resolved by all the Iustices as he said that it shall passe and he said that himself was of this opinion also And to say that by grant of Land at Common Law the use had been raised out of the possessions of the Land which the Grantor then had and by it passe to the Bargainee and that it shall not be raised and passed to another by grant of Land in consideration of marriage which is a more valuable consideration then money is absurd and against all reason And for the solemnity Vses in such cases in respect of marriage were the cause that they alwaies were left as they were at Common Law and not restrained as the case of bargain and sale is which by Common intendment may be made more easily and secretly then that which is done in consideration of marriage which is alwaies a thing publike and notorious but it is not reasonable that every slight or accidentall speech shall make an alteration of any Vse As if a man ask of any one what he will give or leave to any of his Sons or Daughters for their advancement in marriage or otherwise for their advancement this shall be but as a bare speech or communication which shall not alter or change any Vse But where there is upon the Speech a conclusion of a Marriage between the friends of the parties themselves and that in consideration therof they shall have such Lands and for such an Estate there the Vse shall be raised by it and shall passe accordingly to the parties according to the conclusion which Fennor granted But by Popham If it may be taken upon the words spoken that the purpose was to have the Estate passe by way of making of an Estate as by way of Feoffment c. then notwithstanding the consideration expressed the use shall not change nor no Estate by it but at will untill the Livery made therupon And therfore if a man make a Deed of Feoffment with expresse consideration of marriage although the Deed hath words in it of Dedi Concessi with a Letter of Attorney to make Livery therupon there untill Livery made nothing passe but at will because that by the Warrant of Attorney it appeareth the full intent of the parties was that it shall passe by way of Feoffment and not otherwise if it be of Land in possession And if it be of Land in Lease not untill Attornment of Tenants which was granted by all the Iustices But if a man in consideration of money makes a Deed of Gift Grant Bargain and Sale of his Lands to another and his Heirs by Deed indented with a Letter of Attorny to make Livery if Livery be therupon made before Inrolement there it hath been adjudged to passe by the Livery and not by the Inrolement But by Popham where Land is to passe in possession by Estate executed two things are requisite The one the grant of the said Land the other the Livery to be made therupon for by the bare Grant without Livery it doth not passe as by way of making of an Estate And this is the cause that such solemnity hath been used in Liveries to wit if it were of a Messuage to have the people out of it and then to give Seisin to the party by the Ring of the door of the House and of Land by a Turff and a Twig and the like which may be notorious Yet I agree it shall be a good Livery to say to the party Here is the Land enter into it and take it to you and your Heirs for ever or for life or in tail as the case is And albeit Livery by the View may be made in such manner yet by the sealing of the Deed of Grant upon the Land or by grant of it upon the Land without Livery nothing passe but at will But if therupon one party saith to the other after the Grant or upon it Here is the Land enter upon it and take it according to the Grant this is a good Livery But he ought to say this or somthing which amounts to so much or otherwise it shall not passe by the bare Grant of the Land although it be made upon the Land Clench said That when Thomas said to Eustace Stand forth here I do give to thee and thine Heirs these Lands this amounts to a Grant and a Livery also and by the words of the Reservation of the Estate to himself and his wife for their lives in this the Law shall make an use in the said Thomas and his wife for their lives so that by such means it shal enure as if he had reserved the use therof to him and his wife and so it shall enure to them as it may by the Law according to his intent without doing prejudice to the Estate passed to the said Eustace And afterwards Term Mich. 36 37 Eliz. the Case was again disputed amongst the Iustices and then Popham said That the Case of Baâ—gains and Sales of Lands in Cities as London c. as appeareth in Dyer 6. Eliz. are as they were at Common Law To which all the Iustices agreed and therfore shall passe by Bargain by parole without writing And by Bayntons Case in 6 7 Eliz. it is admitted of every side that an Vse was raised out of a Possession at Common Law by Bargain and Sale by parole and otherwise to what purpose was the Statute of Inrolements and by the same case it is also admitted now to passe by parole upon a full agreement by words in consideration of Marriage or the continuance of Name or Blood For it is agreed there that the consideration of nature is the most forceable consideration which can be and agreed also that a bare Covenant by writing without consideration will not change an Vse therfore the force therof is in the consideration of which the Law hath great respect And therfore the Son and Heir apparant ex assensu patris onely may at the door of the Church endow his wife of his Fathers Land which he hath in Fee and this is good by Littleton although the Son hath nothing in it wherby an Estate passe to the wife which is more then an Vse Nature is of so strong consideration in the Law And therupon after advice Iudgment was given for the Plaintiff the Roll of this appeareth in Banco Regis 1 Hill 35. Eliz. Rot. 355. And upon this Iudgment a Writ of Error was brought and the Iudgment aforesaid reversed in the point of Iudgment in the Exchequer by the Statute of 27 Eliz. Kettle versus Mason and Esterby 6. IN a second deliverance between Joh. Kettle Plaintiff and George Mason Vide this case Coke lib. 1. 146 c. and Francis Esterby Avowants the case appeared to be this Thomas May was seised of the Mannor of Sawters and Hawlin in the County of Kent in his Demesne as of Fee and being so therof seised enfeoffed Thomas Scot and John Fremling and their Heirs
dies and afterwards John his Son and Heir dies without Issue the reversion by this descends to the said Christopher who dies leaving Issue And upon this Case made in the Court of Wards the two chief Iustices Popham and Anderson agreed first That upon the devise and death of the Father the said Christopher and William were joynt-Joynt-tenants of the Land and not Tenants in Common notwithstanding the word severally because it is coupled with the said word joyntly But yet they agreed also that by the descent from John to Christopher the Fee-simple was executed in the said Christopher for the Moyety in the same Mannor as if he had purchased the Reversion of the whole or of this Moyety and that it is not like to the Case where Land is given and to the Heirs of one of them in which case for the benefit of the Survivorship it is not executed to divide the Ioynture because the Estates are made at one and the same time together and therfore not like to the case where the Inheritance cometh to the particular Estate by severall and divided means And a Decree was made accordingly Trin. 36. Eliz. In the Kings Bench. 1. IT was agreed by all the Iustices and Barons of the Exchequer upon an Assembly made at Serjeants-Inn after search made for the ancient Presidents and upon good deliberation taken If a man have two houses and inhabit somtimes in one and somtimes in the other if that House in which he doth not then inhabity be broken in the night to the intent to steal the Goods then being in his house that this is Burglary although no person bee then in the House and that now by the new Statute made such an Offender shall not have his Clergy for before the Statutes were made which take away Clergy in case of Burglary where any person was put in fear no mention was made in the Inditements of Burglary that any person was in the House But it was generall that the house of such a one Noctanter fregit and such Goods then there Felonice cepit And the breaking of a Church in the night to steal the Goods there is Burglary although no person be in it because this is the place to keep the Goods of the Parish And in the same manner the house of every one is the proper place to preserve his Goods although no person be there And that the Law was alwaies so it is to be collected by the course of the Statutes therof made for first the Statute of 23 H. 8. doth not take Clergy from any in case of Burglary unlesse some of the same Family be in the house and put in fear And in 5 Eliz. 6. The Offendor shall be ousted of his Clergy if any of the Family be in the house be they sleeping or waking And these Statutes were the cause that it was used of late time to put in the Inditements of Burglary that some person of the Family was then in the house to put them from their Clergy But this doth not prove that it shall not be Burglary but where some person was in the house and by 18 Eliz. Clergy is taken away in all cases of Burglary generally without making mention of any person to be there which enforce the resolution aforesaid and according to it they all agreed hereafter to put it in Execution Finch versus Riseley 2. IN this Term the case betweeen Finch and Riseley was in question before all the Iustices and Barons for this assembled at Serjeants-Inn in Fleetstreet where after Arguments heard by the Councell of the parties upon this point only If the Queen make a Lease for years rendring Rent with a Proviso that the Rent be not paid at the day limited that the Lease shall cease without making mention that it was to be paid at the receit whether the Lease shall cease upon the default of payment before Office found therof And by Periam and some of the Iustices the Lease stall not cease untill an Office be found of the default because it is a matter in Fait which determines it to wit the not-payment And by Gawdy it shall be taken as if it had been for the not-payment that the Proviso had been that the Lease shall be forfeited In which case it is not detennined untill Re-entry made for the forfeiture which in the Queens case ought alwaies to be by Office which countervails the re-entry of a common person As where the Queen makes a Lease rendring Rent and for default of payment a Re-entry albeit the Rent be not paid yet untill Office found therof the Rent continues Popham Anderson and the greater part of the Iustices and Barons resolved that it was cleer in this case that Ipso facto upon the default of payment the Lease was determined according to the very purport of the contract beyond which it cannot have any beeing and therfore there needs no Office in the case But where it is that it shall be forfeited or that he shall re-enter there untill advantage taken of the forfeiture in the one case or untill re-entry made in the other case the Term alwaies continues by the contract And where in the case of a common person there is need of a re-entry to undo the Estate there in the case of the King there needs an Office to determine the Estate for an Office in the Kings case countervails an entry for the King in person cannot make the entry And upon this resolution of the greater part of the Iustices in Mich. Term 31 32 Eliz. the same case was in question in the Office of Pleas in the Exchequer between the said Moil Finch Plaintiff and Thomas Throgmorton and others Defendants and there adjudged by Manwood late chief Baron and all the other Barons unanimously after long argument at the Bar and Bench that the Lease was void upon default of payment of the Rent according to the Proviso of the Lease and this immediatly without Office for the reasens before remembred upon which Iudgment was given a Writ of Error was brought before the Lord Keeper of the great Seal and the Lord Treasurer of England where it long depended and after many arguments the Iudgment given in the Exchequer by the advice of Popham and Anderson was affirmed and that upon this reason for the Proviso shall be taken to be a limitation to determine the Estate and not a Condition to undo the Estate which cannot be defeated in case of a Condition but by entry in case of a common person and but by Office which countervails an entry in the case of the Queen And this Iudgment was so affirmed in Mich. Term 36 37 Eliz. Smiths Case 3 IT was found by Diem clausit extremum after the death of Richard Smith that in consideration of a marriage to be had between Margaret Smith and William Littleton a younger Son to Sir John Littleton Knight and of 1300. marks paid by the said Sir John to the said
the now Tenant Henry Gee as is before alledged and that the said Henry was then seised of the said Tenements in Fee in right of the said Eliz. then his wife and although that he alledge the said severall Feoffments to be made by Deeds indented with the reservation as aforesaid yet it is not mentioned in the Replication that he shews forth the Deeds wherby the reservation was made To which the Tenant by way of Rejoynder shew the Feoffment made by the said Eliz. Shalcroft to the said William Greenditch wherby he was seised at the time of the payment of the said Rent at the said Feast of the Annunciation of our Lady and traverse Absque hoc that the said Henry Gee was therof then seised in right of his wife in manner and form wherupon it was demurred in Law and adjudged by the Justices of Assise at Lancaster that the Plaintiff should be barred wherupon the Tenants have now brought their Writ of Error And by Popham and Clench the Iudgment is to be affirmed First because that the acceptance of the said Rent had been by the hands of one who was to pay it to wit the Tenant himself yet this shall not bar the right of Intail in the said Robert Holme as a release of his right should do but this acceptance shall only foreclose him of his Action to demand the Land during his life and therfore the right which the said Robert had being barred by the Fine the Son is without remedy for the Son shall never have remedy upon the Fine levied in time of his Father the five years after the Proclamations being passed But in case where the right begin first to be a right in the Son and not where there was right in the Father And further it seemed to them that the payment of him who had not any thing in the Land at the time of the payment as here shall make no conclusion to him who accept it because this payment is as none in Law And by them the Rejoynder of the Traverse Absque hoc that Henry Gee was seised at the time of the payment in Fee in right of his said Wife in manner and form as in the Replication is ailedged is good enough for he traverseth that which the Demandant hath specially alledged to destroy the Bar and contrary to that which is alledged it shall not be intended that they had other particular Estate at the time of the payment which may make the payment to be good And albeit the Traverse had been Absque hoc that the said Henry was seised in right of his said Wife Modo forma prout the Demandant hath alledged without saying in Fee as it is pleaded here yet the Iury shall be put to find it if he were seised in Fee In jure Uxoris and not of any other particular Estate as in 12 E. 4. 4. A Feoffment is pleaded by Deed the other makes Title and traverseth Absque hoc that he enfeoffed Modo forma not shewing forth the Deed yet he who pleads the Feofment by Littleton shall give no other Feoffment in evidence then that which is pleaded by the Deed. And by 18 E. 4. 3. In Trespasse the Defendant justifies the entry and sowing of Corn because that M. was seised in Fee and sowed the Land and the Defendant as his Servant entred and cut it the Plaintiff saith that it was his Free-hold at the time of the sowing Absque hoc that it was the Free-hold of the said M. and per Curiam it is not good for such matter was not alledged by the Defendant but he ought to traverse the Seisin in Fee which was alledged and good and so it is good here But it seems to Clench that the Replication is not good because he doth not say by the Writing upon which the Reservation was made which concludes Robert by his acceptance Hic in Curia prolat as by Hill 15. E. 4. 15. If a man will bar a woman of her Action for her Land after the death of her Husband by Feoffment made by the Baron and Feme during the Coverture by Deed rendring Rent by reason of acceptance of the said Rent after the death of the husband he ought to shew the Deed and say Hic in Curia prolat or otherwise the Plea is not good because that in such a case albeit it were a Gift in Tail the wife shall not be concluded by her acceptance unlesse that the Gift were by Deed. Popham True it is in case the party will demur upon it but suppose in this case the Tenants had expresly acknowledged the said Feoffments and then concluded afterwards as they have done here shall they afterwards take advantage of not shewing the Deed I think that not no more here where they admit it and plead the other matter to avoid the conclusion for if a double Plea be pleaâ—ed if the other party demur upon it he shall take the advantage of the doublenesse But if he passe it over and they proceed in pleading upon another point the doublenesse is gone And Fennor said that the right which is intended to be saved within the first branch of the Statute of 4 H. 7. is that upon which the party may pursue his Action or enter for his remedy the which the said Robert could not do in when the Fine was levied because he had accepted the Rent but the first right which was in such a case was that in the Demandant Stroud versus Willis 9. IN Debt upon an Obligation of 40 l. by William Stroud Plaintiff against John Willis Defendant the Condition wherof was If the said Willis his Heirs Executors or Assigns should pay or cause to be paid yearly to the said William Stroud the Rent or summ of 37 l. 10 s. of lawfull money at the Feasts of S. Michael and the Annuntiation by equall portions according to the Tenor true intent and meaning of certain Articles of agreement indented made between the said parties of the same date that the Obligation was that then the Obligation shall be void and the Defendant shews the Articles which were thus to wit that the said William Stroud had demised to the Defendants all such Tenements in Yeatminster of or in which the said William then had an Estate for life by Copy Anglice Copie des except according to the custom of the Mannor of Yeatminster from the Annunciation of our Lady then last past for forty years if the said William should so long live rendring yearly to the said William 37 l. 10 s. of lawfull money at the Feasts of S. Michael and our Lady by equal portions under the East-gate of the Castle of Taunton in the County of Somerset c. with divers things comprised in the said Articles To which points the Defendant pleaded that at the time of the making of the said Articles the Plaintiff had not any Estate in the Tenements in Yeatminster aforesaid for tearm of his life by Copy
Issue a Son which selleth this Remainder and afterwards I. S. dyed this Son being his Heir notwithstanding his Sale he shall have this Remainder not his Grantee because it was not in him at the time of his Grant but by a matter which cometh Ex post facto to wit the death of his Father and afterwards Iudgment was given in the first case that the Grantee shal have the term granted to him by the Husband and that the Wife shall not have the term during this Leese Hunt Versus Gateler Mich. 34. and 35 Eliz. in Commun Banco IN a Replevin between Hunt Plaintiff and Gateler Avowant in the Common Pleas which was adjorned for difficulty into the Exchequer Chamber the Case was thus Tenant in tail Remainder in Fee he in Remainder in Vide this case Cook lib. 1. 61. by the name of Capeâ—s case Fee grants a Rent-charge in Fee out of the same Land to begin after the Estate tail determined Tenant in Tail suffer a common Recovery with a Voucher over to the use of the sayd Hunt in Fee and dyed without Issue inheritable to the intail and whether Hunt shall now hold the Land charged with the Rent was the question and after that it had long depended and was many times argued in the Common Pleas and Exchequer Chamber at Hertford Term it was at last resolved by all the Iustices and Barons unanimously that the sayd Rent charge wss gone by the Recovery although the Estate tail was expired because that he which is in is in under this Intail And therefore Popham sayd suppose thâ—t the Tenant in tail himself before the Recovery had granted a Rent charge out of the same Land or had made a Lease for yeers or had acknowledged a Statute all those had been good and to be executed against him which cometh in under the Recovery notwithstanding that the Estate tayl had been determined for want of an heir inheritable to the intail for he which recovereth cannot lay that he against whom he recovered had but an Estate in tail and if his Lease remain yet good as all agreed it did how can the Lease a Rent granted by him in the Remainder be good also for the one and the other cannot stand together and therefore all the Leases Charges or Statutes acknowledged or made by him in the Remainder are gon and avoided by the Recovery had against Tenant in tail To which opinion all the other agreed and Popham sayd further That he in the Remainder upon an Estate tail cannot by any means plead to defend his Remainder unless the Tenant will as by vouching of him and therefore shall be bound by the Act of Tenant in Tail where the Estate it self is bound as here it is by the Voucher and then they which come in by him in the Remainder by way of Lease Charge or Statute which are not so much favoured in Law as Tenant in tail himself be in better condition then he in the Remainder himself is for he in the Remainder upon an Estate tail cannot put more into the Mouth of the Lessee or Grantee to defend their Estates then he himself could have to defend his Remainder and this is the reason that such a Termer or Grantee shall never falsifie the Recovery had against Tenant in tail as the Grantee or Termer shall do which cometh in under Tenant in tail against whom the Recovery was had for there as the Tenant in tail may plead to defend his Possession and Estate so may his Termer or Grantee of a Rentcharge do for by the Demise or Grant made the Tenant in tail hath put all the Pleas into their mouthes for their Interests which he himself had to defend his Right and Possession which they may plead for the time to defend their Possessions and Rights as well as the Tenant in tail himself may do and this is the reason that such may falsifie Recoveries against their Lessors or Grantors if they be not had upon the meer right Paramount which he that cometh in by such a Remainder as before cannot do for such a one in Remainder cannot be received to defend his Right but his mouth is meerly foreclosed to do it and by the same reason are all those which come in by such men foreclosed to defend their Interests or Estates and upon this Audgement was given in the same Tearm in the common Pleas. Gibbons versus Maltyard and Martin IN an Ejectione firmae brought in the Kings Bench by John Gibbons Vide this case in Cook lib. 8. 130 Thetford Scholies case Plaintiff upon a Demise made by Edward Peacock the Son of Lands in Croxton in the County of Norfolk against Thomas Maltyard and John Martin upon a speciall verdict the case appeared to be thus to wit that Sir Richard Fulmerston Knight was seised of the sayd Lands amongst others holden in soccage in his Demesne as of Fee and being so seised by his last Will in Writing made 9 Eliz. Ordained that a Devise shall be made by his Executors that a Preacher shall be found for ever to preach the Word of God in the Church of Saint Maries in Thetford four times in the year and to have for his Labour ten shillings for every Sermon And further he devised to his Executors and their heirs certaine Lands and Tenements in Thetford aforesaid to this intent and upon this condition that they or the Survivor of them within seven years after his decease should procure of the Queens Highness to erect a free Grammar School in Thetford for ever to be had and kept in a house by them to be erected upon part of the sayd Land that they shal assure three of the said ienements for the house and Chamber of the Schoolmaster and Vsher and their Successors for ever and for the other tonement that they shall make an assurance of it for the Habitation of font poor people two men and two women for ever And for the better maintenance of the sayd Preacher Schoolmaster Vsher and Poore people he devised amongst others his sayd tenements in Croxton to his Executors for ten years for the performance of his Will and after this he devised them to Sir Edward Cleer and Frances his Wife the Daughter and Heir of the sayd Sir Richard and to the Heirs of the sayd Sir Edward upon Condition that if the sayd Sir Edward his Heires or Assignes before the end of the sayd ten years shall assure Lands or Tenements in possession to the value of five and thirty pounds a year to the sayd Executors or the Survivor of them their Heirs and Assignes or to such persons their heirs or Successors as his sayd Executors or the Survivor of them shall name or assigne for and towards the maintenance of the sayd Preacher Schoolmaster and Vsher in the sayd School house c. and for the releif of the sayd poor people in the one of the sayd houses according to the Ordinance as he
that it shall be then holden as if no Adjournment had been the Essâ—ines had been the first day of Tres Trin. and the full Term had not been untill the fourth day which was the last day of the Term quod nota and so it was of the Adjournment which hapned first at Westminster and afterwards at Hertford from Michaelmas Term now last past Michaelmas Term 35 and 36 Eliz. Gravenor versus Brook and others 1. IN an Ejectione firmae by Edward Gravenor Plaintiff against Richard Brook and others Defendants the case appeared to be this Henry Hall was seised in his Demesne as of Fee according to the custom of the Mannor of A. in the County of D. of certain customary Tenements holden of the said Mannor called Fairchildes and Preachers c. In the third year of Henry the 8th before which time the customary Tenements of the said Mannor had alwaies been used to be granted by Copy of Court Roll of the said Mannor in Fee-simple or for life or years but never in Fee-tail but then the said Henry Hall surrendred his said Copy-hold Land to the use of Joane his eldest Daughter for her life the remainder to John Gravenor the eldest Son of the said Joane and to the Heirs of his body the Remainder to Henry Gravenor her other Son and the Heirs of his body the Remainder to the right Heirs of the said Henry Hall for ever wherupon in 3 H. 8. at the Court then there holden a grant was made by Copy of Court Roll accordingly and Seisin given to the said Joane by the Lord accordingly Henry Hall died having Issue the said Joane and one Elizabeth and at the Court holden within the said Mannor 4 H. 8. the death of the said Henry Hall was presented by the Homage and that the said Daughters were his Heirs and that the Surrender made as before was void because it was not used within the said Mannor to make Surrenders of Estates tails and therupon the said Homage made division of the said Land and limited Fairchilds for the purparty of the said Joane and Preachers for the purparty of the said Elizabeth and Seisin was granted to them accordingly Elizabeth died seised of her said part after which 33 H. 8. Margaret her Daughter was found Heir to her and admitted Tenant to this part after which Joane dyed seised of the said Tenements as the Law will And after the said Margaret takes to Husband one John Adye who with his said wife surrendred his said part to the use of the said John Adye and of his said wife and of their Heirs and afterwards the said Margaret died without Issue and the said John Adye held the part of his said wife and surrendred it to the use of the said Richard Brook and of one John North and their Heirs who were admitted accordingly after which the said John Gravenor died without Issue and now the said Henry Gravenor was sole Heirs to him and also to the said Henry Hall who had Issue Edward Gravenor and dyed the said Edward entred into the said Lands called Preachers and did let it to the Plaintiff upon whom the said Richard Brook and the other Defendants did re-enter and eject him And all this appeareth upon a speciall Verdict And by Clench and Gawdy an Estate tail cannot be of Copyhold Land unlesse it be in case where it hath been used for the Statute of Donis conditionalibus shall not enure to such customary Lands but to Lands which are at common Law and therfore an Estate tail cannot be of these customary Lands but in case where it hath been used time out of mind and they said that so it hath been lately taken in the Common Bench But they said that the first remainder limited to the said John Gravenor here upon the death of the said John was a good Fee-simple conditional which is well warrantes by the custom to demise in Fee for that which by custom may be demised of an Estate in Fee absolute may also be demised of a Fee-simple conditionall or upon any other limitation as if I. S. hath so long Issue of his body and the like but in such a case no Remainder can be limited over for one Fee cannot remain over upon another and therfore the Remainder to the said Henry was void But they said that for all the life of the said John Gravenor nothing was in the said Elizabeth which could descend from her to the said Margaret her Daughter or that might be surrendred by the said Margaret and her Husband and therfore the said Margaret dying without Issue in the life time of the said John Gravenor who had the Fee-simple conditionall nothing was done which might hinder the said Edward Son to the said Henry Gravenor of his Entry and therfore the said Plaintiff ought to have his Iudgment to recover for they took no regard to that which the Homage did 4th year of Hen. 8. But Fennor and Popham held that an Estate tail is wrought out of Copy-hold Land by the equity of the Statute of Donis conditionalibus for otherwise it cannot be that there can be any Estate tail of Copyhold Land for by usage it cannot be maintained because that no Estate tail was known in Law before this Statute but all were Fee-simple and after this Statute it cannot be by usage because this is within the time of limitation after which an usage cannot make a prescription as appeareth 22 23 Eliz. in Dyer And by 8 Eliz. a Custom cannot be made after Westm 2. And what Estates are of Copyhold land appeareth expresly by Littleton in his Chapter of Tenant by Copyhold c. And in Brook Title Tenant by Copyhold c. 15 H. 8. In both which it appeareth that a Plaint lyeth in Copyhold Land in the nature of a Formedon in the Descender at common Law and this could not be before the Statute of Donis conditionalibus for such Land because that before that Statute there was not any Formedon in the Descender at common Law and therfore the Statute helps them for their remedy for intailed Land which is customary by equity Add if the Action shall be given by equity for this Land why shall not the Statute by the same equity work to make an Estate intail also of this nature of the Land We see no reason to the contrary and if a man will well mark the words of the Statute of Westm 2. cap. 1. he shall well perceive that the Formedon in Descender was not before this Statute which wills that in a new case a new remedy may be given and therupon sets the form of a Formedon in Descender But as to the Formedon in the Reverter it is then said that it is used enough in Chancery and by Fitzherbert in his Natura brevium the Formedon in the Descender is founded upon this Statute and was not at Common Law before And the reason is because these Copyholds are now become by usage to be
Defendant had nothing to do there the Defendant shall be excused But here it is expresly alledged that it fell by the weight put upon it which ought to be answered As if a man take an Estate for life or years in a ruinous house if he pull it down he shall be charged in Wast but if it fall of it self he shall be excused in Wast so there is a diversity where default is in the party and where not so here the Defendant ought to have taken good care that he did not put upon such a ruinous floor more then it might well bear if it would not bear any thing he ought not to put any thing into it to the prejudice of a third person and if he does he shall answer to the party his damages Collard versus Collard 5. IN an Ejectione firmae brought by Constantine Collard against Richard Collard the case appeared to be this Thomas Collard was seised in his Demesne as of Fee of Lands in Winkle in the County of Devon called the Barton of Southcote And having two Sons to wit Eustace the eldest and Richard the now Defendant the youngest and the eldest being to be married the said Thomas in consideration of this marriage being upon the said Barton said these words Eustace stand forth I do here reserving an Estate for my own life and my wives life give unto thee and thy Heirs for ever these my Lands and Barton of Southcote after which the said Thomas enfeoffed his youngest Son of Barton with warranty from him and his Heirs the eldest Son enter and let it to the Plaintiff upon whom the Defendant re-enter upon which re-entry the Action was brought and upon a speciall Verdict all this matter appeared But it was not found by the Verdict that the said Thomas Collard the Father was dead and therfore the Warranty was not any thing in the Case And it was moved by Heale that the Plaintiff ought to be barred because it did not passe by way of Estate in as much as a man cannot passe a Freehold of a Land from himself to begin at a time to come and by it to create a particular Estate to himself and in use it cannot passe because that by a bare parole and Vse cannot be raised and by giving my Land to my Son Cosin and the like nothing will passe without Livery for there is not consideration to raise an Vse Fennor The words shall be taken as if he had said here I give you this Barton reserving an Estate for my life although the words of reservation have priority in their time from the speaking of them because a reservation cannot be but out of a thing granted and therfore the reservation shall be utterly void or otherwise ought to be taken according to their proper nature to wit to be in their operation subsequent and so shall not hurt the Grant and therfore are not to be compared to the case where a man grant that after the death of I. S. or after his own death a stranger shall have his Land which Popham granted And Fennor said further that these words being spoken upon the Land as before amount to a Livery Gawdy said That the words as they are spoken amount to a Livery if the words are sufficient to passe the Estate but he conceived that the words are not sufficient to make the Estate to passe to the said Eustace because his intent appeareth that Eustace was not to have the Land untill after the death of him and his wife and therfore of the same effect as if he had granted the Land to the said Eustace after his death and as an Vse it cannot passe because by a bare word an Vse cannot be raised as appeareth in divers Reports Mich. 12 13 Eliz. which is a good case to this purpose But to say generally that an Vse cannot be raised or charged upon a perfect Contract by words upon good consideration cannot be Law and therfore it is to be considered what the Law was before the Statute of 27 H. 8. And I thinke that none will deny but that by grant of Land for money before this Statute an Vse was raised out of the same Land for a bargain and sale of Land for money and a grant of Land for money is all one and no difference between them And is not a grant of Land made in consideration of marriage of my Son and Daughter as valuable as a grant of it for money It is cleer that it is and much more valuable as my blood is more valuable to me then my money and therfore it is absurd to say that the consideration of money raise or change an Vse at Common Law and not such a consideration of marriage And in such a case at Common Law there was not any diversity that the party who so grant or hargain for the one or the other considerations was fâ—ised of the Land granted or bargained in use or possession but that the Vse by the Contract was transferred according to the bargain in both cases where there is a consideration And where through all the Law shall it be seen that of any thing which might passe by contract there need any other thing then the words which make the contract as writing or the like testifying it And that the Law was so it appeareth by the Statute of Inrolements of bargains and sales of Land made 27 H. 8. which enacts that no Freehold nor Vse therof shall passe by bargain and sale only unlesse it be by deed indented and enrolled according to the Statute Ergo if this Statute had not been it had passed by the bargain and sale by bare words and in as much as the Statute enacts this in case of bargain and sale only the other cases as this case here are as it was before at Common Law And by an exception at the end of the same Statute London is as it was at Common Law and therfore now Lands may passe there at this day by bargain and sale by word without deed for it is out of the Statute And how can we say that the Statute of Vses does any thing to alter the Common Law in this point by any intent of the makers therof wheras at the same Parliament they made an especiall Law in the case of bargain and sale of Lands And at this day for the Lands in London notwithstanding the Statute of Vses the Law hath been put in practice and alwaies holden as to the Lands there to be good if sold by bare Parole as it were at Common Law And I have heard it reported by Manwood late chief Baron of the Exchequer that it was in question in the time of King Edw. the 6th whether the use of a Freehold of Land will passe upon a Contract by Parole without Deed in consideration of marriage upon which all the then Iustices were assembled upon a doubt rising in a case hapning in the Star-chamber and then
to the use of Dennis May his Son and Heir apparant and his Heirs upon condition that the said Dennis and his Heirs should pay to one Petronell Martin for his life an annuall Rent of 10 l. which the said Thomas had before granted to the said Petronell to begin upon the death of the said Thomas And upon condition also that the said Thomas upon the payment of 10 s. by him to the said Feoffees or any of them c. might re-enter After which the said Thomas May and Dennis by their Deed dated 30. May 19 Eliz. granted a Rent-charge out of the said Mannor of 20 l. a year to one Anne May for her life after which the said Thomas May paid the said 10 s. to the said Feoffees in performance of the Condition aforesaid and therupon re-entred into the Land and enfeoffed a stranger And whether by this the Rent were defeated was the question And it was mooved by Coke Attorney-generall that it was not but that in respect that he joyned in the part it shall enure against the said Thomas by way of confirmation which shall bind him as well against this matter of Condition as it shall do against any Right which the said Thomas otherwise had And therfoâ—e by Littleton If a Disseisor make a Lease for years or grant a Rent-charge and the Disseisor confirm them and afterwards re-enters albeit Lit. there makes a Quaere of it yet Cook said That the Disseisor should not avoid the Charge or Lease which was granted by the whole Court And by him the opinion is in P. 11. H. 7. 21. If Tenant in Tail makes a Feoffment to his own use upon Condition and afterwards is bound in a Statute upon which Execution is sued and afterwards he re-enter for the Condition broken he shall not avoid the Execution no more the Rent here Fennor agreed with Cook and said further That in as much as every one who hath Title and Interest have joyned in the Grant it remains perpetually good And therfore if a Parson at Common Law had granted a Rent-charge out of his Rectory being confirmed by the Patron and Ordinary it shall be good in perpetuity and yet the Parson alone could not have charged it and the Patron and Ordinary have no Interest to charge it but in as much as all who have to intermeddle therin are parties to it or have given their assent to it it sufficeth Gawdy was of the same opinion and said That there is no Land but by some means or other it might be charged and therfore if Tenant for life grant a Rent-charge in Fee and he in the Reversion confirm the Grant per Littleton the Grant is good in property so here To which Clench also assented but Popham said That by the entry for the Condition the Charge is defeated And therfore we are to consider upon the ground of Littleton in his Chapter of Confirmation to what effect a Confirmation shall enure and this is to bind the right of him who makes the Confirmation but not to alter the nature of the Estate of him to whom the Confirmation is made And therfore in the case of a grant of a Rent-charge by the Disseisor which is confirmed by the Demisee the reason why the Confirmation shall make this good is because that as the Disseisee hath right to defeat the right and the Estate of the Disseisor by his Regresse in the same manner hath he right therby to avoid a Charge or a Lease granted by the Disseisor which Right for the time may be bound by his confirmation But when a man hath an Estate upon condition although the Feoffor or his Heirs confirm this Estate yet by this the Estate is not altered as to the Condition but it alwaies remaineth and therfore Nihil operatur by such a confirmation to prejudice the Condition And so there is a great diversity when hewho confirmeth hath right to the Land and where but a Condition in the Land And by him if a Feoffee upon condition make a Feoffment over or a Lease for life or years every one of these have their Estates subject to the Condition and therfore by a Confirmation made to them none can be excluded from the Condition And the same reason is in case of a Rent granted by a Feoffor upon Condition it is also subject to the Condition and therfore not excluded from it by the Confirmation as it shall be in case of a Right And to prove this diversity suppose there be Grand-father Father and Son the Father disseise the Grand-father and makes a Feoffment upon Condition and dies after which the Grand-father dies now the Son confirms the Estate of the Feoffee by this he hath excluded himself from the Right which descended to him by his Grand-father but not to the Condition which descended to him from his Father And of this opinion were Anderson and other Iustices at Serjeants-Inn in Fleetstreet for the principall Case upon the Case moved there by Popham this Term And as the case is it would have made a good question upon the Statute of Fraudulent Conveyances if the Avowry had been made as by the grant of Thomas May in as much as the Estate made to the use of Dennis was defeasable at the pleasure of the said Thomas in as much as it was made by the Tenant of the Land as well as by him who made the Conveyance which is to be judged fraudulent upon the Statute But this as the pleading was cannot come in question in this case And afterwards by the opinion of other three Iudges Iudgment was given that the Grant should bind the said Thomas May and his Feoffees after him notwithstanding his regresse made by the Condition in as much as the Grant of the said Thomas shall enure to the Grantee by way of confirmation And by Gawdy If a Feoffee upon Condition make a Feoffment over and the first Feoffor confirm the Estate of the last Feoffee he shall hold the Land discharged of the Condition because his Feoffment was made absolutely without any Condition expressed in his Feoffment But Popham denied this as it appeareth by Littleton Tit. Descents because he hath his Estate subject to the same Condition and in the same manner as his Feoffor hath it into whomsoever hands it hapneth to come and therfore the Confirmation shall not discharge the Condition but is only to bind the right of him who made it in the possession of him to whom it is made but not upon Condition Morgans Case 7. RObert Morgan Esquire being seised in his Demesne as of Fee of certain Lands called Wanster Tenements in Socage having Issue John his eldest Son Christopher his second Son and William his youngest Son by his last Will in writing demised to the said Christopher and William thus viz. Ioyntly and severally for their lives so that neither of them stall alienate the Lands and if they do that they shall remain to his Heirs Robert the Father
Richard he made assurance by Fine of his Lands being 174 l. a year viz. Of part therof of the value of 123 l. a year of which part was holden of the Queen by Knights Service in Capite to the use of himself for his life and after his decease to the use of the said William and Margaret and the Heirs of the body of the said William begotten on the body of the said Margaret and for default of such Issue to the use of the right Heirs of the said William And of the residue therof being also holden in Capite of the Queen to the use of himself for his life and after his decease to the use of the first Issue Male of the said Richard and to the Heirs Males of his body and then to other Issues of his body and for default of such Issue to the said William and Margaret and the Heirs of the body of the said William on the body of the said Margaret lawfully begotten and for default of such Issue to the right Heirs of the said William with this Prouiso That it shall be lawfull for the said Richard to make a Joynture to his wife of the Lands limited to his Issue Males and for making of Leases for 21. years or three lives for any part of the said Land rendring the ancient Rent except of certain parcels and that William died without Issue and that Gilbert Littleton was his Brother and Heir and that the said Margaret married the said George Littleton youngest brother to the said William which are yet living And that the said Richard married Dorothy and made her a Joynture according to the Proviso And that the said Richard had Issue Iohn Smith and died the said Iohn being his Son and Heir and within age After which a Melius inquirendum issued by which it was found that the said Margaret was the Daughter of the said Richard and that the said Land was of the value of 12000 l. at the time of the assurance And how much of the Land shall be in ward and what Land and what the Melius inquirendum makes in the case was the question put to the two chief Iustices Popham and Anderson who agreed that the Queen now shall have the third part as well of that which was assured to William and Margaret immediatly after the death of the said Richard as of that which was limited to Dorothy for the life of the said Margaret for although money were paid yet this was not the only consideration why the Lands were assured but the advancement of the Daughter and now by the surviving of the said Margaret shee shall be said to be in the whole which was assured to her by her Father and for her advancement and the Land as it appears was of greater value then the money given and may as well be thought to be given for the Remainder of the Fee And agreeable to this was the case of Coffin of Devonshire about the beginning of the Raign of the now Queen which was that the said Coffin for moneys paid by one Coffin his Cosin having but Dâ—ughters himself conveyed his Land to the use of himself and his wife and to the Heirs Males of his body and for default of such Issue to the use of his said Cosin and his Heirs for which his said Cosin was to give a certain sum of money to the Daughters for their marriage Coffin dies his said Daughters being his Heirs and within age and were in ward to the Queen the Lands being holden by Knights Service in Capite And the third part of the Land was taken from the wife of Coffin for the life of the said wife if the Heirs continue so long in Ward And it was also agreed by them and the Councell of the Court that the Melius inquirendum was well awarded to certifie that the said Margaret was the Daughter of the said Richard of which the Court could not otherwise well take Conusance for they thought that it was not matter to come in by the averment of the Attorney-generall as Dyer hath reported it But now by the Statute it ought to be found by Inquisition and being a thing which stands with the former Inquisition it ought to be supplied by the Melius inquirendum for the same Statute which gives the Wardship in case where Land is conveyed for the advancement of the Wife or Infants or for the satisfaction of Debts and Legacies of the party by the implication of the same Statute this may be found by Inquisitton and if it be omitted in the Inquisition it ought to be found by a Melius inquirendum but not to come in by a bare surmise And therfore if in the Inquisition it be found that the Ancestor had conveyed his Land by the Melius inquirendum it may be found that it was for the payment of his Debts or Legacies or that the party to whom or to whose use it was made was the Son or Wife of the party that made it and that by the very purport of the Statutes 32. 34 H. 8. as by Fitzherbert if it be surmised that the Land is of greater value then it is found a Melius inquirendum shall issue and so shall it be if it be found that one is Heir of the part of the Mother but they know not who is Heir of the part of the Father so if it be not found what Estate the Tenant had or of whom the Land was holden so upon surmise made that he is seised of some other Estate or that he held it by other Services by Fitzherbert a Melius inquirendum shall Issue and upon this order given it was decreed accordingly this Term. Morgan versus Tedcastle 4. IN the same Term upon matter of Arbitrement between Morgan and Tedcastle touching certain Lands at Welburn in the County of Lâ—ncoln put to Popham Walmesley and Ewens Baron of the Exchequer Wheras Morgan had granted to Tedcastle a 100. acres of Land in such a field and 60 in such a field and 20. acres of Meadow in such a Meadow in Welburn and Hanstead in which the acres are known by estimations or limits there be shall take the acres as they are known in the same places be they more or lesse then the Statute for they passe as they are there known and not according to the measure by the Statute But if I have a great Close containing 20. acres of Land by estimation which is not 18. And I grant 10. acres of the same Close to another there he shall have them according to the measure by the Statute because the acres of such a Close are not known by parcels or by meets and bounds and so it differeth from the first case And upon the case then put to Anderson Brian and Fennor they were of the same opinion Quod nota Humble versus Oliver 5. IN Debt by Richard Humble against William Oliver for a Rent reserved upon a Lease for years the case was
35 E. Rot. 258. And Popham said further in this case that to erect an Hospitall by the name of an Hospitall in the County of S. or in the Bishopprick of B. and the like is not good because he is bound to a place too large and incertain But a Colledge erected in Accademia Cantabrig or Oxon. is good and sâ—me are so founded because it tends but to a particular place as a City Town c. King versus Bery and Palmer 2. IN an Ejectione firmae brought by William King against John Bery and William Palmer Defendants for two Messuages and certain Lands in Halstead in the County of Leicester upon a Demise alledged to be made by Dorothy Pool and Robert Smith the case upon a speciall Verdict was this The said Dorothy was Tenant for life of the said Tenants the Remainder over to the said Robert Smith and his Heirs and they being so seised made the Lease in the Declaration upon which the Action was brought And per curiam the Lease found by the Verdict doth not warrant the Lease alledged in the Declaration for although they joyned in the Demise yet during the life of the said Dorothy it is her Demise and not the Demise of the said Robert Smith but as his confirmation for that time for he hath nothing to do to meddle with the Land during the life of the said Dorothy but after the death of the said Dorothy then it shall be said to be the Domise of the said Robert Smith and not before because untill this time Smith hath nothing to do to meddle with the Land And in a more strong case If Tenant for life and he in the Reversion in Fee make a Gift in tail for the life of Tenant for life it shall be said to be his Gift but after his death it shall be said the Gift of him in the Reversion and if the Estate tail had expired during the life of the said Tenant for life he shall have the Land again in his former Estate and there shal be no forfeiture in the case because he in the Reversion of the immediate Estate of Inheritance had joyned in it and therfore hath dispensed with that which otherwise had been a meer forfeiture of the Estate for life wherby it was awarded by the Court that the Plaintif take nothing by his Bill in 33 34 Eliz. Rot. And the Judgment is entred Hill 34. Eliz. Ret. 72. 3. In this Term I hapned to see a Case agreed by the Iustices in 3. 4. Eliz. which was this If a man make a Lease of two Barns rendring Rent and for default of payment a Re-entry if the Tenant be at one of the Barns to pay the Rent and the Lessor at the other to demand the Rent and none be there to pay it that yet the Lessor cannot enter for the Condition broken because there was no default in the Tenant he being at one for it was not possible for him to be at both places together And upon this Case now remembred to the Iustices Popham Walmesley and Fennor said That perhaps also the Tenant had not money sufficient to have been ready to have paid it at either of the said places but it is sufficient for him to have and provide one Rent which cannot be at two places together And by the Case reported here also If Lands and Woods are demised together the Rent ought to be demanded at the Land and not the Woood because the Land is the more worthy thing and also more open then the Wood And therfore by the three Iustices aforesaid Rent ought not to be demanded in any private place of a Close as amongst Bushes in a Pit or the like nor in the open and most usuall passage therof as at a Stile Gate and the like 4. Vpon a Prohibition sued out of the Kings Bench the Case appeared to be this The late Lord Rich Father to the now Lord Rich devised to his Daughter for her advancement in marriage 1500. upon condition that she marry with the consent of certain friends and deviseth further that if his Goods and Chattels are not sufficient to pay his Debts and Legacies that then there shall be 200 l. a year of his Lands sold to supply it and dies making the now Lord Rich his Executor his Goods and Chattels not being sufficient to pay the Debts of the Testator as was averred the said Daughter married with a Husband against the will of those who were put in trust to give their assents and the Husband and the Wife sued in the Spirituall Court for the Legacy And it was surmised that they would not allow the proofs of the said now Lord Rich exhihited to prove the payment of the Debts of his Testator and further that they would charge him for the sale of the Land upon which matter the Prohibition was granted to the Delegates before whom the matter depended and now consultation was prayed in the case Vpon which it was affirmed by a Doctor of the Civill Law that they will allow the proofs for the payment of the Debts according to our Law and that the Legacy shall not be paid untill the Debs are satisfied But he said that by the Law if the Executor do not exhibit his Inventory but neglect it for a year or more that then if any omission or default be in the true value of the Inventory exhibited that then such on Executor for this default shall pay all the Legacies of his Testator of what value soever they are not respecting the Debts or the value of the Goods or Chattels how small soever the omission or default be in the Inventory And so he said was the case of the now Sir Richard S. who did not bring in the Inventory for four years after the death of the Testator and that in the Inventory exhibited the values of every thing were found to be too small and therfore to be charged by their Law albeit he hath not Goods and Chattels sufficient of the Testators To which it was answered that this was quite without reason for by such means every Subject of the Realm may be utterly defeated if he take upon him the charge of an Executorship And if this shall be admitted no man will take upon him the Execution of the Will of any and by such a means none will have their Wills performed which shall be too inconvenient And they said further that in as much as Debts are to be proved by the Common Law of the Realm those of the Ecclesiasticall Courts ought to admit in the proof therof such proofs as our Law allows and not according to the precisenesse of their Law And although by their Law such a Condition as before being annexed to a Legacy is void because that marriage oughr to be free without Coercion yet where we are to judge upon the point as we are here if the Execution happen to be charged because of the sale of Land and for
said Queen her Heirs and Successors for ever which Deed was acknowledged the 25th day of March 32 Eliz. and enrolled in the Chancery the 12th day of May in thâ— same year And there was a Proviso in the same Deed that if the said Robert Bret shall pay to the Queen at the receipt of the Exchequer 5 s. of lawfull money that then the said Gift Grant Bargain and Sale shall be void and that from thence-forward it shall be lawfull for the said Robert Bret and his Heirs to re-enter into the said Tenements and in the mean time between the Inrolement of this Deed And the said 14th day of Octob. to wit the 15th day of September 32 Eliz. the said Arthur upon the said Tenements in North-petherton entred and claimed the Reversion therof in the right of the said Elianor his wife by reason of the death of the said Christian And that afterwards to wit the 30th day of February 33 Eliz. the said Robert Bret to redeem the said Tenements out of the Queen paid the said 5 s. at the receipt of the Exchequer which payment is there recorded and enrolled accordingly after which in September 34 Eliz. the said Arthur and Elianor sued out a speciall Livery of the said Elianor out of the hands of the Queen of all the Lands seised into the hands of the Queen by reason of the Nonage of the said John Mallet And afterwards in the same meneth of September 34 Eliz. the said Arthur and Elianor sued out another speciall Livery as Heir to the said Christian of all the Lands which were in the Queens hands by the death of the said Christian And it was further found that the said John Clark and Elianor Middleton died after the 5 s. paid as before and that the said Robert Bret entred the 8th day of October 34 Eliz. and then made the Lease to the Plaintiff upon which the Defendant by commandment of the said Arthur and with him entred upon the Plaintiff and the generall question was Whether the entry of the Defendant were lawfull But no ouster of the Plaintiff was found And by Clench and Fennor a Fee-simple passe at Common Law by a Fine levied by him in Reversion or Remainder in Tail because a Fine is said to be a Feoffment of Record and by their entry and Feoffment a Fee-simple passe in such a case at Common Law But by Popham and Gaudy a Fee-simple doth not passe nor nothing but that which Tenant in Tail may lawfully grant over which is for his life in which he said that Littleton was plain in all cases of Grant although it be by Fine and a Fee-simple does not passe at Common Law but where the Fee may be drawn out of him who had the Reversion or Remainder in Fee therupon if such a Reversion or Remainder had been in a stranger which had not been in this case if the Reversion or Remainder had been in a stranger and therfore a Discontinuance cannot be of an Intail where the Reversion or Remainder is in the King But by them all however it was at Common Law it is cleer upon the Statute of Fines that a Fee-simple determinable passe by such a Fine as soon as the Fine is levied because every Fine by presumption of Law shall be taken to be such wherupon proclamation is made untill the contrary therof appeareth to the Court. And this is the reason why a Quid juris clamat is at this day maintained upon such a Fine which was not at Common Law before this Statute or otherwise it will never lye And so it was holden lately in the Common Bench in the case of Iustice Wimondham and yet we may see that the Quid juris clamat ought to be brought before that the Fine be engrossed wherby it is manifest that now a Fee-simple shall passe by the Fine levied for the possibility of the Proclamations to wit that the Proclamations shall not be made and to this Fee-simple the Proclamations shall enure to make a bar to the Estate-tail But such a Fine by Popham and Gawdy was not any wrong to him who had the Reversion or Remainder in Fee being levied by him who had a mean Reversion or Remainder in Tail depending upon an Estate for life or in Tail precedent And it is cleer that the Proclamations do not make the Estate but enure to the Estate made by the Fine for if an Estate be granted in Reversion for life or in Tail by Fine with Proclamations by such a Tenant in Tail in Reversion or Remainder the Proclamations work to this Estate and no further for alwaies the Estate passe by the Fine and the Proclamations make the Bar according to the Estate which passe by the Fine before But by Clench Gawdy and Fennor the Fee-simple which was in the Queen after the Fine levied as before was divested by means of this claim made upon the possession of the Queen lo that the Proclamations following are of no force to hurt the Estate tail for they said in divers cases a possession may be invested out of the Queen without Office Petition or Monstrans de droit as the case is where a man devise that his Land shall be sold and in the mean time before the sale the possession of the Land cometh to the Queen and afterwards the Land is sold according to the Will the Vendee enter there the Land passe from the Queen therby and is divested and so in many other cases And in all cases where the Queens Estate is determined the Subject may enter into the Land without Office or Ouster le main c. And they said if it had been in the possession of a common person that by such a claim the force of the Fine had been defeated and this appeareth by the case between Smith and Stapleton in the Commentaries where it is holden that where a Fine is levied with Proclamations by Tenant in Tail of an Advowson Rent or Tithes by claim made by the Issue in Tail before the Proclamations are passed where the Tenant in Tail is dead the same is defeated and that the Proclamations passing afterwards shall not be of force to bar the Intail And they said that the conveyance therof to the Queen after the Fine levied doth not make it to be in worse case And admit it will not serve against the Queen yet the claim will serve against Bret when he had entred by the performance of the Condition And Clench and Gawdy said that Bret shall not take advantage of this covenous Deed made by himself of very purpose to bar the party who had right and to put him without remedy no more then where the Disseisor enfeoff his Father who dies seised he shall not take advantage of this descent or if he who hath cause of Action to recover Lands by Covin causeth another to enter into the Lands to the intent to recover against him and does it accordingly for the Covin the Recovery shall
to Charles late Lord Sturton Father to the said Iohn Lord Sturton and the said Charles Lord Sturton disseised the said Lady Sturton and levied a Fine of the said Land to Cottington and his Heirs with Proclamations according to the Statute and warranted it against him and his Heirs And the said Lord Charles dyed before the Proclamations past and the Warranty descended upon the said John Lord Sturton after which and before the Proclamations past the said Lady Sturton entred upon the said Cottington after which the said Lady died and after her death and all the Proclamations past the said John Lord Sturton as Heir in Tail entred and made the Lease to the said Okes upon whom Cottington the Defendant entred as under the right of the said Cottington the Conusee And I perceiving the Court strongly to incline upon the matter of Warranty that it shall bar the entry of the Heir and make a discontinuance against him according to the inference which is taken by Littleton in his Chapter of Discontinuance because the truth was and so acknowledged to the Court although it were omitted in the Verdict that the said Charles Lord Sturton was attained of Felony and Murther and so the blood corrupted between the said Charles and John Lord Sturton wherby in a new Action the Garranty had not hurt the Title of the said Lord John I then moved the Court upon the other point of the Fine with Proclamations and the Court also agreed in this point if the Warranty had not been that yet the Fine with Proclamations shall bar the said John Lord Sturton notwithstanding the entry made by the Lady Sturton were before the Proclamations past because that notwithstanding his regresse made the Reversion remains in Cottington not defeated by his regresse in respect of the Statute whch makes that the Fine remains effectuall against the Heir in Tail if nothing be done by him to undo it before the Proclamations past as by claim regresse and the like but the Act of a stranger shall not help him wherby Iudgment being therupon given against the said Okes the said John Lord Sturton stood satisfied and the Cottingtons enjoy the Land to this day wheras if this opinion of the Court had not been on a new Action the said Sir John might have been relieved against the Warranty And Gaudy said that this was a very good Case for the point upon the Statute in this case Earl of Shrewsbury versus Sir Thomas Stanhop 8. GIlbert Earl of Shrewsbury brought a Scandalum Magnatum against Gilbert Earle of Shrewsbury against Sir Thomas Stanhop in a Scandalum Magnatum Sir Thomas Stanhop Knight and it was upon the Statute Tam pro Domina Regina quam pro seipso c. For that communication was had between the said Sir Thomas and one Francis Fletcher of divers things touching the said Earl the said Francis at such a day and place said to the said Thomas My Lord the said Earl meaning is a Subject innuendo that the said Earl was a Subject of the now Queen the said Sir Thomas then and there said of the said Earl these slanderous words to wit he intending the said Earl is sorry for that meaning that the said Earl was sorry that he was then a Subject to our said Soveraign Lady the Queen that is his grief meaning that it was grief to the said Earl that the said Earl was Subjâ—ct to the Queen to the damage of the said Earl of 20000 l. To which the said Sir Thomas Stanhop said that a question was formerly moved between the said Earl and the Defendant touching the subversion and drawing away of certain Weares heretofore erected by the said Sir Thomas at Shelâ—ord in the said County of Nott. where the Action was brought to oust the River of Trent there that for the subversion therof a Petition was exhibited to the privy Councell of the Queen before the speaking of the said words by certain Inhabitants of the County of Lincoln and divers other places not known to the Defendant with the privity allowance and knowledge of the said Earl which Petition at the time of the speaking of the said words depended before the said Councell not determined wherupon at the day and place comprised in the Declaration there was Communication between the said Defendant and the said Francis Fletcher concerning their purpose to have the said Wears subverted and touching the said Petition upon which the said Francis said to the said Defendant the matter meaning the Petition aforesaid hanging undetermined before the Councell aforesaid is to be heard before the privy Councel meaning the aforesaid Councell of the Queen and what their Honours meaning the Councell aforesaid determine my Lord the aforesaid Earl meaning will willingly obey To which the said Francis then there answered saying My Lord the aforesaid Earl meaning is a Subject upon which the said Defendant they then having speech as well of the said Petition as of the order therupon to be taken by the said Councell answered saying the words comprised in the Declaration meaning that he was sorry and grieved that he was subject to the order to be made upon the Petition aforesaid by the said Councell and averred that this was the same speech upon which the Action was grounded upon which it was demurred in Law and for cause shewn according to the Statute it was alledged that the bar was defective because it is not alledged at what place nor by whom nor against whom the Petition was exhibited and also because that by the Bar the matter of the Declaration is not confessed avoided or traversed and also that the Bar was insufficient And it seemed to Fennor that the matter of the Bar had been sufficient if it had been well pleaded but the Plaintiff alledgeth the words to be spoken in one sence in the Affirmative and the Defendant shews matter also in the Affirmative which proves the words to be spoken in another sence then the Declaration imporrs and two Affirmatives can never make a good Issue and therfore the Defendant ought to have taken a traverse to that which is comprised in the Declaration and for want of this traverse the plea in Bar is not good Gawdy said that the Bar is not sufficient neither in matter nor form not in matter because that wheras Fletcher said that the said Earl was a Subject this can have no other sence but that he was a Subject to the Queen in his Allegiance and her Soveraignty and so much is drawn out of the course of their former speech and therfore the answer which the Defendant made to it refers to his subjection of alleagiance and not to the matter of obedience which he owed to the order of the said Councell and if it cannot have any other sence in good understanding he cannot help himself now by an Innuendo which is in it selfe according to common intendment contrary to that which the nature of the words
time to come and therfore by this exposition much more to the disinherison of the Heir then it was before the making of this Statute And which is more mischievous if a Feme putein happen to be in such a house who happen to have Children in Adultery these Bastards shall have the Land against the will of the Father to the utter disinherison of the true Heirs and against the intent of him who made the limitation by which we may see the just Judgment of of God upon these who attempt by humane pollicy to circumvent the divine providence of God for the time to come and of this also I have seen an example And now to the mischief that men do not know against whom to bring their Actions to sue for their Rights and it is cleer that now by such an exposition they shall be now in much worse condition then they were before for before the Action was given against him who received the Profits which is now gone by this Statute in the cases of Free-hold and therfore if the other exposition shall hold place it is cleer that untill the Statute of 13 Eliz. men might have been by means of this Statute put out of all remedy to recover their rights by any manner of Action as some put it in practice as to make Feoffments to the use of the Feoffor and his Heirs untill any intend to bring an Action against him for this Land and then over to others upon the like limâ—tation with a Proviso to make it void at his pleasure and the like and what mischief shall then be for the time upon such an exposition such that Justice therby cannot be done to the Subject and what an absurdity shall it be to say that such an Exposition can stand with the intent of the Makers of the Law And to that which hath been argued on the other side and first to that which was said by Walmsley That the Right Estate and Possession is wholly out of the Feoffee and vested to the Vses which have their beeing by the Statute and that upon the Contingents hapning their Estates uncouple and give place to the contingent Vse then executed and that the execution therof shall be by a Possession dâ—awn to it out of the Possession which was before executed by the Statute in another I say that this Statute can by no means have such an exposition for this is as much as to say that an Vse may arise upon an Vse contrary to what is adjudged 36 H. 8. That a Bargain and Sale by a Deed indented and enrolled cannot be at this day of Land to one to the Vse of another And if a man enfeoff another to the use of I. S. and his Heirs and if I. N. pay such a summ that then the said I. S. and his Heirs shall be seised of the same Land to the use of the said I. N. and the Heirs of his body I. â— paies the money yet the Vse doth not rise out of the Possession of the said I. S. But if it had been that upon the payment the first Feoffee and his Heirs shall stand seised to the use of the said I. N. and the Heirs of his body it shall be otherwise therfore somthing remains to the first Feoffee in the Judgment of the Law And I remember that when I was a Counsellor at Law in the time of the Lord Dyer where a Feoffment was made to the Vse of one for life with Remainders over with restraint to alien and with power given to Tenant for life to make Leases for one and twenty years or three lives it was much doubted whether this power so limited to him without words in the Assurance that the Feoffee and his Heirs shall stand seised to these Vses shall be good to make such Leases or not And therfore suppose that a man bargains and sells Land to one for his life by Deed indented and inrolled and make therin a Proviso that the Tenant for life may make such Leases this is to no purpose as to power to make a Lease but the strongest case which he put was that of 30 H. 8. which I agreed to be Law as it is there put whether it were before or after the Statute of 27 H 8. for it is not there put that the Feoffment was made upon any consideration to the stranger in which case although he had no notice of the first Covenant yet in such a case he shall take the Possession subject to the Vse to which it was bound by the present Covenant But if you consider the case well you shall see that it was a case before the Statute for it followeth presently in the same case that it is there said that it is not like the case where the Feoffees in Vse fell the Land to one who hath no notice of the first Vse wherby it appeareth that it was a case before the Statute for otherwise there had been no cause to have spoken then of the Feoffees to an Vse and by the same it appeareth if the Covenantor had bargained and sold the Land to another the same Vse had never risen upon the Covenant and therfore it is cleer against the Law that the Possession shall be bound wâ—th such an Vse in whosoevers hand it comes And to that which Peâ—â—am said in the case of these Contingent Vses they shall now by the Statute be in the same degree as if Land it self had been so conveyed and that now the Land shall be in Contingency in stead of the Vse and that by such manner it shall be executed and that by such means all is utterly out of the Feoffees because the Statute was made to determine all â—â—â—ter of trust to be hereafter reposed in any Feoffee this is well spoken but not well proved for as I have said before it is an exposition quite contrary to the letter and intention of the Law And I agree as hath been said if there be none to take the Use at the time that it falleth to be in possession according to the limitation that he shall never take it afterwards no more of an Use upon the Statute then of â—n Use at Common Law As if an Use be limitted for life the remainder to the right Heirs of I. S. if the Estate for life be determined in the life of I S. the remainder shall never vest afterwards in the right Heirs of I. S. no more then if an Estate had been so made But this makes for me to wit that the Estate upon the Uses executed by the Statute shall be of the same condition as Estates in possession were at Common Law and that they being executed ought also to be such of which the Common Law makes allowance And by way of argument I agree for the time that it is as hath been said by them who maintain that an Use may be in suspence as to that which is an Use in its proper nature for it is
the said Goodale that this Warrant was made to him After which it was agreed between the said Sir Ioh Packington Drew Woodale that the said Tho. Drew shall have but 32 l. of the said 100. marks wherupon the said Sir Iohn Packington within a year after the death of the said Ralph Woodliff paid to the said Drew Woodliff the 100. marks and presently the said Drew delivered to the said Sir John all the 100. marks but 32 l. And the Verdict stands upon this point whether the 100. marks were well paid or not And by Popham and Gawdy this was meerly a fraud which shall never prejudice a third person for if it be agreed between the Disseisee and I. S. that a stranger shall disseise the Tenant of the Land and enfeoff the said I. S. to the intent that the Disseisee shall recover against him this Recovery shall bind the said I. S. but not him who was disseised and yet he who recovered had a good Title and paramount the other but he shall not come to that to which he had good cause of Action and Title by fraudulent means to the prejudice of a third person not party to this fraud And it was said further that to pay money and take it away again presently before that it is pursed up by re-delivery is not properly a payment but rather a colour of payment And by Fennor and Popham the force of a Deed of Feoffment once effectuall cannot become void or of no effect nor the Livery therupon by such manner of words And it is not like a Bargain of Goods or an Obligation or a Lease for years which by such words may be dissolved and made to be of no force or effect because that as by the sealing a bare Contract it may be made perfect and effectuall without other circumstances so may it be defeated by such bare means without other circumstance But so it is not in case of an Inheritance or Free-hold which cannot be effectual by the bare delivery of a Deed unlesse that Livery be made therupon And all agreed that as this case is notwithstanding the Feoffment made over by the Father the money might have been paid to the Heir to perform the Condition if they had been duly paid and without Covin and that the words had been apt to have defeated the Estate But by Popham and Clench If a Feoffment be made to one upon condition In which case a Condition shall be performed to an Assignee and not to the Heir of payment of money to the Feoffee his Heirs or Assignes and the Feoffee makes a Feoffment over and dies the money ought to be paid to the Feoffee who is the Assignee and not to the Heir for there Heir is not named but in respect of the Inheritance which might be in him but here he is named as a meer stranger to it Bartons Case 3. IN a Writ of Error sued in the Kings Bench by Randall Barton upon a Fine levied at Lancaster 7 Eliz. of Land in Smithall and else where in the County of Lancaster by Robert Barton Esquire to Leven and Browndo where this Writ was brought by the said Randall as Heir in tail to the said Robert to wit Son of Ralph Brother of the said Robert The Defendant plead a Recovery in Bar therof had after the Fine in which the said Robert was vouched who vouched over the common Vouchee And by all the Court this common Recovery with such double Voucher which is the common assurance of Lands is a Bar by reason of the Voucher to every manner of right which the Vouchee or his Heir by means of him is to have to this land which is paramount the Recovery And so it is of every manner of way wherby they are otherwise to come to the Land before the Recovery And if the recovery be erroneous it remains a good Bar untill it be avoided by error But if the Recovery be void or the Voucher not warranted to be pursuing the appearance of the Tenant but precedent to it as was pretended and so no Tenant to warrant the Voucher when the Voucher was made the Recovery shall be no bar in such a case and the case here was informed to be this for the Writ of Entry bears date 1. Mart. 7 Eliz. returnable Die Lunae in 4. septimana quadragessimae propter futur and the Voucher was made in 4. septimana quadragessimae 7 Eliz. the said first day of March being the first week of this Lent 7 Eliz. And upon this it was inferred that the Tenant was not to appear untill Munday in the fourth week of Lent 8 Eliz. which is a long time after that the Voucher appeared and vouched over But by the whole Court the Original Writ shall be taken as it is written to be returnable on Munday in the fourth week of the same Lent 7 Eliz for it shall be taken as it is written shortly most beneficially that it can be to make the Recovery good And if it had been written Proxâ—me it should refer to the week before and so good And if the word Futur had been written at large Futura it also shall refer to Septimana and therfore being written briefly it shall refer as it may best do to make the Recovery good But if it had been in Quarta septimana proximae quadragessimae at large then the word Proxime shall refer to Quadragessimae because of the case But if it had been Proxima it shall refer to Septimana because also of the case But here as the case is it shall be a good reference to make the words Tunc proxima futur to shew what fourth week of Lent to wit that next ensuing the first day of March. As if a man be bound by Obligation bearing date the first day of March to pay the 10. day of March then next ensuing this shall be taken the 10. day of this March because this is next ensuing the first day Paramor versus Verrald 4. IN Trespasse of Assault and false Imprisonment by Robert Paramor against John Verrold and others supposed to be done at such a Parish and Ward in London the 20. day of May 35 Eliz The Defendants justifie by reason of an Erecution upon a Recovery in the Court of Sandwich within the Cinque-Ports Debt and traverse Absque hoc in that they were guilty in London c. The Plaintiff reply and maintain the Assault and Imprisonment as it is said and traverses Absque hoc quod habetur aliquod tale Recordum loqueâ—ae prout the Defendants have alledged Et hoc paratus est verificare per Recordum illud and upon this the Defendants demurred in Iudgment And per Curiam the Defendants plea Prima fâ—cie was good because it was a speciall manner of Iustification which cannot be pleaded and alledged to be in any other place then where it was done in the same manner as if they had justified by force of a Capias directed to the
Sheriff of another County then where the occasion brought or by Warrant of a Iustice of Peace of another County for matter of the Peace and the like which are not like to the case of Partridge who was beâ—ten in the County of Glocester by Sir Henry Pole for which he brought his Action in London And Sir Hen. Pole would have justified by Assault of the Plaintiff in the County of Glocester with a trâ—verse that he was not guilty in London But it was then ruled in this Court that he could not do it to oust the Plaintiff to sue in London but in such a case he might have alledged that the Assault was done in London because it was also a thing transitory of which they shall take notice there and so help himself if the matter had been true But in the case at the Bar if the speciall matter alledged in the forraign County be false as here the Plaintiff may maintain his Action and traverse the special matter alledged by the Defendant And so a traverse in such a case may be upon a Traverse when falsity is used to oust the Plaintiff of that benefit which the Law gives him Hillary Term 38 Eliz. Wood versus Matthews 1. IN a writ of Error brought by Owen Wood against Griffeth Matthews upon a judgment given in the common Pleas the case was briefly thus The Issue in the Common Pleas was whether one were taken by a Cap. ad satisfaciendum or not and upon the triall therof at the Nisi prius the Jury found for the Plaintiff in this Action to wit that the party was not taken by the said Capias and upon the back of the Pannell entred dicunt per Quer. but on the back of the Postea the Clark of the Assises certified the Pannell thus to wit That the Jury say that no Capias was awarded which was otherwise then was put in Issue or found by the Jury and the Roll of the Record was according to the Postea and upon this Judgment given for the said Matthew then Plaintiff upon which amongst other Errors this variance between the Issue and Verdict was assigned for Error and after deliberation had upon this point and this matter alledged by the Defendant in the Writ of Error and certified out of the Common Pleas the Court awarded as to this point that the Record sent up out of the Common Pleas by the Writ of Error shall be amended according to that which was endorsed on the back of the Pannell for the endorsement upon the Pannell is the Warrant for the certifying of the Postea aâ—d so this Warrant over to him that makes the Entry in the Roll And therfore wheras it was alledged that the Postea was amended in the Common Pleas aftâ—r the Record removed it was holden to be well done there for although the Record were removed by the Writ of Error yet the Nisi prius the Postea and the like remain still there as it is of the Warrant of Attorney and the like And if the Postea had not been amended there but sent up with that which was endorsed upon the Pannel all shal be amended here according to that which was indorsed upon the Pannel and according to this there was a Presidâ—nt shewn Tr. 35. H. 8. between Whitfeild and Wright where the Issue was whether a quantity of Grain were delivered between two Feasts and endorsed upon the Pannel Dicunt pro quaer and yet the Postea certified and the Rolls also made that the delivery was made ad festa and upon this matter alledged in Banco Regis and the Error in this point assigned and certified out of the Common Pleas the Record removed by the Writ of Error was by award of the Court amended and the word Ad razed out and the word Inter written in lieu of it according as it appeareth it ought to have been by the Note upon the back of the Pannel And the like amendment was made lately in the Checquer Chamber upon Error brought there upon a Iudgment given in Banco Regis where the Iudorsment upon the back of the Writ was pro Quer. and the Postea and Roll was that the Plaintiff was guilty and there amended the last Term. Slanings Case 2. NIcholas Slaning of Bickley was seised in his Demesn as of Fee of the Mannor of Bickley and of a Mill in Walkhampton in the County of Devon called a blowing Mill and of another Mill there called a knocking Mill and of an acre of Land there also and of divers other Mannors and Lands in the said County of Devon the said Mills and acres of Land in Walkhampton then being in the possession of one Peterfeild and Atwill of an Estate for divers years then to come and being so seised he with Margaret his Wife levied a Fine of the said Mannor of Bickley and of other Lands omitting the said Lands in Walkhampton to certain Câ—nuzees who rendred the same back again to the said Margaret Slaning for her life with the remainder over to the said Nicholas and his Heirs After which the said Nicholas by Indenture daied 30. Octob. 21 Eliz. gave and enfeoffed all the said Mannors and Premisses to John Fits and others and the Heirs of the said Fits to the Vses Provisoes and Limitations mentioned in the said Indenture which was to the use of himself and the Heirs Males of his body by any other Wife the remainder to Nicholas Slaning of Newton Ferries and the Heirs Males of his body with divers remainders over with this Proviso to wit Provided and it is the intent of these presents and of the parties therunto that the said John Slaning and the Heirs Males of his body or the said Nicholas Slaning of Newton-ferries and the Heirs Males of his body in whomsoever of them the Inheritance in tail of all the Premisses shall happen to be by force of these presents shall pay to Agnes the Daughter of the said Nicholas Slaning of Bickly 200 l. or so much therof as shall be unpaid at the time of the death of her said Father according to the intent of his last Will with a Letter of Attorney to it by which he ordains John Hart and Robert Fort joyntly and severally his Attorney to enter into the said Mannor of Bickley Walkhampton c. and all other the Lands Tenements and Hereditaments in the said Indenture mentioned and possession for him to take and after such possossion taken for him and in his name to deliver full possession and seisin of the Premisses to the said John Fits c. according to the form and effect of the said Indenture wherupon possession and seisin was given of all but that which was in possession of the said Peterfield and Atwill And the said Pererfield and Atwill nor either of them never attorned to the said Grant After which Nicholas Slaning of Bickly made his last Will by which devised to the said Agnes his Daughter 200 l. to be paid in form following
it shall not be taken by intendment that the Messuages had such a Curtilage to it if it be not specially named Fennors Case 5. IN Trespasse brought by Fennor in the common Bench against for breaking his Close in c. the Defendant pleads a Bar at large to make the Plaintiff assign the place in certain where he supposeth the Trespasse to be done the Plaintiff therupon alledgeth that the place where he complaineth is such c. and sheweth in certain another then that in which the Defendant justifies the Defendant avers that the one and the other are all one and known by the one name and the other and therupon the Plaintiff demurs and adjudged there for the Plaintiff because that in such a case upon such a speciall assignment it shall be taken meerly another then that in which the Defendant justifies in as much as the Plaintiff in such a case cannot maintain it upon his evidence given if the Defendant had pleaded not guilty to this new Assignment that the Trespasse was done in the place in which the Defendant justifies although it be known by the one and the other name and that the Plaintiff hath good Title to it because that by his speciall Assignment saying that it is another then that in which the Defendant justifies he shall never after say that it is the same in this Plea for it is meer contrary to his speciall Assignment And upon this a Writ of Error was brought in the Kings Bench and the Iudgment was there affirmed this Term for the same reason Quod nota Scot versus Sir Anthony Mainy 6. IN Debt upon an Obligation of 200 l. brought by John Scot Gent. against Sir Anthony Mainy Knight the Condition wherof being to perform the Covenant comprised in an Indenture of Demise made by the said Sir Anthony to the said Plaintiff of his Capitall Messuage in Holden with the Lands to it belonging c. amongst which Covenants one was that wheras by the same Indenture he had demised it to him for 21. years that the said Sir Anthony covenanted with the said John Scot that the said Sir Anthony from time to time during the life of the said Sir Anthony upon the surrender of this Demise or any other Demise hereafter to be made by the said Sir Anthony of the said Messuages and Lands and to be made by the said John Scot his Executors or Administrators and upon a new Lease to be made ready ingrossed to be sealed and offered by the said John Scot his Executors or Administrators to the said Sir Anthony for the like tearm and number of years in the aforesaid Indenture comprised for the same Rent c. to seal and deliver to the said John Scot his Executors and Administrators And the said Sir Anthony as to this Covenant pleaded did not surrender nor offer to surrender to him the said Demise nor offer to him any new Demise of the Premisses ready engrossed for to seal it for the like Term c. as it is in this Covenant And for the other Covenants he pleads performance of all To which the Plaintiff replies that the said Sir Anthony after the Obligation and before the Action brought had rendred the said Messuages and Lands by Fine to one Walter Savage and William Sheldon their Executors and Assigns for eighty years from the Feast of Easter next before the Fine which was Pasch 36 Eliz. wherby he said that the said Sir Anthony had disabled himself to renew his Lease according to the Covenant upon which it was demurred in the Commen Bench and the Iudgment given for the Plaintiff as appeareth Trin. 37. Eliz. Rot. 2573. And upon this Iudgment a Writ of Error was brought in the Kings Bench and agreed this Term. And it was moved that the Iudgment given was erroneous in as much as the first act was to be done by John Scot before the new Lease was to be made to wit the surrender of the former Lease and the drawing of the new one ought to have been done by the Plaintiff which not being done on his part the said Sir Anthony is not bound to make the new Lease And also it was moved that as the case is here the said John Scot might surrender to the Defendant notwithstanding the intervening of this Lease between the Lease of the Plaintiff and the Inheritance of the Defendant as if a man make a Lease for years in possession and afterwards make another Lease to a stranger to begin after the end of the former Lease this shall not hinder but that the first Lease may be surrendred to him who was the Lessor notwithstanding the said Term intervening To which it was answered by the Court that the Plaintiff here need not to make any offer of the surrender of his Term to the said Sir Anthony in as much as the said Sir Anthony hath disabled himself to take the Surrender or to take the Lease according to the purport of the Condition and by this disabling of himself the Obligation is forfeited Come per 44 E. 3. 8. and by Littleton also If a man make a Feoffment upon condition to re-enfeoff him this is not to be done untill request therof be made by the Feoffor yet if in the mean time the Feoffee suffer a fained recovery of the Land grant a Rent charge acknowledgeth a Statute taketh a Wife or the like the Feoffor may re-enter without request made to re-enfeoff him and the reason is because that by any of these the Feoffee hath disabled himself to perform the Condition in the same plight as he might have done at the time of the Feoffment in the same manner here for by this render by the Fine the Reversion passe in right so that the Termor in possession attorning to it they shall have the Rent reserved upon the first Lease and therfore the Plaintiff cannot now surrender to the said Sir Anthony but to the Grantees of the Reversion and therfore there shall be no prejudice to the Plaintiff because the Defendant was the cause of disabling the Plaintiff to make the Surrender to him And suppose it be but a Term to begin at a day to come yet by this the Obligation is forfeited because the Obligor hath therby disabled himself to perform the Condition in such a plight as he might have done it when the Obligation was made wherby the Obligation is presently forfeited albeit the Plaintiff never surrender nor offer to do it And therfore the Iudgment there was affirmed Mounson versus West 7. IN an Assise brought in the County of Lincoln before Gawdy and Owen by Thomas Mounson Esquire Demandant against Robert West Tenant for Lands in Sturton Juxta Stu. The Defendant West pleaded Nul Tenant del Frank-tenant named in the Writ and if that be not found then Nul tort nul Disseisin And the Assise found that the said Defendant was Tenant of the Tenements now in Plaint and put in view to the Recognitors of
Anglice Copie des except according to any custom of the said Mannor of Yeatminster and that the Obligation was made for the payment of the same Rent reserved by the said Articles and demands Iudgment c. wherupon the Plaintiff demurred in the Common Bench and there Iudgment was given that the Plaintiff should recover his Debt and Damages as appeareth there Mich. 36 37. Eliz. Rot. 312. upon which a Writ of Error was brought in the Kings Bench and there moved that the Iudgment was erroneous in as much as upon the matter he ought to have been barred of his Action for if an Action of Debt had been brought upon the Demise by the Articles the Defendant might have pleaded as here and the Plaintiff should be cleerly barred As if a man be bound to make an Estate or to assure to another all the Lands which he hath by descent from his Father or all the Lands which he hath by purchase from such a one or the like And of this opinion Gawdy was saying in as much as the Obligation is that he shall be paid according to the true intent of the Articles the intent of them is not that the Rent shall be paid if any Land be not passed by them for it should be paid as by 22 H. 6. if a man be bound to pay a Rent which is reserved upon a Lease made to him he ought to pay it at his peril But if it be to pay it accordingly to the Lease there he said it is not payable but upon the Bond and is to be paid as a Rent And if the Land be evicted in the interim before the day of payment the Obligor shall help himself by pleading of it upon such an Obligation to discharge the Bond so here But it seemed to Popham that the Iudgment was well given and yet he agreed the Cases that were put but he said there was a diversity where the Obligation goes in the generality and where it tends to a speciality for as by 2 E. 4. If a man be bound to be Non-suit in all Actions which he hath against such a one or to assure to another all his Lands in Dale he may say that he hath not any Suit or that he hath no Land in Dale But if it be that he shall be Non-suit in a Formedon depending or to enfeoff him of White acre there it is no plea because he refers to a special point And by 18 E. 4. If a man be bound to another to pay him 10 l. for which a stranger is bound to the said Obligee it is no plea for him to say that the stranger is not bound to pay him 10 l. for when the Condition refers to such a speciall matter this cannot be denied of him who is bound And therfore in this case the Defendant cannot say that there were not any such Articles contrary to that which is specially comprised in the Condition as by 28 H. 6. A man was bound to perform the Covenants comprised in a certain Indenture of Covenants he shall not say that there was not any such Indenture because it resorts to a speciall So I think if a man be bound to pay the Rent of 10 l. a year reserved upon an Indenture of Demise made of Lands in D. payable at such a Feast he shall not say against it that there was no such Demise made nor no such Rent reserved upon the Demise but is estopped of the one and the other And in Hill 3. Eliz. A man was bound thâ—t he shall pay to A. or the Obligee all such summs of mony as T. S. deceased stands bound to pay by his Obligation to the said A. and of one R. P. to the behoof of the Children of such a one according to the Will of the said party and in Debt upon this Obligation he saith that the said T. S. was never bound by any such Writing Obligatory to the said A. and R. P c. to pay c. Pro usu filiorum c. as in the Condition and per Curiam adjudged no good Bar because he is estopped to deny the speciall matter which is matter of Writing and not a bare matter in Deed. Kirton versus Hoxton and others 10. IN an Appeal of Mayhem brought by Kirton Plaintiff against Appeal of Mayhem Rob. Hoxton Esq and divers other Defen the one of the Defen plead Nul tiel in rerum natura as another of the Appellees and if it be not found then as to the Felony and Mayhem not guilty Agreed by the whole Court that such a manner of pleading is not to be suffered in an Appeal of Mayhem because no life is put in danger by the suit And yet it was objected that there are presidents that such form of pleading hath been admitted in Appeals of Mayhem But the Court had respect to it that the reason in all the Books of Law in which it hath been admitted in an Appeal of death and the like is that it stands in Favorem vitae and therfore it is admitted to be good or otherwise by the Books it shall not be admitted to be so for the doublenesse of it But no life is to be put in â—eâ—pardy in this case and therfore such a plea shall not be admitted but the Not guilty shall stand by which the other plea is waived Hillary Term 38 Eliz. Henry Earl of Pembrook versus Sir Henry Backley IN an Action upon the Case between Henry Earl of Pembrook Plaintiff See this Case Coke lib 5. 76. a. and Sir Henry Backley Knight Defendant the case upon the pleading appeareth to be thus The said Earl was seised in his Demesn as of Fee of the Mannor of Stocktrift in the County of Somerset to which Mannor the Office of the custody of the Forest of Selwood in the same County belongeth and also that there was before time of memory an Office within the same Forest called the Lievtenant-ship or Custody of the said Forest belonging to the said Mannor of which also the said Earl was seised in his Demesn as of Fee And that there was one part of the said Forest called the West part of the said Forest in which there were two Walks or Bayliwicks the one called Staverdale walk and the other Brewick walk And that the said Lievtenant had the charge of the Deer and the disposition and appointment of the Keepers of the said Forest And that the said Earl being so seised by his Writing bearing date 5. Novemb. 12. Eliz. reciting that his Father had granted the Office of Lievtenant-ship and Deputy-ship of the said West part of the said Forest Cum vadiis c. quando acciderit and the Keeper-ship of Brewick-walk aforesaid to the said Sir Maurice Barkley Knight and the Heirs Males of his body and instituted and ordained him and the Heirs Males of his body Lievtenant and Deputy therof to the said Earl and his Heirs confirmed the Grant aforesaid And further by the
to attend and be assistant to the Iustices Sheriffs or other Ministers of the King in the doing of it 3. AT the same time it was also resolved by them all except Walmsley Fennor and Owen in the Case of one Richard Bradshaw and Robert Burton who with others lately by word entred themselves into an agreement one with another to rise and put themselves into Armes and so to go from one Gentlemans house to another and so from house to house to pull down Inclosures generally that this so appearing by their own confession or by two Witnesses according to the Statute is high Treason by the Statute of 13 Eliz. cap. 1. The words of which Statute are That if any intend to levy War against the Queen and this maliciously advisedly and expresly declare or utter by any words or sayings that this shall be high Treason For all agreed that Rebellion of Subjects against the Queen hath Rebellion of Subjects high Treason been alwaies high Treason at the Common Law for the Statute of 25 E. 3. cap. 1. is that levying of War within the Realm against the King is Treason and Rebellion is all the War which a Subject can make against the King But Walmsley and the others with him said that the Statute of 1 Mar cap. 12. 10. That if any to the number of twelve or more assemble themselves to the intent to pull down Inclosures Pales and the like with force and continuing together after proclamation according to the Statute to go away by the space of an hour or do any of the Offences mentioned in the Statute that this is Felony So that if these Actions had been Treason at the Common Law it had been to no purpose to have made it Felony And it seemed to them that the resistance ought to be with force to the Queen before that such Acts shall be said Treason But all the other Iustices agreed and so it was put in ure lately in the case of the Prentices of London that if any assemble themselves with force to alter the Laws or to set a price upon Victualls or to lay violent hands upon the Magistrate as upon the Major of London and the like and with force attempt to put it in action that this is Rebellion and Treason at Common Law and yet this Statute of 1 Mariae makes it in such a case but Felony And they put a diversity between the cases of pulling down Inclosures Pales c. comprised in the Statute of 1 Mar. for those are to be understood where diverse to the number of twelve or more pretending any or all of them to be injured in particular as by reason of their common or other Interest in the Land inclosed and the like and assembling to pull it down forcibly and not to the cases where they have a generall dislike to all manner of Inclosures and therfore the assembling in a forcible manner and with Armes to pull them down where they have any Interest wherby they were in any particular to be annoyed or grieved is not Treason but the case here tending to a generality makes the act if it had been executed to be high Treason by the câ—uâ—se of the Common Law And therfore the intention appearing as the case is here it is Treason by the Stâ—tute of 13. aforesaid Periam in some manner doubted of the principall case but to intend to rise with force to alter the Laws to set price upon any Victuals or to use force against a Magistrate for executing his Office of Iustice and the like he said that they were cleerly Treason by the Statute of 13. aforesaid if it may appear by expresse words or otherwise as the said Statute mentions for all these tend against the Queen her Crown and Dignity and therfore shall be as against the Queen her self And if it had been put in practice it had been Treason at the Common Law Here ends the LORD POPHAM'S REPORTS An addition of certain Select CASES in the time of KING JAMES and KING CHARLES Trin. 15. Jac. In the Kings Bench entred Hill Jac. Rot. 194. Brooks Case IN an Ejectione firmae brough by one Brook against Brook the Case was thus Iohn Wright a Copyholder in Fee 10 Eliz. surrendred his Land into the hands of the Lord by the hands of Tenants according to the Custom c. without saying to whose use the Surrender should be And at the next Court the said Iohn Wright was admitted Habendum to him and his Wife in Tail the remainder to the right Heirs of Iohn Wright and the Wife of Iohn Wright now Defendant was seised from the time of Where upon surrender of Copyhold land no use is limited to whole use iâ— shall be the admittance untill this day And it was objected by the Counsell of the Plaintiff that the surrender was void because no use was limitted and therfore by constitution of Law ought to be to the use of the Surrender as if a Feoffment be made and no Use limited it shall be to the Use of the Feoffor or as it is in Sir Edward Cleers Case Coke lib. 6. 18. If a Feoffment be made by one to the use of his last Will he hath the use in the mean time 2. That the admittance was not available to passe an Estate to the Wife for she was not named in the Premisses but only in the Habendum and the Office of an Habendum is to limit the Estate and not the person and therfore it is said in Throgmorten and Tracies Case in Plowd com That if one be named to take an Estate in the Habendum where he was not named at all in the Premisses this is not good But it was resolved by the whole Court for the first point that the subsequent Act shâ—ll explain the Surrender for Quando abest Provisio partis adest provisio legis And when the Copyholder accepts a new admittance the Law intends that the Surrender generally made was to such an Vse as is specified in the admittance and the Lord is only as an Instrument to convey the Estate and as it were put in trust to make such an admittance â—s he who surrenders would hâ—ve him to make And Crook Iustice said Fides adhibita fidem obligat For the second point it was also agreed by the Court that the Wife shall take by this admittance albeit she were not named in the Premisses but only in the Habendum and they agreed that in Feoffments and Grants the party that is not named in the Premisses shall not take by the Habendum and therfore Throgmorton and Tracies Case as to this point is good Law But this case of a Copyhold is like to the case of a Will or to the case of Frank-marriage in which it is sufficient to passe an Estate albeit the party be only named in the Habendum and if it should be otherwise the Estates of many Copyholders would be subverted And so they resolved that Iudg-should be
thing that is uncertain certain but shall serve as a Predict yet the words import that he had a Master and that his Master had a Cook to which all the Court agreed and Iudgment was given for the Plaintiff And another Action was brought for these words Scil. Thou hast sacrificed Thou hast sacrificed thy child to the Devill thy Child to the Devill and adjudged that the words were actionable Mich. 15. Iac. In the Kings Bench. Lee versus Brown IN an Ejectione firmae brought by Lee against Brown the Case was this Whether copyhold Lands may be intailed Tenant in Tail of Copyhâ—ld Land surrendred the same into the hands of the Lord to the use of I. S. wherupon two points did arise 1. Whether Copyhold Land be within the Statute of Donis conditionalibus so that iâ— may be intailed 2. Whether the Intail may be cuâ— off by the surrender Doderidge Iustice said as to the first point that it hath been a great doubt whether it may be intailed but the common and better opinion was that by the same Statute co-operating with the custom it may be intailed and with this agrees Heydons case in my Lord Cokes 3. Report and so was the opinion An Intail of copyhold lâ—nd nâ—t to be cut off by â—urrender unlesse by speciall custom of the Court. And for the second point their opinion also was that it could not be cut off by surrender unlesse it were by speciall custom and they directed the Iury accordingly And it was said to maintain this custom it ought to be shewn that a Formedon had been brought upon such a Surrender and Iudgment given that it doth not lye yet it was agreed that it was a strong proof of the custom that they to whose use such Surrenders had been made had enjoyed the Land against the Issues in Tail And it was said by the Counsell of the Defendant that there was a Verdict for them before in the same case which they could prove by witnesses but the Court would not allow such a proof because it was matter of Record which ought to be shewn forth In the same Term in the Common Pleas. May versus Kett. AN Action upon the Case was brought for these words viz. Thou hast Words Thou hast stoln my Corn out of my Earn stoln my Corn out of my Barn And it was moved in Arrest of Iuâ—gment because he had not said how much he had stoln and perhaps it was of small value and yet it was adjudged that the Action would lye for it is at least petit Larceny But if he had said that he had stoln his Corn generally it had not been actionable for it might have been growing and then it had been but a Trespasse The same Term in the Star Chamber Riman versus Bickley and others IOhn Riman exhibited a Bill in the Star Chamber against Thomas Bickley and Anne his Wife Dr. Thorn Mr Goulding and others Defendants the said Anne was first married to Devenish Riman the Plaintiffs Son and between them were many â—ars and disâ—greemâ—nts and the said Devenish was much given to drinking and other Vices and divers times did beat and abuse his Wife and was also jealous of the saiâ— Thomas Bickley and his Wife being at a certain time at Supper with Dr. Thorn Goulding and others spake such words as these having communication thâ—t her Husband did beat and abuse her to wit That she heard that his Father had that quality and being once whipt for it was the better ever after and that if she thought it would do her Husband any goâ—d she would willingly bestow 40 s. on some body to give him a whipping wherupon Gâ—ulding said that he would give him a Medâ—cine for his Mâ—lâ—dy and within two daies after he came in the night in womâ—ns apparrell with a Weapon under his Cloak and with a Rod and wenâ— into the House and Chamber of the said Devenish and would have whipped him and in striving together there was some hurt done on either side but Gâ—ulding not being able to effect his purpose fled and this was conceived to be by the procurement of Anne his wife And not long after Devenish fell sick and sent to his said wife for certain necessaries which she would not send him and presently after Devenish died and she refused to come to his buriall And although it were much disliked that Devenish should abuse his Wife in such uncivill manner as to strike and beat her and as Coke late chief Iustice said it is not lawfull by the Act Military for one man to strike another in the presence of Ladies yet it was resolved by the whole Court that it was a great misde meanor in the Wife and uncivill and undutifull carriage in her to do so to her Husband as they use to do to Children or fools to wit to give them the Whip and so to disgrace and take away the good name of her Husband which viz. A mans good name and his Childrens are the two things which make a man live to Posterity as was said by Sir Francis Bacon Lord keeper and the Court fiâ—ed the Wife 500 l. and it was said that Thomaâ— Bickley her noâ— Husband well deserved to pay this Fine because he was too familiar with her in the time of his Predecessor and as the Bishop of London said Devenish Rimon lay upon her hands and Thomas Bickley upon â—eâ— heart And to aggravate this matter a Letter was shown whiâ—h Devenish Rimon wrote to his Wife in which he called her Whoor and told her somwhat roundly of her faults and she wrote back to him in the Margeâ—t that he lyed and wished him to get a better Scribe for his next Lâ—â—ter for he was a Fool that wrote that wherin she called him Fool by craft And Goldings offence was accâ—vnted the greater because he was a Minister so that he was fined 500 l. also And Coke said that the course of this Court was that if any were fined who is not able to pay it Respondeat superior he that is the principall and chief agent therin must answer it for otherwise poor men might be made Instruments of great mischief who are not able to answer and the greater Offenders shall escape which the Lord Keeper confirmed And as to Doctor Thorn he was acquitted by all And the Bishop of London said that they had thought to have troad upon a Thorn and they gat a Thorn in their foot And by Coke if Devenish Rimon had died upon it it had been capitall in the Wife who procured it for it was an unlawfull Act. The same Term in the Kings Bench. Wescot versus Cotton THe case was this An Infant Executor upon an Action brought against Where an Infant Executor may declare by Attorney but not defend by Attorney but by Guardian him appeared by Attorney where he ought to appear by Guardian and it was resolved by the Court that this was Error for this
doth much concern the Infant in as much as by his false plea he shall be bound to â—nswer of his own Goods if he hath no Goods of his Testator and therfore in a 11 E. 4. 1. he hath remedy against his Guardian for pleading a false Pâ—ea And by Doderidge if he hath no Guardian the Court shâ—ll appoint him a Guardian And if an Infant bring an action as Executor by Attorney and hath Iudgment to recover this is not erronious because it is for his benefit so per Curiam the difference is where he is Plaintiff and where he is Defendant And there is another difference where he is Executor and where not for being Executor his Plea might have been more prejudiciall to him and Coke lib 5. Russels case was agreed for good Law for an Infant may be Executor and may take money for a Debt and make a Release and give an Acquittance but not without a true consideration and payment of the money The same Term in the same Court. Thomas Middletons Case THomas Middleton alias Strickland was condemned for a Robbery at the Where a Felon is condemned and elcapeth and is re-taken upon confession that he is the same party execution may be awarded The Sheriff of Middlesex fined for not attending the Court. Assises in Oxford after which he made an escape and being taken again he was brought to the Bar and upon his own confession that he was the same party who did the Robbery and that he was condemned for it the Court awarded execution And Mountague chief Iustice said thâ—t was no new case for it had been in experience in the time of E. 3. and 9 H. 4. and 5. E. 4. that the Court might so do upon his own confession And because the Sheriff of Middlesex did not give his attendance upon the Court in this case nor came when he was called the Court fined him 10 l And Mountage said that it shall be levied by proces out of the Court and also all other Fines there assessed and not estreated into the Exchequer for then the party might compound for a matter of 20 s. and so the King be deceived The same Term in the same Court. Gouldwells Case IOhn Gouldwell seised of Land in Socage Tenure devised them to his Wife for life the Remainder to John Gouldwell his Son and his Heirs upon Condition that after the death of his Wife he shall grant a Rent-charge to Steven Gouldwell and his Heirs and if John Gouldwell dye withâ—ut Heirs of his body that the Land shall remain to Steven Gouldwell in Tail the Wife dieth John Gouldwell grants the Rent accordingly Stephen Gouldwell grants the Rent over John Gouldwell dies without Heir of his body and the second Grantee distrains for the Rent arrear and Stephen Gouldwell brings a Replevin And it was urged by the Counsell for the Plaintiff that this Rent shall not have continuance longer then the particular Estate and cited 11 H. 7. 21. Edriâ—ks case that if Tenant in Tail acknowledge a Statute this shall continue but during his life and Dyer 48. 212. But it was agreed per Curiam that the Grantee was in by the Devisor and not by the Tenant in Tail and therfore the Grant may endure for ever But for the second point this being to him in Remainder the intent of the Demisor is therby explained that he shall have the Rent only untill the Remainder come in possession for now the Rent shall be drowned in the Land by unity of possession 3. It was agreed and resolved that by the granting of the Kent over this was a confirmation And Mountague said that it was a confirmation during the Estate Tail and shall enure as a new grant afterwards And Haughton and Doderidge said that they would not take benefit of the grant over by way of confirmation for as Haughton said this enures only ought of the Devisor and he hath power to charge the Land in what manner he pleaseth and it is like to an usuall case as if a man makes a Feoffment in Fee to the use of one for life the Remainder over with power to make Leases and after he makes a Lease this is good against Tenant for life and him in the Remainder also And I have considered what the intent of the Devisor should be in granting of this Rent and it seems to me that in as much as the Land is limited in Tail and the Rent in Fee that by this the Grantee shall have power to grant or dispose of the Rent in what manner he would but if the Land had been in Fee I should have construed his intent to have been that the Grantee should have the Rent only untill the Remainder fall to which Doderidge agreed who said that we are in the case of a Will and this construction stands with the intent of the Devisor and stands with the Statute which saies Quod voluntas Donatoris est observanda The same Term in the same Court. Baskervill versus Brook A Man became Bail for another upon a Latitat in the Kings Bench and before Iudgment the Bail let his Lands for valuable consideration Difference between baile in the Kings Bench and the Common Pleas. And how a bail shall relate And afterwards Iudgment was given for the Plaintiff And now it was debated whether the Land Leased shall be liable to the Bailment and it was said by Glanvill of Councell with the Lessee that it ought not to be liable and he put a difference between a Bailment in this Court and a Bailment in the Common Pleas for there the Suit cometh by originall and the certainty of the debt or demand appeareth in the declaration and therfore then it is certainly known from the begining of the Bailement for what the Bail shall be bound But in this Court upon the Latitat there is not any certainty untill Iudgment given before which the Land is not bound and now it is in another mans hands and therfore â—ot liable and he puts Hoes case Co. lib. 5. 70. where iâ— was resolved that where the Plaintiff releaseth to the Bail oâ— the Defendant upon a Suit in the Kings Bench before Iudgment all Actions Duties and Demands that this Release shall not bar the Plaintiff for there is not any ceâ—tain duty by the Bail before Iudgment and therfore it cannot be a Release and he citeâ— the case of 21 E. 3. 32. upon an account and said that it was like to a second Iudgment in that which reduceth all to a certainty and therfor c. But it was said by Mountague and Crook that the Lessee shall be bound for otherwise many Bailments and Iudgments shall be defeated which will bring a great Inconvenience And Mountague said that it was like to the case of a bargain and sale of Land which after it is Inrolled within six moneths shall relate to the beginning of the Bargain so upon the Iudgment given relation is made from the time
Execution shall be sued against him as Ter-tenant 2. There is not any lien as Heir for the Iudgment doth not mention the Heir and therfore he cannot be charged unlesse he be expresly bound and in the Record of the Recovery it doth not appear that the first lien shall bind the Heir for he declares that he bound himself and not that he bound himself and his Heirs 3. If the Heir were bound in the Obligation so that he were once bound as Heir yet the Iudgment determines the specialty so that now he is not bound and in the Iudgment the Heir is not mentioned as in 10 H. 4. 21. 24. If an Abbot contract to the use of the house without consent of the Covent this shall bind if he dies but if he takes an Obligation of the Abbot and then he dies this shall not bind the house for the Contract is determined by the Obligation and this is the reason that in the time of E. 3. in a recovery upon debt the Obligation was cancelled 4. Here he cannot be charged as Heir for it appeareth by the Record Where a debt is recorded upon bond the Obligation was cancelled that his Father is living for it is brought against him as Heir apparant which he cannot be but during the life of his Father And as to the objection that in this case he shall have his age and therfore shall be charged as Heir Non sequitur for if execution be sued against the Heir of a Purchasor he shall have his age and yet he is not Heir neither can charged as Heir to the Conusor But because it is a rule in Law that the Heir which hath by discent shall not answer where his Inheritance may be charged during his Nonage Whitlock to the same intent because the Heir is not charged here as Heir but as Ter-tenant wherby his false Plea shall not hurt him with which Jones also agreed and said that he here considered three things 1. That the lien of the Ancestor binds the Heir 2. How the Heir shall behave himself in pleading 3. Our point in question For the first there are two things requisite to bind one as Heir 1. A lien expresse for if one bind himself and not his Heir this shall not bind his Heir in any case 2. A discent of Inheritance for without this he shall not be bound by the act of his Ancestor and he is bound no longer then Assets discend for he alien before the Writ purchased the lien is gone 2. He ought to behave himself truly and plead truly and confesse the assets discended to him when debt is brought against him as heir otherwise his own Lands shall be charged with the debt as it is in Pepys case in Plow Com. But where it is said in Pepys case that upon a Nihil dicit or Non sum informatum c. If the Iudgment passe upon them that it shall be generall I am not of that opinion for the common experience of the Courts is that such a generall Iudgment shall not be given against the Heir unlesse it be upon a false plea pleaded with which agrees Lawsons case Dyer 81. and Henninghams case Dyer 344. where the Iudgment passed by Nihil dicit so that the saying in Plow 440. a. that what way soever the Heir be condemned in debt if he do not confesse the Assets c. that it shall be his proper debt is not now taken for Law And I also hâ—ld that if the Heir plead falsly and there is found more Assets Where upon a false plea by an Heir the Plaintiff may elect to take the Assets in execution or an Elegit of all his Land that yet it is in the election of the Plaintiff to charge him and to take execution of the Assets only or to take an Elegit of all his Land and he is not bound to take an Elegit of all his Land in this case for otherwise this inconvenience may arise If the Heir hath a 100. acres by discent and two by purchâ—se if upon the false Plea of the Heir the Plaintiff cannot have any other execution but an Eligit of the Moyety of his Lands then he by this is prejudiced for otherwise he might have all he Assets in execution and so the Heir by this way shall take advantage of his false plea. 3. He held as Whitlock before and for the same reason Doderidge Iustice How the Heir shall be bâ—und by the act of his Father is worthy of consideration upon which Prima facie the Books seem to disagree but being well considered accord with excellent harmony I have considered this case it was moved at Reading Term and because my Notes are not here I will speak more briefly and will consider 1. Hâ—w an Heir shall be charged upon the Obligation of his Father and as to that in debt against an Heir he is charged as Heir so that at this day it is taken as his proper debt wherby the Writ is in the Debet and Detinet How an Heir shall be charged upon the Obligation of his Father but in the Detinet only against Executors But in former time from the 18. of Ed. 2. till 7 H. 4. if an Executor had Assets the Heir was not chargable but in 7 H. 4. the Law changed in this point for now it is accounted his own debt and debt will lye against his Executor as it is said in Plow Com and so against the Heirs of the Heir to many generations albeit of this Plowden makes a doubt and his plea that he had nothing at the day of the Writ purchased nor ever after is good for if he alien the Assets he is discharged of the debt in regard he is not to wait the action of the Obligee 2. The Heir shall be châ—â—ged upon or Recognisance not as Heir but as Ter-tenant for he is not bound in the Recognisance but only the Conusor grant that the debt shall be levied of all his Lands and Tenements but not against his Heirs And here he is not meerly as Ter-tenant for he shall not have contribution agâ—â—st â—her ter-Ter-tenants but only against those who are Heirs as himself is but to all other intents he is Ter-tenant and so charged Why an Heir is not chargable for debt after he hath fold the assets as 32 E. 3. and 27 H. 6. aâ—â— 3. That upon a Iudgment as our case is the Heir shall be charged as Ter-tenant and not otherwise The Book which hath been cited viz 33 E. 3. Execution 162. is expresse in the point the broken years of Fitzherbert are obsâ—urely reported but by comparing of cases it will appear to be our case exâ—resly 4. That albeit an Heir shall be charged upon the Obligation of his Ancestor where he is particularly bound yet upon his false plea no execution shall be but upon the assets So it seems to me that in the principall case the Iudgment shall be speciall and it seems to be a
same time nothing works by the Livery for the reason before given by Jones For the matter of Law he conceived that the unity of possession doth not extinguish the Water-course and that for two reasons 1. For the necessity of the thing 2. From the nature of the thing being a Water-course which is a thing running 1 For the necessity and this is the reason that common appendant by the unity of possession shall not be extinguished for it is appendant to ancient Land-hide and gain arable Land which is necessary for the preservation of the Common-wealth and as in this case there is a necessity of bread so in our case there is a necessity of water And for the case of a way Distinguendum est for if it be a way which is only for easement it is extinguished by unity of possession but if it be a way of necessity as a way to Market or Church there it is not extinguished by unity of possession and accordingly was the opinion of Popham chief Iustice which I take for good Law and the case of 11 H. 7. 25. is a notable case and there a reason is given why a Gutter is not extinguished by unity of possession because it is matter of necessity 2. From the nature of water which naturally descends it is alwais current Et aut invenit aut facit viam and shall such a thing be extinguished which hath its being from the Creation Co. lib. 4. Luttrels case a Mill is a necessary thing and if I purchase the Land upon which the streams goes which runs to this Mill and afterwards I alien the Mill the Water-course remains So if a man hath a Dye-house and there is a water running to it and afterwards he purchase the Land upon which the water is current and sell it yet he shall have the Water-course Dyer Dame Browns case and the principall case in Luttrels case a Fulling-mill made a Water-mill this shall not alter the nature of the Mill but yet it remains a Mill so the water hath its course notwithstanding the unity and he concluded for the Plaintiff Crew chief Iustice I agree that the Declaration is good and also that the Bar is good for the manner but for the matter in Law I conceive that it is not good In our Law every case hath its stand or fall from a particular reason or circumstance For a Warren and Tithes they are not extinguished by unity because they are things collaterall to the Land And for the case of 13 Eliz. in Dyer of an Inclosure I conceive that by the unity the Inclosure is destroyed for the Prescription was interrupted and in Day and Drakes case 3 Jac. in this Court it was adjudged that in the same case the Prescription was gone It may be resembled to the case of Homage Ancestrell 57 E. 3. Fitzherbert Nusans And for our case it is not like to the cases of Common or a Way because the Water-course is a thing naturall and therfore by unity it shal not be discharged also there is a linement out of which every man shall have a benefit and therfore he concluded that Iudgment should be given for the Plaintiff And Iudgment was commanded to be entred for the Plaintiff The same Term in the same Court. Welden versus Vesey AN action of Debt was brought by Welden Sheriff of the City of Coventry against Vesey upon the Statute of 29 Eliz. cap. 4. and declares that it is provided by this Statute that no Sheriff or Minister c. shall take for an execution if the summ doth not exceed 100 l. but 12 d. for every 20 s. and being above the summ of 100 l. 6 d. for every 20 s. and shews that wheras the said Vesey had judgment against one in an action of Debt that the Plaintiff by virtue of a Capias directed to him took the body of the said person condemned and that it was delivered to the Plaintiff and that he for levying of the money had brought this action The Defendant by way of Bar saith that it is provided by this act that it shall not extend to Executions in Towns Corporate and that this was within Coventry and so demurred upon the Declaration And Whitwick argued for the Plaintiff two things are considerable in this case 1. Whether where the summ exceeds 100 l. the Sheriff shall have 12 d. for every 20 s. of the 100 l. and 6 d. for that which is over or 6 d. only for every 20 s. for all the summ 2. Whether this Statute extend to Iudgments in Towns Corporate For the first the letter of the Statute is cleer that he shall have 12 d. for the first 100 l. and 6 d. for the residue for the Statute is that if it be above 100 l. Whether a Sheriff or c. shall have 12 d. in the pound for the first 100 l. and 6 d. for the rest upon an Execution that he shall have but 6 d. therfore if it be under a 100 l. he shall have 12 d. for every 20 s. And the meaning of the Statute is plain also for otherwise the Sheriff shall have a lesser Fee where it is above a 100 l. as where it is a 199 l. then he shall have for 100 l. but this was not the intent of the Statute but the greater the Execution the greater the Fee It was adjudged in one Gores case 10 Jac. that an action of Debt lies upon this Law Pasch 14 Jac. Rot. 351. Brole and Tumblerson Sheriffs of the City of London brought Dabt against Nathanael Michell for execution of 400 l. for 12 l. 10 s. scil 5 l. for the first 100 l. and 6 d. for every 20 1. after But I confesse that the principall question there was whether an action of Debt lies for the money and it was resolved that it did and Iudgment was given for the Plaintiff 2. To the Proviso that this doth not extend to Fees in a Town Corporate whether this extend to executions which go out of Iudgments in this Court or in the Common Pleas into Towns Corporate The Statute shews that before that time the Sheriff had taken great Fees which the Parliament considering restrained them to a certainty The words of the Proviso are generall Provided that this Act shall not extend to any Fees to be taken for any Execution within any City or Town Corporate and although the words be generall yet the exposition shall be according to reason as it is said in Fulmerston and Stewards case in Plow Expesition shal be made against the words if the words be against reason 5 H. 7. 7 38 H. 3. Broo. Livery 6. The King shall have primer Seisen of all Lands of his Tenant which he holds of him in Capite but if one holds of the King in Capite in Socage he shall pay no primer Seisen to the King and this Statute shall have this intendment that this Proviso shall extend only to Executions upon Iudgments
shall take effect by Livery where by Jurolist 49 Grants of the King  Where voyd 61 H HEire Where he shall be charged where not 152 153 I JMparlance  Not before a Declaration is entred 150 Imprisonment  Where justifiable 13 Indictments 107 134 210 taken before Coroners Where quashed 202 Upon the Statute of 8. H. 9. of forcible entry of copy-hold Lands 205 Inn-keepers 128 179 may detain a Horse untill he be satisfied for his meat 127 Inquisition  by the Coroner in case of death must bee Super visum corporis per sacramentum proborem legatum hominum where not hood 210 Indiciments  for stopping a Church-way where good 206 For being a Night-walker where good 208 If good in one part shall not be quashed  Joyâ—ture  where it may be waived 88 Joynt-tâ—nants â—6 Justâ—fication 13. 161 Justices of Peace of Gaol delivery and Nisiprius and their power 17 Judgmâ—nts 211. 212 by Nihil dicit 153 Where a Judgment reversed without Errour brought where noâ— 181 Entred in the Book as a Memorandum stayed by a subsequent order of Court 181 L. Lâ—ases 99. 106. 57 Void by Acceptance 9 Where in Reversion good 9 By Tenants for life or years to begin after his death 96 By a Copyholder upon a License 105 Where determined without entry 27. 53. 64. Lessce for life without impeachment â—f Wast may make a Lease excepting the Trees 193 What interest he hath in them ib. Leeâ— 141 Libels  Where a privaâ—e Letter is punishable aâ— a Libell 139 Legacies not payable but upon demand 104 Livery of Seâ—sin 103 Where words spâ—ken upon the 〈◊〉 do amount to a Livery 47 49 Liâ—â—se  〈◊〉 couâ—termandable 151 〈◊〉 a Copâ—holder to make Leaâ—es 150 〈◊〉  〈…〉 by Bargain and Sale by word 48 Lunatick  The Action must be brought in his name 141 M. MAgis dignum continet in se minus 35 Mayhem 115 Market Overt  Where the Sale shall be good where not 48 In a Scriviners Shop of Plate void 84 What kind of Sale alters the property 84 Monstrans of Deeds 113 Melius Inquirendum  Where it shall issue where not and what to be found upon it 54 55 Misnosme 151 In Grains 57 Of a Corporation 58 N. NOtice 37. 151. Of a condition of payment where to be given 12 Taken strongly against the Party 12 Of one Sheriff to another Sheriff of the persons in Execution 85. 86 Where requisite 136. 164 Nusance 166 Errecting a Dove-coat by a Freeholder no Nusance 141 O. OBligation 165. discharged by the act of God 98 not to be avoided by the act of the Obligor himself 40 To the use of a Feme Covert shall go to her Administrator not to the Husband 106 One forfeited revived and good 16 Office and Officers  Where an Office is void Ipso facto 28 Forfeited and by what act 117 Of his own wrong 149 Office Trove 25 26 Where Lands shall be in the King without Office 19 Relates 20 helps the King to the meane profits 30 Countervailes an Entry And where no entry is requisite in case of a common person There needs no Office found for the King 53 Where an Estate shall be devested out of the King without Office 63 Where not 64. without Returne or Monstrans de droit 64 Oyer  Where of a condition where not 202 P. PAtents 16 Where the Patentee shall take advantage of a condition to avoid a Lease 27 Void for the generality in the Grant 61 Void notwithstanding the words Ex certa sciaentia 61 Perjury where not punishable 144 Pleadings 28. 42. 101. 109. 152. 150. 160. 163. 206. Void because double Plea 113. 114 Nul tiel in rerum natura no Plea in appeal of Mayhem 115 Perpetuities 97. not tollerable 80 Plenarty by Induction of a Lay-man 37. Binds not the King 133 Proviso How to be construed 27 For a Limitation 53. 117. 118 119 Where repugnant and void 87 Possessio fratris 35 Principall Accessare 107 Prisoners Must be delivered over at the Gaol 85. 86 Presentation 132 Proofs What Proofs are to be allowed in the Ecclesiasticall Court 59 Priviledges  Grant by the Pope not allowable 157 Prescription 169 For Common for Vicinage good 101 Difference betwixt it and Custome and how to be taxed 201 â—roperty 38 What kind of Sale alters the property 84 â—rohibition 59. 126. 159. 197 For a Seat in the Church 140 Severall Prohibitions in one Cause 156 Prerogative 26 Q. QViâ— juris clamat 63 〈◊〉 warrantâ— 150. 180 Quare Impedit by an Executor for a disturbance in vite Testator 189. 190 191 R. RAvishment of Ward by an Executor 190. 191 Recovery 6. 5 Releaâ—es 28. 132 Exâ—cuted where avoided by Proviso 16 Of all demands will dischaâ—ge a rest in â—uturo 136 Relation 12 Of a Baâ—l 132 Of Entry of Judgement 132 Return of the Sheriff of a Capias upon a day not Dies faci good 205 Request 160. 211. 212 Upon payment upon a Contract is not necessary 211. 212 Remainder 97 in Fee not good upon a Lease for years 4. 82 Must take effect when the particular Estate determines for life wiâ—hout impeachment of Wast whether he may cut Trees duâ—ing the life of Tenant for life 196. 74 Rents  Rent and Pension all one in a Demand in a â—ecovery 23 Where the Executor shall have the rent upon a Lease of the Wâ—ves land 145 Restitution  Of an Alderman to his place 134 Of one put out of his Office 176 Reservatâ—on 145 195. how construed 17 Revivor 167 S. SAvingâ— in an Act of Paâ—liament how construed 17 Scire 〈◊〉  Lâ—es â—â—t against the Bail till a Capiaâ— be awarded of the Principall 186 Seals 161 Scandalum Magnatum 66 Sheriffs Oâ—e Sheriff must deliver over the Prisoners to the other by Indeâ—ture 85. 86 Surplusage  shall not abate a Writ 24 Surrender 9. 31. 84. 110. 125 129 Of the Husband of the land of the Wife no discontinuance 38 39 Of an Infant Copyholder void 39 Of an Alderman of his place 134 Of Tenant for life in remainder good without Deed 137 138 T. TAles  where awarded of Aliens 36 Tender  where not good to avoid a condition 20 Title  where must be made 1 2 Trusts not abridged 8 Their difference from Uses 77 Traverse 1. 101. 103. not necessary where there are two Affirmatives but where they do not agree 67 Traverse upon a Traverse 101 Circumstances not traversable 161 Treason 122 Triall  Of the same person upon another Indictment after Attainder upon a former Indictment 107 Transporting Corn 149 Trespasse 161 Where Vi armis e contr 192 Tithes 140 Where discharged by Prescription or Priviledge 156 De animalibus inutilibus animalibus utrilibus and the difference 197 Of Sheep and their pasturing wool c. 157 V. VErdict 19 void 202 Found for thâ— Deâ—endants because no 〈…〉 â—â—tred for one of them 145 Volenti non fit injuria 9 Use and Uses  What a Use is 71 How to be construed 3 Not to be abridged 8 Void upâ—n a tender 18 Raised by word upon a good consideration where good where not 47 49 Raiâ—ed upon Contracts 48 Considerations to raise Uses 48 49 A bare Covenant writing without consideration will not raise an Use 50 What persons cannot stand seised to Uses 72 Uses contingent not executed by the Statute of 27. H. 8. 72 Uâ—es contingent destroyed by a Feoffment 72 Uses grounded upon fraud 77 Use cannot râ—â—e out of a Uâ—e 81 Uses in contingency barred by a Release of the Feoffees 83 Use upon a Bargain and Sale for years passeth without inrolement of the Deed 38 Use amerced upon a Fine upon render without a Deed 105 W. WAger of Law 127 Words  Where the King shall have a third part of the Land of the Ward and of other land setled upon a marriage 54 Wast 24. 25 47 Damages in Wast 24 Warrants  When a Warrant is returned upon Record in case of the King it is as strong as an Office found 20. 28 29 Warranty  doth bind an Infant if his Entry is not lawfull 71 cannot enlarge an Estate 138 Wills 152 Words which make a condition in Wills 8 Writ  of enquiry of damages 24 Where not abated 24 Originall shall be taken as they are written 101 FINIS