gave the Land to the Father for life the Remainder to the Daughter in Fee and the same was forged to have avoided an Execution of a Statute Staple the Lease being defeated and if it were within the Statute of 5. Eliz. was the question Solicitor That it was within the statute and within the first Branch viz. If any shall forge any deed c. to the intent that the Estate of Free-hold or Inheritance of any person c. in or to any Lands Tenements or Hereditaments Freehold or Copyhold or the right Title or Interest of any c. of in or to the same or any of them shall or may be molested c. Lessee for years hath a Title hath an Interest hath a right therefore within the words of the Statute and those words shall be referred to the words Lands Tenements c. But Cook said They shall be referred to the words precedent viz. Estate of Freehold or Inheritance and then a Lease for years is not within them Also by the Solicitor A Testament in writing is within the words of the Statute and therefore he recited a clause in the end of the Statute viz. and if any person plead publish or shew forth c. to the intent to have or claime thereby any Estate of Inheritance Freehold or Lease for years And also he said a Statute Staple is an estate for years although it be not a Lease for years because it is not certain Cook If she should be within both branches then she should be twice punished which Law will not suffer And the Statute is whereby any Estate for years shall be claimed and she would not claim but defeat an Estate for years and a Statute Staple is not a Lease for years and the Statute is not to be taken by Equity because it is a Penall Law Solicitor When the Statute is extended then it is an Estate for years although it be uncertain If a man forge a Lease for years it is directly within the Statute But if a man have a Lease and another is forged to defeat it it is a question whether it be within the Statute And all the doubt of this Case is upon the reference of these words Right Title Interest And it was adjourned Mich. 28 29. Eliz. in the Kings Bench. 76 THE Vicar of Pancras Case was argued again by Godfrey And he said That no Plea shall be
not have an Action without cause and if he were convicted then there is no cause of Action and he hath not shewed whether he was convicted or acquitted And he said that there was no difference betwixt an Action on the Case and a Conspiracie in such case but onely this That a Conspiracy ought to be by two at the least and an Action upon the Case may lie against one and he said that in both he ought to shew that he was legitimo modo acquietatus See 11. H. 7. 25. An Action of Conspiracy founded upon the Statute of 8. H 6. Cap. 10. where it is grounded upon a Writ of Trespasse brought against one onely But such a Conspiracy which is grounded upon an Indictment of Felony must be against two at the least for the same is an Action founded upon the Common Law Mich. 28 29. Eliz. In the Kings Bench. 92. BONEFANT against Sir RIC. GREINFIELD BOnefant brought an Action of Trespasse against Sir Richard Greinfield The Case was this A man made his Will and made A. E. I. O. his Executors and devised his Lands to A. E. I. and O. by their speciall names and to their heirs and further willed that his Devisees should sell the Land to I. D. if he would give for the same before such a day an hundred pound and if not that then they should sell to any other to the performance of his Will scil the payment of his debts I. D. would not give the hundred pound One of the Devisees refused to entermeddle and the other three sold the Land and if the Sale were good or not was the question Cooke The Sale is not good 1. Let us see what the Common Law is At the Common Law it is a plain case that the Sale is not good because it is a speciall trust and a joynt trust and shall never survive for perhaps the Devisor who is dead reposed more confidence in him who refused then in the others Vide 2 Eliz. the Case of the Lord Bray who covenanted That if his son marry with the consent of four whom he especially named viz. A. B. C. and D. that then he would stand seised to the use of his son and his wife and to the heirs of their two bodies begotten One of the four was attainted and executed The other did consent that he should marry such a one he married her yet no estate passed because the fourth did not consent and it was a joynt trust 38. H. 8. Br. Devises 31. A man willeth that his Lands deviseable shall be sold by his Executors and makes four Executors all of them ought to sell for the trust which is put upon them is a joynt Trust But Brook conceiveth that if one of them dieth that the others may sell the Lands The Case betwixt Vincent and Lee was this A man devised That if such a one dieth without issue of his body that then his Sons in law should sell such Lands and there were five sons in law when the Testatour died and when the other man died without issue there were but three sons in law and they sold the Lands and it was holden that the Sale was good because the Land was not presently to be sold Also he said that in the principall Case here they have an Interest in the Lands and each of them hath a part therefore the one cannot sell without the other But if the devise were that four should sell they have not an Interest but onely an Authority As to the Statute of 21. H. 8. Cap. 4. he said that that left our Case to the Common Law For that Statute as it appeareth by the preamble speaks onely of such Devises by which the Land is devised to be sold by the Executors and not devised to the Executors to sell And goes further and saith Any such Testament c. of any such person c. therefore it is meant of such a devise made unto the Executors and then no Interest passeth but onely an Authority or a bare Trust But in our Case they have an Interest for he who refused had a fourth part Then when the other sell the whole the same is a disseisin to him of his part If a Feoffment be made to four upon condition that they make a Feoffment over and two of them make the Feoffment it is not good Also the words of the Will prove that they have an Interest for it is that his Devisees shall sell c. Laiton contrary And he said That although the Devise be to them by their proper names and not by the name Executors yet the intent appeareth that they were to sell as Executors because it was to the performance of his last Will and that may be performed as well by the three although that the other doth refuse and the Sale of the Land doth referre to the performance of his Will in which there are divers Debts and Legacies appointed to be paid 2. H. 4. and 3. H. 6. A man devised his Lands to be sold for the payment of his debts and doth not name who shall sell the same the Lands shall be sold by his Executors 39. Ass A Devise is of Lands unto Executors to sell for the performance of his Will the profits of the Lands before the Sale shall be assets in the Executors hands 15. H. 7. 12. is That if a man devise that his Lands shall be sold they shall be sold by his Executors Also if I devise that my Executors shall sell my Lands and they sell it is an Administration and afterwards they cannot plead that they never were Executors nor never administred as Executors And although there are divers Authorities to be executed yet it is but one Trust 39. Ass 17. is our very Case A man seised of Lands deviseable devised them to his Executors to sell and died having two Executors and one of them died and the other entred and sold the Land and the Sale was good 49. E. 3. 15. Isabell Goodcheapes Case Where a man devised that after an Estate in taile determined that his Executors should sell the Lands and made three Executors and one died and another refused the third after the taile determined sold the Land and the Sale was holden good and that it should not escheate to the Lord for the Land was bound with a Devise as with a Condition as to the Statute of 21. H. 8. Cap. 4. the preamble of the Statute is as it hath been recited and although for exmaple the Lands in use are only put yet the Statute is not tied only to that As in the Statute of Collusion of Malbridge Examples are put only of Feoffments and Leases for years yet there is no doubt but that a Lease for life or a gift in taile to defraud the Lord is within the Statute So the Statute of Donis Conditionalibus puts onely three manner of estate tailes But Littleton saith That there are many other estate tailes which are
the Person and to that purpose he cited 15 E. 4. 29. And he agreed the Case That if the Lord improve part of the Common that he shall not have common for the Residue because of the same Land newly improved for he cannot prescribe for that which is improved by 5. Ass 2. But here he doth prescribe not in the person or in or for a new thing but that the usage of the Towne hath been That the Inhabitants shall have common and that common is not appendent nor appertinent nor in grosse by Needham 37 H. 6. 34. b. Besides he said That if the house of a Freeholder who hath used to have such common fall down and he build it up again in another place of the Land that he shall have common as before And he put a difference betwixt the case of Estovers and this Case where a new Chimney is set up for that makes a new matter of charge and he much stood upon the manner of the Prescription Gaudy Serjeant contrary and he took Exception to the Prescription for he saith that it is antiqua villa and doth not say time out of mind and such is the Prescription in 15. E. 4. 29. a. and if it be not a Town time out of mind c. he cannot prescribe that he hath used time out of mind c. And he said That if it should be Law that every one who builds a new house should have common it should be prejudiciall to the Ancient Tenants or impaire the common And so one who hath but a little land might build 20 houses and so an infinite number and every house should have common which were not reason Anderson chief Justice He who builds a new house cannot prescribe in common for then a prescription might begin at this day which cannot be and he insisted upon the generall loss to the ancient Tenants Pâ—riam Justice If it should be Law that he should have common then the benefit of improvement which the Statute giveth to the Lord shall be taken away by this means by such new buildings which is not reason So as all the Justices were of opinion That he should not have common but Judgement was respited untill they had copies of the Record And Hillary Term following the Case was moved again and Anderson and Periam were of Opinion as they were before and for the same reasons But Windham Justice did incline to the contrary But they did all allow That he who new bulids an old Chimney shall have Estovers so a house common So if a house fall down and the Tenant build it up again in another place Periam If a man hath a Mill and a Watercourse time out of mind which he hath used to cleanse if the Mill fall down and he set up a new Mill he shall have the liberty to cleanse the Watercourse as he had before And that Terme Judgement was given for the Defendant to which Windham agreed Mich. 28 29. Eliz. in the Common Pleas. 111 IN a Replevin the parties were at Issue upon the Property and it was found for the Plaintiff and Damages intire were assessed and not for the taking by it self and for the value of the Cattell by themselves for the Judgement upon that is absolute and not conditionall and also if the Plaintiffe had the Cattell the Defendant might have given the same in Evidence to the Jury and then they would have assessed Damages accordingly viz. but for the taking Mich. 28 29. Eliz. in the Common Pleas. 112 A. bargaines with B. for twenty Loads of Wood and B. promises to deliver them at D. if he fail an Action upon the Case lieth But Periam Justice said That upon a simple contract for wood upon an implicative promise an Action upon the Case doth not lie Rodes Justice If by failer of performance the Plaintiff be damnified to such a sum this Action lieth Mich. 28 29 Eliz. in the Common Pleas. 113 A Lease of Lands is made excepting Timber-Woods and Under-woods And the question was Whether Trees Sparsim growing in Hedge rowes and Pastures did passe And difference was taken betwixt Timber-wood being one Wood and Timber Woods being severall Words although it bee Arbor dum crescit lignum dum crescere nescit yet in common speech that is said Timber which is fit to make Timber Then it was moved Who should have the Lops and Fruits of them and the Soile after the cutting of them downe and also the Soile after the Under Woods and as to that a difference was taken where the words are generally All woods and where they are his woods growing And in speaking of that case another case was moved viz. If a stranger cut down woods in a Forrest and there is no fraud or collusion betwixt him and the owner of the Land Whether the King should have them or the owner of the Soile And it was holden That the owner of the Soile should have them and yet the owner could not cut them downe but is to take them by the Livery of one appointed by the Statute Mich. 28 29. Eliz. in the Common Pleas. 114. A. makes a Lease of Lands to B. for ten years rendring rent And B. covenants to repaire c. Afterwards A. by his Will deviseth that B. shall have the Lands for thirty years after the ten years under the like Covenants as are comprised in the Lease Fenner moved it as a question If by the Devise those which were Covenants in the first Lease should be Conditions in the second for they cannot bee Covenants for want of a Deed And if they should not be Conditions the heir of the Lessor were without remedie if they were not performed A Devise for years paying ten pounds to a stranger is a Condition because the stranger hath no other remedy Gaudy Justice By the Devise to him to do such things as he was to do by the Lease makes it to be a Condition which was in a manner agreed by all the other Justices Yet Periam and Rodes Justices said That the first Lease was not defeisable for not performance of the Covenants nor was it the intent of the Devisor that the second should be so notwithstanding that his meaning was that he should do the same things Periam The Covenant is in the third person viz. Conventum Aggreatum est And see 28. H. 8. Dyer where the words Non licet to the Lessee to assigne make a Condition Mich. 28 29. Eliz. in the Common Pleas. 115. BARBER and TOPESFEILD'S Case A. being Tenant in taile of certain Lands exchanged the same with B. B. entred and being seised in Fee of other Lands devised severall parcels thereof to others and amongst the rest a particular estate unto his heir Proviso That he do not re-enter nor claim any of his other Lands in the destruction of his Will And if he do that then the estate in the Lands devised to him to cease A. dieth his issue entreth into the Lands in
common law yet it is otherwise at this day For when the Statute sayes That the Lessor shall recover damages for the Wast that proves sufficiently that the property of the trees is in him as the Statute of Merton Cap. 4. enacts That if the Lessor do approve part of the Wast leaving sufficient for the Commoners and they notwithstanding that bring an Assize they shall be barred in that Case and the Lord may have an Action of Trespass against them if they break the Hedges by force of that Statute as it hath been adjudged for the intent of the Statute was to settle the Inheritance of the Land approved without interruption of the Commoners And so in this case But Note that by the Statute of Marlebridge the Lessor shall recover damages for the houses c. which are wasted c. and yet a man cannot inferre thereupon that therefore the Lessee hath no Interest or property in them and such interest hath he in the trees notwithstanding the words of the Statute which is contrary to this meaning as it seems And therefore Quaere If there be any difference betwixt them and what shall be meant by this word Property But the damages are given by the Statute in respect of the property which the Lessor is to have in reversion after the Lease determined Anderson Chiefe Justice The Lessor hath no greater property in the trees then the Commoner hath in the soile Walmesley 2. H. 7. 14. and 10. H. 7. 2. The Lessor may give leave to the Lessee to cut the trees and the same shall be a good plea in an Action of Wast and the reason of both the books is because the property of them is in the Lessor and to this purpose the difference is taken in 2. H. 7. betwixt Gravell and trees 42. H. 3. If a Prior licence the Lessee to cut trees the same shall discharge him in Wast brought by the Successour But if the Lessee cutteth down the trees and then the Prior doth release unto him the same shall not barre the Successour and so is 21. H. 6. Also he cited Culpepers case 2 Eliz. and 44. E. 3. Statham and 40. Ass 22. to prove that the Lessor shall have the Wind-falls If a stranger cutteth down trees and the Lessee bringeth an Action of Trespasse he shall recover but according to his losse viz. for lopping and topping As to that which was said That if the Lessee cut down trees that the Lessor cannot take them away that is true for that there is a contract of the Law that if the Lessee doth cut them down that he shall have the trees and the Lessor shall have treble damages for them Also he said That the trees are no part of the thing demised but are as servants and shall be for reparations As if one hath a Piscarie in the land of another man the land adjoyning is as it were a servant viz. to drie the Nets So if one have conduit-pipes lying in the land of ather he may dig the land for to mend the pipes and yet he hath no Interest nor Free-hold To that which was said That by the excepting of the trees the land upon which they stood is excepted It is true as a servant to the trees for their nourishment but not otherwise for if the Lessor selleth the trees he afterwards shall not meddle with the land but it shall be wholly in the Lessee quia sublata causa tollitur effâ—ctus And if the Lessee tieth a horse upon the land where the trees stood the Lessor may distraine the same for his rent and avow as upon land within his distress and Fee and holden of him And he said that the lessor may grant the trees but so cannot the lessee and therefore he said That the property is in the lessor and not in the lessee Also if the lessor granteth them they passe without Atturnment But contrary if the lessor had but a Reversion in them Also if the lessor cutteth them down his Rent shall not be apportioned and therefore they are no part of the thing demised For 16. H. 7. and temps E. 1. Fitz. Waste in two or three places it is holden That if the Waste be done Sparsim in a Close or Grove the lessor shall recover the whole Then admit that the trees excepted are cut down sparsim if the Exception shall be good how shall the thing wasted be recovered and against whom quod nota Anderson Chief Justice did conceive that the Exception was void and that the Action was well brought and he said It was a Knavish and Foolish demise and if it should be good many mischiefs would follow which he would not remember Windham Justice was of the same opinion and he said The lessor might have excepted them and so take from the lessee his fire wood and Plough bote c. But the lessee could not grant his estate excepting the trees because he had but a speciall interest in them viz. for his fire-bote c. which shall go with the land Periam Justice agreed That as to such a speciall property none can have it but such a one who hath the land and therefore the exception of the Wood by the lessee was void But as to the other things perhaps if they were Apple trees or other Fruit-Trees the exception had been good Also although the trees are not let directly yet they are after a sort by a mean as annexed to the land and if the Action be brought against him who made the exception he cannot plead that they were let unto him and therefore he doubted of the exception Rodes Justice also said That he doubted of the Exception And he said That the Book of 44 E. 3. is That the lessee should have the Wind-falls and he did not much regard the Opinion of Statham But Anderson Chief Justice was of opinion that the lessor should have the Wind-falls Note the Case was not adjudged at this time Hill 29. Eliz. in the King's Bench 137 EXceptions were taken by Fuller to an Indictment upon the Statute of 1. Eliz. cap. 2. for the omitting of the Crossing of a Child in Baptising of him The Case was That a Minister out of his Cure at another Church viz. at Chelmesford in Essex did Baptize a Child without the Sign of the Crosse for which he was indicted The first Exception was That the Statute speaks of Ministers which do not use the administring of the Sacrament in such Cathedrall Churches or Parish Churches as he should use to administer the same that this was not the Parish Church in which he should use the same Suit Justice was of opinion That it was good notwithstanding that for otherwise the Statute might be greatly defrauded The words of the Statute are farther Or shall wilfully or obstinately standing in the same use any other Rule Ceremony Order Forme c. 2. He took another Exception upon those words For the omitting of the Crossing only is put and
yet in the interim during the life of Brenne and his wife it is one entire Manor For if Blackborow had levied a Fine thereof before entry his Interest in the Land had not passed And if a Fine be levied of the Manor and the Conusee render back part to one for life and another part to another for life the remainder of the whole to a third until the Two enter it is one entire Manor in the hands of the Conusee If I devise that my Executors shall sell such Lands which are parcell of a Manor and dye untill they sell it remains parcell of the Manor So if the heir selleth the Manor that Land shall passe for it is but executory and remains parcell untill it be executed Wherefore in the principall Case here the Copy-hold is good The reason of the Case 33. H. 8. Dyer 48. is because before the grant the advowson was not appendant to that acre onely but to the whole Manor and to that acre as parcell of it Also he said that the Copy-hold shall be good against the Lessee being granted before execution of his term when as the Manor was entire For he who hath a Manor but for one year may grant Copies and the grant shall be good to bind him in the Reversion And if one recovereth an acre parcell of a Manor before execution it is parcell of the Manor and by grant of the Manor shall passe Periam Justice But yet now being executed by the death of the Lessor and his wife it is no part of the Manor if they be severall Leases Walmesley But the Defendant is in by Custome by one who is Dominus pro tempore Anderson Chief Justice The Case of 48. E. 3. is like our Case And I conceive clearly here is no severance but if there had been any severance it had been otherwise but I doubt of the other point Periam Justice In 13. H. 4. the difference is taken betwixt a grant of a Manor una cum advocatione and a grant of a Manor et ulterius a grant of the Advowson In 14. Eliz. Dyer 311. in the Case of the Lord Cromwell and Andrews it is moved If a man bargain and sell give and grant a Manor and Advowson to one and afterwards levieth a Fine or inrolleth the Deed Dyer held that the Advowson shall passe by the Bargain and Sale as in gross before that the Deed be enrolled But I conceive that it cannot pass if the Deed be not enrolled and then it shall pass as appendant by reason of the intent of the parties and so in this Case And for the last matter I conceive very strongly that when the Lease which is executory takes effect that it shall avoid the Copy-hold for although at once viz. during the expectancy of the said Lease to begin at a day to come the Copy-hold be not extinct yet now he may say That all times as in respect to him the Copy-hold Custome was broken I hold That a Tenant in Dower shall not avoid a Copy-hold made during the Coverture and so it hath been adjudged in the Kings Bench. But I conceive there is a difference betwixt that Case and the Case in question for in that Case the title of the wife to have Dower is not consummate till the death of the Husband Anderson Chief Justice I can shew you an Authority That if I grant unto you such Land and the Manor of D. there the Land shall pass as parcell of the Manor Periam True there for it doth enforce the first grant But here the intent of the parties doth appear and the same is to be respected Anderson But their intent ought to be according to the Law as in 19. H. 8. it is holden it shall be in a Devise Anderson upon the Argument of this Case said That if a Warranty be to a whole Manor and also to an Advowson the party cannot have Two Warrantia Chartae Periam If he had further said in the Deed That his intent was that it should be severall the same had altered the Case Anderson No truely because his intent did not stand with the rule of Law As if a man devise that his Lands shall be sold and doth not say by whom it is void and yet the intent is expressed If the Lease had been by severall Deeds Periam said The Copy-hold had beene severed Windham denied that If both the Deeds bee delivered at one time It was adjourned Hill 29. Eliz. In the Common Pleas. 148 AN Information was upon the Statute of 5. 6. E. 6. for buying of seed Corn having sufficient of his own and not bringing so much unto the Market of his own corn and a generall issue was found upon it And it was delivered for Law to the Jury by the Justices That a Contract in Market for corn not in the Market or which was not there that day is not within the Branch of the Statute But if corn or graine be in the Market although that the Contract be made in a house out of the Market and delivered to the Vendee out of the Market yet it is within the Statute And in the Argument of that Case Anderson said That the Market shall be said The place in the Town where it hath used to be kept and not every place of the Town And a Sale in Market overt in London ought to be in a Shop which is open to the street and not in Chambers or inward rooms otherwise the property is not altered And so it is of all Statutes in open Markets And the Recorder of London said That such was their Custome in London Hill 29. Eliz. in the Common Pleas. 149 It was holden by Anderson chiefe Justice That if one deviseth Lands to the heirs of I. S. and the Clerk writes it to I. S. and his heirs that the same may be holpen by averrment because the intent of the Devisor is written and more And it shall be naught for that which is against his intent and against his will and good for the residue But if a Devise be to I. S. and his heirs and it is written but to the heirs of I. S. there an averrment shall not make it good to I. S. because it is not in writing which the Statute requires anâ— so an averrment to take away surplusage is good but not to encrease that which is defective in the Will of the Testator Mich. 29. Eliz. in the Common Pleas. 150 A Feoffment was made unto A. unto the use of him and his wife dis-punishable of Wast during their lives one died and the Survivor committed Wast It was the opinion of the whole Court that an Action of Wast would not lie by him in the Reversion for it is a Priviledge which is annexed to the Estate which shall continue as long as the Estate doth continue Mich. 29 Eliz. in the Common Pleas. 151 A. grants annualem redditum out of Lands in which he hath nothing The opinion of
to the extinguishment of the Bond by the release of all Actions But the Court conceived That the Arbibitrament did consist of two matters which were distinct and might be severed For although that the Arbitrament be void as to one matter yet it shall stand good and shall be a good Arbitrament for the other matter And Foster Justice said That in that case the Award to make the Release might be severed viz. That it should be good for all Actions except the Bond. Cook contrary And said That it is so entire that it cannot be divided But the Court conceived That the Arbitrament was good as to the Bond to be made by the Defendant although it were void as to the Arbitrator At another day Dodderidge said That the Plaintiffe had not alledged any Breach of the Arbitrament for he hath put it That the Defendant and the Arbitrator had not entred into the Bond and although they two joyntly had not entred into the Bond yet it might be that the Defendant alone had entred into the Bond and it needed not that the Arbitrator enter the Bond for as to him the Arbitrament was void And that Exception was allowed as a good Exception by the whole Court. For they said That the Plaintiffe ought for to shew and alledge a breach according to the Book of L. 5. E. 4. 108. And they said That although it be after verdict yet it is not remedied by the Statute Pasch 8. Jacobi in the Common Pleas. 231 FOLIAMBES Case IN a Writ of Dower brought by the Lady Foliambe It was agreed by the whole Court That if the Husband maketh a Lease for years rendring rent and dieth the wife shall recover her Dower and shall have present Execution of the Land and thereby she shall have the third part of the Reversion and of the Rent and execution shall not cease And all the Justices said That the Sheriffe should serve execution of the Land as if there were not any Lease for years for it may be that the Lease for years is void And although it be shewed in pleading that there is a Lease for years the wife cannot answer to it and it may be there is not any Lease and therefore the Execution shall be generall And he who claimes the Lease for years may re-enter into the Land notwithstanding the Recovery and the Execution of the Dower And if he be ousted he shall have his Action Nichols Serjeant who was of Councell against the Demandant said That he would agree that the Case in Perkins 67. was not Law But the Justices said That there is a difference betwixt the Case of Perkins and this Case for in the Case in Perkins the Husband had but an estate in Remainder so as no rent or attendancy was due so as the wife during that Term could not have any benefit Also in this case it was agreed by the Court That after judgement for part the Demandant might be Non-suit for the residue and yet have execution of that part for which he had judgment Pasch 8. Jacobi in the Common Pleas. 232 RAPLEY and CHAPLEIN's Case IT was ruled by the whole Court That if a Custome be alledged That the eldest daughter shall solely inherit that the eldest sister shall not inherit by force of that Custome So if the Custome be That the eldest daughter and the eldest sister shall inherit the eldest Aunt shall not inherit by that Custome And so if the Custome be that the youngest son shall inherit the youngest brother shall not inherit by the Custome And Foster Justice said That so it was adjudged in one Denton's Case Pasch 8. Jacobi in the Common Pleas. 233 SEAMAN's Case BArker Serjeant prayed the opinion of the Court in this Case Lessee for an hundred years made a Lease for forty years to Thomas Seaman if he should live so long and afterwards he leased the same to John his son Habendum after the Term of Thomas for 23. years to be accounted from the date of these presents The Question is If the Lease to John shall be said to begin presently or after the Term of Thomas And the Justices were cleer of opinion That the Lease to John shall not be accounted from the time of the date but from the end of the Term of Thomas because that when by the first words of the Limitation it is a good Lease to begin after the Term of Thomas it shall not be made void by any subsequent words And Cook Chiefe Justice said That this is no new reason for there is the same reason given in 2. E. 2. Grants And he put the Case in Dyer 9. Eliz. 261. and said That if the Limitation be not certain when the Term shall begin it shall be taken most beneficiall for the Lessee Pasch 8. Jacobi in the Common Pleas. 234 WARD and POOL's Case AN Action upon the Case was brought for speaking these words Thou mayest well be richer then I am for thou hast coined thirty Shillings in a day thou art a Coiner of money c. I will justifie it It was moved in arrest of Judgment That the words were not Actionable because he might have a good Authority to coine Money for men who work in the Mint are said to coine Money and are called Coiners of Money And so it was adjudged Quod Querens nihil capiat per Billam Pasch 8. Jacobi in the Common Pleas. 235 CHALK and PETER's Case CHalk brought a Replevin against Peter the Defendant did avow the taking as Bailiff of Sir Francis Barrington in sixteen Acres of wood in Hatfield Chase and shewed that an Arbitrament was made by the Lord Burghley late Lord Treasurer betwixt the Lord Rich and the Ancestors of Sir Francis by which it was awarded That the said Ancestors of the said Sir Francis Barrington and his Heirs should have the herbage of a certain number of Acres within the said Chase and also that he should have to him and his Heirs the Trees and Bushes of the said number of Acres within the said Chase and that he might fell and cut sixteen Acres every year of the said Acres and that he should enclose them according to the Laws and Statutes of the Realm and that Assurance was made by the Lord Rich accordingly and that the same was confirmed by a speciall Act of Parliament with a saving of the right and interest of all strangers and said That Sir Francis Barrington did inclose and cut down sixteen Acres and did enclose the same and there took the Defendants cattel Damage feasants upon which the Defendant did demurr in Law The Question in the case was If by the Statute of 22. E. 4. cap. 7. or the Statute of 35. H. 8. câ—p 17. which give Authority to make inclosures of Woods the Commoner shall be excluded Harris Serjeant I conceive That the Commoner shall be excluded by the Statute of 22. E. 4. cap. 7. which gives Authority to inclose and exclude all Beasts and
practices should be suffered and go unpunished that no mans life was in safety but in continual jeopardy And therefore in this case it was said that pregnant presumption had been sufficient to have acquited the Plaintiff but here the case was very cleer because the matter was confessed by the parties Defendants themselves And in this case Cook Chief Justice and the Lord Chancellour said that a conspiracy ought not to be onely false but malitiose contrived otherwise it will not be a conspiracy and such malice ought to be proved For if a poor Man travelling upon the High-way be robbed by another Man and he knows not the party if afterwards he do accuse such a one of the Robbery and the party accused be found not Guilty he shall not have an Action of conspiracy against the accuser for although he was falsly accused yet he was not malitiously accused and it might be that he took him to be the Offender because he was like unto him who robbed him Secondly It was said by them that by the Law no Man may Begg the Lands or Goods of another man upon such an accusation until the party be convict of the fact and that for divers causes 1. Because before conviction the King hath not an Interest in them for the goods are not forfeit And 2. Because the party till his conviction ought to have his goods to maintain himself with them And 3. Because the goods cannot be seised upon for the Kings use before conviction although they may be put in salva custodia and therefore they said that this was a very great slander which the Defendants layed upon the Lord Viscount Rochester viz. that he had begged the Plaintiffs goods of the King before he was convicted and it was said that if such goods should be begged before conviction of the party that the same would be a main cause that the Jury will not find the Indictment against the party when they are sure his Lands goods and other estate shall be in anothers person and so by consequence should be a great cause that the King might be defrauded of the forfeiture of the goods of Fellons and further it would be a great cause of Rebellion if such Lands and goods should be seised upon and given away before conviction of the party accused And as the Lord Chancellour said the same was the cause of the great Rebellion in the time of King Henry the sixth because the goods of divers were given away to other men before the parties were convicted And Cook said that it appeareth that this was not onely a scandal of divers Gentlemen of Worship whom the Defendants had abused in this thing But even of the King himself And it was not onely scandalum Magnatum But scandalum Magistr Magnatum And he said that it appears in Britton that if a Rebel or base fellow do strike a Man of Dignity that he shall lose his right hand à fortiori in such case when they defame and scandalize them by such impudent practices that they be grievously punished And it should be a very unhappy estate to be a Rich-Man if such Offences should not severely be punished multi delicti propter inopiam The Sentence against the said Defendants was this Reignolds being an Attorney to be degraded cast over the Common Pleas Barre and both the Defendants to lose their Eares to be marked in the Face with a C. for Conspirators to stand upon the Pillory with Papers of there Offences to be Whipped and each of them fined to the King in 500. pound and according to this Sentence Reignolds the same Mich. Term was cast over the Common Pleas Barre by the Cryers of the Court and the other part of the Sentence executed on them both Mich. 11. Jacobi in the Common Pleas. 294 COOKES Case IN a Writ Quare intrusit maritagio non satisfacto It was found for the Plaintiff but no damages were assessed by the Jury and the value of the Marriage was found to be 500. pound And now the question was whether the same might be supplied by a Writ of Enquire of Damages and the Court primâ facie seemed to doubt of the case For where the party may have an attaintment there no damages shall be assessed by the Court if the same be not found by the Jury and therefore the Court would be advised of it but afterwards in the same Term it was adjudged that no Writ of Enquire of damages should Issue But a venire facias de novo was granted to try the Issue again Vide 44. E. 3. the opinion of Thorpe acc Note this was the last Case that Cook Chief Justice did speak to in the Common Pleas for this day he was removed from that Court and made Chief Justice of the Kings Bench. Mich. 11. Jacobi in the Common Pleas. 295 WEDLOCK and HARDING's Case THE Case was this a Man seised of a Messuage holden in Socage in Fee by his will in Writing devised the same to his Cosen by these words viz. I devise my Messuage where I dwell to my Cosen Harding and her Assignes for eight years And also my Cosen Harding shall have all my Inheritances if the Law will And it was adjudged by the whole Court without argument That this was a devise of the Messuage in Fee by these words and that all his other Inheritances passed by the said Will by those generall words Mich. 11. Jacobi in the Common Pleas. 296 ROSSER against WELCH and KEMMIS IN an Action of Debt brought against the Defendants upon severall Praecipes one Judgement is given and the Plaintiffe takes forth a Capias against one of them and arrests his body and afterwards hee takes a Fieri facias against the others And the question was Whether the severall Executions should be allowed and the Court was of opinion they should not for that a man shall have but one satisfaction And therefore in the principall Case because that upon the Fieri facias twenty five pounds was levied if the other who is in prison upon the Execution will pay the other twenty five pound the whole Judgment being but fifty pound the Court awarded that the prisoner should be discharged and the Court was clear of opinion that the partie cannot have a Fieri facias against one and a Capias ad satisfaciendum against the other But it was agreed That he might have a Capias against them both As if a man hath one Judgement against seven persons he may take all their bodies in execution because the body is no satisfaction but onely a gage for the Debt and therewith agreeth 4. H. 7. 8. 5 E. 4. 4. and C. 5. part Bamfeild's Case Mich. 11. Jacobi in the Common Pleas. 297 JENOAR and ALEXANDER's Case IT was moved for a Prohibition to the Court of Requests because that the Court held plea of an Attornment for the complaint there was to compel a man to attorn upon a Covenant to stand seised to uses
them and held that the Custom might be good Mich. 17 Jacobi in the Kings Bench. 400. IN an Evidence in an Ejectione firme for Land in the Countie of Hartford the Case was this A man was married unto a woman and died The wife after 40 weeks and 10 days was delivered with child of a daughter and whether the said daughter should be heir to her Father or should be bastard was the Question and Sir William Padde Knight and Dr Montford Physitians were commanded by the Court to attend and to deliver their opinions in the Case who being upon their Oaths delivered their opinions That such a child might be a lawfull daughter and heir to her Father For as wellas an Antenatus might be heir viz. a child born at the end of 7 months so they said might a Postnatus viz. child born after the 40 weeks although that 40 weeks be the ordinary time And if it be objected that our Saviour Christ was born at 9 months and five days end who had the perfection of Nature To that it may be answered That that was miraeulum amplias And they held that by many Authorities and by their own Experiences a child might be Legitimate although it be born the last day of the 10â—h Month after the conception of it accounting the Months per Menses solares non Lunares Hill 17 Iacobi in the Kings Bench. 401. WEBB and PATERNOSTERS Case A Man gave Licence unto another to set a Cock of Hay upon his Medow and to remove the same in reasonable time and afterwards he who gave the Licence made a Lease of the Medow to the Defendant who put his Cattel into the Medow which did eat the Hay And for that the Paintiffe brought his Action of Trespass And upon Demurrer joyned the Court was of opinion against the Plaintiffe For upon the whole matter it appeared That the said Hay had stood upon the said ground or Medow for 2 years which the Court held to be an unreasonable time Mich. 18 Iacobi in the Kings Bench. 402. BROWN and PELL's Case IN an Ejectione firme upon a special Verdict found the Case was this Browne had issue two Sons and devised his Lands to his youngest Son and his Heirs And if it shall happen his said youngest Son to die without issue living his eldest Son That then his eldest Son should have the Lands to him and his Heirs in as ample manner as the youngest Son had them The youngest Son suffered a Common Recovery and died without issue living the eldest Son The Question was whether the eldest Son or the Recoverer should have the â—ands Montague Haughton and Chamberlain Justices The same is a Fee-simple Conditional and no Estate Tail in the youngest Son Doddridge Justice contrarie Mich. 18. Jacobi in the Kings Bench. 403. POLLYES Case IN an Action of Trespass It was agreed by the Court If 2 Tenants in Common be of Lands upon which Trees are growing and one of them felleth the Trees and layeth them upon his Freehold If the other entreth into the â—and and carrieth them away an Action of Trespasse Quaere clausum fregit lyeth against him because the taking away of the Trees by the first was not wrongfull but that which he might well do by Law And yet the other Tenant in Common might have seized them before they were carried off from the Land But if a man do wrongfully take my Goods as a Horse c. and putteth the same upon his Land I may enter into his Land and seize my Horse again But if he put the Goods into his House in such Case I cannot enter into his House and retake my Goods because every mans House is his Castle into which another man may not enter without special Liâ—ence Hill 19 Iacobi in the Kings Bench. 404. THe Case was That two Tenants in Common of Lands made a Lease thereof for years rendring Rent and then one of them died And the Question was who should have the Rent And if the Executor of him who died and the other might joyn in an Action for the Rent And as this Case was The opinion of the whole Court was That the Executor and the other might joyn in one Action for the Rent or sever in Action at their pleasures But if the Lease had been made for life rendring Rent The Court was cleer of opinion that they ought to sever in Actions Trin. 20 Jacobi in the Kings Bench. 405. A Man was bounden in a Bond by the name of Edmond and his true name was Edward And an Action of Debt was brought against the Executors of Edmond upon the said Bond who demanded Oyer of the Bond and then pleaded that it was not the Deed of their Testator and issue being thereupon joyned It was found by Inquest in London to be his Deed viz. the Deed of Edmond And it was moved in Arrest of Judgment Quod querens nihil caperet per Billam and so it was resolved and adjudged by the Court Doddridge only being absent And a Case was vouched by Henage Finch Recorder of London to prove this case That it was so adjudged in a Case of Writ of ErError brought in the Exchequer-Chamber in which Case the party himself upon such a Misnosmer and after a Verdict and Judgment given in the same Case did reverse the Judgment for this Error Mich. 14 Iacobi in the Kings Bench. 406. VESEY's Case VVIlliam Vesey was indicted for erecting of a Dove-house And Serjeant Harvey moved That the Indictment was insufficient the words were That the Defendant erexit Columbare vi armis ad commune nocumentum c. and that he was not Dominus Manerii nes Rector Ecclesiae And the Indictment was quashed because it was not contained in the Indictment that there were Doves in the Dove-cote For the meer erecting of a Dove-cote if there be no Doves kept in it it is no Nusans as it was holden by the Justices Mich. 15 Iacobi in the Kings Bench. 407 Sir WILLIAM BRONKER's Case SIR William Bronker brought an Action upon the Case for slanderous words And he shewed in his Declaration how that he was a Knight and one of the Gentlemen of His Majesties Privy-Chamber And that the Defendant spake of him these scandalous words viz. Sir William Bronker is a Cosening Knave and lives by Cosenage Which was found for the Plaintiffe In arrest of Judgment it was moved that the words were not actionable And so it was adjudged per Curiam Pasch 21 Iacobi in the Kings Bench. 408. YATE and ALEXANDER's Case YAte brought an action upon the Case against Alexander Attorney of the Kings Bench and declared That the Plaintiffe in an action of Debt brought against Alexander the Defendant who was Executor to his Father had Judgment to recover against him as Executor and that he sued forth a Fieri facias to the Sheriffe to have Execution and that before the Sheriffe could come to levy the debt and serve the
And if Rent be due and payable unto me by my Lessee for years the same may be taken for the Kings Debt and the special matter shall be a good barr in an Avowry for the Rent 38. E. 3. 28. A Prior Alien was indebted to the King for his Farm Rent And being sued for the same he shewed That there was a Parson who held a certain portion of Tythes from him which were part of the Possessions of the same Priory which he kept in his hands so as he could not pay the King his Farm-Rent unlesse he might have those Tythes which were in the Parsons hands Wherefore a Writ was awarded against the Parson to appear in the Exchequer and to shew cause why he should not pay the same to the King for the satisfying of the Kings Rent And there Skipwith Justice said That for any thing which toucheth the King and may turn to his advantage to hasten the Kings business that the Exchequer had jurisdiction of it were it a thing Spiritual or Temporal V. 44 E. 3. 43 44. the like Case but there it is of a Pension And the Case of 38 Ass 20. was the Case for Tythes See also 12 E. 3. Swalds Case to the same purpose If two Coparceners be in ward to the King upon a suggestion that one of them is indebted to the King the staying of his Livery shall be for his moytie untill the King be satisfied his debt but the other sister shall have Livery of the other moytie which belongs unto her Fitz. N. 5. 263. a. Mich 19 E. 3. and Hill 20. E. 3. which was one and the same Case The Kings Debtor brought a Quo minus in the Exchequer against his Debtor the Defendant appeared And the Plaintiffe afterwards would have been Nonsuit but the Court would not suffer him so to be And it was there said That a Release by the Kings Debtor unto his Debtor would not discharge the Kings Debtor as to that Debt In a Quo minus in the Exchequer upon a Debt upon a simple Contract the Defendant cannot wage his Law because the King is to have a benefit by the suit although the King be no party to the suit C. 4. par 95. The fourth Prerogative which the King hath is That the King shall have an Accompt against Executors because the Law there maketh a privity it being found by matter of Record that the Testator was indebted to the King which Record cannot be denied But in the Case of a common person an Accompt will not lie against Executors for want of privity The Accompt which the King brings is ad computandum ad Dominum Regem c. without setting forth how the party came liable to accompt But a common person in his accompt brought ought to shew how that the party was Receiver Bailiff c. If a man doth entermeddle with the Kings Treasure the King pretending a title to it he shall be chargeable for the same to the King C. 11. part 89. the Earl of Devonshire's case The Master of the Ordnance pretending that the old broken and unserviceable Ordnance belonged unto him by reason of his Office procured a Privy-seal c. and afterwards disposed of them to his own use and dyed And his Executor was forced to accompt for them Sir Walter Mildmay's Case Mich. 37. 38 Eliz. Rot. 312. in the Exchequer Sir Walter Mildmay was Chancellor of the Exchequer and suggested unto the Lord Treasurer of England That his Office was of great attendance and desired the Lord Treasurer that he would be pleased to allow unto him 100l. for his dyet and 40l. per annum for his attendance which the Lord Treasurer did grant unto him and he enjoyed it accordingly and afterwards dyed and his Executors were forced to accompt for it and to pay back the mony for all the time that their Testator received it C. 11. part 90 91. there is cited That Sir William Cavendish was Treasurer of the Chamber of King H. 8. E. 6. and Queen Mary and that he was indebted to K. E. 6. and to Q. Mary and that being so indebted he purchased divers lands and afterwards aliened them and took back an estate therein to himself and his wife and afterwards dyed without rendring any Accompt the Terre-Tenants of the land were charged to answer to Q. Elizabeth for the monies to which they pleaded the Queens special Pardon and it was in conclusion said That the Pardon was a matter of grace ex gratia but in Law the Terre-Tenants were chargeable to the said Queen for the monies v. Com. 321. 5 Eliz. Dyer 244 245. in the Exchequer Mich. 24. E. 3. Rot. 11. ex parte Rememb Regis Thomas Farel Collector of the Fifteenths and Tenths being seised of lands in Fee and being possessed of divers goods and chattels at the time when he entred into the said Office being then indebted to the King did alien them all and afterwards dyed without heir or Executor And a Writ went out unto the Sheriffe to enquire what lands and tenements goods and chattels he had at the time he entred into the said Office and Processe issued forth against the Terre-Tenants and the Possessors of his goods and chattels ad computand pro collectione predict ad respondendum satisfaciendum inde Domino Regi V. Dyer 160 50 Ass 5. A notable Case to this purpose Mich. 30. E. 3. rot 6. William Porter Mint-Master did covenant with the King by Indenture enrolled That for all the Bullion which should be delivered ad Cambium Regis pro Moneta faciend that mony should be delivered for it within eight dayes which Covenant he had broken and therefore the King paid the Subject for the Bullion And afterwards because John Walweyen and Richard Piccard duxerunt praesentaverant dict William Porter in officium illud tanquam sufficientem and that they offered to be Sureties for him but were not accepted of which they did confesse Ideo consideratum est quod predict Walweyen Piccard onerentur erga Dominum Regem And they afterwards were charged to satisfie the King for all the monies which the King had paid for the said Porter And although that none of the Kings treasure came to their hands nor they had not any benefit as appeared by any matter in the Case yet because they were the means and causers that the King sustained damage and losse they were adjudged to be chargeable to the King C. 11. par 93. this Case is there cited Upon these Cases vouched by me I make divers Observations 1. I observe That from Age to Age what care the Judges had for the Advancing and the recovering of the Kings Debts because Thesaurus Regis est vinculum Pacis Bellorum nervus And it is the slowing fountain of all bounty unto the Subject 2. I observe That the King hath a Prerogative for the Recovery of Debts due unto him 3. I observe That although the Debt due to the King be
puisne or the lesser Debt and although the Debtor be able and sufficient to pay both Debts viz. the Kings Debt and the Debt owing to the Subject yet the Kings Debt is to be first paid Now to apply these cases to the Case in question Here is a Subject who is indebted to the King And I say That the Lands which such a Debtor hath in his power and dispose although he hath not any Estate in the Lands shall be liable to pay the Debt to the King And I say That Sir Christopher Hatton had a Fee in the Mannors and Lands in this case And although he did convey them bona fide yet untill his death by reason of the Proviso of Revocation they were extendable Trin. 24. E. 3. Rot. 4. Walter de Chirton Customer who was indebted to the King for the Customs purchased Lands with the Kings monies and caused the Feoffor of the Lands to enfeoffe certain of his friends with an intent to defraud and deceive the King and notwithstanding he himself took the profits of the Lands to his own use And those Lands upon an Inquisition were found and the values of them and retorned into the Exchequer and there by Judgment given by the Court the Lands were seized into the Kings hands to remain there untill he was satisfied the Debt due unto him And yet the Estate of the Lands was never in him But because he had a power viz. by Subpena in Chancery to compell his Friends to settle the Estate of the Lands upon him therefore they were chargeable to the Debt You will say perhaps there was Covin in that Case But I say that neither Fraud Covin nor Collusion is mentioned in the Report in Dyer 160. C. 11. par 92. And that Case was a harder Case then our Case is For Walter de Chirton in that Case was never seised of the said lands But in our Case Sir Christopher Hatton himself had the lands And when he had the lands he was assured of the Office although he had not the possession of it For he was sure that no other could have it from him and no other could have it but himself And for another cause our Case is a stronger Case then the Case of Walter de Chirton For Chirton had no remedy in Law to have the lands but his remedy was only in a Court of Equity and a remedy in Consc ' onely But in our Case Sir Christopher Hatton had a time in which he might let the land to passe and yet he had a power to pull it back again at his pleasure So as he had the disposition of it but before the alteration of the uses he dyed And if he had been living being indebted to the King the King might have extended the lands because that then he had the possession of them There were two Considerations which moved Sir Christopher Hatton to Convey the Lands the first was honorable viz. For the payment of his Debts the second was natural viz. For the preferment of his Children Although the Conveyance of the Lands for payment of his Debts was but for years yet the same was too short like unto a Plaister which is too short for the sore For the Covenanters were not his Executors and so they were not liable to Debts And although he be now dead and cannot revoke the former uses yet he had the power to revoke the uses during his life And so he was chargeable for the Debt due to the King Tanfield Chief Baron agreed with Justice Dodderidge in all as before And he said That all powerful and speedy courses are given unto the King for the getting in of his Revenues and therefore he said he had the said Prerogatives as have been recited And in 25 E. 3. in libro rubro in the Exchequer there the Foundations of the said Prerogatives do appear If a common person arrest the body in Execution he shall not resort to the lands contr to Blumfields Case C. 5. par The course of the Exchequer makes a Law every where for the King If any Officer be indebted unto the King and dyeth the course of the Exchequer is For to call in his Executors or the Heir or the Terre-Tenants to answer the Debt and if he hath no lands then a Writ issueth out of the Exchequer to know what goods he had and to whose hands they be come All Inquisitions concerning Lands in the like Cases are Habuit vel seisitus and not that he was seised onely The word Habuit is a large word and in it is contained a disposing power But in this Case Sir Christopher Hatton had a power every day to revoke the uses And when he had once revoked them then was he again as before seisitus 7 H. 6. in the Exchequer the Kings Farmor had Feoffees to his use and dyed indebted to the King And upon an Inquisition it was found that Habuit for he had them in his power by compelling his Feoffees by Equity in Chancery and therefore it was adjudged that the King should have the Lands in the Feoffees hands in extent But in this case Sir Christopher Hatton might have had the Lands in him again without compulsion by a Court of Equity for that he had power to revoke the uses in the Conveyance at his pleasure Mich. 30. H. 6. rot in the Exchequer A Clark of the Court was assigned to receive monies for the King who had Feoffees of lands to his use And the lands were found and seised for the Kings monies by force of the word Habuit 32 H. 6. Philip Butler's Case who was Sheriffe of a County being indebted to the King his Feoffees were chargeable to the Kings debt by force of the word Habuit For habuit the lands in his power 6 E. 4. Bowes Case acc ' 34 H. 6. A widow being indebted to the King her Feoffees were chargeable to pay the Kings debt because she had power of the lands It being found by Inquisition that habuit 1 R. 3. the like Case And 24 Eliz. in Morgan's Case it was adjudged That lands purchased in the names of his Friends for his use were extended for a debt due by him to the King Hobart Lord Chief Justice of the Common Pleas argued to the same purpose and agreed with the other Justices and he said in this case it was not material whether the Inquisition find the Deed to be with power of Revocation For he said that the Land is extended and that the extent remains good untill it be avoided And he said that a revocable Conveyance is sufficient to bind the Parties themselves but not to bind the King but the Lands are lyable into whose hands soever they come When a man is said to forfeit his body it is not to be intended his life but the freedom of his body Imprisonment At the Common Law a Common person could neither take the bodie nor the Lands in Execution But yet at the Common Law
Judgement was affirmed for by intendment the Judgment was given upon the first Original which bore date before the Iudgment Another Error was assigned because the Plea was That such a one was seised of the Castle and Mannor of Mulgrave predictis in the plural number I answer that there is not any colour for that Error for the word predictis doth shew that the Mannor and Castle are not one and the same thing So upon the whole matter I pray that the Iudgment given in the Court of Pleas may be affirmed Sir Henry Yelverton argued for the Lord Sheffield that the Iudgment might be reversed There are three things considerable in the Case First If any right of the ancient estate tail was in Francis Bigot who was attainted at the time of his Attainder Secondly admit that there was an ancient right if it might be forfeited being a right coupled with a Possession and not a right in gross Thirdly Whether such a Possession discend to Francis Bigot that he shall be remitted and if this Remitter be not overreached by the Office First If by the Feoffment of Francis Bigot 21. H. 8. when he was Cestuy que use and by the Livery the right of the ancient entail be destroyed And I conceive it is not but that the same continues and is not gone by the Livery and Seisin made There is a difference when Cestuy que use makes a Feoffment before the Statute of 1 R 3. and when Cestuy que use makes a Feoffment after the said statute of 1 R 3 For before the statute hee gives away all Com 352. but after the statute of R. 3. Cestuy que use by his Feoffment gives away no Right In 3 H. 7 13. is our very case almost For there the Tenant in Tail made a Feoffment unto the use of his Will so in our Case and thereby did declare that it should be for the payment of his debts and afterwards to the use of himself and the heirs of his body and died the heir entred before the debts paid but in our Case he entred after the debts paid there it is said that the Feoffment is made as by Cestuy que use at the Common Law for his entrie was not lawfull before the debts paid But when Francis Bigot made a Feoffment 21 H. 8. he was Cestuy que use in Fee and then is the Right of the Estate tail saved by the Statute of 1. R. 3. And by the Statute of 1. R. 3. he gives the Land as Servant and not as Owner of the Land and so gives nothing but a possession and no Right 5 H. 7. 5. Cestuy que use since the Statute of 1 R. 3. is but as a Servant or as an Executor to make a Feoffment And if an Executor maketh a Feoffment by force of the Will of the Testator he passeth nothing of his own Right but only as an Executor or Servant 9 H. 7. 26. proves that Cestuy que use since the Statute of 1 R. 3 hath but only an Authority to make a Feoffment For Cestuy que use cannot make a Letter of Attorney to make Livery for him for he hath but a bare Authority which cannot be transferred to another Cestuy que use hath a Rent out of Land and by force of the Statute of 1 R. 3. he maketh a Feoffment of the Land yet the Rent doth remain to him for he giveth but a bare possession So in our Case the right of the Estate Tail doth remain in Francis Bigot notwithstanding his Feoffment as Cestuy que use by the Statute of 1 R. 3. If Cestuy que use by force of the Statute of 1 R. 3. maketh a Feoffment without Warranty the Vouchee shall not Vouch by force of that Warranty For as Fitzherbert saith Cestuy que use had no possession before the Statute of 27. H. 8. Cap. 10. 27 H. 8. 23. If Feoffees to Use make a Letter of Attorney to Cestuy que use to make a Feoffment he giveth nothing but as a Servant The Consequent of this Point is That the right of the old Estate Tail was in Francis Bigot at the time of his Attainder and was not gone by the Feoffment made 21 H. 8. The second Point is Whether a right mixt with a possession of Francis Bigot might be forfeited by the Statutes of 26. H. 8. and the private Act of 31. H. 8. The Statute of 31. H. 8. doth not save this Right no more then the Statute of 26. H. 8. For they are all one in words I say that he hath such a right as may be lost and forfeited by the words of the Statute of 26. H. 8. Cap. 13. For that Statute giveth three things First It gives the Forfeiture of Lands and not of Estates Secondly How long doth that Statute give the lands to the King For ever viz. to the King his Heirs and Successors Thirdly It gives the lands of any Estate of Inheritance in Use or Possession by any Right Title or means This Estate Tail is an Estate of Inheritance which he hath by the Right by the Title and by the means of coming to the Right it is forfeited These two Statutes were made for the punishment of the Child For the Common Law was strict enough against the Father viz. he who committed the Treason And shall the same Law which was made to punish the Child be undermined to help the Child The ancient Right shall be displaced from the Land rather then it shall be taken from the Crown which is to remain to the Crown for ever And this Statute of 26 H. 8. was made pro bonoâ— publico and it was the best Law that ever was to preserve the King and his Successors from Treason for it is as it were a hedg about the King For before this Statute Tenant in Tail had no regard to commit Treason For he forfeited his Lands but during his own life and then the Lands went to the issue in Tail But this Statute doth punish the Child for the Fathers offence and so maketh men more careful not to offend least their posterity may beg I take two grounds which are frequent in our Law First That the King is favoured in the Exposition of any Statute Com. 239 240. The second That upon the construction of any Statute nothing shall be taken by equity against the King Com. 233 234. Here in this Case although the Right were not in possession yet it was mixed with the possession from Anno 13. E. 1. untill 26. H. 8. Tenant in Tail feared not to commit Treason For the Statute of West 2. did preserve the Estate Tail so as the Father could not prejudice his issue per factum suum And therefore the Commonwealth considering that a wicked man did not care what became of himself so as his issue might be safe provided this Statute of 26. H. 8. Cap. 13. although the Statute of 16. R. 2. Cap. 5. which giveth the Premunire doth Enact that all Lands and
Tenements of one attainted in a Premunire shall be forfeited to the King Yet Tenant in Tail in such Case did not forfeit his Lands C. 11. part 63. b. as the Statute of West 2. Cap. 1. saith in particular words That Tenant in Tail shall not prejudice his issue Therefore the Statute of 26. H. 8. in particular words saith That Tenant in Tail shall forfeit his Lands for Treason The Right of Francis Bigot is not a right in gross but a Right mixed with a possession The Statute of West 2. Cap. 1. brought with it many mischiefs For by that Statute the Ancestor being Tenant in Tail could not redeem himself out of prison nor help his wife nor his younger children and that mischief continued untill 12. E. 4. Taltaram's Case and then the Judges found a means to avoid those mischiefs by a common Recovery and this Invention of a common Recovery was a great help to the Subject Then came the Statute of 32. H. 8. Cap. 36. which Enacted That Fines levied by Tenant in Tail should be a good barr to the issue of any Estate any way entailed If the Son issue in tail levieth a Fine in the life of his Father who is Tenant in tail it shall be a barr to him who levieth the Fine and to his issues And both these viz. the Common Recovery and the said Statute did help the Purchaser And shall not this Statute of 26. H. 8. help the King The Statute of 26. H. 8. Cap. 13. hath not any strength against the Ancestor but against the Child For the Construction of Statutes I take three Rules First When a Case hapneth which is not within the Letter then it is within the intent and equity of the Statute Com. 366. 464. Secondly All things which may be taken within the mischief of the Statute shall be taken within the Equity of the Statute 4. H. 6. 26. per Martin Thirdly When any thing is provided for by a Statute every thing within the same mischief is within the same Statute 14. H. 7. 13. The Estate tail of Francisâ— Bigot and Katharine his wife is forfeited by the Statute of 26 H. 8. There is a difference when the Statute doth fix the forfeiture upon the person As where it is enacted that J. S. shall forfeit his lands which he had at the time of his Attaindor The Judges ought expound that Statute only to J. S. But the Statute of 26 H. 8. doth not fix the forfeiture upon the person but upon the land it self And Exposition of Statutes ought to extend to all the mischiefs 8 Eliz. Sir Ralph Sadler's Case in B. R. where an Act of Parliament did enact That all the lands of Sadler should be forfeited to the King of whomsoever they were holden Sadler held some lands of the King in that case the King had that land by Escheat by the Common-Law and not by the said Statute Com. 563 The Law shall say that all the rights of the tail are joyned together to strengthen the estate of the King Tenant in tail before the Statute of 1 E. 6. cap. 14. of Chauntries gave lands to superstitious uses which were enjoyed five years before the said Statute of 1 E. 6. made Yet it was adjudged that the right of the issue was not saved but that the land was given to the Crown for the issue is excluded by the saving in the said Statute If Tenant in tail give the lands to charitable uses the issue is barred For the saving of the Statute of 39 Eliz. cap. 5. excludes him And he is bound by the Statute of Donis So the Statute of 26 H. 8. cap. 13. and the private Act of 31 H. 8. do save to all but the heirs of the Offenders The third Objection was That Ratcliffe was not excluded by the saving for it was said That the same doth not extend but to that which is forfeited by his Ancestors body And here Ratcliffe had but a Right and that was saved And the Statute doth not give Rights I answer first The Statute of 26 H. 8. is not to be expounded by the letter for then nothing should be forfeited but that only which he had in possession and use Tenant in tail is disseised and attainted for treason By the words of the said Statute of 26 H. 8. he forfeits nothing yet the issue in tail shall forfeit the lands for the issue in tail hath a right of Entrie which may be forfeited 6 H. 7. 9. A right of Entrie may escheat and then it may be forfeited Secondly The Statute is not to be construed to the possession but if he hath a mixt right with the possession it is forfeited but a right in grosse is not forfeited Tenant in tail of a Rent or Seignorie purchaseth the Tenancie or the Land out of which the Rent is issuing and is attainted He shall forfeit the Seignorie and Rent or the Land for the King shall have the Land for ever And then the Seignorie or Rent shall be discharged for otherwise the King should not have the Land for ever For the King cannot hold of any Lord a Seignorie 11 H. 7. 12. The heir of Tenant in tail shall be in Ward for a Meanaltie descended unto him the Meanaltie not being in esse and yet it shall be said to be in esse because of the King C. 3 part 30. Cars Case Although the Rent was extinguished yet as to the King it shall be in esse The difference is betwixt a Right clothed with a possession and a right in grosse viz. where the Right is severed from the possession there it is in grosse For there the Right lieth only in Action and therefore neither by the Statute of 26 H. 8. nor by the private Act of 31 H. 8. such a Right is not forfeited C. 3. part 2. C. 10. part 47 48. Right of Action by the Common-Law nor by Statute-Law shall escheat and therefore it is not forfeited For no Right of Action is forfeitable because the right is in one and the possession in another Perkins 19. A Right per se cannot be charged 27 H. 8. 20. by Mountague A man cannot give a Right by a Fine unless it be to him who hath the possession C. 10. part Lampits Case Sever the possibility from the right and it doth not lie in grant or forfeiture but unite them as they are in our Case and then the Right may be granted or forfeited for that Right clothed with a possession may be forfeited A Right clothed with the possession 1. It tastes of the possession 2. It waits upon the possession 3. It changes the possession The Bishop of Durham hath all Forfeitures for Treason by the Common-Law within his Diocess viz. the Bishoprick of Durham And if Tenant in tail within the Bishoprick commits Treason and dyeth the Issue in tail shall enjoy the land against the Bishop Dyer 289 a. pl. 57. For the Bishop hath not the land for ever but the Issue
in tail may have a Formedon against the Bishop But in our Case it is otherwise Tenant in tail maketh a Feoffment and takes back an estate unto himself in tail the remainder in Fee to his right heirs The Bishop in such case shall not have the land forfeited for Treason because that the Bishop cannot have the estate tail but in such case the King shall have the Land by the Statute of 26 H. 8. cap. 13. And the Bishop in such case shall not have the Fee because it is one estate and the King shall not wait upon the Subject viz the Bishop The Right waits upon the possession For 11 H. 7. 12. If the son and a stranger disseiseth the father and the father dyeth this right infuseth it self into the possession and changeth the possession And it is a Release in fact by the father to the son 9 H. 7. 25. Br ' Droit 57. A Disseisor dyeth seised and his heir enters and is disseised by A. The first Disseisee doth release unto A. all his right All the right is now in the second Disseisor viz. A. because the right and the possession meet together in A. 40 E. 3. 18. b. Tenant in tail makes a Lease for life with warranty If Tenant for life be impleaded by the heir to whom the warranty doth discend he shall rebut the right in tail being annexed with the possession for that is in case of a saving of the land by that right But where one demands land there all the Right ought to be shewed 11 H. 4 37. If a man be to bring an Action to recover then he ought to make a good title by his best right if he hath many rights But if a man be in possession and an Action be brought against him then he may defend himself by any of his rights or by all his rights 11 H. 7. 21. Tenant in tail maketh a Feoffment to his use upon Condition and afterwards upon his Recognisance the land is extended and afterwards the Condition is performed yet the interest of the Conusee shall not be avoided For although the Extent come upon the Fee and not upon the Tail yet when the Extent was it was extracted out of all the rights C. 7. part 41. A Tenant in tail makes a Lease for life now he hath gained a new Fee by wrong and afterwards he makes a Lease for years and Tenant for life dyeth He shall not avoid his Lease for years although he be in of another estate because he had a defeicible title and an ancient right the which if they were in several hands shall be good as the Lease of the one and the Confirmation of the other And being in one hand it shall be as much in Law as a saving of the Right In our Case the Right and Possession both were in Francis Bigot And Ratcliffe is entitled to the old estate tail and to the new also There is a difference betwixt him who claims the land so forfeited to the King and the heir of the body of the person attainted Littâ—719 Land is given to A and the issue males of his body the remainder to the heirs females of his body If the Father commit Treason both heir male and female are barred for they both claim by the Father but if the heir male after the death of his Father be attainted of Treason the King shall have the lands as long as he hath issue male of his body and then the heir female shall have the lands for she shall not forfeit them because she claimeth not by the brother but by the father Com. in Manxels case A man hath three several rights of estate tails and comes in as Vouchee If the Recovery pass it shall bar all his Rights for one Recompence and they shall be all bound by one possession There is a difference where the Kings title is by Conveyance of the party and where for forfeiture for Treason by this Statute of 26 H. 8. cap. 13. v. the Abbot of Colchesters Case The Abbot seised in the right of his house did commit Treason and made a Lease for years and then surrendred his house to the King after the Statute of 26 H. 8. The question was whether the King should avoid the Lease It was adjudged That the King was in by the surrender and should not avoid the Lease and not by the Statute of 26 H. 8. But if the King had had it by force of the Statute then the King should have avoided the Lease Com. 560. Tenant in tail the reversion to the King Tenant in tail maketh a Lease for years and is attainted of Treason The King shall avoid the Lease upon the construction of the Statute of 26 H. 8. which gives the lands unto the King for ever The third point is upon the Remitter This point had been argued by way of Admittance For as I have argued The ancient right is given away unto the King and then there is no ancient right and so no Remitter There is a difference where the issue in tail is forced to make a Title and where not In point of defence he is not so precisely forced to make his Title as he is in case of demand Whereas the Defendant demands the lands from the King the Discent will not help him because the Attaindor of the Ancestor of Ratcliffe hinders him in point of title to make a demand Dyer 332 b. In this case he ought to make himself heir of the body of Francis Bigot and Katharine C. 8. part 72. C. 9. part 139 140. There Cook couples the Case of Fine levied and the Case of Attaindor together C. 8. part 72. Land is given to husband and wife and to the heirs of their two bodies The husband alone levies a Fine with proclamations Or is attainted of Treason and dyeth The wife before Entry dyeth The issue is barred and the Conusee or King hath right unto the land because the issue cannot claim as heir to them both viz. father and mother for by the father he is barred 5 H. 7. 32 33. C. 9. part 140. Husband and wife Tenants in tail If one of them be attainted of Treason as it was in our Case the lands shall not discend to the issue because he cannot make title And there Cook puts the Case That if lands be given to an Alien and his wife they have a good estate tail and yet it is not discendable to the issue The Consequence then of all this is That if Ratcliffe cannot take advantage of the discent by reason of the disability by Attaindor à fortiori he shall not be remitted And yet I confess that in some Cases one may be remitted against the King Com. 488 489 553. But that is where the King is in by matter of Law by Conveyance but in this Case the King is in by an Act of Parliament and there shall be no Remitter against a matter of Record Another reason is because that
Soccage may grant the Ward but he cannot forfeit him C. 3. part 3. Right of Actions reals because they are in privity by general words of a Statute are not given to the King v. Dyer 67. String fellow's Case That which is in custodia Legis cannot be taken as a Distress in a Pound overt cannot be taken out of the Pound upon another Distress The third Point is If he were remitted And I conceive that he was remitted When Tenant in tail is attainted of Treason the issue at the Common Law should inherit as if he had not been attainted Lit. 747. C. 1. part 103. for as to the Estate tail there was no corruption of blood C. 10. part 10. If Tenant in tail before the Statute of 26. H. 8. commit Treason the land shall discend to his issue for the issue doth not claim by the Father but per formam doni◠C. 8. part 166. such a discent shall take away entrie But in our Case Ratcliff had both possession and right and therefore is remitted the speciall Verdict finds that he was remitted and the Judgment given in the Court of Pleas in the Exchequer was that he was remitted It was objected that the Remitter was destroyed by the relation of the Office but the same is not so for the Office relates only to avoid Incombrances viz. acts done by himself but to devest the Freehold and to settle the same in the King the Office shall not relate And if it should relate then the King should lose many Lands which he now hath Com. Nichols Case Tenant for life upon condition to have Fee c. If the Office shall relate then the same takes away the Freehold out of the person attainted à principio and then the Fee cannot accrue and so by that means the King should lose the lands A Remitter is no incombrance for it is an ancient right and the Act of the King cannot do wrong C. 1. part 44. b. 27 Ass 30. There Tenant for life with clause of re-entrie is attainted the reversioner entreth the Office shall not relate to take the Freehold out of the reversioner C. 3. part 38. Relatio est fictio juris and shall never prejudice a third person and the Office found in the life of Katherine shal not prejudice him C. 9. part Beamounts Case the husband and wife are Tenants in tail the husband is attainted of Treason and dyeth yet the wife is tenant in tail when it is not to the damage or prejudice of the King there tempus occurrit Regi C. 7. part 28. Baskervile's Case From 29 H. 8. untill 33 H. 8. Katherine and afterwards Ratcliff had the possession and then the Law was taken to be that Ratcliff had a lawfull possession For these reasons he concluded that the Judgment ought to be affirmed In Trinity Term following viz. Trin. 21. Jacobi Regis the Case was argued again and then Coventry the Kings Attorney general argued for the Lord Sheffield That the Judgment given in the Court of Pleas in the Exchequer ought to be reversed He said I will insist only upon the right of the Case Whether upon the right of the Case Ratcliff may maintain a Monstrans de Droit First If by the Attainder the right of the old Estate tail as well as of the new Estate tail be forfeited Secondly Admitting that the old right of entail be not forfeited then if the Office do overreach the Remitter for then a Monstrans de Droit doth not lie but a Petition for the reason of the discontinuance First it is evident that when Ralph Bigot Tenant in tail in possession 6 H. 8. made a Feoffment that that was a discontinuance and it is as clear that the right of the old Estate tail vested in Francis Bigot The Feoffment made by Francis Bigot 21 H. 8. did not devest the right of the old tail First for the weaknesse of the Feoffment Secondly for the inseparableness of the Estate tail which is incommunicable and not to be displaced by weak assurance That Feoffment was made according to the Statute of 1 R. 3. and not by the Common Law but only by force of the said Statute The Feoffment is without Deed and so nothing passeth but only by way of Livery or else nothing at all Also at the time of the Feoffment in 21 H. 8. the Feoffees were in seisin of the Lands and Ratcliff shews in his Monstrans de Droit that Francis Bigot did disseise the Feoffees and so the Feoffment had no force as a Feoffment at the Common Law but only by the Statute of 1 R. 3. For at the Common-Law if Cestuy que use had entred upon the Feoffees and made a Feoffment nothing had passed There is a difference betwixt a Feoffment at the Common Law and a Feoffment according to the Statute of 1 R. 3. which operates sub modo Feoffments are the ancient Conveyances of Lands but Feoffments according to the Statute of 1 R. 3. are upstarts and have not had continuance above 150 years In case of Feoffments at the Common Law the Feoffor ought to be seised of the lands at the time of the Feoffment but if a Feoffment be according to the Statute of 1 R. 3. in such Case the Feoffor needeth not be in possession Feoffments at the Common Law give away both Estates and Rights but Feoffments by the Statute of R. 3 give the Estates but not the Rights In case of Feoffment at the Common Law the Feoffee is in the Per viz. by the Feoffor but in case of Feoffments by the Statute of R. 3. the Feoffees are in in the Post viz by the first Feoffees 14 H. 8 10. Brudnel says that a Feoffment by Cestuy que use by the Statute of 1 R. 3 is like to fire out of a flint so as all the fire which cometh out of the flint will not fasten upon any thing but tinder or gunpowder So a Feoffment by Cestuy que use by force of the Statute of 1 R. 3 will not fasten upon any thing but what the Statute requires 5 H. 7. 5. 21 H. 7. 25. 8 H. 7 8. 27 H. 8. 13. 23. by these books it appeareth that if Cestuy que use maketh a Leafe for life during the Lease he gaines nothing and after the Lease he gains no reversion for the Lessee shall hold of the Feoffees and of them he shall have aid and unless it be by deed Indented in such a Case a Reservation of Rent is void and the Lessor in such a Case cannot punish the Lessee for waste for he makes the Lease meerly by the power which the Statute gives him 8. H. 7. 9. Cestuy que use makes the Feoffment as servant to the Feoffees and if not as servant to the Feoffees yet at least as servant to the Statute of 1 R. 3. If a man entreth upon another and maketh a Lease for life he gains a reversion to himself and shall maintain an Action of Waste but
but in Francis Bigot which may be regained in due time Dyer 340. there was Scintilla juris as here in our Case 19 H. 8. 7. Where Tenant in tail maketh a Feoffment and the Feoffee levieth a fine and five years pass there it is said that the Issue in tail shall have five years after the death of Tenant in tail who made the Feoffment and the reason is because he is the first to whom the right doth discend This Case was objected against me yet I answer that Tenant in tail in that Case hath right but he cannot claim it by reason of his own Feoffment he cannot say he hath right but another may say he hath right In our Case Francis Bigot cannot say he hath a Right in him but another may say he hath a Right It is like where Tenant in Fee taketh a Lease for years by Deed Indented of his own Lands He during the years cannot say that he hath Fee yet all other may say that he hath the Fee C. 4. part 127. The King shall avoid the Feoffment for the benefit of a Lunatique which Feoffment the Lunatique had made and shall not the King avoid a Feoffment which a Lunatique hath made for his own benefit viz for the benefit of the King himself I conceive that he shall Secondly Admit the right be in the person viz. in Francis Bigot yet they object that it is a right of Action and so not forfeited If this right be in the person at the time of the Attainder it shall be forfeited if it be not in his person but in Nubibus yet it shall be forfeited Tenant in tail makes a Feoffment unto the use of himself and his wife in tail if the old right of entail rest or not in his person it is forfeited to the King 34 Eliz. this very Point was then adjudged Where Tenant in tail before the Statute of 27 H. 8. of Uses made a Feoffment unto the use of himself and his wife in tail It was resolved upon mature deliberation by all the Judges of England that the old Estate tail was in such case forfeited for Treason Set this Judgment aside yet it rests upon the Statute of 26 H. 8. A general Act for forfeiture for Treason and the particular Act of 31 H. 8. which was made for the particular Attaindor of Francis Bigot I will argue argue only upon the Statute 26 H. 8. which hath three clauses First to take away Sanctuary Secondly to provide that no Treason be committed and the Offender punished The third which clause I am to deal with which giveth the forfeiture of Lands of Inheritance c These three clauses do depend upon the Preamble It was high time to make this Statute For when H. 8. excluded the Pope he was to stand upon his guard And that year of 26 H. 8. there were five several Insurrections against the King therefore it was great wisdom to bridle such persons King Ed. 6. and Queen Mary repealed divers Statutes for Treason and Felony yet left this Statute of 26 H. 8. to stand in force Anno 5 E. 6. cap. 5. this Statute of 26 H. 8. somewhat too strict was in part repealed viz. That the Church lands should not be forfeited for the Treason of the Parson This third branch doth insist upon a Purview aâ—d a Saving and both agree with the Preamble The Purview is ample Every Offender and Offenders of any manner of High Treason shall forfeit and lose c. I observe these two words in the Statute shall Forfeit those things which are forfeitable and Lose those things which are not forfeitable But it shall be lost that the heir of the Offender shall not find it shall Forfeit and lâ—se to the King his heirs and successors for ever so it is a perpetual forfeiture shall forfeit all his Lands which includes Use Estate and Right by any right title or means So you have Estate Right Title and Use Here Francis Bigot shal forfeit the Castle and Mannor of Mulgrave unto the King his heirs and Successors and he must forfeit the Land Right Title and Use otherwise it cannot be to the King for ever and what is saved to strangers all shall be saved and what will you not save to the Offender and his heirs all his Lands Right c. as was saved to strangers It was objected that it was not an Act of Assurance but an Act of Forfeiture which is not so strong as an Act of Assurance I do not doubt of the difference but how much will that difference make to this Case doth the Statute goe by way of Escheat it doth not but in case of Petty Treason Land shall Escheat but when the Statute of 25 E. 3. speaketh of High Treason the words of the said Statute are Shall forfeit the Escheat to the King But is the Right devided from the King Truely no the word Forfeit take it in nomine or in natura is as strong a word as any word of Assurance Alienare in the Statute of West 2. cap. 1. Non habeant illi potestatem alienandi so non habent illi potestatem forisfaciendi is in the nature of a Gift Com. 260. Forfeiture is a gift in Law Et fortior est dispositio legis quam hominis and so as strong as any assurance of the partie If a Statute give the Land to the King then there needeth not any Office 27 H. 8. Br. Office Com. 486. The Right vests before Office It was objected that the statute of 26 H 8. doth not extend to a right of Action but to a right of Entrie The purpose of this Act of 26 H. 8. is not to attaint any particular person as the Statute of 31 H. 8. was made for the particular Attaindor of Francis Bigot 5 E. 4. 7. Cestuy que use at the Common Law did not forfeit for Felony or Treason but by this Act of 26. H. 8. Cestuy que use shall forfeit both Use and Lands out of the hands of the Feoffees 4 E. 3. 47. 4 Ass 4. The husband seised in the right of his wife at the Common Law for Treason shall not forfeit but the profits of the lands of his wife during his life and not the Freehold it self but by this Act of 26 H. 8. the Freehold it self is forfeited 18 Eliz. in the Common Pleas Wyats Case C. 10. Lib. Entries 300. And if the Statute of 26 H. 8. had had no saving all had been forfeited from the wife 7 H. 4. 32. there it is no forfeiture yet by this Statute it is a forfeiture A right of Action shall not Escheat 44 E 3. 44 Entre Cong 38 C. 3 part the Marquess of Winchesters Case and Bowtiâ—s Case and C 7. part Inglefieldâ—s Case A right of Action per se shall not be forfeited by the Rules of the Common Law nor by any Statute can a right of Action be transferred to another but by the Common Law a right of Action may
be quashed and exonerated and discharged in the possession of the King For it is out of the Rule which is in C. 10 part 48 for the cause of quieting and repose of the Terre-Tenants otherwise it would be a cause of Suits But all Rights Tythes Actions c. might for the same reasons viz. for the quiet of the Terre-Tenants and the avoidance of Suits and Controversies be released to the Terre-Tennants By the same reason here the right of Action of Francis Bigot shall be discharged and exonerated by this forfeiture viz. for the quiet and repose of the Terre-Tenants for the Law delights in the quiet and repose of the Terre-Tenants If Francis Bigot had granted a Rent the ancient right of the tail had been charged C. 7. part 14. Where Tenant in tail makes a lease for life and grants a Rent charge and Tenant for life dieth he shall not avoid his charge although he be in of another Estate because he had a defeisible possession and an ancient right the which c. so as they could not be severed by way of conveyance and charge and no lawfull act Then I admire how he will sever this from himself by his unlawfull act viz. the Feoffment the discontinuance Lit. 169. If a man commit Treason he shall forfeit the Dower of his wife yet he doth not give the dower of his wife but it goes by way of discharge in those Lands 13 H. 7. 17. Tenant by the Curtesie in the life of his wife cannot grant his Estate of Tenant by the Curtesie to another but yet he for Felony or Treason may forfeit it viz. by way of discharge A Keeper of a Park commits Treason there the King shall not have the Office of Keeper for a forfeiture because it is an Office of trust but if he had been Keeper of the Kings Park and had been attainted there he should forfeit his Office by way of discharge and exoneration This Statute of 26 H. 8. hath been adjudged to make Land to revert and not strictly to forfeit Austin's Case cited in Walsingham's Case Tenant in tail the reversion in the King the Tenant makes a Lease for years and dies the issue accepts of the Rent and commits Treason the Lease is avoided for the King is not in by forfeiture by the Statute of 26 H. 8. but by way of Reveter by the Statute of 26 H. 8. It was objected that if Tenant in tail maketh a Feoffment and takes back an Estate for life and is attainted of Treason that he shall not forfeit his old right I agree that Case For indeed it is out of the Statute of 26 H. 8. which speaks of Inheritance and in that Case the Tenant hath but a Freehold The Statute of 26 H 8. saith that it shall be forfeited to the King his heirs and Successors And if in our Case the old right should remain then it should be a forfeiture but during the life of the Testator When the Common Law or Statute Law giveth Lands it gives the means to keep them as the Evidences So here the King is to have by force of this Statute of 26 H. 8. the Evidences The forfeiture of right is expresly within the Statute of 26 H. 8. as the forfeiture of Estate as by any right title or means for the old Estate tail is the means of Estates since 6 H. 8. And if you will take away the Foundation the Building will fall For all the Estates are drawn out of the old Estate tail The Statute of 26 H. 8. is not an Act of Attaindor for none in particular is attainted by the Act but the Act of 31 H. 8. doth attaint Francis Bigoâ— in particular It was objected that here in this case there needed not to be any express Saving I answer that there are divers Statutes of Forfeitures yet the Statutes have Savings in them so as it seems a saving in such Acts were not superfluous but necessary The Act of 33 H. 8. for the attainder of Queen Katharine there is a saving in the Act and yet an Act of Forfeiture Dyer 100. there the land vested in him in the Remainder by force of a saving in the Act so the saving is not void but operative C. 3. part Dowlies Case vid. the Earl of Arundels Case there the saving did help the wife so it appears savings are in Acts of Parliaments of Forfeiture and Acts of Attaindor Dyer 288 289. The Bishop of Durham had Jura Regalia within his Diocese and then the Statute of 26 H. 8. came now whether the Forfeiture for Treason should be taken away from the Bishop by reason of that Statute and given to the King was the doubt It was holden that of new Treasons the Bishop should not have the Forfeitures for those were not at the Common Law as the Forfeitures of Tenant in tail but that he should have the Forfeitures of Lands in Fee within his Diocese and that he had by force of the saving in the Statute so that a Saving is necessary and operative Com. Nichols's Case there Harpers opinion that there needs no saving to strangers but yet a saving is necessary for the Partie and the Issue if they have any thing as well as strangers vid. C. 3. part Lincoln Colledg Case It is the Office of a good Interpreter to make all the parts of a Statute to stand together Com. 559. By these general words Lose and Forfeit and by excluding of the heir in the saving the heir is bound So the Judges have made use of a Saving for it is operative 2 Ma. Austin's Case cited in Walsinghams Case Tenant in tail the Reversion in the Crown Tenant in tail made a Lease for years and levied a Fine to the King the King shall not avoid the Lease for the King came in in the Reverter but in such Case if he be attainted of Treason then the King shall avoid the Lease So a Statute of Forfeiture is stronger then a Statute of Conveyance By this Statute of 26 H. 8. Church Land was forfeited for so I find in the Statute of Monasteries which excepts such Church Lands to be forfeited for Treason Dyer Cardinal Poole being attained did forfeit his Deanary and yet he was not seised thereof in jure suo proprio for it was jus Ecclesiae 27 E. 3. 89. A writ of Right of Advowson by a Dean and he counteth that it is Jus Ecclesiae and exception that it is not Jus suae Ecclesiae But the Exception was disallowed for the Jus is not in his natural capacitie but in his politique capacitie and yet by this Statute of 26 H. 8. such Church Land was forfeited for Treason this is a stronger Case then our Case Vide C. 9. part Beaumont's Case Land is given to husband and wife in tail and the husband is attainted of Treason the wife is then Tenant in tail yet the Land is forfeited against the issue although it be but a possibility for the whole estate
they devise the assurance for her jointure 2. Heer is no place named where the Notice was for it is issuable whether he gave Notice or not and then there being no certain place named no visne can be upon it 3. He doth not shew where the Lands are for it might be as in truth it was the Lands were out of England and by the Covenant they ought to be within England 4. He doth not shew that the Lands were of the value of 500l per annum over and above all Reprises as they ought to be by the Articles 5. He sheweth that they were his Freehold but doth not shew that the lands were his lands of Inheritance of which a Jointure might be made The opinion of the whole Court was that the Exceptions were good and that the Plea in bar was no good plea. Dodderidge If the word had been Such as his Councel shall devise then the Notice ought to have been given to the party himself and he is to inform his Councel of it 6 H. 7. 8. But here two Councellors were named in certain and therefore the Notice ought to be given to them for he hath appointed Councellors The whole Plea in bar is naught For if he hath an estate in tail then there ought to be a Fine in making of the Jointure and if there be a Remainder upon it then there ought to be a Recovery So because that Lane hath not informed the party what estate he had in the lands they could not make the Assurance Ley Chief Justice Where a man is bound to make such Assurance of lands as J. S. shall advise here he need not shew his Evidences but he ought to shew to the party what the land is and where it lieth and the Obligee is to seek out the estate at his peril And then J. S. may advise the Assurance conditionally viz. That if he hath Fee then to have such an assurance and if an Estate in tail then such an assurance and if there be a Remainder over then to devise a Recovery Curia All the Errors are material The Bail for Lane before any Judgment given against him brought Lane into Court and prayed that they might be discharged and Lane taken into custody Dodderidge Justice said There is a difference betwixt Manucaptors which are that the party shall appear at the day for there the Court will not excuse them to bring the party in Court before the day But in case of Bail there they may discharge themselves if they bring the body of the Defendant into Court at any time before the Retorn of the 2. Scire facias against the Defendant For when one goeth upon Bail it is intended that he notwithstanding that is in â—â—stodia Mariscalli For the Declarations are in custodia Mariscalli Marschalsiae Quod hota so is the difference Trin. 21 Jacobi in the Kings Bench. 434. WHEELER and APPLETON'S Case AN Action upon the Case was brought for these scandalous words viz. Thou hast stollen my Peece and I will charge thee with suspition of Felony Which were found for the Plaintiffe It was moved for the staying of Judgment That the Action was not maintainable For the Declaration is A Peece innuendo a Gun And here the innuendo doth not do its part for it might be a peece of an Oak or a 225. peece of Gold which is commonly called a Peece and in this Case the words may be intended such a Peece 17. Jacobi in the Kings Bench betwixt Palmer and Râ—ve Thou hast the Pox and one may turn his finger in the holes of his legs Adjudged that for these words the Action would lie because it cannot be meant otherwise then of the French pox 41 Eliz. in the Kings Bench the Defendant said of the Plaintiffe Thou art forsworn and thou hast hanged an honester man then thy self the Action did lie For the first words Thou art forsworn no Action will lie C. 4. part 15. but the later words prove that it was in course of Justice and that he was perjured So in this Case admitting that the first words will not bear an action yet the later words make them actionable For the first words ought to be meant of a thing which is Felony Heck's Case C. 4. part 15. there it was adjudged for the Plaintiffe although the first words would not bear action yet the later words make them actionable I will charge thee with suspition or flat Felony an Action doth not lie Hecks Case proves it Another Councellor argued that the Action would not lie The first words are not actionable For so many things as there are in the world so many peeces there may be and here it might be a peece of a thing which could not be Felony Betwixt Roberts and Hill 3 Jacobi in the Kings Bench it was adjudged Roberts hath stollen my wood the words were not actionable for it might be wood standing and then to cut and take it away it is not Felony but Trespass Ley Chief Justice I charge thee with flat Felony If the words be spoken privately to a man no Action lieth for them but if they be spoken before an Officer as a Constable or in a Court which hath conusance of such Pleas then the Action will lie for the party by reason of such words may come into trouble But if a man charge one with flat Felony and chargeth the Constable with him then an Action will not lie because it is in the ordinary course of Justice C. 4. part 14. If a man maketh a Bargain with another to pay him twenty Peeces for such a thing it shall be taken by common intendment twenty 22s. peeces of gold which vulgarly are called Peeces But to endite a man for 20 Peeces is not certain and therefore such Indictment is not good and the Action in our Case will not lie for my Peece is an incertain word Dodderidge Thou hast stollen my Peece What is that For we call 22s. in gold a Peece You ought to tell it in certain And here the innuendo will not make the scandal but the words of scandal ought to proceed out of the parties own mouth and an Innuendo cannot make that certain which was uncertain in the words of the speaker And therefore the Action here will not lie Haughton Justice If the whole matter had been set forth in the Declaration as to have shewed that the parties before this speech had had speeches of a Gun then the Action in this case would have been maintainable but here the word Peece is incertain and the Action will not lie Chamberlain Justice If the speeches had been concerning a Gun lost then upon these words spoken the Action would have lien but not as they are here spoken For the two words there ought to have been matter subsequent as upon the charging with Felony to have delivered him to an Officer And so by the whole Court it was adjudged Quod querens nihil capiat per
Billam Trin. 21 Jacobi in the Kings Bench. 435. SHOETER against EMET and his WIFE THe plaintif being a midwife the Defendants wife said to the plaintif Thou art a Witch and wert the death of such a mans child at whose birth thou wert Midwife In an Action upon the Case in Arrest of Judgment it was moved that the words were not actionable Hill 15 Jacobi in the Common Pleas Stone and Roberts Case adjudged That an Action upon the Case doth not lie for saying thou art a Sorcerer 9 Jac. Godbolds Case in the Kings Bench Thou art a Sorcerer or an Inchanter 30 Eliz. betwixt Morris and Clark for saying Thou art a Witch no Action will lie for of the words Witch or Sorcerer the Common Law takes no notice but a Witch is punishable by the Statute of 1 Jacobi cap. 12. Pasch 44 Eliz Lowes Case Thou hast bewitched my cattel or my child there because an Act is supposed to be done an Action upon the Case will lie for the words 1. Jacobi Sir Miles Fleetwoods Case He was Receiver for the King in the Court of Wards and Auditor Curle said of him Thou hast deceived the King and it was adjudged that an Action upon the Case would lie for the words because it was in his calling by which he got his living Chamberlain Justice Since the Statute 1 Jacobi for calling one Witch generally an Action will lie For for the hurting of any thing a Witch is punishable by shame viz. Pillory in an open place Dodderidge Justice Thief or Witch will bear Action and the reason of the Case before cited by the Councel is because that the common Law doth not take notice of a Witch But punishment is inflicted upon a Witch by the Statute of 1 Jacobi and by that Statute a Witch is punishable Trin. 21 Jacobi Betwixt Mellon and Herâ— Judgment was stayed where the words were Thou art a witch and hast bewitched my child because that the words shall be taken in mitiori sensu as thou hast bewitched him with pleasure And in that sense Saint Paul said Who hath bewitched you O Galatians That case was adjudged in the Common Pleas. Trin. 21 Iacobi in the Kings Bench. 436. KNOLLIS and DOBBINE'S Case KNollis did assume and promise apud London within such a Parish that he would cast so much Lead and cover a Church in Ipswich in Suffolk and one Scrivener promised him to give him 10l for his costs and pains Scrivener died Knollis brought an Action upon the Case against Dobbins who was Administrator of Scrivener and declared that he such a day did cast the Lead and cover the said Church apud London The Defendant pretended that the Intestator made no such promise and it was found for the Plaintiffe and in arrest of Judgment it was moved That the Declaration was not good by reason that the Agreement was to cover a Church in Ipswich and he declared he had covered such a Church apud London which is impossible being 60 miles asunder and so the Declaration is not pursuing the promise Dyer 7 Eliz. 233. In Avowry for Rent upon a Lease for life c. That the Prior and Covent of c. at Bathe demiserunt Lands which was out of Bathe it was void for they being at Bathe could not make Livery of Land which was out of Bathe Vi. Dyer 270. The second Exception to the Declaration was That the Commissary of the Bishop of Norwich apud London did commit Administration of the Goods and Chattels of Scrivener to Dobbins apud London which was said not to be good because he had not power in London to execute any power which appertained unto him at Norwich Dodderidge Justice The plaintiffe declares that apud London he did cover the said Church that is not good and makes the Declaration to be insufficient because it is not according to the promise The place where the Commissary of the Bishop of Norwich did grant the Administration is not material For if the Bishop of Norwich be in London yet his power as to granting of Letters of Administration and making of Deacons and Clarks in his own Diocese doth follow the person of the Bishop although his other Jurisdiction be Local to which the Court agree And it was adjudged that the Declaration was not good and therefore Judgment was given Quod querens nihil capiat per Billam Trin. 21 Iacobi in the Kings Bench. 437. BULLEN and SHEENE'S Case SHeene brought a Writ of Error upon a Judgment given in the Common Pleas. The Case was Bullen being a Commoner intituling himself by those whose Estate he had in the Land brought an Action upon the Case against Sheene because he had digged clay in the land where the Plaintiffe had Common and had carried away the same over the Common per quod he lost his Common and by that could not use his Common in as ample manner as he did before Sheene entitled himself to be a Commoner and have common in the said land also and so justified the Entrie and set forth a prescription That every Commoner had used to dig clay there and the first issue was found for the Defendant Sheene viz. that he was a Commoner but the other issue was found for the Plaintiffe Bullen viz. that there was no such prescription That a Commoner might dig clay And the Jury did assesse damages to the Plaintiffe generally and the same was moved to be Error because that the Plaintiffe had not damage by carrying away of the clay because the same did not belong to him for that he was but a Commoner and so the Judgment given in the Court of Common Pleas was Erroneous Ley Chief Justice By the digging of a pit the Commoner is prejudiced by the laying of the clay upon the Common the Commoner is prejudiced and so the damages are given for the digging and carrying away of the clay per quod Commoniam suam amisit and the damages are not given for the clay Chamberlain Justice If he had suffered the clay to lie by the pit it had been damage to the Commoner If the Owner of the soil plough up or maketh conyburies in the Land an Action upon the case lyeth against him by the Commoner for thereby the Common is much the worse and the Commoner prejudicedS If the pit be deep it is dangerous to the Commoner and so a damage unto him for it is dangerous lest his cattel should fall into it and it will not suddenly be filled up again and so no grass there for a long time and the longer because that which should fill up the pit is carried away Haughton Justice The proceedings are Erroneous both Plaintiffe and Defendant are Commoners The wrong is in two points First That the Defendant had with his cattell fed the Common Secondly That the Defendant had digged clay there and carried the same away The Defendant makes Title to both First he prescribes to have Common there Secondly That the Commoners
The want of a letter out of a word is out of the Statutes C. 8. part You should have alleadged some place The Statute of 21 Jacobi is not of any Venire facias which is misawarded generally but the Statute helpeth when there are two places and the visne ought to come from both places and the visne comes but from one place and when there is but one place and the visne comes from two places If Enfancie be to be tryed sc If he were at such a time within age it ought to be tryed by the Country This matter is collateral to the first Record and it is a new Record sc upon Error The whole Court was of opinion that it was out of the Statute and a Repleader was granted Whitlock Justice There is no Trial at all for there is no Venire facias at all Dodderidge Justice If the Defendant in Error plead an ill plea he shall replead But if in this Action he had alleadged a place of his Enfancie sc at Dale and the Venire facias had been of Sale there it had been good trial and there he should not replead for that he hath pleaded well but there he shall have a Venire facias de novo Pasch 3 Caroli in the Kings Bench. 470. DAY 's Case DAY was Indicted for erecting of a Cottage It was moved that the Indictment was insufficient for that the words of the Statute of 31 Eliz. cap. 7 are Shall willingly uphold maintain and continue And the Indictment is only That he continued and so wants the words voluntarily upheld according to the Statute 2. It did not appear in the Indictment that it was newly erected for it is only that he continued but not that he erected The Indictment was quashed because being a penal Law it was not pursued Pasch 3 Caroli in the Kings Bench. 471. MAN's Case MAN was Indicted That he fuit adhâ—â—c est a common Barrettor and no place is expressed where he was a Barrettor so as no trial can be Dodderidge Justice If he be a Barrettor in one place he is a Barrettor in all places The Indictment was Per quod he did stir up contentions Jurgia And no place alleadged where he did stir up Jurgia contentions And it was said that in that case the place was very material And so the Indictment was quashed for want of setting forth the place where he did stir up many Contentions Jurgia c. Pasch 3 Caroli in the Kings Bench. 472. GREEN and MOODY'S Case AN Action of Debt was brought for Rent and it was found for the Plaintiff Thyn Serjeant moved in arrest of Judgment and set forth the Case to be That a Lease was made for years to begin at Michaâ—lmaâ— after And the Plaintiff in the Action of Debt for the Rent did declare Virtuâ—e cujus the Lessee did enter and did not shew what day according to Cliffords Case 7 E. 6. Dyer 89. But the Court said It is said in this Case Virtute cujus dimissionis he did enter and was possessed and that must be intended at Michaelmas Alexander and Dyer's Case 33 Eliz. was resolved accordingly And Cliffords Case Dyer 89. is not virtute cujus dimissionis And the Court held a difference betwixt Debt and Ejectione firme Cliffords case was an Ejectione firme but here it is Debt Jones Justice If he did enter before Michaelmas yet Debt will lie for the Rent upon the privity of contract for the Lessee cannot destroy the contract unless he make a Feoffment It was adjudged for the Plaintiff Quaere If when the Lessor in the case which Jones put hath brought his action and recovered when the Lessee hath entred before the day If the Lessor shall put him out as a Disseisor by reason of the Recovery in the action of Debt in which he hath admitted him to be Lessee for years Or if the Lessor after he hath recovered in Debt dyeth whether his heir shall be estopped by the Record to say otherwise then that he is in by the Lease Or whether the Recovery in Debt hath purged the wrong Like unto the Case 14 H. 8. 12. by Carret If one entreth into my lands and claims 20 years therein and I suffer him to continue there and accept of the Rent and afterwards he committeth Waste I shall maintain an action of Waste and declare upon the special matter If one entreth into my Land claiming a Lease for years per Curiam he is a Disseisor and he cannot qualifie his own wrong Dyer 134. Traps case But Sir Henry Yelverton said That I may admit him to be Tenant for years if I accept of the Rent or bring Waste as Carret said 14 H. 4. But he hath not but for years in respect of his claim But I am concluded by acceptance of the Rent or by bringing of the action of Waste So here by the bringing of the action of Debt the Lessor is concluded But Quaere if it shall bind his heir It was conceived it shall because it is by Record the strongest conclusion that is Pasch 3 Caroli in the Kings Bench. 473. SMITH's Case A Lease for years was made of Lands in Middlesex and the Lessor brought Debt in London against the Assignee The opinion of the whole Court was that it was not well brought but the Action ought to have been brought in Midd. Jones Justice Debt for Rent upon the privity of Contract may be brought in another County but if it be brought upon the privity of Estate as by the Grantee of the Reversion or against the Assignee of the Lessee then it ought to be brought in the County where the Land is Quod nota Pasch 3 Caroli in the Kings Bench. 474. CREMER and TOOKLEY's Case AN action of Debt was brought for suing in the Court of Admiralty against the Statutes of 13 R. 2. cap. 5. 15 R. 2. cap. 3. whereby it is enacted That of manner of Contracts Pleas and Complaints arising within the body of the Counties as well by land as by water the Admiral shall in no wise have conusans And the Statute gives damages part to the party and part to the King And the Plaintiff in the action of Debt did declare That the Defendant Tookley did implead Cremer the Plaintiff in the Court of Admiralty And in his Declaration set forth That one Mullâ—beck was Master of a Ship c. and that the Contract was made in London And that Tookley the Defendant did force the Plaintiff to appear and prosecuted the suit upon the Contract in the Admiral Court And by special Verdict it was found That a Charter-party was made betwixt Mullibeck and Cremer at Dunkirk And that Tookley did prosecute Cremer in the Admiral Court by vertue of a Letter of Attorney and so that he as Attorney to Mullibeck did prosecute the suit there The Case was argued by Andrewes for the Plaintiff There are two points The first upon the Jurisdiction of the Admiralty the Contract
releaseth A Will is made and A. is made Executor and no trust is declared in the Will and at his death the Testator declares That his Will is for the benefit of his children May not this intent be averred there is nothing more common Dodderidg Justice For the making of an Estate you cannot averre otherwise then the Will is but as to the disposition of the estate you may averre Jones Justice There are two Executors one commits wast or releaseth c. the other hath no remedy at the common Law for that breach of Trust The reason of Chenyes case C. 5. part is Whosoever will devise Lands ought to do it by writing and if it be without the writing it is out of the Will although his intent appeareth to be otherwise Before the Statute of 34. H. 8. cap. 26. The Marches of Wales held plea of all things for things were not then setled But the said Statute gave them power and authority to hear and determine such causes and matters as are or afterwards shall be assigned to them by the King as heretofore had been used and accustomed Now if it be assigned by the King yet if it be not a thing accustomed and used to be pleaded there it is not there pleadable So if it be within the Instructions made by the King yet if it be not used and accustomed it is not pleadable there but it ought to be within the Instructions and also accustomed and usuall Adultery Symony and Incontinency are within their Instructions and are accustomed The things being accustomed to be pleaded there have the strength of an Act of Parliament but by the Instructions they have no power to proceed in case of Legacy Then let us see if the same be included within the generall words things of Equity within the Instructions And then I will be tender in delivering of my opinion If a Legacy be pleadable there or not Whitlock Justice The Clergy desired that they might forbear to intermeddle with Legacies Five Bishops one after the other were Presidents of the Marshes there and they draw into the Marches spirituall businesse but originally it was not so their power was larger then now it is for they had power in criminall causes but now they are restrained in that power There is a common Law Ecclesiasticall as well as of our common Law Jus Commune Ecclesiasticum as well as Jus Commune Laâ—cum The whole Court was of opinion That the Kings Atturney in the Marches being out we ought to have priviledge there In the Chancery there is a Latine Court for the Officers of the Court and the Clarks of the Court for to sue in But in the principal Case a Prohibition was not granted because there was much matter of Equity concerning the Legacy It was adjourned Pasch 3. Caroli in the Kings Bench. 497 HARLEY and REYNOLD's Case HArvey brought an Action of Debt upon an Escape against Reynolds Hill 1. Car. Reynolds pleaded That before the day of Escape scil the twentieth day of January 1. Car. That the Prisoner brake Prison and escaped and that he afterwards viz. before the bringing of this Action viz. 8. die Maii 2. Car. took the Prisoner again upon fresh Suit Anderws for the Plaintiff Reynolds is bound to the last day viz. 8. Maii and not the day before the bringing of the Action for the Bill bears date Hill 1. Car. and the terme is but one day in Law c. 4 part 71. and so no certain day is set for the Jury to find The day which Reynolds sets that he retook the Prisoner is the eighth day of May and he shall be bound by that Com. 24. a. 33. H. 6. 44. Where a day is uncertain a day ought to be set down for a day is material for to draw things in issue C. 4. part 70. the Plaintiff shewed That 7. Maii 30. Eliz. by Deed indented and inrolled in the Common Pleas Ter. Pasc in the said thirtieth year within six monthes according to the Statute for the consideration of One hundred Pounds did bargain and sell But he further said That after the said seventh day of May in the said thirtieth year he levied a Fine of the Lands to the now Plaintiff after which Fine viz. 29. Aprilis in the said thirtieth year the said Deed indented was enrolled in the Common Pleas. Note That another day more certain was expressed therefore the mistaking of the day shall not hurt And there it was helped by Averment 8. H. 6. 10. Repleader 7. In Waste the Defendant said That such a day before the Writ brought the Plaintiff entred upon him before which entry no Waste was done c. Strange It might be that he entred again wherefore the Court awarded that he should recover Co. Entries 178. In Dower the Tenant vouched a stranger in another County who appeared and there the Replication is viz. die Lunae c. so the day ought to be certain 19. H. 6. 15. In a Formedon If the Defendant plead a thing which by the Law he is not compelled to do and the Plaintiffe reply That she is a Feme sole and not Covert it is good but if he plead That such a day year and place there the Trial shall be at the particular place otherwise the Trial shall be at the place where the Writ bears date C. 4 part Palmers Case If the Sheriff sell a Term upon an Extent and puts a Date to it scil recites the Date and mistakes it the sale is not good for there is no such Lease Dyer 111. Then it is said 31. Octobris and there by the computation of time it was impossible and so here the time is impossible scil that 8. Maii 2. Car. should be before Hill 1. Caroli for the taking is after the Action brought and so naught to bar the Plaintiff it is the substanre of his bar upon which he relieth and so no matter of form 20. H. 6. there upon an Escape the Defendant said That such a day ante impetrationem billae in this Court scil such a day he retook him and the day after the scilicet is after the purchase of the Writ there the scilicet and the day expressed shall be void and it shall be taken according to the first day expressed if the Sheriff had retaken him before the filing of the Writ it had been a good plea in Bar otherwise not Calthrope contrary H. brought debt Hill 16. Jacobi against Cropley and 9. Junii 19. Jacobi Cropley was taken in Execution and delivered in Execution to R. by Habeas Corpus afterwards 1. Caroli Cropley escaped and H. brought debt against R. who pleaded a special Plea and shewed That 20. Januarii 1. Caroli Cropley brake prison and escaped and that he made fresh Suit untill he took him and that before the purchase of the Bill scil 8 Maii 2. Caroli he was retaken 16. E. 4. If he retake him before the Action brought it is a good bar so if the
of his eldest son in tail and afterwards he married a wife and died that the wife should not be endowed for when he had limited the use to himself for his life he could not limit arâ— Remainder over And Edwards Case adjudged in the Court of Wards which was That there was Tenant for life the Remainder in tail he in the Remainder granted his Remainder to I. S. and his heirs and afterwards Tenant for life dyed and then the grantee dyed his heirs within age it was adjudged that the heir of the garntee should not be in ward because the Tenant in tail could not by his Grant grant a greater estate then for his own life But he said That in the principall Case it appeareth That the Tenant in tail in Remainder hath particularly recited his estate And where it appeareth in the Conveyance it self that he hath but an estate in tail a greater estate shall not passe As if Tenant for life granteth a Rent to one and his heirs the same at the first sight seems to be a good Rent in Fee but when it appeareth in the Conveyance that the grantor was but Tenant for life there upon the Construction of the Deed it self it cannot be intended that he granted a Fee but that an estate for life passed only in the Rent Secondly he argued That although the estate in tail in the principall case was an abeyance Yet a Common Recovery would barr such estate tail in abeyance And therewith agreeth C. 2. part Sr Hugh Cholmleys Case 3. He said That the estate was out of the King and vested in the party without any Offence found as 49. E. 3. Isabell Goodcheaps case A man devised houses in London holden of the King in tail and if the Donee dyed without Issue that the Lands should be sold by his Executors The devisee died without Issue The bargain and sale of the Lands by the Executor doth divert the estate out of the King without Petition or Monstrans de Droit So If there be Tenant in tail the Remainder in tail and Tenant in tail â—n Remainder levieth a fine of his Remainder to the King and afterwards dyeth without Issue the Kings estate is determined and there needs no Petition or Monstrans de Droit 4. He said That in the principall case nothing was in the King because it doth not appeare that there was any seisure or Offence found to entitle the King And the Tenant in tail in the Remainder died in the life of King James and then if the Kings estate were then determined as before by the death of the Tenant in taile the King which now is never had any title And hee said that he needed not to shew a greater title then he had And hee took a difference when Tenant in taile doth onely defend or make defence and when he makes title to Lands in the one Case he ought for to shew That the Tenant in taile died without issue and in the other Case not And therefore in the principall case he demanded Judgment for the Defendant The Case was adjourned to another day Mich. 4. Caroli in the Star-Chamber 511 TAILOR and TOWLIN's Case A Bill was preferred against the Defendant for a Conspiracy to Indict the plaintiff of a Rape And the Plaintiff aleadged in his Bill That an Indictment was preferred by the Defendant against the Plaintiff before the Justices of Assise and Nisi prius in the County of Suffolk And did not lay it in his Bill that the Indictment was preferred before the Justices of Oyer and Terminer and Gaole delivery and the same was holden by the Court to be a good Exception to the Bill for that the Justices of Assise and Nisi prius have not power to take Indictments But afterwards upon veiw of the Bill because the Conspiracy was the principall thing tryable and examinable in this Court and that was well layd in the Bill the Bill was retayned and the Court proceded to Sentence And in this Case Richardson Justice said That in Conspiracy the matter must bee layed to be falsè et malitiosè and if it be layed for a Rape It must be layd that there was recens persecutio of it otherwise it will argue a Consent And therefore because the Defendant did not preferre an Indictment of Rape in convenient time after the Rape supposed to be done but concealed the same for half a years time and then would have preferred a Bill of Indictment against the plaintiff for the same Rape he held that the Indictment was false and malitious And Hyde Chief Justice said That upon probable proof a man might accuse another before any Justice of Peace of an Offence and although his accusation be false yet the Accuser shall not be punished for it But where the Accusation is malitious and false it is otherwise and for such Accusation he shall be punished in this Court Trinit 8. Caroli in the King Bench. 513 JONES and BALLARD's Case AN Action upon the Case was brought for these words viz These Jones are proper Witnesses they will sweare any thing They care not what they say They have already forsworn themselves in the Chancery and the Lord keeper Committed them for it Jermyn took Exceptions because it was not said to be in the Court of Chancery nor that it was in any Deposition there taken upon Oath But it was adjudged per Curiam That the Action would lie and Jones Justice said that the Addition in the Chauncery was as much as if he had said he was perjured there And Hâ—msies case was vouâ—hed by him Where one said of a Witness presently after a Tryall at the Guild Hall in London You have now forsworn your self That it was adjudged that the words were actionable Trinit 8. Caroli in the Kings Bench. 513. SYMME's and SMITH's Case A Woman being entituled to copyhold Lands of the Manor of D did covenant upon reasonable request to be made unto her to surrender the Copy-hold Land according to the Custome of the Manor And it was found That the Custome of the Manor is That a surrender may be made either in person or by Letter of Atturney and that the plaintiff did request the woman to make the surrender by a Letter of Atturney which shee refused to do And whether shee ought to surrender presently or might first advise with her Councell was the Question It was argued for the plaintiff that shee ought to do it presently And Munser's Case C. 2. part and 16. Eliz. Dyer 337. Sir Anthonie Cooks Case were vouched that she was to do it at her perill And the Election in this Case was given to the Covenantee and hee might require it to be done either in Court in person or by Letter of Atturney And C. 2. part Sir Rowland Heywards Case and C. 5. part Hallings Case was vouched to that purpose Rolls contrary for the Defendant And he said That the woman was to have convenient time to do it and
171 365 368 369 forfeiture 269 142 365 felling trees 173 174 trespasse brought 174 Corporation 347 dissolved the donor shall have his land again 211 sues 393 Costs 329 345 220 Covenant 38 assignee 162 Executors ibid. 11 12 48 69 70 to build a mill c. there 271 273 175 99 120 333 335 217 to surrender 445 performed 95 The Indenture is void in part 213 Covenant 87 121 cause of things must appear in the Court 401 Countermand 133 County where actions shall be brought 335 of trials 429 Courts-Baron 68 69 Leet 71 Tower Court 145 of Requests 208 216 243 244 Kings Bench and Chancery 357 Acts done in spiritual Courts 33 163 164 181 215 Curia claudenda 127 Custom 5 49 234 140 143 235 267 261 135 of descents 166 127 That the wife may devise to the husband 14 Particular Customes 163 D Day in Court 68 Day materiall to be set down 433 434 Damages recowping in them 53 135 362 jonyt severed 57 assessed 98 343 344 not assessed writ of enquiry 207 not recoverable in account 57 treble 245 to be severed 210 Damage feasan 124 185 Date of a Patent 416 Declaration 251 86 186 in an action upon 1 2. P. M. of distresses 11 upon an Assumpsit 32 Custome 252 particularly 358 insufficient 76 106 343 370 mistakes 345 287 119 160 125 Deed things passe by one deed 129 by deed 354 128 Debt 253 91 336 372 217 210 who liable 294 The Kings debt 289 290 291 292 293 294 295 296 Default 280 Defamation 440 Delivery of deeds 130 of money to anothers use 210 Demand 23 39 67 96 154 337 where to be 331 by writ 74 335 310 the word 398 Demurrer 10 Denizen made 417 Departure 255 122 Depositions 193 Deprivation 259 163 Detaining 8 Detinue 370 Declaration in it 403 Devastation by Executors 30 Devastavit 285 Devise 7 14 15 16 26 40 46 208 266 280 95 99 130 131 299 319 146 351 352 363 to a Colledge c. 394 prevents a remitter c. 411 to a mans heir 412 to one daughter heir of land held by Knights service c. 17 to sell 78 to the Son and heir 94 Dilapidation 259 Diminution 267 alledged 407 Disability the plaintiff cause of it 75 76 Discharge 11 105 ought to shew what 61 Discent 3â—5 312 365 Disclam 25 Discontinuance one issue only found 5 370 within a year 219 Discontinuance by tenant in taile 317 Disseisin 522 of a particular estate 139 Acts of disseisor disseisor sues c. 388 Distresse justified 109 110 187 190 driven out of the Countrey 11 sufficient upon the Land 67 110 Divorce 19 145 Dove-coat a Writ of Right lies of it 259 erected 284 Dower 21 135 145 A Lease is for years 266 Forfeitable by the Husband 323 Averment of seisin of the husband for damage 212 E Ejectione firmae 6 15 18 53 71 72 33â— extra tenet unnecessary 60. lyes 157 Plea 149 Election 258 159 127 140 446 To sue 196 determined ibid. Elegit 257 82 84 Ely jurisdiction there 380 381 Emblements 159 Enclosure in Forrests 167 168 169 170 171 Entry into one house 72 To defeat an estate 9 To fortifie it 25 for forfeiture 175 No trespasse 283 Error 26 258 248 73 80 84 87 372 373 lyes not 261 247. brought 376 377 378 379 439. directed 44. things uncertaine 408. severall 440 Escape 22 27 262 280 125 126 372 403 Fresh suite 177 433 Escheat 78 For Miscreancy 34 Right of action 322 Essoine 235 236 Estates 19 42 51 52 272 A Lease for time 102 103 determined 9 the lesse drowned 52 voidable 9 Estoppel 257 48 147 321 177 384 385 Estranger to a plaint erroneous c. 403 Estovers custome pleaded 235. see 238 97 173 Estrepment 112 164 Estrey 150 151 Eviction 258 Evidence maintaines not the issue 235 see 326 Execution 26 257 258 80 82 83 84 290 295 147 125 126 181 371 372 373 217 Assignment after judgement 161 Taking 372. severall 208 Executors 21 192 See Right Of his own wrong 104 Reteines 217 Order in payment 298 Pleads fully administred 178 Exception in a grant 116 117 118 Time past to take it 100 One releases 431 Exâ—hange 99 100 Exigent 83 217 Excommunication 191. unjust 406 Exposition 16 17 18 36 37 67 71 236 246 198 of Lawes 39 of Statutes 309. and Patents 425 Extent 82 289 311 Extinguishment 24 11 101 314 128 137 211 Lands given by Statute to the King Annuity not extinguished 170 F Falsâ—fying a Recâ—very 271 Falsely imprisoned 124 Fee executed â—â—2 one cannot depend of another â—â—7 Fee-simple 155 Felony not before attainder 267 Cause of arrest for it 406 Feoffments 318 319 320 Fieri facias 276 147 83 Fine for vert c. 277. What Courts may fine c. 381 Fine levied by tenor of it 246 Parish not named 440 Record of it 103 129 307 148 351 179 First fruits 393 Forceable entry 45 Forfeiture of Lessor 105 141. Of a Right 321 See Treason Forgery 62 63 175 Form commanded by Statute must be observed 334 188 189 Formedon 239 302 163 Forrests chases c. 169 Frankalmoigne 396 Franchises 17 262 Usurped 91 Frankmarriage 18 19 20 Franktenement rule of it 9 In an upper chamber 44 Forfeiture 6 318 In case of Treason 34 307 308 310 315 316 Fraudulent conveyances and acts 6 7 285 161 191 192 G. GArdian in soccage 316 Gardens 6 Gavel-kind Plea 55 Grants Words apt 7 Of a common person 8 18 24 25 236 237 270 273 Restriction rule 237 To dig in his waste 18 Generall words 183 One thing passes with another 352 Things passe in grosse 127. By one Deed 129. Of the King 8 35 Where a mistake shall not abridge the fulnesse of words precedent 36 Favoured 37 38 262 136 425. See 414 415 416 417 421 422 423 425 Of a possibility 316 H. HAbeas corpus directed 44. See 198 199 Habendum 51 269 272 Habendum successive 220 Holidayes 218 Heire-speciall 3. Force of the word ib. 4 275 102 312 Homage 320 Husband and Wife acts of both or either 2 5 14 15 312 141 180 Wifes lease good 327 Gives land to her husband 143 Execution of the Wives Lease 26 See Reservation Husband may forfeit the Wives Copy-hold 345 May correct his Wife 215 I. IDeot 302 Jeofailes 56 57 194 Imbracery 240 Imprisonment 158 344 199. See Fine Improvement of common 97 Incidents 359 Ingrossers of corn 144 Innkeepers 345 346 Incroachment 24 411 Inquisitions 294 299 Indictment 45 46 65 67 272 84 157 400 346 For erecting a Cottage 383 For omitting the Crosse in Baptisme 119 Joynt 349 Contra pacem when 59 Infant 60 104 In his mothers belly 319 364 365 366. May grant c. 14 Brings Error to reverse a Fine 20 May release 30 31 Acknowledges a Statute c. 149 Appears c. 382 Promises to pay for his meat c. 219. Sues his Guardian discharges 214 Information 91 131 158
Tenant for life and the administrator of Lessee for years where the term was to begin after death of Tenant for life 1 2. Two named as Joint-purchasers 180. Taking by purchase 363. Q. QVare impedit 263. Quae plura 191. Que estate 172. Quod ei deforceat 2. 448. Quo minus 291 296 297 Quo warranto 91 92 93. R. RApe the Indictment must be preferred in convenient time 444. Raâ—â—shment of Ward 14. 34. 426. Rebutter 310. by that which is sued to be reversed 379. Recognisance 142. Notes only taken 356. for good behaviour 22. 311. Recital of a Statute 86. of the particular estate c. 423. Recâ—rd 103. 356. No such record pleaded there 178. 373. Removed well or not 375. Brought from one Court to another 14. 249. Transcript in Parliament 247. see 328. Recovery common an invention of the Judges found out in Ed. 4 his time 308. All the rights barred 311. before inrolment of the bargain 218. Estoppes 147. by an Infant 161 Recovery in actions 6. Baâ—s 19. 134. Erronious 27. Rectory Glebe c. 35 Recusancie 148. Recusant convict his advowson 216. Relation 270. 313. 317 325. 140. 388. To avoid mean acts 312 Makes acts good before 376. Release of all actions 11. 12. of all his right ibid. where a Covenant is not broken ibid. 29. 30. 310. 220. with Warranty 158. Relief Remainder 19. 51. 52. 265 319. 220. Acts by him in remainder 9. good yet incertain 139. of a term 26. 316. Remitter 69. 312. 320. 326. Rent 3. 279. 146. 156. to cease during minority c. paid to one who has but a right for a time 156. to A. and his heirs for life of B. 172. the word 〈◊〉 449. Replevin 96. 124. 187. Replication 96 insufficient 138. Reputation 17. 353. Request 49. 274. 144. 40â— 438. in an action of the case upon promise 362. Resceit Rescuous 276. 126. Plea in it 91. Reservation 19. 283. 101. Husband leases his wifes Lease reserving rent 279. reservation to the wife 448 449. Restitution upon a Iudgment reversed 27. 376. Retraxit Retorn 217 265. 276. 82. 355. 357. 389. by Coroners one denies 439. general retorn of a Record 408. Reviving 4. of estates and rights 326. Revocation 133 289. Riot 146 438. Rights 301. 313. 314. forfeited 310. 322. 323. given away by conveyance 319. 320. see Livery Executor sels the land hath right c. 31. Robbery on Sunday no Hue and cry 280. S SAle 244. by Executors 77. in a market 160. 349. of goods taken by Pyrats 193. Satisfaction acknowledged 79. 80 Scire fac 79. 83. 155. 371. 379. Seats in a Church 200. sin to be shown 347. 121. Seigniâ—ry services 4â— 28. 38. Sheriffe collects Fines c. after a pardon 178. Simony 390. 202. 435. Slander 40. 43. 239. 241. 242. malitiously spoken there 152. 273. 278. 88. 284. 287. 88. 89. 90. 106. 147. 151. 157. 167. 327. 328. 304. 341. 181. 375. 391. 202. 214. Of a Physitian Lawyer c. 441. Forâ—sworn your self 444. 445. Calling one Bistard 451 Statute-Merch c. General Statutes particular Interests 168. a third person there Statutes 11 H 7. of Jointures forfeiâ—ed 6. 1 2. P and M. of Distresses 11. the Statute of Wiâ—â—es 38 H. exâ—ends not to Copyholds 15 34 H. 8. of Mistakes 416. 32 of H. 8 17. 32 H. 8. of Leases 102. 13 Eliz. of Covenants c. for enjoying spiritual Livings 29 2 M. concerning Preachers 245 4 H 7. Heir of Cestuy que use 79 2 West 1. of Feoffments there 5 Eliz. of Per jury 89 26. H. 8. of Estates tail forfeited for Treason 307 308 309. 27 H. 8. Statuâ—e of Fermors 145 22 E. 4 35 H. 8 of inclosure of Woods 167 Statutes extend not to Superiors unnamed 395 General Statutes bind insants 80 Some particular in 160 Some points 169 Construction where the King is concerned 308 Such Statutes are general 171 of Penal Statutes 315 Savings in Statutes 304. 324 Steward of a Mannor-Court 142 Surety in Debt 149 to pay the Condemnation c. 372 Suit for part 196. in Temporal and Spiritual Courts 447 Sumâ—oâ—s and Severance Sunday 280 Supersedâ—â—s 249 250 Supplicavit for the Peace 355 Surpâ—usâ—ge 248. 73. 434. Surrender 14 15 16. 52. 265. 268. 153. 425 Surrender to the use of A. for ever the Lord admits him in Fee 137 Surrender c. after his death 451 Suspension 4â—9 T TAil-Tenant his Acts Leases 9. 301 302. 308. 323. could not levie a Fine at the Common Law 300 Estate-Tail without the word Heirs 19 Tenant grants Rent acknowledges a Statute 442 Tenant in Tail the remainder in Tail to another who grants his Estate to the King c. 441. 543. tot Stat. suum 442 Forfeited for Treason 307 308 309 321 shewing that the Tenant died without issue 443 the Tenant cannot be barred to alien by common Recovery 351 Tales de circumstantib 204. tried 430 Tenant in common 2. 16. 282 283. 129. Two Lords Tenants in Common of a Waste 156 Tenant by Curtesie 15. 25 cannot grant his Right living his wife 323 In Dower see Dower In Tail after possibility c. at Will Leases c. 15 319. 364. Tender 39. 330 331 332 Tenure 20. 101 Things in action 12 in grols 38 Trade 25 254 Travers 24. 43 56 57 of a Debt 402. to an Office 410. of Discents 411. Rule 253. 111. of Seisin in Fee or the gift in Tail 427 Treason a Papist who after refussing to take the Oath of Allegiance spake these words It is lawfull for any man to kill the King c. 263 264. in the point of Allegiance none must serve the King with ifs and ands ibid. Forfeitures for Treason 322 323 324 a mad man may commit Treason 316 presumed in Law no man will commit Treason 325 Trespass 6. 16. 33. 133. 200. 270 271. barr 134 by one who has special property 173 for taking Conies 174 medling with the Soil 52 53 Pleas 55 Rule 53 Troâ—er 210 Trust not conveyed 64. joynt 77 78 Feoffment in trust 299 broken 432 Tryal 33. 257. 50 51. 196 197. 433 things done in a forrein Port 193 of things done beyond sea 76. 204. see Admiralty Tythes Lands discharged by the Statute 31 H. 8. L. 392. 211. 395 396 discharged by grant 273. 35. 44 45 50 51. 329 330 331. 333 Modus 63. the Parson to have all where 64 Prescription 60. 237 238. 120 after Tythes set out that the owner may carry away 30 sheafs 234 Substraction 245 Leased 333 by Deed 354 not 374 Modus after endowment 180. s 194 of lopping 175 The King to pay no Tythes priviledges of discharge to be taken strictly 396 397 398 V VAâ—iance 248. 88. 362 Valore maritagii 189 Writ of Error 249. 375 Venditioni exponâ—s 276 Venire facias 257. 251. 305. 328. 334 335. 381 382 203. 411 none 194 Verdict 126. 354 Vnperfect 27 incertain 36 special favoured 37 Villein presented to a Benefice by the Lord 179 Visâ—e 48. 54 335. 381 382 383 Void Acts and voidable 311. 318 319 161 Vou 307 Vsage 5 Vse 7. 265 Acts of Cestu que use 303. 306 307. 318 319 makes attorney to make livery 314 Tenant in tail cannot stand seised to an use expressed 269 Superstitious 233 Vsurpation 7 8. 263 W WAger of law 244 79 296 not for part 327 Waife Waining estates 79 100 Wales what Process runs into Wales 214 the Marches 243 President and Councel 437 Ward 79 320 Warreâ— 124 184 Warrant of Attorney 73 74 apparence by it 439 Warrant to receive mony c. 358 Warranting an horse sold 31 a Lease 48 Warranty 5 130 320 368 entring into it 152 Warrantia chartae 152. lies there Waste 5 28 52 70 114 115 116 117 118 132 164 209. When done must be shewn 347 Way drowned 52 Wills 15 construed 363 Witnesses 16 288 326 327 439 Woods underwoods 5 256 inclosed in Forrests according to Statutes 167 168 1â—9 190 171 Words for a grant 7 17 the word portio 35 36. successive 51 Ovile 274 89. omitted in a Writ 286 or 363 Writs not formal divertit for coarctavit 58 the true words not used 64 admitted good 87 demands in them 6 insufficient 347 Two originals 306 408 409 Trespas after the first purchased 407 409. of Right c. 239 Writ mistakes the time of one King for another 399 Of right of advowson 6 263 Writ untrue yet good 115 Writing scandalous words under pretence of a Petition delivered to the King 405. FINIS