that now the time before the forfeiture ought not to be accounted in this Case But the Orginal beginning of the Copyhold shall be holden to be 23 H. 8. when the Grant de Novo by Copy was made between which time and 8 Eliz. is an interval but of 47 years within which time a Customary Interest cannot be attached upon the Land And then before sufficient time encurred c. the Lord may well enter upon such a Tenant at Will For as yet there is not any Custom begotten by sufficient time to bind him It was also agreed by the Iustices That if the Lord of a Mannor is seised of an ancient Copyhold for forfeiture or by reason of Escheat and Lett the same at Will without any Copy for divers years one after the other that that is not any Interruption of the Customary nature of the Land but that the Lord may grant it again by Copy As to other parcel of the Land It was given in Evidence That at a Court lately holden at Northelman It was presented by the Homage there That Taverner the Plaintiff being a Copy-holder of the said Mannor had forged a Customary of the said Mannor containing divers false Customs pretending them to be true Customs of the said Mannor and that he had forged and put a Seal to it about which this word viz. Northelman is engraven And that he had procured divers Copyholders of the said Mannor to set their seals to it and that he said unto them That that Customary should be put into the Church of Northelman amongst the Charters and Evidences of the said Church And that he had now made his Copyhold as good as his Freehold And If the said Offence committed by the Plaintiff ut supra be a forfeiture of his Copyhold was the Question It was argued by Popham who was of Counsel with the Plaintiff That without further matter it was not any forfeiture And yet he confessed It is a forgery against the first branch of that Statute of 5 Eliz. cap. 14. And so he said it was lately adjudged in the Star-Chamber But as to the point of Forfeiture he put this difference If the Lord demand his Services of his Copyholder there If the Copyholder upon debate between the Lord and himself sheweth forth such a forged Customary and Counterpleads the Demand of the Lord with it now it is a forfeiture for that the Inheritance of the Lord is thereby hazarded As if the Copyholder after the forfeiture keep it himself and doth not encounter his Lord in his demand with it in his services the same is not any forfeiture As if the Copyholder before any Rent be due saith That he will not pay any Rent to the Lord hereafter Or when a Court is to be holden That he will not after appear to do any Suit at the Court of his Lord c. But if his Rent being due he denyeth it Or when the Court is holden he saith That he will not do any Suit the same is a foreiture As it was lately adjudged in the Kings Bench in the Case between Sir Christopher Hatton and his Copyholders of his Mannor of Wellingborough So if a Copy-holder being with the other Copyholders charged upon Oath to enquire of the Articles of the Court-Baron and sufficient matter being given to them in Evidence to induce them to find a matter within their Charge and they or any of them obstinately refuse to find the same the same is a forfeiture of his Copyhold As it was adjudged in the Case of Sir Rich. Southwell Knight and Thurston Clench Iustice conceived That in the principal Case the Offence of the Plaintiff is not any forfeiture no more 1 Roll. 508. than if a Copyholder makes a Charter of Feoffment of his Customary Land and delivereth the same as his Deed to the party but doth not execute it by Livery the same is not any forfeiture It was argued by Gawdy Serjeant who was of Counsel with the Defendant to the contrary For he said That if a Copyholder will forge a Deed of Feoffment purporting That the Lord of the Mannor hath enfeoffed him of the said Customary Land notwithstanding that he keepeth such Charter himself without shewing it forth yet it is a Forfeiture At the length The Court wished the Iury to find the special matter and to refer the same to the Court Whether it was a Forfeiture or not In this Case another matter was moved viz. The Auncestor of the Plaintiff had purchased divers several Copyholds from several Copyholders by several Copies whereof he died seised Or committed several Offences by which he forfeited to the Lord all his Copyholds for which the Lord seised and granteth them again to his Auncestor wtih the Ancient Rent and to his Heirs Tenendum per antiqua servitia consueta c. And afterwards the same Copyholder commiteth Waste whether the same shall now trench to forfeit all the Copyhold Lands which were granted ut supra by one entire Copy Or only that which was before the seizure holden by the same Rent Et nihil ultra For these words Tenendum per antiqua servitia do not trench only to the Quantity of the Services but also to the Quality scil severally so as there shall be several Services as before As if A. be seised of Copyhold Land on the part of his Father and of other Copyhold Land on the part of his Mother and thereof dieth seised and his Son and Heir be admitted to it by one Copy and by one Admittance Now if that Son dieth without Issue the Copyholds shall descend severally the one to the Heir on the part of his Father and the other to the Heir on the part of his Mother c. And afterwards the Iury found the Special Verdict and the special matter ut supra c CLIX. Vincent Lee's Case Trin. 26 Eliz. In the Exchequer 1 Inst 138. b. VIncent Lee seised of Lands in Fee had Issue 3 Sons F.G. and J and by his last Will in writing Devised That J. his Son should have the Land for the Term of 31 years without impeachment of Waste to the intent that he pay certain Debts and Legacies set down in his said Will The remainder after the said Term expired to the Heirs Males of the Body of the said J. begotten And further willed That if the said J. die within the Term aforesaid that then G. his Son shall have such Term c. and then also shall be Executor but made the said J. his present Executor and died J. entred by force of the Devise F. died without Issue by which the Feesimple descended upon J. who had Issue P. and died within the Term P. entred G. as Executor entred upon him and he re-entred upon which re-entry G. brought Trespass Pigott said That the Term by the descent of the Fee from F. to J. being the second Son of Vincent and Heir of F. is not extinct but only suspended It hath
created by this Will but the Feesimple setled in them when they came at their lawful age and had Issue so as the residue of the Devise was void and Iudgment was given accordingly CLXVI Griffith and Agard's Case Mich. 27 Eliz. In the Common Pleas. IN Disceit by Griffith against Agard and his Wife 1 Len. 290. For that a Fine was levied of a Messuage being Ancient Demesne by which it became Frank-Fee and the Fine was levied in the life of A. Griffith Grandfather of the Plaintiff Exception was taken to the Writ because it is brought by the Plaintiff as Cosen and Heir of A. G. his Grandfather And in the beginning of the Writ the words are Si Henricus Griffith fecerit te securum without saying Cousen and heir of A. G. fecerit te securum But the Exception was not allowed For afterwards in the Writ these words are Cujus haeres ipse est See the Register 238. that it is sufficient if there be in the body of the Writ these words Cujus haeres ipse est Another Exception was taken to the Declaration in that it is alledged that the Lands were De antiquo Dominico Dominae Reginae Angliae wereas it ought to have been De antiquo Dominico Dominae Coronae suae c. The Opinion of the Court was That it was good both ways See Book Entries 100. antiquo Dominco Coronae 58. de antiquo Dominico Domini Regis CLXVII Bashpool's Case Mich. 27 Eliz. In the Kings Bench. 2 Len. 101. Stiles Rep. 148. THe Case was The Father was seised of Lands in Fee and bound himself in an Obligation and devised his Lands unto his Wife until his Son should come to the age of 21 years the Remainder to his Son in Fee and died and no other Land descended or came to the Son from the Father It was moved by Godfrey That the Heir in this case might elect to waive the Devise and to take the Land by Descent See 9 E. 4. 18. by Needham But it was the Opinion of Gawdy and Shute Iustices That the Son should be adjudged in by Descent and so bounden with the Debt CLXVIII Branthwait's Case Mich. 27 Eliz. In the Kings Bench. DEbt brought by J. D. against Branthwait upon an obligation the Condition of which was That whereas J. F. claimed to have a Lease for years of the Mannor of D. made and granted to him by one W. D. If the said Branthwait keep without damage the Plaintiff from all claim and Interest to be challenged by the said J. F. de tempore in tempus during the years c. and also deliver the said Lease to the Plantiff that then c. The Defendant pleaded That the said J. F. had not any such Lease and that after the making of the said Obligation untill the Action brought the Plaintiff was not damnified ratione dimissionis praedictae Exception was taken to the same because where the words of the Condition are Keep without damage the Plaintiff from all Claim and Interest And he hath pleaded That the Plaintiff was not damnified ratione dimissionis c. But the Exception was disallowed by the Court For if he were not damnified ratione dimissionis then he was not damnified by reason of any Claim or Interest Another Exception was taken Because he could not now say there was no such Lease For it is recited in the Obligation That J. F. claimed to have a Lease and therefore by this recital he is estopped c. And see where a Recital is an Estoppel 8 R. 2. Fitz. 2 Len. 11. tit Estoppel 283. 39 E. 3. 3. Fitz. Estoppel 112. 46 E. 3. 12. It was holden by the Court That it was a good Estoppel And afterwards Iudgment was given for the Plaintiff CLXIX Mich. 27 Eliz. In the Kings Bench. DEbt upon an Obligation The words of the Obligation were I am content to give to W. 10 l. at Michaelmas and 10 l. at our Lady day It was holden by the Court That it was a good Obligation And it did amount to as much as I promise to pay c. It was also holden by the Court That an Action of Covenant lay upon it as well as an Action of Debt at the Election of the Plantiff And it was holden That although the Action is for 40 l. and the Declaration is 20 l. and 20 l. at two several days yet it is good enough and the Declaration is well pursuant to it And afterwards Iudgment was given for the Plaintiff CLXX The Queen and Kettell's Case Trin. 27 Eliz. In the Common Pleas. THe Queen brought a Writ de Valore Maritagii against Kettell and Counted of a Tenure in Chief The Defendant pleaded That pendant the Writ the Queen had granted to one Edmund Kettel Custodiam Maritagium of the said Defendant with whom he had Compounded It was holden by the whole Court to be no Plea for the Letters Patents were void because the Queen was deceived in her Grant for it appeareth by the Count that the Defendant before the Grant of the Queen was of full age And by the Letters Patents the Queen intended that he was within age and by the same granted Custodiam c. CLXXI. Mich. 27 Eliz. In the Common Pleas. A. Seised of Land by his Will Devised 1 Len. 31. That his Executors should sell the Lands and died the Executors levied a Fine thereof to one F. taking Mony for it of F. The Question was If in title made by the Conusee to the said Lands by the Fine It be a good Plea against the same to say Quod partes Finis nihil habuerunt Anderson conceived That it was But by Windham and Periam upon Not guilty the Conusee may help himself by giving in Evidence the special matter in which Case the Conusee shall be adjudged in not by the Fine but by the Devise And Windham said That if A. Devise That his Executors shall sell a Reversion of certain Lands of â—hich he dieth seised and they sell the same without Deed the same is well enough for the Vendee is in by the Devise 1 Iust 113. a. and not by the Conveyance of the Executors Quod vide 17 H. 6. 23. And by Periam The Conusee may help himself in pleading As he who is in by the Feoffment or Grant of Cestuy que use by the Statute of 1 R. 3. CLXXII Lee and Loveday's Case Trin. 27 Eliz. In the Common Pleas. TEnant in tail leased for 60 years and afterwards levied a Fine to Lee and Loveday sur Conusans de Droit come ceo c. and their Heirs in Fee And afterwards the Lord of the Mannor of whom the Land was holden brought a Writ of Disceit and upon that a Scire facias against the Conusees supposing the Land to be Ancient Demesne The Defendants made default by which the Fine was annulled and now the Issue in tail entred upon the Lessee for years and he brought an Ejectione firme
now the Grant to Fortescue be good or not Vide inde Dyer 2 Eliz. 17. Vpon a Writ of Mandamus The Escheator charged the Enquest who were agreed of their Verdict and delivered the same in Paper to the Escheator And before the engrossing sealing and delivery of it came a Supersedeas And it was Resolved by all the Iustices That before the engrossing indenting and sealing it was no Verdict See this Case Reported in Cook 5. Part 54. CLXXIX Nelson's Case Pasch 27 Eliz. In the Common Pleas. IN Trespass brought by Nelson chief Preignothory of the Court of Common Pleas the Case was That the Abbot of D. was seised of a Common out of the Lands of the Abby of S. as appendant unto certain Lands of the said Abby of D. And afterwards the said Houses were dissolved and the possessions of them given to the King by Act of Parliament to have and hold in as large and ample manner and form as the late Abbots c. After which the King so being seised granted the said possessions of the said Abby of D. to A. and the possessions of the said Abby of S. to B. It was argued That the Common notwithstanding the unity of possession did continue For unity of possession is so qualified and restrained by the Statute by the words aforesaid and also by the words in the state and condition as they now be And the Abbot of D. was seised in the right of his House of the said Common Therefore so also shall be the King and his Patentees and so a special seisin is given to the King. Rhodes Windham and Anderson Iustices to the contrary And the said words in the said Statute are to be construed according to the Law and no further And by the Law the said Common cannot stand against the Vnity of possession CLXXX Leonard's Case Trin. 28 Eliz. In the Common Pleas. 2 Len. 192. 2 Roll. 787. LEonard Custos Brevium brought an Action of Trespass for breaking of his Close The Defendant pleaded That William Heydon was seised and enfeoffed him And upon Ne enfeffa pas they were at Issue And it was found by Special Verdict That the said William Heydon was seised and leased to the Defendant for years and afterwards made a Charter of Feoffment to him by these words Dedi Concessi with a Warrant of Attorny in it and delivered the same to the said Lessee who delivered the same to him who was made Attorny in the said Deed who made Livery accordingly It was moved by the Plaintiff's Counsel That here is not any Feoffment found but only a Confirmation For as soon as the Charter was delivered to the Lessee for years the Law gave it its operation to that effect to vest the Fee in the Lessee by way of Confirmation See Litt. 532. But the Opinion of the whole Court was clear to the contrary for here the Lessee hath liberty how and by what Conveyance he shall be adjudged seised of the Land either by Feoffment or by Confirmation And it appeareth here That when the Lessee delivered the Charter to the Attorny And also when the Lessee accepted Livery from the Attorny he declared his meaning to be That he would take by the Livery And the Lord Anderson said That if Tenant in tail be disseised and makes a Charter-Feoffment with a Warranty of Attorny and delivers the same to the Disseisor who delivers the same to the Attorny who makes Livery accordingly the same is a good Feoffment and so a Discontinuance And after many Motions the Court awarded That the Plaintiff should be barred CLXXXI Palmer and Waddington's Case Trin. 28 Eliz. In the Common Pleas. RIchard Palmer brought an Action upon the Case against Anthony Waddington And Declared That Henry Waddington Brother of the Defendant was endebted to the said Plaintiff in 20 l. Et jacens in extremis mortem indies expectans vocavit ad se dict Anthonium quem executorem Testamenti ultimae voluntatis Constituisset eum rogans ut dictas 20 Libras praefato Richardo infra spacium duorum Mensium mortem suam proxime sequend numeraret solveret Et dictus Anthonius in Consideratione inde super se assumpsit c. And all the matter aforesaid was found by Verdict upon Non Assumpsit pleaded And it was the Opinion of the whole Court That the Declaration was insufficient because there is not any good Consideration set forth in it for it is not said That in Consideration that the said Henry made the Defendant his Executor c. CLXXXII Stransham and Collington's Case Trin. 28 Eliz. In the Kings Bench. THe Plaintiff sued in the Spiritual Court for Tythes against the Defendant within the Parish of C. The Defendant said 1 Cro. 128. That the Tythes are within the Parish of A. and the Parson of A. came in pro interesse suo and thereupon they proceeded to sentence and that was given against Stransham who now sued a Prohibition And the Question was If within such a Parish or such a Parish be tryable by the Law of the Land or by the Law of the Church Wray Chief Iustice said It hath been taken That it is tryable by our Law. Fenner The Pope hath not distinguished Parishes but hath Ordained That Tythes shall be paid within the Parish CLXXXIII Higham's Case Mich. 28 Eliz. In the Common Pleas. 2 Len. 226. More Rep. 221. 1 Cro. 15. IT was found by Special Verdict That Thomas Higham was seised of 100 Acres of Lands called Jacks usually occupied with a House And that he Leased the said House and 40 Acres of the said 100 Acres to J.S. for life and made his Will by which he devised the said House and all his Lands called Jacks then in the Occupation of J.S. to his Wife for life and that after the decease of his Wife the Remainder thereof and of all his other Lands appertaining to Jacks to Richard his second Son c. It was said by Meade That the Wife should not have by Implication the Residue of Jacks for that she hath an express estate in the House and 40 Acres of the Land and her Husband having expressed his Will as to that his Will shall not be construed by Implication to pass other Lands to the Wife And it was said by him That it had been adjudged in the Case between Tracy and Glover That if Lands be devised to one and to his Heirs and if he dieth without Heir of his body 1 Roll. 839. that then the Land shall remain over that in such case the Donee hath but an Estate in tail to him and the Heirs males of his body And it was then also said by Anderson Chief Iustice That in the time of Sir Anthony Brown it was holden That if a Man be seised of two Acres of Land and devised one of them to his Wife for life and that J.S. shall have the other Acre after the death of his Wife that the Wife
of Estate of Freehold c. But in our Case the Office is confessed by the Traverse to be true although that the conveyance be not truly found And also Harris at the time of the Office found had not just title but his Interest came to him long time after the Office found Also the traverse is not good for he traverseth the matter of the Conveyance which is not traversable For if the Queen hath title non refert quo modo or by what Conveyance she hath it As to the matter in Law Tenant in tail in remainder is Attainted of Felony If the King during the life of the Tenant in tail shall have the Freehold And he conceived she should For it shall not be in abeyance and it cannot be in any other for when he is attainted he is dead as unto the King The chief Lord cannot have it For the Tenant for life is alive and also he in the remainder in Fee c. The Donor shall not have it for the Tenant is not naturally dead but civilly and the Land cannot revert before the Tenant in tail be naturally dead without Issue But if there were any other in whom the Freehold could vest then the King should not have the Freehold but only the profits So if the Tenant be attainted the Lord shall have the Land presently 3 E. 3. 4 E. 3. The Husband seised in the right of his Wife is attainted of Felony the King shall have but the profits because that the Freehold rests in the Wife and if the Lord entreth the Wife shall have an Assise And Tenant in tail may forfeit for his life as he may grant during his life See Old N.B. 99. If Tenant in tail for Life Dower or by the Curtesie be attaint of Felony the King shall have the Land during their lives and after their decease he in the Reversion shall sue to the King by Petition and shall have the Lands out of the Kings hands And there it is further said That the Lord by Escheat cannot have it for the party attainted was not his very Tenant but he in the Reversion for the term yet endures But now is to see If the Freehold be in the King without Office And I conceive that it is Where the King is entituled to an Action there the King ought to have an Office and a Scire facias upon it As where the King is entituled to a Cessavit Action of Waste c. 14 H. 7. 12. Where entry in the Case of a Common person is necessary there behoves to be an Office for the King. As where the Kings Villain purchaseth Lands or an Alien born c. so is it for a Condition broken Mortmain c. In some Cases an Office is only necessary to instruct the King how he shall charge the Officer for the profits which may be supplyed as well by Survey as by Office As if the King be to take by descent or as the Case is here And it is true That a person attainted of Felony may during his Attainder purchase Lands and yet he cannot keep it against the King. And it is clear That by the Common Law in such Cases the Land was in the King but not to grant For the Statute of 18 H. 6. was an Impediment to that But now that defect is supplyed by the Statute of 33 H. 8. So as now the King may grant without Office. See 26 Eliz. Cook 3 Part Dowty's Case And in our Case Office is not necessary to entitle the King but to explain his Title See 9 H 7. 2. The Lands of a Man attainted of High Treason are in the King without Office so where the Kings Tenant dieth without Heir or Tenant in tail of the gift of the King dieth without Issue See Br. Office before the Escheator 34. See 13 H. 4. 278. A Man Attainted of Treason the King before Office grants his Lands and Goods Things which lie in Grant as Advowsons Rents c. such things upon Attainder are in the King without Office. As to the General Pardon of 23 Eliz. He conceived That the same did not extend to this Case and that this Interest of the Queen by this Attainder did not pass by the Pardon out of the Queen So if the Queen had but a Right and title only Popham Attorny General By this Attainder the Estate of him in the Remainder in tail accrued to the Queen for the life of him in the Remainder For by our Law Felony is punished by the death of the Offendor and the loss of his Goods and Lands for the example of others therefore nothing is left in him Tenant for life is attainted of Felony The King pardons to him his life yet he shall have his Lands during his life for he himself cannot dispose of them for his life And so it is of Tenant in tail c. for he may forfeit all that which he hath and that is an Estate for his life which is the Freehold If Lands be given to one and his Heirs for the life of another and the Donee be attainted of Felony the King shall have the Land during the life of Cestuy que vie for the Heir cannot have it because the blood is corrupt and there is not any Occupancy in the Case For 17 E. 3. the Iustices would not accept a Fine of Lands for the life of another because an Occupant might be in the Case But for a Fine of Lands to one and his He is for the life of another they accepted a Fine for there is no mischief of Occupancy Land is given to A. for life the remainder to B. for life the remainder to the right Heirs of A. who is attainted of Felony A. dieth now the King hath a Fee executed And here in our Case If this Tenant for life had been dead no Praecipe would lie against him in the remainder being in possession but the party who had right was to sue to the King by Petition 4 E. 3. If one seised in the right of his Wife of Lands for life be attainted the King shall have exitus proficua But I conceive that Case is not Law For see F.N.B. 254. D. The Husband seised in the right of his Wife in Fee is Outlawed of Felony the King seiseth the Husband dieth Now shall issue forth a Diem Clausit extremum the words of which Writ are in such case Quia A. cujus terra Tenement quae ipse tenuit de jure haereditate N. uxoris suae adhuc superstites occasione cujusdam utlagariae in ipsum pro quadam felonia inde indictatus fuit c. in manu Domini H. Patris nostri extiterunt c. therefore the King hath not exitus tantum but also the Land it self See to the same purpose the Register 292. b. And see also now in the Book of Pleas of the Crown 186 187. which affirmeth That Tenant in tail being attainted of Felony shall forfeit the
Land during his life And he conceived That this Estate of Tho. Venables was in the King without Office not to grant for he is restrained by the Statute of 18 H. 8. but it is in him so before Office that he who hath right ought to sue to the King by Petition if he will have the same Yet he conceived That before the said Statute of 18 H. 6. the King might grant it before Office as it appeareth by Thirning 13 H. 4. 278. which was before the Statute So if the Kings Tenant makes a Lease for years the remainder over to another in Fee who dyeth without Heir the said remainder is in the King without Office because a common person in such case cannot enter but a Claim is sufficient and therefore it shall be in the King without Office. As to the Pardon He conceived That it did not extend to this Estate For the same is a Freehold therefore not within the Pardon As if the Kings Tenant be attainted of Felony and the King pardons him all Offences and all which he may pardon these words will not go or extend to Freehold but only to personal matters and such punishments and pains which do concern Chattels But it may be Objected That in this Pardon title of Quare Impedit and Re-entries for Conditions are excepted and therefore if they had not been excepted they had been released by the Pardon And therefore this Pardon doth extend to Inheritances and Freeholds As to that I say That such Exceptions were not in use in the time of King Ed. 4. and such Inheritances and Freeholds were not taken to be within such Pardons And such Exceptions began 5 Eliz. And he said he had been of Counsel in such Cases where it had been taken That such Pardons did not extend to Freeholds As an Abbot was disseised and during the Disseisin the Abby was dissolved the King made such a Pardon the same did not transfer the Kings right And in this Case there are divers Exceptions of Goods and Chattels in many cases and therefore it cannot be intended that this Pardon doth extend to Freeholds And see the said Act of Pardon There the Queen gave and granted all Goods Chattels Debts Fines Issues Profits Amercements Forfeitures and Sums of Mony which word Forfeiture shall be intended personal forfeiture and not otherwise for it is coupled with things of such nature And as to the Traverse he conceived That it did not lie in this Case For the Office is not untrue in substance although it be void in Circumstances And also the King here is entituled by double matter of Record i. e. the Attainder and the Office. And he said That the Statutes of 34 36 E. 3. which gave Traverse are to be meant of Offices found virtute Officii and not virtute Brevis for then Escheators were very troublesome And 2 E. 6. doth not give traverse but where the Office is untruly found As if the Kings Tenant be disseised and the Disseisor be Attainted The Queen seiseth the Land Now the Disseisee hath no remedy by traverse upon the Statute of 2 E. 6. but is put to his Monstrans de Droit for that the Office is true But if I be the Kings Tenant and seised of Lands accordingly and it is found that J.S. was seised of my Land and attainted c. whereas in truth he had not any thing in my Land there Traverse lieth For the Office is false And so our Case for the Traverse is at the Common Law. And it is true that Venables was seised c. Cook to the contrary And he conceived That by the Attainder the Queen had gained but a Chattel And that notwithstanding this Forfeiture If Venables had been in possession a Praecipe should be brought against him And whereas it hath been said by Mr. Attorny That the Writs set down in the Register are the best Expositors of our Law the same is not so For the Register saith That Waste lieth notwithstanding a mean Remainder which is not now Law but it hath been clearly ruled to the contrary See acc 50 E. 3. The Register therefore and the Writs are subject to the Iudgments of our Law. And the Writ of Diem clausit extremum is not to the contrary For I confess that in such case Hob. Rep. 342. the Land shall be seised into the Kings hands but the King shall have but a Chattel in it It hath been argued He may grant therefore he may forfeit Nego Consequentiam For a Man seised in the right of his Wife may grant but not forfeit Gardian in Socage may grant but not forfeit The Husband may grant a Term for years which he hath in the right of his Wife but he cannot forfeit it A Woman enheritrix taketh Husband and afterwards is attainted of Felony the King pardons him they have Issue the Woman dieth the Husband shall be Tenant by the Curtesie which proveth that the King hath no Freehold by this Attainder Before the Statute of West 2. Tenant in tail post prolem suscitatam might forfeit the Land but now the Statute hath so incorporated the Estate tail to the Tenant in tail that it cannot be devested yea a Fine levied ipso jure est nullus although as to the possession it be a discontinuance And that is the reason wherefore Tenant in tail shall not be seised to another's use See Stamford 190. b. The Husband seised in the right of his Wife is attainted of Felony the King shall have the Issues of the Land of the Wife during the life of the Husband c. So if Tenant in tail be Attainted of Felony that is but a Chattel in the Lands of the Wife and also in the Lands of the Tenant in tail and if the possessions of a Bishop be seised into the Kings hands for a Contempt In such case the King hath possession and not only the profits The same Law of Lands of Tenant in tail or for life being attainted of Felony So seisure for alienation without Licence or of the possessions of Poor Aliens See Br. Reseisure 10. So where the seisure is for Idiocy And he conceived That nothing is in the King without Office. And as to the Case of 13 H. 4. 6. I confess it For all that time many and amongst them Lawyers and Iustices were attainted by Parliament And so was Sir John Salisbury whose Case it was and their Lands by Act of Parliament given expresly to the King and therefore I grant that their Lands were in the King without Office. Tenant in Fee of a Common Lord is attainted of Felony his Lands remain in him during his life till the entry of the Lord and where the King is Lord until Office be found but in the case of a Common person after the death of the person attainted it is in the Lord before Entry and in the Case of the King before Office for the Mischief of Abeyance And see the Lord Lovell's
that the Queens Attorny said That it is true that Thomas Robinson was possessed but it is further said That Thomas granted it to Paramour and so the Interest of Thomas is confessed on both sides and therefore the Iury shall not be received to say the contrary But the Opinion of Manwood Chief Baron was That if the parties do admit a thing per nient dedire the Iury is not bound by it but where upon the pleading a special matter is confessed there the Iury shall be bound by it And afterwards the Issue was found against Robinson the Defendant CCLXXIII Trin. 30 Eliz. In the Kings Bench. IN an Action of Debt by A. against B. upon an Obligation the Defendant pleaded tender of the Mony according to the Condition upon which the parties were at Issue And after the Defendant pleaded That after the Darrein Continuance the Debt now in demand was Attached in the Defendants hands according to the Custom of London for the debt of C. to whom the Plaintiff was endebted It was the Opinion of the Court That the Plea was insufficient for it is altogether contrary to the first Plea. And also the Court held That in an Action for the debt depending here in this Court the debt cannot be attached and the Court would not suffer a Demurrer to be joyned upon it but over-ruled the Case without any Argument For it was said by Wray Chief Iustice That it was against the Iurisdiction of the Court and the Priviledge of it CCLXXIV Trin. 30 Eliz. In the Kings Bench. NOte It was holden by the Court That if a Copyholder in Fee dieth seised and the Lord admits a stranger to the Land who entreth that he is but a Tenant at Will and not a Disseisor to the Copyholder who hath the Land by descent because he cometh in by the assent of the Lord c. CCLXXV Trin. 30 Eliz. In the Kings Bench. AN Ejectione firmae was brought de uno Cubiculo and Exception was taken to it But the Exception was disallowed The Declaration was special viz Leas unius Cubiculi per nomen unius Cubiculi being in such a House in the middle story of the said House And the Declaration was holden good enough and the word Cubiculum is a more apt word than the word Camera And such was the Opinion of Wray Chief Iustice And it was said That Ejectione firmae brought de una rooma had been adjudged good in this Court. CCLXXVI Johnson and Bellamy's Case Rot. 824. Mich. 30 31 Eliz. In the Common Pleas. IN an Ejectione firmae It was holden by Special Verdict 1 Cro. 122. That W. Graunt was seised of certain Lands and by his Will devised the same to Joan his Wife for life And further he willed That when Rich. his Brother should come to the age of 25 years that he should have the Land to him and the Heirs of his body lawfully begotten W. Graunt died having Issue of his body who was his Heir Rich. before he attained the age of 25 years levied a Fine of the said Lands with proclamations in the life and during the seisin of Joan to A. sic ut partes finis nihil habuerunt And If this Fine should bar the Estate in tail was the Question And the Iustices cited the Case of the Lord Zouch which was adjudged Mich. 29 Eliz. Where the Case was Tenant in tail discontinued to E. and afterwards levied a Fine to B. That although that partes finis nihil habuerunt yet the said Fine did bind the Estate tail But the Serjeants at the Bar argued That there was a difference between the Case cited and the Case at Bar For in the Case cited the Fine was pleaded in Bar but here it was not pleaded but found by Special Verdict To which it was said by the Court That the same is not any difference For the Fine by the Statute is not any matter of Estoppel or Conclusion but by the Statute binds and extincts the entail and the right of it And Fines are as sufficient to bind the right of the entail when they are found by Special Verdict as when they are pleaded in Bar. And Periam Iustice said A Collateral Warranty found by Special Verdict is of as great force as pleaded in Bar. And afterwards Iudgment was given That the Estate tail by that Fine was utterly barred and extinct CCLXXVII Mich. 30 Eliz. In the Kings Bench. THe Case was A Man made a Lease for life rendring Rent at Michaelmas and further Leased the same to the Executors of the Lessee until Michaelmas after the death of the Lessee It was affirmed by Cook That in that Case it was adjudged That the word Until shall be construed to extend to the Term unto the end of the Feast of St. Michael and so the Rent then due payable by the Executors for without such Construction no Rent should be then due because the Term ended before Michaelmas CCLXXVIII Pasch 30 Eliz. In the Kings Bench. ONe was bounden to stand to the Award of two Arbitrators who awarded That the party should pay to a stranger or his Assigns 200 l. before such a day The stranger before the day died B. took Letters of Administration The Question was If the Obligee should pay the Mony to the Administrator or if the Obligation was discharged It was the Opinion of the whole Court That the Mony should be paid to the Administrator for he is an Assignee And by Gawdy If the word Assigns had been left out yet the payment ought to be made to the Administrator Which Cook granted CCLXXIX Pasch 30 Eliz. In the Common Pleas. THe Defendant in Debt being ready at the Bar to wage his Law was examined by the Court upon the points of the Declaration and the cause of the Debt upon which it appeared that the Plaintiff and Defendant were reciprocally endebted the one to the other And accompting together they were agreed That each of them should be quit of the other It was the Opinion of Periam and Anderson Iustices That upon that matter the Defendant could not safely wage his Law For it is but an agreement which cannot be executed but by Release or Acquittance CCLXXX Pasch 30 Eliz. In the Common Pleas. TEnant in tail Covenanted with his Son to stand seised to the use of himself for life and afterwards to the use of his Son in tail the remainder to the right Heirs of the Father The Father levied a Fine with proclamations and died It was moved by Fenner If any Estate passed to the Son by that Covenant for it is not any discontinuance and so nothing passed but during his life and all the Estates which are to begin after his death are void Anderson Iustice The Estate passeth until c. And he cited the Case of one Pitts where it was adjudged That if Tenant in tail of an Advowson in gross grants the same in Fee and a Collateral Ancestor releaseth with warranty and dieth
ad Beneficium Ecclesiasticum pertinet Examinatio ad Judicium Ecclesiasticum 40 E. 3. 25. And see the Statute of 18 Eliz. that Pars gravata in the Case of Maintenance is not tyed to a year And this suit is conceived to be in such Quality being a private grievance to the party himself the King not being party but only the party grieved But where the penalty is expresly given to the King and him that shall sue there all the proceedings ought to be in both their names And Manwood Chief Baron said That this Issue shall be tryed by the Country Which see in the Book of Entries 396. CCCXXVII Owen Morgan's Case Mich. 32 33 Eliz. In the Exchequer OWen Morgan Exhibited an Information upon the Statute of Usury for an usurious Mortgage made and charged the Defendant That Cepit ultra 10 l. in Cl. for the forbearance for one year and that was out of the Issues Rents and Profits which he took in Middlesex of Lands in Glamorganshire in Wales Mortgaged to the Defendant Manwood Chief Baron said That one might take the Rents of Lands in Wales in the County of Middlesex but a Man cannot take the Issues and Profits of the Lands but where the Lands are And Leak 's Case was cited Where an Information was brought for cutting down of Wood and converting it into Coals And Leak the Informer laid the cutting to be in the County where the Wood grew but the Conversion of it into Coals in the County of Middlesex And Manwood said in the principal case That the taking of the Issues and Profits ought to have been layed where the Land was And such was the Opinion of the whole Court. CCCXXVIII Curson's Case Mich. 32 33 Eliz. In the Exchequer CUrson acknowledged a Statute to Starkey 4 Len. 10. Ante 239. Alderman of London and afterwards he acknowledged another Statute to one Hampden who assigned the same to Fitton who assigned the same to the Queen Starkey sued forth Execution upon his Statute and thereupon the Land is extended of Curson and he hath a Liberate of it It was agreed by all the Barons That if Starkey had execution upon the Statute before the Queen his Execution should stand against the Queen and the Queen should not put him out And it was further agreed by them That if A. recovers a Debt in the Common Pleas so as he hath title to sue forth Execution by Elegit and the Defendant sells his Lands and afterwards A. assigns his Execution to the Queen That the Queen should not have prerogative against the Feoffee to have execution of the whole Land. And it was also holden by Manwood Chief Baron That if Execution be had upon a puisne Statute and the same is afterwards avoided by more ancient Statute and afterwards the ancient Statute is satisfied That now the puisne Recognisee may re-enter without suing forth any new Execution CCCXXIX Butler and Lightfoot's Case Mich. 32 33 Eliz. In the Exchquer IN this Case It was holden by the Barons 4 Len. 9. That if Tenant for life be of a Copyhold the Remainder over in Fee to another he in the Remainder may surrender his Estate if there be not any particular Custom to the contrary for the Estate of Tenant for life and him in the remainder are but one Estate and the admittance of the particular Tenant is the admittance also of him in the Remainder CCCXXX Knight and Norton's Case Mich. 32 Eliz. In the Common Pleas. IT was holden in this Case That duress of Imprisonment is not intended but where the party is wrongfully imprisoned until he make the Bond and not where a Man is lawfully imprisoned for another cause and for his delivery he makes a Bond for that is not per duritiam imprisonamenti And if in such Case duresse be pleaded the other may say of his own accord sine duritia imprisonamenti without saying absque hoc that it was per duritiam imprisonamenti And so it was also holden in the Kings Bench. See 4 E. 4. 17. 12 E. 4. 7. CCCXXXI Hungate and Hall's Case Trin. 32 Eliz. In the Exchequer Ante 239. 4 Len. 10. THe Case was Curson acknowledged a Statute to Alderman Starkey and afterwards acknowledged another to Hampdem which was assigned to the Queen Afterwards the Lands of Curson were extended for Starkey and a Liberate thereof It was holden by the Court That the same was a good Execution and that the Queen should not avoid it But if the Land had been extended at the suit of the Queen then the Execution of the Queen should hold place although it were a Statute of a puisne date And by Clark Baron If a Recognizance acknowledged by a Subject be assigned to the Queen It hath been a Question If all the Lands of the Conusor shall be extended or but the moyety as it shall be at the suit of the Conusee himself It was holden That all the Lands should be extended CCCXXXII The Lord Gray's Case Trin. 32 Eliz. In the Exchequer THe Lord Gray Tenant of the King of Lands holden in Capite by Licence of the King made a Feoffment of the Lands in Fee and afterwards levied a Fine for further assurance And upon Process the party came into the Court and shewed this matter And the party was advised by the Court to aver That the said Fine was for further assurance And then upon such averment he should be discharged without any Pardon sued forth for the Fine c. CCCXXXIII Sir Walter Waller's Case Trin. 32 Eliz. In the Exchequer IN Sir Walter Waller's Case It was holden in the Court of Exchequer That a Debt of Record as upon a Iudgment c. could not be attached by the Custom of London 1 Len. 29. And so it was holden in the Case of Sir John Perrot in the Common Pleas. 4 Len. 44. And it was said by Cook That such a debt could not be assigned upon the Statute of Bankrupts CCCXXXIV Sir Brian Tucke's Case Mich. 32 Eliz. In the Exchequer IN this Case It was holden by all the Barons clearly Office of Executors 232. Roll. 920. Savile 40. That the Executor of an Executor should not be charged with a Devastavit made by the Executor of the first Testator no not in the Case of the King because it is a personal wrong only CCCXXXV Fines and the Lord Dacre's Case Mich. 32 Eliz. In the Exchequer THe Case was Tenant in tail Post 261. 4 Len. 97. the Remainder of Lands in chief levyed a Fine of them without Licence of the King and if the Tenants of the Lord Dacres should be charged for the Fine was argued For the Case was That the Lord Dacres was Tenant in tail the Remainder in tail to Philip Fines And it was holden by all the Barons That the Tenants Lands should be discharged But it was holden That if the Conusor had any other Lands within England the Fine might be levyed
the Rent by the Father to the Son is fraudulent and so shall be intended if the contrary be not shewed and averred And so it was of late adjudged in the Court of Wards Where a Man alieneth to his Son and Heir for Mony and Mony in truth is paid yet notwithstanding it shall be intended fraudulent unless the contrary be shewed and averred Hanham Serjeant This Grant shall enure first as the Grant of Tenant in tail and after the death of the Tenant in tail without Issue it shall be the Grant of him in the Remainder And to this purpose he put Newdegate's Case 7 Eliz. Dyer 234. Lessee for life and he in the Reversion Lease for years by Indenture That during the life of Lessee for life is his Demise only and the Confirmation of him in the Reversion but after the death of the Lessee for life it is the Lease and Demise of him in the Reversion and he shall have an Action of Waste ex dimissione sua propria without shewing the special matter in the Count. And if Tenant in tail granteth a Rent in Fee and he in the Reversion confirm the Grant it is good See Litt. 121. And he said That the Recoveror is in the Per for it was holden in Winter's Case That if a Man makes a Lease for years rendring Rent with clause of Re-entry and afterwards suffereth a Common Recovery That such a Recoveror is an Assignee within the Statute of 32 H. 8. to take benefit of a Condition and Recoveries are now common Conveyances And if Tenant for life be the Remainder over in Fee and Tenant for life grants a Rent-Charge and afterwards ceaseth and the Lord recovereth in a Cessavit he shall hold the Land charged And as to the Collusion it is not shewed in the pleading That the Grant was made by Collusion for if the Collusion be not apparent the Iustices without averment of it are not bounden to take Notice of it Cowper Serjeant Here are two several Grants and one Grant intire in the Letter may enure as several Grants as if two Tenants in Common grant a Rent of 10 s. here are several Grants and he shall have several Rents of 10 s. And if A. disseiseth B. of Black-Acre and C. disseiseth B. of White-Acre and afterwards by one Deed releaseth to A. and C. the same shall enure as several releases upon their several possessions And he in his Argument relied much upon the Collusion and this Grant shall be taken by the Iustices to be fraudulent for it was made 20 Eliz. and the Recovery was 21 Eliz. and in 27 Eliz. came the Statute Beamount Serjeant This Grant shall enure as several Grants i.e. as a Grant of Tenant in tail and afterwards as of him in the Reversion Two Ioynt-Tenants Enfants make a Feoffment They shall have several Writs of Dum fuit infra aetatem as upon several Feoffments 19 H. 6. 43. Two Coparceners take Husbands who discontinue and die their Wives shall have several Writs of Cui in vita and yet the Discontinuance was joynt And 15 H. 7. 14. If 3 Coparceners be and upon partition one of them granteth to the two others Rent of 20 s. per annum for equality of partition that Rent shall be in the nature of Coparceners and so shall descend and shall not go to the Survivour but by descent See 21 E. 3. 50. Also admit that it is the Confirmation of him in the Remainder yet after the death of the Tenant in tail without Issue now it is become the Grant of him in the Remainder And to that purpose he cited Newdegate's Case 7 Eliz. Dyer before cited But posito that it be the sole Grant of the Tenant in tail yet here is not any Covin apparent for Covin apparent ought to be averred and proved otherwise the Iudges of our Law cannot adjudge upon it for they cannot judge upon probabilities as the Iudges of the Civil Law do for so they should many times minister Injustice in the place of Iustice And that the same is not Covin apparent although it be made to his Son he vouched 19 H. 6. 30. and 47 E. 3. 16. Where such a Feoffment to re-enfeoff the Heir of the Feoffor when he cometh of full age is not in it self Covin apparent but it ought to be expresly averred And he cited also Warnford's Case 3 Eliz. Dyer 193. And also he cited 17 Eliz. Dyer 341. upon the Statute of 27 H. 8. of Monasteries Where there is a Proviso Forasmuch as some of the Chief Governours of such Religious Houses have lately fraudulently and craftily made Leases c. to the great decay and diminution of their Houses That all such Leases c. made within one year before the making of this Act shall be void c. And also there is a Proviso That such persons as have Leases whereupon the old Rent is reserved shall enjoy their Leases c. The Case was That an Abbot made a Lease for 60 years 47 days before the making of the said Act upon which the ancient Rent was not reserved It was holden there That although the Lease was within the words of the Statute because made within a year yet it shall not be intended Covinous without an express averment of it for it may be it was made bona fide See Librum Yelverton Serjeant This is a joynt Grant but yet it shall charge the several Estates when they come into possession Also he put this Case Cestuy que Use and the Feoffees after the Statute of 1 R. 3. and before 27 H. 8. joyn in a grant of a Rent It shall enure as several Grants in respect of their several authorities scil one by the Statute of 1 R. 3. and the other by the Common-Law And as to the Covin he conceived Tat it is Covin apparent and needed not to be averred and that appeareth by the suffering of the Common Recovery CCCXL Brokesby and Wickham's Case Hill. 32 Eliz. In the Common Pleas. 1 Len. 167. 3 Cro. 173. Owen Rep. 85 86. A Quare Impedit was brought by Bartholomew Brokesby against the Bishop of Lincoln and Wickham Pasch 30 Eliz. Rot. 1815. The Case was That Robert Brokesby was seised of the Mannor of Sholby in Fee to which the Advowson was appendant and the Church being full granted to Humphrey Brokesby and the Plaintiff his two Sons the next Avoidance of the said Church Afterwards the Church became void Humphrey by Deed released all his right estate and interest which then he had of and in the Advowson of the Church aforesaid for the said Avoidance Bartholomew sole presented and the Defendants did disturb him The Bishop pleaded That he claimed nothing but as Ordinary Wickham pleaded a Lease made of the Mannor with the appurtenances by the said Bartholomew to one Starkey for years before the Grant made ut supra to Humphrey and Bartholomew which Starkey presented him Vpon which they were at Issue and found for
it and shall not be put to a Scire facias but if such a Writ be sued forth and not continued but discontinued by a year and a day he shall be put to a Scire facias for it is the negligence of the Plaintiff of not continuing it which within the year and day he may do without Order of the Court but not after the year by any Order of the Court c. CCCXLVI Evans Godfrey and Arnold's Case Mich. 32 Eliz. In the Kings Bench. THe Case was Evans and Godfrey were bail for one Kemp at the suit of Alice Arnold Kemp was condemned and a Capias ad satisfaciend awarded against the Sureties By which process Godfrey was taken and he suggested to the Plaintiff That Evans the other bail was sufficient to satisfie him but that he himself was not sufficient but utterly unable to do it Vpon which surmise the Plaintiff was content that Godfrey should go at liberty so as he did procure Evans to be arrested who did it accordingly And now Evans being arrested sued an Audita Querela upon that Escape of Godfrey and they were at Issue upon the Escape And afterwards It was espied That the Venire facias was to summon 12 in Actione Transgressionis super Casum whereas it should be in Audita Querela It was said by Kemp Secondary That the Venire facias upon every Original Writ in this Court as this Audita Querela is ought to contain in it the Issue But when the suit is upon a Bill then the words are ad recognoscend in Actione Transgressionis super Casum And afterwards by the Advice of the Court a Iuror was withdrawn by Assent and so the matter was stayed CCCXLVII Cheney's Case Mich. 32 Eliz. In the Exchequer NOte by the Barons in this Case If Rent-Corn be reserved upon a Lease for years Roll. 591. and it is behind for 2 or 3 years That the Lessor may have Debt for the Corn and shall make his Declaration of so much Corn and the same shall be in the Detinet but yet he shall not have Iudgment to have Corn but so much Mony as the Corn was worth every several year being accounted Clark Baron doubted If he should recover the price of the Corn as Corn was at the time of the Contract or according to the price which it was at the time when it was payable or as it was at the time of the Action brought Manwood The Law is clear That the Lessee shall pay according to the price which was at the time of the payment and delivery limited by the Lease Clark A. is bound to deliver to the Obligee 10 Bushells of Wheat and no place is limited where the payment shall be made the Obligor is not bounden to seek the other party wheresoever as in case of paymene of Mony For the importableness of it shall excuse him Which Manwood granted CCCXLVIII Philip Fines and the Lord Dacre's Case Mich. 32 Eliz. In the Exchequer THe Case was Tenant in tail of Lands 4 Len. 97. Ante 241. the Remainder in Chief levied a Fine without the Kings Licence And If the Tenants of the Lord Dacres should be chargeable by the Fine For the Case was that the Lord Dacres was Tenant in tail the Remainder in tail to Philip Fines was the Question It was holden by the Barons That the Tenants should be discharged But it was holden That if the Conusor had any other Land within England the Fine might be levied thereof But the Question was If the Tenants shall be put to plead in discharge of that which would be a great charge or should be discharged without plea because it appeareth by Record that he who aliened was but Tenant in tail in Remainder For there was an Office of it which was pleaded by another in another cause It was said Where such matter appeareth of Record as by Office Livery c. there he need not to plead such matter in discharge because the pleading of the same is to no other purpose but to satisfie the Court by a Record that the matter is so as the party in his discharge hath alledged And therefore In this Case the Barons gave Order That the Process against the Tenants of the Lord Dacres should be discharged CCCXLIX Hill. 32 Eliz. In the Court of Wards THe Case was A. gave Land to B. in tail rendring Rent B. suffered a Common Recovery with voucher unto the use of a stranger and his Heirs It was the Opinion of some That the Rent remained And it was resembled to Littleton's Case 231 232. Lord Mesne and Tenant The Lord purchaseth the Tenancy now the Mesnalty is extinct yet he who was the Mesne shall have the surplusage of the Rent of the Lord now Tenant of the Land as a Rent distrainable of common right And it was said by Heskith late Attorny of the Court of Wards That it was lately the Case of the Lord De la Ware That in such case notwithstanding such Common Recovery the Donor should have the Rent although that his Reversion was gone But Cook was of Opinion That the Rent was gone For the Rent was incident to the Reversion and there is not any question but that the Reversion is gone CCCL Gardiner and the Hundred of Reading's Case Mich. 32 Eliz. In the Common Pleas. ANdrew Gardiner brought an Action upon the Statute of Winton of Hue and Cry against the Inhabitants of the Hundred of Reading in the County of Berks and declared of a Robbery committed by persons unknown on his House It was the clear Opinion of the whole Court That the Action would not lie For that this Offence is not properly a Robbery intended by the said Statute to be pursued but rather a Burglary And Robberies committed in the High-way only are relieved within this Statute And by Anderson Every Man is bounden to guard his House at his peril for his own safety CCCLI Mich. 32 Eliz. In the Common Pleas. IN a Replevin The Defendant made Conusans as Bailiff to Greves and Rockwood and said That one A. was seised and 6 Eliz. enfeoffed certain persons in Fee to the use of his last Will By which he willed That his Feoffees should stand seised of the said Lands until Greves had levied of the profits thereof 100 l. And against this Conusans It was Objected That here is no Devise For A. at the time of the Devise had not any Feoffees But the Exception was disallowed by the Court. And they cited the Case 15 Eliz. Dyer 323. Lingen's Case A. made a Feoffment in Fee to his use and afterwards devised That his Feoffees should be seised to the use of his Daughter that the same was a good Devise of the Land. See 29 H. 8. Br. tit Devise 48. CCCLII. Hambleden and Hambleden's Case Mich. 32 Eliz. In the Common Pleas. 1 Len. 166. 3 Cro. 163. 1 And. 38. NOte The Case of Hambleden and Hambleden For the principal Case see Mich. 31
years or for life with the ancient Rent reserved is sufficient and is a good and immediate descent of the third part And this word here immmediatè to be construed ratione temporis is a frivolous Construction for the wore Descent implys that For there cannot be an expectant and future descent For descent is clearly immediate without mean time But here in this case the word immediate is to be taken in both senses et re et tempore For by the Relation of the Waiver it is as if no Ioynture had been made and the Heir is to have the profits of the Land from the death of his Ancestor And so the descent of Hinton immediatè et re et tempore And that the same time hath had such reasonable Construction is now to see The Statute of 18 H. 6 Cap. 1. is That the Chancellor shall make Patents to bear date the same day that the Warrant was made and not before It hath been taken That if the Patents bear date after the Warrant entred they are good Which see 19 Eliz. Plow Com. 492. in Ludford and Gretton's Case The Statute of Acton Burnel is That if the Extendors extend the Land too high statim respondeant illi qui fecerunt extent This word of time statim shall not be construed that the Extendors shall pay presently but that they shall pay without delay i.e. at the day limited in the Statute See 2 H. 4. 17 18. It hath been Objected That it is a great inconvenience that the King for his third part should attend the pleasure of the Wife the time of her Election and therefore the Will shall be void But the same is no inconvenience for the Ioynture never was actually in the Wife to her prejudice until she entred into the Land c. And now by the Waiver the Ioynture is avoided ab initio to all intents as if it never had been made So as the King shall be answered of the entire profits after the time of the death of the Husband and may seize the whole Land presently without staying the Election of the Wife or taking notice of her Ioynture And so are the words of the Diem clausit Extremum Tibi praecipimus quod omnia Terras Tenementa of which c. et ea salvò Custodias donec aliud tibi praeceperimus And that may be before any Office found And those who have any Interest in the Land or otherwise may shew the same upon the Traverse of the Office or in the Court of Wards and have allowance of it And so there is not any prejudice to the King No more than when Tenant in Knight-service Deviseth all his Lands There Division is to be made and the King hath not any prejudice by it In the true Construction of this Statute it is very necessary to consider the intention and meaning of both Statutes And it is certain That the said Statutes were made for the benefit of the Subjects to enable them to dispose of their Lands for the preferment of their Wives advancement of their Children and payment of their Debts whereof they were restrained by the Statute of 27 H. 8. of Uses The Savings in the said Statute are for the benefit of the King and the Lords So as Provision is made not only for the benefit of the Subjects but also for the profit of the King and other Lords The disability of the subjects to dispose of their Lands to the intents aforesaid appears in the Preface of the Statute of 32 H. 8. And the favour and grace of the said King towards his Subjects to supply the necessity of Subjects appeareth by the Prefaces of both Statutes The later Statute is an Explanation of the former in divers Points The first Statute to persons Having Mannors c. Ex vi termini includes Tenants in tail Ioynt-Tenants Enfants Idiots Feme-Coverts but the same is explained by the later Act to be of Feesimple only and of sole Estates and to persons of sound memory not of Coverture And so If the Kings Tenant Deviseth all his Land the same is good for two parts of it so if he Devise all which he hath in Feesimple and leaveth the third part to descend in tail This Statute shall be taken strict against the Heir For the whole Scope and Intent of the Parliament was to bind the Heirs and to enable their Fathers to dispose so as the third part be saved to the King and the Lords And that is manifest For the Estates made by Collusion are preserved and by an express Clause in the Statute kept in force against the Heir but void as to the Lords As to certain Readers Cases which have been put to prove That these Statutes ought to have a strict Construction I conceive Nihil operatur A Man seised of one Acre by Disseisin and of two Acres by good Title all holden in chief by Knight-service Deviseth the two Acres which he hath by good Title and dieth so as the Acre which he hath by Disseisin descends to the Heir being within age the King seiseth the third Acre is devested by Eigne Title the Devise of the other two Acres is good against the Heir for it is within the express words of the Statute Having a sole Estate in Fee-simple And yet by another Branch of 34 H. 8. the King for his time shall have recompence out of the other two Acres and he agreed the Law to be so but the same doth not conclude our Case A Man seised of two Acres in Socage and of one Acre holden by Knight-service in Chief of equal value is disseised of the Acre holden in Chief and Deviseth the other two Acres in Fee the same is a good devise for it is within the first branch expresly Having a sole Estate in Feesimple and not having any Lands holden by Knight-service for during the disseisin he hath not the Land whereof he was disseised and therefore the devise is good for the benefit of the Devisee and the Lord is not at any Mischief For the Disseisee notwithstanding the Disseisin remains Tenant of the Lord as to the Avowry and the Lord shall have the Wardship of such Heir and may enter upon the Disseisor and so have a third part And that Case was put out of Gilbert's Reading A Man seised in Fee of two Mannors of equal value holden by Knights-service in Capite and a third Mannor of the same value is conveyed to him by Deed of Bargain and Sale acknowledged and before Enrollment he deviseth the two first Mannors to J.S. in Fee and dieth and afterwards the Indenture is enrolled yet the devise is not good for the said two Mannors by any Relation of the Bargain and Sale enrolled That Case may well be agreed to be Law For the Estate doth not vest in the Vendee before Enrollment and so the Estate was not perfectly in the Devisor at the time of the Will For although that the Enrollment shall relate
rebuild B. 189. For saving harmless the Defendant must shew how he saved harmless B. 198. Difference where one is to do an act to a Stranger who refuses to accept it and where it is to be done to the Plaintiff who refuseth B. 222. If the words Yielding and Paying make a Condition C. 58. Provided that the Lessee shall not Grant the Land who devised the same to his Executor C. 67. To procure a Grant of the next Avoidandce so as the Plaintiff may present what is a breach C. 151. Upon a Condition to pay Corn the Obligor not bound to seek the Obligee if no place be appointed C. 260 261. Confirmation If one Chapter where there are two may confirm a Lease A. 234. What acceptance and by whom of Rent confirms the Lease of the Tenant A. 243. Tenant for life and he in remainder in Fee joyn in a Feoffment this is the Confirmation of him in remainder C. 10. Abbot and Covent Lease to J.S. at Will and after by Deed for life C. 15. Of a Dean and Chapter of a Bishops Lease in what time it must be made C. 17. Consideration in Assumpsit Assumpsit in cosideration the Defendant will prove such a thing c. when the proof is to be A. 93 94. Past and executed and yet continuing good to make a promise A. 102. B. 111. 224 225. That the Plaintiff will perform an Award the Defendant would perform it also good A. 102. To forbear a Suit in Chancery if good A. 114. B. 105. Of forbearance to sue the Execution of an Infant not good if the Debt were not due A. 114. B. 105. To stay a Suit in Court Christian good A. 118. In consideration of Goods delivered promised to pay the Debt due for them for if no sale no debt A. 157. If there be two if both must be found A. 173 300. B. 71 72. In consideration of the doing of an illegal Act A. 180. C. 208 236. To forbear a Suit ought to shew in what Court the Suit depended A. 180. In consideration of the Plaintiffs promise A. 180. B. 154. What is a good Consideration to make an Assumpsit A. 192 275 276 397. B. 29 30 C. 105 129. Not to execute a Fieri Facias upon Goods good though the Goods were not liable to the Execution A. 220 221. In Consideration the Obligor would pay the Mony the Obligee promised to deliver up his Bond quaere A. 238. Against the Wife of an Intestate in Consideration of forbearance not good unless she administers A. 240. In Consideration of the arrears of Rent-charge for life were unpaid good A. 293. If one of two Considerations be good and the other void yet the Action is maintainable A. 296 300. In Consideration the Plaintiff will assign his interest where he hath none at all B. 71. To forbear per Paululum tempus good C. 200. Where though the Consideration be past and executed being done at the Defendants request yet is good B. 111 224 225. C. 164 236. Ought to be matter of benefit to the Defendant C. 88. 129. Void Consideration per Stat. 23 H. 6. 10. being to let a Prisoner escape C. 208. Where there are two Considerations whereof one is void the whole is void C. 108. Copyhold and Copyholder Relieved by the Lord per Petition in a matter of equity A. 2. Where he shall do Fealty and have Aid of his Lord in Trespass c. and shall have an Ejectione Firme A. 4. How a person absent must make his surrender A. 36. If the Custom be to grant them in Fee it warrants a Grant for life A. 56. An Action in nature of a Dum fuit infra aetatem lies where an Infant surrenders A. 95. Where Statutes speak generally of Lands c. given to the King as forfeited Copyhold Lands are not intended A. 98 99. An Heir by descent may Lease or bring Trespass without any admittance A. 100. And also enter A. 174 175. C. 70. In pleading such Lease it need not be averred to be warranted by the Custom but must be challenged on the other part A. 100. An Heir within age not bound to tender his Fine while within age A. 100. Surrender to a Stranger for life remainder to the right Heirs of the Surrenderer the Heir is in by purchase Secus where an Estate is limitted to the Surrenderer himself A. 101. Surrender to the use of his right Heirs cannot vest during the Ancestors life A. 102. Lord sells and Copyholder releases the tenure is extinct A. 102. Release of a Copyholder to a Disseisor nihil operatur A. 102. What is a reasonable matter to excuse the Tenants not appearing at the Lords Court A. 104. To whom and where notice of a Court day must be given A. 104. Copyhold Estates may be entailed A. 174 175. Such Estate forfeited to the Lord and by him sold by Bill A. 191. Copyholder accepts a Lease of his Copyhold from the Lord this determines his customary Estate A. 170. What Steward may take Surrenders our of or in Court A. 227 228 288 289. Trespass lies by the Tenant against the Lord for cutting down Trees not being Timber A. 272. If the Lords agreement to avoid Admittance makes it good A. 289. A Court to admit Copyholders may be held out of the Mannor A. 289. The mis-entry of the day of holding the Court does not hurt the Copies but may be averred against A. 289 290. No Attornment necessary upon selling a Reversion of Copyhold Lands A. 297. If Tenant at will or sufferance may grant Copies B. 45 46 47. What Estates accepted by a Copyholder from the Lord does extinguish the customary Estate B. 72 73 208. Copyholders Estate not liable to a Rent-charge granted by the Lord B. 109. Secus of Demesnes grantable by Copy B. 153. C. 59. What refusal of a Copyholder to do his service pay his Rent or to make Presentments is a forfeiture of his Estate C. 108 109. What false Pleas Feoffments or Forgeries of Deeds is a forfeiture c. C. 108 109. He who disseiseth a Copyholder gains no Estate C. 221. No Escheat for want of an Heir until proclamation in Court C. 221. A Reversioner may surrender if no Custom to the contrary C. 239. Conspiracy If it lies if the Indictment were void A. 279. C. 140 141. Constable See False Imprison Iustification If he may imprison and how A. 327. Needs not dispute the legality of a Justices Warrant B. 84. May set one in Stocks for refusing to Watch C. 208 209. Continual Claim May be made though the Lands come to the hands of the King A. 191. What is a good Claim to avoid a Fine by the Statute of 4 H. 7. B. 53. Continuance Death of one Defendant after the Assises and before the Term cannot be pleaded for that the Defendant hath no day in Court to plead it C. 5. The difference between it and a dies datus silicet upon a dies datus and default thereupon
Eliz. In the Common Pleas. NOte It was said by Dyer and Brown Iustices That if a Man deviseth by his Will to his Son a Mannor in tail 2 Cro. 49. Yelv. 210. and afterwards by the same Will he deviseth a third part of the same Lands to another of his Sons they by this are joynt-Ioynt-Tenants And if a Man in one part of his Will deviseth his Lands to A. in Fee and afterwards by another Clause in the same Will deviseth the same to another in Fee they are joynt-Ioynt-Tenants XXVIII Drew Barrentines Case Mich. 8 Eliz. In the Common Pleas. THe Case was Drew Barrentine and Winifred his Wife were seised of the Mannor of Barrentine which is Ancient Demesne and holden of the Lord Rich as of his Mannor of Hatfield levy a Fine thereof Sur Conusans de droit c. by which Fine the Conusee rendreth the said Mannor to the said Drew and Winifred in special tail the Remainder to Winifred in tail the remainder to the Countess of Huntington in tail the remainder to the Heirs of the body of Margaret late Countess of Salisbury the remainder to the Queen in Fee It was moved by Bendloes Serjeant If the Lord Rich being Lord of the Mannor might reverse this Fine by a Writ of Disceit and so Recontinue his Seignory and he said That he might and thereby all the Estates which passed by the Fine should be defeated even the remainder which was limited to the Queen for by it the Fine shall be avoided to all intents Welsh Iustice Such a Writ doth not lie For by the remainder limited to the Queen by the Fine all mean Signories are extinct Then if it be so Disceit doth not lie If the Tenant in Ancient Demesne levieth a Fine and afterwards the Lord Paramount who is Lord of the Mannor doth release to the Conusee and afterwards the Lord of the Mannor brings a Writ of Disceit he gains nothing by it And if the Tenant in Ancient Demesne levieth a Fine of it and dieth and the Heir confirmeth the Estate of the Conusee and afterwards the Lord by a Writ of Disceit reverseth the Fine yet the Estate of the Conusee shall stand But all these cases differ from our case For in all those cases another act is done after the Action given to the Lord but in our case the whole matter begins in an instant quasi uno flatu and then if the principal be reversed the whole is avoided For the whole Estate is bound with the Condition in Law and that condition shall extend as well to the Queen and her Estate as to another And if Lands is Ancient Demesne be assured to the King in Fee upon Condition Now during the possession of the King the nature of the Ancient Demesne is gone but if the Condition be broken so as he hath his Land again it is Ancient Demesne as it was before and so the Estate of the Queen is bounden by a Condition in Law. XXIX Mich. 8 Eliz. In the Dutchy-Chamber NOte It was holden by Welsh in the Dutchy Chamber That whereas King Edw. the 6th under the Seal of the Dutchy had demised Firmam omnium tenentium at Will Manerii sui de S. That nothing but the Rent passed and not the Land for Firma signifies Rent as in a Cessavit de feodo firmae But the Clerks of the Court said That their course had always been to make Leases in such manner But Welsh continued in his Opinion as aforesaid And further he said That this was not helped by the Statute of Non-recital or Mis-recital c. for that here is not any certainty For sometimes Firma signifies Land sometimes Rent XXX Mich. 8 Eliz. In the Common Pleas. THis Case was holden for Law by the whole Court Two Coparceners are and one of them dieth her Heir of full age she shall not pay a Relief for if she should pay any at all she should pay but the moyety and that she cannot do for a Relief cannot be apportioned for Coparceners are but one Tenant to the Lord. XXXI 8 Eliz. In the Common Pleas. AN Action upon the Case was brought for stopping of a Way The Plaintiff declared That the Duke of Suffolk was seised of a House in D. and Leased the same to the Plaintiff for life And that the said Duke and all those whose Estate c. have used time out of mind c. to have a Way over the Lands of the Defendant unto the Park of D. to carry and recarry Wood necessary for the same House from the said Park to the same House and further declared That the Defendant Obstupavit the Way It was moved by Carns That upon this matter no Action upon the Case lieth but an Assise because that the Freehold of the House is in the Plaintiff and also the Freehold of the Land over which c. is in the Defendant But if the Plaintiff or Defendant had but an Estate for years c. then an Action upon the Case would lie and not an Assise All which was granted by the Court. Post 263. It was also holden That this word Obstupavit was sufficient in it self scil without shewing the special matter how as by setting up any Gate Hedge or Ditch c. for Obstupavit implyes a Nusans continued and not a personal disturbance as a Forestaller or in saying to the Plaintiff upon the Land c. that he should not go there or use that Way for in such cases an Action upon the Case lieth But as to any local or real disturbance Obstupavit amounts to Obstruxit And although in the Declaration is set down the day and the year of the Obstruction yet it shall not be intended that it continued but the same day for the words of the Declaration are further by which he was disturbed of his Way and yet is and so the continuance of the disturbance is alledged And of such Opinion also was the whole Court. Leonard Prothonotary said to the Court That he had declared of a Prescription habere viam tam pedestrem quam equestrem pro omnibus omnimodis Cariagiis and by that Prescription he could not have a Cart-way for every Prescription is stricti juris Dyer That is well Observed and I conceive that the Law is so and therefore it is good to prescribe habere viam pro omnibus Cariagiis generally without speaking of Horse-way or Cart-way or other Way c. XXXII Stowell and the Earl of Hertfords Case Mich. 8 Eliz. In the Common Pleas. IN a Formedom in the Remainder by John Stowel and R.R. against the Earl of Hertford the Case was That Lands were given to Giles Lord Daubeney in tail the remainder to the right Heirs of J.S. who had Issue two Daughters Agnes and Margaret and died The Donee died without Issue and the Demandants as Heirs of the said Agnes and Margaret brought a Formedom in the Remainder And it was awarded by the Court That the Writ should
Pawnage of the Park of H. grants all his Goods and Chattels moveables and immoveables within the said Park It was holden by Weston and Dyer Iustices That the Lease of the Pawnage passeth by these words And it was said by Dyer If a Man hath a Lease for years of a House and grants all his Goods and Chattels being in the same House that as well the Lease of the House as the Goods within it pass by such a Grant. XLVII Pasch 14 Eliz. In the Common Pleas. NOte It was said by Weston and Bendloes That a Retraxit cannot be before a Declaration which Leonard and Filmer Prothonotaries granted And Dyer said That it being before a Declaration it is but a Nonsuit and Wheatley and Filmer affirmed the same and therefore it was adjudged That such a Retraxit in the Court of Hustings before the Sheriff is no Plea in Bar. XLVIII Pasch 14 Eliz. In the Common Pleas. IN Debt brought against Christmas who shewed forth a Protection Quia Profecturus with the Lord Hunsdon to Barwick Dyer doubted If the Protection did lie But said It should be rather Moraturus then Profecturus For a Protection Quia Profecturus to Calleis was never good but super victitation Calicii Harper contrary For Barwick is out of the Realm And he said That he was once of Counsel Where a Bill was exhibited in Parliament to make Hexham part of England and he said That in the time of the Queen that now is One Carre struck a Man who thereof died at Barwick and in an Appeal thereof brought here by the Wife Carre was dismissed XLIX Cranmers Case Hill. 14 Eliz. Rott 938. In the Common Pleas. Dyer 309 310. 2 Len. 5. 1 Len. 196. 1 And. 19. More Rep. 100. Office of Executors 118. 119. TThomas Cranmer Archbishop of Canterbury having a Reversion in Fee of certain Lands upon a Lease for years granted the Reversion to the use of the Grantor himself for his life and after his decease to the use of the Executors and Assignees of the Grantor for 20 years next after the death of the Grantor and after to the use of Thomas his Son in tail and afterwards to the use of the Grantor in Fee The Grantor is attainted of Treason and the Queen gave the said Term of 20 years to the Wife of the Grantor who took to Husband Ed. White-Church who let the Land to A. Thomas the Son entred and leased the same Land to one Kirk who upon an Ouster brought Ejectione Firmae This Case was Argued by the Iustices Manwood the puisne Iustice conceived That the Plaintiff ought to be barred and that the Lessee of White-Church who claimed by the grant of the Queen the said Term of 20 years ought to hold the Land against the Son of the Grantor For the remainder limited to the Son is not yet begun in possession And he insisted much in his Argument upon this point That Vses limited upon any Conveyance are governed and directed according to the Rules of the Common Law As if a Feoffment in Fee be made unto the use of another for life the remainder to the use of the Lessee for life and the Heirs of his body c. now the party hath an estate tail executed in possession and that is according to the Rule of the Common Law. And he cited the Case of 40 E. 3. 20. Where Land was given by Fine to A.B. and C. and to the Heirs of the body of C. and for default of such Issue the remainder to the right Heirs of A. C. died without Issue B. dyed and afterwards A. died his Heir brought a Scire facias out of the said Fine And by Iudgment of the Court the Scire facias did not lie for the Fee was vested in the Father of the Demandant although that ex vi verbi the remainder was limited not to the Father but to his Heirs But where Vses are limited in other manner than according to the Rules of the Common Law there they shall not be ruled and governed by the Rules of the Common Law As if Lands be given to the use of one for life and to the use of such Lessees to whom the Tenant for life shall demise the same for years or life rendring Rent the remainder over to a stranger in tail and afterwards the Tenant for life makes a Lease for years or life and dieth such a Lease shall bind him in the remainder although that the Lessor had not but for life and be now dead for the Vse limited here to the Lessees which would be was limited contrary to the Rules of the Common Law. For by the Common Law such Leases made by Tenant for life are determined by his death And in this Case This Lease for 20 years after the death of the Grantor was limited according to the Rules of the Common Law and therefore it shall take effect accordingly as if it had passed in possession and not in use as if the Conveyance had been of the Land it self and that Land had been granted to the Grantor for 20 years after his death that Interest had been vested in him to sell forfeit or otherwise to dispose at his pleasure and shall not accrue to the Executors as a purchase 19 E. 2. Fitz. Covenant 25. Land was Leased to one for life and after his decease to his Executors and Assigns for 10 years the Lessee assigned the Term And by Herle it is a good Assignment For it is in the Election of the Lessee to Devise that Interest or to assign it in his life-time And see 39 E. 3. 25. A Lease was made to one for life and a year over 17 E. 3. 29. Lessee for life so as after his death the Land remain to his Executors for 8 years Lessee for life died He who had the Freehold of the Land was impleaded who rendred the Land and the Executors of the Lessee for life prayed to be received scil where as Executors do hold the Term which proves that they had the Term as Executors to the use of the Testator and so Assets therefore the same was before in the Lessee for life But by Dyer in his Argument That Case doth not prove it and certainâ—y it is not Assets For although the Executor have the same Term by purchase yet they have it as Executors for that is a good name of purchase which Harper concessit And Manwood argued further and he Cited 19 E. 3. Fitz. Covenant 24. Land was let for life and if the Lessee died within 12 years that his Executors should hold the same until the end of the 12 years The Lessee for life died and the Executors entred and the Executors of the Lessee for life brought Actions of Covenant which proved that the Executors had the Term as a Chatel vested in the Testator and not in their own Rights as Purchasors by the name of Executors See 22 Ass 37. Land demised to A. ad totam vitam suam
the Land descends to her and her Sister as unto one moyety of the Land the Lease is determined but not as to the other moyety Whiddon Iustice Where a Devise is for the benefit of a stranger there the Heir shall take by the Devise and not by descent As if a Lease be made for years the remainder to the Heir there the Heir shall take the Land by the Devise Catline She hath it be Descent and not by the Devise But if he deviseth the Land to the Heir in tail with this That he shall pay a certain sum of Mony unto another there the Heir shall take by the Devise for the benefit which may accrue to the stranger and not by descent for otherwise the Will should not be performed But where the Estate of the Heir is altered by the Will nor any benefit doth accrue unto another after that the Lands come to the hands of the Heir in that case he shall have the Land by descent And so here in this case for as much as the Devise is That the Daughter shall enter they both being but one Heir to their Father shall have the Land by descent and the words of the Will That he shall enter into the moiety shall be void as if the Devise had been to the Heir for life there the same is void because the Fee-simple which descendeth to her doth drown the particular estate for life And therefore in the principal case here the Vncle shall have but the moyety of the moyety which is so devised and the other Sister shall have the other moyety of the Land and as to that moyety which is devised to the Wife for years the same shall enure according to the Common Law that the Vncle shall have the moyety of that and the other Sister the other moyety LIV. Mich. 15 Eliz. In the Common Pleas. THis Case was moved to the Court by Lovelace Serjeant A Man Covenants with another to make and execute an estate of such Lands as should descend to him from his Father and Grandfather by a certain day the same Lands to be of the clear yearly value of 40 Marks And the Question which he moved to the Iustices was That if the party had more Lands which came to him from his Grandfather and Father than did amount to the yearly value of 40 Marks If he was to make assurance of all the Lands or of so much thereof only as amounted to the value of 40 Marks And Manwood Iustice conceived That he should make assurance of Lands only which were of the value of 40 Marks per annum For the words such which do not go so largely as if he had said All my Lands which shall descend or to me be descended for then the yearly value were but a demonstration and all his Lands ought to be assured But here the Intent of the Indenture cannot be taken otherwise than to have but an Assurance of so much Land as if he had said Of such Lands and Tenements as were my Grandfathers and Fathers amounting to 40 Marks by the year for there by those words he shall have but 40 Marks by the year Lovelace It hath been taken That where the Queen made a Lease of all her Lands in such a Town amounting to the yearly value of 40 l. that that valuation is not a demonstration and shall not abridge the Grant precedent to have all in the Town which should be of the value of 40 l. but her Grant shall be taken and construed according to the words precedent Manwood The Common case of assurance upon a settlement of Marriage is That he shall stand seised of so much of his Land as shall be of the clear yearly value of 40 Marks If the marriage take effect The Question hath been If they to whom the assurance is made may enter into any part of the Land at their election and take that which is the best Land to the value of 40 Marks per annum and hold the same in severalty or if they shall be only Tenants in Common with the other And also it hath been a Question Whether they may choose one Acre in one place and another Acre in another place and so through the whole Land where they please because the Grant shall be taken strong against him that granteth But I conceive that it should be a hard case to make such Election of Acres But it was said by some Serjeant at the Bar That if a Man granteth to another to take 20 Trees in his Lands that the Grantee may cut down one Tree in one place and another in another place Manwood agreed that Case but of the other Case the Court doubted of it The principal case was adjourned LV. Vernon and Vernons Case Mich. 15 Eliz. In the Common Pleas. NOte That in the Case of Dower between Vernon and Vernon and the Argument of it the Plaintiff would have been Nonsuit Dyer Iustice said It should be an ill President if a Nonsuit should be after Demurrer And therefore he said That for his part he would not agree that any Nonsuit should be upon it but he said he would be advised and take better Consideration of it If the Nonsuit should be awarded or not And afterwards at another day Manwood and Dyer took a difference where the Nonsuit is the same Term and where in another Term and said It is like unto the Case where a Man would Wage his Law and is present ready to do it that there the Plaintiff cannot be Nonsuit because it is in the same Term but he shall be barred But in another Term afterwards he might be Nonsuit if the Defendant take day over to wage his Law until another Term and so they said it should be in this case LVI Sir Peter Philpots Case Mich. 15 Eliz. In the Common Pleas. THis Case was moved by Meade Serjeant to the Iustices of the Court of Common Pleas viz. That Sir Peter Philpot Knight seised in Fee of divers Mannors and Lands suffered a Recovery and made a Feoffment thereof unto divers persons To the use of himself for life the remainder to his right Heirs And after the Statute of 32 H. 8. of Wills He devised all his said Mannors and Land to his Wife for life and it was expressed in his Will That he could not devise all his Lands by reason of the Statute of 32 H. 8. that his Will was That his Wife should have so much which might be devised by the Laws of the Land And there was another Clause in the said Will That his Feoffees should stand seised of the same Mannors and Lands after the death of his Wife To the use of one Hurlock and others for years for the payment of his Debts and for the raising of Portions for the preferment of his Daughters in Marriage And further by his said Will he willed That if the Law would not bear it That Hurlock and the others should have the Interest Then he
Bar for no person is named there Manwood If a Lease be made made to J.S. except Green-Close to J.D. who is a stranger the Exception is good and J.D. shall have it The Principal Case was Adjourned LXI The Lord Windsors Case Mich. 15 Eliz. In the Kings Bench. UPon an Evidence given to a Iury in the Kings Bench in an Ejectione Firmae the Case appeared to be thus That Sir Roger Lewknor Knight being seised in Fee of the Mannor of South Myms made an Indenture Anno 11. H. 8. by which Indenture he Leased the said Mannor to 20 persons to the use of Andrew Windsor afterwards Lord Windsor and Henry his Son and the Survivor of them as long as any of the said persons named in the said Indenture should live And further Covenanted by the same Indenture To stand seised of the said Mannor To the use of the said Andrew and Henry and the Survivor of them during the lives of any of the said Feoffees named in the same Indenture which Deed was made without Livery and Seisin and reserved upon it an yearly Rent and afterwards the Son died And in 22 H. 8. A Fine was levied by a stranger upon a Release to Andrew Lord Windsor And afterwards 34 of Henry 8 Andrew Lord Windsor made a Lease to one for years and died and made William and Edmond his Sons his Executors And afterwards William his eldest Son being Lord Windsor 2 3 Phil. Mary made a Lease of the same Land unto another to begin after the first Lease ended Which William died and the Lord Windsor that now is accepted the Rent and of late time agreed with one Vaughan who had married the Heir of Sir Roger Lewknor for the Reversion in Fee and afterwards the Lease made by Andrew Lord Windsor 34 H. 8. ended in the 4th year of the Reign of the Queen that now is Whereupon the second Lessee that is to say the Lessee of William Lord Windsor entred and being ousted he brought the Ejectione firmae And then and yet one of the 20 Feoffees of Sir Roger Lewknor is alive so as the Estate of Cestuy que Vie is not as yet determined And now the Question upon the first part of the Evidence is If this later Lease made by William Lord Windsor be a good Lease or not And who shall be said Occupant For when the Lord Andrew died then the Lessee as Catline said shall not be said in otherwise than according to his Lease when his occupation by Lease was lawful before And he who shall be said Occupant shall have a Freehold and if he should be Occupant he should be in by a new title Then we are to see If the Executors of the Lord which have the Rent and to whom the same is paid by the Lessee shall be said Occupant And he conceived That they should not although that they enter unless they claim the Freehold at the time of their entry for if they enter generally it shall be intended according to the Will as Executors and if he had granted his Estate to another there after his death the Grantee shall be said to be in by reason of his Grant and not as Occupant And so if he would devise his Estate the Devisee shall be in by reason of the Devise and not as Occupant Which Case of Devise Southcote denyed That he should not be in by reason of the Devise when his Estate determines with his death But if the Devisee entreth by force of the Devise he shall be in as an Occupant And also Southcote denyed that which had been said That the Lessee for years who holdeth the Lands after the death of Andrew Lord Windsor should not be an Occupant For as he said the Lessee being in possession after the death of the Lord Andrew should be said Occupant and no other for the Executors of the Lord could not be Occupant by the having of the Rent because they had not the possession of the Land for none shall be Occupant but he who is in possession Whiddon said That if the first Lease made by Andrew Lord Windsor was now in esse and that an Ejectione Firmae was brought upon that that the Lessee ought to aver That some of the Feoffees for whose lives c. were then living Southcote If a Praecipe quod reddat shall be brought against whom shall it be brought against him in the Reversion or against him in possession And if it shall be brought against the Tenant in possession then he ought to have the Freehold for it cannot be brought but against one who hath a Freehold at the least And then if the Lord William Windsor had nothing in the Land then how could he make this Lease to the Plaintiff that now is when the first Lessee continueth Occupant after the death of the Lord Andrew during the life of Cestuy que Vye And as to the Fine the Question did further arise If the Lord Andrew Windsor should have a Feesimple by that Fine For being levied as Catline said It cannot be to the first Vses because a Fine upon a Release cannot be intended to the use of any other but to him to whom it is levied unless an use be expressed in the Fine or by another Deed And upon a Fine levied upon a Release made unto Tenant life by a stranger the same is not a forfeiture of his Estate But if Tenant for life taketh a Fine Sur Conusans de droit come ceo c. the same is a forfeiture And although a Fine levied by those who have not any thing in the Lands be void Yet here it is not so and it ought to be pleaded specially and shewed that he had not anything in the Land at the time the Fine was levied as Anderson said And Catline said That this Fine was not without good advice for the Lord Brook and others who were learned in the Law were of Counsel with the Lord Windsor in the levying of this Fine so as the intent was to settle the Feesimple in himself by the Fine and not that the first Vses should stand after that And thereupon he put the Case of Putnam and Duncomb which hath much Resemblance to this Case which he argued when he was Serjeant and held the same Opinion as he holdeth now And therefore he said That although the Purchase was but of late time of Vaughan and his Wife yet the Fee was in the Lord Windsor before and this manner of purchase was to no other end but to discharge the Lands of Incumbrances as appeareth by the small sum which was paid the Land being of a great yearly value And as Vaughan confessed he took this sum of Mony because that his Council informed him that the Feesimple was in the Lord Windsor before and that otherwise he would not have sold it at such a price And he said That before that agreement the Lord Windsor told him that he had the Feesimple in himself
Customs stand with Reason And so in 5 H. 7. Where a Man prescribes That for the Pasture which the Beasts of the Tenant have taken in his Lands in the day-time that he have the Foldage of them upon his said Lands in the Night to manure his Lands is a good prescription because the party hath for it Quid pro Quo. And so where a Man prescribes to have a Farthing of every one who passeth over his Land the same is called Toll traverse and is good And so in 7 H. 4. Where a Man prescribes in Common by reason of Vicinage it is good for though it cannot be of Common Right yet because each hath Quid pro Quo it is good And so is the Custom for Fishermen to dry their Nets upon the Banks of the Lands of other Men lying upon the Sea Coasts because it is for the Common wealth and every Man hath an advantage by it but if a Man should prescribe to Fowle there upon the Lands of another that were not good Meade contrary That case is as it hath been put and divers Cases of the Common Law Custom and Statute Laws have been shewed And by common Intendment it is intended that need doth require the making of the By-Law for otherwise they would not have made it and there needs not any averment that there was need of it for that shall be taken by intendment As 19 E. 4. A Man counts of the Grant of the next Avoydance and the Count is good without shewing that that was the next Avoydance but yet it would have been better if it had been expressed And 21 H. 7. In Trespass the first day of May the Defendant pleads the Licence of the Plaintiff without shewing that it was for the same Trespass and yet it shall be intended when he pleads a Licence for the same day that it was for the same Trespass And as to the Case put upon the Statute of 1 R. 3. it hath been ruled otherwise for it shall be shewed on the other side that he was within age as it appeareth by 10 13 H. 7. Also he said that the Court here shall intend that there was a necessity sufficient without expressing of it and if there was not then it ought to be alledged on the other side As 15 H. 7. An Annuity is granted until he was advanced to a Benefice the Plaintiff shall not need to shew it but that shall come on the Defendants part And the Statute which is That no Cattel of the Plough shall be distrained where the party hath other Cattel of which a Distress may be taken there the party needs not to alledge that he had other Cattel or other Goods And as to that which hath been said That it was the better Order that needs not for the Defendant himself was one of the makers of the Order and when By-Laws are made they shall not extend but to the Tenants within the Mannor where they are made and to such only as have Lands there and not to the Lands of others which are out of the Mannor and the Defendant in this case shall not be received to say but that this is a good Custom and Order because he is a party to it and was the maker of it and that there was then a necessity for the making of it for the better ordering of the Lands and that especially when as the Defendant himself was a party to it And as to that which is said That Seisin is alledged in the Lord Cromwell in 6 E. 6. and it is not alledged that the Seisin did continue in him until 13th of this Queen It shall be intended that he continued seised until the contrary be shewed As in 11 H. 7. A Man prescribed to have Common by reason of the House c. The Avowant doth not say that he was seised of the House at the time c. of the disseisin of the Common because he once alledged Seisin of the House and that Seisin shall be intended to continue unto the time of the disseisin And so 10 H. 7. A Prior Domus Ecclesiae de C. brought Waste and supposed that it was to the disenheresin of the House and did not say praedict Domus and yet it was good and shall be referred to the said Priory And so here when he saith that he was Lord and that the By-Law was made as before and a penalty imposed and a Distress taken by the Bailiff of the Lord Cromwell for not observing the By-Law and payment of the sum assessed all being put together makes a sufficient certainty and that the Lord Cromwell continued his Seisin of the Mannor and Land And as to that which hath been said That the By-Law made and the Custom alledged to distrain in the Lands of any Man for the Offence of another is not reasonable and against the Law To that he said That the Tenants here had authority to make By-Laws and by their consents have bounden themselves to the observing and performance of them and therefore shall not now be received to say That the By-Law made by themselves was against the Law. And he said That the Customs in some places are Where there are Waste Lands that they may make By-Laws That if any Tenant or person dig Turfs in the same Waste that the Lord may distrain for such offence within any place of the Mannor and the Cattel of any person Quaere of it The Principal Case was Adjourned LXIV Mountford and Catesbys Case Mich. 15 Eliz. In the Common Pleas. AN Action upon the Case was brought by Mountford against Catesby Dyer 328. Vaugh. Rep. 120. And the Plaintiff declared That the Defendant covenanted assumed and promised in Consideration of a certain sum of Mony to him paid and in Consideration of the payment of a Rent of certain Lands demised to the Lessee That he should peaceably and quietly enjoy the same without Interruption of any person and he was ousted by a stranger And the matter aforesaid was found by special Verdict And it was argued by Lovelace Serjeant and he prayed Iudgment for the Plaintiff And he said That there is a difference when it is said that a Man shall hold and enjoy peaceably and quietly As in Case where one warrants Land there if he be ousted by a stranger who hath not any Title to the Land he shall have an Action of Trespass against him But a Man by word or Covenant may bind himself to that which he is not bound to do by the Law. As if the Covenant and Promise be That he shall leave the Houses in as good plight as he found them there although the Law doth not bind the party to re-edifie the Houses in case they be overthrown by tempest of Wind or that they be destroyed by Enemies yet by his special Covenant he shall be bound to re-edifie them Meade contrary And that this promise shall not be taken strictly against the Lessor Hob. Rep.
Wife the Executrix should be charged for the not Reparations as well in the time of her Husband as in her own time And if she do make the Reparation depending the Suit yet thereby the Suit shall not abate but it shall be a good cause to qualifie the damages according to that which may be supposed that the party is damnified for the not repairing from the time of the purchase of the Reversion unto the time of the bringing of the Action And it was said by Manwood That by the Recovery of the damages that the Lessee should be excused for ever after for making of Reparations so as if he suffer the Houses for want of Reparations to decay that no Action shall thereupon after be brought for the same but that the Covenant is extinct LXXIII Easter Term. 15 Eliz. In the Common Pleas. LOvelace moved the Court that in the Kings Bench this case was argued upon a Demurrer there A Feoffment was made by one Coxley who took back an Estate for life the remainder to him who should be his Heir at the time of his death and to the Heirs males of his body begotten And afterwards the Tenant for life after the Statute of 32 H. 8. suffered a Recovery to be had against him that that Recovery was good as it was at the Common Law Because the Statute doth not speak but that it shall not be a bar to him who hath the Reversion at the time of the Recovery but this remainder was in Abeyance until the death of the Tenant for life and that in the same Court it was adjudged accordingly in an Ejectione firmae and because the same was a discontinuance the Plaintiff had here brought his Formedon in the Remainder and therefore Lovelace prayed That they might proceed without delays because the Plaintiffs Title appeareth without Essoigns and feigned delays Which Dyer Iustice conceived to be a reasonable request and that it should be well so to do because as he said This Court is debased and lessened and the Kings Bench doth encrease with such Actions which should be sued here for the speed which is there And he said That the delays here were a discredit to the Court so as all Actions almost which do concern the Realty are determined in the Kings Bench in Writs of Ejectione firmae where the Iudgment is Quod recuperet terminum and by that they are put into possession and by such means no Action is in effect brought here but such Actions as cannot be brought there as Formedons Writs of Dower c. to the Slander of the Court and to the Detriment and Loss of the Serjeants at the Bar. And Lovelace shewed That divers mean Feoffments were made c. LXXIV Mich. 15 Eliz. In the Common Pleas. NOte This Case was in Court An Heir Female was in Ward of a common person who tendred to her a marriage viz. his younger Son and she agreed to the Tender and the Guardian died The Heir married the younger Son according to the Tender The Executors of the Guardian brought a Writ de Valore Maritagii supposing the Tender by the Lord to be void by his death But the Court was of a contrary Opinion because the Tender of their Testator was executed LXXV Riches Case Mich. 15 Eliz. In the Common Pleas. ELizabeth Rich brought a Writ of Dower against J.S. who pleaded and Iudgment given for the Defendant and afterwards the Iudgment was reversed And she brought a new Writ of Dower and the Tenant pleaded That he always was ready and yet is c. Against which the Demandant pleaded the first Record to estop the Tenant To which the Tenant pleaded Nul tiel Record It was the Opinion of the Court That here the Demandant cannot conclude the Tenant by that Replication to plead Nul tiel Record For the Iudgment is reversed and so no Record and it cannot be certified a Record But if the Tenant had taken Issue upon the plea of the Tenant absque hoc that he was ready the same might well have been given in Evidence against the Tenant Note That the Case was That the Demandant after the death of her Husband entred into the Land in Demand and continued the possession of it 5 years and afterwards the Heir entred upon which she brought Dower It was agreed in that Case That the Tenant needed not to plead Tout temps prist after his re-entry for the time the Demandant had occupied the same is a sufficient recompence for the Damages LXXVI Vavasors Case Mich. 15 Eliz. In the Common Pleas. NIcholas Ellis seised in Fee of the Mannor of Woodhall Leased the same to William Vavasor and E. his Wife for the life of the Wife the remainder to the right Heirs of the Husband The Husband made a Feoffment in Fee to the use of himself and his Wife for their lives the remainder to his right Heirs The Husband died the Wife held the Land and did Waste in a Park parcel of the Mannor It was moved to the Court If the Writ of Waste should suppose that the Wife held ex dimissione Nicholai Ellis or ex dimissione of her Husband It was the Opinion of the Court That upon this matter the Writ should be general viz. that she held de haereditate J.S. haeredis c. without saying any more either ex dimissione hujus vel illius For she is not in by the Lessor nor by the Feoffees but by the Statute of Vses and therefore the Writ shall be ex haereditate It was also the Opinion of the Iustices That the Wife here is not remitted but that she should be in according to the Term of the Feoffment Note in this Case The Waste was assigned in destroying the Deer in the Park And Meade Serjeant conceived That Waste could not be assigned in the Deer unless the Defendant had destroyed all the Deer And of that Opinion also was Dyer Manwood said If the Lessee of a Dove-house destroyed all the old Pigeons but one or two couple the same is Waste And if a Keeper destroy so many of the Deer so as the ground is become not Parkable the same is Waste although he doth not destroy them all See 8 R. 2. Fitz. Waste 97. If there be sufficient left in a Park Pond c. it is enough LXXVII Mich. 15 Eliz. In the Common Pleas. AN Action upon the Case was brought against Executors They were at Issue Vpon nothing in their hands It was given in Evidence on the Plaintiffs part That a stranger was bound to the Testator in 100 l. for performance of covenants which were broken For which the Executors brought Debt upon the Obligation depending which Suit both parties submitted themselves to the Arbitrament of A. and B. who awarded That the Obligor should pay to the Executors 70 l. in full satisfaction c. and that the Executors should release c. which was done accordingly And it was agreed by the Court That by the Release it
Queen by her Letters Patents reciting the said Mischief c. et praemissa considerans et annuens Petitioni illius granted to him the Mannor aforesaid and further de ampliori gratia sua Released to the said Andrew Boynton all her Right Possession c. which came to her ratione attincturae praedict ' vel in manibus nostris existant vel existere deberent After which viz. 5 Eliz. Andrew Boynton levied a Fine to the Plaintiff with proclamations and died without Issue And the Defendant as Issue in tail entred Puckering Serjeant It is to see 1. If by the words of the Letters Patents of Queen Mary viz. de ampliori sua gratia c. the Reversion in Fee which the Queen had passed or not 2. Admitting that the Reversion did not pass Then if the Fine levied by Andrew Boynton 5 Eliz. to the Plaintiff the Reversion being in the Queen be a Bar to the Issue For when the first Fine was levied 37 H. 8. which was levied without proclamations the same shall not bind the Issue in tail neither as to the Right nor to the Entry for it is not any Discontinuance because the Reversion is in the King as of things which lie in Discontinuance Rent Common c. For such Fine is a Fine at the Common Law and not within the Statute of 4 H. 7. And such a Fine is void against the Issue But if such a Fine without proclamations be levied of a thing which lieth in Discontinuance then such a Fine is not void but voidable by a Formedon And therefore this Fine in the Case at Bar being levied without proclamations of Lands entailed whereof the Reversion is in the King at the time of the Fine levied shall not bind the Issue And by such Fine the Conusee hath which Fee was forfeited to the Queen by the Attainder of the Lord Seymore and that the Queen immediately restored to Andrew Boynton because the Lord Seymore had not according to Agreement betwixt them assured his Lands to the said Andrew Boynton in Recompence For the Indentures themselves were not sufficient to raise any use See acc 1 Mar. Dyer 96. As to the point he conceived That nothing passed of the Reversion For the Grant hath reference to the words All his Right Possession c. which came to her ratione attincturae and all the residue of the Grant ought to have reference to that to the ratione attincturae praedict which was the foundation of the whole grant And here the intent of the Queen was not to other intent but only to restore Andrew Boynton to the said Mannor and to his ancient Estate in it And nothing appears in the said Letters Patents by which it might appear that the Queen was apprised of her Reversion which she had by descent and therefore the same cannnot pass by general words If the King grants the Goods and Chattels of all those who have done any Trespass for which vitam amittere debent The Goods of him who is Attainted of Treason shall not be forfeited or granted by such general words 8 H. 4. 2. Vid. Roll. Tit. Prerogat The King grants omnia catalla Tenentium suorum qualitercunque damnatorum the same doth not extend to the Goods of him who is condemned for Treason See 22 Ass 49. So in our Case the Patent shall not serve to two Intents and not to pass two Interests by these general words and then nothing passeth but the Fee determinable which was conveyed to the Lord Seymore and forfeited by the Attainder Then it is to be considered How after the said Grant the said Andrew Seymore is seised And he conceived That he should be in of the said Fee determinable and not of an Estate in tail against his own Fine and then if he be not seised by force of the Tail at the time of the Fine levied 5 Eliz. the same Fine cannot bind the entail But admitting That at the time of the second Fine levied that he was in of an Estate in tail yet that Fine shall not bar the Issue For first This Fine cannot make any Discontinuance because that the Reversion in Fee is in the King which is not touched by the Fine See the Case of Saunders Where A. makes a Lease for years to begin at a day to come and afterwards levies a Fine to a stranger with proclamations and the 5 years pass and afterwards at the day of the beginning of the said Lease the Lessee enters his Entry is lawful and he shall not be bounden by the Nonclaim and so it was adjudged in Saunders and Starkies Case Vide inde Saffins Case 3 Jac. Cook 5 Part 123 124. After the making of the Statute of 4 H. 7. of Fines It was much doubted If the Issues of Common Tenants in tail should be bound by a Fine with proclamations because upon the death of their Ancestors they are as new Purchasors per formam Doni And therefore it was provided by 32 H. 8. That the said Statute of 4 H. 7. should extend to such Common entails but there was no doubt of an Estate tail of the gift of the King. And see Mich. 15 16 Eliz. Rot. 1474. between Jackson and Darcy in a Partitione facienda the Case was Tenant in tail the remainder to the King after the Statute of 32 H. 8. levied a Fine with proclamations and it was adjudged That the same should bind the Issues The Act of 32 H. 8. doth not extend but where the Reversion is in the King but no mention is there of a Remainder because that the words of the said Act are general of all Tenants in tail The makers of the Act perceiving That it might be doubted that the generality of the words might include all Estates tails of the gift of the King they restrained the words in a special manner as appeareth by the last Proviso of the same Act Nor to any Fines heretofore levied or hereafter to be levied by any person or persons of any Mannors c. before the levying of the said Fine given granted or assigned to the person or persons levying the said Fine or to any of his or their Ancestors in tail by Letters Patents or Act of Parliament the Reversion whereof at the time of the levying of such Fine was in the King And so such Estates are excepted And that in such Cases where such Fines are levied they shall be of such force as they should be if the said Act had not been made And therefore it seemed to the said Parliament That such Estate tails of the gift of the King were not bounden by the Statute of 4 H. 7. for otherwise the said Proviso or Exception had been frivolous Walmesley Serjeant to the contrary And he agreed That the first Fine was not any Discontinuance and yet he conceived it is not altogether void against the Issues before that they entred For no right remains in the Conusor against his Fine And also
devise Lands of which she was seised of an Estate of Inheritance in Fee simple according to the Custom to her Husband And also Surrender the same in the presence of the Steward and 6 other of the Tenants And it was further found That one J.S. was seised of the Copy-hold Lands wherein the Trespass was And that he had Issue 2 Daughters and died seised of the said Lands And that after his Decease his two Daughters entred into the said Lands and afterwards they both took Husbands And that afterwards one of the said Daughters made a Will in writing and by her said Will in the presence of the Steward and six of the Tenants she Devised her part of the said Copy-hold Lands to her Husband and his Heirs and at the next Court surrendred the said Copy-hold Lands in the presence of the Steward and six other of the Tenants to the uses in her Will expressed and shortly after she died and that after her death her Husband was admitted to the said part of her Lands who continued the possession thereof And the Husband of the other Daughter and his Wife entred upon him Vpon whom he re-entred And the Husband brought Trespass This Case was argued at the Bar by Rhodes And he said That the Custom was not good neither for the Devise nor for the Surrender First for the incertainty of the Estate what Estate she might Devise for that is not expressed in the Custom but generally that she might Devise her Copyhold Lands of Inheritance without expressing for what Estate And secondly the Custom is not good for that it is against reason that the Wife should surrender to the use of her Husband And that a Custom to devise is not good where it is incertain he vouched many Cases As 13 E. 3. tit Dum fuit infra aetatem 3. The Tenant said That the Lands lay in the County of Dorset where the Custom is That an Enfant might make a Grant or a Feoffment when he could number 12 d. and because it is incertain when he could do it It was holden to be a void Custom So 19 E. 2. tit Gard. 127. In a Ravishment of Ward It was alledged that the Custom was That when an Enfant could measure an Ell of Cloath or number 12 d. that he should be out of Ward And it was holden to be a void Custom for the incertainty Also he said That in the principal Case the Custom was void for that it was against reason that the Wife should surrender to her Husband for every Surrender is a Gift and a Woman cannot give unto her Husband for the Wife hath not any disposing Will but the Will of her Husband only And therefore the Case is in 21 E. 3. That if the Husband be seised of Lands in the right of his Wife and he maketh a Feoffment in Fee of the Lands and the Wife being upon the Lands doth disagree and saith She will not depart with the Land during her life yet the Feoffment is a good Feoffment and shall bind the Wife during the life of the Husband And see 3 E. 3. Br. tit Devise 43. That a Feme Covert cannot Devise to her Husband for that should be the Act of the Husband to convey the Lands to himself And whereas the Case in 29 E. 3. was Objected against him where the Case was That a Woman being seised of Land deviseable took a Husband and had Issue by him and the Wife Devised her Lands to her Husband for his life and died and a Writ of Waste was afterwards brought against him And it was there holden That the Writ did lie He said That that Case did make rather for him than against him for that Case proves that the Husband did not take the Land by vertue of the Devise in his own right but that he held the Lands having Issue by the Wife as Tenant by the Courtesie and so under another Title and therefore it appeareth that the Writ of Waste was there brought against him as Tenant by the Courtesie Also he said That the Devise was void by the Statute of 34 H. 8. Cap. 5. where it is Enacted That Wills and Testaments made of any Lands Tenements c. by Women Coverts shall not be good or effectual in the Law and he said That that Statute did extend to Copyhold Lands But as to that all the Iustices did agree That Copyhold Lands were not within the words of that Statute But Anderson said That the Equity of that Act did extend to Copyholds And further Anderson said That the Prescription or Custom in the principal Case was not good for it is layed to be That Quaelibet Foemina Viro Co-operta poterit and it ought to be potest and by the Custom have used to Devise to the Husband And a Prescription must be in a thing done and not in posse Also he said That the Custom if it were good is not well pursued For the Custom is that she may Devise and Surrender in the presence of the Steward and six Tenants and that must be intended to be done all at one time for the words of a Custom are to be performed if it may be but in the principal case the Devise is laid to be at one time and the Surrender at another time and so it is not in pursuance of the Custom But to that it was not answered But then it was said Admit that the Custom to devise and the Devise were not good yet the Action did not lie against the Defendant because that the Husband was admitted and his Entry into the Land was countenanced by a lawful Ceremony and also he was Tenant in Common with the other Husband by such Entry It was adjourned CXXIII Rosse's Case Mich. 26 Eliz. In the Kings Bench. IN Trespass brought by Rosse for breaking of his Close and beating of his Servant and carrying away of his Goods Post 94. Vpon Not guilty pleaded the Iury found this special matter scil That Sir Thomas Bromley Chancellor of England was seised of the Land where c. and leased the same to the Plaintiff and one A. which A. assigned his moyety to Cavendish by whose Commandment the Defendant entred It was moved That that Tenancy in Common betwixt the Plaintiff and him in whose right the Defendant justified could not be given in Evidence and so it could not be found by Verdict but it ought to have been pleaded at the beginning But the whole Court were clear of another Opinion and that the same might be given in Evidence well enough It was further moved against the Verdict That the same did not extend to all the points in the Declaration but only to the breaking of the Close without enquiry of the battery c. And for that cause it was clearly holden by the Court That the Verdict was void And a Venire facias de novo was awarded CXXIV Absolon and Andertons Case Mich. 25 26 Eliz. Rot. 479. In the Kings
Cantarista And it hath always been adjudged That a Chauntry by Reputation is within the Statute of 1 E. 6. CLXV Brian and Cawsen's Case Trin. 27 Eliz. In the Common Pleas. IN Trespass by Brian and his Wife and others against Cawsen It was found by Special Verdict 2 Len. 68. That W. Gardiner was seised in Fee according to the Custom of the Mannor of C. of certain Lands and surrendred them to the use of his last Will by which he Devised them in this manner scil I Bequeath to Jo. Th. my House and Lands in M. called Lacks and Stone To Ste. Th. my House and Lands called Stokes and Newmans And to Roger Th. my House and Lands called Lakins and Brox. Moreover If the said Jo. Ste. or Roger live till they be of lawful age and have Issue of their bodies lawfully begotten Then I give the said Houses and Lands to them and their heirs in manner aforesaid to give and sell at their pleasure But if it fortune one of them to die without Issue of his body lawfully begotten Then I will that the other Brothers or Brother have all the said Houses and Lands in manner aforesaid And if it fortune the Three to die without Issue in like manner Then I Will That all the said Houses and Lands be sold by my Executor or his Assignee and the Mony to be given to the Poor The Devisor dieth Jo. Ste. and Roger are admitted according to the intent of the Will Roger dieth within age without Issue John and Ste. are admitted to his part John comes of full age and hath Issue J. and surrenders his part of the whole and his estate therein to the use of Ste. and his Heirs who is admitted accordingly Ste. comes of full age John the Father dieth Ste. dieth without Issue J. the Son as Cosen and Heir of Ste. is admitted according to the Will and afterwards dieth without Issue The Wives of the Plaintiffs are Heirs to him and are admitted to the Lands called Lacks and Stone and to the moyety of the Lands called Lakins and Brox parcel of the place where c. praetextu quorum they enter into all the Lands where the Trespass is done And it was found that A. the Executor died Intestate And that Cawsen the Defendant is Cosen and Heir to the said Devisor and that he as Heir entred and did the Trespass First It was agreed by all That by the first words of the Will the 3. Devisees had but an Estate for life But Fenner and Walmesley who argued for the Plaintiffs Conceived That by force of the later words scil If the said John Stephen and Roger live till they be of lawful age and have Issue of their body lawfully begotten Then I give the said Lands and Houses to them and their Heirs in manner aforesaid c. They have Fee and the words In manner aforesaid are to be referred not unto the Estate which was given by the first words which was but for life but to make them hold in severalty as the first Devisor willed and not joyntly as the words of the second Devise purported And Fenner said It hath been Resolved by good Opinions That where a Fine was levied unto the use of the Conusor and his Wife and of the Heirs of the body of the Conusor with divers Remainders over Proviso That it shall be lawful to the Survivor of them to make Leases of the said Lands in such manner as Tenant in tail might do by the Statute of 32 H. 8. although those Lands were never Demised before the Fine yet the Survivor might demise them by force of the Proviso notwithstanding the words In manner c. So if Lands be given to A. for life upon Condition the Remainder to B. in manner aforesaid these words In manner aforesaid refer unto the Estate for life limited unto A. and not unto the Condition nor unto any other Collateral manner The words If they live until they be of full age and have Issue are words of Condition and shall not be construed to such purpose to give to them by Implication an estate tail For the words subsequent are That they shall have them to them and their Heirs to give and sell at their pleasure By which it appeareth That his intent was not to make an estate tail For Tenant in tail cannot alien or dispose of his estate c. And as unto the last words And if it fortune they three to die without Issue c. these words cannot make an estate tail and the express Limitation of the Fee in the first part of the Will shall not be controverted by Implication out of the words subsequent As if Lessee for 40 years Deviseth his Lands to his Wife for 20 years and if she dieth the remnant of the Term unto another although that she survive the 20 years she shall not hold over and here the second sale appointed to be made by the Executor shall not take away the power of the first sale allowed to the Devisee's after-Issue Snagg and Shuttleworth Serjeants to the contrary And they Conceived That the Defendant hath right to two parts for no express Inheritance vests in the Devisees until full age and issue and because two of the Devisees died without Issue they never had any Inheritance in their two parts and so those two parts descended to the Defendant as Heir to the Devisor no sale being made by the Executor These words If John Stephen and Roger are to be taken distributive viz. If John live c. are to be taken distributive If John live until c. he shall have the Inheritance in his part and so of the rest As if J. have right unto Land which A. B. and C. hold in Common and J. by a Deed release to them all the same shall enure to them severally 19 H. 6. And here these later words If these three do die without Issue by that they conceived The same to be but an estate in tail And see to that purpose 35 Ass 11. 37 Ass 15. For a Man cannot declare his intent at once but in several parts all which make but one sentence And so it is said by Persay 37 Ass 15. We ought to have regard upon the whole Deed and not upon parcel And see Clark's Case 11 Eliz. Dyer 330 331. And it was said If I give Lands to one and his Heirs so long as he hath Heirs of his body it is a Feesimple determinable and not an estate in tail Quaere of that Then here the Feesimple is determined by the death of the Devisees without issue and therefore the Land ought to revert to the Heir of the Devisor especially being no person in rerum natura who can sell for the Executor before sale by him made died Intestate and if he had made an Executor yet the Executor of the Executor could not sell Which see 19 H. 8 9 10. And afterwards Resolved That no estate tail is
bring a new Writ But Gawdy said That the Writ brought was good enough CCCXVII Pike and Hassen's Case Mich. 31 Eliz. In the Kings Bench. AN Action upon the Statute of 32 H. 8. touching buying of Titles And the Bargain was laid in Norfolk but the Land c. was in Suffolk And the Issue was tryed in Norfolk and the value of the Land also And as to the 5 Acres they found the Defendant guilty and found also the value of them And for the Residue a Special Verdict was given and for the 5 Acres the Plaintiff had Iudgment presently And by the special Verdict it was found That the Defendant had occupied the Residue of the Land for two years before c. as Tenant at sufferance and afterwards sold the Inheritance Wray Chief Iustice Tenant at sufferance is in truth a Tort feasor by which his taking of the profits is not such as is intended by the Statute But yet he afterwards looking into the words of the Verdict which were That the Defendant tenuit the Lands for two years ex permissione of another thereupon it ought to be intended That he was Tenant at will. CCCXVIII Sparry and Warfield's Case Mich. 31 Eliz. In the Kings Bench. IN False Imprisonment against the Defendant and others they pleaded The Charter of Bridewell and that the Plaintiff was mali nominis famae and that certain Goods were stollen from J.S. and upon search the Plaintiff was found suspitiously c. And that thereupon they put him into Bridewell It was the Opinion of the Iustices That the Plea was not good CCCXIX. Bragg's Case Pasch 32 Eliz. Rot. 318. In the Kings Bench. IN an Action of Trespass by Strait against Bragg Quare Clausum fregit containing one Acre in C. in the County of H. and for the taking of a Horse The Defendant pleaded That long time before the Trespass The Dean and Chapter of Pauls were seised of the Mannor of C. in the said County in Fee in the right of their Church whereof the place where is parcel c. And so seised King E. 4th by his Letters Patents dated Anno 1 of his Reign granted to them all the Fines pro Licentia Concordandi of all their Homagers and Tenants resiants or not resiants within their Fee And shewed That for all that time they have used to have such Fines of their Tenants And shewed further That 29 Eliz. A Fine was levied in the Common Pleas between the Plaintiff and one A. of 11 Acres of Land whereof the place where the Trespass was done was parcel and the Post-Fine assessed to 15 s. And afterwards Scambler the forreign Opposer allowed to them the said 15 s. because the said Land was within their Fee and afterwards in the behalf of the said Dean and Chapter he demanded of the Plaintiff the said 15 s. who refused to pay it for which he by the Commandment and in the right of the Dean and Chapter entred and took the said Horse in the name of a Distress as Bailiff to the said Dean and Chapter for the said 15 s. and afterwards sold it c. upon which the Plaintiff did demur in Law And it was moved That here it is not averred That the Land whereof the Fine was levied was within their Fee but they say That Scambler allowed it because it was within their Fee. And that is not a sufficient averment quod curia concessit And also the opinion of the Court was Ante 56. 2 Len. 179. That the Dean and Chapter cannot distrain for this matter but they ought to sue for the same in the Exchequer as it appeareth 9 H. 6. 27. in the Duchess of Summersets Case Gawdy Iustice The Grant doth not extend to the Post-Fine for the Fine pro licentia Concordandi is the Kings Silver and not the Post-Fine Wray Iustice All passeth by it for it is about one and the same matter And they in Opinion to have given Iudgment for the Plaintiff Quaere of it CCCXX South and Marsh's Case Mich. 32 Eliz. In the Exchequer NOte It was holden by the Court That where Marsh was endebted unto South without any Obligation for it but only by a Note in writing signed with the Hand of Marsh scil By me W. Marsh but not sealed that such a debt might be assigned to the Queen although that before the Assignment against a Creditor he might have waged his Law for in as much as by these Notes and Bills the certainty of the debt appeareth and being true debts they may well be assigned See 21 H. 7. 9. An Obligation may be assigned to the Queel without Deed enrolled and where the Obligee is not endebted to the Queen But it cannot be assigned to a subject Noy 52. if not for a debt due by the Assignor to the Assignee for otherwise it is Maintenance And in this Case it was holden That where the King sues for a debt assigned to him the Obligor cannot plead Nihil debet for now by the Assignment it is become matter of Record CCCXXI. Trapp's Case Mich. 32 Eliz. In the Kings Bench. RObert Trapps 1 Eliz. seised of 15 Messuages in Clarkenwell in the Occupation of 15 several persons viz. A.B.C. c. and named them certain demised them to one Cox And afterwards conveyed the Inheritance of them to one Brian Trapps in Fee who afterwards demised to J.S. all those 15 Messuages in Clarken-well which Robert Trapps did demise inter alia to Cox by Indenture dated 1 Eliz. now in the Occupation of A.B.C. c. And one of the Occupiers names was left out in the recital And it was holden by the whole Court That notwithstanding the said Omission the said Messuage did pass for there was sufficient certainty before and the falsity came after the verity CCCXXII Brewin and Mansfield's Case Mich. 32 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared That A. was endebted to him in 10 l. and made the Defendant his Executor and died And that the Defendant in Consideration that the Plaintiff would forbear the Defendant for a certain time promised to pay it at two several days and shewed which in certain And it was found for the Plaintiff It was moved in Arrest of Iudgment That it is not set down in the Declaration by what portions the 10 l. shall be paid Clench Iustice conceived That the Defendant had liberty to pay it in what portions he pleased Gawdy He ought to pay it by equal portions as a Rent reserved payable at two Feasts without saying by what portions it shall be paid And he said That if the plea for the cause aforesaid had been defective yet now after Verdict all is helped for it is but form And afterwards the Opinion of the whole Court was That the matter shewed was not good to stay Iudgment Wherefore the Plaintiff had Iudgment to recover CCCXXIII Mich. 32 Eliz. In the Common Pleas. THe Case was The Plaintiff in a
use created before the Statute and a use created afterwards for in the first Case they ought to enter and if they be disabled by any Act as in the Case between Gascoign and the Earl of Kent it shall never rise but in the later Case the whole authority and confidence is by the Statute taken out of the Feoffee and the contingent use shall rise without aid of the Feoffees by the operation of the Law for there the Land is bound to the Vses and charged with them As upon a Iudgment in a Warrantia Chartae the Land of the Defendant is bounden pro loco tempore and according to the Common experience in Conveyances for payment of the Kings Debts as in the Case between Proctor and Dennis The Debtor of the King makes a Feoffment in Fee unto the use of himself and his Heirs until he makes default of such a payment to the Queen at such a day and upon default to the use of the Queen and her Heirs Cowper There needs no Entry of the Feoffees and he put the difference put before by Harris betwixt a Vse created before and a Vse created after the Statute and now the Feoffees have not any power to revive or to stand seised to such Vses but are only as Instruments to convey the Vses For the Vse is created upon the Livery and is transferred by the Statute if the person to whom the Vse is limited be capable of it at the time of the limitation but if not the Law preserves it until and it cannot be by any means prevented and he cited the Case 30 H. 8. Br. Feoffments to Vses 50 and there is a great difference betwixt a Vse limited before and after the Statute For now after the Statute the Feoffees by reason of their seisin cannot be vouched for they have not such a Seisin whereof they may make a Feoffment and he put the Case between Cheny and Oxenbridge Cheny leased to Oxenbridge for 50 years and afterwards enfeoffed Oxenbridge to the use of Cheny himself and his Wife for their lives with divers remainders over And it was adjudged in the Court of Wards That by the Feoffment the Term is not extinct and he put the Case of the Lord Pagett adjudged in the Kings Bench. A Feoffment was made to the use of the Feoffee for life the Remainder to him whom the Feoffor should name at his death in Fee and the Feoffor and Feoffees for good Consideration levy a Fine to a Stranger and afterwards the Feoffor nameth and dieth The party named by the Feoffor shall have the Land notwithstanding the Fine c. Beamount the contingent use is here utterly destroyed by the Feoffment aforesaid and it appeareth by the preamble of the Statute of 27 H. 8. of Vses That the motives of that Act did not favour Vses but it was their meaning utterly to root them out And if contingent Vses which are not nor can be executed by the Statute should stand in force the mischief should be that no Purchasor should be secure of his Purchase but should be in danger of a new born Vse not known before And he grounded his further Argument upon the reason of Manwood and Dyer Where a Man makes a Feoffment in Fee to the Vse of himself and his Wife which shall be and afterwards he and his Feoffees and those in Remainder make a Feoffment to divers other new Feoffees and to new Vses and afterwards he takes another Wife and dieth The said Iustices were of Opinion That by the said Feoffment the contingent Vses were destroyed For when the Estates which the Feoffees take is taken away which was the root and foundation of the Vses and the branch and fruit of the said Tree it necessarily followeth that they also be taken away and also because the Feoffees by their Livery are barred for to enter for to re-continue the Estate would continue these Vses they also are gone and extinguished Yelverton I conceive that notwithstanding the Feoffment that the Vse shall rise in his due time according to the limitation of it c. CCCXXXIX The Serjeant's Case Mich. 32 Eliz. In the Common Pleas. TEnant in tail and he in the Remainder in Fee joyn in a Grant of a Rent-charge in Fee to the issue of Tenant in tail a year before the Statute of 27 Eliz. of fraudulent Conveyances and afterwards the Tenant in tail and he in the Remainder sell the Land and afterwards a Praecipe is brought against Tenant in tail who voucheth him in the Remainder who voucheth the Common Vouchee and so a Recovery is had and seisin accordingly The issue in tail dieth without issue Tenant in tail dieth the Vncle distraineth for the Rent Glanvil Serjeant argued That this grant of the Rent is altogether the grant of the Tenant in tail and that nothing passed from him in the Remainder and that it doth enure as one entire Grant and not as several Grants As where Tenant for life and he in the Reversion joyn in a Lease it is one entire Lease and the Lease of them both and they shall both joyn in an Action of Waste But admit that here are several Grants yet the Estate out of which the Rent was granted continuing the Rent shall continue also And now the Recoveror comes in the Post and in the affirmation of the Estate of Tenant in tail and the Remainder is utterly defeated and destroyed by the Recovery and the Rent always issueth out of the particular Estate and he cited Littl. 125. If a Rent-Charge be issuing out of Land and the Tenant of the Land leaseth the same for life and afterwards the Rent is granted over now he who hath the Freehold ought to attorn scil the Tenant for life for a Rent-Charge lieth always upon the possession and if Tenant for life granteth a Rent-Charge and afterwards makes a Feoffment in Fee the Rent shall continue until the possession be recontinued c. Harris Serjeant contrary This Grant is the Grant of them both scil of the Tenant as long he hath issue of his Body and afterwards it is the grant of him in the Remainder Where a Man derives his Interest from two the one being a particular Tenant the other a Recoveror or a Remainder in Fee the Donee takes of each of them that which he may lawfully give and no more and the particular Estate being then ended the Donee shall be then accompted in by him in the Reversion c. See 2 E. 4. 1. And he vouched the Case of the Lord Mountjoy The Lord Mountjoy took to Wife a Woman Enheretrix she had issue and so he was intituled to be Tenant by the Curtesie and acknowledged a Statute and afterwards he and his Wife levyed a Fine and died Now the Conusee shall hold the Land discharged of the Statute for after the death of the Husband the Conusee is in by the Wife only and so paramount the charge Also he said That this Grant of
Eliz. Leon. 166. Lib. 1. was this Term adjudged upon the Devise That the Survivour shall be each others Heir It was holden That all the surviving Brothers are Ioynt-Tenants and although this word Survivour be in the singular number yet in sense upon the whole matter it shall be taken and construed as for the plural number Survivour shall be each others Heir i. e each Survivour i.e. every Survivour i.e. All the Survivours and then in this case The Plaintiff and the Defendant being Ioynt-Tenants cannot maintain an Action of Trespass one against the other CCCLIII Mich. 32 Eliz. In the Common Pleas. BY the Statute of 32 H. 8. cap. 37. The Executors of a Grantee of a Rent-Charge may distrain for the Arrearages of the said Rent in the life of the Testator so long as the Land charged doth continue in the seisin or possession of the Tenant in Demesne who ought immediately to have paid the said Rent or in the seisin of any other person or persons claiming the said Lands only by and from the said Tenant by purchase gift or descent in like manner as the Testator might or ought to have done in his life-time It was now moved If A. grant a Rent-charge to B. the Rent is behind B. dieth A. enfeoffeth C. in Fee who divers years after enfeoffeth D. who divers years after enfeoffeth E. It was holden in this Case by Walmesley Periam and Windham Iustices That E. should be chargeable with the Arrearages to the Executors Anderson Chief Iustice held the contrary But they all agreed That the Lord by Escheat Tenant in Dower or by the Curtesie should not be chargeable for they did not claim by the Party only but also by the Law. CCCLIV. Leverett and Townsend's Case Trin. 32 Eliz. In the Kings Bench. IN an Action upon the Case for disturbing him of hs Common 3 Cro. 198. 2 Len. 184. The Plaintiff declared That he was seised in Fee of a Messuage and certain Lands And that he and all those whose Estate he hath have Common of Pasture in 16 Acres of Lands called D. from the time that the Corn is reaped until it be sowen again And also Common of Pasture in Land called R. omni tempore anni as appendant to the said Messuage and Land and that the Defendant had plowed the said Lands and so disturbed him of his Common It was moved in stay of Iudgment That it appeareth here that the Plaintiff was seised in Fee and so he ought to have an Assise and not an Action upon the Case But the Exception was disallowed by the Court. Vide inde Ante 13. 2 H. 4. 11. 8 Eliz. Dyer 250. 11 R. 2. Tit. Action upon the Case 36. CCCLV. The Chamberlain of London's Case Mich. 33 Eliz. In the Kings Bench. THE Chamberlain of London brought an Action of Debt in the Mayors Court in Guild-hall 5 Co. grounded upon an Act of Common Council See C. 5 Part The matter was removed into the Kings Bench by Corpus cum causa Fleetwood Recorder of London prayed a Procedendo It was Objected That they of London could not make Ordinances to bind the Subjects as an Act of Parliament To which It was said by Fleetwood That the Custom of the City is That the Mayor and Aldermen and four persons chosen out of each Ward by the Communalty may make Ordinances which they call Acts of Common Council and they shall bind every Citizen and Free-man and all their Customs are confirmed by Act of Parliament and by Magna Charta which hath been confirmed 52 times and also by the Statute of 7 R. 2. For that King seised their Liberties and drove them to pay for the Redemption of them 100000 Marks and then the said King confirmed them unto them for ever and therefore this Ordinance being made according to our Custom ought not to be impeached As in Case of matters of the Forrest If one be punished for offending against an Ordinance made for the governing of the Affairs of the Forrest you cannot remove the matter before you So is the Law called Lex Idumaea concerning Rivers and Fishing in which are divers Ordinances That none shall kill Salmons at certain Seasons of the year and so of other Fishes If one be punished by force of such Law he shall not be relieved here for the Law of the Land hath always allowed such particular Customs And see F. B. If two Merchants put their Stocks together and so Traffick together and the one dieth The Survivor shall not have the whole Stock as the Common Law is but the Executor of him that dieth shall have an Accompt against the other and that is per Legem mercatoriam Cook to the same intent This Act of Common Council is good and according to the Law that is of Common Right There are divers Statutes made for the true making of Cloth and to take away the abuses and deceit in the making of it and this Act of Common Council is for the well executing of the said Statutes and I conceive there is a difference in making of Laws by a Corporation A Corporation may make an Act for the better executing of any Law established at the Common Law but new Laws they cannot make As those of a Town who have used to have Common in certain Lands they cannot make a By-Law That such a one in such a Town shall not have Common there but that none shall use his Common but at such a time such a By-Law made is good See 15 H. 7. 21 H. 7. 40. See 8 E. 2. tit Assise 413. A Town had Common of Turbary in a Marsh and divers of the Inhabitants of the Town had made Trenches in the said Marsh and some had not a full Foot of Land in the Town and such persons by their Trenches which they had made there used to carry Turffs out of the said Marsh by Boats and sell them unto the value of 20 Marks per annum to their great private profit and to the great grievance of the others For which cause It was provided by common assent of the Freeholders of the Lord of the said Town That all the Trenches in the said Marsh should be stopped so as from thenceforth no Turffs be carried in Boats by the Trenches And there it was holden That if the greater part of the Commoners assent the same shall bind the others who have not assented for ubi major pars ibi totum And then if such Towns may make Laws a fortiori The City of London Secondly This Law is good by Custom for they have used to make such Acts and Ordinances time out of mind c. and these Customs are confirmed by Act of Parliament and also they may appoint a penalty for to what purpose otherwise should they make an Act Oderunt peccare mali formidine poenae Also this Action is maintainable for an Amercement in a Court Baron an Action of Debt lieth Gawdy Iustice 44 E. 3. 19.
Rent 11 H. 7. 13. 21 H. 6. 24. 14 H. 8. 35. So where the Successor accepts of a Rent upon a Lease made by the Predecessor 37 H. 6. 4. 8 H. 5. 10. 4 E. 4. 14. The same Law in Exchanges and Partitions If the Wife accepteth of Dower of the Land which her Husband hath taken in Exchange she shall be barred of that Land which her Husband gave in Exchange 6 E. 3. 50. 15 E. 3. tit Bar. 125. 12 H. 4. 12. c. And in all these Cases where there is an Agreement and therein an Agreement implyed scil An Agreement to the Lease and a Disagreement to have the Possession c. And so Agreement to the Land received in Exchange and Disagreement to the Land given in Exchange and all that by word and act in pais And so here in these Cases Estates are affirmed and entred and benefit of the possession waived and refused So it is also of a Right and Title of Action 21 H. 6. 25. The Lord entituled to have a Writ of Right upon Disclaimer accepts a Rent of the Tenant Now he is barred of his Action 13 Ass 3. The Disseisee accepts homage of the Disseisor it is a good bar in an Assise 21 Ass 6. Pendant a Cessavit the Tenant aliened the Lord accepted the Services of the Alienee his Action is gone 11 E. 3. tit Dower 63. A Woman entituled to Dower accepteth Homage of the Ter-Tenant the same is a Bar of her Dower And as it hath been said of Entries and Actions of which a Man may refuse the benefit by word and Acceptance in pais So is the Law also in Cases of Estates vested if the party doth not Enter Husband and Wife Tenants in special tail the Husband levyeth a Fine to his own use and afterwards Deviseth the Land to his Wife for life the Remainder over rendring Rent the Husband dieth The Wife Enters and pays the Rent now she hath waived her Remitter 18 Eliz. Dyer 351. 10 E. 4. 12. The Tenant enfeoffed the Lord and a stranger and made Livery to the stranger although the Freehold vested in them both yet if the Lord disagreeth to the Feoffment in futuro he cannot enter and occupy the Land and he may distrain for the services c. If a Disseisin be made to the use of the Husband and Wife and the Husband agreeth to it the Freehold vests in the Husband and Wife but the Wife is not a Disseisor and after the death of the Husband she may disagree unto the Estate by word 12 E. 4. 7. And also an Agreement shall make her a Dissessisor See to the same intent 7 E. 4. 7. and Litt. 129. Although that in such and the like Cases the Estate vests in some manner yet it shall never vest to the prejudice of the party without an express and actual agreement And that disagreement to an Estate in such manner vested may be in pais and by word seems by a Clause in the Statute of 27 H. 8. cap. 1. Where a Ioynture is made after Marriage there the Wife after the death of her Husband may at her pleasure refuse her Ioynture and have and demand and take her Dower her Writ of Dower or otherwise scil by word and Acceptance in pais And if in a Writ of Dower the Tenant will bar the Demandant by Ioynture made during the Coverture he ought to say Quod intrando agreeavit See Litt. in Dower ad Ostium Ecclesiae If the Wife entreth and agreeth the same is a good Bar in Dower Littl. 8. Now in the principal Case When the Wife agreeth to the Devise of Thoby and the same is executed by entry now the same is a full Disagreement to Hinton It was afterwards Objected That although it be clear That the Wife may waive her Ioynture in Hinton by word and act in pais without matter of Record Yet some conceived That this manner of Devise of Thoby is void by the Statute of 32 34 H. 8. The Statute enables to Devise two parts or so much as amounts to two parts in value at the time of the death of the Devisor for then the Will takes effect which cannot be here in this Case for at the time of his death the Ioynture of Hinton was in force and so continued until the disagreement afterwards Also the words of the Statute are Having a sole Estate in Fee-simple but here the Devisor had but a Reversion in Fee expectant upon an Estate tail c. As to the first Point it was answered That the Disagreement doth relate to the death of the Husband and is now as if no Ioynture had been made ab initio And here the Heir shall have Hinton by descent and he shall be Tenant to every Praecipe and if it be brought against him the same day that the Husband dieth the Writ shall be good by the Disagreement after and the Heir shall have his age c. And if the Father had been a Disseisor and had Conveyed the Land ut supra now by this argeement of the Wife the Heir shall be accounted in by descent and thereby the Entry of the Disseisee taken away And if the Heir in such case taketh a Wife and dieth by this disagreement after the Wife shall have Dower of Hinton and hath such a possession quod faciet sororem esse haeredem And if that the same day that the Husband dieth the Heir levyeth a Fine or acknowledge a Statute or maketh by Indenture enrolled a Bargain and Sale of it by the said agreement Hinton shall be subject to such Acts of the Heir All which Cases prove That the Devisor upon this matter at the time of his death had a sole Estate in Feesimple in the Mannor of Hinton and that the third part in value descended to the Heir and so the Devise of Thoby good It hath been Objected That here is not an immediate descent of which the Statute of 34 H. 8. speaks And here the Mannor of Hinton doth not descend immediatly for there was a mean time between the Death and the Disagreement and so the Will void for Thoby To that it was answered That this word immediatè sumitur dupliciter re tempore and shall be taken here immediatè re statu scil That a Reversion or a Remainder dependant upon a particular Estate in possession which is mean shall not be allowed for the third part descended For a Descent which takes away an Entry ought to be immediate for a mediate descent doth not take away an Entry Litt. 92. as the descent of a Reversion or Remainder And if this word Immediatè had not been in the Statute Then the Statute might have been construed That it should be sufficient to leave the third part to descend in Reversion or Remainder but this word Immediatè makes it clear And therefore the third part which descends ought to descend immediatè in re Statu Yet a Reversion upon a Lease for
to prevent all acts and charges made mean by the Vendor yet it shall not relate to vest the Estate from the time of the delivery of the Deed For the Vendee cannot punish a Trespass Mean And if the Vendee hath a Wife and the Vendee dieth before Enrollment and afterwards the Deed is enrolled she shall not be endowed but here shall be some descent to take away an Entry yet the Heir shall have his age But in our Case it is otherwise for by the Waiver the Ioynture was waived ab initio And he cited Carrs Case 29 Eliz. in the Court of Wards The King granted the Mannor of C. to George Owen in Fee tenend in Socage and rendring 94 l. per annum And afterwards granted 54 l. parcel of the said Rent to the Earl of Huntington in Fee to be holden by Knight-service in Capite and afterwards purchased the said Rent in Fee And afterwards of the same Mannor enfeoffed William Carr who devised the same for the payment of his Debts And it was holden That the devise was good against the Heir And the King was not entituled to Livery or Primer Seisin And therefore the Defendant was dismissed But peradventure the Queen shall have benefit of the Act. See Cook 3 Part 30 31. Butler and Baker's Case The King gives Lands unto A. in Fee to hold by Knights-service during his life and afterwards to hold in Socage He may devise the whole For at the time when the devise took effect he was Tenant in Socage Lands holden in Knight-service are given to J.S. in tail scil to the Heirs Males of his Body the Remainder to the right Heirs of J.S. J.S. deviseth these Lands and afterwards dieth without Issue Male the same is good for two parts yet during his life he had not an Estate in Fee in possession The Father disseiseth his Son and Heir apparent of an Acre of Land holden in Chief by Knight-service in Capite and afterwards purchaseth a Mannor holden in Socage and deviseth the said Mannor and dieth his Heir within age the Devise is good for the whole and the King shall not have Wardship of any part and that in respect of the Remitter and yet it is within the words Having sole Estate in Fee of Lands holden and within the Saving Tenant in tail of an Acre of Land holden of the King in Chief by Knight-service seised of two Acres in Fee holden ut supra makes a Lease for three Lives of the Acre entailed reserving the accustomed Rent and afterwards deviseth the other two Acres in Fee and afterwards dieth seised of the Reversion and Rent The same is a good devise of all the two Acres And here is an immediate descent of the third part for the same is within the words In Possession Reversion or Remainder or any Rent or Service incident to any Reversion or any Remainder See the Statute of 34 H. 8. A Man seised of three Acres of equal value holden by Knight-service in Capite assureth one to his Wife for her Ioynture by Act executed and deviseth another to a stranger And the third to his Wife also The King in this case shall have the third part of every Acre But if the stranger waiveth the devise the King shall have the Acre to him devised and the Wife shall retain the other two Acres and it shall not go in advantage of the Heir So if he deviseth the said three Arces severally to three several persons to each of them one Acre and the one Waives the devise in one Acre The devise of the other two is good Or otherwise the King shall have the third part of every Acre c. CCCLXVII Mich. 35 Eliz. In the Common Pleas. 5 Co. 29. THe Case was An Enfant was made Executor And Admimistration was committed to another viz. A. durante minori aetate who brought an Action of Debt against the Debtor and recovered and had him in Execution and now the Executor came of full age It was moved What should be done in this Case and how the party should be discharged of the Execution for the authority of the Administrator is now determined and he cannot acknowledge satisfaction or make an acquittance Windham Although the authority of the Administrator be determined yet the Record and the Iudgment remain in force But peradventure you may have an Audita Querela But he conceived That an Administrator could not have such Action for that he is rather a Bailiff to the Enfant than an Administrator See Prince's Case 42 Eliz. Cook 5 Part 29. Which Rhodes concessit A. was bounden unto B. in an Obligation of 100 l. upon Condition to pay a lesser sum The Obligee made an Enfant his Executor and died Administration was committed durante minori aetate to C. to whom A. paid the Mony It was doubted If that payment was rightful or If the Mony ought to have been paid to both Windham Doth it appear within the Record That the Enfant was made Executor and that Administration was committed ut supra To which it was answered No. Then Windham said You may upon this matter have an Audita Querela In this Case It was said to be the Case of one Gore 33 Eliz. in the Exchequer in a Scire facias by an Assignee of a Bond against an Enfant Executor He pleaded That the Administration was committed to A. and his Wife during her minority And it was adjudged no Plea. CCCLXVIII Mich. 35 Eliz. In the Common Pleas. NOte It was the Opinion of all the Iustices Jones Rep. 243. That if Lessee for 20 years makes a Lease for 10 years that he may grant the Reversion without Deed but in such case if there be a Rent reserved there ought to be a Deed and also an Attornment if the Rent will be had And it was agreed by them all That if there be Lessee for years and the Lessor granteth the Land to the Lessee and a stranger that the Reversion shall pass without Livery or Attornment and that by the Acceptance of the Deed by him who ought to Attorn But whether he shall take joyntly or in Common or whether in a moyety or in the whole the Iustices were of divers Opinions Ideo Quaere for it was not Resolved FINIS A TABLE of the principal Matters contained in the Third Part of LEONARD'S Reports A. ABatement of Writ Page 2 4 77 92 Ex Officio Curiae p. 93 Accompt p. 38 61 63 Damages given in it p. 150 Damages given in it not expresly but the Court shall give Quoddam Incrementum p. 192 Brought by the Grantee of the King against an Executor where maintainable where not p. 197 Generally brought where good p. 230 Acquittance Must be shewed upon payment of Debts by Executors p. 3 Action upon the Case For stopping of a way p. 13 Against one for proceeding to Judgment and awarding of Execution in an inferiour Court after an Habeas Corpus awarded p. 99 Where lieth
awarded not good p. 100 Two Matters are in Issue the Jury find the one and says nothing to the other if a good Verdict p. 149 Where eating and drinking of the Jurors at their own charges doth not make the Verdict void otherwise if at the charges of any of the parties p. 267 Unity Of possession where shall extinct a Common p. 127 Usurpation Where puts the King out of possession where not p. 17 W. WAger of Law Where cannot be upon an Agreement that one Creditor be acquitted against the other for Debt p. 212 258 Warrants Of Attorny to acknowledge a Deed not good p. 84 Warranty Tenant in tail of an Advowson in gross grants the same in Fee a collateral Ancestor releaseth with Warranty a bar to the Issue p. 212 Wasts p. 7 60 What a sufficient Plea in it what not p. 9 Wills General words in a Will where not enlarge special words before in it p. 18 Words in a Will or Testament conditional where construed not to give tail by Implication Upon a Devise for three where the words of the Will shall be taken distributively and not jointly p. 117 Not to be taken by Implication p. 131 In a Will a thing implyed shall not control a thing expressed p. 167 Withernam Upon return of a Withernam if the Plaintiff tendereth the Damages he shall have a special Writ to restore his Chattel p. 236 Writs In a recovery upon a Writ in the Court of a Mannor the party who recovered in it cannot be put in possession with the Posse Comitatus p. 99 In the nature of a Scire Facias out of the Court of Admiralty to repeal Letters Patents of an Office is good p. 192 FINIS An Exact TABLE to the Three Parts of Reports of Mr. William Leonard And a Correction of divers Mistakes in Printing of Cases and other Matters in all the Three BOOKS A Denotes the first B the second and C the third Book A Abatement of Writs IF one of three Executors die pend brevi the Writ abates A. 44. Administrator sued as Executor may abate the Writ if the Administrat was committed before Action brought A. 69. A Feme sole Plaintiff takes Baron the Writ is not abated but abateable A. 168 169. If matter of Abatement appear in any part of the Record the Court after Judgment will reverse the Judgment A. 255. Action does not abate if the Defendant die after the first Judgment in Trespass and before the Return of the Writ of Enquiry A. 263. Death after Issue joyned no cause of Abatement in the Civil-Law A. 278. The Writ shall abate if it appear the Plaintiff cannot recover the thing in demand A. 333 334. In what Real Actions two Tenants may plead several Tenancy B. 8. It an Action shall abate after the Verdict if it appear to be brought before time A. 186 187. B. 20. Writ shall abate if the Feme be put before the Baron B. 59. Where upon pleading Joyntenancy or Villenage the Writ shall abate without any answer to the Pleas B. 161 162. Where a Writ shall abate Ex Officio Curiae B. 162. A Writ of Deceit not abated by the death of one Defendant C. 3. Abeyance In what Cases a Use may be in Abeyance B. 18. C. 21 22 23. The like of a Remainder B. 73. Acceptance Where the Issue of him in Remainder accepts the Rent of Tenant for life it is a good affirmance of his Estate A. 243. What Acceptance of Rent by Lessor shall bar him of his Re-entry for non-payment A. 262. The Acceptance of Rent by the Feme confirms the Lease of the Husband C. 271. The like by Issue in Tail of a Lease not warranted by the Statute C. 271. The like by an Infant at his full Age C. 271. The like of a Lease by a Predecessor and the Successor accepts the Rent C. 271. By the Wives Acceptance of Dower out of Lands exchanged she agrees to the Exchange C. 271. One disclaims and after the Lord accepts the Rent of the Tenant the Lord is barred of his right Sur Disclaimer C. 272. Pending a Cessavit Tenant aliened the Lord accepts Services from the Alienee he is barred C. 272. Accord and Concord No Bar if not executed A. 19. C. 212. Account Duresse a good Bar to it A. 13. Capias ad Comp. after a former executed A. 87. The power of Auditors A. 219. Of what things an Auditor by Deed may make Allowance A. 219. The power of an Auditor deputed by a private person A. 219. The difference of an Auditor deputed by Parol and by Deed A. 219. After Account and the Defendant found in Arrear and then the Defendant dies yet the Plaintiff shall recover A. 263. Lies not for the profits of Lands if the Defendant were in by Title A. 226. C. 24. If the Jury ought to assess Damages A. 302. B. 118 196. C. 150 192 230. What may be pleaded in Ear or must be pleaded in discharge before the Auditors B. 30 31 195. If a Factor account to one of many joynt Traders it is sufficient B. 75 76. If the Defendant plead that the Plaintiff gave him the Goods he must traverse that he was Bailiff to render account B. 195. If it lies against a meer Trespasser or wrongdoer C. 24. Where Account or an Action upon the Case lies against one who receives Mony to buy Cattle and does not buy them C. 38. In some Cases it lies against an Apprentice C. 62. Action upon the Case for Tort See Nusance Trover Slander For Erecting a Fould-course in disturbance of the Lord who had one by Prescription A. 11. By a Father against the Master of his Son for beating and laming his Son whereby he was disparaged in Marriage A. 50. Where it lies for malitiously indicting of Felony A. 107 108. Lies and not Trespass for pulling down Hurdles in a Market A. 108 109. Lies against an Under-Sheriff who took Mony to return but did not return a Summons A. 146. Against a Justice of Peace for Arresting one for Felony without accusation A. 187. Against a Mayor for not taking Bail to an Action A. 189. By Tenant in ancient Demesne for taking Goods for Toll A. 231 232. B. 190. By a Sheriff against a Prisoner who escaped out of Execution satisfaction being acknowledged A. 237. If it lies for retaining anothers hired Servant A. 240. Lies for a Tenant in Fee for a Nusance though he may have an Assise A. 247 273. Con. C. 13. If it lies for diverting a Mill-stream without Prescription A. 273. If it lies against a Justice of Peace for refusing to examine one who is Robbed A. 323 324. For conspiring with a Factor to cheat the Plaintiff who was a Joynt Trader with the Defendants in Account B. 75 76. For laying too much weight on a Floor which fell into the Plaintiffs Wares B. 93. An over-loading a borrowed Horse B. 104. By a Commoner for over-charging the Common with Conies B. 203. Against
nor his promotion can be properly called a Benefice A. 277. By-Laws Made by the Homage of a Court-Baron must be rationi legi consonan A. 190 C. 8 40 41 42 43. What By-Law is good in a Corporation C. 264 265. Made by the major part of Commoners binds all if it tend not to bind the Inheritance C. 265. C. Certainty WHat shall be sufficient Certainty to describe what Lands are granted though part of the descriptions be false A. 119. B. 226. C. 18 19 162 235. The like in describing the person of the Donee Devisee C. 48 49. Promise in consideration the Plaintiff would repair quandam partem domus is good C. 91. Certiorari To certifie a Warrant of Attorny A. 22. Granted at the request of the Defendant in error ex officio c. after a Nihil returned ibidem C. 107. If grantable after in nullo est erratum A. 176. B. 2 3. Cessavit Against the Tenant of the King B. 144. It is a good Bar to this Action that the Lord accepted the Services of the Alience of the Tenant C. 272. Challenge By a Bishop for that no Knight was retorned A. 5. To the Array for affinity whether principal challenge or not A. 88 89. No challenge to the Polls in a Writ a Right but at the time of the arrayment A. 303. The Statute 27 Eliz. cap. 6. A. 55. For want of Hundredors where there are many Hundreds in one Wapentake or Lathe B. 109. Of the Array for that the Sheriff married the Plaintiffs Cousin which the Plaintiff confessed C. 222. Chancery Ought not to give relief after Judgment B. 115. C. 18. Charge and Discharge If a Man marry an Inheritrix and hath Issue and then acknowledges a Statute and they sell the Land be Fine the Land shall not be charged for the Conuseels in by the Feme C. 254. Tenant for life granteth a Rent-Charge and cesseth after recovery in Cissavit the Lord shall hold the Land charged C. 255. Chattels A special property for a time in them A. 221. Are bound by the Teste of the execution A. 304. Chose en Action What is a Chose en Action A. 176. C. 196. The King may grant it and how and by what words A. 271. B. 56. C. 17 18 196. A void Church is a Chose en Action and one Grantee thereof cannot release it to his Companion A. 176. C. 256. Church-Warden Whether the Successor shall have Action for Trespass done in the Predecessors time A. 177. Cinque-Ports Issue triable there tryed by a Jury of the next County C. 3. How Execution of Lands must be made there C. 3. Clergy Not grantable for a second Felony if the first Conviction appear by Record A. 295. Collusion See Fraud Colour Defendant justifies by a gift of Goods which were then out of the Vendors possession if that being out of possession be a good Colour C. 266 267. Common Special Common at certain times when the Land is not sowed A. 73. Shall not be to any House built on a new Foundation B. 44 45. The Lord or his Tenant shall have no Common to Lands improved by the Statute of Merton cap. 4. B. 44. If a Commoner may kill Conies B. 201 202. May distrain a Strangers Beasts Damage Feas B. 201. If some Commoners let their Corn lie beyond the usual time the other Commoners may put in their Cattle B. 202 203. Commission and Commissioners The second Commission of the King repeals the first A. 270. Nisi prius out of the Exchequer by Commission 110. Commandment The Commander not punishable unless his Command be strictly pursued B 75. In what case traversable B. 215 216. Conditions Lease upon Condition that the Lessee shall not alien doth not bind an Administrator Secus of a Feme whose Baron alieneth A. 3. In a Feoffment of Lands held in Capite that the Feoffees shall not alien A. 8 12. What acts shall be defeated by entry for breach of it A. 8. That the Lessee shall not do voluntary waste what is a breach of it and who shall enter for the breach A. 67. The difference where the Condition is Quod dimissio vacua foret and where only a re-entry is given A. 61. B. 134 to 145. To pay 20 l. or to give Cows how tender is to be pleaded A. 68. contra 70. The difference in pleading to a Condition to discharge and to save harmless c. A. 72 324 325. Shall not be averred to be against Law unless it appear so A. 73. 203. To pay the 29 of February not payable until a Leap-Year happen A. 101. To make such assurance as J. S. and such as the Plaintiffs Council shall devise the diversity A. 105. To perform all agreements in Articles is broken by not performing or by the falshood of a recital A. 122. To pay Mony at the Feast of St. Thomas the later Feast is the day of payment A. 142. con C. 7. What makes a Condition what a Limitation A. 167 168 174 244 269 283 299. B. 38 114 138. C. 152 153. When an Estate which is to begin upon a precedent Condition impossible or possible shall commence A. 229. What Covenants shall amount to a Condition and defeat an Estate A. 246. That the Feoffee shall enfeoff J.S. in Fee or in Tail J. S. refuseth who shall have the Estate A. 266. That the Donees in tail shall not do any act to discontinue c. and what is a breach thereof A. 148 207 257 292 298. A true diversity between the nature of a Condition and a Limitation A. 299. To make reasonable assurance and to levy a fine the difference therein A. 304. Must be pleaded by him who will take advantage thereof A. 306. To pay Mony at a day and place certain it need not be found to be paid at the very day or place so it were paid before the day A. 311. The force of a Proviso coming after the Habendum to alter an Estate A. 318. To perform all Agreements in an Indenture obliges the Obligor to all things though contained in the Obligees Covenants A. 324. To defend the Plaintiff for the Title of such Lands what is a breach A. 325. That a Devisee shall not alien for a time is good and what Estates are a breach thereof B. 82 83. Where the word Proviso makes a Condition or an Exception or Limitation B. 128 129 138. C. 16 225 226. Condition that the Lessee shall not occupy for a time is void B. 132. Of what Condition in a Lease Grantee of the Reversion shall take advantage of B. 136 to 144. Devise to his Son towards his education in Learning is no Condition but the Devise is good though he be not so educated B. 154. Become unpossible to be performed by the act of the Law or of God B. 155. A. bound that B. shall pay before Mich. B. dies before the Bond is forfeit B. 155. To maintain and keep in good repair the Lessee cannot pull down and
Executor shall sell who dies his Executor cannot sell B. 69. To the Heirs of the Body of his Eldest Son is void B. 70. I give my Lease to my Wife for life and then to my Children unpreferred B. 90. To the Heir in see is void and he is in by descent B. 101. C. 18. That his Executor shall pay a Debt this is no Legacy B. 119 120. Devise shall be taken according to the Common not Legal construction B. 120. C. 18 19. Devise of three Closes to three and if any die that the other shall have all his part to be divided between them B. 129. That A. shall pay yearly 10 l. out of a Mannor is a good Devise of the Mannor to A. B. 165. They shall be construed favourably but not against Law B. 165. If the Devisor be distrained and dies before re-entry nothing passeth B. 165. All his Lands called Jacks in the occupation of J S. what passes if not in the occupation of J.S. B. 226. Like Case C. 18 19 132. Of a Mannor to B. and of a third part thereof to C. they are joynt Tenants C. 11. Words in a Devise shall never be judged repugnant if by any rational Construction they may consist C. 11 28 29 Devise of Lands to his Wife for life and after that she may give them to whom she will C. 71. Lands called H. in two Vills A. and B. Devise of H. in A. for life remainder of Hayes Land to L. No Land passes in remainder but Lands in A. C. 77. To J. for thirty one years to pay Debts remainder after the Term expired to his Heirs Males and if he die within the Term that G. shall have it and be Executor J. dies his Issue enters G. evicts him C. 110. Devise that the eldest Son shall take the profits until the younger be of Age and the remainder to the younger Son the elder hath see conditional C. 216. Devise that his Feoffees to Uses shall be seised to other Uses who are accounted Feoffees C. 262. Diminution The manner of alledging it A. 22. With what time it must be alledged B. 3. Disceit Fine reversed by such a Writ because the Land is Ancient Demesne A. 290. C. 3 12 117 120. Not abated by death of one Defendant C. 3. Upon a Recovery in a Quare Impedit A. 293. The manner of proceeding therein A. 294. For an Infant against his Guardian who lost the Land by default in Dower B. 59. Where Estate of the Conusee remains after the Fine reversed C. 12 120. Whom it shall bind without summons C. 120. Discent Takes not away the entry of him who claims by Devise condition broken c. A. 210. B. 192. cont B. 147. Disclaimer He who hath disclaimed shall not have a Writ of Error C. 176. Discontinuance de Process c. Vide Continuance Discontinuance de Terre Remainder in fee after a Lease for life where not discontinued by Fine by the Tenant for life A. 40. B. 18 19. None of Copyholds A. 95. Nor upon a Covenant to stand seised made by Tenant in tail A. 110 111. By Feoffment of Tenant in tail A. 127. B. 18 19. Quid operatur if the Feoffees joyn in the Discontinuance B. 18 19. Lease for years by Cestuy que use pur vy is no Discontinuance but warranted by the Stat. of 32 H. 8. B. 46. None if the Reversion be in the King B. 157. C. 57. Nor by Bargain and Sale by Deed enrolled without Livery C. 16. Disseisin and Disseisor Where a Man shall be a Disseisor at the election of another A. 121. B. 9. If Tenant per auter vy hold over after the death of Custuy que vie if he be a Disseisor B. 45 46. The like if Tenant for years holds over B. 45 46. If the younger Brother enter if he be a Disseisor or Tenant at sufferance B. 48. If Disseisee may give licence to put in Cattle before Entry C. 144. He who Disseiseth a Copyholder gains no Estate C. 221. Disseisin to the use of Baron and Feme he only agrees the Estate vests in both but the Feme is no Disseisor C. 272. Distress Cannot distrain upon the Kings Lands A. 191. Where and who may distrein the Cattle of a Stranger though not Levant and Couchant where and who not B. 7. If one as Bailiff may say he takes a Distress for one cause and carry it away for another B. 196. Dower The Wife not Dowable if the Husband be attaint of Treason although pardoned A. 3. Of what age the Feme must be A. 53. Inquiry of Damages where the Baron died seised A. 56 92. In such an Inquiry the Jury may find above the value of the Dower A. 56. By Custom of Gavel-kind whether demandable as by Common Law A. 62 133. How a Grand-Cape in D. must be executed A. 92. Wife Dowable of a Seisin in Fee defeasible by a Condition A. 168. The Wife shall be endowed at Common Law where the King is to have Primer Seisin A. 285. If a conditional Estate be a good Joynture to bar Dower A. 311. Bar that the Heir granted to the Wife a Rent in satisfaction c. he ought to shew what Estate he had in the Land B. 10. An Infant cannot lose by default in Dower unless per Gardian B. 59 189. Notwithstanding what divorces the Wife shall be endowed B. 169 170. If the Wife shall be endowed where the Husband takes a Fine and renders back presently C 11. If she be barred by Fine and Non-claim if she brings her Writ within five years and desists prosecution six years after C. 50. Touts temps prist a render Dower where necessary to plead it or to give Judgment by default C. 50 52. If the Wise of the Lord shall be endowed of Demeine Lands grantable and granted by Copy by the Lord B. 153. C. 59. Of a Presentation to a Church C. 155. It is a good Bar in Dower that the Feme accepted Homage from the Tenant C. 272. Pleading of agreement to a Joynture made during Coverture C. 272. Divorce If it be causa frigiditatis in the Man who hath Issue by another if the first Marriage be good or the Divorce good until avoided by Sentence B. 169 170 171 172. The several kinds of Divorce B. 169. In pleading of Divorce the Judges name Coram quo must be precisely pleaded B. 170 171. Droit The form of a Writ of Right and what is demandable therein A. 169. B. 36. Whether it lies of an Office Stat. W. 2 cap. 25. A. 169. B. 36. The manner of arrayment of the twelve Recognitors by four Knights A. 303. Droit of an Advowson where it lies A. 316. No challenge to the Polls after the Array made A. 303. Where a Man hath no remedy but by this Writ B. 62 63 65. A Writ of Droit Close directed to the Bailiff and procceeded coram Sectatoribus good C. 63 64. In such Writ twelve Recognitors retorned suffice in an Inferior Court
Debt against the Debtors Executor A. 320. They may have Error of an Utlary in Felony against their Testator A. 325. Good resolutions for their pleading of Statutes Judgments c. A. 328. 329. What Debts must be first paid 328 329. Are liable to account to the King. B. 34. The manner of prosecuting a Devastavit in a forein County against an Executor B. 67. If they plead plene administravit specially by paying Debts upon Bonds they must shew how the Bonds are discharged B. 155. What intermeddling with the deceaseds Estate makes one Executor of his own wrong B. 224. Conditional if he pay all Debts owing to the Testator to the other Executor C. 3. If Executors enter or claim generally it shall be taken to be as Executors and not in any other capacity C. 36. It is said that a promise cannot be good to bind an Executor if he hath not Assets C. 67. Sale of Goods by an Infant Executor is good and binds him C. 143. One Obligor makes the Surety his Executor who pays the Mony generally Quaere C. 197. How he must be sued who being Executor of his own wrong takes Administration C. 197 198. One Executor cannot give the Goods of the Testator to the other for nothing passes by such Gift C. 209. Release of one Executor binds both C. 209. Executor of Executor not chargeable with a Devastavit made by the first Testator C. 241. Exemption A Juror sworn at the Bar notwithstanding he produced his Charter A. 207. Ex gravi querela In London in what case A. 267. Ex parte talis In what case it lieth B. 93. Exposition of Words Dedi Concessi in a Deed A. 29. Where the word Or in a Deed shall be copulative e converso A. 74 244. Of the word eundem in a Grant A. 15. Divisus dividend in an original Writ A. 169. Of Adtunc A. 172. I agree to surrender my Lands spoken by Tenant at will A. 178. Of the word Tenement in Grants A. 188. Of the word Covenant in a Bill of Debt A. 208. Uterque in Indictments A. 241. Quousque A. 244. Suus A. 271. Right A. 271. Factum implies sealing and delivering A. 310. Exponere ad culturam gives no Estate in the Land A. 315. In portum ad portum all one A. 335. Covenant with two quo ibet eorum B 47. In manner aforesaid is a Devise B. 69. By the word Licet may be made a good allegation B. 108. C. 67. A mile is accounted in Law 1000 paces and every pace 5 foot B. 113. Assurance to what Conveyances it doth relâ—te B. 130. Selion of Land is uncertain B. 162. Puer if it relates to both Sexes B. 217 218. Firma C. 12 13. Whether the word Mille may be joyned to a Genitive or Accusative Case C. 94. Tenementum is of an incertain signification C. 102. Of the word until as a Lease until Michaelmas includes the Feast day C. 211 Curtillage quid C. 214. Where a word in the singular number includes the plural C. 262. Immediate C. 273 274. Term of years C. 112. Extent If it be well executed though not retorned A. 280. Executed though not retorned in what case it is a good Execution B. 12 13. Lessee for years may pay the Rent to the Extendor C. 113. Scire facias to remove the Conusee C. 155. If the Conusee can in any case be removed without a Scire facias C. 155 to 158. What kâ—nd of Interest is left in the Conusor during the Extent C. 156 157. If an Extent be avoided by a Prior Statute the puisne Conusee may enter when the other is satisfied C. 239. If a Debt be assigned to the King he shall have all the Conusors Land C. 240. By the Statute of Acton Burnel the Extendors are to take the Lands if they appraise too high and must pay the Debt statim But when that statim means vi C. 274. Extinguishment Of Rent by Entry what act amounts thereto A. 110. Estate for life extinct by a Fee coming to the same person A. 174. A Prescription of non decimand in a spiritual Person is not extinguished by the Lands coming to lay hands A. 248. If a Remainder depending upon an Estate for life escheat the Seigniory is extinct presently A. 255. Where an Action once suspended is extinguished A. 172 320 330 331. Of a Use A. 257 259. A Rent granted in Fee and that it shall be suspended during the nonage of every Heir A. 266. Executor of the Debtee takes to Wife the Debtor how adjudged A. 320. Where personal things once suspended shall be revived B. 84. Lessor mortgages his Reversion to the Lessee in Fee the Term is utterly extinct C. 6. Where a Warrant is suspended and may be revived C. 10 11. A Term for years comes to the Lessor as Executor and he dies the Term is revived C. 210 111. If Unity of possession in the King of Abbey Lands extinguish a Common C. 128. If Devisee of a Term remainder over purchase the Fee the Term is not merged C. 92 93. Condition of re-entry is not suspended by assigning part of the Land for part of the Term C. 221. By destroying a Reversion a Rent depending thereon is extinct C. 261. A Mesnalty extinct by the Lords purchasing the Tenancy C. 261. Extortion Against whom it lies and the several Statutes against it A. 295. C. 268. It must be set sorth in the Judgment whether any Fee or no Fee was due C. 268. F. Faux Imprisonment See Iustification FFaux Imprisonment lies if a Capias be made out of the Courts at Westminster to a County Palatine B. 89. Faux Iudgment Lies upon a Justicies not Error B. 34. Upon a Writ of Right Close prosecuted in nature of an Assise C. 63. Fee-simple Where it may be created without the word B. 27. C. 216. Devise that the elder Son shall take the Profits until the younger come of Age is a Fee conditional in the eldest C. 216. Feoffment Vide Vses Good by the words Bargain and Sell with Livery A. 25. Fine and Amerciament Upon alienation without Licence A. 8. B. 55 56. In what case a Vill shall be amerced for the escape of a Felon A. 107. C. 207. If a Pain upon a Presentment must be afferred A. 203 204 217 242. In what case a Steward may Fine in a Court-Leer A. 217 242. Grantee of Post-Fines if he may distrain for them and sell the distress A. 249 250. The manner of pleading in Trespass where the Defendant-justifies for such Fine A. 249 250. By what words such Fines pass A. 249 250. If a Defendant make several defaults in one Suit he shall be several times amerced B. 4 5. Fine set in a Court for a contempt in not retorning of Cattle in a Replevin B. 174. Debt lies for a Post-Fine by the Kings Grantee B. 179. cont C. 56 234. A Defendant may be several times amerced for several defaults in one Suit B.
185. If a pain set in a Court-Baron may be mitigated by afferrors C. 8. The remedy for a Grantee of the King to recover a Post-Fine C. 56 234. Fine for alienation without Licence may be levied upon any Lands of the Vendor C. 241. Fine of Land. See more C. 74. Partes finis nihil habuer where Executors sell by vertue of a Devise that they shall sell A. 31. Not receiveable if made to two heredibus suis A. 62. A Fine levied of two parts of a Mannor sans dire in tres partes dividend good in a Fine but ill in a Writ A. 115. How to be pleaded upon the Statutes of 4 H. 7. 1 H. 3. 32 H. 8. A. 75 76 77 78. B. 36 37. Quod partes finis nihil habuer how and in what cases to be pleaded A. 78 83 185. B. 36 37. C. 37 119. Where it shall be reversed in part or in the whole A. 115. C. 120. Levied in Exeter City and reversed because it was de duobus Tenementis A. 188. Who shall be bound and how by a Fine and Non-claim after five years A. 212 213 214 259 260 261. B. 18 19 36 37. C. 10. What remainder and contingent Uses are barred by Fine A. 244. B. 18 19 36 37. C. 10. With render of a Rent in Fee and the Lands to the same persons for life how the Law construes this render A. 255. In pleading of it it is not necessary to say that the Conusor was seised A. 255. Dangerous to plead a Fine inter alia A. 255. By Baron and Feme Come ceo que il ad del done le Baron does not bar the Feme of Dower A. 285. Of Ancient Demesne Lands avoided by a Writ of Disceit A. 290. C. 220. For life without the word Heirs is not to be received for fear of occupancy B. 124. The force of a Fine without proclamation such Fine is not void but avoidable by Formedon B. 157. An Infant may declare the Uses and it binds B. 159. Where it must be pleaded and conclude Si actio and where by Estoppel B. 160. Forfeiture Baron and Feme makes a Feoffment of the Wives Joynture to one and his Heirs to the use of the Feoffee for the life of the Feme and adjudged a Forfeiture A. 125 126. Tenant for life forfeits his Estate by levying a Fine A. 40 212 214 262 264. If a remainder which is to vest upon a contingency may be forfeited before it vest A. 244 245. What distress or acceptance shall bar a Lessor to enter for a forfeiture for non-payment A. 262. If Bargain and Sale by Tenant for life be a forfeiture A. 246. It is no forfeiture B. 60 65. What Aid Prayers Vouchers Attornments and Pleadings by Tenant for life and years in real Actions is a forfeiture of his Estate B. 61 62 63 64 65 66. C. 169 170. If Tenant for life and the Reversioner joyn in a Fine and the Reversioner reverse the Fine for his Nonage yet he cannot enter for forfeiture B. 108. If Cestuy que vie die and the Tenant hold over if he be Tenant at Will Sufferance or a Disseisor C. 151 152. Form. Want of Traverse is but Form A. 44. Pleading to a Condition performance of Covenants generally is but form A. 311. Want of shewing a Deed is but Form B. 74. C. 193. Want of shewing a place is substance C. 200. What other matter is but Form C. 235. Formedon After the Tail spent the Plaintiff may suppose all to be dead without Issue A. 286. C. 103. Gavel-kind Land no Assets to bar a Formedon A. 315. In Reverter upon a Gift to the Heirs of the Body of Baron and Feme remainder to their Heirs B. 25. Upon a Gift in Tail remainder to Coparceners the Heir of the Survivor must bring a Formedon for that they claim as purchasers C. 14. Forrest Lex Forestae is but a private Law and must be pleaded B. 209 210. Fraud Fraud shall not be presumed but must be averred C. 255. G. Gardian GArdian in Soccage may grant the Ward though he cannot forfeit C. 190. Gardian in Soccage may enter for Condition broken and make Leases A. 322 323. The Court refused to appoint one for an Infant retorned Tenant in Dower unless in Court in person B 189. Gavel-kind Dower of such Lands is by custom a moiety quamdiu sola c. A. 133. Such Lands are not Assets to bar a Formedon A. 315. Grant. Of Estovers pro Easiamento A. B. heredum suor ' how construed A. 2. Lease at will 10 l. Rent The Lessor grants eundem reditum for life A. 151. Of the next avoidance does not give the then present avoidance A. 167. Of a Vicaridge does not pass the Presentation thereunto A. 191. If an Executor bona sua the Testators Goods pass A. 263. All my Goods and Chattels in such a Town a Lease of the Pawnage of a Park passes C. 19. All Wood upon such Land to be cut and carried away in 30 years does not grant any but what was then growing C. 29 30. A Grant cannot be but of a thing in esse C. 29 30. The force of the word Grant in a Lease C. 33. Grant of all Woods and Underwoods C. 59. Grant of a Rent-Charge to begin when J. S. dies without Issue who had Issue which died without Issue C. 103. All my now Goods and Chattels if the interest or possibility of a Term pass C. 153 to 158. Of the third avoidance c. the Wife is endowed of it the Grantee shall have the fourth C. 155. What interest of a Term or possibility may be granted C. 157 158. Of the Ear-grass of a Meadow C. 213. That the Grantee may take a Load of Hay yearly out of his Meadow the Grantee cannot take no Hay in one year and take two the next C. 226. What shall be sufficient certainty to describe what Lands are granted though part of the description be false A. 119. B. 226. C. 18 19 162 235. Grant of Common in all my Lands the Grantee shall have no Common in the Orchards Gardens c. C. 250. Divers good Cases where Grants of Tenant in Tail and he in Reversion or of Coparceners Joynt-Tenant and Tenant in Common shall be adjudged joynt or several Grants or the confirmation of one C. 254 255 256. Grant of the King and Patents Of a Mannor cum pertin Another Mannor which holds of it passes A. 26. Of an Acre in a great Field not specifying where is void Secus in the case of a common person A. 30. By his Grant Omnium bonorum catallorum Felonum what passes A. 99 201 202. B. 56. Shall be taken according to the true meaning A. 119 120. B. 80. Of a Chose en Action must be very strictly penned N. 271. C. 17 18 196 198. By the Statute of 31 H. 8. cap. 20. the King may grant Lands forfeited before Office B. 124. The force of a Non obstante in
shall vest the Estate by Livery and prevent the operation of Inrolment A. 6. C. 125. By Letter of Attorny cannot be made by parcels unless so limited A. 34. What is a good Livery what not A. 207. Where the particular Tenant and he in remainder joyn in a Livery how adjudged A. 262. How it must be made by Attorny of Land in several Counties or of a Mannor A. 306 307 308. Made to three where the Feoffment was to four is good in some cases B. 73. Feoffment by Tenant for life and before Livery made by Letter of Attorny the Feoffor purchaseth the Fee and then Livery is made the Fee passeth C. 73. But that shall not pass other Lands purchased by the Feoffor in the same Vill where the Feoffment was of all his Lands in D. C. 73. Livery ouster le main What Leases or Conveyances an Heir may do before Livery sued A. 157. London Scire facias there ad discutiendum debitum A. 52. Quo Warranto lies against the City if the Mayor use authority not agreeable to Law per Gawdy A 106 107. Upon a Recognizance taken before the Mayor by custom Debt lies not but in their own Courts A. 130 131. The custom that a Feme sole Merchant may sue without her Husband A. 130 131. The Statutes of 32 34 H. 8. of Wills how far they extend to Lands in L. A. 267. The Courts at Westminster take notice of their Customs A. 284. It had no Sheriffs in the 13th year of King Edw. the First Ibid. Debt lies in the Common Pleas upon a Recognizance there Ibid. Hustings may be holden every Week B. 14. Upon Indictment at the Sessions Error lies B. 107. The Custom there Quod concessit solvere debitum alterius B. 156. Custom that every Surety shall be chargeable pro rata B. 166 167. If an Action there by Custom be removed to Westm it shall be remanded B. 167. They ought not to be impleaded in real Actions but in their own Courts C. 147. Their Liberties seised and re-granted by King Richard the Second and re-granted for 10000 Marks C. 264. M. Maihem Cutting off any Finger is a Maihem A. 139. Maintenance See Stat. 32 H. 8. For desiring a Juror to appear and to do according to his Conscience done by a Stranger B. 134 135. Against a Counsellor at Law C. 237. Mannor Whether a Rent-Charge may be parcel of a Mannor A. 14. Extending into several Vills a Grant of the Mannor in one Vill how adjudged A. 26. Granted cum pertin another Mannor which holds of it passeth Ibid Where by Grant of part of the Services of Freeholders and Demesnes a Mannor will pass A. 26. B. 41 42. A Lease of a Mannor except all Casualties and Profits of Courts the Court is not excepted A. 118 119. How it may be dissolved and after become a Mannor again A. 204. A moiety thereof by what words conveyed A. 204. B. 42. Whether a Steward of a Mannor deputed by parol may take Surrenders extra curiam A. 228. If Lessee of a Mannor attorn to the Grantee of the Reversion the Mannor passes A. 265. B. 221 222. If the Tenants pay their Rent to a Disseisee they are discharged A. 265. The Service of a Tenant may be changed from one service to another A. 266. What will pass by Grant by name of a Mannor B. 41 42 43. By what name a Mannor may pass B. 47. A Mannor in two Vills is devised to the Heir and the Lands in the one Vill to A.B. he shall have that devised to him B. 190. Lease the Demesnes the Reversion passes not by grant of the Mannor without the Lessees Attornment B. 222. The Services pass not without Attornment C. 193. Market If a stoln Horse be sold by J. S. by the name of J.D. and so entred it alters no property A. 158. Mesne The form of the Count B. 86. If it be extinct by the Lords purchasing the Tenancy Monstrans de Droit Where it lies A. 195 B. 122. Or where only a Petition de Droâ—t B. 122. C. 15. Petition of Right for a Rent-Charge granted out of Lands which are since vested in the Crown C. 190 191. All the Estates must be truly set down else all is void after Judgment C. 242. Monstrans de Faits Upon pleading a Grant of a Reversion the Deed must be shewed A. 310. And upon pleading of an Estate in an Hundred B. 74. Mort vie If the Plaintiff die after Verdict within the time that the Court takes to consider of the Law the Court may if they will give Judgment as at the first day in Bank A. 187. If the Defendant die after the first Judgment in Trespass before the Writ of Inquiry retorned yet the Action does not abate A. 263. C. 68. If one of two Defendants in Assumpsit die before Judgment if Error B. 54. Murder To leave ones Child whereby it perishes by Famine A. 327. N. Name OF a Corporation ought to be strictly alledged as to the substance A. 134 162. C. 18 19. Joan and Jane all one Name A. 147. A Corporation makes a Lease by the same name in substance and sense but not in words yet good A. 159 160 161 162 163 215. B 97 165. C. 220. Garret King of Arms and the manner of his Creation A. 249. What are Names of Dignity and what of Office only Ibid. B. and Nether B. a Vill A. 272. Executor of Executor how named A. 275. If the word Heir be a good name of purchase A. 287 288. Where the names of the Heads of what Corporations must be shewed in pleading A. 307. The best way is to sue the Defendant as he is named in the Bond though his Name be otherwise A. 322. What is a Name of Dignity and must be put in the Writ what not B. 49 In pleading any matter done before Suiters of a Court-Baron if their Names must be shewed C. 8. Ne admittas Where it lieth A. 235. Negative pregnant Defendant pleads that he permitted J.S. to have ingress into all such Lands which lay fresh adjudged good A. 136. That J. G. did not disturb the Plaintiff but by due course of Law B 197. How to avoid the pleading of a Negative praeg by a Modo forma B 198. Nisi Prius If grantable per Proviso pro Def. upon an Information at the suit of the party B. 110. Nolle prosequi As to part before Verdict in a joynt Action if it discharge the whole B. 177. Nomine pene The Heir shall not have Debt for it reserved by his Ancestor B. 179. Nonsuit The Plaintiff may be Nonsuit after Demurrer A. 105. C. 28. No Nonsuit for part of a Writ or Bill B. 177. Non est factum Where the Defendant may plead it or the special matter A. 322. By this Plea the date of the Bond nor the sealing of it at another day than which the Plaintiff declares cannot prejudice the Plaintiff C. 100. Notice How
Mich. 29 El. C.B. p. 168. C. 219 Weshborn and Mordants Case Mich. 29 Eliz. B. R. p. 174. C. 225 Williams and Linkfords Case Trin. 29 Eliz. B.R. p. 177. C. 229 Welcot and Powells Case Pasch 30 El. B.R. p. 206. C. 263 Wigmore and Wells Case Pasch 30 El. B. R. p. 206. C. 264 Willoughbies Case Trin. 30 Eliz. B. R. p. 216. C. 285 Wood and Payns Case Trin. 31 El. B.R. p. 228. C. 306 Sir Walter Wallers Case Trin. 32 Eliz. Exchequer p. 241. C. 333. p. 259 C. 345 Woodward and Baggs Case Hill. 32 El. B. R. p. 257. C. 341 Witherington and Delabars Case Mich. 33 Eliz. B. R p. 268. C. 360 Y. YOung and Ashburnhams Case Hill. 29 Eliz. C. B. p. 161. C. 210 Yates Case Trin. 31 Eliz. B.R. p. 231 C. 312 THE THIRD PART OF THE REPORTS OF Several Excellent Cases Argued and Adjudged in the several COURTS of LAW at Westminster In the Time of the Late Queen ELIZ. From the First to the Five and Thirtieth Year of her Reign In the Time of Edw. the Sixth I. 6 Edw. 6. In the Common Pleas. A Man had a Warrren in Fee extending into three Towns Benlow's Rep. 12. Owen Rep. 10. 1 And. 26. 13 Co. 57. 1 Inst 148. a. 7 Co. 23. b. Goldb 44. and Leased the same by Deed to another rendring Rent And afterwards granted by Deed the Reversion of the whole Warren in one of the said Towns to another and the Lessee attorned It was holden by all the Iustices in the Common Pleas That neither the Grantor nor the Grantee should have any part of the Rent during the same Term Because no such Contract can be apportioned II. 6 Edw. 6. In the Common Pleas. A Man by Deed Indented 1 And. 27. Bargained and sold Land unto another in Fee and Covenanted by the same Deed to make to him a good and sufficient Estate in the said Land before Christmas next And afterwards before Christmas the Bargainor acknowledged the Deed and the same is enrolled It was the Opinion of all the Iustices of the Common Pleas That by that Act the Covenant aforesaid was not performed For the Bargainor in performance of the same ought to have levied a Fine made a Feoffment or done other such Acts. III. 6 Edw. 6. In the Common Pleas. 1 And. 32. IN Dower the Tenant made default at the Summons and now at the Grand Cape he came and said That he could not come because he was in great infirmity at the time of the Summons so as he could not appear It was the Opinion of the whole Court That that matter should not save his Default because it cannot be tryed as creit de Eue and Imprisonment may be IV. 6 Edw. 6. In the Common Pleas. 1 And. 32. DEbt against Executors who pleaded Riens enter Maynes which was found against them The Plaintiff sued forth a Writ of Execution Vpon which the Sheriff retorned Nulla bona Testatoris within the County It was the Opinion of the Court That the same was a good Retorn for it may stand with the Verdict for it may be that they have Assets in another County See 3 H. 6. 11. Where the Retorn is general Quod non habent Executores aliqua bona Testatoris that it was holden insufficient but here in this Case the Retorn is special scil in the same County In the Time of Queen Mary V. 1 and 2 Philip and Mary In the Common Pleas. 1 And. 31. TEnant in tail had Issue two Sons and enfeoffed his younger Son and died The younger Son died without Issue leaving his Wife priviment ensient with a Son the elder Brother entred It was holden in this Case That he was Remitted and although that afterwards the Son was born yet the same should not avoid the Remitter VI. Stapleton and Truelocks Case Mich. 1 and 2 Phil. and Mary More Rep. 11. WIlliam Stapleton Executor of John Scardenyll brought an Action of Debt against John Truelock Administrator of the Goods of William Truelock who died Intestate upon a Bill sealed The Defendant demanded Oyer of the Testament By which it appeared That the said Scardenyll had made the Plaintiff and the said William Truelock his Executors And in the said Will was this Clause I Will That my Friend William Truelock shall pay to my other Executor all such debts as he oweth me before he shall meddle with any thing of this my Will or take any Advantage of this my Will for the discharge of the same debts for that I have made him one of my Executors And upon this matter It was clearly Resolved that the said William Truelock could not Adminster nor be Executor before he had paid the debts And the Defendant said That the said William Truelock in his life had paid unto his Co-Executors all such debts which in vita sua debuit to the said Scardenyll And also that the said William Truelock in his life time had Administred the Goods of Scardenyll with his Co-Executors And in this Case Iudgment was given for the Plaintiff and that for default of pleading For the Defendant ought to have shewed Acquittances of the payment of the debts to his Co-Executors and also ought to have shewed in Certainty what debts they were VII Hecks and Tirrell's Case 3 and 4 Phil. and Mary DEbt by Hecks and Harrison against Tirrell as Heir Who pleaded Nothing by Descent The Plaintiff Replyed 1 And. 28. Assets at such a place within the Cinque-Ports And so it was found by a Iury of the County adjoyning and Iudgment given of the moyety of his Lands aswell those by descent as by purchase And a Writ awarded to the Constable of Dover to extend the Lands within the Cinque-Ports But it was said That first the Plaintiff ought to have a Certiorari to send the Record into the Chancery and from thence by Mittimus to the Constable of Dover VIII The King and Due and Kirleys Case 4 and 5 Phil. and Mary THe King and Queen brought a Writ of Disceit against Due and Kirley and declared More Rep. 13 That one Colley was seised of certain Lands in Fee and held the same of the King and Queen as of their Mannor of Westbury the which Mannor is Ancient Demesne and so seised levies a Fine thereof to the said Due Sur Conusans de Droit come ceo c. Due rendred the Land to Colley for life the Remainder over to Kirley in Fee Colley died Kirley entred as in his Remainder Kirley pleaded That the Land whereof c. is Frank Fee c. Vpon which they are at Issue Which Issue depending and not tryed Due died It was moved in this Case That the Writ might abate But that was denyed by the Court. For this Action is but Trespass in its nature for to punish this Disceit and no Land is to be recovered but only the Fine Reversed IX Eliot and Nutcombs Case Mich. 4 and 5 Phil. and Mary
Et ulterius concessiâ— that if the Lessee obierit infra 20 annos proxime sequent the said Lessee potuit legare dare praedict tenementa alicui personae usque ad terminum praedict 20 annorum c. and Dyer cited the Case 16 E. 3. Quid juris clamat 22. Land was leased to one for life and if the Lessee died within the Term of 20 years that his Executors or Assigns should have it until the end of the said 20 years and a Quid juris clamat was brought against the Lessee for life without any mention of any other Estate To which the Defendant pleaded the special matter and demanded Iudgment upon that Fine if he should be driven to Attorn where he is supposed Tenant for life only And it is there said That that special matter is but a Protestation to save the Term to his Executors And upon such a Fine such Tenant hath been driven to Attorn And by Dyer If the Lessee doth not make such protestation yet his special interest is not impaired by it yet it is but reason that it be entred for the more manifestation of it 32 E. 3. Quid juris clamat 5. A Lease to W. for life and 20 years over he may grant the same Term or any part of it And he cited the Case between Parker and Gravenor 3. 4 Mar. Dyer 150. Where a Lease for life was made and by the Indenture of Lease Provisum fuit That if the Lessee died within the Term of 60 years that then his Executors and Assigns should have and enjoy the said Lands pro termino totidem annorum which did amount to the number of 60 years to be accompted from the date of the Indenture And it was the Opinion of the Court That that was not any Lease But they all agreed That a Lease for years in remainder might be upon a Lease for life in the same person See 40 E. 3. A Lease was made for life and half a year after the Lessee died and Waste is brought against the Executors supposing that the Testator held for years and the Writ was holden good And there it is said by Kirton That the Executors could not have that Term unless it were in the Testator and there the Term is not limited to any person And see 11 H. 4. 187. Annuity granted to one for life and 20 years after And 50 E. Ass 1. A Lease for life and 3 years over to his Executors And then here in our Case This Vse being limited in Order according to the Rules of the Common Law shall vest in the Grantor to give or forfeit and then by the Attainder it was forfeited to Queen Mary and if so then the Plaintiff shall be barred Harper Iustice to the contrary And that the Interest in the Remainder for years limited to the Executors and Assigns of the Grantor is in abeyance and not in the Grantor and then it cannot be forfeited But if this Vse had been limited to the Grantor himself then all had been in him to give c. But here in our Case the Remainder for years is limited and appointed to the Executors c. Also Vses shall not be ruled in such manner as Lands but the Law shall rule the possession obtained by use in another manner than the possession obtained by the Order of the Common Law As in the Case of Amy Townsend Plow Com. 111 112. Where the Husband seised in the right of his Wife made a Feoffment in Fee to the use of himself and his Wife for life with divers remainders over Now is not the Wife remitted as she should be by Conveyance at Common La as if the Husband discontinueth the Land in the right of his Wife and the Discontinuee giveth the Lands to the Husband and Wife and to a third person she is remitted to the whole and the third person hath not any thing Dyer to the same intent And here we ought to intend and consider That it was the purpose of Cranmer to advance his Executors with this Term unto their own use and benefit and not to leave the same in himself And I do conceive That the use is in abeyance until the Executors are made or an Assignee appointed for he may make an Assignee who shall have the Term For Assignee may be made two ways 1 By grant of an Estate which is in the Grantor before 2 A person nominated and appointed by another to take any thing c. And it shall be also intended That Cranmer was purposed to make other Provision to leave to his Executors Assets to perform his Will and not that that Term should be applyed to that purpose for then he would have shewed it in the Conveyance by words scil as to pay his Legacies and perform his last Will And the Cases put by my Brother Manwood do not go to the Point For I agree Where Lands are given to one for life the remainder for years and doth not say to whom it cannot be intended to any other but to the Lessee for life or otherwise it shall be void And also where Land is given to one for life and for two years after to his Executors or Assigns or Heirs all is in the Lessee for all is as one gift But where it is given to one for life and after his death the remainder to his Executors I do not see any reason that that remainder should be any Assets in the hands of the Executors Or that if the Lessee dieth Intestate that his Administrator should have it and therefore the Executors shall have the same as a purchase But Cranmer might have given the same or appointed one in the mean time to receive it and in the mean time it shall be in abeyance Also if Lands be Leased to B. for life the remainder for years to his Heirs the same remainder for years is in abeyance until the death of the Lessee and then it shall vest in the Heir as a Purchasor and as a Chattel and shall go to the Executor of the Heir c. and the Tenant for life cannot meddle with it for it is not in him Also Vses shall not be raised as Lands i. e at the Common Law but shall be raised by the Statute and as Vses were raised in the Chancery before the Statute And therefore if this Conveyance had been before the Statute he could not have compelled the Feoffees to dispose of that Interest at his pleasure c. And then Cranmer the Son shall have the Land by force of the entail limited unto him For the Estate for years is gone because no assignment of it is made nor any Executors who can take it and the Estate for life is determined by the death of Cranmer and the Feoffee to an Vse cannot have it for there is not any Consideration whereof he should have any Vse for by the Limitation nothing was left in the Feoffee And so I conceive that the Plaintiff shall recover
See the Case 14 Eliz. in Dyer L. Mich. 15 Eliz. In the Common Pleas. Tottenham and Bedingfields Case Owen Rep. 35 83. IN an Accompt by Tottenham against Bedingfield who pleaded That he never was his Bailiff to render accompt the Case was That the Plaintiff was possessed of a Parsonage for Term of years and the Defendant not having any Interest nor claiming any Title in them took the Tythes being set forth and severed from the 9 parts and carried them away and sold them Vpon which the Plaintiff brought an Action of Accompt And by Manwood Iustice the Action doth not lie for here is not any privity for wrongs are always done without privity And yet I do agree That if one doth receive my Rents I may implead him in a Writ of Accompt and then by the bringing of my Action there is privity and although he hath received my Rent yet he hath not done any wrong to me for that it is not my Mony until it be paid unto me or unto another for my use and by my Commandment and therefore notwithstanding such his Receipt I may resort to the Tenant of the Land who ought to pay unto me the said Rent and compel him to pay it to me again and so in such case where no wrong is done unto me Hob. 32â— I may make a privity by my consent to have a Writ of Accompt But if one disseiseth me of my Land and taketh the profits thereof upon that no Action of Accompt lieth for it is meerly a wrong And in the principal case so soon as the Tythes were severed by the Parishioners there they were presently in the Plaintiff and therefore the Defendant by the taking of them was a wrong doer and no Action of Accompt for the same lieth against him And upon the like reason was the Case of Monox of London lately adjudged which was That one devised Land to another 1 Len. 266. and died and the Devisee entred and held the Land devised for the space of 20 years and afterwards for a certain cause the Devise was adjudged void and for that he to whom the Land descended brought an Action of Accompt against the Devisee And it was adjudged That the Action did not lie Harper contrary For here the Plaintiff may charge the Defendant as his Proctor and it shall be no Plea for the Defendant to say That he was not his Proctor no more than in an Accompt against one who holdeth as Gardian in Socage it is no plea for him to say that he is not Prochein Amy to the Plaintiff Dyer The Action doth not lie If an Accompt be brought against one as Receiver he ought to be charged with the Receipt of the Mony and an Accompt doth not lie where the party pretends to be Owner as against an Abater or Disseisor but if one claimeth as Bailiff he shall be charged and so it is of Gardian in Socage Latch 8. And it was agreed That if a Disseisor assign another to receive the Rents that the Disseisee cannot have an Accompt against such a Receivor LI. 15 Eliz. In the Court of Wards NOte That this Case was ruled in the Court of Wards That where Tenant of the King of Lands holden by Knights Service in chief made a Feoffment in Fee of the same Lands to the use of himself for life and afterwards to the use of his younger Son in tail the remainder to the right Heirs of the Feoffor and died his eldest Son within age That the Queen should have the Wardship of his body and of the third part of the Land and when the eldest Son comes of full age that the younger Son should sue Livery and pay Primer Seisin according to the rate and value of the whole Land viz. of the third part as in possession and of the two parts as a Reversioner For the remainder to the right Heirs of the Feoffee is in truth a Reversion for the Fee simple was never out of him because there is not any consideration as to that nor any Vse expressed And because Livery shall not be sued by parcels the younger Son shall not be suffered to sue Livery of the third part presently and respite the residue as to the two parts in Reversion until the Reversion fall but he shall sue Livery presently as well of the two parts in reversion as of the third part in possession and if the eldest Son had been of full age at the time of the death of his Father the younger Son should pay Primer Seisin as to the third part the whole value of it for one year as in possession and as to the two parts the moiety of the value of a year as of a Reversion LII Oliver Breers Case 15 Eliz. In the Court of Wards OLiver Breer who was Tenant in Chief by Knights Service made a Feoffment in Fee to the use of himself for life and afterwards to the use of A. his eldest Son and Heir for life and after to the use of the first begotten Son of the said A. in tail and afterwards to the use of the second Son of the said A. c. and for default of such issue to the use of the right Heirs of the Feoffor Oliver died the said A. his Son being of full age It was holden by the Council of the Court of Wards That he should pay for his first Primer Seisin a third part as in possession and two parts as a reversion See the Case before LIII Mich. 15 Eliz. In the Kings Bench. NOte 1 Roll. 626 This Case was moved to the Iustices in the Court of the Kings Bench A Man had Issue two Daughters by divers Women and being seised of Lands in Fee he made his Will and by the same Devised That his Wife should have the moyety of his Lands for years and that his eldest Daughter at the day of her Marriage should enter into the other moyety his eldest Daughter married and died without Issue And the Question was Whether her Vncle should have that moyety or the fourth part of the whole Land. Catline conceived and said That when the Devise which was made to the eldest Daughter that she might enter after certain years is not the Inheritance in her presently and the other words void So he said here That it is not a purchase in the eldest Daughter but both the Daughters should enter in Common as one Heir to their Father until the Marriage and then the Inheritance which was once settled in them should not be removed Southcote Iustice said There are no words of Limitation of any Estate that the Daughter should have after the Marriage and therefore the Devise was void and if he had limited that the Daughter after Marriage should have it for life the Fee-simple is vested in her before and then she cannot have it for life And he said That if a Lease be made to the eldest Daughter for years by the Father and afterwards
shall be taken in Iudgment of Law That the Executors have Assets to the value of the whole 100 l. And although the Executors were compelled by the Award to make the release yet it was their own act to submit themselves to the Arbitrament LXXVIII Mich. 15 Eliz. In the Court of Wards NOte It was Ruled by Kellaway and Wilbraham in the Court of Wards That where the Kings Tenant of Lands holden by Knight service in Capite made a Feoffment of the same Land to the use of himself for life and after to the use of his younger Son in tail the remainder to the right Heirs of the Feoffor and died the eldest Son within age That the Queen should have the Wardship of his body and of the third part of the Land and when the eldest cometh at full age the younger shall sue Livery and pay Primer Seisin according to the rate of the value of the whole Land viz. of the third part as in possession and of the two parts as a Reversion For the remainder to the right Heirs of the Feoffor is in truth a Reversion For the Feesimple was never out of him because there was not any Consideration as to that nor any use expressed And also because that Livery shall not be by parcels the younger Son shall not be suffered to sue Livery of the third part presently and respite the residue as to the two parts in Reversion until the Reversion fall but shall sue Livery presently as well of the two parts in reversion as of the third part in possession And if the eldest Son had been of full age at the time of the death of his Father the younger Son should pay Primer Seisin as to the third part of the full value of it for one year as in possession and as to the two other parts the moyety of the value of a year as a Reversion And at that time Breers Case was vouched which was Oliver Breers Tenant in Chief by Knights Service made a Feoffment in Fee to the use of himself for life and after to the use of A. his Son and Heir for life and after to the use of the first begotten Son of A. in tail and after to the use of the second Son of A. c. and for default of such Issue to the right Heirs of the Feoffor Oliver died the said A. his Son being of full age It was ruled by the said Council of the said Court of Wards That he should pay for his Primer Seisin a third part of the Land in possession and two parts as a Reversion LXXIX Mich. 15 Eliz. In the Common Pleas. Post 56. THe Case was A Man was seised of a Pasture in which was two great Groves and a Wood known by the name of a Wood And also in the same Pasture were certain Hedge-Rowes and Trees there growing Sparsim Leased the same by Indenture for years And by the same Indenture bargained and sold to the Lessee all Woods and Vnderwoods in and upon the Premisses And further That it should and might be lawful to the Lessee to cut down and carry away the same at all times during the Term. Harper Iustice The Hedge-Rowes did not pass by these words Hedge-Rowes sparsim Dyer The Hedge-Rowes shall pass for the Grant is general All Woods Mounson contrary For the words of the Grant may be supplyed by other words It was moved further If by these words the Lessee may cut them oftner than once And by Harper Manwood and Mounson He can cut them but once Dyer contrary And so it should be if the words had been Growing upon the Premisses And this word Growing although it sounds in the present Tense yet it shall be also taken in the future Tense if the word tunc had not been alledged for it is a word of restraint The Case which was argued in the Chancery 27 H. 8. where I was present was such The Prior of St. John of Jerusalem Leased a Commandry Provided That if the said Prior or any of his Brethren there being Commanders will dwell thereupon then the said Lease to be void It was doubted If that did extend to the Successors for the word Being is in the present Tense And yet it was holden by Fitzherbert That it should be taken in the future Tense and so extend to the Successors Otherwise if the words had been Nunc Being LXXX Mich. 15 Eliz. In the Common Pleas. A Man seised of Lands in Fee devised 1 Len. 101. That his Wife should take the profits of his Lands until Mary his Daughter and Heir came to the age of 16 years And if the said Mary died That J.S. should be her Heir Manwood The Daughter after she hath attained the age of 16 years shall have the Land in tail For Devises ought to be construed according to the intent of the Devisor so far forth as any certainty with reason may be collected but no intent shall be taken against all reason and certainty It is certain That the Daughter shall not have the Land in Fee for that shall descend to her without any Devise And these words If she dieth cannot be intended a Condition for it is certain she shall die But if the words had been That after the death of Mary J.S. should be his Heir in such case Mary had had but an Estate for life for there it is limited what Estate she should have And when it is said J.S. shall be his Heir it shall be meant his Collateral Heir so as the Estate tail remains in the Daughter Mounson and Harper to the contrary and that she shall have but for life And by Mounson If Mary had been a stranger to the Devise she should take nothing And this Case was put by Barham Serjeant A Man deviseth 100 l. to his youngest Daughter 100 l. to his middle Daughter and another 100 l. to his eldest Daughter and that all these sums shall be levied of the profits of his Lands It was holden by the better Opinion of the Court in this Case That the youngest Daughter should be first paid and then the middle and then the eldest Daughter and that was said to be Coniers Case LXXXI Mich. 15 Eliz. In the Common Pleas. THe Case was The King granted to the Bishop of Salisbury That he should have Catalla felonum fugitivor ' and Fines and Amercements of all Tenants and Resiants within the Mannor of D. which Mannor the Bishop Leased for years and that the Lessee should have all profits and hereditaments within the same Mannor Manwood Iustice conceived That the Lessee should have the Post Fines For all things have a being somewhere although they be not visible As Rents Fines have their being in the Lands out of which they are issuing and that is in the Son of a Fine levied of the Land within the Mannor which is due by Land of him who ought to pay the Fine And this Fine is due be reason of the
Land therefore it is in the Land or within the Land i. e. the Mannor For the King may distrain for the Fine as well in the same Land as in the Land of him who ought to pay it Dyer doubted of it and said That the Bishop could not distrain in the Land for this Fine but should have it by allowance in the Exchequer upon the Estretes and if the party would not pay it the Lessee should have a Subpoena against him out of the Exchequer And some were of Opinion That the Lessee could not have this Fine 2 Len. 179. 4 Len. 234. for that they were not Hereditaments within the Mannor but rather in the Exchequer or Court where the Record is LXXXII Mich. 15 Eliz. In the Common Pleas. THe Case was A Man seised of a Pasture in which are two great Groves and a Wood known by the name of a Wood And also in the same Pasture there are certain Hedge-Rowes and Trees there growing Sparsim Leased the same by Indenture for years And by the same Indenture bargained and sold to the Lessee all Woods and Vnderwoods in and upon the Premisses And further That it shall and may be lawful to the Lessee to cut down and carry away all the same at all times during the Term. Harper The Hedge-Rowes do not pass by these words for they are not known by the name of Woods 14 H. 8. 2. contrary by Manwood For by such words Hedge-Rowes pass Mounson contrary For the words of the Grant may be supplyed by other Words Dyer The Hedge-Rowes shall pass for the Grant is general All Woods It was moved further If by those words the Lessee might cut them a second time or but once Harper Manwood and Mounson He may cut them but once Dyer contrary And so it should be if the words had been Growing upon the Premisses And this word Growing although it sounds in the present Tense yet it shall be also taken in the future Tense if not that the word tunc had been there for that is a word of Restraint The Case was argued in the Exchequer Chamber where I was present which was The Prior of St. John's Leased a Commandry Provided That if the said Prior or any of his Brethren there being Commanders will dwell thereupon then the said Lease to be void It was doubted If that Proviso did extend to the Successors for the word Being is in the present Tense And yet by the Opinion of Fitzherbert it shall be taken in the future Tense and so extend to the Successors Otherwise if the words had been Now being LXXXIII Mich. 15 Eliz. In the Common Pleas. A. Made B. his Executor and died Vid. le stat 43 Eliz. cap. 8. Office of Executors 261. B. to the intent to defraud the Creditors refused to take upon him the Executorship but caused a stranger to take upon him Letters of Administration which stranger fraudulently gave the Goods of the Testator to B. Dyer If the gift be fraudulent then by the Statute of 13 Eliz. the gift is void and then B. by the Occupation of the Goods shall be charged as Executor of his own wrong Manwood I conceive there is a difference If one makes an Executor and another takes the Goods but doth no Act which concerns the Office of an Executor as paying of Debts he is not Executor of his own wrong but a Trespassor to him who is Executor in right but if he doth any Act which belongs to the Office of an Executor then he is Executor of his own wrong Dyer That Case hath been adjudged against you and although the Books of 9 E. 4. 22 H. 6. were vouched Yet Iudgment was given against the Opinion of Manwood It was the Case of one Stoke LXXXIV Jackson and Darcyes Case Mich. 16 Eliz. In the Common Pleas. IN a Writ de Partitione facienda between Jackson and Darcy the Case was Tenant in tail the remainder to the King levied a Fine had Issue and died In that case It was adjudged That the Issue was barred and yet the remainder which was in the King was not discontinued For by that Fine an Estate in Feesimple determinable upon the Estate tail did pass unto the Conusee LXXXV Strowds Case Hill. 17 Eliz. In the Common Pleas. IN a Replevin the Case was That Lands holden of a Subject came to the possession of the King by the Statute of 1 E. 6. of Chauntries and the King granted the Lands over In that case It was holden That the Grantee shall hold the Lands of the King according to the Patent and not of the Ancient Lord But the Patentee shall pay the Rent by which the said Land was before holden as a Rent seck distrainable of Common Right to the Lord only and his Heirs scil to him of whom the said Lands were before holden LXXXVI Tresham and Robins Case Mich. 17 Eliz. In the Kings Bench. TResham brought an Action of Debt upon a Recognizance against Robins The Condition of which Recognizance was To stand to the Arbitrament of A. and B. who made Award That Robins should have the Land Yielding and paying 10 l. per annum And that Tresham in further assurance should levy a Fine to Robins of the same Land and upon that Robins should grant and render to Tresham which is done accordingly the Rent is behind Tresham brought Debt upon the Recognizance The Defendant pleaded the special matter with this per close Unde petit Judicium if the Plaintiff should have Execution against him And by the Opinion of the whole Court the Conclusion of the Plea is not good For here is not any Execution of the same Debt but an Original Action of Debt brought in which case he ought to have concluded Iudgment Si actio It was further moved If these words Yielding and paying make a Condition And it was agreed That the words do amount to as much as So as he pay the Rent And if a Man makes a Feoffment in Fee Reddendo salvendo 10 l. for years the same is a Condition But in the principal Case It is not a Condition For it is not knit to the Land by the Owner it self but by a stranger i. e. Arbitrator but it is a good Clause to make the same an Article of the Arbitrament which the parties are bound to perform upon pain of forfeiture of the Recognizance Which Wray concessit And that this Rent should not cease by Eviction of the Land. LXXXVII The Earl of Westmerlands Case Hill. 18. Eliz. In the Common Pleas. THe Earl of Westmerland seised of a Mannor whereof the Demesnes were usually let for three Lives by Copy 2 Len. 152. 2 Brownl 208. according to the Custom of the Mannor granted a Rent-charge to Sir William Cordell pro consilio impendendo for the term of his Life and afterwards conveyed the Mannor to Sir William Clifton in tail The Rent is behind Sir William Cordell dieth Sir William Clifton dieth
the Mannor descended to Sir John Clifton who granted a Copy-hold to Hempston The Executors of Sir William Cordell distrain for the Rent And it was agreed by the whole Court That the Copyholder should hold his Copy-hold charged Vide inde 10 Eliz. Dyer 270. Windham It hath been adjudged That the Wife of the Lord shall not be endowed against the Copyholder which Periam granted and shewed a reason thereof For the Title of Dower is not consummated before the death of the Husband so as the Title of the Copyholder was compleated before the Title of Dower But the Title of the Grantee of the Rent is consummated before the Dower Fenner conceived That the Executors could not distrain upon the Possession of the Copyholder and he argued That this Case is not within the Statute of 32 H. 8. For by the Preface of the said Statute he conceived That the Statute extended but to those Cases for which by the Common Law no remedy was provided but in this Case the Executors by the Common Law might have had an Action of Debt Ergo. But Periam and Windham held the contrary For this Statute intends a further remedy for that mischief viz. not only an Action of Debt but also Dissress and Avowry See the words of the Statute viz. distrain for the Arrearages c. Vpon the Lands c. which were charged with the payment of such Rents and chargeable to the distress of the Testator so long as the said Lands continue remain and be in the seisin or possession of the said Tenant in Demesne who ought immediately to have paid the said Rent so being behind to the said Testator or in the seisin or possession of any other person or persons claiming the said Lands only by and from the said Tenant by purchase gift or descent in like manner and form as their Testator might or ought to have done in his life time It was moved by Fenner That here the Land charged doth not continue in the seisin or possession of the Tenant And here Sir J. Clifton was issue in tail and therefore he doth not claim only by the Father but per formam Doni and therefore he is not lyable Ergo nor his Heir Shuttleworth contrary Sir J. Clifton was chargeable and he claims only from them who immediately ought to have paid the Rent And the Copyholder claims by purchase from Sir J. Clifton so he claims from Sir William Clifton the Tenant although he doth not claim immediately For if the Tenant ought to have paid it and he dieth and the Land descendeth to his Heir and the Heir maketh a Feoffment the Feoffee shall be charged within this Statute although he doth not claim immediately So where Land discharged descends from the Tenant who ought to have paid it and so from Heir to Heir The Statute of 1 R. 2. is That all Grants c. shall be good against the Donor c. his Heirs c. claiming the same only as Heirs to Cestuy que Use Yet if Cestuy que Use grants a Rent-charge and his Feoffees are disseised the Grant shall be good against the Disseisor and yet he doth not claim only by Cestuy que Use And although Sir J. Clifton be Tenant in tail and so claims per formam Doni yet forasmuch as the Estate tail comes under the Estate of him who grants the Rent he shall be subject to the charge And this Statute extends not only to him who claims by the Tenant but also to the Heir of him c. And by Windham and Rhodes The Copyholder doth not claim only by the Lord but he claims in also by the Custom but the Custom is not any part of his Title but only appoints the manner how he shall hold The possession here is continued in Sir J. Clifton for the possession of his Copyholder is his possession so as if the Copyholder be ousted Sir J. Clifton shall have an Assise And so the strict words of the Statute are observed for the seisin and possession continue in Sir J. Clifton who claims only by Sir William Clifton who was the Tenant in Demesne who ought to pay the Rent But Fenner said to that That the seisin and possession intended in the Statute was the very actual possession i. e. pedis dispositio and such a possession in which a distress might be taken and that could not be taken in a Freehold without actual possession LXXXVIII Owen and Sadlers Case Hill. 18 Eliz. In the Common Pleas. 10 Co. 96. A Lease was made to A. for life the remainder to B. in tail the remainder to the right Heirs of B. who bargains and sells all his Estate or levies a Fine with Proclamations of it to D. A. commits Waste It was holden by the Court That D. shall not punish him in an Action of Waste for nothing passeth to him but during the life of the Grantor scil as to the remainder in tail in respect of which Estate the Action of Waste is only maintainable for although that the Feesimple passeth to the Grantee or Conusee yet in respect of that an Action of Waste is not maintainable until the Estate tail be spent LXXXIX Mich. 18 Eliz. In the Common Pleas. THe King seised of a Mannor 2 Cro. 53 123. Yel 90 91. 1 Cro. 240. 2 Roll. 371. Hob. Rep. 242. to which an Advowson is appendant A stranger presents and his Clerk is in by 6 months The King grants the Mannor with all Advowsons appendant to it to B. The Incumbent dieth In this case It was holden by the Court That the Grantee might present For the Advowson was always appendant and the Inheritance of the same passed to the Grantee for it was not made disappendant by the Vsurpation But the Patentee shall not have a Quare Impedit of the first disturbance for that presentment did not pass unto him being a thing in Action without mention of it in his Grant And if the Plaintiff brings a Quare Impedit of the second Avoydance he shall make his Title by the presentment of the King not making mention of the Vsurpation Yet if the Bishop present by Lapse in the case of a common person he ought to make mention of it XC Mich. 18 Eliz. In the Kings Bench. IN an Ejectione firmae upon an Evidence the Case was this The Bishop of Rochester 4 E. 6. Leased to B. for years rendring Rent and afterwards granted the Reversion to C. for 99 years rendring the ancient Rent Habendum from the day of the Lease without impeachment of Waste which Grant was confirmed by the Dean and Chapter but B. did not attorn And in default of Attornment It was holden by the whole Court That the Lease was void For it was made by way of grant of the Reversion and to pass as a Reversion But by Catline If the Bishop had granted the Reversion and also demised the Land for 99 years It should pass as a Lease to begin first after the
they had not any Lands in the said Town but the said Mannor And the Ejectione firmae was brought of that Mannor in Kent and from thence the Visne came and all the special matter aforesaid was found by Verdict And Exception was taken to the Verdict because they have found generally That the Master and Scholars had not any thing in the said Town of Laberhurst but the said Mannor Whereas they ought to have said That they had not any thing in the said Town in the County of Kent For they could not take notice what Lands the Master and Scholars had in that part of the Town which was in the County of Sussex And of that Opinion the whole Court seemed to be But Quaere of it for it was adjourned XCVI Hinde and Lyons Case Mich. 19 Eliz. In the Common Pleas. Post 70. Dyer 124. 2 Len. 11. IN Debt by Hinde against one as Son and Heir of Sir John Lyon who pleaded Nothing by descent but the third part of the Mannor of D. the Plaintiff replyed Assets and shewed for Assets That the Defendant had the whole Mannor of D. by descent Vpon which they were at Issue And it was given in Evidence to the Iury That the said Mannor was holden by Knights-Service And that the said Sir John the Ancestor of c. by his Will in writing Devised the whole Mannor to his Wife until the Defendant his Son and Heir should come to the age of 24 years And that at the age of his Son of 24 years his Wife should have the third part of the said Mannor for her life and his Son should have the residue And if that his said Son do die before he come to his said age of 24 years without Heir of his body that the Land should remain to J.S. the remainder over The Devisor died The Son came to the age of 24 years The Question was If the Son had an Estate in tail for then for two parts he was not in by descent And it seemed to Dyer and Manwood That here was not any Estate in tail for no tail shall rise if not that the Son die before his said age and therefore the tail shall never take effect and the Fee-simple doth descend and remain in the Son unless that he dieth before the age of 24 years and then the Estate vests with the remainder over but now having attained to the said age he hath the Fee and that by descent of the entier Mannor and then his Plea is false That but the third part descended And a general Iudgment shall be given against him as of his own Debt And an Elegit shall issue forth of the moyety of all his Lands as well those which he hath by descent from his Ancestor as his other Lands And a Capias also lieth against him But Manwood Iustice conceived That if a general Iudgment be given against the Heir by default in such cause a Capias doth not lie although it lieth in case of a false Plea. Dyer contrary And the Writ against the Heir is in the debet detinet which proves That in Law it is his own Debt And he said That he could shew a President where such an Action was maintainable against the Executors of the Heir XCVII Mich. 19 Eliz. In the Common Pleas. THe Case was A. seised of Lands in Fee 2 Len. 154. Hob. 285. Dyer 329. by his Will in writing granted a Rent-Charge of 5 l. per annum out of the same to his younger Son towards his education and bringing up in Learning The Question was If in pleading the Devisee ought to aver That he was brought up in Learning And it was holden by Dyer Manwood and Mounson Iustices That there needs no such Averment for the Devise is not Conditional and therefore although he be not brought up in Learning yet he shall have the Rent And the words of the Devise are Towards his bringing up And the Devisor well knew that 5 l. per annum would not and could not reach to maintain a Scholar in Learning Diet Apparel and Books And this Rent although it be not sufficient to such intent yet the Son shall have it And by Dyer Three years past such Case was in this Court scil Two were bounden to stand to the Award of certain persons Who awarded That the one of them should pay unto the other 20 s. per annum during the Term of 6 years towards the education and bringing up of such an Enfant and within two years of the said Term the Enfant died so as now there needed not any supply towards his Education Yet it was holden That the said yearly sum ought to be paid for the whole Term after For the words Towards his Education are but to shew the intent and consideration of the payment of that sum and are not the words of a Condition XCVIII Mich. 19 Eliz. In the Common Pleas. IN a Quare Impedit The Plaintiff declared That the Defendant was seised in Fee of the Mannor of Orchard alias Lydcots-Farm to which the Advowson is appendant and presented such a one c. And afterwards leased to the Plaintiff the said Mannor per nomen of the Mannor of Orchard alias Lydcots-Farm with the appurtenances for 21 years and the Church became void c. And the truth of the Case was That there is the Mannor of Orchard and within the said Mannor the said Farm called Lydcots Farm parcel of the said Mannor and the Lease was of the said Farm and not of the said Mannor and so the Advowson remained to the Lessor as appendant to the Mannor In this Case It was moved What thing the Defendant should traverse Dyer He shall say That the Advowson is appendant to the Mannor of Orchard absque hoc that it is appendant to the Farm of Lydcots But it seemed to Manwood That the Defendant shall say That the Advowson is appendant to the Mannor of Orchard and that the Farm of Lydcots is parcel of the said Mannor and that he Leased to the Plaintiff the said Farm with the appurtenances absque hoc that the Mannor of Orchard and the said Farm are all one For if he traverse the Appendancy to the Farm of Lydcots then he confesseth That the Mannor and Farm are all one c. But Dyer doubted of it XCIX Kirlee and Lees Case Mich. 19 20 Eliz. In the Common Pleas. IN Action upon the Case upon Assumpsit the Plaintiff declared That the Defendant in Consideration that the Plaintiff would marry the Daughter of the Defendant did promise to find to the Plaintiff and his said Wife convenient apparel meat and drink for themselves and two servants and Pasture also for two Geldings by the space of 3 years when the Plaintiff would require it And further shewed That Licet the Plaintiff had married the Defendants Daughter and that he had required the Defendant to find ut supra c. the Defendant refused c. The Defendant
Plaintiff had acquitted and discharged him of the Reparations Vpon which the Plaintiff demurred in Law. Manwood The same is an Acquittal and Discharge of the Reparations as well for the time past as for the time to come by force of the said Covenant and amounts to as much as if he had Released the Covenant And it was moved If the Covenant being broken for want of Reparations If now that Acquital and Discharge or Release of the Covenant should take away the Action upon the Obligation which was once forfeited before And it was the Opinion of Manwood That it should not For if one be bound in an Obligation for the performance of Covenants and before the breach of any of them the Obligee releaseth the Covenants and afterwards one of the Covenants is broken the Obligation is not forfeited for there is not now any Covenant which may be broken and therefore the Obligation is discharged But if the Release had been after the Covenant broken otherwise all which Dyer and Mounson Concesserunt CVI. Mich. 20. Eliz. In the Common Pleas. HVsband and Wife seised in the right of his Wife of certain Customary Lands in Fee he and his Wife by Licence of the Lord make a Lease for years by Indenture rendring Rent have Issue two Daughters The Husband dieth The Wife takes another Husband and they have issue a Son and a Daughter The Husband and Wife die The Son is admitted to the Reversion and dieth without Issue It was holden by Manwood That this Reversion shall descend to all the Daughters notwithstanding the half-blood For the Estate for years which is made by Indenture by Licence of the Lord is a Demise and Lease according to the Order of the Common Law and according to the nature of the Devise the possession shall be adjudged which possession cannot be said possession of the Copyholder For his possession is Customary and the other is meer contrary therefore the possession of the one shall not be said the possession of the other and therefore there is no possessio fratris in this Case But if he had been Guardian by the Custom or this Lease had been made by surrender There the Sister of the half-blood should not inherit And Meade said That the Case of the Guardian had been so adjudged Mounson to the same intent And if the Copyhold descend to the Son he is not Copyholder before admittance 1 Len. 174 175. but he may take the profits and punish Trepass c. CVII Hinde and Lyons Case Hill. 20 Eliz. In the Common Pleas. 2 Len. 11. Dyer 124. Ante 64. DEbt by Hinde against one as Son and Heir of Sir John Lyon who pleaded Nothing by descent but the third part of the Mannor of D. The Plaintiff replyed Assets And shewed for Assets That the Defendant had the entire Mannor of B. by descent Vpon which they were at Issue And it was given in Evidence to the Iury That the Mannor was holden by Knights-Service and that the said Sir John the Ancestor of the Defendant by his Will in writing devised the whole Mannor to his Wife until the Defendant his Son and Heir should come to the age of 24 years And that at the age of the Son of 24 years his Wife should hold the third part of the said Mannor for the Term of her life and his Son should have the residue And if his Son do die before he come to the age of 24 years without Heir of his body that the Land should remain over to J.S. the Remainder over to another The Devisor died the Son came to the age of 24 years Dyer and Mounson Iustices conceived That here was not any Estate tail and then for two parts he is not in by descent For no Estate tail shall rise unless that the Son dieth before his said age and therefore the Tayl never took effect and the Feesimple descends and remains in the Son if not that he dieth before the age of 24 years and then the whole vests with the Remainder over but now having attained the said age he hath a Fee and that by descent of the whole Mannor and then his Plea is false that but the third part descended And a general Iudgment shall be given against him as of his own debt And an Elegit shall issue forth of the moyety of all his Lands as well those which he hath by descent from the same Ancestor as of his other Lands And a Capias lieth also against him But Manwood Iustice conceived That if a general Iudgment be given against the Heir by default in such case a Capias doth not lie although in case of a false Plea it lieth But Dyer held the contrary And the Writ against the Heir is in the debet detinet which proves That in Law it is his own Debt And he said That he could shew a President where such an Action was maintainable against the Executor of the Heir CVIII Hill. 20 Eliz. In the Common Pleas. A Seised of Lands in Fee Devised them to his Wife for life and after her decease she to give the same to whom she will Latch 9,39 had issue two Daughters and died The Wife granted the Reversion to a stranger and committed Waste And the two Daughters brought an Action of Waste It was holden by the Iustices That by that Devise the Wife had but an Estate for life but she had gained authority to give the reversion by his Will to whom she pleased And such a Grantee should be in by A. and his Will For A. had given expresly to his Wife for life and therefore by Implication she should not have any further Estate But if an express Estate had not been appointed to the Wife by the other words an Estate in Feesimple had passed CIX Hill. 20 Eliz. In the Common Pleas. THe Lessor Covenanted with his Lessee That the Lessee should enjoy the Lands demised without any lawful Eviction And afterwards upon a Suit depending in Chancery by a stranger against the Lessor for the Land demised The Chancellor made a Decree against the Lessor and that the stranger should have the Land. It was moved If that Decree were a lawfull Eviction by which the Covenant was broken It was holden by the Lord Dyer That the same was not any Eviction For although that in Conscience it be aequum that the said stranger have the possession yet the same is not by reason of any right paramount the title of the Lessor which was in the party for whom it was decreed CX The Marquess of Northamptons Case Hill. 20 Eliz. In the Common Pleas. PArre Marquess of Northampton took to Wife the Lady Bouchier the Heir of the Earl of Essex 1 Roll. 430. who levied a Fine of the Land of the said Lady Sur Conusans de droit c. with a Grant and render to them for life the Remainder to the right Heirs of the body of the Lady And afterwards by Act of
Parliament 35 H. 8. it was Enacted That the said Lady should hold part of her Inheritance and dispose of the same as a Feme sole and that the Marquess should have the Residue and that he might Lease the same by himself without his Wife for 21 years or less rendring the ancient Rent being Land which had been usually demised c. The Marquess Leased for 21 years and afterwards durante Termino praedict Leased the same Land to another for 21 years to begin after the determination of the first Lease It was moved in this Case That this last Lease was void and that for 3 Causes 1. Because the Marquess had but an Estate for life and then it could not be intended that the Statute did enable one who had but such an Estate determinable to make such a Lease which peradventure might not commence in his life-time 2. The Letter of the Statute is 21 years or under and the word Under strongly expounded the meaning of the Statute to be not to extend to such an Estate For here upon the matter is a Lease for 40 years 3. Because the Land demised is the Inheritance of the Wife And in this Case it was said That in the Case of one Heydon such a private Act was strictly construed which was That it was Enacted That all Copies for 3 Lives granted by the Lord Admiral of the Lands of his Wife should be good The Admiral granted Leases in Reversion for 3 Lives And it was holden That that Grant was not warranted by the Statute Dyer said The words are general Omnes dimissiones and therefore not to be restrained unto special Leases scil to Leases in possession Manwood said A Feme Covert by duresse joyns in a Lease with her Husband the same shall bind her CXI The Queen and Sir John Constables Case Hill. 20 Eliz. In the Kings Bench. 5 Co. Constables Case A Quo Warranto was brought by the Queen against Sir John Constable who claimed certain Wreck in the County of York The Defendant pleaded That Edward Duke of Buck. was seised of such a Mannor to which he had Wreck appendant and that he was de alta proditione debito modo attinctus and that found before the Escheator And shewed further That the said Mannor descended to Queen Mary who granted the same to the Earl of Westmerland who granted the same to the Defendant Vpon which It was demurred And Exception was taken to the Plea because the Attainder is not fully and certainly pleaded It was argued by Plowden That the Attainder was certainly pleaded scil debito modo attinctus And it is shewed That the Wreck is appendant to the Mannor and then if the Defendant hath the Mannor he hath the Wreck also and if he hath the Mannor it is not material as to the Queen how he hath it for the Queen doth not claim the same but impeacheth the Defendant for using there such a Liberty But if the Heir of the said Duke had demanded the Mannor there against him the Attainder ought to have been pleaded certainly And it was said by him That the Interest of the Queen in the Sea extends unto the midst of the Sea betwixt England and Spain But the Queen hath the whole Iurisdiction of the Sea between England and France because she is Queen of England France c. And so it is of Ireland CXII Hill. 20 Eliz. In the Common Pleas. TEnant for life made a Feoffment of White-Acre of which he was seised for life and made a Letter of Attorny to deliver Livery and Seisin secundum formam Chartae before Livery the Tenant purchased the Fee and afterwards Livery was made It was resolved by the Court in this Case That all passed But if the Feoffment had been of all his Lands in D. and the Letter of Attorny accordingly and before Livery made the Feoffee had many Lands there If he purchased one Acre after the Livery should not extend to that Acre because the Authority was satisfied by the other Acre CXIII Banks and Thwaits Case Mich. 21 Eliz. In the Kings Bench. IN an Action upon the Case the Case was That A. had pawned an Indenture of Lease for years of a Messuage and Lands to Banks Thwaits intending to purchase the same required Banks to deliver him the said Lease and he would give Banks 10 l. whether he bought it or no at what time he would request the 10 l. Post 200. And Banks delivered the same to Thwaits accordingly Post 200. And afterwards brought an Action upon the Case and declared upon the whole matter and concluded Licet saepius requisitus c. without alledging a request express in certain and the day and place of it It was said by Cook That here the monies did not grow due before Request nor is payable before Request and therefore a Request ought to be made in facto And so he said It was ruled in this Court in an Action upon the Case betwixt Palmer and Burroughs and he said that the Mony was not due by the Promise but by the Request And it was the Opinion of the whole Court That although it be a duty Yet it is not a duty payable before Request And the Request makes a Title to the Action But if A. selleth to B. a Horse for 10 l. there is a Contract and a Request in facto need not be layed And the Opinion of the Court was also That upon this matter the Plaintiff could not have an Action of Debt for there is not any Contract for the thing is not sold but it is a Collateral promise grounded upon the delivery And by Clench Here the Request is traversable And afterwards Iudgment was given against the Plaintiff And it was said It was so ruled in Alderman Pullisons Case in the Exchequer Post 201. CXIV Segar and Boyntons Case Mich. 21 Eliz. In the Common Pleas. 2 Len. 156. IN Trespass the Case was this King Henry the 8th Anno 27 of his Reign gave the Mannor of D. to Sir Edward Boynton Knight and to the Heirs Males of his body Sir Edward Boynton had Issue Andrew his eldest Son and C. the Defendant his younger Son and died Andrew Boynton Covenanted by Indenture with the Lord Seymore that the said Andrew Boynton would assure the said Mannor to the use of himself for life the Remainder to the said Lord and his Heirs The said Lord Seymore in recompence thereof should assure other Lands to the use of himself for life the remainder to the use of the said Andrew Boynton in tail who 37 H. 8. levyed a Fine of the said Mannor without proclamations to two strangers to the uses according to the said Agreement and before any Assurance made by the said Lord The said Lord was Attainted of Treason and all his Lands were forfeited to the King And afterwards the said Andrew Boynton made a Suggestion to Queen Mary of the whole matter and upon his humble Petition the said
him any other surety for his Debt he is contented so to do And John Stampe offered to the said P. the said B. and C. and he accepted the same and at the request of the said John Stampe granted his Interest to them 2 Feb. 22 Eliz. P. having notice of the Grant before made to the said G. Vpon which G. enformed against P. upon the Statute of 32 H. 8. It was holden in this Case by Periam and Meade Iustice That P. was not within the penalty of the Statute For P. granted his Interest to B. and C. at the suit and at the request of John Stampe who was the Mortgager for assurance of his Debt which he ought to them And therefore it shall not be intended that that Grant was made for any maintenance or for any unlawful cause against the Statute And also John Stampe who granted unto P. had possession and received the Issues and Profits of the said Lands for a whole year before the Grant notwithstanding that he was not in possession by a whole year next before the day of the date of the Grant. Godb. 450. As if a Man be in possession or hath received the Issues and Profits for a whole year and afterwards a stranger enters upon him and hath the possession for the space of a Quarter of a year or half a year yet he who was in possession by a year before may grant his Interest without danger of the Statute c. CXX Pasch 24 Eliz. In the Kings Bench. NOte Per totam Curiam 2 Len. 35. A man made his Will in this manner scil I Will and Bequeath my Land to A. And the name of the Devisor is not in the whole Will Yet the Devise is good enough by Averment of the name of the Devisor And for proof that the same is his Will If one lying in extremis having an intent to devise his Lands by Word makes such devise but doth not command the same to be put in writing but another without the knowledge or Commandment of the Devisor putteth it in writing in the life-time of the Devisor the same is a good Devise For it is sufficient if the Devise be reduced into writing during the life of the Devisor CXXI Pepy's Case Pasch 25 Eliz. In the Common Pleas. WAste was brought by F. and his Wife against Pepy and declared That the said Pepy was seised and enfeoffed certain persons to the use of himself for life and afterwards to the use of the Wife of the Plaintiff and her Heirs The Defendant pleaded That the said Feoffment was to the use of himself and his Heirs in Fee c. absque hoc that it was to the uses as in the Count Vpon which they were at Issue And it was found by Verdict That the said Feoffment was to the uses contained in the Count but further found That the Estate of the Defendant by the Limitation of the use was priviledged with the impunity of Waste scil without Impeachment of Waste It was moved If upon that Verdict The Plaintiff should have Iudgment Anderson and Rhodes Iustices conceived That he should for that the matter in Issue is found for the Plaintiff and that is the Feoffment to uses contained in the Count and this impunity of Waste is a Forreign matter not within the Charge of the Iury and therefore the finding of the same is but matter of surplusage As if I plead a Feoffment of J. S. to which the other pleads That he did not enfeoff and the Iury find a Conditional Feoffment the Court shall not respect the finding of the Condition for it was not in Issue and no advantage shall be ever had of such a Liberty if it be not pleaded 30 H. 8. Dyer 41. In Dower the Tenant pleaded Ne unque seisi que Dower c. The Tenant pleaded That before the Coverture of the Demandant one A. was seised and gave the Land whereof Dower is demanded to the Husband of the Demandant in tail who made a Feoffment A stranger took the Demandant to Wife took back an Estate in Fee and died seised having Issue inheritable Now although upon the truth of the matter she is nâ—t Dowable de jure yet forasmuch as the parties were at Issue upon a point certain no forrein nor strange matter not in Question betwixt the parties shall be respected in the point of Iudgment But if the Defendant had pleaded it in Bar he might have foreclosed the Demandant of her Dower See 38 Ass 27. 47 E. 19. In a Praecipe quod reddat upon the default of the Tenant came one and shewed How that the Tenant who made default was but Tenant for life of the Lands in demand the Reversion in Fee to himself and prayed to be received The Demandant counterpleaded the Resceit Dicendo That the Tenant had Fee c. Vpon which Issue was taken And it was found That neither the Tenant nor he who prayed to be received had any thing in the Land. And in that Case The Court did not regard the matter which was superfluous in the Verdict For they were at Issue upon a point certain scil whether the Tenant was seised in Fee For it is confessed of the one side and of the other that he had an Estate for life and of that matter the Iury was not charged and they are not to enquire of that And so it is found against the Demandant by which the Resceit was granted See 7 H. 6. 20. The parties were at Issue upon a Dying seised which is found by Verdict but the Iury find further That the other party made continual Claim The said continual Claim shall not be respected in point of Iudgment because it was not pleaded in Avoidance of the Disceit c. Windham Iustice to the contrary because it appeareth to us upon the Verdict That the Plaintiff hath not cause of Action and therefore he shall not have Iudgment As in Detinue the Plaintiff declares upon a Baylment by his own hands The Defendant pleads Ne Detinue pas the Iury find the Detinue but upon Baylment by another hand In that case notwithstanding that the Detinue be found yet the Plaintiff shall not have Iudgment But Anderson Rhodes and Periam conceived That in the principal Case Iudgment should be given for the Plaintiff For in no case the party shall have advantage of that liberty of impunity of Waste if he doth not plead it And the Iurors are not to meddle with any matter which is not in issue and if they do It is but matter of surplusage and to no purpose and afterwards Iudgment was given for the Plaintiff See the Number Roll Pasch 25 Eliz. Rot. 602. CXXII Skipwith's Case Pasch 20 Eliz. In the Common Pleas. IN an Action of Trespass It was found by a special Verdict Godbolt 14 143. Co. of Copy-holds 94. That the Lands were Copy-hold Lands That the Custom of the Mannor was That Quaelibet Foemina Viro Co-operta poterit
Plaintiff ad requisitionem dicti Davidis repararet And the Plaintiff declares That reparavit generally without saying 2 Cro. 404. That ad requisitionem Davidis reparavit And that is not the Reparation intended in the Consideration i. e. reparatio ad requisitionem c. but a Reparation of his own head and at his pleasure And for this Cause the Iudgment was stayed CXXXII Wrennam and Bullman's Case Pasch 26 Eliz. In the Common Pleas. 2 Len. 52. 1 Len. 282. WRennam brought an Action upon the Statute of 1 2 Phil. Mar. against Bullman for unlawful impounding of Distresses and was Nonsuit It was moved by Shuttleworth Serjeant If the Defendant should have Costs upon the Statute of 23 H. 8. And it was Adjudged That he should not And that appears clearly upon the words of the Statute c. for this Action is not conceived upon any matter which is comprised within the said Statute and also the Statute upon which this Action is grounded was made after the said Statute of 23 H. 8. which gives Costs and therefore the said Statute of 23 H. 8. and the remedy of it cannot extend to any action done by 1 2 Phil. Mary And Rhodes Iustice said It was so adjudged in 8 Eliz. CXXXIII Mich. 26 Eliz. In the Kings Bench. 2 Len. 161. Dyer 291. IN a Formedon of a Mannor The Tenant pleaded Ioynt-Tenancy by Fine with J.S. The Demandant averred the Tenant sole Tenant as the Writ supposed and upon that it was found and tryed for the Demandant Vpon which a Writ of Error was brought and Error assigned in this Because where Ioynt-Tenancy is pleaded by Fine the Writ ought to have abated without any Averment by the Demandant against it and the Averment had been received against Law c. Shuttleworth At the Common-Law If the Tenant had pleaded Ioynt-Tenancy by Deed the Writ should have abated without any Averment but that was remedied by the Statute of 34 E. 1. But Ioynt-Tenancy by Fine doth remain as it was at the Common Law For he hath satis supplicii because by his Plea if it be false he hath by way of Conclusion given the moyety of the Land in demand to him with whom he hath pleaded Ioynt-Tenancy And the Law shall never intend that he would so sleightly depart with his Land for the abatement of a Writ As in a Praecipe quod reddat the Tenant confesseth himself to be a Villein of a stranger the Writ shall abate without any Averment Free and of Free estate for the Law intends that the Tenant will not inthral himself without cause Wray to the same purpose But the Demandant may confess and avoid the Fine as to say That he who levied the Fine was his Disseisor upon whom he hath before entred And if Tenant in Feesimple be impleaded and he saith That he is Tenant for life the remainder over to A. in Fee and prayeth in Aid of A. the Demandant shall not take Averment That the Tenant at the time of the Writ brought was seised in Fee. Note In this Formedon Ioynt-Tenancy was pleaded but as to parcel And it was holden by Wray and Southcote That the whole Writ should abate the whole Writ against all the Defendants And so where the Demandant enters into parcel of the Land in demand if the thing in demand be an entire thing the Writ shall abate in all In this Writ the Demandant ought to have averred in his Writ an especial foreprise of the Land parcel of the Land in demand whereof the Ioynt-Tenancy by the Fine is pleaded For this dismembring of the Mannor and distraction of the Land of which the Ioynt-Tenancy is pleaded is paravail and under the gift whereof the Formedon is conceived and therefore in respect of the title of the Demandant it remains in right parcel of the Mannor and therefore ought to be demanded accordingly with a foreprise But if A. giveth unto B. a Mannor except 10 Acres in tail there if after upon any Discontinuance the issue in tail is to have a Formedon in such case there needs not any foreprise for the said 10 Acres for they were severed from the Mannor upon the gift But if Lands in demand be several as 20 Acres except 2 Acres this foreprise is not good See Temps E. 1. Fitz. Brief 866. Praecipe c. unam bovatam terrae forprise one Sellion and the Writ was abated for every demand ought to be certain but a Sellion is but a parcel of Land uncertain as to the quantity in some places an Acre in some more in some less Another Point was Because the Tenant hath admitted and accepted this Averment scil sole Tenant as the Writ supposeth And the Question was If the Court notwithstanding the Admittance of the Tenant ought without Exception of the party Ex Officio to abate the Writ And it was the Opinion of Wray Chief Iustice That it should For it is a positive Law As if a Woman bring an Appeal of Murder upon the death of her Brother and the Defendant doth admit it without a Challenge or Exception yet the Court ought to abate the Appeal 10 E. 4. 7. See the principal Case there Non ideo puniatur Dominus c. And if an Action be brought against an Hostler upon the Common Custom of the Realm and in the Writ he is not named Common Hostler yet the Court shall abate the Writ Ex Officio See 11 H. 4. and 38 H. 6. 42. CXXXIV Mich. 26 Eliz. In the Common Pleas. A. Seised of Lands in the right of his Wife for the Term of the life of the Wife made a Feoffment in Fee to the use of his said Wife for her life It was holden in that Case That the Wife was remitted And it is not like Amy Townsends Case Plow Com. 1 2 Phil. and Mar. 111. For in the said Case the Entry of the Wife was not lawful for she was Tenant in tail which Estate was discontinued by the Feoffment of her Husband And Periam Iustice cited a Case Sidenham's Case Bacon seised in the right of his Wife for the Term of the life of the Wife They both surrendred and took back the Lands to them and a third person And it was holden That the Wife was not presently remitted but after the death of her Husband she might disagree to the Estate CXXXV Harper and Berrisford's Case Mich. 26 Eliz. In the Common Pleas. IN a Writ of Partition The Defendant demanded Iudgment of the Writ because the Writ is Quare-cum A. teneat c. pro indiviso c 4 mille acras whereas it should be Quatuor Mille acrarum And many Grammarians were cited all which agreed That it was good both ways viz. Mille Acras or Mille Acrarum And Rhodes Iustice said That Cowper in Thesauro suo Linguae Latinae saith Quod Mille fere jungitur Genitivo Ergo non semper Wherefore Anderson with the assent of the other Iustices Ruled
and that was 31 years as if I make a Lease during the Term that J. S. hath in the Mannor of D. and J. S. hath 40 years in it now although that J S. surrendreth or forfeiteth it yet he shall hold over but he shall have it for 40 years for my Lease refers to the time and not to the estate In the like manner here G. cannot have the same Term which J. had nor for 31 years after the death of J. but so much of the said 31 years shall be cut off in the interrest of it as J. had enjoyed it and G. shall have as many years as J. hath left and G. shall perform so much of my Will as J. at his death within the Term aforesaid shall not have performed As if I Lease my Land to one until he hath levied 100 l. and if he dieth before that he hath levied it then J. S. shall have such Term for the levying of it the first Lessee levieth 50 l. and dieth J. S. may levy the residue but not the whole And although that the Iury saith that if the Term be extinct then they find for the Defendant although that it be extinct yet they are not to take Conusance what the Law is thereupon but that is the Office of the Iudges As 13 E. 3. the Iury found that the Son was born during the Elopement and so Bastard that Conclusion of the Verdict is not to the purpose but the Court ought to judge upon the premises of the Verdict If upon the birth during the Elopement the party be Bastard or not And afterwards Manwood with the assent of his Companions the Barons Commanded That Iudgment should be entred for the Plaintiff Which was done accordingly CLX The Bishop of Bristow's Case Trin. 26 Eliz. In the Exchequer NOte It was holden by Manwood Chief Baron in this Case That if a Lease be made for years rendring Rent 1 Cro. 398. More Rep. 891. with Clause of Distress And afterwards the Rent and Reversion are extended upon a Statute or seised into the Kings hands for Debt if the Lessee payeth the Rent according to the Extent the same is not in any danger of the Condition for that now the Lessee is compellable to pay it according to the Extent CLXI Hill. 26 Eliz. In the Exchequer THe Queen by her Letters Patents granted to J. S. catalla Utlagatorum Felonum de se within such a Precinct More Rep. 126 127. One who was endebted unto the Queen is felo de se within the Precinct It was the Opinion of all the Barons and so Ruled That notwithstanding the Grant by the said Letters Patents That the Queen should have the Goods for to satisfie her Debt CLXII Tuker and Norton's Case Pasch 26 Eliz. In the Kings Bench. THe Case was An Infant being in Execution upon a Condemnation in Debt brought a Writ of Error His Father and his Brother was his Bail It was the Opinion of the Iustices That they two only should enter into the Recognizance That the Enfant shall appear and that if the Iudgment be affirmed that they shall pay the Mony and not that they shall render the Body of the Enfant again to Prison for that when once he is discharged of the Execution he shall never be in Execution again CLXIII Marsh and Jones's Case Mich. 27 Eliz. In the Common Pleas. 2 Len. 117. IN a Replevin the Case upon the Evidence was That before the Statute of Quia emptores terrarum A Man made a Feoffment in Fee to hold of him by the services Solvend post quamlibet vacationem sive alienationem the value of the annual profits of the Lands c. It was holden by the Court That value shall be intended which at the time of the Feoffment was the value and not as it is now improved by success of time CLXIV Annesley and Johnsons's Case Mich. 27 Eliz. In the Common Pleas. IN an Ejectione Firme upon Evidence the Case was That Roger Wake was seised c. and before 27 H. 8. enfeoffed certain persons to his use c. and they being so seised to the use aforesaid The said Roger by his Will willed That his Feoffees and Executors should found a Chauntry in perpetuity and a Priest there to say Mass pro anim ' c. and that they procure a Licence to alien in Mortmain and also an Incorporation for such Chauntry Priory And that the said Lands should be conveyed to such a Priest c. And also that every such Priest should be School-Master there And that post dictam Cantariam sic fundatam stabilitam the said Priest should say Mass c. Roger Wake died The Feoffees and Executors did not procure any Corporation or Licence to alien in Mortmain nor make any estate to the Chauntry Priest But the appointing a Priest who said Mass according to the Will of the said Roger and was also a School-Master and took the profits of the said Lands as owner of them and died After which one Vere was appointed to be School-Master there but he was meerly a Lay-person and so continued until his death and took the profits of the Land And upon part of the Land he built a House and there dwelt and kept a School And after his death one Curtis was appointed by the Executors to teach there and he was a Lay-man and there taught many years and afterwards he took Orders and became a Priest and said Mass and other Divine Service and continued School-Master also And 26 H. 8. the same was presented for a Chauntry for First-Fruits and first-fruits were paid for it as appeared by a Particular which was shewed in Evidence And also 2 E. 6. it was presented for a Chauntry and the possessions of it seised into the Kings hands And it was much insisted upon That Vere being a meer Lay-man that the same was a forcible Interruption of the Reputation of the Chauntry But it was the Opinion of the whole Court to the contrary And that notwithstanding That no Corporation was obtained yet because that the Priest was appointed by colour of the Will and he said Mass according to the Will although Vere who succeeded him was a meer Lay-man and not a Priest yet afterwards when Curtis came being appointed but a School-Master being also a meer Lay-man yet afterwards when he took upon him Orders and demeaned himself as a Chauntry Priest there ratione institutionis by the Will of Wake which is confirmed by the Certificate and also by the Presentment The first Reputation is revived and the Law shall not construe That Curtis took the profits in the Quality of a School-Master but as a Priest for the Law hath respect to the Will of the said Wake which was the ground of all these proceedings and that although he did not say Mass within 5 years before the Statute of 1 E. 6. And Note That the Certificate of 26 H. 8. was That Rich. Curtis was
force of the first assurance by way of Bargain and the Relation is utterly gone So in our Case The Grant of the Queen mean between the Award of the Commission and the Retorn of it hath destroyed the force and effect of the Commission so as no appearance shall be had of it And he agreed That here are several Rents but the Condition is entire and admit that a Condition may be apportioned in some Cases yet in some Cases it cannot And the Statute of 32 H. 8. gives the Condition and the Reversion to which it is annexed to the King in such sort as it was in the Prior But the Condition in the Prior was not capable of Apportionment and therefore no more it shall be in the Case of the King. As where a Recognizance is acknowledged whicâ— cometh to the King by the Attainder of the Conusee Now if the King will sue Execution upon it he shall not have the whole Land of the Conusor in Execution but only the moyety by Elegit c. This Case afterward Trin. 28 Eliz. for Difficulty was adjourned into the Exchequer-Chamber and there argued before all the Iustices and Barons of the Exchequer And Shuttleworth Serjant argued for the Plaintiff And first he said Here are several Rents and so several Conditions especially when all the things demised are of such a Nature that they may yield a Distress but if any of the things demised cannot yield Distress then it shall be one entire Rent and shall issue out of the Residue c. Which see 17 Ass 10. An Assise was brought of 20 s. Rent and the said Rent was reserved upon a Lease for life made of 100 Acres of Lands and 15 Acres of Wood scil for the Land 10 s. and for the Woods 10 s. And by the Assise it was found the Disseisin in the Wood but not in the Land. Wherefore it was awarded That the Plaintiff should recover seisin of the 10 s. and for the residue that he should take nothing And although these words reddendo inde Trench unto all the things demised entirely yet this word viz. is a distributive and makes an Apportionment And the viz. is not contrary to the premisses scil to the reddendo inde As if I enfeoffe A. and B. of an Acre of Land Habendum the one moyety thereof to A. in Fee and the other moyety to B. in Fee this is good for it well stands with the premisses But if I enfeoffe A. and B. of two Acres of Lands Habendum the one Acre to A. and the other to B. the same Habendum is void because contrary to the premisses for each of them is excluded out of one Acre which was given to him in the premisses And in our Case If the Rent set forth in the Viz. had been greater or less than that which is reserved upon the Reddendo then the Viz. should be void for the contrariety and the Reddendo stand Walmesley contrary And that here is one entire Rent Which see to be so by the close of the Condition Si Redditus praedict ' aut aliqua inde parcella c. And the Lessor may distrain in any part of the Land demised for the whole Rent notwithstanding the Viz. And it was moved by Shuttleworth That admit the Rent and Condition be entire Yet now when the King grants the Reversion of one of the things demised in Fee to a stranger the Condition remains and not determined by the destruction of the Reversion as in the case of a Subject For the King hath divers Prerogatives by which he is exempted and protected from such Mischiefs and Inconveniences which happen to Subjects by their own Acts and their Laches and Folly which shall not be imputed to the King And the reason of Extinguishment of a Condition in such case in the case of a Common person is his own Folly that he will distrahere his Reversion And Folly shall never be imputed to the King And as the Case is here the King is not bound to take notice of a Condition made by a Common â—erson For it is not matter of Record and by this Grant of the King the Rent doth not pass for the Grant is only of the Reversion without any mention of the Rent And the King hath divers Prerogatives in a Condition As in the creating of a Condition 35 H. 6. 38. The Abbot of Sion's Case Ad effectum is a good Condition in the Case of the King by Prison And where the King grants Lands in Fee to one upon Condition That the Grantee shall not alien the same is a good condition So for a Rent-Seck the King may distrain And the King may reserve a Rent and a Condition to a stranger and if he doth reserve a Rent and a Condition to himself he may grant the same over to a Subject 2 H. 7. 8. And the Condition in the case of a Common person may be apportioned As if Lessee of two Acres upon Condition alien one of them in Fee and the Lessor entreth for the forfeiture or recovereth part in an Action of Waste c. but of a surrender it is otherwise Walmesley contrary The Condition is gone For a Condition in the hands of the King is of the same Nature as in the case of a common person impatient of any Division Partition or Apportionment As if the King hath a Rent out of 3 Acres of Land and afterwards purchaseth one of them the Rent is utterly gone and shall not be apportioned as well as in the Case of a common person So of a Common And as this Case is If the Condition doth remain then upon the breach of it the King shall enter into the whole for the words of the Condition are Wholly to re-enter and so he should defeat his own grant And he cited a Case adjudged at the Assizes at York The King gave Land in Fee-Farm rendring Rent with Clause of re-entry The King granteth the Rent over to a stranger And after the Rent is behind The King cannot re-enter nor the Grantee It was also moved If the Iurors of Middlesex might enquire of the usual Feast days in London Shuttleworth That they might do so See 5 H. 5. 23. Where a Commission issued out to enquire in the County of Surrey of Escheats words c. who found that A. held of the King in Chief and took to Wife one E. Cosen of A. within the Degrees they then knowing of it and had Issue betwixt them and afterwards they were Divorced in the County of Kent c. And Exception was taken to that Office Because the Enquest of Surry had found a Divorce in the County of Kent Another matter was Because the Iurors have found the breach of the Condition And before the Iurors had put their Hands and Seals to the Inquisition the Queen granted part of the things demised in his hands to Fortescue After which Grant the Inquisition was sealed and Retorned into the Exchequer If
for the variance is in a thing which is matter of surplusage and so much the rather because the said A. had not another House in D. c. CLXXXVI Lucas and Picroft's Case Pasch 28 Eliz. In the Common Pleas. THe Case was That an Assise of Novel Disseisin was brought in the County of Northampton of two Acres of Lands 2 Len. 41. and as to one Acre the Tenant pleaded a plea tryable in a Forreign County Vpon which the Assise was adjourned into the Common Pleas and from thence into the forreign County Where by Nisi prius It was found for the Plaintiff and now in the Common Pleas Snag Serjeant prayed Iudgment for the Plaintiff and cited the Book 16 H. 7. 12. Where an Assise is adjourned into the Common Pleas for difficulty of the Verdict they there may give Iudgment But all the Court held the contrary For here is another Acre of which the Title is yet to be tryed before the Iustices of Assise before the tryal of which no Iudgment shall be given for the Acre of which the Title is found And the Assise is properly depending before the Iustices of Assise before whom the Plaintiff may discontinue his Assise And it is not like to the Cases of 6 E. 4. and 8 Ass 15. Where in an Assise a Release was pleaded dated in a forreign County which was denyed Wherefore the Assise was adjourned into the Common Pleas and there found by Enquest not the Deed of the Plaintiff's Now if the Plaintiff will release his Damages he shall have Iudgment of the Freehold presently But in our Case parcel of the Land put in View remains not tryed which the Plaintiff cannot release as he may his Damages 2 Len. 199. and therefore the Court remanded the Verdict to the Iustices of Assise CLXXXVII Hare and Mellers Case Mich. 28 Eliz. In the Common Pleas. Post 163. HUgh Hare of the Inner-Temple brought an Action upon the Case against Phillip Mellers and declared That the Defendant had exhibited unto the Queen a slanderous Bill against the Plaintiff charging the said Hugh to have recovered against the Defendant 400 l. by Forgery Perjury and Cosening And also that he had published the matter of the said Bill at Westm c. In this Case it was said by the Court That the exhibiting of the Bill to the Queen is not in it self any Cause of Action For the Queen is the Head and Fountain of Iustice and therefore it is lawful for all her Subjects to resort unto her ad faciendam Querimoniam But if a subject after the Bill once exhibited will divulge the matter therein comprehended to the disgrace and discredit of the person intended the same is good cause of Action And that was the Case of Sir John Conway who upon such matter recovered And as to the words themselves It was the Opinion of the Court That they are not actionable For it is not expresly shewed That the Plaintiff hath used perjury forgery c. And it may be that the Attorny or Sollicitor in the Cause hath used such indirect means not known to the Plaintiff And in such case it is true That the Plaintiff hath recovered by forgery c. and yet without reproach And by perjury he cannot recover for he cannot be sworn in his own Cause It was adjudged against the Plaintiff CLXXXVIII Moore and the Bishop of Norwich's Case Mich. 28 Eliz. In the Common Pleas. IN a Quare Impedit by Moor against the Bishop of Norwich c. It was found for the Plaintiff and thereupon issued forth a Writ to the Bishop which was not retorned Vpon which an Alias issued forth Vpon which the Bishop retorned That after Iudgment given in the Quare Impedit the same Incumbent against whom the Action was brought was Presented Instituted and Inducted into the same Church and so the Church is full c. And if that was a good retorn It was oftentimes debated Windham cited the Case L. 5 E. 4. 115 116. A Quare Impedit against Parson Patron and Ordinary and pendant the Writ the Parson resigned and the Ordinary gave notice of it to the Patron and afterwards by Lapse the Ordinary presented the same Incumbent who resigned And afterwards the Plaintiff in the Quare Impedit had Iudgment to recovers And it was holden Because the same Incumbent is now in by a new title scil by Lapse and the same person against whom the recovery was had and that appeared to the Court he should be removed See 9 Eliz. Dyer 260. and 21 Eliz. Dyer 364. And it was said by the Lord Anderson What person soever is presented and admitted after the Action brought unless it be that the title of the Patron be paramount the title of the Plaintiff upon such Recovery he shall be removed And so in the principal case It was adjudged That the Retorn of the Bishop was not good Wherefore he was fined 10 l. and a Sicut alias awarded upon pain of 100 l. CLXXXIX Parret and Doctor Matthews Case Mich. 28 Eliz. In the Kings Bench. A Praemunire was brought and prosecuted by the Queens Attorny General and Parret 1 Len. 292. against Doctor Matthews Dean of Christ-Church in Oxford and others for that they procured the said Parret to be sued in the City of Oxford before the Commissary there in an Action of Trespass by Libel according to the Ecclesiastical Law In which Suit Parret pleaded his Freehold and so to the Iurisdiction of the Court and yet they proceeded there and Parret was Condemned and Imprisoned And afterward the said Suit depending the Queens Attorny withdrew his Suit for the Queen It was now moved to the Court If notwithstanding that the party Informer might proceed in his suit there See 7 E. 4. 2. the King shall have Praemunire and the party grieved his Action See Br. Praemunire 13. for by Brook None can have Praemunire but the King. Cook There is a President in the Book of Entries 427. In a Praemunire the words are Ad respondendum tam Domino Regi quam R F. and that upon the Statute of 16 R. 2. And see ibid. 429. tam Domino Regi de Contemptu praedict quam dicto A.B. de Damnis But it was holden by the whole Court That if the Queens Attorny will not ulterius prosequi the party grieved cannot maintain that Suit For the principal matter in the Praemunire is the Conviction and the putting of the party out of the Kings protection and the damages are but accessary and then the Principal being Released the damages are gone And it was also holden That the Presidents in the Book of Entries are not to be regarded For there is not any Iudgment upon any of the pleadings there CXC Archeboll and Borrell's Case Mich. 28 Eliz. In the Kings Bench. ARcheboll brought an Action upon the Case against Borrell and declared That the Defendant had procured one L. to bring an Appeal of the death of J.S. against
here it is found That she clearly departed out of London but they have not found that she dwelt in the Country c. but only that she went to Melton but she ought to do doth before her Estate shall cease It was argued by Towse for the Plaintiff That the Defendant ought to be found guilty of the Ejectment For it is found That the Defendant entred before the Commandment of Anne but they have not found that Anne was alive Fenner Iustice the same is well enough and so it was holden 18 Eliz. in this Court for although her life be not found yet it shall be intended that she was alive For the Iury did not doubt of it and the Conclusion of the Verdict is That if it shall seem to the Court that his Entry is lawful Then the Defendant is not guilty So as the doubt of the Iury is only upon that point Which Wray concessit Gawdy Iustice If one Deviseth Land to one for life upon Condition That his Estate shall cease which is all one with the Case at Bar and after the breach of the Condition he continueth in possessions he is not Tenant for life but Tenant at sufferance Wray Chief Iustice Tenant for the life of another continues in possession after the death of Cestuy que vie he hath not any Freehold remaining in him for if he dieth nothing descends And so it was lately adjudged by all the Iustices of England upon a Conference had between them And the Book of 18 E. 4. is not Law. Which Gawdy Iustice concessit See 35 H. 8. 57. acc And he said That the same shall be as a Limitation by which the Estate shall cease without an Entry And here in this Case because they have not found That Anne had dwelt in the Country here is no breach of the Condition in the Case And afterwards by the Advice of the whole Court Iudgment was given for the Defendant Quod querens nihil Capiat per Billam CCV Cadee and Oliver's Case Mich. 29 30 Eliz. In the Kings Bench. IN an Ejectione Firmae by Cadee against Oliver 1 Cro. 152. Roll. Tit. Grant. 48. of a House in Holborn c. The Case was The Lord Mountjoy and the Lady Katherine his Wife seised of the said House and of other Lands in Fee in the right of the Wife 6 Eliz. acknowledged a Statute-Staple of 1200 l. to Sir Lyonel Ducket Afterwards 9 Eliz. the said Lord Mountjoy and his said Wife Leased the said House to Hoskins for 21 years And afterwards by Indenture 11 Eliz. they Leased the same to Sir Tho. Cotton for 99 years to begin at Michaelmas last past 12 Eliz. Sir Lyonel Ducket extended his Statute and the Land extended was delivered to him at 53 l. 7 s. per annum who held the same until 22 Eliz. Anno 23 Eliz. the Lord Mountjoy and his Wife levied a Fine to Perry to the use of Perry and his Heirs 27 Eliz. Sir Thomas Cotton not being upon the Land granted omnia tunc bona catalla sua to Robert Cotton his Son 28 Eliz. the Lady Mountjoy died Mich. 29 Eliz. the Lease to Hoskins expired Perry entred and Leased the House to Oliver the Defendant for 21 years And afterwards Robert Cotton entred and Leased the House c. to the Plaintiff It was first moved by Brantingham and argued by him If this Lease for 99 years which was made to begin after the Lease made to Hoskins should pass to Robert Cotton by the words aforesaid But the Court eased him from arguing of that point for it was holden That it passed notwithstanding the word tunc 1 Cro. 386. Another matter argued by him was because at the time of the Grant the Lands were in extent and so the said Sir Thomas Cotton had but a possibility If therefore the said Grant made during the Extent was good And he argued That it was for it is more than a bare possibility for it is an Interest vested And in some Cases a possibility may be granted As 19 H. 6. 2. The King granted to a Prior That when any Tenth is granted to the King by the Clergy his House shall be discharged of it c. And 19 E. 2. Avowry 224. The Lord grants to his Tenant That if he dieth his Heir within age that such Heir shall not be in Ward So 21 E. 4. 44. A Grant unto an Abbot to be discharged of the Collectorship of Tenths when it shall be granted by the Clergy It hath been Objected That the Term for 99 years is suspended therefore it cannot be granted during the suspension But the same is not so for a thing suspended may be granted As 15 Eliz. Dyer 319. Husband and Wife Ioynt-Tenants of Lands in Fee The Queen having a Rent out of it in Fee giveth the Rent to the Husband and his Heirs now the Husband Deviseth the said Rent and dieth the same is good a Devise notwithstanding the suspension And he cited the Cases 16 E. 3. Quid juris clamat 22. And 20 E. 3. ibid. 31. A Lease is made to one for life and if he dieth within 20 years that his Executors and Assigns shall hold the Land until the expiration of the 20 years the said Interest may be granted Which Wray Chief Iustice denyed See Gravenors Case 3 4 Ma. Dyer 150. such Interest is void It was further moved by him and argued If the Conusee of the Fine might avoid the Lease made to Sir Thomas Cotten And he said He could not for he is in under the Lessors So is 34 E. 1. Recovery in value 36. see the Case there And here although the Wife after the death of her Husband may affirm or disaffirm the Lease at her Election yet this Election is not transferred to the Conusee by the Fine but the Conusee shall be bound by the Fine See 33 H. 8. Dyer 51. As Tenant in tail makes a Lease for years not warranted by the Statute and dieth the Issue alieneth the Land by Fine before affirmation or disaffirmation of the Lease by acceptance or Entry the Conusee cannot avoid this Lease for the Liberty is not transferred Which Gawdy Iustice concessit And Election cannot be transferred over to the prejudice of another person As if a Rent de novo be granted to the Father in Fee who dieth before Election the Heir cannot make it an Annuity to defeat the Dower of the Wife quod Curia concessit It was also moved by Brantingham If the Lessee might enter upon the Conusee of the Statute after his Extent expired without suing forth a Scire facias But the Court discharged him from arguing that Point for that by the Death of the Lady Mountjoy the Extent was void and therefore the Feoffee or Conusee might avoid it by Entry And so Wray Chief Iustice said it had been adjudged in the Court of Common Pleas. At another day the Case was argued by Stephens on the part of
and his diet for himself his servants and horses Vpon which the Debt in demand grew but the said Young was not at any price in certain with the Defendant nor was there ever any agreement made betwixt them for the same It was said by Anderson Chief Iustice That upon that matter an Action of Debt did not lie And therefore afterwards the Iury gave a Verdict for the Defendant CCXI. Heidon and Ibgrave's Case Hill. 29 Eliz. In the Common Pleas. 1 And. 148. A Writ of Right was brought by Heidon against Ibgrave and he demanded the third part of 40 Acres of Land in the County of Hertford and they were at Issue upon the meer Right Vpon which the Grand Assise appeared And first the 4 Knights were specially sworn to say upon their Oath Whether the Tenant hath better right to hold the Land than the Demandant to demand it And afterwards the rest of the Iurors were sworn generally as in other Actions And there was some doubt made Whether the Demandant or the Tenant should first begin to give Evidence And at the last it was Ruled by the Court That the Tenant should begin because he is in the affirmative And it was said by Periam Iustice That so it was late adjudged in the Case betwixt Noell and Watts And upon the Evidence the Case was That King Hen. the 8th by his Letters Patents gave to the Demandant the Mannor of New-Hall and all the Lands in the Tenure and Occupation of John Whitton before demised to Johnson and in the Parish of Watford And the truth was That the said 40 Acres whereof now the third part was in demand were in the Occupation of the said John Whitton but were never demised to Johnson nor in the Parish of Watford And by the clear Opinion of the Court the said 40 Acres did not pass for the circumstances of the Deed are not true scil the Demise to Johnson and the being in the Parish of Watford but both were false But if the said Land had had an especial name in the Letters Patents then it had been well enough notwithstanding the misprision in the rest And by Anderson If upon the particular it had appeared that the Demandant had paid his Mony for the said 40 Acres peradventure they had passed CCXII. The Dean of Gloucester's Case Hill. 29 Eliz. In the Common Pleas. THe Dean and Chapter of Gloucester brough a Writ of Partition against the Bishop of Gloucester upon the Statute of 32 H. 8. of Partition And it was moved That upon the words of the Statute that the Action did not lie in this Case for the Statute doth not extend but to Estates in Ioynt-Tenancy or in Common of Lands whereof such joynt-Ioynt-Tenants or Tenants in Common are seised in their own right And also it is further said That every such Ioynt-Tenant or Tenant in Common and their Heirs shall have Aid to deraign the warranty without speaking of the word Successors And by Periam and Windham Iustices The Writ doth not lie But Anderson seemed to be of a contrary Opinion CCXIII. Hare and Meller's Case Hill. 29 Eliz. In the Common Pleas. HUgh Hare of the Inner-Temple brought an Action upon the Case against Philip Meller and declared Ante 138. That the said Defendant had exhibited to the Queen a scandalous Bill against the Plaintiff charging the said Hugh to have recovered against the said Defendant 400 l. by Forgery Perjury and Forswearing and Cosenage And also that he had published the matter of the said Bill at Westm c. It was said by the Court That the exhibiting of the Bill to the Queen is not in it self any cause of Action for the Queen is the Head and Fountain of Iustice and therefore it is lawful for all her Subjects to resort to her to make their complaints But if a Subject after the Bill once exhibited will divulge the matter comprised in it to the disgrace and discredit of the person intended the same is a good cause of Action And so was the Case of Sir John Conway who upon such matter did recover And as to the words themselves It seemeth to the Court That they are not Actionable For it is not expresly shewed That the Plaintiff had used Perjury Forgery c. And it may be that the Attorny or Sollicitor in the Cause hath used such indirect means the Plaintiff not knowing it and in such case the Plaintiff hath recovered by Forgery c. and yet without reproach And by perjury he could not recover for he could not be sworn in his own Cause And Stanhops Case was remembred by the Court which was That Edward Stanhop of Grays-Inn brought an Action upon the Case against one who had Reported That the said Edward Stanhop had gained his Living by swearing and forswearing And by the Opinion of the Court The Action did not lie for those words do not set forth any actual forswearing in the person of the Plaintiff but it might be in an Action depending between the Plaintiff and a stranger that another stranger produced as a Witness had made a false Oath without any procurement or practice of the Plaintiff in which Case it might be that the Plaintiff had gained by such swearing CCXIV. Cheverton's Case Hill. 29 Eliz. In the Common Pleas. HEnry Cheverton brought a Quare Impedit and Counted That he was seised of the moyety of the Church of D. that is to say To present qualibet prima vice and that J.S. is seised of the other moyety that is to say To present qualibet secunda vice c. And Exception was taken to the Count Because it was not shewed how the special Interest did begin scil by Prescription Composition or otherwise for it is clearly against common Right and therefore that ought to be shewed See Dyer 13 Eliz. 229. CCXV Edmond's Case Mich. 29 Eliz. In the Common Pleas. IN an Action upon the Case against Edmonds the Case was That the Defendant being within age requested the Plaintiff to be bounden for him to another for the payment of 30 l. which he was to borrow for his own use to which the Plaintiff agreed and was bounden ut supra Afterwards the Plaintiff was sued for the said Debt and paid it And afterwards when the Defendant came of full age the Plaintiff put him in mind of the matter aforesaid and prayed him that he might not be damnified so to pay 30 l. it being the Defendant's Debt Whereupon the Defendant promised to pay the Debt again to the Plaintiff Vpon which promise the Action was brought And it was holden by the Court That although here was no present consideration upon which the Assumpsit could arise yet the Court was clear That upon the whole matter the Action did lie and Iudgment was given for the Plaintiff CCXVI Farrington and Fleetwood.'s Case Mich. 29 Eliz. In the Exchequer BEtween Farrington and Fleetwood the Case was upon the Stat. of 31 H. 8. of Monasteries 2
Len. 55. 1 Len. 333. The Abbot and Covent of D. 29 H. 8. makes a Lease of certain Lands for 3 Lives to begin after the death of one J.S. if they shall so long live And afterwards 30 H. 8. within a year before the Dissolution they make another Lease to JS If the first Lease in the life of J.S. be such an Estate and Interest which by vertue of the said Statute shall make the second Lease void was the Question For it was not in esse but a future Interest Manwood All the reason which hath been made for the second Lease is because the first Lease is but a possibility for J.S. by possibility may survive all the 3 Lives and so it shall never take effect But notwithstanding be it a possibility c. or otherwise It is such a thing as may be granted or forfeited and that during the life of the said J.S. And Note also the words of the Statute If any Abbot c. within one year next before the first day of the Parliament hath made or hereafter shall make any Lease or Grant for years life or lives of any Mannors c. whereof and in which any Estate or Interest for life or years at the time of the making of any such Lease or Grant then had his being or continuance or hereafter shall have his being or continuance and then was not determined c. shall be void c. And here is an Interest and that not determined at the time of the making of this Lease to J.S. And of that Opinion was the whole Court and all the Barons and divers other of the Iustices And therefore a Decree was made against that Lease c. CCXVII The Master and Chaplains of the Savoy's Case Mich. 29 Eliz. In the Exchequer THe Master and Chaplains of the Savoy aliened a parcel of their possessions unto another in Fee and afterwards surrendred their Patents and a Vacat is made of the Enrollment of them It was now moved How the Alienee should be adjudged to make title to the said Lands claiming the same by the Letters Patents For the Clerks would not make a Constat of it For the Patents were cancelled and a Vacat made of the Enrolment And the Case of Sir Robert Sidney was vouched in which Case the Statute of 3 E. 6. was so expounded upon great advise taken by the Lord Chancellor who thereupon commanded That no Constat be made in such case Manwood If Tenant in tail by Letters Patents of the King surrendreth his Patent and cancelleth it and a Vacat be made of the Enrollment by that the Issue in tail shall be bound For no other person at the time of the cancelling hath Interest But in the Case at Bar a third person scil the Alienee hath an Interest And therefore he was of Opinion That he should have a Constat c. CCXVIII Inchely and Robinson's Case Hill. 29 Eliz. In the Common Pleas. IN an Ejectione Firmae It was found by Verdict That King E. 6. was seised of the Mannor and Hundred of Fremmington 2 Len. 41. Owen Rep. 88. and granted the same by his Letters Patents to one Barnard in Fee rendring 130 l. per annum and also to be holden by Homage and Fealty And afterwards Queen Mary reciting the said Grant by King Ed. 6. and the Reservation upon it granted unto Gertrude Marchioness of Exeter the Mannor of Fremmington and the said Rent and Services and also the Mannor of Camfield and other Lands and Tenements Tenendum per vicesimam partem unius feodi Militis Gertrude being so seised Devised to the Lord Mountjoy the Mannor of Fremmington the Mannor of Camfield c. And also bequeathed divers sums of Monies to be levied of the premises And further found that the said Rent of 130 l. was the full third part of the yearly value of all the Lands and Tenements of the Devisor The Question was If by these words of the Devise of the Mannor of Fremmington the Rent and the Services pass i.e. the Rent Homage and Fealty reserved upon the Grant made by King Ed. 6. of the Mannor and Hundred of Fremmington And if the said Rent and Services are issuing out of the Mannor For if the Rent doth not pass then the same is descended to the Heir of the Marchioness and then being found the full third part of the value the King is fully answered and satisfied and then the residue of the Inheritance discharged and is settled in the Devisee And if the Rent doth not pass then is the Heir of the Marchioness entituled by the Statute to a third of the whole c. And Shuttleworth conceived That if the Marchioness had Devised by express words the said Rent and Services they could not pass For as to the Services they are things entire as Homage and Fealty they cannot pass by Devise in case where Partition is to follow for such things cannot receive any partition or division therefore not divideable For the Statute enables the Proprietary to give or devise two parts of his Inheritance in three parts to be divided As Catalla Felonum cannot be devised for the reason aforesaid Quod fuit Concessum per totam Curiam But as to the Rent the Court was clear That the same was deviseable by the said Statute and in respect of that the mischief of many distresses which the Common Law abhors is dispensed with and is now become distrainable of common right And as to the Devise he argued much upon the grounds of Devises and put a ground put by Fineux 15 H. 7. 12. Where every Will ought to be construed and taken according as the words purport or as it may be intended or implyed by the words What the intent of the Devisor was so as we ought to enquire the meaning of the Testator out of the words of the Will. And see also a good Case 19 H 8. 8 9. And he much relyed upon the Case of Bret and Rigden Plow Com. 343. See there the Case So in this Case for as much as such Intent of the Devisor doth not appear upon the words of the Will that this Rent shall pass It shall not pass for there is not any mention of any Rent in the whole Will. Fenner argued to the contrary and he argued much upon the favourable Construction which the Law gives to Wills. 14 H. 8. by Reversion for remainder e contra 17 E. 3. 8. A Man may make a Feoffment in Fee of a Mannor by the name of a Knights Fee a multo fortiori in the Cases of Devises And in our Case the Marchioness conceived That the Rent and Services reserved out of the Mannor of Fremmington was the Mannor of Fremmington and that the Law would give strength to that intent Walmesley conceived That the Rent did not pass by the name of the Mannor c. for this Rent noc in veritate nec in reputatione was ever taken for a Mannor
Also the words Of the Mannor of Fremmington and Hundred are put amongst others which are Mannors in truth By which he conceived That the Devisor did not intend to pass but one Mannor and no other Herediatments by this Mannor of Fremmington There is a Rule in Law That in the Construction of a Will a thing implyed shall not control a thing expressed But here If by implication the Rent shall pass then the Mannor of Camfield is not passed which was the intent of the Testator to pass and that by express words See 16 Eliz. Dyer 330. Clatches Case No Implication of any Estate in remainder can serve when a special Guift and Limitation is made by the Devisor himself See also 16 Eliz. Dyer 333. Chapman's Case But in our Case here there are not sufficient words to warrant any Implication for neither in truth nor in common reputation was it taken for a Mannor 27 H. 6. 2. Green-Acre may pass by the name of a Mannor although it be but one Acre of Land because it is known by the name of a Mannor See acc 22 H. 6. 39. And see Where before the Statute of Uses A Man had recoverors to his use and he willeth by his Will That his Feoffees sell his Lands they might sell And he said That if a Man seised of a Mannor parcel in Demesne and parcel in Service and he granteth the Demesnes to one and his Heirs and afterwards deviseth his Mannor peradventure the Services shall pass but this Rent hath not any resemblance to a Mannor Gawdy This Rent shall pass by the name aforesaid Favourable Construction is always given in Wills according to the meaning of the Devisor and no part of his Will shall be holden void if by any means it may take effect Then it here appeareth that his intent was That upon these words something should pass to the Devisee concerning the Mannor of Fremmington for otherwise the words Of the Mannor of Fremmington are void and frivolous which shall not be in a Will if any reasonable Construction may be made For it is found expresly by the Iury That neither at the time of the Will made nor at the time of the death of the Testator the Devisor had any thing in the said Mannor of Fremmington but the said Rent of 130 l. per annum And it may well be taken That the Devisor being ignorant what thing a Mannor is thought that this Rent was a Mannor because that she had Rents and Services out of the said Mannor For in Construction of a Will the words shall serve the intent And therefore if a Man Deviseth That his Lands shall be sold for the payment of his Debts his Executors shall sell them for the intent of the Devisor names the sellers sufficiently And See Plowden 20 Eliz. 524. L. after the Statute of 27 H. 8. deviseth that his Executors shall be seised to the use of A. and his Assigns in Fee whereas then there was no Feoffees to use the same was holden a good devise of the Land to A. But the Iustices conceived That the Devisor was ignorant of the operation of the Statute in that case and therefore his ignorance was supplyed See Br. Devises 48. 29 H. 8. A. had Feoffees to his use and afterwards after the Statute of 27 H. 8. and 32 H. 8. he willed That his Feoffees should make an Estate to B. and his Heirs It was holden by Baldwin Shelley and Mountague Iustices That it was a good Devise And see 26 H. 6. Fitz. tit Feoffments Faits 12. A Carue of Land may pass by the name of a Mannor therefore a fortiori a Rent for Rents and Services have more affinity and more resemble a Mannor than a Carue of Land. And it cannot be intended that the meaning of the Testator was to grant the Mannor it self in which he had not any thing especially by his Will for Covin Collusion or indirect dealing cannot be presumed in a Will. Also The Marchioness for 4 years together before her death had the Rent and Services of the said Mannor and she well knew that she her self had not any thing in the said Mannor but the said Rent and Services and therefore it shall be intended that the same was her Mannor of Fremmington A. seised of a Capital Messuage and great Demesnes lying to it Leased the same for years rendring Rent and afterwards devised to another all her Farm in such a place And it was Ruled in that Case That by that Devise the Rent and the Reversion passed See the Case between Wrottesley and Adams Plow 19. 1 Eliz. by Anthony Brown and Dyer Periam Iustice conceived That this Rent might be divided well enough But by Anderson It is but a Rent-Seck Periam It is distrainable of Common right Anderson doubted of it But all the Iustices agreed That the Rent might be divided but there should not be two Tenures The Lord Mountjoy being advised that this Rent did not pass but descended to the Heir being the full third part of the Lands entred into the Residue and made a Lease of the Mannor of Camfield unto the Plaintiff upon which the Ejectione firmae is brought And afterwards the Plaintiff seeing the Opinion of the Court to be against him and for the Devise of the Rent for the reasons aforesaid Discontinued his Suit c. CCXIX. Williams and Drew's Case Mich. 29 Eliz. In the Common Pleas. THe Widow of Williams who was Speaker of the Parliament brought Dower against Williams and Drew upon the Grande Cape Williams made default And now came Drew and surmised to the Court That he is not Tenant of the Land But further he saith That the Husband of the Demandant Leased the said Lands to him for 50 years and that this Action is brought by Covin to make him lose his Term and prayed to be received And the Opinion of the whole Court was That although he was party to the Writ yet he should be received and that by the Statute of Gloucester for he is in equal mischief And the Court was also clear of Opinion That upon the default of Williams the Demandant should not have Iudgment for a moyety for that the Cause of the receipt trenched to the whole And by all the Iustices but Rhodes If Iudgment had been given upon the deault of both i. e. Williams and Drew yet the Term of Drew should stand but Drew should be put out of possession and put to his Action And Anderson conceived That the Resceit upon that Statute did not lie unless that Covin be alledged betwixt the Demandant and the Tenant to make him to lose his Term and that Covin is traversable Which all the other Iustices denyed for the Covin ought to be averred but ought not to be traversed And also they all but Anderson were clear of Opinion That in this Case of Receipt the party shall not plead upon his Receipt as upon the Statute of Westminster but he shall be received
laid in a person in such sort as it may be laid and therefore in this Case forasmuch as the seisin cannot be shewed by the hands of the Inhabitants it ought to be layed in the Lord. See 4 H. 6. 29. Br. Avowry 71. In a Recordare the Defendant avowed because the King is seised of the Castle of C. in jure Ducatus sui Cornub. to which he had 20 s. Rent out of the Town of D. Solvend annuatim at Michaelmas of which Rent the King and all the Dukes of Cornwal aforesaid had been seised time out of memory c. by the hands of the Inhabitants of the same Town c. and the same was holden a good Avowry For although that seisin ought to be laid in some person certain by his hands yet in that case it is good enough For the seisin by one of the Inhabitants is the seisin of them all And in the principal Case by Periam and Walmesley It was agreed That the seisin here was well enough confessed For when the Plaintiff hath taken Issue That they have used to distrain all other matters are holden confessed because that the Plaintiff hath not saved them to him by protestation Which Rhodes granted Another Exception was taken to the Avowry because that the Leet by it is supposed to be holden in July therefore void which see Magna Charta 35. But it was holden by Anderson Windham and Rhodes That by reason of this Prescription the Court is well holden in July notwithstanding the said Statute of Magna Charta and it might be holden at what day he pleased For his Liberty and Election is not restrained by the said Statute and such is the common experience And note the words of the same Statute Ita quod quilibet habeat Libertates suas quas habuit vel habere consuevit tempore Regis H. avi nostri c. vel quod postea perquisivit c. And Rhodes conceived That the said Statute is to be intended of Turns only and not of Leets Which see 24 H. 8. Br. Leet 23. in the end of the Case But by Periam A Leet cannot be holden but according to the said Statute for to that purpose was the said Statute made But if a Leet hath been time out of mind c. holden at any other day than that which is limited by the Statute it is a good prescription and it is saved by the Statute The Prescription is That he and all c. have used to hold a Leet once in a year and hath not shewed when the said year begins for it may be that a Leet hath been holden there in this year before July and then this is a void Leet and so no Leet-Fee due and of that Opinion was Periam viz. That the Avowant ought to have shewed the beginning and end of the year viz. That he held the said Leet pro uno anno finito such a day for it may be he hath holden two Leets in one year But it was said by the other Iustices That that shall come on the other side for prima facie it shall be intended that it hath been but once holden in the same year until the contrary be shewed And Note by Anderson and Rhodes If the King grants to one a Leet to hold semel quolibet anno without saying At the Liberty of the Grantee the Grant is good and the Grantee may hold it at what day he pleaseth CCXXXII Putnam and Cook 's Case Mich. 29 Eliz. In the Kings Bench. 2 Len. 129.193 1 Cro. 52. IN Ejectione Firmae It was found That one Hawkins was seised of 3 Messuages in Bury in Fee and had Issue Robert his Son and Christien and Joan Daughters And Devised all his said Messuages to his Wife for life the remainder of one of the said Messuages to his Son Robert and his Heirs the remainder of another of his said Messuages to his Daughter Christien and her Heirs the remainder of the third to Joan and her Heirs And further willed That if any of his said Issues died without Issue of his body that then the other surviving should have totam illam partem c. between them equally to be divided The Devisor died The Wife of the Devisor died Joan died having Issue Robert died without Issue Christien entred into the whole Messuage of Robert and died and her Husband held in as Tenant by the Curtesie Cook The surviving Child shall have the whole and the Issue of Joan shall have nothing And he conceived That by this Devise they have an Estate in tail for the Fee is not vested in them for that it is incertain which of them shall survive but when one doth survive then he shall have the Fee for these words totam illam partem go to the whole Estate as well as to the whole Land. If I Devise my whole Land to J.S. he hath a Fee. And he conceived That the three had an Estate in tail with a Fee expectant each severally to the House limited to him Golding contrary Each of them hath an Estate tail in the House Devised to him and but an Estate for life expectant upon the death of the other without Issue for there are no words by which it might appear what Estate they shall have by the Survivor c. I grant the Case which Perkins denies but Littleton affirms scil A Devise of Lands to one in perpetuum for there the intent appeareth but where there are not words of Inheritance nor words amounting to so much then it shall be but an Estate for life And as to these words totam illam partem the same is all one as if he had Devised totam illam without partem Also he conceived That where one only survived no estate further vested for there ought to be two to take by the Survivorship for the words are aequaliter inter eos dividend And then if it cannot accrue by Survivor then it shall descend And if it had accrued by Survivor they should thereof have been Tenants in Common and not Ioynt-Tenants by reason of these words aequaliter dividend Clench Iustice The words totam illam partam go to the House and not to the Estate in it Shute to the same intent If both the Daughters had survived they should have Fee in the House of Robert but not by the Will but by descent in Coparcenery Also when two are dead the Son and one Daughter then it cannot be decided therefore the Will as to that is void and then the Common Law shall take place and put the Messuage to the Issue of one Daughter as to the Sister surviving Gawdy Iustice Here is but an Estate for life in the survivor It hath been Objected That then being but an Estate for life that Estate is drowned by the descent of the Feesimple so as now the Estate limited by the Will is void To which it may be answered That although now upon the matter it be void yet ab inition it
was not so for it became void by matter of later time scil by the descent of the Feesimple For if one of the Daughters had died without Issue before the death of Robert so as the House of such Daughter had come to Robert and the other Sister there had been no Coparcener for the Son had all the Fee and the moyety of it is executed and the moyety expectant and the Sister hath the moyety for life and then the Devise is not good Also here are two survivors so as nothing is to be divided and therefore the Law shall say That the House of Robert is descended scil the Fee of it to the Daughter of Christien and Joan. And so Iudgment was given against the Husband who claimed to be Tenant by the Curtesie of the whole Land and Messuage CCXXXIII Large's Case Mich. 29 Eliz. In the Kings Bench. 2 Len. 82. IN an Action upon the Case the Case was this A. seised of Lands in Fee Devised the same to his Wife till William his younger Son should come to the age of 22 years the remainder when the said William should come to such age of his Lands in D. to his two Sons Alexander and John the remainder of his Lands in C. to two other of his Sons upon Condition Quod si aliquis dictorum filiorum suorum circumibit vendere terram suam before his said Son William should attain his said age of 22 years imperpetuum perderet eam And before such age two of his Sons Leased their parts which accrued to them by the Will of their Father for 60 years and so from 60 years to 60 years till 240 years were expired It was Argued by Bois That Alexander and John are Ioynt-Tenants and not Tenants in Common notwithstanding the Opinion of Audley 30 H. 8. Br. Devises 29. And he argued also That the said Leases from 60 years to 60 years is not within the Condition of the Devise for it is not a sale from which they only are restrained and so is it of a Ioynture made by any of the Sons to their Wives On the contrary It was argued because this remainder doth not vest presently for it is incertain if it shall vest or not For if William should die before he came to the age aforesaid it was conceived that the remainder was void 34. E. 3. Fitz. Formedon 68. A Man deviseth Land to his Wife for life so that if the said Wife be disturbed that the Land shall remain over in Fee scil to D. here is not any remainder until the Wife be disturbed So a Devise unto a Woman so long as she shall remain sole and that then it shall remain to B. here this remainder shall not begin till the marriage And this Condition of restraint of Alienation is good for he is not altogether restrained but for a time scil until his Son shall come to the age of 22 years As a Feoffment upon Condition That he shall not alien to J.S. See 29 H. 8. Br. Mortmain 39. A Lease made for 100 years and so from 100 years to 100 years until 800 years be expired is Mortmain And see the Statute de Religiosis The words are emere praesumat vendere A Lease for years is within such words emere vendere Also by this Lease the Will is defrauded and where the Statute of Gloucester Cap. 3. Wills That if a Man aliens Tenements which he holdeth by the Law of England with warranty the Son shall not be barred and yet if Tenant by the Curtesie be disseised to whom he releaseth with warranty the same is within the said Statute and yet a Release and an Alienation are not the same because they are in the like mischief and if the Sons might make a Lease for 240 years they might make a Lease for 2000 years So if the Sons had acknowledged a Statute of such a sum as amounted to the value of the Land it had been within the Condition It was holden That where the words are Circumibit vendere terram imperpetuum perdert this word imperpetuum should be referred to perdere and not to vendere Fenner This Lease is not within the word Sell For if the Custom be That an Enfant of the age of 15 years may sell his Land yet by that he cannot devise it Note That afterwards the words of the Condition set down in the Will in English were read viz. Shall go about to sell his part shall for ever lose the same And then it is clear that this word imperpetuum shall be referred in Construction to perdere and not to vendere for this word Shall is inserted betwixt both CCXXXIV Mich. 29 Eliz. In the Common Pleas. IN a Formedon The Tenant pleaded a Fine with proclamations The Demandant replyed Nul tiel Record And the truth of the Case was That the Record of the Fine which remained with the Chirographer did warrant the Plea but that which remained with the Custos Brevium did not warrant it and both these Records were shewed to the Court. And Rhodes Iustice cited a President 26 Eliz. Where by the advice of all the Iustices of England where such Records differ the Record remaining with the Custos Brevium was amended and made according to the Record remaining with the Chirographer Which Windham concessit And afterwards the said President was shewed in which was set down all the proceedings in the amending of it and the names of all the Iustices by whose direction the Record was amended were set down in it And that the said President was written and the amendment of the said Record recorded by the Commandment and appointment of the said Iustices in perpetuam rei memoriam And the reason which induced the said Iustices to make such Order is here written because they took it That the Note remaining with the Chirographer est principale Recordum CCXXXV Sir Gervase Clifton's Case Mich. 29 Eliz. In the Kings Bench. 4 Len. 199. IN a Quo Warranto against Sir Gervase Clifton It was shewed That the said Sir Gervase was seised of a Mannor and of a House in which he claimed to have a Court with View of Frank-Pledge and that he without any Grant or other authority usurpavit Libertates praedictas The Defendant pleaded Quod non usurpavit Libertates praedictas infra Messuagium praedict modo forma And upon that there was a Demurrer in Law For the Defendant ought to have said Non usurpavit Libertates praedictas nec eorum aliquam for he ought to answer singulatim And also he ought to have pleaded as well to the Mannor as to the House For if the Defendant hath holden Court within any place within the Mannor it is sufficient See 33 H. 8. Br. Franc. sans ceo 364. An Information was in the Exchequer That the Defendant had bought Wooll of A.B. contra Statutum The Defendant pleaded That he had not bought of A. and B. The Plea was not allowed but he
shall plead That he had not bought modo forma For if he hath bought of A.B. or J.S. the same is not material nor traversable Which Case Cook denyed to be Law. And he also conceived That the Information upon the Quo Warranto is not sufficient For by the same the Defendant is charged to hold a Court and it is not shewed what Court For it may be a Court of Pipowders Turn c. See 10 E. 4. 15 16. acc Shute Iustice The Quo Warranto contains two things in it self 1. A Claim And 2. An usurpation and here the Defendant hath answered but to the Vsurpation but saith nothing to the Claim And it hath been holden in this Court heretofore That he ought to answer to both And he said That it hath been holden in a Reading upon the Statute of Quo Warranto which is supposed to be the Reading of Iustice Frowick That a Quo Warranto doth not lie upon such Liberties which do not lie in Claim as Felons goods c. which lieth only in point of Charter CCXXXVI Venable's Case Mich. 29 Eliz. In the Kings Bench. THe Case was 1 Inst 351. a. Hughs Queries 13. A Lease was made to A. and B. for their lives the remainder to Tho. Venables in tail who 3 Eliz. was attainted of Felony 23 Eliz. there was a General Pardon Tho. Venables 24 Eliz. levied a Fine and suffered a Recovery to the use of Harris Serjeant Office is found Harris traversed the Office and thereupon was a Demurrer It was argued by Leake That Traverse did not lie in this Case 4 H. 7. 7 Where the King is entituled by double matter of Record the party shall not be admitted to his Traverse nor to his Monstrans de Droit but is put to his Petition Which see 3 E. 4. 23. in the Case of the Earl of Northumberland Where Tenant of the King is Attainted of Treason and the same is found by Office. See also 11 H. 4. in the Case of the Duke of Norfolk And the same is not helped by the Statute of 2 E. 6. Cap. 8. for the words are Untruly found by Office but here the Office is true By this Attainder Tho. Venables is utterly disabled to do any Act For by Bracton a Person attainted forisfacit Patriam Regnum Haereditatem suam 13 E. 4. One was attainted of Felony And before Office found the King granted over his Lands Also he is not helped by the General Pardon For before the General Pardon he had a special Pardon therefore the General Pardon nihil operatur as to him But by the Iustices the forfeiture doth remain until the General Pardon Harris to the contrary And he put the Case of Sir James Ormond 4 H. 7. 7. Where the King is entituled by matter of Record and the subject confesseth the title of the King and avoids it by as high matter as that is for the King Traverse in that case lieth and if the King be entituled by double matter of Record if the party avoids one of the said Records by another Record he shall be admitted to his Traverse And so here we have the Pardon which is a Record and that shall avoid the Record for the King And here the Pardon hath purged the forfeiture in respect of the Offence And he said That Tenant in tail being attainted of Felony shall not lose his Lands but the profits only for he hath his Interest by the Will of the Donor and it is a Confidence reposed in him and as Walsingham's Case is he cannot grant over his Estate And see in Wroth's Case Annuity granted pro Consilio impendendo cannot be granted over or forfeited for there is a Confidence See Empson's Case Dyer 2. and 29 Ass 60. If the Issue in tail be Outlawed of Felony in the life of his Father and gets his Pardon in the life of his Father after the death of his Father he may enter But by Thorp If the Issue in tail gets his Pardon after the death of his Father then the King shall have the profits of the Lands during the life of the Issue And the Case of Cardinal Pool was debated in the Parliament 27 Eliz. That he being Dean of Exeter was seised of Lands in the right of his Church and was attainted of Treason It was holden he should forfeit the profits of such Lands But admit That by this Attainder the Land be forfeited yet the party hath the Freehold until Office found See Nicholls Case Plow Com. And also the Case of the Dutchy in Plow Com. acc And here the Pardon hath dispensed with the forfeiture A Tenant of the King aliens in Mortmain before Office found the King pardons it it is good The Lord Poynings conveyed all his Lands to Sir Adrian Poynings who was an Alien and after made a Denizen and the King pardoned and released to him all his right in the said Lands without any words of grant and adjudged the same did bind the King And he said he had a good president 14 H. 7. Where a General Pardon before seisure into the hands of the King was allowed good contrary after a seisure without words of Grant. See Br. 29 H. 8. Br. Charter of Pardon 52. If a Man be attainted of Felony and the King pardons him all Felonies executiones eorundem and Outlawries c. and releases all forfeitures of Lands and Tenements and of Goods and Chattels the same will not serve but for life of Lands if no Office be found but it will not serve for the goods without words of restitution and grant for the King is entituled to them by the Outlawry without office But the King is not entituled to Land until Office be found See Ibid. 33 H. 8. 71. The Heir intrudes and before Office found the King pardons now the Heir is discharged as well of the Issues and profits as of the Intrusion it self But a Pardon given after the Office found is available for the Offence but not for the Issues and profits And he cited the Case of Cole in Plowden where a Pardon was granted mean between the stroak and the death See 35 H. 6. 1. 16 E. 4. 1. 8 Eliz. Dyer 249. Brereton's Case 11 Eliz. Dyer 284 285. Egerton Sollicitor contrary This Traverse is not good for he who traverseth hath not made title to himself as he ought upon which the Queen may take Issue for it is in the Election of the Queen to maintain her own title or to traverse the title of the party At the Common Law no Traverse lay but where Livery might be sued but that is helped by the Statute of 34 E. 3. but where the King is entituled by double matter of Record as in our Case he is no Traverse was allowed until 2 E. 6. Cap. 8. And in such Case two things are requisite 1. That the Office be untruly found 2. That the party who is to be admitted to his Traverse have just title or Interest
to the Bar because he hath not shewed that at that time of the cutting it was not Fawning time Poph. 158. 2 Cro. 637 679. for at the Fawning time his prescription doth not extend to it and that was holden to be a material Exception but because that the Plaintiff had replyed and upon his Replication the Defendant had demurred the Court would not resort to the Bar but gave Iudgment upon the Replication and therefore Nihil Capiat per breve CCXC. Brocas's Case Mich. 30 Eliz. In the Kings Bench. BRocas Lord of a Mannor Covenanted with his Copyholder to assure to him and his Heirs the Freehold and Inheritance of his Copyhold And the said Copyholder in Consideration of the same performed Covenanted to pay such a sum It was the Opinion of the whole Court That the said Copyholder is not tyed to pay the said sum before the assurance made 1 Roll. 415. and the Covenant performed But if the words had been In Consideration of the said Covenant to be performed then he is bounden to pay the mony presently and to have his remedy over by Covenant CCXCI. Ireland and Higgius's Case Trin. 30 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared Owen Rep. 93. That he was possessed of a Greyhound ut de bonis suis propriis and that such a day he lost it and that it came to the hands of the Defendant by Trover and that the Defendant afterwards in Consideration thereof promised the Plaintiff to deliver the said Greyhound to the Plaintiff and shewed his request Ley The Action doth not lie For of those things which are ferae naturae the Plaintiff hath not any property but ratione fundi as of Deer c. And in Trespass for them he cannot say suos but only Quare claufum fregit lepores cepit without saying suos And to that purpose were cited 3 H. 6. 56. 18 E. 4. 14. 10 H. 7. 19. 22 H. 6. 12. 14 Eliz. Dyer 106. Sir John Spencer's Case And it was holden That the Action did not lie And if not for a Hawk much less for a Hound CCXCII Ognell and Trussell's Case Mich. 30 Eliz. In the Star-Chamber A Bill was Exhibited in the Star-Chamber by Ognell of London against one Trussell of Warwickshire setting forth such matter That whereas the said Trussell had for good Consideration sold and assured unto the said Ognell a Mannor Now to gratifie a great person who earnestly desired the said Mannor he for effecting thereof practised by fraudulent means to avoid the said assurance and practised by other persons to be Indicted of a Robbery supposed to be committed before the said Assurance and compounded with the Lord of the Fee that if he be attainted so that by such Attainder the said Mannor should escheat to the said Lord That he upon request should reassure to the said Trussell the said Mannor in Fee after Pardon obtained which was promised to him by the said great Parsonage Vpon which Indictment Trussell was Arraigned and Convicted upon Evidence which he himself procured to be falsly given against him And all that was to extort the Land which was lawfully sold before And upon the Bill Trussell demurred in Law because he is a person attainted of Felony and so dead in Law and therefore shall not be put to answer Hatton Lord Chancellor It is not reason that he be put to Answer for Nemo tenetur seipsum prodere And thereupon the Bill was referred to Anderson and Periam Iustices to Consider If the Defendant should be put to answer or not Who certified unto the Court That although the Defendant be attainted ut supra and so quodam modo dead in Law to all intents yet in Criminal Causes he shall answer Wherefore it was ordered That he answer accordingly CCXCIII Cardinal and Arnold's Case Mich. 30 Eliz. In the Common Pleas. CArdinal brought an Action upon the Case against Arnold and declared That the Dean and Chapter Ecclesiae Cathedralis Cantuar. per nomen Decani Capituli Ecclesiae Cathedral Metropolitan Christian Cantuar. Leased unto Seckford for years the Mannor of Hadley by force of which he was possessed And so possessed granted to the Plaintiff the Office of Stewardship of the said Mannor and the Defendant disturbed him The Defendant pleaded a Lease absque hoc that the said Seckford granted And it was found for the Plaintiff And it was moved in Arrest of Iudgment That that Lease being made in the manner aforesaid was void For the Declaration is That the Dean and Chapter Ecclesiae Cathedralis Cantuar where the Lease is made by the name ut supra Here are two several Names therefore two several Corporations therefore Decanus Capituli Ecclesiae Cathedralis Cantuariensis did not Lease But Decanus Capituli Ecclesiae Cathedralis Metrapolitan Christi did Lease CCXCIV. Anderson and Hayward's Case Pasch 30 Eliz. In the Kings Bench. A Copyholder of Inheritance of a Mannor in the hands of the King is ousted It was holden in such case That he hath not gained any Estate so as he may make a Lease for years upon which his Lessee may maintain an Ejectione firmae but he hath but a possession against all strangers And also in that Case It was holden That if a Copyholder dieth his Heir within age he is not bound to come at any Court during his Non-age to pray Admittance Or to tender his Fine Also that if the death of his Ancessor be not presented nor proclamation made he is not at any Mischief although he be of full age CCXCV. Brightman's Case Pasch 30 Eliz. In the Exchequer Chamber UPon a Writ of Error brought upon a Iudgment given in the King Bench The matter was A. Leased for 20 years to B. two Acres of Land rendring Rent with Condition of Re-entry who Leased one of the said Acres to C. for 10 years And afterwards granted the Reversion of the said Term in the said Acre to A. It was holden by the Iustices That the same was no present suspension of the said Condition because there was not any possession CCXCVI. Fitzhugh's Case Hill. 30 Eliz. In the Common Pleas. IN Dower against Fitzhugh who pleaded in bar a Fine with proclamations and 5 years passed after the death of the Husband of whose seisin she demanded Dower To which the Demandant said That within the 5 years after the death of her Husband she brought a Writ of Dower against the now Tenant and delivered the same to the Sheriff c. but did not shew that the Writ was Returned upon which the Tenant did demur in Law. It was holden by Periam Iustice That the Fine is not avoided by such manner of Claim For the words of the Statute are So that they pursue their Claim or Title by way of Action or lawful Entry within the 5 years but here the Demandant hath not pursued c. therefore she shall not be Retained by the said Statute
nothing found of the Non tenure and therefore a Venire facias de novo was awarded c. But it was answered by the Court That this Verdict had determined both the Issues for the Changeableness of the Entry as the Court conceived upon the special matter aforesaid did determine both the Issues CCCII Scot and Scot's Case Pasch 31 Eliz. In the Kings Bench. THE Case of Scot and Scot in a Replevin 1 Cro. 73. 2 Len. 128. 4 Len. 70. the which see Mich. 29 Eliz. Leon. 2 Part 129. was argued again by Egerton Sollicitor General And he said In some Case This word Proviso is not a Condition but only an Explanation of the Sentence precedent If it be in the Negative and makes restraint of the Common Law then it is a Condition As a Lease for years Proviso That he shall not alien or do Waste And if the Proviso be in the Affirmative and by that the party be bound to do a thing which of common Right he is not bound to do it is a Condition A Lease for years or for life Proviso That he shall pay such a sum Lessee for years Proviso That the Lessee shall pay his Rent generally without limitation of any day it is on Condition And he held by way of Argument in the principal Case That Cestuy que use should take adgantage of conditions which are knit to Estates as for payment of Rent but not concerning collateral things And such exposition of the Statute of 32 H. 8. hath been made there before And admit it be a Condition Yet the Lessor cannot re-enter for the Rent was not well demanded For 20 l. Rent is reserved yearly payable at four Feasts and here the Lessor hath demanded 10 l. scil The Rent of two several Quarters whereas only Rent was demandable in point of the Condition Cook conceived That it was a Condition but every Proviso did not make a Condition The Lessor Covenants That the Lessee shall take sufficient Wood Proviso that he shall not take great Timber that Proviso doth not make the Covenant Conditional but only explains the same A Lease without Impeachment of Waste Proviso that the Lessee shall not do voluntary Waste is not any Proviso but a restraint of the Liberty given before and doth but qualifie the Liberty As Littletons Case Grant of a Rent-Charge Proviso that it shall not extend to charge the person of the Grantor that Proviso doth not make the Grant Conditional so that if the Grantee bring a Writ of Annuity against the Grantor the Grant be determined c. A Lease for years Proviso that if the Lessee shall be disposed to Alien that the Lessor shall have the first offer c. The same is not a Condition which see by Fitzherbert and Baldwin 28 H. 8. Dyer 13. A Lease for years upon Condition That if the Lessee will hold over his Term That then he shall pay so much Rent the same is not Condition for it is at the pleasure of the Lessee c. and it is not compulsory A Feoffment in Fee with warranty Proviso that the Feoffee shall not vouch the same doth not make the warranty Conditional but only abridgeth the warranty Sir Richard Pecksall leased certain Lands for years and Covenanted That the Lessee should take at his pleasure the Trees there growing Proviso That he should not take Trees of such a bigness It was holden in that Case to be no Condition So in the Covenant for further assurance Proviso That the Bargainor shall not be compelled to travail for the making of the assurance above ten miles c. But admit that it be a Condition yet the Lessor upon the matter cannot take advantage of it For he hath not demeaned himself in the demand of the Rent as he ought For he hath demanded Rents due to him at several Quarters and that he cannot demand in point of forfeiture for then the Lessor may leave his Rent in the Hands of the Lessee until it amount to a great sum of 200 or 300 l. and then upon a sudden demand of the Rent when the Lessee is not so well furnished nor can be at so short warning to pay the same And it may be likened to the Case in 27 H. 6. A. granteth to B. ten Loads of Hay percipiend annuatim out of his Meadows in C. for 21 years there the Grantee cannot stay and take all his Hay and the Arrears of it in the later year but he ought to take his Hay every year according to his Grant Causa qua supra And although the Lessor here hath demanded more Rent than he ought yet the Law shall construe the demand good for so much of the Rent which by the Law is demandable in point of forfeiture as where a Man is bound to perform the Award of such an one who awards That he and another shall be bound to another party for the payment of c. Although that the same Award be void as to the Stranger yet it is good as to the party himself and he ought to be bound by it Dr. Mollins Case A Lease for years rendring Rent to be paid at two days in the year Proviso That if the said Lessee do not pay the said yearly Rent that then a Re-entry that Rent is not demandable upon pain of forfeiture but the last day of every year only and not every year according to the Reservation of it The words of our Condition are Provided That if the Lessee do grant his Term to his eldest Son that he shall pay but so must Rent the same without doubt is not any Condition yet he shall pay so much Rent doth amount to so much Note In the Argument of this this Case was put A. is bound to make such an assurance to B. of such Land as C. shall devise C. deviseth That A. and his Wife shall make such assurance A. is bounden upon the peril of his Obligation to do it See as to this point of the Proviso 5 Eliz. Dyer 222. The Archbishop of Yorks Case It was adjourned CCCIII. Mich. 31 Eliz. In C. B. THis Case was put to the Court a Copyholder did alledge the Custom of the Mannor to be That the Lord of the Mannor might grant Copies in the remainder only with the assent of the Tenants and not otherwise and that Copies in Remainder otherwise granted should be void It was demanded of the Court If this were a good Custom or not The Iustices did forbear to deliver any Opinion in the Case Walmesley Serjeant That it was a void Custom for that the Law doth not take notice of Copyholders Estate they being but Tenants at Will in the Iudgment of the Common Law and therefore it was not reasonable that their Wills and Pleasures should limit the Lord of the Mannor in granting of Estates by Copy and therefore he said such a Custom was void and he compared it to the Case in 2 H. 4. 27. That a Custom That a
the first Lessee and so by acceptance of this new Lease the first Lease is determined And now we are to see if the things in the former Grant are necessary to be recited the Estate in the Land and the Tenant not necessary The Reservation Condition Covenant and the Date The reason wherefore the Estate ought to be recited is to this purpose that the King might know and be enformed how far the Land is encumbred with other Estates c. but that reason is of no effect in our Case when the second Patent is made to the first Lessee for by the acceptance of the new Estate the first Interest is gone wherefore of that there needs no recital The second reason wherefore such former Lease ought to be recited is to the intent That the new Patentee may not have colour or countenance by reason of his Patent to do wrong to the first Patentee who hath the present possession by disturbing of him by Entry or Suit for all the truth of the matter appears in his own Letters Patents and the true Estate of the Tenant in possession But that reason hath not any force in our Case for the second Estate is made to him who hath the former Estate The reason wherefore the present Tenant ought to be mentioned in the second Letters Patents is so as the Queen may be ascertained what manner of person he is who is the present possessor for it may be he is such to whom the Queen hath given such Estate upon special favour for his good Service and in recompence thereof and that she will not disgrace the party so much as to give his Farm to another over his head which might be much to the discomfort and prejudice of him in possession which the Queen peradventure would not do if she had full intelligence of it but rather advantage him with it and not let it to any other person But in our Case here there is not any such matter of mischief But it is good to consider what Tenant ought to be specified in the Recital Assuredly the most sure way is the Patentee himself to whom the Lease was originally made although he be dead or hath assigned his Interest over For it may be dangerous to rely upon the Tenant who hath the possession for it may be that another hath the Interest although he hath the possession and then the recital is false wherefore it is best to say by way of recital Cum dimisimus c. And as to the Land the same also ought to be recited by the same name in such form and by the same words as it was granted before in the former Grant and yet if the name was mis-recited in the former Grant it ought not to be so in the second As if the King Grant the Mannor of Little-Court by the name of the Mannor of Litt-cote or the Mannor of Wellington by the name of the Mannor of Welton the same is good by the Statute But if a new Grant is to be made of the same in which the first Grant is to be recited now the former mis-recital shall not be put in ure but the very name but in this special manner that is where the King hath demised the Mannor of Little-cote by the name of the Mannor of Litt-cote c. So where a Mannor is known by two names and the Queen leaseth the same by one of the said Names and afterwards Grants the same by the other name The Recital ought to be That whereas the Queen hath demised the Mannor of D. by the name of the Mannor of S. c. And as to the recital of the Estate the Habendum in the first Patent ought to be recited and all that which preceeds the Reddendum for in that the Estate is fully contained But here in our Case such recitals are not necessary for it is impertinent to make recital of the same which is determined eo instante that the new Patent is made and that by reason of a matter precedent although that all be done eodem instanti and as to an Instant the same is not to be considered in Law as it is in Logick as a point of time and no parcel of time But in our Law things which are to be done in an instant have in consideration of law a priority of time in them As Lessee for life makes a Lease for years they both Surrender to him in the Reversion the same Surrender which is made in an instant shall in Law be understood to have degrees The Surrender of Lessee for years to the Tenant for life and then the Surrender of Tenant for life So in our Case the determination of the first Lease shall be first 1 E. 3. 6. The Tenant took the Seignioresse to Wife had Issue the Wife died the Husband shall not be Tenant by the Curtesie for although the Seigniory was in him at the time of the Marriage yet by priority in Law it ceased so as no seisin of the Seigniory was during the Coverture So in our Case eo instante that this new Patent is made the first Estate is determined yet in construction of Law the Surrender shall be said precedent and then the said Estate needs not to be recited For if there had been an express Surrender in fact there had not been any doubt that recital was not necessary Ergo neither in the Case of a Surrender in Law. As to that which hath been Objected That the Grant of the Queen cannot enure to two Intents scil to make a Surrender and also to make a new Lease The same Rule is true where both Intents enure and work against the King But whereas the one Intent serves and works for the benefit of the King it is otherwise As in our Case This Surrender is for the benefit of the King therefore it shall be taken c. as 6 H. 8. The King Grants Land to another durante beneplacito and afterwards the same Patentee purchaseth a new Estate from the King here needs not any recital of the former for the second Estate is made to the first Patentee and the first Estate is determined by the acceptance of the second 3 Eliz. The Case of the Earl of Arrundel was this The Lord John Gray being Lessee for years of a House called Hull-rake of the Lease of the Queen afterwards took a Grant from the Queen of the Custody of the same Messuage with a Fee for it and that was without recital of the former Lease and the Grant holden good and yet it did enure to two Intents to a Surrender of the Lease and a Grant of the Custody but both the Intents were not against the Queen for the Surrender was for Her benefit As to the Lease made 13 Eliz. it is utterly void for mis-reciting of the date of the former Lease made 2 Mar. for the very date of the said Lease was the 11th of May and in the Recital it is the 21 of May. For
the Plaintiff That the Grant was before the Lease It was holden by the Court That this Release was meerly void for here was not any Interest to be released but a power to present and an Authority annexed to the person And afterwards by the Award of the Court the Writ was abated See 11 Eliz. Dyer 253. CCCXLI Woodward and Bagg's Case Hill. 32 Eliz. In the Kings Bench. WOodward Libelled in the Spiritual Court against Bagg and Nelson for Tythes of certain Lands called Christen Hill. Roll. 63. 2 Len. 29. 3 Cro. 188. Owen Rep. 103. The Defendant sued a Prohibition and surmised That one Pretiman was seised of the said Land and in Consideration of 5 l. by him paid to the said Parson It was agreed betwixt them That the said Pretiman and his Assigns should be discharged of Tythes of the Land during his life and afterwards the said Pretiman leased the same to the Defendants upon which a Prohibition was granted And it was holden That the party need not to make proof thereof within 6 Months for it is not within the Statute because a Composition with the same Parson But now a Consultation was granted because the Agreement is shewed but no Deed of it which cannot be any discharge But if it had been for a time scil unica vice it had been good but for life not Also it is not an express grant of the Tythes but only a Covenant and Agreement that he shall be discharged upon which he may have an Action of Covenant but not a Prohibition It was said on the other side That although without Deed Tythes cannot pass in point of Interest yet by way of discharge they might Cook It was holden betwixt Pendleton and Green That upon such words of Covenant and Agreement the party should hold the Land discharged of Tythes which was denyed For if the Grantee of a Rent Charge will grant it to the Tenant of the Land the same without Deed is not good And there was very lately a Case between Westbede and Pepper Where it was agreed betwixt the Parson and one of his Parish That for 20 s. Rent by the year the Parishioner should be discharged of Tythes for 20 years if he so long lived And it was holden That no Prohibition should lie upon it a fortiori where the Estate is for life Gawdy In the Case of grant of Tythes for life a Deed is requisite but here it is noâ— but a Contract for Mony c. See 21 H 6. 43. Wray If it had been for years it had been good enough but here is not any Contract but only a discharge for life which cannot be during his life without Deed. And afterwards the Record was read which was That Concordatum aggreatum fuit between the parties pro omnibus decimis during the time that the one should be Parson and the other Occupier of the said Land That in Consideration of 5 l. the said Pretiman and his Assigns should hold the said Land discharged of Tythes Wray The same is no Contract but a Promise for he doth not grant any Tythes Afterwards a Consultation was awarded CCCXLII Sanderson and Ekins's Case Mich. 32 Eliz. In the Common Pleas. IN Debt upon a Loan by Sanderson against Ekins who waged his Law and at the day being ready to wage his Law the Court examined him And upon examination it appeared That the Plaintiff and Defendant were reciprocally endebted the one to the other And upon Conference betwixt them before the Action brought there was an Accord betwixt them That the Plaintiff should give to the Defendant such a sum which he had done and that the one should go quit against the other And it was the clear Opinion of the whole Court That upon the matter the Defendant could not wage his Law for a Debt cannot be extinguished by word CCCXLIII The Dean and Chapter of Windsors Case Mich. 32 Eliz. In the Exchequer IN this Case It was moved If he who hath a Rectory impropriate 1 Len. 146. and by the Statute of 26 H. 8. is to pay an Annual Rent for the same in the name of a Tenth and thereby is discharged of all First-fruits and Tenths shall have the Priviledge of the Exchequer for he is to pay the same sum yearly And it was the Opinion of the Barons That he should not For so every one who is to pay any Tenths or First-fruits should draw other who have sued him into the Exchequer And so all Controversies concerning Tythes and Parsonages should be drawn thither which should be a great prejudice to the Spiritual Courts But Egerton Solicitor vouched a Case viz. Coniers's Case The King gave a Parsonage to a Priory in Frankalmoign and the Tythes thereof being withdrawn The Prior impleaded him who withdrew the Tythes in the Exchequer And it was holden That the Prior should have the Priviledge for the King is endangered to lose his Patronage or rather his Foundership if the Rectory be evicted Gent Baron The Kings Tenant in Chief or he who pays First-fruits or he who holds of the Queen in Fee-Farm shall not have in such respect the Priviledge here CCCXLIV Sledd's Case Mich. 32 Eliz. In the Kings Bench. SLedd of Great Melton in the County of Oxon 2 Len. 146. was assessed to 7 s. for a Fifteenth And upon refual to pay the same the Collector distrained the Beasts of Sledd and sold them Thereupon Sledd brought Trespass against him the in the Kings Bench. And the Collector exhibited a Bill against Sledd Who shewed by his Counsel That the Statute of 29 Eliz. which enacted this Fifteenth Provides That the said Fifteenth shall be levied of the moveable Goods Chattels and other things usual to such Fifteenths and Tenths to be Contributory and chargeable And shewed further That his Beasts distrained fuerunt tempore districtionis upon the Glebe-Land of a Parsonage presentative which he had in Lease which Glebe-Land is not chargeable usually to Fifteenths granted by the Temporalty nor the Cattel upon it It was the Opinion of the Iustices That although the Parson himself shall pay Tenths to the King yet the Lay-Farmor shall pay Fifteenths and his Cattel are distrainable for the same upon the Glebe-Lands of the Parsonage And therefore it was awarded That the Distress and the Sale were lawful CCCXLV. Sir Walter Water's Case Pasch 32 Eliz. In the Exchequer IT was moved in this Case 2 Len. 77. 4 Len. 44. That if one hath a Iudgment in Debt and upon the same within the year sueth forth a Capias ad satisfaciendum although that he doth not prosecute it by the space of 2 or 3 years yet when he pleaseth he may proceed upon it and shall not be put to a Scire facias And of that Opinion was Philips Manwood I grant That if one hath sued forth a Writ of Execution and the same be continued by Vicecomes non misit Breve for 2 or 3 years yet the Plaintiff may proceed upon
where shall be good where not p. 147 Of intrusion where there is no Record to prove it if the error lieth upon it p. 147 Issues joyned A not joyning in it is helped by the Statute of Jeofails not a mis-joyning in it p. 66 Upon a Plea which is tryed in a foreign County and found for the Plaintiff in what Court the Judgment shall be p. 137 Jure Patronatus Where the awarding of it is necessary where not p. 98 Jurors Where upon pain of Attaint they are to take notice of a transient thing done in another County p. 77 K. KING Not bound to take notice of a Condition made by a common person p. 126 Cannot take an interest in Land without matter of Record p. 155 L. LAchess In pleading where it shall turn to the prejudice of the Parties p. 63 Leases For certain years habendum to his Executors if good and what interest passeth and to whom it passeth p. 32 Power to make Leases not to extend to Leases to be made in reversion p. 132 Where Leases are void by the Statute of 31 H. 8. of Monasteries p. 164 Made by Dean and Chapter where void by the misrecital of their name of Corporation p. 220 Livery Of Lands in Ward not to be sued by parcels p. 25 M. MAintenance Where a Grant made shall be said to be for maintenance within the Statute of 32 H. 8. p. 79 Misnosmer Where shall not prejudice a Devise p. 19 N. NOnsuit If after a Demurrer p. 28 O. OBligation By what words good by what not p. 19 Where the word Quemlibet in an Obligation shall make it joynt and not several p. 206 Taken by one Blacksmith of another Blacksmith that he shall not exercise his Trade in such a Town void p. 207 To be good although not made after the usual form p. 223 May be assigned to the King without Deed enrolled p. 234 Office Trove Personal things are in the King without Office found p. 145 Where an Estate shall be setled in the King without Office found where not p. 186 187 188 Outlawry Where a Man is to annul an Outlawry his person shall not be disabled by another Outlawry p. 232 P. PArtition The Writ was Quare teneant Quatuor mille acras where it ought to be 4 Mille acrarum yet good p. 94 Where it is not necessary to shew and settle forth the Estate particularly in the Writ p. 231 Petition Where an Entry is not lawful upon the King without suing a Petition p. 15 Plenarty Returned by the Bishop where not good p. 138 Pleadings and Pleas Where not good for incertainty p. 8 A Conveyance cannot be pleaded unless it be sealed p. 94 Of Non Damnificatus generally where good p. 118 In a Writ of Right upon a Custom to hold a Court of the Plea must be shewed before whom the Plea is to be holden by the Customs p. 148 Of Letters Patents and not saying Sigillo Angliae sigillat not good p. 193 Of the general Issue in Wast viz. Null wast fait where dangerous p. 203 Of Outlawry in the Plaintiff after Imparlance in Trover and Conversion good p. 215 Praemunire Where the not prosecuting of it by the Attorny-General shall take away the suit of the Informer p. 139 Prescription Of every Inhabitant to have Common if good p. 202 Of what good and where and of what not p. 202 To have Estovers at liberty in cutting down Wood in a Forest unless in Fawning-time where good p. 218 Priviledge Of the Exchequer not granted to him who pays First-fruits and Tenths p. 258 Possibility Not allowed to the Kings servants in the Exchequer who is sued in B.R. p. 22 Not grantable or demiseable p. 157 Prohibition Not grantable upon a suggestion that Tythe had been paid to the Vicar c. and time out c. p. 203 Proviso Where a Condition where a Covenant where a Limitation p. 225 Q. QVo Warranto Of Liberty Plea in it what good what not p. 73 184 R. REcital The not recital of the names of the Occupiers of a Lease of Lands do not avoid the Demise thereof p. 235 Records A Deed acknowledged to the King and delivered to the Barons of the Exchequer is a Record though not mentioned p. 146 Of a Fine remaining with the Custos Brevium amended and made according to the Record made and remaining with the Chyrographers p. 183 Recusants Where Lands conveyed by a Recusant shall be subject to the Statute of 23 Eliz. concerning Recusants and the penalties thereof p. 148 Release To a Tenant at sufferance where not good p. 152 By the Feoffees of Cestuy que use to his Lessee for years how it shall enure p. 196 Receit By a Termor for years to save his Term Remitter p. 2 10 93 Rents Where upon a Fine levied of the Land the Rent passeth without Attornment p. 103 Payment of it upon an extent of it and of the reversion saves the danger of a Condition supposed to be broken p. 113 Where apportioned where not p. 125 126 Granted by Fine varyeth from the Indenture yet shall pass p. 136 Suspended yet grantable p. 154 Where it passeth by the name of a Mannor p 168 Reserved to be paid at two Feasts and not said by what portions the Lessee hath the liberty to pay it in what portions he pleaseth p 235 Repleader After Issue joyned where granted p. 90 Request Licet saepius requisitus good and where it must be special p. 73 206 S. SAle By an Enfant Executor of goods where binds him p. 144 Scire Facias Where it lyeth upon an Extent supposed to be satisfied p. 155 Where upon an Alienation of an Advowson without Licence by matter of Record not by matter of Fact p. 175 Statute Merchant and Staple Acknowledged when void by the death of the party p. 157 Surrender Of a Copyhold to uses p. 4 Cannot be of a Lease for years to begin at a day to come p. 95 Tenant for life remainder in Fee of a Copyhold he in the remainder may surrender in the life of the Tenant for life if there be no Custom to the contrary p. 259 T. TAil p. 87 Tender Of Rent how and where to be made p. 4 Tenancy In Common where must be pretended and not given in evidence p. 94 Traverse Where good where not p. 97 Trespass Quare clausum fregit not maintainable by him that hath but the Ear-grass after the first mowing p. 213 Tryal If Tythes lie in such a Parish or in such a Parish tryable at the Common Law p. 128 V. VAlue Of Lands what value shall be intended p. 114 Venire facias Where the place must be mentioned in it p. 171 172 Where from the place where from the Mannor p. 193 Upon every Original must contain the issue in it p. 269 Verdict Not good because too general p. 64 Not Good because it doth not extend to all the points of the Declaration p. 95 Given and found after a Supersedeas
Appendant or in gross A. 323. A Curtilage and Garden are Appurtenant to a House and pass by or without the word Appurtenant C. 214. Apportionment If the Lessor grant part of the Land the Grantee shall have no Rent A. 252. C. 1. Upon devise of Lands rendring Rent part being Capite Lands A. 310. If a Rent reserved upon a Lease of a Warren may be apportioned C. 1. None of a relief because intire C. 13. If a condition of Re-entry upon several Reddend may be apportioned C. 124 to 127. Rent may be apportioned in the Kings Case which cannot in the Case of a common person C. 124 to 127. Arbitrement Debt lieth upon it although void until it so appear A. 73 170. In such Action the Plaintiff needs shew no more than makes for him A. 73. To find sufficient Sureties to pay c. void A. 140. Without Deed cannot dispose of a Free-hold A. 228. To do one thing or another one being void yet the award is good A. 304 305. C. 62. To pay Mony to a Stranger is good A. 316. C. 62. That one Party shall have a Term for years gives the interest of the Term contra where it is that the one shall permit the other c. B. 104. Award to become bound it is a good performance if the Bond be delivered to a Stranger and after tendred to the Plaintiff B. 111 181. To do an Act to a Stranger who will not accept thereof the Bond is not forfeit C. 62. To do an Act to a Stranger not void C. 62. 212. Award that the Defendant and a Stranger become bound is good as to the Defendant though void in part C. 226. Ayd Copy-holder shall have Ayd of his Lord in Trespass A. 4. Grantee of Tenant in tail after possibility shall have Ayd yet the Grantor should not A. 291. Tenant at Will shall have it but not Tenant at Sufferance B. 47. Verdict upon an Issue upon a Counter-plea of Ayd is peremptory to the Defendant B. 52. Alien If the Kings Confirmation of a Feoffment to an Alien do avail A. 47. If the Grant of an Office to him by the King be a denization C. 243. Assent and Consent If the Conuzee of a Statute c. taken by Capias be discharged by Assent of the Conusee his Lands are also discharged A. 230 231. Assets Mony received by Executors for Lands devised to be sold to pay Portions if it be Assets A. 87 224 225. B. 119. What other things shall be Assets A. 225. B. 7. Lease for life and after his death to his Executors for 10 years if this Term be Assets C. 21 22. If Mony received by the Heir for Redemption of a Mortgage be Assets to pay Debts C. 32. Executors by Award receive 50 l. and release a Bond of 100 l. the whole 100 l. is Assets C. 53. Assignee If Assignee of parcel may have covenant against Lessee for years A. 251 252. Who is a sufficient Assignee A. 252. Executors or Administrators A. 316. Assize Of a Rent rendred in Fee by Fine A. 254. The manner of adjorning and giving Judgment where the Disseisor pleads Foreign Pleas B. 41. Of fresh-force in London C. 169 170. Attachment Of Goods in a Carriers hands 189. A Debt by Judgment Stat. Recogn c. cannot be attached A. 29 30. No Mony taken in Execution A. 264. What is a good Plea for him in whose hands Mony is attached A. 321. If the Plaintiff shall recover costs against him in whose hands c. A. 321. Mony for which an Action is depending cannot be attached C. 210. One cannot attach Mony for a Debt before the Debt be due C. 236. Corn is not attachable C. 236. A Debt upon Record cannot be attached C. 240. Attainder A person attainted cannot be charged with Actions A. 326 327. If a person attainted may be put to answer in personal Actions A. 330. What is forfeited to the King by Attainder of Tenant for life or in Tail in Remainder B. 122 123 to 126. Differences of Attainder and Conviction B. 161. If one attainted of Robbery shall answer in criminal Cases C. 220. Attaint What Heir shall have it A. 261. Upon the Statute of 23. H. 8. 3. A. 279. If it lie where the Plaintiff might avoid the Judgment by Error A. 278. Attornment To whom and how it must be made A. 58. Quoad part is good for all A. 129 130 234. Upon a Lease for years in Reversion A. 171. C. 17. An Abator may Attorn A. 234. The definition thereof A. 234. By the first Lessee binds the Tenant in remainder for years or life A. 265. Good by the Tenants of the Land to him in remainder after the death of Tenant for life A. 265 To the surviving Grantee of a Reversion good A. 265. To the Grantee of the Reversion of a Mannor by Lessee for year of the Mannor passes the Mannor and binds the Tenants A. 265. After condition broken is good to vest the Estate by the breach of the Condition A 265. The Relation of an Attornment A. 265. B 222. Who is compellable by a Quid Juris clamat to attorn A. 290 291 B. 40. C. 241 242. No Attornment is necessary upon selling a Reversion of Copyhold A. 297. C. 197. In what cases necessary A. 318. C. 103. Lease of Demesnes by Grant of the Mannor the Reversion passeth not without Attorment B. 221 222. An Advowson appendant to a Mannor shall vest without Attornment of the Tenants B. 222. What Words or Consent amount to an Attornment C. 17. Lessor levies a Fine to the use of himself and his Heirs Lessee must Attorn C. 103 104. If it be necessary where the Grantee is in by Statute of Uses C. 104. It is necessary to pass Services of a Mannor C. 193. Tenant of the Land must attorn upon granting over a Rent-charge C. 252. Reversion of a Term a Lease of part of the Term being first made cannot pass the Term and Rent reserved upon the first Lease without Attornment but a Term without Rent reserved he may C. 279. Lessor grants the Reversion to Lessee and A. B. no other Attornment necessary C. 279. Attorny J.S. Praesens hic in Cur. in propria persona sua per A.B. Attorn suum how construed A. 9. Lessee for years cannot surrender by Attorny A. 36. How to make a Deed by Attorny Ibid. B. 192 200. May essoign for a Copyholder but not do services A. 104. To three conjunctim divisim to deliver Seisin A. 192 193. How Attorny must make Livery where the Lands lie in several Counties A. 306 307. In an Indenture C. 16. Audita Querela Upon a Statute Merchant the Suit shall be in the Kings Bench But upon Statute-staple in the Chancery A. 140 141 228. contr 303 304. Process therein is either Venire facias or Scire facias A. 140 141. Upon a Statute Staple upon payment of the Mony in the Court of C. B. quod nota the party is bailed A.
141. Upon a Statute Merchant for that it had but one half of the Seal good A. 228 229. Lies to discharge the Land if the Conusor taken by Capias be let at large by the Conusee his consent A. 230 231. B. 96. To avoid Execution upon a Recognizance for that the Debt is attached in London A. 297. Upon a voluntary Escape by the Sheriff it lies B. 119. By one Bail to be relieved for that the other Bail was taken by a Capias and discharged by the then Plaintiff C. 260. For one in Execution at the Suit of an Administrator durante minori aetate for that the Infant is come to Age C. 278. Averment A Demurrer need not to be averred A. 24. Inducement to an Action need not to be precisely averred A. 123 124. A consideration to make a Bargain and Sale may be averred though not mentioned in the Deed A. 170. Where against a Record return of a Sheriff Deed enrolled A. 183 184. None against a Bishops Certificate A. 205 206. Where necessary to aver the continuance of the particular Estate A. 139 255 66 281. B. 50 94 95. Where want of such Averment is aided by Intendment A. 281. C. 42 43. Devise to A. may be averred to be any one of that Name B. 35. Where he who pleads must aver all things to make good his Plea or the other party must shew it C. 40 to 43. Ancient Demesne For what Goods only they are priviledged from Toll A. 232. B. 191. Fine levied thereof avoidable by a Writ of Deceit A. 290. Pleading thereof A. 333. B. 190 191. Authority Shall be strictly pursued if not coupled with an Interest A. 74 285 286 288 289 bis Where Authority is reserved by Statute or Deed to make Leases If Leases in Reversion may be made C. 134. B. Bailiff SHeriffs Bailiffs shall not be prejudiced by the mis-return or not return of the Sheriff A. 144. What power a Bailiff of a Mannor hath B. 46. Bail. Discharged upon the Principal his Offer to render himself A. 58. No Scire facias lies against them until a perfect Judgment be against the Principal B. 1 2. Cannot be charged by any Custom without a Scire facias B. 29 30 87. If to a Scire facias against them they may plead Error in Fact in the first Judgment B. 101. A Lord shall find Bail ad solvendum debitum upon an Action removed out of London B. 173 174. Bail upon a Writ of Error is not to render the Body being then in Execution but to pay the Debt C. 113. Baron and Feme To what intent the Husband is the Femes Assignee A. 3. Where they shall joyn in Trespass A. 105. The Wife served with a Sub-poena the charges to be given to her Stat. 5 Eliz. cap. 9. A. 122 123. They are at Exigent no Supersedeas shall be received for the Baron without the Feme A. 138 139. The Baron cannot recover things in Action due to the Wife but must first take Administration A. 216. Leases made by the Baron of the Femes Land the Lease is void after their deaths A. 247. What Conveyance of the Wife of Lands given by the Baron is within the intent of the Statute 11 H. 7. A. 261 262. C. 78. They being Tenants in Tail joyntly the Baron suffers a Recovery this binds not the moiety of the Feme A. 270. If an Exchange by them of the Wives Land bind the Feme A. 285. Trover by the Feme and Conversion by the Baron and Feme Action must be against them both A. 312. Payment to the Feme is no good Bar A. 320. What act of the Baron is a breach of the Condition annexed to the Femes Estates B. 35 48. What value the Parapharnalia of a Viscounts Wife in Jewels is B. 166. Devise that she shall take the profits until the Son come of Age her second Husband surviving her shall not take the profits B. 221. C. 78. cont If an Interest be devised C. 9. Lands given to the use of the Wife for life remainder to the Heirs of Baron and Feme the Remainder is executed for a moiety C. 4. The Feme cannot give Licence to one to do a Trespass in the Husbands Land C. 267. By Agreement of the Baron to a Desseisin to the use of Baron and Feme the Free-hold vests in them both but the Feme is no Disseisor C. 272. Bargain and Sale. By Parol of Houses good and the manner thereof A. 18. There must be a Consideration for the doing thereof but it is not traversable A. 170. Of Trees Habend Succidend infra 20 annos If the Bargaince may cut them after 20 years A. 275. This Conveyance works by the Statute of Uses B. 122. C. 16. Of Trees during life of the Lessor the Lessee must cut all at one time in one Close and cannot leave off and begin again C. 7. Give grant agree confirm covenant all work by Bargain and Sale and by the Statute of Uses as well as the words Bargain and Sale C. 16. Bar. Where non damnificatus is a good Bar e contra A. 71 72. Must be good to a common intent and must be confest avoided or traversed or conclude the Defendant by Estoppel A. 77. By an Obligation in Bar of Assumpsit how to be pleaded A. 154. Non Dimisit and what advantage may be taken thereupon A. 192 206 207. To an Action brought by a Sheriff against a Prisoner for escaping Bar that since the escape the Plaintiff had acknowledged satisfaction A. 237. Non Concessit per liâ—eras paten A. 183. Plene Administr before notice where good A. 312. Ejectione Firme a good Bar in Trespass against the same party A. 313. C. 194. Judgment in Trespass a good Bar in Appeal A. 319. Good to common Intent A. 321. What is a good Bar for a time though it destroy not the Action for ever A. 331. Where Non concessit or that riens passa per le fait must be pleaded B. 13. If in Slander for calling one Forsworn it be a good Bar to say the Plaintiff did not depose B. 98. No good Bar to a Contract that a Stranger became bound for the Mony B. 110. To an Action quod Waren fregit no Bar to say it is the Defendants Free-hold for it may be so and that the Plaintiff hath Warren there too B. 202. If a good Bar in Assumpsit that the Plaintiff discharged the Defendant B. 203 204 214. The like in Covenant C. 69. A Stranger is bound that Lessee for years shall pay his Rent for his Farm It is a good Bar that the Lessor entred C. 159. Bastardy The manner of pleading and taking Issue therein A. 335. By pleading of the Bastardy specially how Bastard it shall be tryed per Pais C. 11. Or if the Bastard be not party to the Writ C. 11. Bishop Where he shall be tryed per Pares A. 5. What Lease shall bind the Successor A. 234 235. Is no Clerk
no judgment can be given C. 14. Where as to part a Plea is pleaded which is tryable by Certificate or otherwise than by Jury if the other which is tryable by Jury be not continued the whole is not discontinued C. 268. Conuzance de Pleas. Not grantable if the Plaintiff be priviledged in the Courts at Westminister C. 149. Copulative Disjunctive Where a Copulative shall be taken as a Disjunctive e converse A. 74 244 251. Where a thing is to be done Copulative both the matters must be averred A. 251 252. Corporation Upon a grant to them of an Acre in a great Field how they must make election A. 30. Must acknowledge Deeds and levy Fines c. by Warrant of Attorny A. 184. Where the names of the Heads of what Corporations must be shewed in pleading A. 306 307. How they must make a Lease by Attorny where they are out of possession B. 97 98. Cannot be Feoffees to Uses B. 122. Leases by them must be made by their true name of Incorporation as to substance A. 159 to 163 215. B. 97 165. C. 220. Corpus cum Causa See Habeas Corpus Covenant To assure Lands the Covenantor is not bound to seal a Deed with Covenants A. 29. To repair upon warning Action lies by Grantee of the Reversion though the House was ruinous before his Title A. 62. That the Premisses should be exonerated De omnibus oneribus c. how broken A. 93. C. 44. That the Lessee shall take Fireboot super dicta premissa extends not to Lands excepted A. 117. To help and assist the Plaintiff in a Suit in the Defendants name and not to abate it the Defendant being a Feme Sole takes Husband yet is the Writ but abateable A. 168 169. Upon the words Dedi Concessi A. 179 278. B. 104. By Lessor to repair the Lessee in his default repairs if the Lessee may retain Rent for it A. 237. What Covenant makes a Condition and shall defeat an Estate A. 246. Upon the words absque impetitione denegatione Covenant lies if the party himself disturb A. 277. For quiet enjoyment from all claiming under the Covenantor the breach must say how he claimed A. 318. Performance of Covenants in the Disjunctive must be especially pleaded A. 311. Where it lies upon a Proviso A. 318. To make an Estate or repair a House how performance must be pleaded B. 38 39 53. To make assurance binds not to release with Warranty B. 130. One Covenants to assure such Lands as shall descend to him the same to be yearly worth 40 l. If all the Lands by descent are to be assured C. 27. That the Lessee shall enjoy without interruption of any If interruption by one who hath no Title be a breach C. 44. Covenant to leave the Houses in as good plight as he found them C. 44. If upon a Covenant to repair a Recovery be had the Lessor can sue no more C. 51. If one be interrupted by a Decree in Chancery that is no breach of a Covenant to enjoy without lawful Eviction C. 71. Who shall do the first act where the Covenant is reciprocal C. 219. B. 211 212. That he hath made no former Assurances but that the Land shall descend raises no Uses C. 7. Count. Where in a Quare Impedit the Writ may be general and the Count special A. 226 227. Where in a Writ of Entry Sur disseisin brought by Tenant in tail A. 231. How to Count where one of two Debtors or Trespassors are Utlawed C. 202. Countermand In what case the Bailor of Goods may Countermand the authority of the Bailee B. 31. Courts and Offices of the Court. The Common Bench cannot write to the Kings Bench for a Record A. 90. If upon pleading a Title be found or confest for the King the Court ex Officio must prosecute for the King A. 194 323. A Court to admit Copyholders may be held out of the Mannor A. 289. In what case the Kings Bench may hold Plea under 40 s. A. 316. What duty due by a Subject to the King gives the Subject priviledge in the Court of Exchequer B. 21. How and by what authority Nisi Prius are tryed out of the Exchequer B. 87. All the Courts except the Common Bench are variable as to the place and must be shewed where they sit B. 102 103. Courtesie of England In what case the Husband be where the Wives Estate is defeasible by condition A. 167 168. By custom of Mannor B. 109. If the Husband shall be Tenant by the Courtesie of the Seigniory of the Wife where he himself was Tenant C. 247. Court Christian Their Sentences there are good until revoked by other Sentence B. 169 to 172 176 177. Cui in vita What is a good Bar therein A. 53. Custom Of free Bench within a Mannor A. 1. That the Lord may seise for conviction of his Tenant of Felony A. 1. Where it shall be taken strictly A 1â—2 B. 109. Of Bristol that a Covenant shall bind by Parol is good A. 2. That a Copyholder may Lease for years ad pasturand non ad colend ' A. 16. What Customs are void being unreasonable A. 217. C. 81 82 226 227. What are good and reasonable A. 217 328. C. 227. That the Lord may take the profits during the Nonage of the Infant Tenant good A. 266. Customs of the Kings Courts are Laws B. 85 86. Custom alledged infra Regnum Angliae if good B. 114 115. A good Custom that Robbers at Sea shall share the Goods though one Ship did but stand by and look on B. 182. D. Damages INcreased by the Court super visum vulnerum A. 139. No costs upon discontinuance by original Stat. 32 H. 8. 15. A. 115. Intire assessed upon one promise to perform an Award of two matters whereof one void how adjudged A. 170 171. An Action upon the Stat. of 8 H. 6. of Forcible entry treble Costs and Damages A. 282. B. 52. If the Jury ought to assess any Damages in Account A. 302. In what Actions Costs by the Statute 32 H. 8. vide tit Stat. B. 9 52. C. 92. In account the Plaintiff hath Damages B. 118. The Plaintiff shall have Costs assessed but by one Jury though several Trials by several Juries B. 177. Grantee of a Reversion shall recover Damages in Covenant but for things done since the Grant C. 51. The first Jury which tries the first Issue may assess Damages for the whole Trespass C. 122. If the Plaintiff in Replevin be non-suited after Avowry for Rent the Court may assess Damages without a Writ of Enquiry C. 213. If joynt Damages be assessed for two Trespasses one of which lieth not the Plaintiff cannot have Judgment C. 213. Where the Court will abridge Damages C. 150. Dean and Chapter hujusmodi An Arch-Deacon Prebend what they are A. 13 205. What places have two Chapters and if Leases confirmed by one be good A. 234 235. The Chapter must be party to a
C. 64. The manner of swearing the Jurors C. 162. Upon Issue upon the meer Right the Tenant must first give evidence C. 162. In a Writ of Right Sur Disclaimer it is a good Bar that the Lord since accepted the Rent from the Tenant C. 272. Duresse A good Bar in an Action of Account A. 13. It may be pleaded without a Traverse C. 239. What is what is not Duresse 239. Dutchy A Case thereof and of Grants made under that Seal B. 151 152 162 163 164. E. Ejectione Firme LIes of Title in London A. 19. Lies not de Tenemento A. 118. Where it lies not but upon an actual ouster A. 212. If the Plaintiff hath no Title nor the Defendant any the Plaintiff shall not recover A. 215. Et bona catalla cepit A. 312. Lies not of Copyhold upon the Lords Lease but of the Copyholders Lease A. 328. Where one pleads and the other demurs and the dem is adjudged for the Plaintiff the Plaintiff cannot relinquish the Issue and take Judgment as in Trespass B. 199. De uno Cubiculo better than de una Camera C. 210. De Romea C. 210. De Messuagio sive Tenemento is not good C. 228. The Plaintiff may relinquish his Damages where part of the Action fails and take Judgment for the other C. 228. Ejectione Custodie For a Lord of the Heir of his Copyholder A. 328. Election Of an Acre in a great Field sold to a Corporation how they must make Election A. 30. To whom given where the condition is in the disjunctive A. 70. Devise of an Acre in a Field the Devisee must make his election in his life A. 254. Grant of a Mannor except B. Arce where is two of that name the Grantor hath the election A. 268. Award in the disjunctive and one part is void yet the other must be performed A. 305. Where one hath election to claim an Estate by two manner of Conveyances by one Deed C. 16 17 128. Covenant to stand seised of Lands in S. of the yearly value of 40 l. who hath the election C. 27. Cannot be transferred over to the prejudice of another C. 154. Elegit Vide Extent and Execution If after Elegit retorned that the Lands are already in Extent the Plaintiff may have a Capias A. 176. If it be executed but not retorned Quid operatur A. 280. B. 12 13 49 50. Granted against an Executor upon Devastavit retorned B. 188. Lessee for years may pay his Rent to the Plaintiff before Suit C. 113. Embleament If Conusee of a Statute or Recognizance or the Conusor shall have the Corn sowed B. 54. Entry Estraying of Beasts sua sponte no Entry A. 110. What Act is an Entry what not A. 209 210. Entry of him who claims by Devise or Condition broken where not taken away by a descent A. 191 209 210. Semble cont B. 147. An Heir may bring an Action for Nusance without Entry A. 273. Husband Leases the Land of his Wife Tenant in Tail and dies the Feme must enter before she make Leases A. 122. In what case Cestuy que Use is put to his Entry A. 258. By death of Tenant in Tail without Issue the Freehold vests in him in Remainder without Entry A. 268. Where Trespass is maintainable without Entry A. 302. B. 47 97 98 137. Where the Entry of him in Remainder upon forfeiture of Tenant for life is lawful B. 61 62 63. The Patentee of the King must enter where there is an Intruder B. 147 148. The Lessee levies a Fine to the use of himself and his Heirs if he may re-enter without Attornment C. 103. Disseisee must re-enter before he can licence one to put in Cattle C. 144. He in Remainder after the death of Cestuy que vie may bring Trespass without Entry G. 152 153. By entry of a Stranger upon the Kings Farmer he who enters hath gained the Term of the Farmer C. 206. He who hath an under Lease in Reversion of part of the Term from a Lessee of a greater Term cannot enter to defeat the former Estate but the Lessee may C. 269. Two Tenants may plead several Tenancy in this Action B. 8. What is demandable in a Writ of Entry A. 169. Entry sur disseisin in London C. 148. Error Upon a Bill of Intrusion in the Exchequer A. 9. B. 194. By Journies accompts in a real Action against an Heir upon the death of his Ancestor Quaere A. 22. Judgment for the Defendant reversed and Judgment given pro quer ' A. 33. Of an Assise A. 55 255. Where it lies of a Judgment in Ireland A. 55. C. 159. Lies not in the Common Bench A. 55 159. Nor upon the first Judgment in Trespass or Account A. 193 194 309. B. â—68 What Heir shall have it to reverse a Recovery A. 261. 291. Of a Quid juris clamat A. 290. Upon a Judgment in a Writ of Disceit A. 293. Who must joyn or sever in Error in the realty A. 293 294 317. It is Error in a Judgment in an Inferior Court if no Plaint be A. 302. To reverse a Fine for Infancy and reversed in part A. 317. By an Executor to reverse an Uâ—lary in Felony against their Testator A. 326. Where by reversal of one Record another is annulled A. 325 326. A second Writ of Error in nature of Diminution to remove part of a Record B. 2 3. De recordo quod coram vobis residet B. 2 3. C. 107. The principal shall have no Writ of Error upon the Judgment against the Bail B. 4. In fact viz. the death or infancy of one of the Defendants after Verdict upon a Judgment in the Kings Bench B. 54. C. 96. Upon a Judgment in the Exchequer by whom allowed B. 59. Lies of a Judgment in London Sessions upon an Indictmenr B. 107. If Error lies against the Queen unless the party petition for the Writ B. 194. Upon a Judgment in a Scire facias in the Chancery of Chester B. 194. There must be two Writs to reverse two Fines B. 211. If in such case the one Fine may be pleaded to the one Writ and the other Fine to the other Writ B. 211. If upon a Writ of Error of Fine the Plaintiff is non-suit a Stranger may have a Writ de recordo quod coram vobis residet C. 107. Commission to three Judges to examine a Judgment which was given in London and reversed in the Hustings there in Assise of Fresh-force C. 169. If the Bishop who pleads that he hath nothing but as Ordinary must joyn in the Writ of Error upon a Quare Impedit C. 176. He who disclaims shall not have Error C. 176. Escape Lyeth against the Sheriff although the Execution might be avoided by Audita Quereia or Error A. 3. B. 93 86. In what case a Vill shall be amerced for the escape of a Felon A. 107 C. 207. The Sheriff lets one escape whom he took by Cap. Utla when he had a Capias
ad satisfaciend against him in his hands yet escape lies not A. 263. If it lies where the party was charged in Execution while he was Prisoner for Felony A. 276. It lieth not for escape of a Bail if no Scire facias issued against him B. 29 30. Was first given by equity of the Stat. W. 2. cap. 11. B. 9. No Costs upon non-suit in this Action B. 9. If the old Sheriff keep any Prisoner after he is discharg'd of his Office it is an Escape B. 54. If one escape upon an illegal Writ the Court will aid the Sheriff though he cannot deny to execute the Process B. 86. The Sheriff cannot seise the party who escapes by his consent B. 119. Escheat If a Remainder depending upon an Estate for life Escheat the Seigniory is extinct A. 255. Essoine In an Ejectione Firme adjorned A. 134. The Term in the eye of the Law begins the day of Essoines cont as to lay gents A. 210 211. In Quare Impedit B. 4 185. The office and force of an Essoine B. 4. If the Defendant appear and be essoined no Amerciament ought to be against him B. 185. An unnecessary and feigned delay C. 51. per Dyer Estoppel Count of a demise generally Defendant pleads nihil habuit in Tenementis the Plaintiff may estop the Defendant by pleading the Deed A. 156 204 206. Who shall take advantage of an Estoppel A. 157 158. The Jury ought to find it though the party hath not pleaded it A. 204 206. If Deed enrolled be an Estoppel to the party to plead Non est factum A. 184. Where the Court will take notice thereof if not pleaded A. 184. What Deeds made void by Statute are good by Estoppel against the party who made them A. 308 309. By matter of Record B. 3. Where one shall be estopped by a recital in a Bond Indenture c. where not B. 11. C. 118. What Estoppel made by the Ancestor shall bind the Heir B. 57 58. A Verdict for the Plaintiff upon a plene administravit estops the Sheriff of that County where the Tryal was to retorn nulla bona B. 67. By Deed indented B. 73. One seised in Fee takes a Lease of the Herbage of his own Land he is not estopped to claim Fee B. 159. No Estoppel by a Record if the Judgment be reversed C. 52. Jurors are not estopped by an Estoppel implied unless pleaded in the Record C. 209 210. Estovers Prescription for them within a Forrest A. 2. To a Messuage new built upon an old Foundation B. 44. What Estovers Lessee for years may take of common right C. 16. If Lessor grant Fire-boot Lessee may take Trees if there be no Under-wood C. 16. Evidence What Evidence may be given upon a Not Guilty in Trespass A. 301. C. 83. What upon a Nil debet in Debt for Rent B. 10. He who is in the affirmative must give Evidence first C. 162. Exception Count of a Demise of Demesne Lands and Evidence that the Demise was with an Exception yet good Evidence A. 139 140. Where in a Writ there must be a Forsprize B. 162. What may be excepted out of a Lease for years A. 49. De grossis arboribus crescen ' A. 61 116 117 246. Where a Praecipe shall demand a House with or without an Exception for part A. 252. Exchange By Baron and Feme who levy a Fine of the Land taken in Exchange the Feme may enter into her own Lands A. 285. Execution Where the Defendant taken by a Cap. pro fine shall be in Execution for the Plaintiff A. 51 276. The Defendant rendring himself shall not be in Execution unless the Plaintiff pay it A. 58. Execution shall be of the Goods which the Defendant had at the time of the Execution awarded A. 144 145. By Fieri facias good after the Defendants death A. 144. By Writ of Possession the Sheriff must turn all persons out of Doors A. 145. By Capias ad satisfaciend after Elegit retorned that the Lands were first delivered to others by Extent A. 176. The Sheriff upon a retorn Habendo may enquire the kinds of the Cattle if the Count or Avowry be incertain A. 193. One in Prison by Utlary against whom the Sheriff hath a Capias ad satisfaciend Escape lies not though the Sheriff do not charge him with the Capias ad satisfaciend ' A. 263. Stayed by Rule of Court after Judgment A. 276. Where the Defendant taken and in Prison for Felony is chargeable in Execution A. 276 277. B. 85 86 87. What are well executed not being retorned and what not A. 280. B. 49 50. But one Execution upon a joynt Praecipe in debt Secus upon a several Praecipe A. 288. After Execution sued the Defendant cannot sell his Goods bona fide A. 304. One attaint of Felony and also charged with Executions shall not be discharged of the Executions contra of Actions A. 326 327. B. 84 to 89. If the Execution be continued no Scire facias is necessary B. 77 78 87. In what Cases a Capias in Execution lay at Common Law and in what now per Statute B. 86 87. Capias lies against the Bail in B. R. and C. B. in a common Action and upon Audita Querela B. 88. If the Body of a Lord be liable to Execution B. 173 174. Executors Scire facias Executoribus c. without their names is good A. 17. How Judgment shall be against them where part only is found in Assets A. 67 68. Where Assets is found for part and after Goods come to the Executors hands how the Plaintiff must sue forth Execution scil by Scire facias A. 67 68. No plea against an Executor that the Executor was cited to appear to prove the Will and made default and that adm was com to the Defendant A. 90 91. Where Judgment shall be de bonis propriis where de bonis testatoris A. 94. The Executor gives his Bond for Mony a good Administration C. 111 112. Debtor makes the Creditor his Executor A. 112. What is a good refusal of Executors to prove the Will A. 135. Devise that Executors shall sell a Reversion sale by Parol is good and the Vendee is in by the Will A. 148. Debt by single Contract lies not against them though they do not demur but plead A. 165. Action by them de bonis asport in vita testatoris and the form thereof A. 193 194 205. One made Executor if he shall permit J. S. to hold a Term for three years when his power begins A. 229. By grant of Bona Catalla Goods of the Testators pass A. 263. Executor of Executor how to be named A. 275. In what case they shall recover Arrears of Rent in Fee by the Statute 32 H 8. 37. A. 302 303. Plene administravit before notice of the Suit the original being in a forein County A. 312 69. B. 60. The Executrix of the Debtee marries the Debtor she may have an Action for the
Middlesex may inquire by inquest of Office of the Customs in London C. 127. Inrollments If a Lease enrolled be lost the Jur. is not of any effect A. 329. Where a Deed may operate both by the Statute of Inrollment and of Uses C. 16. What is a good Plea against a Deed enrolled A. 183 184 B. 121. How the time is accompted for the six Months A. 183 184. If it be enrolled non refert if it were acknowledged C. 84. How a Corporation must acknowledge a Deed C. 84. Intendment Where two several quantities of Acres shall not be intended all one A. 44. Where the intent of a Man is traversable ib. 50. Where issuable B. 215. Where and how the Law construes the Intent of one who enters in Land A. 127. Where mentioning a Rent of 8 l. and after saying 8 l. Rent is intended the same Rent without the word praedict ' A. 173. How far the Law takes matters by Intendment in Wills Deeds c. A. 204 210 211. St. Martins and St. Michaels day what Feasts by Intendment A. 241. Where want of an Averment is aided by Intendment A. 281. C. 42 43. Where Baron and Feme are vouched it is intended to be in right of the Feme A. 291. If a Service be reserved according to the value of the Land it is intended the then present value B. 117. C. 114. Seisin in Fee is intended to continue until the contrary appear C. 42 43 96. Intrusion Bar therein by Grant of the King A. 9. Into the Rectory and receiving the Tithes A. 48. Disceit is no Bar therein for nullum tempus occurrit Regi B. 31 32. The Information is prout patet per recorda If the Defendant plead a Title If he need to traverse nul tiel record B. 30 31. If every continuance is a new Intrusion where the first Entry was lawful B. 206 207. Joynt-Tenants and Tenants in Common One Joynt-Tenant of the next avoidance to a Church Ecclesia vacante releases to his Companion nihil operatur A. 167. Cannot sue one the other in Trespass for their Lands A. 174. C. 228 229. Where two shall be joynt-Joynt-Tenants or Tenants in Common of an Estate tail A. 213 214. Two Joynt-Tenants are disleised by two to one of whom one Joynt-Tenant releaseth the other enters he is Tenant in Common to the Relessee A. 264. One Joynt-Tenant cannot grant to or enfeoff his Companion A. 283. If a Joynt-Tenant and a Tenant in Common may joyn in debt for Rent and make a general Count where one is to have a greater share B. 112. Devise to two to be equally divided if it be an Estate in Common or a Joynt B. 129. C. 9. If one Joynt-Tenant accept a Lease of the Land from his Companion he is estopt to claim by Survivor B. 159. Pleading of Joynt-Tenancy in abatement by Fine or Deed Stat. 34 E. 1. 8. B. 161 162. Joynder en Action Action Plea. Three Tenants in a Praecipe cannot vouch severally A. 116. Two Defendants justifie severally and the Plaintiff says joyntly de injuriis suis propr ' c. and good A. 124. Tenant for life and he in remainder in tail joyn in prescription A. 177. Where two Joynt-Tenants or Tenants in Common shall joyn in one Formedon A. 213 214. In what real Actions who shall joyn or sever A. 293 294 317. In a Writ of Error the like A. 293 294. Who shall joyn in a Writ of Error or in Conspiracy or Attaint A. 317. Three joyn in Action upon the Statute of Hue-and-Cry and adjudged good Quod est mirum A. 12. Covenant to two quolibet eorum both must joyn B. 47. C. 161. If one is obliged to account to three he may do it to any one B. 75 76. Debt upon a Judgment against three cannot be brought against one only B. 220. Two Infants Joynt-Tenants cannot joyn in a Dum fuit infra aetatem C. 255. Ioynture What alienation of a Feme of her Joynture is within the Statute 11 H. 7. 20. A. 261 262. Iourneys Accompts If Error lies for the Heir upon death of his Ancestor by Journeys Accounts Quaere A. 22. Issues joyn One joynt replication de injuriis suis propriis to two justifications adjudged good A. 124. Is called in the Civil Law Lis contestata A. 278. If an Advowson be appendant or in gross A. 323. How it shall be joyned upon pleading Ancient Demesne A. 333. Upon special Bastardy A. 335. Issue in an Inferior Court triable out of their Jurisdiction not triable in the Courts at Westm B. 37. Mis-joyn for that the Plaintiff in Covenant altered a word from the Covenant B. 116. In Replevin upon absque hoc that he took them as Bailiff B. 215. Iudgment Upon the Defendant rendring himself in discharge of his Bail A. 58. The Defendant pleads a frivolous Plea which is found for the Plaintiff Judgment shall be entred as by Nihil dicit Nullo habito respectu c. A. 68. In a Sur cui in vita for part of the Messuage demanded A. 152. In Ejectment Quod quer recuperet possessionem is as good as Termin A. 175. Quod Capiatur well enough although pardoned by Act of Oblivion A. 167 300. Shall not be for the Plaintiff if by the Record it appears the Plaintiff hath no cause of Action or that the Action is brought before the Debt due A. 186 187. B. 99 100. C. 86 87. Entred as of a day past where the Defendant dies while after Verdict the Court takes time to consult of the Law A. 187. In what cases the Judges may give Judgment by sight of an Almanack A. 242. Judgment for the Plaintiff in Trespass although the Defendant died before the Writ of Inquiry returned A. 236. In Forcible Entry for treble Costs and Damages A. 282. Nihil de fine qui a pardonatur not good because the Defendant does not plead the Pardon A. 300 301. In Trespass or Case may be arrested after the first Judgment A. 309. Arrest of Judgment shewed in writing in the Exchequer B. 40. Judgment final upon a Verdict in a Counter-plea in Aid B. 52. Where it shall be reversed in part or in all B. 177 178. Against the Heir where his Plea is found against him is general against all Lands C. 3. Iurisdiction The Spiritual Court hath Jurisdiction where right of Tithes comes in question between two Parsons A. 59. In what Cases the Spiritual Court may have Jurisdiction for Slanders B. 53. If the Court hath not Jurisdiction of the Action all is void but other faults make the proceedings only voidable B. 89. One cannot plead to the Jurisdiction of the Court after Imparlance C. 214 215. Iour in Court dies Iuridicus What things may be done upon day extrajudicial B. 206 207. Iustices and Iudges Whether Justice of Peace in a Vill may be by Prescription A. 106. In what Inferior Courts who are Judges A. 217 228 242 316. B. 34. If a Judge may take
Tenant of Freehold Contra in an Assise A. 193. Of Nient comprise in a Recovery A. 184 185. Avowry for Damage Feasant in Copyhold Lands leased to the Avowant The Plaintiff pleads a prior Title to the Mannor in Fee and Ill for he ought to have said he was seised until the avowant entred praetextu of the Lease A. 288. B 80. In what case one may plead Not Guilty in Trespass A. 301. Of a Feoffment by two or a Bond made to two where one is dead A. 322. B. 220. Where one may plead nil debet or the special matter B. 10. To let for Rent of an Eviction by Title B. 10. Where one must plead non concessit or that nothing passed by the Deed B. 13 Where in pleading a place certain must be alledged Vide Lieu County Where to an Information for the King the Defendant cannot plead Not Guilty but must answer specially to the Tort B. 34. Of performance of Conditions to make a good Estate repair a House c. B. 39. Where de injuria sua propria is good Replication with and without a Traverse B. 81 102 103. If a Stranger be bound that the Lessee pay his Rent he may plead entry and expulsion B. 115. Where a Plea must conclude Judgment if Action or If he ought to answer B. 160. That he paid all Debts owing by him to J.S. he ought to shew what Debts C. 3. No pleading of a thing conveyed per nomen c. but by Deed C. 9 10. Plea vicious in Debt upon a Recognizance concluding Judicium si Executio c. C. 58. Of Entry into Religion Resignation and Divorce C. 199. No pleading to the Jurisdiction of the Court after a general Imparlance C. 214 215. One cannot plead an Attachment after Imparlance C. 232. Pledges The King and an Infant need find none B. 4 185 186. Pluralities If an Arch-deaconry make it A. 316. Posse Comitatus Cannot be but out of the Chief Court at Westui C 99. Possession Unity of Possession of 3 purparts of a Mannor does not make the whole liable to a charge granted out of two parts A. 85 86. Unity of Possession of Land and Tithes out of which c. does not extinguish the Tithes A. 248 331 332. Entry of the Brother in one County into the Demesnes of a Mannor extending into two Counties does not make a possessio fratris A. 265. If the possession of a Reversion after a Lease for years make a possessio fratris of Copyhold Lands C. 70. Whether Unity of possession of Lands and Common in the King of Abbey Lands extinguish the Common C. 128. If recovery of Dower against the Brother take away a possessio fratris C. 155 156. What possession makes a possessio fratris C. 273. Power to make Lease by Act of Parliament not pursued C. 72. Premunire Lies not for the party If the Kings Attorny release A. 292. For trying a Freehold without Jurisdiction Ibid. For proceeding in the Admiralty for a matter done upon the Land it must appear in the Libel to be done on the Lands else this Action lies not B. 183. Prerogative See King. That the King shall have a Fine upon alienation of his Tenant in Capite A. 8. The Court ex officio must preserve it A. 63 322. Where the King shall have Primer Seisin A. 65 66. Lands come to the King which are charged with a Rent no distress lies but a Petition of Right A. 191. One cannot cross the King his Title but he must intitle himself A. 202 294. To present a Clerk upon a Lapse vested in the Bishop whose See is after void A. 235. Where the King shall have Primer Seisin and Ward A. 253 284 285. To charge Executors Ad. Computand ' B. 34. The King needs not demand a Rent to entitle himself to a Re-entry A. 12. B. 134. C. 125. May distrain for a Rent-Seek C. 125. May reserve a Rent to a Stranger C. 127. Shall have account against Executors C. 198. The King shall not have his Prerogative to be first satisfied of a Debt which comes to him by Assignment if a Prior Extent be executed C. 239. Upon such Extent the King shall have the whole Land though the Conusee could have but a moiety C. 240. Prescription For Estovers within a Forest A. 2. Cannot be to take all the profits c. but may be to have Fold-course or the like A. 11 142. For Common when the Land is not sowed A. â—3 No Prescription though no memory to the contrary if the commencement be known A. 10â— B. 28. That none shall exercise the Trade of a Baker in a Market Town without the Plaintiffs Licence A. 142 143. Laid in Tenant for life and him in Remainder in tail and yet good A. 177. Where good to have Suitors to a Court and to take Toll c. A. 217 218. Void because unreasonable A. 232 314. C. 41 42 81 82. Good and reasonable A. 232 233 314. C. 41 42. Spiritual Persons may prescribe in non decimando A. 241 248. Though such Prescription be interrupted by the Land coming to Lay-hands yet it is not destroyed A. 248. What words apt to make a Prescription what not A. 273. None against a Statute B. 28. Not a good Prescription That every Inhabitant in a Town shall have Common B. 44 45. C. 200. In pleading a Prescription in a Vill it must be pleaded that the Vill is Antiqua c. B. 98. How to prescribe for a Way with Horses and Carriages C. 13. In pleading it it must be said that the Prescription was once executed not only quod potest c. C. 83. Presentment to a Church Before Induction the King may repeal his Presentation A. 156. B. 164. Presentee of the King by Lapse dies before Induction Videtur that the King may present again A. 156. Grant of the next Presentment made when the Church is void is also void A. 167. The difference between it and a Collation and the definition of them A. 226. If the Bishop die after Lapse devolved to him the King shall Present A. 235. What kind of Interest it is Ibid. If an Archdeaconry become void by the Deacon being made Bishop the King shall present and not the Patron C. 151. The King cannot revoke his Presentment but by express words and reciting the first C. 243. Primer Seisin The Heir shall pay a third part of the profits for Primer Seisin C. 25 54. Principal and Accessary If the Attainder against the Principal be reversed the Accessary is discharged A. 325. Priviledge A person who is priviledged by reason of an Action depending in the Common Bench is priviledged for the Goods of Strangers in his hands so that they cannot be attached A. 169 189. What duty to the King gives a Subject the priviledge to sue in the Exchequer B. 21. If both parties are previledged in the Courts at Westminster allocatur querenti B. 41. One priviledged after Judgment quod computet B.
thereupon But then the Question was If the Tenants should be put to plead the same in discharge or that the same should be discharged without pleading because it appeareth upon Record That he who aliened was but Tenant in tail in Remainder For there was an Office found of that which was pleaded by another in another Cause The Opinion of the Court was Where such matter appeareth of Record as by Office Livery c. there the party needs not to plead such matter in discharge for the pleading of it is to no other purpose but to satisfie the Court by the Record that the matter is so as the party hath alledged and therefore the Barons gave Order That the Process against the Tenants of the Lord Dacres should be stayed CCCXXXVI George Ap-Rice's Case Trin. 32 Eliz. In the Exchequer IN the Case of one George Ap-Rice The matter was Ante 121. That Tenant in tail after possibility of issue extinct assigned over his Estate unto A. against whom he in the Reversion brought a Quid juris clamat and Iudgment was given that he should attorn and upon his refusal he was committed to Prison and divers Fines set upon him and estreated in the Exchequer It was moved That these Fines were imposed upon the party against Law. And the Opinion of the Court was That when Iudgment is given in a Quid juris clamat for the Plaintiff Distresse infinite shall be against the Defendant to bring him in to attorn and when he comes in if he refuse he shall be imprisoned until he attorn It was also holden by the Court That the Fines were not lawfully assessed and imposed upon him And it was said That it had been adjudged in a Court of Wales That the Assignee of Tenant in tail after possibility of issue should attorn upon which Iudgment a Writ of Error was brought in the Kings Bench and there upon good advise the said Iudgment was affirmed For although it be true That Tenant in tail after possibility shall not be compelled to attorn yet that is a priviledge which is annexed to his person and not to the Estate and by the assignment of the Estate the priviledge is destroyed CCCXXXVII Harris and Wing's Case Mich. 32 Eliz. In the Kings Bench. More Rep. 4. 5. IN the Case between Harris and Wing The first point was That the Lease made by Queen Mary was void 1. Because a former Lease of Record was not recited in the Letters Patents of it The reason wherefore such recital ought to be is not as hath been alledged by Cook Quia circa solium Regis subsistunt justitia veritas and then when there is a former Lease in Esse the King makes a Lease in possession the same cannot stand together so as there is not Justitia Veritas but the very reason thereof is so high that he cannot take c. but by matter of Record and if that he mistaken it makes all void and therefore In Petitions of Right Ante 5 6. and Monstrans de Droit If the King be not enformed of all the Titles all is void And therefore in the Case between Sir Moyle Finch and Throgmorton which now depends in the Exchequer which was this The Queen made a Lease for years rendring Rent with a Proviso That if the Rent be behind That the Estate shall cease the Rent is behind the King granted the same over to Sir Tho. H. It was first moved If the same Lease should cease without Office. And it was holden by Popham and many other grave and learned Men upon a Conference That the said Lease should cease without Office for the Contract which is upon Record is determined and ceased by which the Estate which was created by the said Contract shall also cease without Office. But yet the Lessee continued in possession notwithstanding that and took the Profits but thereof after office found he rendred recompence to the Queen And it was holden there upon the said Conference That the Queen in her Grant to Sir T.H. of the said Estate which was now ceased ought to recite that Lease For the Tenant is in possession and could not be punished for his occupation before Office. So in the Case of the Vicarage of Yatton 17 Eliz. Dyer 339. The presentment being devolved to the Queen by Lapse the Ordinary collated A. and afterwards the Queen presented B. who brought a Quare impedit depending which A. proved another Presentment of the Queen without mention or recital of the first Presentment and the same was holden void For in that the first Presentment is not recited nor the pleasure of the Queen to revoke it and therefore it was in disceit of the Queen So the Case 18 Eliz. Dyer 352. An Abbot leased for 60 years the Lessee made a Lease for 80 years the Reversion came to the King the 60 years expired the second Lesse surrendred to the King ea intentione that the King would re-grant the same to him for 20 years remaining The King reciting the Indenture and Surrender ex certa scientia granted for 20 years It was holden by the Court That the Grant was void because the King was misenformed c. It hath been Objected That here needs no recital for that the Lease to be recited is ended eo instante that the new Lease beginneth Sed distinguenda sunt tempora aliud est facere aliud perficere the first Lease is ended when the new is perfected and the Great Seal put to it The second reason wherefore the Lease shall be void is because otherwise the Grant of the Queen shall enure to two Intents 1. To make a Lease 2. To accept a Surrender and how can the Queen accept a Surrender of an Estate of which she hath not notice for She is not enformed of it by any Record without which She cannot take notice of any thing See 7 E. 4. 30 31. Baggotts Assise The King granted an Office to an Alien the same shall not enure to make him a Denizen for then it shall enure to two intents c. The words of the Grant of Queen Mary are Omnia tenementa nostra and If by that a Reversion shall pass was the Question Certainly In verbis ambiguis Intentio sumenda est Then here in our Case by this Patent is other Land which should pass and the Reversion is nostra but in property not possession Wherefore here Nostra shall be restrained to that which is in possession Where there are general words in Grant of the King they ought to be served but if they can be served they shall be taken in a common and general sense but the words shall not be stretched But if they cannot be served then they shall not be void but the King shall be rather prejudiced and always the Grant of the King either may be served or taken to a common intent 2 H. 3. 4. Quaelibet Concessio Domini Regis capi debet stricte contra Dominum