Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	fee_n	son_n	tail_n	1,431	5	9.9517	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A47716	The second part of Reports and cases of law argued and adjudged in the courts at Westminster in the time of the late Q. Elizabeth, from the XVIIIth to the XXXIIId year of her reign collected by that learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases and of the matters contained in the book.; Reports and cases of law argued and adjudged in the courts at Westminster. Part 2	Leonard, William.	1687 (1687)	Wing L1105; ESTC R19612	303,434	242

entred upon Ross the Plaintiff and enfeoffed Rockwood who enfeoffed Weston Coke for the Plaintiff The Case is no more but where a man hath issue a son and a daughter by several women and Deviseth his Lands to his son and the heirs of the body of the Father lawfully begotten in which case if the Son dieth without issue the Tail is extinct and the Daughter shall never have the Land for she doth not take by way of Reversion or Remainder and she doth not take in possession because the possession was in Jeofry who was the Heir of Henry c. And these Cases were vouched 1 Roberge's Case 2 E. 3. 1. to Tail John Mandevile took to Wife Roberge and Mandevile gave land to Roberge haeredibus ipsius Johannis quos ipse de corpore praedict Robergiae procreaverit there the Book is That the Formedon was Quae M. dedit Robergiae haeredibus dict Johannis quos ipsae de corpore dictae Robergiae procreaverit Et quae post mortem praefat Robergiae R. filii haeredis dict Johannis Mandevile haeredis ipsius Johannis de corpore dicto Robergiae per dict Johannem procreat c. and the same Writ awarded good which Coke denyed to be Law. And he cited the Case of Dyer 4 and 5 P. and Ma. 156. A. gives Lands to one for life the Remainder thereof rectis haeredibus masculis de corpore dict A. legitime procreat remanere inde rectis haeredibus dict A. who hath issue two Sons and dieth A. dieth the eldest Son hath issue a Daughter and dieth without issue male And he conceived first That in this case the limitation of the Remainder in Tail to the right Heirs of the body of the Donor is void for the Donor cannot make his own right Heir a Purchasor without departing with the Fee-simple of his person But admitting the limitation is good he said we are to consider If this entail to the Son once vested and commenced in the possession of the Son when he dieth without issue male The Estate be spent or that the same shall go to the younger Son And he said that it was the opinion of Dyer in that case That the younger Son was inheritable to the said Estate-tail as in the Case of Littleton 82. where the condition is That the Feoffee shall give the Lands to the Son and Heir of the Husband and Wife and to the Heirs of the body of the Father and Mother lawfully begotten and the Husband and Wife before any such Gift die having issue and afterwards the Feoffee gives the Land to the Son and Heir of the Husband and Wife and to the Heirs of the body of the Father and Mother begotten the condition is well performed and if the eldest Son to whom the Gift is made dieth without issue the youngest Son shall inherit And in a Formedon in the Reverter upon such a Gift the Writ shall be Et quae post mortem of the eldest Son ad ipsum reverti debet because the Husband and Wife obierunt sine haerede de corpor suis inter eos exeunt And such was also the Opinion of Saunders But Brook Brown and Catlin were clear contrary And he said that Bendloes Serjeant who reporteth that Case doth affirm That Iudgment was given in that case That the Estate-tail was spent and that the Daughter should have the Lands and not the second Son and so he said That in the Case at the Bar the estate-Estate-tail was spent But he said That he conceived that in the principal case at Bar there is not any Estate-tail at all because the words upon which the Estate-tail is conceived are incertain and too general viz. secundum antiquam Evidentiam for there might be many ancient Evidences for the words may extend to Evidences which cut off the Estate tail as well as to the Entail of Guntwardy He also argued That the Partition was void and then the Lessee had a good interest for certain parts of the Lands for Partition cannot be made of an Vse and he said that he agreed That Partition betwixt Husband and Wives of Lands if it be equal should bind the makers because they are compellable to make Partition of them but contrary of an Vse for that they are not compellable to do Also in the principal Case the Land entailed is allotted to one of the Coparcenors which is not good but during the Coverture and afterwards void and then the Lease is void but in part and so the Conusance is not good Atkinson contrary and he said I conceive that by words of Relation a Fee may pass without the word Heirs See 39 Ass 12. The Father seised of Lands in fee doth enfeoff his younger Son in fee and the Father continues the possession of the Lands claiming to hold them at the will of the Son and the Son coming into the Town where the Lands do lie in the hearing of his Neighbours saith to his Father You have given to me these Lands naming them As fully as you have given them to me I give them back to you again and the same was holden to be a good Gift to the Father 43 E. 3. 22. The King seised of a Manor to which an advowson is appendant by Escheat or Conveyance gives the said Manor as entirely as such a one held the said Manor before the Escheat or Conveyance the Advowson shall pass without special mentioning of it And so here in our Case at Bar This Will hath reference to the ancient Evidence and it shall be as strong as if he had set down the special words of Entail and to ancient Evidence before the Entail it cannot extend for then a fee should pass and then the Devise should be void because to his Heir and the word Antiqua Evidentia shall have reference to the Charter which was made by Guntwardy for that was an ancient Evidence made two hundred years past and he cited the Case of 40 E. 3. 8. the Provost of Beverley's Case and conceived that the Estate was not spent for that the estate-Estate-tail was in Jeofry as the fee was in him Lands are given to the Father for life the Remainder to the Son in Tail the Remainder to the right Heirs of the Father the Father dieth the Tail and the fee are in the Son but yet after the death of the Son without issue the Lands shall be in the Brother's Son by descent and not as Purchasor And in our Case Jeofry was in in the Tail as right Heir of Henry and if Jeofry dieth without issue his Brother of the half bloud shall have the Lands as in the Case before cited of 40 E. 3. but that shall be in Tail by force of the Devise And he said That in this case here the Partition was made good enough although it were of Lands in use for a man might contract for an Vse without Deed 11 H. 4. Partition 156. Partition of an Advowson without Deed

Postea 82 83. IN Ejectione firmae It was found by special Verdict That Mr. Graunt was seised of the Lands c. and by his Will devised the same to Joan his Wife for life and farther he willed That when Richard his brother shall come to the age of 25 years he should have the Lands to him and the heirs of his body lawfully begotten Mr. Graunt died having issue of his body who is his heir Richard before he had 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 ad finem nihil habuerunt and if this Fine should bind the estate-Estate-tail was the Question And the Iustices cited the case of the Lord Zouch which was adjudged M. 29 and 30 Eliz. Tenant in tail discontinues to E. and afterwards levieth a Fine to B. although the partes ad finem nihil habuerunt yet the Fine shall bind the entail But the Serjeants at Bar argued That there is a great difference betwixt the Case cited and the Case at Bar for in that Case the said Fine was pleaded in Bar but here the Fine is not pleaded but found by special Verdict To which it was said by the Court that the same was not any difference For the Fine by the Statute is not any matter of Estoppel or conclusion but by the Statute doth bind and extinguish the Estate-tail and the right of it and Fines are as effectual to bind the right of the entail when they are found by especial Verdict as when they are pleaded in Bar And by Periam Collateral Warranty found by Verdict is of as great force as if it were pleaded in Bar And afterwards Iudgment was given That the Estate-tail by the Fine was utterly destroyed and extinct XLIX Jay 's Case Trin. 29 Eliz. In the Common-Pleas JAY brought an Action of Debt before the Mayor of Shrewsbury c. and declared upon an Obligation which was upon condition to pay money at London and issue was there joined upon the payment And it was moved how this issue should be tried viz. 4 Inst 205. If it may be removed by Certiorare into the Chancery and thence by Mittimus into the Common-Pleas and from thence sent into London to be tried and when it is tried to be remanded back to Shrewsbury to have Iudgment See 21 H. 7. 33. Vpon voucher in the County Palatine of Lancaster the Law is such in matters real for real actions cannot be sued but in the said County Palatine but in personal matters it is otherwise for such actions may be sued elsewhere at the pleasure of the party And thereunto agreed the whole Court and although such matters have been removed before yet the same were without motion to the Court or opposition of the other party and so not to be accounted Precedents See 3 H. 4. 46. abridg'd by Brook Cause de remover Plea 41. Where he saith That a Foreign Plea pleaded in London in Debt goes to the jurisdiction but upon a Foreign Voucher in a Plea real the Plea shall be removed in Bank by the Statute to try the Warranty and afterward shall be remanded L. Sands and Scagnard 's Case Trin. 29 Eliz. In the Common Pleas. IN an Action upon the Case The Plaintiff declared that he was possessed of certain Chattels which came to the Defendant by Trover The Defendant pleaded That heretofore the Plaintiff brought Debt against the now Defendant and demanded certain moneys and declared that the Defendant bought of him the same goods whereof the Action is now brought for the summ then in demand to which the then Defendant waged his Law and had his Law by which Nihil Capiat per breve c. was entred And demanded Iudgment if c. And by Windham and Rodes Iustices The same is no bar in this Action for the waging of the Law and the doing of it utterly disproves the Contract supposed by the Declaration in the said Action of Debt and then the Plaintiff is not bound by the supposal of it but is at large to bring this Action and so Iudgment was given for the Plaintiff LI. Spittle and Davie 's Case Trin. 29 Eliz. In the Common-Pleas Owen Rep. 8 55. IN a Replevin the Case was That one Turk was seised of certain Lands in Fee and by his Will devised parcell of his said Lands to his eldest Son in tail and the residue of his Lands to his younger Son in Fee Provided that neither of my said Sons shall sell or make Leases of the Lands given or bequeathed unto them by this my Will or doe any Act with any of the said Lands to the hindrance of their children or mine by any devise or means before they come to the age of 30 years and if any of my Sons doe so then my other Son shall have the portion of my Lands so devised to his Brother the eldest Son before his age of 30 years leased the Lands to him devised ut supra for years against the intent of the said Proviso The younger Son entred 2 Cro. 398. and he leased the same Land for years before his age of 30 years Vpon which the eldest Son did re-enter and the opinion of the Court was that here is a Limitation and not a Condition and here the re-entry of the eldest Son was holden unlawfull for this Proviso did not extend but to the immediate Estate devised expresly to them and not to any new Estate which did arise upon the limitation and when the younger Son enters upon the eldest Son by the said Limitation he shall hold his Estate discharged of the Proviso or any limitation contained in it LII Martin Van Henbeck 's Case Trin. 30 Eliz. In the Exchequer AN Information was exhibited in the Exchequer against Martin Van Henbeck Merchant-stranger upon the Statute of 18 H. 6. Cap. 17. concerning the gaging of vessels of Wine and shewed That the Defendant had sold to such a one so many pipes of Wine and that none of them did contain as they ought 126. gallons and although they were so defective yet the Defendant had not defalked the price c. according to the want of measure for which he had forfeited to the Queen all the value of all the Wine so defective Exception was taken to the Information because there is not set down how much in every pipe was wanting as one or two gallons c. To as a ratable defalcation might be made according to the proportion of the want of measure But if the Informer had set forth in his Information that no defalcation was at all such general allegation of want of measure without other certainty had been good And the Case was cited 32 E. 4. 40. Lysle's Case Where the plea wants certainty or where he pleads that he was ready to shew to the Council of the Plaintiff his discharge of an Annuity c. and doth not shew

the Defendant is cosin and heir of the 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 three Devisees had but for their lives But Fenner and Walmesley who argued for the Plaintiffs conceived that by force of the latter words scil If the said John Stephen and Roger live till they be of lawfull 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. that they have Fee and the words in manner aforesaid are to be referred not to the Estate which was given by the first words which was but for life but to make them to hold in severalty as the first Devise would and not jointly as the words of the second Devise do purport And Fenner said It had been resolved by good opinion That where a Fine was levied to the use of the Conusee and his Wife and of the heirs of the body of the Conusor with divers Remainders over Proviso That it should be lawfull to the survivor of them to make Leases of the said Lands in such manner as Tenant in tail might make by the Statute of 32 H. 8. Although those Lands were never devised before the Fine yet the Wife 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 shall refer unto the Estate for life limited to A. and not to the Condition nor to any other collateral matter The words If they live untill 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 to them and their heirs to give and sell at their pleasures 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 to the latter words And if it fortune they three to die without issue c. these words cannot make an Estate tail and the express limitation of Fee in the former part of the Will shall not be controlled by implication out of the subsequent words As if Lessee for fourty years deviseth his term to his Wife for twenty years and if she die the remainder of the term to another although she survive the twenty 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 unto the Devisees after issue Snagg and Shuttleworth Serjeants to the contrary And they said that the Defendant hath right to two parts for no Inheritance vesteth in the Devisees until full age and issue and because two of the Devisees died without issue they never had an Inheritance in their two parts and so those two parts do descend 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 scil If John live untill c. he shall have Inheritance in his part Et sic de reliquis As if I have right unto Lands which A. B. and C. hold in common and I by Deed release unto them all the same shall inure to them severally 19 H. 6. And here these latter words If they three die without issue it seems to be but an Estate tail See to that purpose 35 Ass 14. 37 Ass 15. For a man cannot declare his intent at once but in several parts all which make but one Inheritance and so it is said by Persay 37 Ass 15. we ought to adjudge upon all the Deed and not upon parcell And see Clatche's Case 16 Eliz Dyer 330 331. And it was said That if I give Lands to one and his heirs as long as J. S. hath heirs of his body the same is a Fee-simple determinable and not an Estate tail Quaere of that Then here the Fee-simple is determined by the death of the Devisees without issue and therefore the Lands shall revert to the heir of the Devisor especially there being no person in rerum natura who may sell for the Executor before any sale by him made died intestate and if he had made Executors yet the Executor of the Executor could not sell which see 19 H. 8. 9 10. And afterwards the Iustices resolved That no Estate tail is created by the Will but that the Fee-simple is settled in them when they came to their lawfull age and have issue so as the residue of the Devise is void And Iudgment was given for the Plaintiffs XCIII Hil. 29 Eliz. in the Common Pleas. THE Case was this viz. By the Civil Law the Parson ought to have his Tythe by the tenth Ridg And in a great Field there was Corn upon the Arable Land Roll. 646. and Grass upon the Head Lands and in a Suit for Tythe Hay and Rakings of the Corn the Defendant did prescribe to pay the tenth Shock of Corn for all the Corn Hay and Rakings of the Corn and the Prescription was challenged not to be good for it is upon the matter a Prescription of Non Decimando for the tenth Shock is due of common Right and so nothing is for the Hay and Rakings It was holden by all the Iustices That for tying of Horses upon the Head Lands and eating of the Grass and Corn together that the Prescription was good But the doubt was when the Grass is made into Hay which is upon the Head Lands If it be a good Prescription then and discharge for the Hay because it is another thing than what is growing upon the Land But in the end all the Iustices agreed That by the Civil Law ut supra the tenth Ridg is due for Tythe Corn 1 Cro. 446. 475. therefore for the reaping binding and shocking it is a reasonable Prescription that the party shall have the Hay upon the Head Lands in recompence of the said other things and the Hay upon the Head Lands is but of little value XCIV 29 Eliz. Challoner and Bowyer 's Case IN Assise of Novel Disseisin by Challoner against Bowyer it was given in Evidence at the Assise That William Bowyer was seised and having issue two Sons and two Daughters devised his Lands to his younger Son in tail and for want of such issue to the Heirs of the body of his eldest Son and if he die without issue that then the Land shall remain to his two Daughters in Fee William Bowyer dieth the younger Son dieth without issue living the eldest Son having issue him who is Tenant in the Assise It was moved That notwithstanding that by way of Grant the

Case 33 E. 3. Annuity 52. before the Statute of Quia Emptores terrarum a man makes a Feoffment in Fee Tenend de Dom. Capital Feod c. Reddend 10 s. Rent here because that the Tenure was reserved Capital Dom. feodi illius this Rent reserved is not parcell of the Tenure but a Rent in gross King Edward the sixth gave certain Lands to Cranmer Archbishop of Canterbury Tenend by the fifth part of a Knight's Fee Reddend inde 6 l. per ann Cranmer made a Feoffment in Fee to the use of himself for life and afterwards to the use of his eldest son in tail the remainder to the right heirs of Cranmer who is attainted of Treason by which the remainder in Fee escheated to the King by which the Seignory is gone But it was adjudged that notwithstanding that escheat the Rent did remain for the Rent was not parcel of the Seignory Now this Rent being a thing newly created and not parcel of the possessions of the Dutchy in 1 H. 4. nor ever descended from any Ancestor of the King being Duke of Lancaster shall be accounted to be in the King in the right of his Crown and so cannot pass by the Dutchy-seal See the said Statute of 1 H. 4. and the King cannot enlarge the said Dutchy nor the possessions thereof beyond the possessions which were of the Dutchy at the time of the making of the said Acts As if J. S. seised in Fee is impleaded and he saith that he holds the Lands in demand for life the remainder to the King in the right of his said Dutchy now the said remainder is vested in the King not in the right of the said Dutchy but in the right of his Crown The Villain of the King in the right of his Dutchy of Lancaster purchaseth Lands the King seizeth he shall be seised thereof in the right of his Crown and not of the Dutchy The King grants Common out of certain Lands parcel of his said Dutchy and afterwards makes a Feoffment of the said Lands to another the Grantee of the Common dieth without heir so as the Common escheats to him now he shall have the Common in the right of the Crown and not of the Dutchy so although it is said That the Rent shall follow the nature of the Land out of which c. yet the same is but to some intents and not to every intent See the Statute of 2 and 3 Phil. Ma. cap. 20. by which it is enacted That all the Lands which have been granted or severed from the Dutchy to any person or persons and after such grant have come or reverted to the King in possession reversion or remainder or otherwise by attainder escheat forfeiture c. shall for ever be united to the said Dutchy and shall be adjudged and esteemed as part and member of the same which proves that such Lands were not holden of the King as Duke of Lancaster but as King for if they had been holden of the Dutchy upon the escheat they should be parcel of the Dutchy again without help of that Statute See the special Reservation Reddendo Domino Regi haeredibus suis aut illi cui de jure reddi debet c. Now when the King grants the Seignory to the Lord Audley it was in the Election of the Ter-tenant to whom he would pay the Rent if it had been in the Case of a common person but it is otherwise in the Case of the King As if A. holdeth of two several Lords by owel Feoffment and dieth his heir within age the Lord which first gets the Ward shall have him but in the Case of the King it is otherwise Plowden The King is not bound by the Statute of West 3. But in this Case in the making of this Feoffment with this Tenend Reddend the Feoffee shall hold of the King as of his Dutchy for all grants of the King savour of the person of the King and then his Prerogative wrapt in the person shall guide the same and see the Statute of West 3. extends to all who make Feoffments Tenend de Feoffatoribus but the King is not Tenant to any one And if the King be seised of an Advowson in the right of his Dutchy and the same becomes void and the King presents to the same he may repeal his presentation and he vouched divers precedents of Patents made to many great Lords to hold of the Dutchy and also to hold of others And the King by his Dutchy-seal may give Lands in Mortmain And he argued That this Rent although newly created yet in so much as it came and accrued in respect of the Land which was parcell of the Dutchy it should be accounted also parcel of the Dutchy as if before the Statute of West 3. A. seised of Lands in Fee of the part of his father makes a Feoffment in Fee Tenend by such services c. the same Seignory shall go to the heirs of the part of the father in lieu of which the Seignory is come Tenant in tail after the Statute of 32 H. 8. makes a Lease for years according to the said Act rendring Rent to him and his heirs it shall be intended heirs in tail It was adjourned CXCVIII. Forster and Walker 's Case Pasch 26 Eliz. In the King's-Bench IN an Ejectione firmae by Foster against Walker the Case was 3 Cro. 106. Shepherd's Touch-ston● of Conve●…ances 416. That Richard Meager was seised of a house in London and 6 E. 6. he devised the same to his Wife for life the remainder to John his son in tail the remainder to the Master and Wardens of the Cordwaynors in London and died the Wife entred and died John died The Master Wardens and Commonalty of the Cordwaynors entred and leased the Plaintiff upon whom the heir general of the Devisor did enter The onely question was inasmuch as the Cordwaynors of London are incorporated by the name of Master and Wardens and Commonalty of Cordwaynors If this devise made to them by the name of Master and Wardens of the Cordwaynors of London be good or not It was argued by Daniel that the Devise by the manner was good enough and he insisted much upon the favour which the Law gives to Wills and to Legatees in the Devises and construction of them even in Devises and Grants to Corporations and as to Grants to Corporations he cited the Case of the Dean and Chapter of Norwich Decanus Capitulum sanctae individuae Trinit and they make a Lease leaving out these words sanctae individuae and yet held the Lease was good notwithstanding that for the words left out are not words of substance of the name but for the beauty and ornament of it But in the Case of Devise if the name be mistaken in matter of substance yet if upon the Devise the intent of the Devisor sufficiently appeareth it is good enough for the intent of the Devisor shall guide the Devise and

Statute and it was moved If it should not be a good Indictment for the assault so as he might be fined for it and by Sands Clerk of the Crown and the whole Court The Indictment is void for the whole for the conclusion of the Indictment is contra formam Statuti and there the Iury cannot enquire at the Common Law. CCXXXV Mead and Cheney 's Case Mich. 32 Eliz. In the King's-Bench MEad brought an Action of Debt upon a Bond against Cheney Executor of one Skipwith and recovered and upon a Fieri facias the Sheriff did retorn Devastavit and it was moved to have an Elegit and the Iustices would advise of it and afterwards at another day a Precedent was shewed to the Court of 17 Eliz. and thereupon the Elegit was granted CCXXXVI Tompson and Trafford 's Case Trin. 32 Eliz. In the King's-Bench Rot. 910. Poph. 8 9. IN an Ejectione firmae the Case was That the Warden and Fellows of New College in Oxford 8 Eliz. leased a Mansion house in the Burrough of Southwark to one Standish for 21 years and afterwards 25 Octob. 21 Eliz. they demised the same Mansion house to the said Standish for 21 years to commence the Michaelmas after And the Stat. of 14 Eliz. cap. 11. and 18 Eliz. cap. 11. were also found And if this second Lease shall be said a Lease in Reversion and so be void by the Statute of 14 Eliz. was the Question Foster moved That it is a Lease in Reversion for the first Lease doth continue untill Michaelmas and so was the opinion of the Iustices of Assise at the trial Towse contrary For when Standish accepteth the second Lease the same is presently a surrender of the former Lease for he giveth power unto the Lessor for to contract for the house presently and to that purpose he cited Corbet's Case 8 Eliz. Coke It is a surrender presently for you cannot apportion the Term. It was adjourned CCXXXVII Wood and Avery 's Case Mich. 32 Eliz. In the King's-Bench DEBT upon a Bond by Wood against Avery the Condition was That where the Plaintiff had demised to the Defendant for term of years two Messuages c. If the Defendant at all times during the term shall maintain sustain and repair the said two Messuages with good and sufficient reparations that then c. And the Defendant pleaded That he had performed the Conditions in all but as to one Kitchin which was so ruinous at the time of the Demise that he could not maintain or repair and therefore he took it down and rebuilt it again in so short a time as he could possible in the same place so large and so sufficient in breadth length and heighth as the other Kitchin was and that the said Kitchin all times after the re-edifying of it he had sustained and maintained and well repaired and demanded Iudgment c. upon which Plea the Plaintiff did demurr in Law and by the Court the Plea were a good Plea if it were in an Action of Waste but here where he hath by his own Act tied himself to an inconvenience he ought at his perill to provide for it And here it was said That if the Condition be impossible the Bond is single contrary where a man is charged by an Act in Law. CCXXXVIII Bostwick and Bostwick 's Case Mich. 32 Eliz. In the Common-Pleas DOrothy Bostwick brought Dower against Bostwick an Infant Ante 59. and the Case was That the Husband of the Demandant was seised of certain Lands holden by Knight's-service of M. C. and by his last Will devised two parts of the Premisses to his Executors during the non-age of his heir and died his heir within age after whose death M. C. entred into the third part descended as Guardian in Knight's-service and the Executors into the other two parts upon which the Demandant brought one Writ of Dower against the Guardian to be endowed of the third part and another Writ of Dower against the heir within age in whom the Freehold of the two parts was The heir appearing by Attorney pleaded to issue which was found for the Demandant but the Iudgment was afterwards reversed because the heir being within age did not appear by Guardian but by Attorney for which cause she again brought a Writ of Dower against the heir and the Sheriff did retorn him summoned but the heir made default for which cause the Court was moved in the behalf of the Demandant to have the aid of the Court in this Case for if upon default of the Tenant a Grand Cape should issue forth and so a Recovery by default should follow the same would be Error which see 6 H. 8. Br. Liver Defaul 50. And therefore it was prayed that some person be appointed Guardian to the heir who may appear and plead for him for otherwise the Demandant is at great mischief for the Guardian now will not suffer the heir to appear in person And if the Widow now Demandant should stay for her Dower untill the heir should come of full age it would be a great mischief But by Walmesley Periam and Windham We cannot appoint a Guardian to the heir for his appearance here unless the heir be here in person in Court before us and he was appointed to be brought in person into Court. CCXXXIX Sir Anthony Denny 's Case Mich. 32 Eliz. In the Common-Pleas SIR Anthony Denny seised in Fee of the Manor of Chessam extending into Chessam and in the Town of Hertford and also of other Lands in Hertford by his last Will devised the Manor of Chessam to Henry Denny his son and heir in tail and his Lands in Hertford to Edward Denny his younger son c. It was holden by Walmsley Periam and Windham absent Anderson That the younger son should have that part of the Manor of Chessam which lieth in the Town of Hertford Another point in the Case was That upon the death of Sir Anthony and Office was found without any mention of this Devise for which cause the Queen seised and leased all the Lands so devised to a stranger during the minority of the heir The heir comes of full age and hath Livery of the whole and without any express entry leaseth the Lands for years rendring Rent the Lessee entreth and payeth the Rent to the heir the heir dieth the Lessee assigns over his term and the Rent is yearly paid to the right heir of Sir Anthony And how Edward Denny entred and per Curiam his entry is lawfull for if the heir entreth in this Case and many descents follow yet the Devisee may enter at any time for his entry doth not make any abatement or wrong but may well stand with the Devise for if the Devise be waved or the Devise doth defer the execution of the Devisee 1 Inst 111. a. 240. b. 3 Cro. 145. Ow. 86 87. it is reason that the heir enter and take the profits untill the Devisee entreth But if

as taken for Rent arrere yet he cannot be said his Bailiff at the time of the distress which was granted by Rhodes Periam and Windham and as to that which hath been objected That if this traverse be allowed the meaning of the party shall be drawn in question i. e. the meaning of him who took the cattel the same is not any mischief for so it is in other cases as in the case of Recaption See 9 H. 6. 1. 45 E. 3 4. CCLXXV Humphreston 's Case Pasch 16 Eliz. In the King 's Bench. More 103. 1 Anders 40. Dyer 337. Owen 64. Sty 293. IN an Ejectione firmae It was found by special Verdict That W. Humphreston seised of the Manor of Humphreston suffered a common Recovery to be had thereof by Kinnersley and Fowk in the Writ of Entry in the Post to the intent that they should make an Estate to the said W. Humphreston and Elionar his wife for their lives the remainder Seniori puero dicti W. and to the heirs of the body dicti senioris pueri legitime procreat the remainder to the heirs of the body of the said W. Humphreston with divers remainders over And afterwards the Recoverers in December following by Indenture made an Estate accordingly and made Livery to W. Humphreston and his wife and afterwards in November 2 E. 6. by Indenture between the said W. Humphreston of the one party and Kinnersley on the other part The said W. Humphreston did covenant with the said Kinnersley to do all such lawfull and reasonable things for to assure the said lands unto the use of the said W. Humphreston and Elionar his wife for their lives and afterwards to the use of the eldest child of the body of the said W. Humphreston lawfully begotten and to the heirs of the body of the said eldest child of the body of the said W. Humphreston and after to divers other uses over and afterwards Ter. Pasch 2 E. 6. W. Humphreston and Elionar his wife levyed a Fine of the said land to C. and B. in Fee to the use of the said Indenture Elionar died W. Humphreston married another wife and had issue a daughter named Frances and afterwards had issue a son named William and died William the son being of the age of six years entred into the lands and leased the same to the Plaintiff for years who being ejected by the Defendant brought the Ejectione firmae And this special Verdict And the points moved upon it were argued by Atkins Phetiplace Fenner Fleetwood Plowden and Bromley and afterwards this Case was argued by the Iustices And Gawdy puisne Iustice conceived That Iudgment ought to be given for the Plaintiff First he conceived that this Lease for years made by the Infant without Deed and without Rent reserved is not void so as every stranger shall take advantage of it but onely voidable for an Infant may make a Bond and a Contract for his commodity and profit and the same shall bind him as for his meat and drink apparel c. But if upon such Lease he had reserved a small Rent as one peny where the land was worth 100 l. per ann such a Lease had been void and in our Case this Lease was made upon the land and was made for to try the title to it which is a good consideration and to the profit of the Infant and for his advancement and then the Lease is not void It hath been objected That here the Recovery being suffered to the intent that the Recoverers should make an Estate ut supra c. that the use shall rise presently upon the Recovery to him who suffered the Recovery and then the Recoverers could not make Livery unto him he held strongly That the use and the possession should be adjudged in the Recoverers untill they made the Estates c. for they otherwise could not make the Estates c. 2 Roll 789. and these words To the intent shall be construed that they shall have the lands untill they made the Estates c. And he held that the remainder limited Seniori puero where there is not any in rerum natura is good enough as a remainder limited to him who shall first come to Pauls And he conceived that the son should take this remainder and not the daughter and he conceived that the Estate tail here was not executed i. e. the second intail Divers Authors of Grammer have been produced to prove that Puer may be taken both ways Tam puer quam puella Desporterius Calapine Melancthon and the Grammer allowed but I conceive that Puer is a word proper for a Boy and Puella for a Maid and where we have proper words we ought not to iudge but according to them and because the word is doubtfull we ought to consider the cause upon the circumstances and therefore it is to be intended that W. Humphreston had a greater desire that his son should have his Inheritance than his daughter if there be not some special matter to prove that the intent of the father was for his daughter Southcote Iustice agreed with Gawdy in the first point and also that the Recoverers have convenient time to make the Estates and that they are to make the same without request for the benefit of the wife who is a stranger to it and is to have the lands for her ioynture and he cited the Case of the Abbat of York 44 E. 3. 8. and 9. where the difference is taken between a Feoffment made upon condition to re-enfeoff the Feoffor or to enfeoff a stranger And here in our Case the Feoffment is made in convenient time and here is sufficient consideration That the Recoverers shall be seised to their own uses untill c. And these words Roll supra Roll 407. Ea intentione shall be taken for a Condition And also that this remainder limited Seniori puero is good notwithstanding that there be not any Senior puer alive at the time And as to the word puer he held that it did extend to both Sexes indifferently and because it is doubtfull what Sex the father intended we are to construe the same upon the circumstances which appear upon the parts of the Indentures and here it appeareth upon the Indenture that he hath explained his mind scil Eldest child be it Male or Female As if I have two sons named J. and I devise my lands or limit a remainder to J. my son the Law shall construe this Devise to extend to my younger son for without devise or limitation my eldest son should have it But if J. S. hath two sons known by the names of A. and I Devise lands to A. son of J.S. there I ought to explain my meaning openly And he conceived That the Estate tail is executed defeasiable in W. Humphreston upon issue afterwards had and that the daughter should have the lands and not the son and if the Fine destroy the remainder in abeyance limited

John Mutton took to wife the now Tenant upon which Bar the Demandant did demur in Law. And it was argued by Jeofries Serjeant 13 Co. 48 49 54 55 56. 1 Co. 101. 3 Len. 253. That here the wife taketh nothing by this limitation because she was not capable thereof at the time of the limitation But if the use had been limited especially to John Mutton untill he took a wife and then unto the use of him and his wife for their lives the same had been a good use to the wife But in our Case the use is limited to the wife in praesenti and not upon a contingent and because the wife at the time of the limitation was not capable she shall never take after and yet it may be said That a joynt Estate may be in esse and yet to begin at several times as 18 E. 4. 12. A Feoffment is made to three and Livery is made to one of them and first one of them agrees to the Livery and a year after another agreeth and afterwards the third although they take nothing untill agreement yet when they have agreed the agreement shall have relation to the time of the Livery but in truth the reason thereof is because the Freehold shall be adjudged in them all untill they have disagreed And if a disseisin be to the use of A. B. and C. And first A. agrees to it and afterward B. and after C. although they took nothing untill agreement yet when they have agreed their agreement shall have relation to the time of the first disseisin and if in such case the Disseisor had made a Lease before agreement the party to whose use after agreeing shall avoid such Lease CCLXXXIV Stamford 's Case Hill. 16 Eliz. In the Common Pleas. THE Case was A. took a wife and afterwards married Elizabeth Stamford living his first wife and by Deed gave part of his goods to the said Elizabeth and as to the residue of his goods being but of small value he made the said Elizabeth his Executrix and died she refused the Executorship for which the Ordinary committed Adminstration to B. Gawdy Serjeant asked the advice of the Court against whom the Action of Debt should lie for if the Creditor impleadeth the Administrator he hath not Assets if the Executrix her self she will plead that she hath renounced the Cxecutorship and that Administration is committed to B. And the opinion of Dyer Iustice was That the Gift is void by the Common Law and also by the Statute of 13 Eliz. and then if the Gift be void any way the Creditor may have an Action of Debt against the said Elizabeth as Executor of her own wrong And see that such a Gift is void by the Common Law 43 E. 3. 2. And by Manwood Iustice He who takes the goods of the dead shall not be charged as executor of his own wrong unless he doth something as Executor as to pay Debts make Acquittances c. See 41 E. 3. 31. 32 H. 6. 7. Dyer If one takes the goods of the dead and converteth them to his own use he is chargeable as Executor and so it hath been adjudged in the time of this Queen in the Case of one Stokes which was affirmed by Bendloes and Harper See now Co. 2 Part. 53. Reade's Case where no lawfull Executor or Administrator is there if a stranger takes the goods of the dead into his possession the same is a good Administration to charge him as Executor of his own wrong CCLXXXV Hill. 19 Eliz. In the Common-Pleas Ante 178. THE Case was A man made a Feoffment in Fee to the use of himself for life and afterwards to the use of his eldest son in tail and after to the use of his right heirs not having at the time of the Feoffment any son afterwards he suffered a common Recovery had issue a son who died in the life of his father having issue a son and afterwards he himself died It was holden by the Iustices in this Case That the son and heir of the son should not avoid this Recovery by the Statute of 32 H. 8. for there was not any remainder in him at the time of the Recovery had and the words of the said Statute are That such Recovery shall be void against such persons to whom the reversion or remainder shall then appertain i. e. at the time of such Recovery And it was said by one of the Serjeants at Bar That if lands be given to E. for life the remainder to B. in tail the remainder to C. in Fee B. dyeth his wife young with child with a son a Recovery is had against E. with the issue of C. and afterwards the son is born he shall not be helped by this Statute of 32 H. 8. for that remainder was not in esse at the time of the Recovery But it was holden in the principal Case That the heir might avoid the said Recovery by the Common Law for the recompence cannot extend to such a remainder which is not in esse CCLXXXVI Sidenham and Worlington 's Case Pasch 27 Eliz. In the Common Pleas. 1 Cro. 42. IN an Action upon the Case upon a Promise the Plaintiff declared That he at the request of the Defendant was surety and bail for J. S. who was arrested in the King's Bench upon an Action of 30 l. and that afterwards for the default of J. S. he was constrained to pay the 30 l. after which the Defendant meeting with the Plaintiff promised him for the same consideration That he would repay that 30 l. which he did not pay upon which the Plaintiff brought the Action the Defendant pleaded Non assumpsit upon which issue was joyned which was found for the Plaintiff Walmsley Serjeant for the Defendant moved the Court That this consideration will not maintain the Action because the consideration and promise did not concur and go together for the consideration was long before executed so as now it cannot be intended that the promise was for the same consideration As if one giveth me a Horse and a Month after I promise him 10 l. for the said Horse he shall never have Debt for the 10 l. nor Assumpsit upon that promise for there is neither contract nor consideration because the same is executed Anderson This Action will not lie for it is but a bare agreement nudum pactum because the contract was determined and not in esse at the time of the promise But he said it is otherwise upon a consideration of marriage of one of his cosins for marriage is always a present consideration Windham agreed with Anderson and he put the Case in 3 H. 7. If one selleth a Horse unto another and at another day he will warrant him to be sound of limb and member it is a void warrant for that such warranty ought to have been made or given at such time as the Horse was sold Periam Iustice conceived That the Action

interest in the Lands than strangers and they Uses have been in such reckoning and account since that an Vse hath obtained the name of an Inheritance and is now reputed amongst the Estates of Lands in our Law and therefore we say in Speeches and in penning of Statutes Estates in possession and Estates in use and a Vse cannot be limited to Parishioners no more than the Land it self so as there is a great affinity betwixt the words Lands and Use It is to be granted That the Statute of 27 H. 8. doth devest all out of the Feoffees yet it doth not devest it before that the use be vested in Cestuy que use for the words of the Statute are That the possession shall be executed in such manner quality and degree as was the Vse therefore the vesting of the Vse ought to precede the execution of the possession to it And he was of opinion That this future Vse in the principal Case limited to the second Wife did remain in the Feoffees at the first but that they had destroyed it by their Feoffment for the second Wife at the time of the Feoffment was not known and therefore it shall now accrue and he was also of opinion That this limitation to the second Wife was void at the beginning for the second Wife was not a person able to take when the Estate and Vse limited to the first Wife was determined and therefore she shall not take at all and if such an Estate had been limited in possession it should not have vested no more than now Mounson Iustice When the Feoffor and the Feoffees joyn in a Fine of that Land within which the use in future is wrapped he conceived That the Vse being in abeyance and consideration of the Law could not be touched by the Fine It is to be confessed That an Vse may be discontinued See 4. H. 7. 18. A Feoffment made to the use of A. for life and after to the use of B. in tail c. A. makes a Feoffment in Fee and dieth the same is a discontinuance of the other Vses and see 27 H. 8. 29. And in our Case the Vse might arise without any Entry of the Feoffees for the Vse is not discontinued but the Feoffees are barred by the Fine And he was also of opinion That this Vse might take effect without any Entry and take effect according to the limitation Manwood This Estate which is limited in use to the second Wife because it cannot vest in her because not known the Feoffees are yet content with it and this Vse is to grow out of their Estates at the seasonable time Then when they joyn in a Feoffment their Estate which was the root of the Conveyance and the Vses which are the branches spring not till she dieth and therefore if the Estate of the Feoffees which is the root of the Vses be destroyed by alienation of the Land before the Vses have their being as in our Case it is because that then the second was not known no use can afterwards rise for by the Feoffment they are destroyed and also every possibility of them But if the Vses had been in esse so as the persons to whom they are limited are known then the Statute shall execute the possession to such uses And as to that which hath been objected by my Brother Mounson That the Law shall keep and preserve the Vse and that notwithstanding any thing done by the Feoffees at its due time it shall rise That cannot be for the Statute of 27 H. 8. doth not speak of such Vses as this in our Case but of such Vses onely of which one may say such a use is limited to such a person and such to such a person c. and such Vses are onely executed by the Statute It may be demanded What Estate the Feoffees have in the Lands until such uses be executed It may be answered A Fee simple determinable as the Lord hath when he entereth upon his Villein Donee in tail And I conceive That this use was not in Custodia Legis quia de minimis non curat Lex and the use was such a thing of which the Law took no knowledge and in case of an Estate in possession such an use in abeyance should be bound As a Lease for life unto A. the Remainder to the right Heirs of B. A. suffers a common Recovery in the life of B. who afterwards dieth and afterwards A. dyeth the Heir of B. is bound for he had not right at the time of the Recovery This Fine levied by the manner shall not destroy the uses limited to the second Wife for as to the Feoffees they have nothing to doe with the Lands to transfer any Estate against the former limitation for the Statute leaves nothing in the Feoffees but vests all in Cesty que use and that which cannot vest in him to whom it is limited shall return to the Feoffor As if I make a Feoffment in Fee to the use of my self for life and after to the use of my second Wife all the Fee is now in me and when I take a second Wife then the Feoffees shall be seised to the use of such Wife in Remainder for her life but in the Case at Bar the Feoffees at the time when this second Wife was in esse had not any thing in the Lands for they had departed with all their Interest before by their Feoffment and Fine Note That by the first Feoffment the use was limited to D. the first Wife of the Feoffor for term of her life the Remainder in tail to A. Brent the Remainder in Fee to one Broughton and all these uses were executed by the Statute but these persons were not parties to the Livery but onely the Feoffees which had not any thing Then when they make their Letter of Attorney to make Livery of seisin not being seised of the Land the Attorney onely is a Disseisor and so nothing passed from the Feoffees if any right had been in them and for another reason nothing passed by this last Conveyance out of the Feoffees for the parties to the latter Conveyance had notice of the use and so it appeareth by the second Indenture the which makes mention of the first uses c. Dyer Here in our Case the Founders of these uses i. the Feoffor and the Feoffees have an intent to overthrow these uses for at the Common Law the Feoffees might doe it of themselves As if the Feoffees had made a Feoffment in fee in consideration of Money to others who had not notice of the uses now the uses are gone and the second Feoffees in such Cases were seised to their own uses I well know That by this Feoffment all is devested out of the Feoffees which might vest in the person to whom the use is limited but here this use which was limited to the second Wife could not upon the limitation of it vest in any person and therefore it shall

he said Misnosmer shall be tried where the Writ is brought c. So Ne unque administer as Executor c. Manwood Here the Lease is said to be made at Durham in a place certain if now there be not any other local thing said which might draw the trial elsewhere it shall be tried at Durham where the Lease is made An Infant makes a lease for years rendring Rent and afterwards re-enters and avoids his Lease by reason of his nonage and Title is made against him by the Lease upon which he pretended nonage it shall be tried where the Lease was made and afterwards Iudgment was given for the Plaintiff XXIX Ross and Morrice 's Case Pasch 30 Eliz. In the King's-Bench EDward Ross was Plaintiff in a Replevin against Edward Morrice 1 Cro. 108 109. and George Manly Defendants who made Conusance as Bailiffs to Jerom Weston The Plaintiff declares of the taking of two Geldings 20 Decemb. 29 Eliz. at Nayland in the County of Suffolk in a certain place called Nayland-Court-Meadow And the Conusance is that the place where was a Freehold of the said Jer. Weston c. The Plaintiff in bar of the Conusance shewed That long time before Sir Christopher Danby was seised of 30 acres of Meadow in Nayland whereof the place where c. and Leased the same by Indenture to Thomas Calton 19 Maii 31 H. 8. Habendum from the Feast of the Annunciation 1553. for the term of 45 years Who 1 E. 6. assigned his Interest to Edw. Ross the Plaintiff's Father who 1 Maii the said 1553. entred and 11 Eliz. granted his Interest to Bamford and Mascal who entred and were possessed Sir Christopher Danby died seised of the Reversion 13 Eliz. and the same descended to Thomas Danby his son and heir 14 Eliz. Mascal died Bamford 15 Eliz. granted to the Plaintiff Habendum from the 17 of March 1583. for three years which expired 26 Eliz. Bamford entred and afterwards Thomas Danby granted the Reversion to Edw. Rockwood in Fee to which the said Bamford Attorned and the Plaintiff by force of the said Lease put in his Cattel c. The Plaintiff Replicando said That long time before that Danby had any thing Jeofry Lord Scroop had issue of his body Henry Lord Scroop and died And that one John Guntwarby was seised of the said Manor of Nayland whereof c. in Fee by his Charter 25 E. 3. gave to the said Henry Lord Scroop the same Et haeredibus corpore suo exeuntibus who had issue Stephen who entred and died seised having issue John who entred and died seised having issue Thomas who entred and 3 H. 7. suffered a Common Recovery to the use of himself and his heirs The Recoverers enfeoffed Thomas seised also of many other Lands and had issue Ralph Jeofry Alice Elizabeth and Margery and afterwards died seised Ralph Lord Scroop entred and thereof did enfeoff divers persons unto the use of himself and Eleanor his wife for their lives and the heirs males of the said Ralph and afterwards the said Ralph being possessed of the said Charter of entail made ut supra by Guntwardy 7 H. 8. Devised that the Feoffees should be seised of the said Manor of Nayland to the use of himself and Eleanor his wife for their lives and if they died without issue of the body of the said Ralph the said Jeofry then living that then the Feoffees should be seised to the use of the said Jeofry being his Vncle for his life and after his decease ad usum Rectorum haeredum in perpetuum secundum antiquam Evidentiam inde ante factam with an averment that the said Ralph at the time of the said Devise and of his death was possessed of the Charter of Entail made by the said Guntwardy and that the said Charter was the most ancient Evidence of the said concerning the said Manor Ralph died without issue possessed of the said Charter by which the Feoffees were seised of the said Manor of Nayland to his use for life and after to the use of the said Jeofry for life and after his decease of the right heirs of the body of Henry Lord Scroop lawfully begotten by reason of the said Devise and the said Charter and of the residue of the Manors to the use of the said Jeofry and his heirs Eleanor died after whose decease the Feoffees were seised of the said Manor of Nayland to the use of the said Jeofry right heir of the said Henry Lord Scroop of his body begotten and of the other lands to the use of the said Jeofry in Fee Jeofry died without issue by which the Feoffees were seised to the use of the said Alice Elizabeth and Margery Cosins and heirs of the body of the said Henry Scroop c. And of the heirs of the bodies of the said Alice Elizabeth and Margery lawfully begotten by reason of the said Devise and Charter as to the said Manor of Nayland and of the other Manors to their use in Fee And afterwards the said Alice took to husband James Strangways who had issue Thomas Elizabeth took to husband Fitz Randolph who had issue Elizabeth Dorothy Agnes Alice Margery took to husband Danby who had issue Sir Christopher Danby named in the Bar and afterwards all the said husbands and their wives died by force of which the said Feoffees were seised of one part of the said Manor of Nayland in three parts to be divided to the use of the said Thomas Strangways and of another part to the use of the four daughters of the said Elizabeth and her husband Fitz Randolph and of another such part to the use of the said Christopher Danby and of their heirs in Tail and of the other lands to the use of them in Fee in degree of Coparcinary Elizabeth the eldest daughter of Fitz Randolph took to husband Shirley Dorothy her sister took to husband Eshe Agnes took to husband Maynel and Alice took to husband Dranfield Thomas Strangways had issue James and died And afterwards partition was made by which to James Strangways were allotted lands in Kent and agreed that the Feoffees should be seised of the said lands to the use of the said James and his heirs and to no other use To Sherley and Elizabeth his wife lands in Essex were allotted and agreed upon the partition that the Feoffees should be seised to the use of them c. in Fee c. And to Danby the said Manor of Nayland in tail by reason of the Devise and Charter aforesaid as to the said Manor of Nayland and of other lands in Fee. And afterwards 23 E. 8. notice was given to the Feoffees of the said partition and averred that the partition was equal c. and that the Feoffees were seised to the use of the said partition untill 27 H. 8. and confessed the Lease made by Danby to Calton and all the assignments set forth in the Bar to the Avowry and farther shewed That Thomas Danby

adjudged by the whole Court that the Covenant did not lie by one of them onely but ought to be brought by them both LXI Carter 's Case Mich. 33 Eliz. In the Common Pleas. A Being seised of the Manor of Staple in Odiham 1 Cro. 208. Owen Rep. 84. 8 Co. 119. and of divers other Lands in Odiham suffered a common Recovery of the whole and by Indenture expressed the uses in this manner viz. of all his Lands and Tenements in Odiham to the use of his wife for life the remainder over c. And of the Manor of Staple to the use of his youngest son in tail but by the clear opinion of the whole Court although the Manor of Staple was in Odiham yet the wife shall have nothing therein for the intent of the party was that the son should have the same and his wife the residue and accordingly Iudgment was given LXII Cobb and Prior 's Case Mich. 33 Eliz. In the Common Pleas. THE Case betwixt Cobb and Prior was this A man seised of Lands in Fee devised the same to his Wife during the minority of his Son upon condition that she should not do Waste during the minority of the said Son and died The Wife married a Husband and died the Husband committed Waste It was holden by all the Iustices That the same was not any breach of the Condition and Iudgment was entred accordingly LXIII Taylor and Brounsal 's Case Trin. 33 Eliz. in the Common Pleas. IN an Information upon the Statute of 32 H. 8. by Taylor against Brounsal the Case was That John Brounsal was seised and gave the Lands to T. B. and the Heirs of his body c. the Remainder to R. B. and the Heirs male of his body the Remainder to the right Heirs of J. B. T. B. died having issue a Daughter and R. B. made a Lease for years of the Lands And it was holden by the Court to be no maintenance within the said Statute for he in the Remainder might make a Lease for years Then it was given in Evidence That a common Recovery was had against the Husband and Wife with a single Voucher and so the Remainder limited to R. B. destroyed and that after that Recovery R. B. made the Lease To which it was said by the other side That the said Recovery was never executed and no discontinuance of the Remainder and then the Lease made by R. B. was good and the truth of the Case was That such a Recovery was had and an Habere facias seisinam awarded and retorned but no Execution was in truth had upon it nor the Recoveror never entred And if R. B. who is a stranger to the said Recovery shall be admitted against the Recovery to say That no Execution was thereof was the Question and therefore all the matter was found by special Verdict It was also given in Evidence That the Land was given to T. B. and the Heirs males of his body and then when the Daughter which is not in truth inheritable entereth if that Entry she being privy in bloud to R. hee Vncle shall be a Disseisin or Abatement c. as in the Case of Littleton where the youngest Brother entreth after the death of the Father for in such case the youngest Son doth not get any Freehold but is but a Tenant at sufferance Anderson When the Daughter enters and takes a Husband who leaseth for years and the Lessee entreth the same is a Disseisin Periam doubted it for he said When the younger Son entred the Freehold was in him which Anderson doubted LXIV Maunsel and Vernon 's Case Trin. 33 Eliz. In the Common Pleas. IQ Debt by Maunsel against Hen. Vernon Esquire who came in by Capias i. compulsary Process and pleaded That he was Hen. Vernon Lord Powis and so a Baron of the Parliament and demanded Iudgment of the Writ Note some said That if the Defendant had come in by Issue joyned or gratis and not by compulsary Process he could not have pleaded this Plea or any other Misnosmer The Plaintiff replyed That the Defendant is an Esquire absque hoc that he is Lord Powis and a Baron of the Parliament and as the Iury was ready at the Bar to try this Issue this matter was objected And Anderson conceived That this Plea to the Writ was not good for the name of Lord is not any degree as Knight Duke Earl nor is it parcel of the name nor parcel of addition and therefore it is no Plea in abatement of a Writ and all the Writs of Parliament directed to Barons to summon them to Parliament shall have their Names Sirnames and Additions as if they be Knights Knights and if Esquires they shall be named Esquires and if a Bond be made by J.S. Lord R. the Writ shall not be so for the King by his Writ doth not name any one Lord but otherwise it is of Duke Earl c. for these are Offices of Dignity and parcel of their Names and not onely Additions Windham and Periam contrary and they conceived that there was no difference in this point betwixt a Lord and an Earl for which cause the Court being in doubt although that the Exception was entered of Record would have saved the same to the party and taken the Iury de bene esse but afterwards because it appeared it was joyned in the prejudice of Sir Edward Herbert who was a stranger thereunto and whose Title was concerned therein and there was none on his part to inform the Iury the Iury was at last dismissed by the Court. LXV Penruddock and Newman 's Case Trin. 28 Eliz. In the King's-Bench IN an Ejectione Firmae by Penruddock against Newman 1 Leon. 279 the Plaintiff declared of a Lease made by the Lord Morley and upon Not-guilty pleaded the Iury found this special matter scil That W. Lord Mounteagle seised of the manner of D. whereof c. became bound in a Statute in such a sum of Money to A. who died the Executors of A. sued Execution against the said Lord scil Extendi facias a Liberate issued upon which the said Manor was delivered to the Executors but the said Liberate was not retorned and it was farther found That the Executors being so possessed of the Manor the Lord commanded a Court Baron to be holden there which was done by sufferance and permission of the Executors and in their presence at which time the Executors said to the Lord the Conusor We have nothing to do with this Manor And upon this Verdict several matters were moved 1. If the Execution were well done because the Writ of Liberate was not retorned and as to that divers Books were cited 21 H. 6. 8. 18 E. 3. 25. And there is a difference betwixt a Liberate and a Capias ad satisfaciend and Fieri facias these Writs are Conditional Ita quod habeas corpus c. Ita quod habeas denarios hic in Curia 32 H. 8. ca. 28. 16 H. 7.

in execution it was adjudged in this Case that the Conusee should have the Corn sowed The same Law in case of a Recognizance LXXVI Smalman and Lane 's Case Trin. 29 Eliz. In the Common-Pleas THE Case was a Capias upon an original Process was delivered to the new Sheriff of Warwick against Lane at the suit of Smalman And the Sheriff informed the Court that before that the Process was directed to him That the said Lane was taken in Execution by the old Sheriff upon a judgment given against him in the King's-Bench and that the said old Sheriff had imprisoned the said Lane by force of the Execution in his own house and there he remained and prayed the advice of the Court what retorn he should make upon that matter because the said Lane was never in his possession for all the other prisoners which were in the Gaol and in the ordinary Prisons were delivered to him and the old Sheriff would not bring Lane to the place where the other Prisoners were delivered And it was the opinion of all the Iustices That by the Law the old Sheriff ought to deliver the body of him who is in his custody by view to the new Sheriff and such Prisoners ought to be brought unto him to view and from that time the Law shall adjudge such Prisoners to be in the possession of the new Sheriff and not before for he is not bound to go to them not being in the ordinary Prison of the County Anderson The new Sheriff may retorn That the said Lane is in Execution in custodia sua and so charge himself For although the Office of the old Sheriff be determined yet it is not an escape so long as the party be in custodia and not at large Periam contrary It is an escape in the old Sheriff as soon as his authority is determined the Prisoner not delivered See now C. 3. part 71. Wesby's Case LXXVII Megot and Broughton and Davie 's Case Mich. 29 Eliz. In the King's-Bench 1 Cro. 105. IN an Action upon the Case upon Assumpsit it was found by Nisi prius for the Plaintiff and afterwards before the day in Bank one of the Defendants died and after Iudgment given the other Defendant brought a Writ of Error in the same Court where the Iudgment was given and assigned an Error in fact scil the death of one of the Defendants pendant the Writ Roll 798. b. 3 Len. 96. Vide 2 E. 3. 21. It was said that the Case is not like the Case of an Action of Trespass for every Trespass done by many is several by each of them but every Assumpsit is joint and not several Another point was moved If the Court could reverse their own Iudgement Quaere LXXVIII Farrington and Fleetwood 's Case Trin. 29 Eliz. In the Exchequer THE Case upon the Statute of 31 H. 8. of Monasteries was this 3 Len. 164 165. ante 333. Plus The Abbat and Convent of A. c. 29 H. 8. made a Lease of certain Lands for three lives to begin after the death of one F. if they so long live and afterwards 30 H. 8 within a year before the dissolution they make another Lease to Fleetwood If the first Lease in the life of the said F. be such an Estate and Interest as by virtue 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 that hath been made for the second Lease is because the first Lease is but a possibility for F. by possibility may survive all the said three and so it shall never take effect But notwithstanding be it a possibility or otherwise it is such a thing which may be granted or forfeited and that during the life of F. And note the words of the Statute If any Abbat c. within one year next before the first day of this present Parliament hath made or hereafter shall make any Lease or Grant for years life or lives of any Manors 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 and 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 the Lease to Fleetwood And of such Opinion were all the Barons and divers other Iustices and therefore a Decree was made against the Lease c. LXXIX Beaumont 's Case Trin. 29 Eliz. In the Exchequer NOte it was holden by all the Barons in the Exchequer Owen Rep. 46. That a Duty which is not naturally a Debt but by circumstances onely as Debt upon a Bond for performance of Covenants or to save harmless may be assigned over to the Queen for a Debt but in such case a present Extent shall not issue but a Scire facias shall issue forth to know if the party hath any thing to plead against such Assignment LXXX Goddard 's Case Trin. 29 Eliz. In the Exchequer IT was moved in the Case of Goddard concerning the Manor of Staple in Hampshire 11 Leon. 8. If the Tenant of the King of Lands holden in Capite be disseised and the Disseisor aliens the Lands and afterwards the Disseisee doth re-enter Manwood said That the Land shall not be charged with a Fine for alienation without licence because the Title of the Alienee grew under the wrong of the Disseisor but the person of the Disseisor shall be charged with such Fine Tenant of the King in Capite makes a Lease for life the Lessee for life makes a Feoffment in Fee without licence the Lessor re-entreth neither his person nor the Land shall be charged But if my Feoffee upon Condition maketh a Feoffment without license and I re-enter for the Condition broken now my Land shall be charged with the Fine upon Alienation for the Feoffee was in by me by good and lawfull Title because he had power to make a Feoffment over although subject to the Condition So if Tenant in tail or the Husband seised in the Right of his Wife make a Feoffment in Fee and afterwards the Land is recontinued the Fine accruing for Alienation without licence shall bind the Land And if Tenant for life loseth issues and dieth the Lands shall be charged with the same LXXXI The Lord of Northampton and Lord St. John 's Case Trin. 29 Eliz. In the Exchequer 2 Roll. 195. Co. 12. 1 2. Co. 4. 95. Dyer 262. THE Lord of Northampton had by ancient Letters Patents bona catalla felonum fugitivorum within the Isle of Ely and one dwelling within the Island was attainted of Felony to whom another was indebted by Obligation and the money by the Condition of the Bond was to be paid at a Manor of the Lord St. John's who within his Manor

Law doth admit the oath of the party in his own cause as in Debt the Defendant shall wage his Law Periam That 's an ancient Law but we will not make new Presidents for if such oath be accepted in this Case by the same reason in all cases where is secrecy and no external proof upon which would follow great inconveniencies and although such an Oath hath been before accepted of and allowed here yet the same doth not move us and we see no reason to multiply such Presidents The Declaration is that the Plaintiff was robbed of 10 l. de denariis ipsius querentis and upon the Evidence it appeareth That the Plaintiff was the Receiver of the Lady Rich and had received the said money for the use of the said Lady and exception was taken to it by Shuttleworth but it was not allowed for the Plaintiff is accomptable to the Lady Rich the said money And it was agreed that if he who was robbed after he hath made Hue and Cry doth not farther follow the thieves yet his Action doth remain CX Large 's Case Mich. 29 Eliz. In the King's-Bench 3 Len. 182. THE Case was A. seised of Lands in Fee devised the Lands to his wife until William his son should come to the age of 22 years and then the Remainder of part of the Lands to his two sons A. and John The Remainder of other part of his Lands to two others of his said sons upon condition That if any of his said sons before William should come to the age of 22 years shall go about to make any sale of any part c. he shall for ever lose the Lands and the same shall remain over c. And before his said son William came to the age of 22 years one of the other sons Leased that which to him belonged for 60 years and so from 60 years to 60 years until 240 years ended c. Bois A. and J. are joynt-tenants of the Remainder and he said That the opinion of Audley Lord Chancellor of England is not Law scil where a man deviseth Lands to two and to their heirs they are not joynt-tenants as to the survivor but if one of them dieth the survivor shall not have the whole but the heir of his that dieth shall have the moyety See 30 H. 8. Br. Devise 29. And he said That this Lease although it be for so many years is not a sale intended within the Will and so is not a Ioynture 46 E. 3. One was bounden that he should not alien certain Lands and the Obligor did thereof enfeoff his son and heir apparent the same was held to be no alienation within the Condition of the Obligation Of the other side it was argued The remainder doth not vest presently for it is incertain if it shall vest at all for if William dieth before he cometh to the age of 22 years it was conceived by him that the Remainder shall never vest for the words of the Will are Then the Lands shall remain c. 34 E. 3. Formedon 36. Land is devised to A. for life and if he be disturbed by the heir of the Devisor that then the Land shall remain to D. Here D. hath not any remainder before that A. be disturbed It was farther argued that here is a good Condition and that the Devisee is not utterly restrained from sale but onely untill a certain time scil to the age of William of 22 years And it was said that this Lease is a Covenous Lease being made for 240 years without any Rent reserved As such a Lease made for 100 years or 200 years is Mortmain as well as if it had been an express Feoffment or Alienation But it was said by some Antea 36 37. that here is not any sale at all nor any lease for the Lessor himself hath not any thing in the Land demised As if a man disseiseth a Feme sole and seaseth the Lands and afterwards marrieth the disseisee he shall avoid his own Lease 5 E 3. One was bound that he should not alien such a Manor the Obligor alieneth one Acre parcell of it the Obligation is forfeit See 29 H. 8. Br. Mortgage 36. A. leaseth to a religious house for 100 years and so from 100 years to 100 years untill 800 years be encurred the same is Mortmain Vide Stat. 7 E. 1. Colore termini emere vel vendere And in the principal Case if the Devisee had entred into a Statute to the value of the Land leased by the intent of the Will the same had been a sale and such was the opinion of the whole Court and by the Court the word in perpetuum shall not be referred to the words precedent but unto the words following scil in perpetuum perdat the Lands And if a custome be in the case that the Infant of the age of 15 years may sell his Lands if he make a Lease the same is not warranted by the custome And afterwards it was adjudged by the whole Court that the Lease made as before was a sale within the intent of the Will of the Devisor CXI Brooke 's Case Hill. 29 Eliz. In the King's-Bench APpeal of Burglary was brought against Brooke who was found guilty and before Iudgment given the Plaintiff died And now Egerton moved that Iudgment should be given for the Queen upon that verdict or at least that the Declaration in the Appeal should be in lieu of an Indictment and that the Appealee be thereupon arraigned and put to answer the same For if the Appellant had been Nonsuit or released the Defendant should be arraigned at the suit of the Queen Coke God hath now by the death of the party delivered the Defendant and it is not like where the Plaintiff releaseth for there it is the default of the Act of the party but here it is the Act of God and he held it for a rule That where auterfoits acquit is a good Plea there also auterfoits convict shall be a good Plea And it was holden in Sir Tho. Holcroft's Case Sir Thomas Holcroft's Case That where the party is convicted at the suit of the Queen there the Appeal doth not afterwards lie Wray If the Appellant dieth before Verdict the Defendant shall be arraigned at the suit of the King But if his life hath been once in jeopardy by Verdict he conceived that it shall not again be drawn into danger and some were of opinion that the Defendant should be arraigned at the suit of the Queen upon the whole Record and plead auterfoits acquit and that they said was the surest way CXII Ognel and Paston 's Case 29 Eliz. In the Exchequer .. 1 Cro. 64. CLement Paston was Defendant in an Action of Debt brought against him by George Ognel upon an Escape and the Case was this Francis Woodhouse was bound in a Recognizance to the said Ognel Whereupon Ognel sued forth a Scire facias and upon two Nihils retorned had

the Lessee entred 29 Sept. which is before the Term begins For the words of the Habendum are From the Feast of St. Michael therefore the Feast of St. Michael is no part of the Term and then was the Defendant a Disseisor and the day after the Term began which cannot alter his Estate but that he continueth a Disseisor and then he is not in by force of the said Lease and so no Rent can be due Williams As the Declaration is here the same is not any disseisin for the Plaintiff set forth in his Declaration That the Lessee the Defendant hath occupied the Land demised the whole year and so hath not admitted any Disseisin it being in his election to make it a Disseisin or not Clench Iustice Be it a Disseisin or not or be it that the Defendant entreth or not he is to pay the Rent Gawdy The Lessee is a Disseisor and continueth a Disseisor and yet Debt lieth against him for the Rent by reason of the privity of Contract which see Rysden's Case 24 H. 8. Dyer 5. And so in our Case Quod fuit concessum per totam Curiam and afterwards Iudgment was given for the Plaintiff CXXII Monings and Worley 's Case Hill. 32 Eliz. In the King's-Bench Rot. 561. Error IN Debt upon an Obligation brought by Mary Worley against Monings in the Common-Pleas The Condition was That if Mary Worley the Plaintiff in the said Action doth not depart out of the service of the Defendant without license of the Defendant Monings nor marry her self but with his consent Then if the Defendant shall pay to the said Mary within twenty eight days after demand by her made of Monings at his house at Waldersey 100 l. That then c. And the Defendant in the said Action pleaded That the said Mary the Plaintiff in the said Action 4 Maii 30 Eliz. departed out of his service without licence The Plaintiff Mary by Replication said That 6 Septemb. the same year she departed out of his service with licence and that 4 Octob. after she demanded the said 100 l. at Waldersey aforesaid and he refused to pay it Absque hoc that she departed out of his service 4 Maii 30 Eliz. without licence and the Writ bare date 18. of October next after the demand And it was found for the Plaintiff and Iudgment given for her in the Common-Pleas and now a Writ of Error is brought by Monings Tanfield The Iudgment ought to be reversed for always the Replication in such cases ought to contain sufficient Cause of Action and sufficient breach of the Condition or otherwise the Plaintiff shall not have Iudgment although that the Issue be found for him as 7 E. 4. 31. In trespass for taking of goods of A. and B. A. pleads Not guilty B. justifies the Plaintiff makes Title to the goods by a gift B. traverseth the gift and it is found for him against the Plaintiff A. is found guilty Now although A. be found guilty yet the Plaintiff shall not have judgment against him for it is found that he hath not any Title to the goods As in Debt upon a Bond against A. and B. A. pleads Non est factum B. pleads the release of the Plaintiff and it is found the Deed of A. and that the Plaintiff hath released to B. the Plaintiff shall never have Iudgment for upon the Verdict it appears that he hath not cause of Action And here in the Replication there is not a sufficient breach shewed of the Condition for although that Mary hath not departed from the service of the said Defendant yet the same is not material but the Defendant had twenty eight days after the demand to pay the 100 l. but the same is not so here for the Plaintiff hath prevented the Defendant for the demand is alledged to be 4. Oct. and the Writ bears date 18. Octob. the same year and so the Defendant had not his time allowed him Gawdy The issue is taken upon the departure out of his service so as the demand is not now material and therefore the alledging of the same is surplusage and shall not hurt And the Defendant hath pleaded in Bar the departure of the Plaintiff out of his service upon which he relieth and the demand set forth in the Replication is not to be regarded as to prejudice the Plaintiff As 3 Ma. Dyer 115. Lessee for years covenants that he will not cut any Trees The Lessor assigns the breach of the Covenant in succidendo twenty Oaks The Lessee pleads that he did not cut the twenty Trees nor any of them The Iury found that the Defendant had cut down ten Trees The Plaintiff upon that Verdict shall have Iudgment for the rest is but surplusage and more put in issue than there needs to be Fenner It is not any full Plea to say That the Plaintiff did not depart out of the service of the Defendant 4 Maii for if she departeth at any other time she shall not recover for which cause she ought to have pleaded That she continued in his service untill such a day and then she departed with his licence and the inducement to the traverse ought to be sufficient matter otherwise it is not a full Plea nor the Traverse is not good And if it be surplusage yet if it be not matter against her self it makes the Plea naught which see 1 H. 7. 29. 6 H. 7. 16. Gawdy conceived that the Iudgment was well given for the Defendant was at his liberty to plead the departure of the Plaintiff without his licence or to stand upon the demand And now although he pleads the departure yet the demand is not confessed And afterwards the Iudgment given in the Court of Common-Pleas was affirmed CXXIII Bashpool 's Case 27 Eliz. In the King's-Bench THE Case was this The Father seised of Lands Stiles Rep. 148. is bound in an Obligation and deviseth his Lands to his Wife untill his Son cometh to the age of twenty one years the remainder to the Son in Fee and dieth and no other Lands descend or come to the Son from his Father It was moved by Godfrey That the Heir in that case at his Election might wave the Devise and take by descent or è contra See 9 E. 4. 18. by Needham But Gawdy and Shute Iustices 3 Len. 118. were of opinion That the Son should be adjudged in by Descent Clench contrary CXXIV Bennet and Shortwright 's Case Trin. 30 Eliz. In the King's-Bench THE Case was 1 Cro. 206. The Defendant sued the Plaintiff in the Spiritual Court for Tythes in kind and now the Plaintiff prayed a Prohibition and suggested That they had used in the said Parish time out of mind c. to take the tenth Sheaf in satisfaction of Tythe of Corn c. and in those years in which the Plaintiff had supposed the subtraction of his Tythes he had severed the tenth Sheaf from the nine parts and the Parson would not take

the Office found Also the Traverse is not good for he traverseth the matter of the Conveyance which is not traversable for if the King hath Title non refert quomodo or by what Conveyance he hath it As to the matter in Law scil Tenant in tail in Remainder is attainted of Felony if the King during the life of Tenant in tail shall have the freehold and he conceived that he 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 Tenant for life is alive and also he in the Remainder in Fee c. the Donor shall not have it for the Tenant in Remainder 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 might vest and remain then the King should not have the Freehold but onely the profits So if the Tenant be attainted the Lord shall have the Lands 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 for the Freehold vests 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 for his life See Old N. B. 99. If Tenant in tail for life dower or by the curtesie be attainted of Felony the King shall have the Lands during their lives and after their deceases he in the Reversion shall sue unto the King by Petition and shall have the Lands out of the King's hands and there it is farther said That the Lord by Escheat cannot have it for the party attainted was not his very Tenant nor he in the Reversion for the term yet endures But now it is to see if the Freehold be in the King without Office and he conceived and argued that it was 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. 21. where the Entry in case of a common person is necessary there it is requisite that there be an Office for the King As if a Villain of the King purchaseth Lands or an Alien born c. so for a condition broken Mortmain c. And in some cases an Office is onely necessary to instruct the King how he shall charge the Officer for the profits which may be supplied as well by Survey as by Office as if the King be to take by descent or as the Case is here And true it is that a person attainted of Felony may during his Attainder purchase Lands and yet he cannot hold 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 it but now that defect is supplied by the Statute of 31 H. 8. cap. 20. So that now the King may grant without Office See Doughtie's Case 26 Eliz. And in our Case an Office is not necessary to entitle the King but for explaining of his Title and see 9 H. 7. 2. The Lands of a man attainted of High Treason are in the King without Office so where the King's Tenant dieth without Heir or Tenant in tail of the Gift of the King dieth without issue See Br. Office before the Escheator 34. and see 13 H. 4. 270. A man is attainted of Treason the King before Office grants his Lands and Goods Things which lie in Grant as Advowsons Rents Remainder such things upon Attainder are in the King without Office. As to the general pardon of 23 Eliz. he said That that doth not extend to this Case and that this interest of the Queen by this Attainder doth not pass by that pardon out of the Queen so if the Queen had but a Right or Title onely Popham Attorney General By this Attainder the Estate of him in the Remainder in tail accrueth unto 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 examples of others therefore nothing is left in the party Tenant for life is attainted of Felony the King pardoneth him his life yet he shall have his Lands during his life and he may dispose of the same for his life And so is it of Tenant in tail for he may forfeit all that which he hath and that is an Estate for his life which is a Freehold If Lands be given to one and his Heirs for the term of 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 bloud is corrupt and there is not any occupancy in the case for 17 E. 3. the Iustices would not accept of a Fine for the life of another because there might be an Occupant in the case But for a Fine of Land to one and his Heirs for the life of another they would take 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 B. dieth now the King hath the Fee executed And here in our Case If the Tenant for life had been dead no Praecipe had lien against him in the Remainder being in possession but the party who hath right is to sue unto the King by Petition 4 E. 3. If one seised of Lands in the right of his Wife for life be attainted the King shall have exitus proficua but he conceived that Case not to be Law For see F. N. B. 254 D. The Husband seised in the right of his Wife in Fee is outlawed for Felony the King seiseth the Husband dieth now shall issue forth a Diem clausit extremum the words of which Writ in such case are Quia A. cujus Terr Tenement quae ipse tenuit de jure haereditate N. uxoris suae adhuc superstitis occasione ejusdem Utlagar ' in ipsum pro quadam Felonia unde indictatus fuit c. in Man. Domini H. patris nostri extiterunt c. therefore the King had not the issues onely but also the Lands See to the same purpose the Register 292. b. Stamford's Placita Coronae 186 187. affirms That Tenant in tail being attainted of Felony shall forfeit his Lands during his life And he said that the Estate of Thomas Venables was in the King without Office not to grant for that is restrained by the Statute of 18 H. 6. but it is in him before Office so as he who hath right ought

to sue to the King by Petition if he will have his Land yet he conceived that before the Statute of 18 H. 6. the King might grant the Land before Office as it appeareth by Thirning 13 H. 4. 278. who was before the said Statute So if the King's Tenant makes a Lease for years the Remainder over to another in Fee who dieth without Heir the 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 said That it doth not extend to this Estate for this is a Freehold ergo not within the pardon As if the King's Tenant be attainted of Felony and the King pardons him all offences and all things which he may pardon these words shall not go nor extend to Freeholds but onely unto personal matters and such punishments and peins which do concern Chattels But it may be objected That by this pardon Title of Quare Impedit and Re-entries for Conditions broken are excepted and therefore if they had not been excepted they had been remitted by the pardon and therefore this pardon shall extend to Inheritances and Freeholds As to that I say That such Exceptions were not in use in the time of H. 4. and yet Inheritances and Freeholds were not taken to be within such pardons and such Exceptions did begin 5 Eliz And he said he had been of Council in such Cases where it hath been taken that such pardons did not extend to Freeholds As an Abbat was disseised and afterwards during the Disseisin the Abby is dissolved the King makes such pardon the same doth not transfer the Right of the King and in that Pardon are divers Exceptions of Goods and Chattels in many cases and therefore it cannot be intended that the pardon doth extend to Freeholds And see the said Act of pardon The Queen grants all Goods Chattels Debts Fines Issues Profits Amercements Forfeitures Sums of Moneys which word Forfeiture shall be intended of a personal Forfeiture non aliter for it is coupled with things of such nature And as to the Traverse he said It did not lie in this Case for the Office is not untrue but true in substance although void in circumstance And also the King here is entituled by double matter of Record scil the Attainder and the Office and he said that the Statutes of 34 and 36 E. 3. which gave Traverse are to be intended of Offices found virtute Officii and not virtute Brevis for then Efcheators were very troublesome And the Statute of 2 E. 6. doth not give Traverse but where the Office is untruly found as if Tenant of the King be disseised and the Disseisor be attainted the Queen seiseth the Land Now the Disseisee hath not remedy by Traverse upon the Statute of 2 E. 6. but is put to his Monstrans de Droit for the Office is true But if I be Tenant of the King and seised of Land accordingly and it was 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 in our Case for the Traverse it is at the Common Law and it was true that Venables was seised Coke to the contrary and he said That by the Attainder the Queen hath gained but a Chattel and that notwithstanding this Forfeiture if Venables had been in possession a Praecipe should be brought against him And where it hath been said by Mr. Attorney That Writs set down in the Register are the best Expositours of our Law the same is not so for the Register saith That Waste lieth notwithstanding a Mesn Remainder which is not now Law but it hath been clearly ruled to the contrary and see accordingly 50 E. 3. the Register therefore and the Writs are subject to the Iudgment of our Law and the Writ of Diem clausit extremum is not to the contrary for I confess that in such case the Land shall be seised into the hands of the King but the King shall not have but a Chattel therein It hath been argued It may be granted Roll. Tit. Grant. 4 Len. 112. ac Godb. 351. a. therefore it may be forfeited 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 Inheretrix taketh a Husband who afterwards is attainted of Felony the King pardons him they have issue the Husband shall be Tenant by the curtesie which proveth that the King hath not the Freehold by that Attainder Before the Statute of Westm 2. Tenant in tail post prolem suscitatam might forfeit his Lands but now the Statute hath so incorporated the Estate tail to the Tenant in tail that it cannot be devested even a Fine levied by him ipso jure 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. The Husband seised in the right of his Wife is attainted of Felony the King shall have the profits of the Lands of the Wife during the life of the Husband c. So if Tenant in tail be attainted of Felony and 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 Queen's hands for a Contempt in such case the Queen hath the possession and not the profits onely the same Law of the Lands of Tenant in tail or for life being attainted of Felony so of seisure for Alienation without license or of the possessions of Priors Aliens See Brook Reseiser 10. So where the Seisure is for Ideocy And he said That in the principal Case nothing is in the King until Office and as to the Case of 13 H. 4. 6. he confessed the same for at 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 before Office. Tenant in Fee of a common Lord is attainted of Felony his Lands remain in him during his life until the Entry of the Lord and where the King is Lord untill Office be found but in the Case of a common person after the death of the person attainted they are in the Lord before Entry and in the Case of the King before Office for the mischief of abeyances And see the Lord Lovel's Case 17 and 18 Eliz. 485 486. Plow where it is holden That upon Attainder of Treason by Act of Parliament the Lands were

extend ad onerand personam of the Grantor for here the Proviso is rather an Exception than a Condition A Lease for years without impeachment of Wast Proviso that he shall not do voluntary Wast the same is a Qualification of the liberty for doing Wast Grant of a Manor Proviso that it shall not extend to wood growing upon the Manor the same is an Exception not a Condition See the Bishop of York's Case 5 Eliz. Dyer 222. The said Bishop made a Lease for certain years of certain Lands Proviso quod tempore vacationis the Rent shall be paid to the Chapter It was holden that the Proviso was not a Condition And here in this Case the Will of George Scott was That the Recoverors should make to the said Hugh a favourable Lease which cannot be if it be a conditional Lease Another point was because the Rent is not well demanded for he hath demanded the whole Rent of the year whereas but half a years Rent was onely due Coke contrary where the Proviso is parcel of one sentence which contains a Covenant or abridgeth the Covenant there it shall not amount to a Condition but to an Exception as a Grant of a Rent-charge Proviso that he shall not charge the person abridgeth the force of the Grant so a Lease without impeachment of Wast Proviso that the Feoffee shall not do voluntary Wast the same abridgeth the liberty But in our Case this Proviso makes a Condition and not a Qualification of the sentence or of any Covenant contained in the sentence nor doth it participate altogether with the sentence but stands substantively for it was a full sentence before A Feoffment in Fee with Warranty Proviso that when he is impleaded he shall not vouch J. S. the same is a good Condition for J. S. is a stranger contrary that he shall not vouch the Feoffor And a Proviso never makes a Covenant and therefore it shall be either a Condition or void And he said That by the devise Hugh Scott had a Lease without any Lease to be made by the Recoverors As unto the demand of the whole Rent where but half a years Rent was due the same is good enough And so was it adjudged in a Case betwixt Andrew's and the Lord Cromwell for he is at his peril to pay the one moyety and in as much as he denieth the whole he denieth every part It was adjorned CLXXI. Hawkins 's Case Mich. 29 Eliz. In the King's-Bench ONE Hawkins was seised of three Messuages in Bury in his Demesit as of Fee and had issue Robert Christian and Joan Postea 193. 1 Cro. 53. 3 Len. 180. 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 Christian and to her heirs and the remainder of the third Messuage to Joan and her heirs And farther by his Will devised That if any of his said issues die without issue of his body that then the other surviving shall have totam illam partem c. between them equally to be divided The Devisor dieth the wife of the Devisor dieth Joan dieth having issue Robert dieth without issue Christian entreth into all the house of Robert and dieth and her husband holds in as Tenant by the Curtesie Coke The surviving child shall have the whole and the issue of Joan shall have nothing and he said That by this Devise they have an Estate in tail for the Fee doth not vest in any of them for it is written Who shall survive But when one overlives he shall have in Fee for these words totam illam partem go to the whole Estate as well as to the whole Land. I devise my Land wholy to one he hath Fee thereby And he said that the three Devisees have fee-Fee-tail and Fee expectant each severally as to the Messuage to him limited Golding contrary Each 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 may appear what Estate he shall have by the survivorship I grant the Case which Perkins denies but Littleton affirms scil A Devise to one of lands 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 the words totam partem illam the same is all one as if he had said partem illam without the word totam And also he said That where one onely survives no farther the Estate vests for there ought to be two to take by the survivor for the words are Equally to be divided betwixt them And then if it cannot accrue by survivor then it shall descend and if it had accrued to two by the survivor they shall be thereof Tenants in common not Ioynt-tenants by reason of these words Equally to be divided Clench Iustice The words Totam illam partem go to the house and not to the Estate in it Shute Iustice accordingly and he said If both daughters had survived they should have Fee in the house of Robert but not by the Will but by descent in coparcenary Also when two are dead the son and one daughter then it cannot be divided therefore the Will as to that is void and then the common Law shall take place and put the house to the issue of one daughter and of the other daughter surviving Gawdy Iustice Here is but an Estate for life in the survivor It hath been objected That then having but an Estate for life the same Estate is drowned by the descent of the Fee-simple 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 initio it was not so for it became void by matter of later time scil by the descent of the Fee-simple for if one of the daughters had died without issue before the death of Robert so as the house of such daughter should have come to the said Robert and the other sister there is no coparcenary for the son hath all the Fee and the moyety of the same is executed and the other moyety expectant and the sister hath a moyety for life and then the Devise not void Also here are not two survivors so 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 Christian and Joan and so Iudgment was given against the husband who claims to be Tenant by the Curtesie of the whole Messuage CLXXII Wye and Throgmorton 's Case Pasc 27 Eliz. In the Common Pleas. IN Debt upon a Bond by Wye against Throgmorton The Condition of the Obligation was to perform Covenants in a pair of Indentures And the

Statute and the penalties thereof And upon a great deliberation it was by them all resolved and agreed That notwithstanding the said Conveyance the said Lands were liable to the said Statute And as to the Iurors who against the Evidence given to them for the Queen gave their Verdict ut supra Process was awarded against them out of the Court of Exchequer for to appear before the Lord Treasurer and the Barons And for their said contempt they were committed to the Fleet and each of them fined 50 l. CLXXVI Moore and Savil 's Case Trin. 27 Eliz. In the Exchequer IN an Ejectione firmae by Moore against Savil the Case was That Tenant in tail leased the Land to the father mother and son for their lives by Indenture in which it was comprehended That forasmuch as the Lessor is but Tenant in tail and so cannot by Law limit these Estates by way of Remainder but jointly in possession and his intent was That because this Lease was procured and obtained at the special suit and costs and charges of the father That the said son should suffer his father and after him his mother to take the profits of the said Lands demised and to occupy and hold the said Lands to their onely profit without interruption of the said son notwithstanding his joint Estate in possession with them Provisum igitur est That if the said son shall challenge claim demand or take any profits of the Lands so demised or enter into the same during the life of his said father or mother That then the Estate to him limited by the said Indenture should cease and be utterly void And it was the clear opinion of the whole Court That this Condition and Proviso was utterly void for it is contrary to the Estate limited before as in the Case cited by Coke at the Bar. If I lease to you my Lands for 20 years Proviso that you shall not occupy the same the two first years the same Proviso is void and contrary and repugnant to the Estate CLXXVII Lord Cromwel and Townsend 's Case Mich. 28 Eliz. In the Star-Chamber HEnry Lord Cromwel exhibited a Bill in the Star-Chamber against Roger Townsend Esquire for that the said Roger Townsend in an Action betwixt James Taverner Plaintiff and James Cromwel Farmor of the said Lord Cromwel Defendant in Trespass in the favour and unlawfull maintenance of the said Taverner did procure a partial Iury to be retorned And upon the hearing of the Cause the matter given in Evidence was That the said Taverner was a Copiholder of the said Lord Cromwel and that the said Lord Cromwel pretending that the said Taverner had forfeited his Copihold caused the said James Cromwel to make an Entry in the right of the said Lord upon the said Taverner upon which Entry Taverner brought an Action of Trespass against the said James Cromwel in which Action the parties were at Issue upon the forfeiture And before any Venire facias issued forth Taverner hearing that one Steward who was Bailiff of the Franchize under the Earl of Arundel and who ought to make the Pannel c. was purposed to have made the said Pannel not duly viz. to retorn therein great Gentlemen of the County who were Lords of Manors in favour of the said Lord Cromwel went unto the said Roger Townsend who was then one of the principal servants and agents of the said Earl and shewed to him that if those great persons and Lords of Manors be retorned for the trial of that Issue peradventure they would not so easily appear for the expedition of the parties as people of lesser condition and also many of them being Lords of Manors and having customary Tenants and therefore not indifferent to try that Issue and prayed his Order to the said Steward for the making of an indifferent Pannel where upon a conference with the said Steward for the making of an indifferent Pannel and shewing to him the making of the said Pannel was not convenient or any equal course to retorn Knights Esquires or Lords of Manors but rather such sufficient persons for the greater expedition of Iustice and indifferency of the trial And afterwards the said Taverner exhibited a Petition shewing all the special matter and praying him to give Order for the making of an indifferent Pannel for the trial of that Cause which Petition was delivered to the said Earl by the said Townsend in the name of the said Taverner Vpon which the Earl did refer the said matter to three of his chiefest agents and Counsellours i. Dicksey Townsend and Carrel and delivered to them the Book of Freeholders within the said Franchise who according to their Commission made a Pannel which was retorned and the Iury passed with the said James Cromwel in the right of the said Lord And if this intermedling of Townsend with this matter as abovesaid c. especially his conference with the Bailiff be maintenance or not was the Question And by the Lord Anderson and the Lord Wray chief Iustices It was delivered for Law That because the said Townsend was in manner a servant of the said Earl who had retorn of Writs and one of his principal Counsellours and agents and hearing Ex insinuatione of the said Taverner the misdemeanour of the Bailiff of his Lord could not do better than to shew to the Bailiff his duty for it concerned the honour of his Lord and also his Inheritance in the Franchise But if the said Townsend had been a mere stranger to the said Earl so as no such privity had been betwixt them it had been clearly maintenance in Townsend as it was lately adjudged in this Court in the Case of one Gifford Gifford's Case where the parties being at Issue and a Venire facias was to the Sheriff to retorn a Iury a stranger wrote to one of the Iurors who was retorned in the Pannel praying him to appear at the day and to doe in the Cause according to his Conscience and that was adjudged Maintenance And afterwards upon the full hearing of the cause the said Townsend by the sentence of the said Court was acquitted of every Maintenance with great allowance and approbation of many Lords of the Council there present Bromley Cancellario tantum exclamante CLXXVIII Sir Moil Finch 's Case 33 Eliz. In the Exchequer 2 Roll 184. 1 Cro. 220. Poph. 25. 1 Roll 215. THE Case was this The King and Queen Philip and Mary leased for seventy years for certain Rent payable at the Feasts of Saint Michael and the Annunciation Proviso that if the Rent be behind and not paid by the space of forty days after any of the Feasts aforesaid that the Lease shall cease and be void At Mich. 9 Eliz. the Rent was not paid according to the Proviso but a Month after the said forty days it was paid and Acquittance given for it and so the Rents due after unto 30 Eliz. were duly paid and Acquittances given for the same

being void he presents he may repeal his presentment and he vouched divers presidents of Grants of the King of such lands to hold of him as of his Dutchy and sometimes of others And the King by his Dutchy seal may give lands in Mortmain and the King under his Dutchy-seal hath made divers Corporations within his Dutchy And although this Rent be a new thing never parcel of the Dutchy yet because it is issuing out of the Dutchy lands and reserved thereout shall be of the same nature and accounted parcel of the possessions of the Dutchy If before the Statute of West 3. one seised of lands on the part of his mother made a Feoffment in Fee Tenend by such services and died the Seignory should go to the heir on the part of his mother and should be descendable as the land it self in lieu of which it came And if Tenant in tail now after the Statute of 32 H. 8. makes a Lease for years according to the Statute rendring Rent to him and his heirs it shall be expounded such heirs which are inheritable to the land according to the entail Manwood chief Baron Demanded of Plowden this Question The King makes a Feoffment in Fee of lands of his Dutchy Is the same a matter of Record who answered yes Manwood Truely no for then there needed not any livery Egerton Solicitor argued to the contrary and he argued much upon the Statute of 1 H. 4. and 1 H. 7. of the separation of the Dutchy of Lancaster from the Crown which see in the Comment 215. in the Case of the Dutchy of Lancaster by which Acts the possessions of the Dutchy were devested out of the body Politick of the King and vested in his body natural and are as their corporal holding in the King as they were in the Duke of Lancaster being a Subject who if he had made a Feoffment the Feoffee should not hold of him but of the King Ergo so shall it be in the case where the King himself makes a Feoffment and he cited a Case put in the end of the Dutchy Case 4 Eliz. 223. The Queen made a Feoffment of lands of the Dutchy out of the County Palatine to hold of her in Capite the Feoffee shall hold of her in Capite as of her Crown of England The case went farther the King after this Feoffment granteth the Fee-farm the Question is If the Rent reserved upon this Feoffment shall pass by such grant or not and he said That this Rent is not parcel of the Fee-farm but rather a collateral charge upon the land for in all cases where there is a Tenure expressed in fait or implyed in Law there the rent reserved after shall not be parcel of the Tenure but a Rent in gross by it self As in our case Tenend in feod firm makes a Tenure therefore the Reddend after shall not make the sum reserved parcel of it 33 E. 3. Annuity 52. before the Statute of Quia Emptores terrarum a man makes a Feoffment in Fee Tenend de Dominis Capital rendring the rent of 20 l. that Rent is a Rent in gross and not parcel of the Tenure King E. 6. granted to Cranmer Archbishop and his heirs Tenend by the fifth part of a Knight's-fee Reddend 6 l. per ann Cranmer in Feoffment in Fee to the use of himself for life the remainder to the use of his son in tail the remainder to the use of the right heirs of Cranmer made a Fee who is attainted of Treason by which the remainder to his right heirs Escheats to the King and so the Seignory is extinct but it was adjudged That the Rent was in esse and not extinct by the Escheat of the remainder for it was not parcel of the Seignory So here in our case Another matter was moved If this Rent being a new thing created de novo and not parcels of the possessions of the Dutchy 1 H. 4. nor 1 H. 7. shall be accounted in Law in the right of the Crown or of the Dutchy and if of the Crown then it cannot pass by the Dutchy-seal and the Statute of 1 H. 4. speaks of such Lands and Tenements which were to his Ancestors Dukes of Lancaster but this Rent never was in them c. and the Queen cannot enlarge the possessions of her Dutchy by her own Act and therefore if J. S. being Tenant in Fee-simple be impleaded in a Praecipe quod reddat and saith that he holdeth for life the remainder to the King in Fee in the right of his Dutchy now this remainder is vested in the King in the right of his Crown and not in the right of his Dutchy for it is onely an Estoppel So the Villein of the King in the right of his Dutchy purchaseth lands the King seiseth he shall have the lands in the right of his Crown and not in the right of the Dutchy If the King giveth Common out of his lands parcel of his Dutchy and afterwards makes a Feoffment in Fee of the lands out of which the Common is granted and afterwards the Commoner dieth without heir the King shall have the same in the right of his Crown and not in the right of the Dutchy So although the rent doth follow the nature of the lands out of which it is issuing yet it is not so to all intents and he said That by the Statute of 2 3 Phil. Ma. the King could not enlarge the possessions of the Dutchy and therefore by the said Act authority is given for to annex possession unto the Dutchy by Letters Patents And there is another clause in the said Statute That if any part of the possessions of the Dutchy have been aliened or granted unto any subject and are reverted to the Crown by Escheat attainder forfeiture purchase c. they shall be deemed and accepted parcel of the Dutchy which case proves That if the King makes a Feoffment of such lands the same is a Tenure in chief for if it were a Tenure of the Dutchy then upon Escheat it should be parcel of the Dutchy again without the help of that Statute Now this Rent being a Rent in gross and not parcel of the Seignory Reddendo Domino Regi haeredibus successoribus suis aut Domino aut Dominis feodi when the King grants the Seignory to the Lord Audley it hath been moved that it was in the Election of the Feoffee to pay the Rent to the King or to the Lord Audley but that is not so for although the Law be so betwixt Subjects yet in case of the King it is otherwise for the King shall never be over-reached by an Election and therefore he shall pay the Rent to the King. It was adjourned CLXXXV The Executors of Sir William Cordel and Clifton 's Case Hill. 18 Eliz. In the Common Pleas. 3 Len. 59. THE Case was The Earl of Westmerland seised of a Manor whereof the Demeans were usually let for three lives by Copy

according to the custome of the Manor granted a Rent-charge to Sir William Cordel 2 Roll 157. Pro concilio impendendo for the term of his life and afterwards conveyed the Manor to Sir William Clifton in tail The Rent is behind 12 Brownl 208. Sir William Cordel dieth Sir William Clifton dieth the Manor descends to John Clifton who grants a Copihold to Hempston the Executors of Sir William Cordel distrain for the Rent It was agreed by the whole Court Antea 109. That the Copyholder should hold the land charged Windham Iustice It hath been adjudged that the wife of the Lord shall not be endowed against the Copyholder Dyer 270. which Periam granted but gave the reason of it for the Title of the Dower is not consummated before the death of the husband so as the Title of the Copyholder is compleated before the Title of Dower More 94. 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. of Wills For by the preface of the said Statute he conceived That the said Statute did extend 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 an Action of debt ergo But Periam and Windham contrary For this Statute doth intend a farther remedy for that mischief scil not onely an action of debt but also distress and avowry See the words of the Statute Distrain for the arrearages c. upon the lands c. which were charged with the payment of such rents and chargeable to the Distress of the Testator or in the seisin or possession of any other person or persons claiming the said lands onely by and from the same Tenant by purchase gift or descent in like manner and form as their Testator might or ought to have done in his life time And it was moved by Fenner That here the said land charged doth not continue in the seisin or possession of the Tenant and here Sir John Clifton was issue in tail and therefore he doth not claim onely by the father but per formam Doni and therefore he is not liable therefore neither his Copyholder Shuttleworth Serjeant contrary That Sir John Clifton was chargeable and he claims onely from them who immediately ought to have paid the Rent and the Copyholder claims by purchase from Sir John Clifton so he claims from Sir William Clifton the Tenant c. although he doth not claim immediately from him For if the Tenant ought to have paid it and dieth and the land descendeth to his heir and the Heir maketh a Feoffment in Fee the Feoffee shall be charged within this Statute although he doth not claim immediately so where land descends from the Tenant which ought to have paid it and so from Heir to Heir The Statute of 1 R. 3. wills that all grants c. shall be good against the Donor his Heirs c. claiming onely as Heirs to Cestuy que use c. Yet if Cestuy que use granteth a Rent-charge and the Feoffees are disseised the Grant shall be good against the Disseisor and yet he doth not claim onely by Cestuy que use And although Sir John Clifton be Tenant in tail and claims per formam Doni Yet because the Estate tail cometh under the Estate of him who grants the Rent he shall be subject to the charge And this Statute extends not onely to him who claims by the Tenant but also to the Heir of him who grants c. And by Windham and Rhodes The Copyholder doth not claim onely by the Lord but he claims also by the custome but the custome is not any part of his Title but onely appoints the manner how he shall hold c. The possession continues here in Sir John Clifton for the possession of his Copyholder is his possession so as if the Copyholder be ousted Sir John Clifton shall have an Assise And so the strict words of the Statute are observed for the seisin and possession continues in Sir John Clifton who claims onely by Sir William Clifton who was the Tenant in demean who ought to pay the Rent But Fenner said to that that the seisin and possession intended in the Statute is the very actual possession scil Pedis dispositio and such a possession in which the distress may be taken and that cannot be taken in a Freehold without an actual possession CLXXXVI 19 Eliz. In the Common-Pleas 3 Len. 65. A. Seised of land in Fee by his Will in writing granted a Rent-charge of 5. l. per an out of it to his younger son towards his Education and bringing up in Learning and if in pleading the Devisee ought to aver that he was brought up in Learning was the Question And it was holden by Dyer Manwood and Mounson that such averment needs not 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 he well knew that 5 l. per an would not nor could extend to maintain a Scholar in Learning Dy. 329. a. in diet apparel books c. and this Rent although it be not sufficient to such purpose yet he shall have it And Dyer said That such a case was here Two were bound to stand to the award of certain persons who awarded that the one of them should pay unto the other 20 s. per an during the term of six years towards the education and bringing up of such a one an Infant and within the two first years of the said term the Infant died so as now there needed not any supply towards his education yet it was adjudged that the yearly sum ought to be paid for the whole term after for the words toward his education are but to shew the intent and consideration of the payment of that sum and no word of condition c. CLXXXVII West and Stowel 's Case Mich. 20 Eliz. In the Common Pleas. 1 Cro. 870. Townsend 17. 1 Roll 28. More 549. Sty 353. a. IN an Action upon the Case by Thomas West against Sir John Stowell The Plaintiff Declared That the Defendant in consideration that the Plaintiff promised to the Defendant that if the Defendant shall win a certain match at shooting made between the Lord of Effingham and the Defendant then the Plaintiff should pay to the Defendant 10 l. and promised to the Plaintiff That if the said L. Effingham shall win the same match of the Defendant that then the Defendant would pay to the Plaintiff 10 l. And farther declared That the Lord Effingham won the match for which the Action is brought It was moved that here is not any sufficient consideration for the promise of the Plaintiff to

first Fine doth not make any discontinuance and yet he conceived it is not altogether void against the issues before that they enter for no Right remains in the Conusor against his Fine and he conceived also that this clause ex uberiori gratia nostra did extend to pass more than passed before for he conceived that the Queen intended more liberally viz. the Reversion for this same is not any matter of Prerogative but this is a matter of interest which might even in the Case of the King pass out of the King by general words And see 3 H. 6. 6 and 7 Br. Patents A Grant of the King ex insinuatione shall not hinder the force of the words ex mero motu And the opinion of the Court was That the Reversion which was in the King did not pass by this Grant For the scope of the whole Patent was as was conceived to grant the same onely which the Queen had ratione attincturae Anderson held the Patent insufficient because that the Prohibition was not full and certain Also he said That ex speciali gratia c. would not help this Case if it were well argued for the Estate tail is not well recited but onely that he was seised de Statu haereditario c. so as the Queen was deceived Periam contrary The Queen was apprised well of the mischief and Grant aforesaid viz. of such Estate with which he departed by the Fine And as to the other point it was the opinion of Walmsley That the Fine with Proclamation did bind the Entail And as to the Objection which hath been made That the Conusor at the time of the Fine levied was not seised by force of the Entail the same had been good matter to avoid a common Recovery to alledge such matter in the Tenant to the Praecipe but not to this purpose for if Tenant in tail levieth a Fine although he was not seised at the time of the Fine levied by force of the Entail yet such a Fine shall bind the issues So if the Tenant in tail doth discontinue and disseiseth the Discontinuee and so levieth a Fine And he conceived That the issue in tail is bound by the Statute of 4 H. 7. even of the Gift of the King. And see 19 H. 8. 6. and 7. where it is holden That the issue in tail is bound by the Act of 4 H. 7. And whereas it hath been objected That it doth not extend but to such Fines which make a discontinuance at the Common Law the same is not so for if Tenant in tail of a Rent or Common levieth a Fine with Proclamation it is very clear that the issues shall be barred thereby And he relied much upon the Book of 29 H. 8. Dyer 32. Tenant in tail of the Gift of the King levyeth a Fine or suffereth a common Recovery although it be not a discontinuance because the Reversion is in the King yet it is a bar unto the issue But note That that was before the Statute of 34 H. 8. And see now Wiseman's Case 27 Eliz. Co. 2. part and see the Lord Stafford's Case 7 Jacob. Co. 8 Reports fo 78. CXCII Pleadal 's Case 21 Eliz. In the King's-Bench THe Case was That a man seised of Lands in fee took a Lease by Indenture of the Herbage and Pawnage of the same Land It was the Opinion of the whole Court that the same was no Estoppel to him to claim the Soil or the Freehold And it was said by Plowden and agreed by the Court That if the Father and Son be Ioint-tenants for an hundred years and the Son takes a Lease of his Father of the Lands for fifteen years to begin c. the same shall conclude the Son to claim the whole term or parcel of it by Survivor CXCIII 21 Eliz. In the Star-Chamber NOte That in the Star-Chamber it was resolved by the Advice of many of the Iustices That an Infant having levyed a Fine may declare the uses upon it and such Declaration is good notwithstanding his Nonage and Mr. Plowden affirmed 2 Co. 10 42 57. that so it was adjudged in his own Case by which he lost Lands of the yearly value of 40 l. So a Declaration by a man in duresse is good which Anderson denyed CXCIV The Lord Awdley 's Case 21 Eliz. In the Court of Chancery THE Lord Awdley 12 H. 7. enfeoffed Hoddy and others of certain Lands in the County of Sommerset Dy. 166 324 325. and afterwards by Indenture reciting the said Feoffment and the date of it and also that it was to the intent that his Feoffees should perform his Will as follows in effect viz. My Will is 6 Co. Sir Ed. Cloer's Case That my said Feoffees shall stand seised to the use That the said Hoddy shall receive of the yearly Profits of the said Lands one hundred pounds which he had lent to the said Lord Awdley and also stand seised to pay all his Debts upon Bills signed with his Hand and after the Debts paid That the said Feoffees shall make Estate of the said Lands unto him the said Lord Awdley and Ioan his Wife and to the Heirs of their Bodies c. with divers Remainders over The said Lord had issue by the said Joan and also had issue by a former Wife a Daughter The Feoffees never made any Estate to the said Lord and his Wife And it was the Opinion of divers of the Iustices and Sages of the Law That upon this matter no use was changed for it is not a last Will but an intent And although that the Feoffees shall be seised unto the use of the Feoffor and his Heirs because that no consideration was for which they should be seised to their own use yet the same cannot make a new use unto the said Lord and his wife in tail without conveying an Estate for the wife is a stranger unto the land and also to the other use And it cannot be a Testament or last Will for the Estate mentioned in the said Writing ought to be made to the said Lord and his wife who cannot take by his own Will. And this matter was depending in the Chancery and the advice of the Iustices being there required they did deliver their opinions That by this Writing no use was changed nor any Estate vested in the said Lord and his wife and a Decree was made accordingly untill proof might be made of such an Estate made CXCV. Borough and Holcroft 's Case 21 Eliz. In the King 's Bench. Co. 3. Inst 31. 4 Co. 45. IN an Appeal of Murther by the son of the Lord Borough of the death of his elder brother Henry Borough against Thomas Holcroft who pleaded That heretofore he had been indicted of the Murther of the said Henry Holcroft before J. S. Coroner of the Verge and also Coroner of the Country of Middlesex within which County the Verge was and upon that indictment he was arraigned and confessed the

although he was defrauded but of one Heriot onely as if a man be indebted to me in 20 l. and he makes such a fraudulent Deed of his goods of the value of 2000 l. although I be defrauded but of the 20 l. yet he shall forfeit the whole value of the goods so conveyed Manwood Iustice was of opinion that the Plaintiff should recover the value of one of the Horses and the Gift by the first branch is void as to the Plaintiff but for one of the Horses onely and not for all the Horses contained in the Gift for no more than one Horse was fraudulently given And as by the first branch the Gift is void but for one Horse so by the second branch the penalty extends but unto one Horse for the fraud extends but to one Horse and no farther And this Action is not a popular Action but extends onely to the party grieved And of the same opinion was Dyer chief Iustice and he confessed the Case put by Mounson Iustice where the Debtor of 20 l. makes a fraudulent Deed of his goods of 3000 l. c. for the person of the Debtor is chargeable and peradventure goods of the value of 2000 l. may be put in execution for 100 l. but here the person is not charged for the Heriot Barham Serjeant the fraud goes to the whole scil to all the Horses for although the Plaintiff is to have but one Horse yet he is to have the choice of all the Horses which of them he will have for the best Beast and because the choice goes to all the thirty Horses and by this fraudulent Gift he is defrauded of his election which of the Horses he would have therefore he shall have the value of the whole thirty Horses But Dyer and Mounson said to the Serjeant set a price upon any of the thirty Horses as the best Horse in your election and demand the value of that Horse as forfeit by the Statute and then your election is saved to you XI Gregory 's Case 19 Eliz. In the common Pleas. IN the Assise against Arthur Gregory and his wife at Warwick Assise 1 Len. 86. Key 's steds case cont before Dyer and Barham Iustices of Assise the husband made default and the Assise was awarded by default and the wife came and prayed to be received and the opinion of the said Iustices was that Receipt lay in that Case as in other cases of Praecipe quod reddat Receipt of the wife and therefore the wife was received And now Dyer in Banco demanded of his companions the other Iustices if the Receipt was well granted And by Manwood and Mounson Iustices clearly the Receipt lies For although that the Statute doth not give Receipt but where the Lands in demand are to be lost by such default of the husband and in an Assise the Land shall not be lost by the default of the husband but the Assise shall by taken by default Yet because the husband and wife lose their challenges to the Iury because the Assise is taken by default It seemed to the Iustices and also to the Preignothories that Receipt did well lie in this Case XII 19 Eliz. In the Common Ples IN an Action upon Escape the Plaintiff is nonsuit It was holden No costs upon Nonsuit in an Action upon Escape that the Defendant should not have costs by the Statute of 23 H. 8. Note the words of the Statute i. Upon any Action upon the Statute for any offence or personal wrong supposed to be done immediately to the Plaintiff notwithstanding this Action is Quodam modo an Action upon the Statute i. by the equity of the Statute of West 2. which gives expresly against the Warden of the Fleet yet properly it is not an Action upon the Statute for in the Declaration in such actions no mention is made of the Statute which see in the Book of Entries 169 171. And here is not supposed any immediate personal wrong or offence to the Plaintiff And an Action upon the Case it is not for then the Writ ought to make mention of the Escape and that it doth not here and yet at the Common Law before the Statute of West 2. An Action upon the Case did lie for an Escape and so Dyer Manwood and Mounson costs are not given in this Case And by Manwood upon the Nonsuit in an Action upon the Statute of 8 H. 6. the Defendant shall not have costs for that is not a personal wrong for the Writ is dissesivit which is a real wrong Mich. 19 and 20 Eliz. In the King's-Bench Prescription Townsend Table 96. Hern. 709. Tit. Trespass ib. 803. 1 Cro. 898. Rectory quid Jones Rep. 230. IN Trespass for breaking of his Close the Defendant iustified to have a way by prescription over the Land in which the trespass is supposed for carrying of such Tithes Usque ad Rectoriam de D. from such a place And it was holden by Wray and the whole Court that the plea was not good for in pleading such a way there ought to be set forth terminus a quo terminus ad quem And this word Rectory which ought to be terminus ad quem is incertain for a Rectory is a thing which consists of divers things as Glebe Tithes c. But he ought to have said the Parsonage House or other place certain And afterwards it was shewed to the Court that the said Rectory did consist onely of Tithes and so there is not any place certain as Parsonage House Barn c. to which the Tithes have used to be carried for the Tithes have used to be let to farm to divers persons who have carried such Tithes to their own houses and the Defendant is one of the Farmers of the Tithes Wray If your case be such you are to plead in this manner That J. S. is seised in Fee of the Rectory of D. and that time out of mind he and all those c. have used for them and theirs formerly to have a way to carry their Tithes from such a place over the Land where c. unto such a high way and name a way which is the next to the place where the trespass was done the which cause the Defendant pleaded so according to the direction of the Court. XIV Wingfield and Seckford 's Case Hillar 20 Eliz. In the Common Pleas. Debt for Rent Co. 3. Rep. 24. IN Debt for arrerages of Rent upon a Lease for years the truth of the case was That before any arrerages incurred the land Leased was evicted upon an Eigne Title The Defendant pleaded that he owed him nothing If now he might give in Evidence the said eviction was the Question and it was the opinion of Dyer Manwood and Mounson Pleadings that he could not but he ought to have pleaded it especially and they denied the opinion of the Preignothories who said that the Defendant ought to have pleaded the Eviction and concluded

of the Hundred upon this Statute and it seemed hard to the Inhabitants there that they should answer for the Robberies done at Gadds Hill because Robberies are there so frequent that if they should answer for all of them that they should be utterly undone And Harris Serjeant was of Councill with the Inhabitants of Gravesend and pleaded for them that time out of mind c. Felons had used to rob at Gadds Hill and so prescribed and afterwards by award they were charged And note That the Case was that three men were robbed and they three joined in the Action against the Inhabitants XX. Colshil and Hasting 's Case 20 Eliz. In the Common-Pleas AN Extent was sued forth upon a Statute-Merchant by Colshil against Hastings for Lands in his possession in the County of Southampton The Sheriff put the Plaintiff the Conusee in possession of parcel of a House and of Lands and suffered Hastings to continue in the rest of the House Execution executed 1 Leon. 145. by reason whereof Hastings kept the possession of the whole and held the Conusee out The Conusee to the intent that he might have full and perfect possession of the whole caused the Sheriff that he did not retorn the Writ of Extent upon which it is entred on the Roll Quod Vice-Comes nihil inde fecit nec misit breve Whereupon issued an Alias extendi facias upon which the new Sheriff did retorn That in the time of the old Sheriff a Writ of Extent issued forth c. and that the said Sheriff had extended the Lands by reason whereof the now Sheriff could not extend them upon the new Writ It was moved for the Conusee That the retorn was not good For although that the Lands be extended by the first Writ Yet because it is not retorned it is not any Execution in Law nor could the Conusee have an Assise which Manwood Iustice denied Loare Preignothory Our course is when no retorn of such Writ is made to grant an Alias at the prayers of the party and to enter upon the Roll That the Sheriff upon the first Writ Nihil inde fecit nec misit breve And that was taken by the Court to be a good and lawfull course in such Case for upon such surmise that no Execution hath been done and that upon such entry on the Roll an Alias Breve might be well awarded And afterwards this second Writ of Extent was not filed by order of the Court And note that the new Sheriff was examined upon his Oath by the Court of the Action and he said that he made the retorn by the advice of Master Plowden who told him that he might safely retorn that the Land was formerly extended and although that the said Extent was not retorned yet it is an Execution for the Party Manwood Certainly this is an insufficient retorn But perhaps Master Plowden did not know of this entry in the Roll as aforesaid for now it appeareth upon Record that no Execution was done If this entry had not been I should well agree with Master Plowden that the same is an Execution for the party although it be not retorned XXI Steward 's Case 19 Eliz. In the Common-Pleas THE Case was A. seised of certain Lands in Fee granted a Rent-charge out of the same to another and afterwards aliened the Lands to a stranger The Grantee in a Replevin did avow for the Rent and the other party pleaded that nothing passed by the Deed It was holden by the whole Court to be no plea nor can any issue be joined upon it but the Plaintiff ought to have said That he did not grant by the Deed For the same is a Rent newly created and which had not his essence before the grant and it cannot properly be said That nothing passed by the Deed but not of a thing that is in esse but of things not in esse That he did not grant is the most natural issue for a thing not in esse non potest transire XXII 19 Eliz. In the King's-Bench IN an Action upon the Case upon a Trover and Conversion to his own use per venditionem quibusdam hominibus ignotis Trover and Conversion the Defendant pleaded That the goods were bailed to him to bail over to J. S. to whom he had delivered them absque hoc that he did convert them to his own use per venditionem hominibus ignotis It was moved by Egerton that that matter is not traversable quod Wray concessit for the conversion to his own use is the cause and ground of the Action and not the selling of the goods c. XXIII Mich. 19 and 20 Eliz. In the Common-Pleas A Man was outlawed in the Court of Hustings of London and the Hustings in which the Iudgment of Outlawry was given Outlawry was holden two Weeks next after the last Hustings so as there was but two Weeks betwixt the two Hustings whereas commonly the Hustings is holden but every three Weeks and now the Sheriffs of London were in doubt if they might safely retorn the Outlawry without danger of an Action upon the Case brought against them by the party outlawed It was holden by Dyer and the whole Court that they ought and might safely retorn the said Outlawry for the Lord Dyer said That there is a Record in the time of R. 2. whereby it appeareth that in London they might hold their Hustings every Week if they pleased and afterwards he commanded Mosley and Christopher Secondaries to retorn the Outlawry which was done accordingly XXIV Lovelesse 's Case 19 Eliz. In the Common-Pleas Debt upon Recognizance 1 Cro. 608. 817. LOvelesse Serjeant brought a Scire facias upon a Recognizance and had Iudgment upon default Quod habeat Executionem and afterwards he brought an Action of Debt upon the said Iudgment and exception was taken to the Action for that he ought to proceed upon the Iudgment given upon the Scire facias and ought to sue Execution according to the said Iudgment by Elegit or Scire facias but not by Capias but the Exception was not allowed For the Recognizance is a Iudgment in it self and an Action of Debt will lie upon it without any Iudgment in the Scire facias And Debt lieth as well upon the Iudgment as upon the Recognizance it self and so was the opinion of the whole Court. XXV Eliz. In the Common-Pleas Brent 's Case Dyer 340. b. THE Case was That Robert-Brent being seised of Lands in Fee made a Feoffment thereof unto the use of himself and Dorothy his Wife for their lives and if he do survive his said Wife then to the use of him the said Robert and such a Woman as he should after marry for the Iointure of such Wife the Remainder over to a stranger in Fee And afterward with the privity and assent of the Feoffor he in the Remainder and the Feoffees join in a Feoffment to divers persons Note both Feoffments were

and that is by reason of the privity betwixt them and because they are compellable to make Partition and in our Case they are compellable by Subpoena in Chancery to make Partition and notwithstanding that the Lands entailed be allotted to one Coparcenor onely and the fee to the other three yet thereby the Partition is not void but voidable As an Exchange by Tenant in tail is not void but if the Issue in tail accept of it it shall bind him during his life So here and also by the death of the Husbands the Partition is not void but voidable onely Clench Iustice How shall the Heir be said seised of the Lands entailed which was allotted to his Father and Mother after acceptance and agreement Atkinson Of certain part as Issue in tail and of other parts by force of the Partition and acceptance Quaere of that for if it be not of the whole as Issue in tail then the Lease is not void but for so much whereof he was seised in tail and then the Lessee is Tenant in common with Weston and then the Conusance is not good Cooper Serjeant elect Here wants certainty for the words of reference are too general and therefore void ad usum rectorum haeredum without shewing of the Donor or of the Donee and they are not helped by the subsequent words secundum antiquam Evidentiam ante hac factam for that also is incertain for it appeareth upon the Record That there are divers Evidences of the said Lands as the Charter of Gift the Recovery and the Conveyances made 4 H. 7. and which of them is intended by the Devise non constat and the said defect is not helped by any of the Averments i. That the Devisor was possessed of the said Charter of Entail at the time of his death and it is also not to the purpose for it may also be that he was possessed of other Evidences as ancient as the said Charter of Entail It is said that there is no other ancient Evidence of the Lord Scroop but it is not averred That there was not other ancient Evidences of the said Lands But admit that the limitation be good by that reference yet there was not any estate-Estate-tail for every Estate-tail ought to be limited in certainty which see in the Statute of West 2. secundum formam in Charta Doni manifesto expressam c. and here it doth not appear upon the words of the Charter if the Estate-tail be limited to the Heirs of the Donor or unto the Heirs of the Donee and he said Admit that the same is an Estate-tail then the Question is If Jeofry be a Purchasor and if he be then by his death without issue the Estate-tail is spent And he said that the Estate for life in Jeofry is drowned by the Estate-tail limited to him for they are united together Egerton Solicitor-General Reasonable and favourable construction ought to be made of this Devise according to the intent of the Devisor As 35 Ass 14. Lands are given to B. and his Heirs if he hath issue of his body and if he die without issue of his body that the Lands shall revert to the Donor and his Heirs the same is a good Entail and upon the death of the Donee without issue the Donor shall re-enter And so here although that rectorum haeredum be incertain words yet the same is supplied by the subsequent words viz. secundum antiquam evidentiam As where the King grants to a Mayor and Commonalty such Liberties as London hath the same is a good Grant 2 H. 7. 13. 1 Leo. 245. And he conceived That this Estate-tail shall be said to begin in Henry although he was dead before and that all his Issues should inherit it and that it should not be determined by the death of Jeofry without issue and in proof thereof he vouched the Case before cited Littl. 81 82. for in that case the condition could not be holden to be performed if the Heir to whom the Gift was made in facto should be in by purchase and so the Estate-tail spent by his death without issue and also he vouched the Case of one Shelley That although the Heir took that which was not ever in his Ancestors yet he did not take it as a Purchasor but as in course of a descent and he also cited Robridge's Case And afterwards the same Term by award of the Court Iudgment was entred for the Plaintiff for the incertainty of these words secundum antiquam Evidentiam to what Evidence it should refer and also rectorum haeredum without shewing whose Heirs i. of the Donor or of the Donee And Wray chief Iustice said It shall be intended upon this Will That the meaning of the Testator was That the Lands should go unto his Heirs according to the Law according to all his Evidences which he had of his Lands and that is a Fee simple and it shall not be intended That the Testator had such a special remembrance of one Deed made two hundred years before viz. 25 E. 3. XXX Perry and Some 's Case Mich. 30 Eliz. In the King's-Bench Rot. 482. SOme Parson of the Church of Sherring in Essex 1 Cro. 139. libelled in the Spiritual Court against Perry for the Tithes of green Tares eaten before they were ripe and for the Tithes of the Herbage of dry Cattel and for Tithes of Sheep bought and sold and for Churchings and Burials Perry prayed a Prohibition and in his surmise as to the green Tares he said That they had used time out of mind c. in the same Parish In consideration that they had not sufficient Meadow and Pasture for their milch Kine and draught Cattel to pay for the Tithes of the ripe Tares the tenth shock but for their green Tares which are eaten up before they are ripe in consideration that they gave them to their Cattel they had used to be discharged of any Tithes thereof and the truth was That 400 Acres of Lands within the said Town had used to be plowed and sowed every year by the labour of draught Cattel and industry of the Inhabitants in consideration of which and that in the said Parish there was not sufficient Meadow nor Pasture for their draught Cattel they had used to be discharged of the Tithes of green Tares eaten before they were ripe It was holden by the Court that the same was a good custome and consideration for the Parson hath benefit thereby for otherwise the said 400 Acres could not be plowed for without such shift to eat with their draught Cattel the green Tares they could not maintain their plough Cattel and so the Parson should lose his Tithes thereof and for the Tithes of the green Tares he hath the Tithes of 400 Acres There was a Case lately betwixt the Lord Howard and Nichols where the suit in the Spiritual Court was for the Tithes of Rakings and a surmise to have a Prohibition was made that the

è contr 17 E. 3. 8. A man may make a Feoffment of a Manor by the name of a Knights Fee à fortiori in case of the Devise and in our case the Marquiss conceived That the Rent and Services reserved out of the Manor of Fremmington was the Manor of Fremmington and the Law shall give strength to that intention Walmsly conceived That the Rent did not pass by the name of Manor c. for this Rent nec in rei veritate nor in reputation was ever taken for a Manor Also the words Of the Manor and Hundred of Fremmington are put amongst others which are Manors in truth by which it seemeth That the Devisor did not intend to pass but one Manor and no other Hereditaments by that Manor of Fremmington It is a Rule in Law That in the construction of a Will a thing implyed shall not controul a thing expressed But here if by implication the Rent shall pass then the Manor of Camfield shall not pass which it was the intent of the Devisor to pass and that by express words See 16 Elizab. Dyer 330. Clatche's Case and see 16 Eliz. Dyer 333. Chapman's Case But in our Case here there are not any sufficient words to warrant any implication for neither in truth nor in reputation was it taken to be a Manor 22 H. 6. 2. Green Acre might pass by the name of a Manor although it were but one Acre of Land because known by the name of a Manor See accordingly 22 H. 6. 39. And see where before the Statute of Vses a man had Recoverors to his use and he wills by his Will That his Trustees should sell his Lands they may sell And he said That if a man seised of a Manor parcell in Demesne and parcell in service and he grants the Demesnes to one and his Heirs and afterwards deviseth his Manor peradventure the services shall pass but this Rent hath no resemblance to a Manor Gawdy This Rent shall pass by the name aforesaid Favourable construction is to be always given to Wills according to the intent of the Devisor and no part of a Will shall be holden void if by any means it may take effect then here it appeareth that his meaning was that upon these words every thing should pass to the Devisee concerning the said Manor of Fremmington for otherwise the words of the Manor of Fremmington should be void and frivolous which shall not be in a Will if any reasonable construction can be 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 Devisor the said Devisor had any thing in the said Manor of Fremmington but onely the said Rent of one hundred and thirty pounds And it may well be taken that the Devisor being ignorant what thing a Manor is though that the Rent was a Manor because that he had Rents and services out of the Manor For in construction of Wills the words shall serve the intent of the party and therefore if a man deviseth That his Lands shall be sold for the payment of his debts his Executors shall sell them for the intent of the Testator naming the Vendors is sufficient And see Plowden 20 Eliz. 5. 24. L. after the Statute of 27 H. 8. deviseth that his Executors shall be seised to the use of A. and his Heirs in Fee whereas then there was no Feoffees to his use the same was holden a good Devise of the Lands of A. and the Iudges conceived that the Devisor was ignorant of the operation of the Statute in such case and therefore his ignorance was supplied See Br. Devises 44. 29 H. 8. A. had Feoffees to his use and afterwards after the Statute of 27 H. 8. 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 See 26 H. 6. Feoff 12. A Carve of Lands may pass by the name of a Manor Ergo à multo fortiori Rent for Rents and Services have more nearness and do more resemble a Manor than a Carve of Lands and it cannot be intended that the meaning of the Testator was to grant the Manor it self in which she had nothing especially by her Will for covin collusion or indirect dealing shall not be presumed in a Will Also the Marchioness for four years together before her death had the Rent and Services of the said Manor and she well knew that she had not any other thing in the said Manor but the said Rent and Services and therefore it shall be intended that that was her Manor of Fremmington A. seised of a Capital Messuage and great Demesnes lying to it leaseth the same for years rendring Rent and afterward deviseth to another all his Farm lying in such a place It was rated in that case that by that Devise the Rent and the Reversion should pass See the Case betwixt Worselie and Adams Plowd 1 Eliz. 195. by Anthony Brown and Dyer Periam Iustice was of opinion that this Rent might be divided well enough But by Anderson It is but Rent-seck but Periam said it was a Rent distrainable of common Right but all of them agreed that the Rent might be divided but there should not be two Tenures And the Lord Montjoy being advised that this Rent did not pass by the Grant but descended to the Heir being the full part of the whole entred into all the residue of the Lands and made a Lease of the Manor of Camfield unto the Plaintiff upon which entry the Ejectione firmae was brought and afterwards the Plaintiff seeing the opinion of the Court to be against him and for the Devisee of the Rent by the name aforesaid did afterward discontinue his suit c. LVIII Costard and Wingfield 's Case Trin. 30 Eliz. Intrat T. 28 Eliz. Rot. 507. In the Common-Pleas 6 Co. 60. IN a Replevin the Defendant did avow for damage-feasant by the commandment of his Master the L. Cromwel The Plaintiff by way of Replication did justifie the putting in of his cattel into the Land where c. by reason that the Town of N. is an ancient Town and that it had been used time out of mind c. That every Inhabitant of the said Town had had common for all manner of cattel levant and couchant within the said Town and so justified The Defendant said that the house in which the Plaintiff did inhabit in the said Town and by reason of residency in which House he claimed common was a new house erected within 30 years and that before that time there had not been any house there upon which the Plaintiff did demurr Shuttleworth Serjeant argued for the Plaintiff That he should have common there by reason of resiancy in the said new house and he said that the Resiancy is the cause and not the Land nor the person thereof and thereupon he put the Case of

15 E. 4. 29. And he agreed the Case That if the Lord doth improve part of the common that he shall not have common in the residue of the Land for the Lands improved because That he cannot prescribe for that which is improved as the Book is in 5 Ass But here in the principal Case he doth not prescribe in any person certain or in or for any new thing but he sets forth that the use of the Town hath always been that the inhabitants should have common there And this common is not common appendent or appertinent but common in gross See Needham 37 H. 6. 34. b. And he said That if the house of a Freeholder which hath used to have such common doth fall down and he erecteth a new house in another place of the Land that he shall have common to that new erected house as he had before And he took a difference betwixt the case of Estovers where a new Chimney is erected and this Case and he stood much upon the manner of the prescription Gawdy Serjeant contrary And he took exception to the prescription For he said that it is said therein That it is Antiqua Villa but he doth not say that it hath been so time out of mind c. and so it ought to be said as the Book is in 15 E. 4. 29. a. And then if it be not an ancient Town time out of mind the parties cannot prescribe as Inhabitants of the said Town to have common time out of mind c. And he said That if such a prescription as is said in this Case be good in Law viz. That every one who erected a new house within the said Town should have common to his said new house the same should be prejudicial to the ancient Town and to the utter overthrow and manifest impairing of the common there and it might so happen that one who had but little Lands in the said Town might erect twenty new houses there and so an infinite number of houses might be newly erected there and there should be common allowed to every Inhabitant within the said new erected houses which should be inconvenient and unreasonable Anderson chief Iustice He who erects a new house cannot prescribe in the common for then a prescription might begin at this day which cannot be and he insisted much upon the general loss which should happen to the ancient Tenants if such a prescription for new erections should be good Periam If it should be Law That he should have common in this Case That all the benefit which the Statute gives to the Lord for improvement should be taken away by such new edifications and erection of new houses which were not reasonable And such was the opinion of the other Iustices and therefore they all agreed that in the principal Case the Plaintiff should not have common to this new erected house but the entry of the Iudgment was respited untill the Court had seen the Record and after they had seen and considered upon the Record Anderson and Periam were of opinion as before But Windham did not encline to the contrary but they all agreed That he who set up again a new Chimney where an old one was before should have Estovers to the said new Chimney and so if he build a new house upon the foundation of an old house That he should have common to his said house new erected So if a house falleth down and the Tenant or Inhabitant sets up a new house in the same place Also if a man hath a Mill and a Water-course to it time out of mind which he hath used time out of mind to cleanse if the Mill falleth and he erecteth a new Mill there he shall have the Watercourse and liberty to cleanse it as it had before and afterwards the same Term Iudgment was given for the Defendant to which Windham Iustice agreed LIX Rous and Artois Case Hill. 29 Eliz. In the King's-Bench THE Case was large but the points in this Case were but two Owen Rep. 27. 4 Co. 24. The first was If Tenant per auter vye after the death of Cestuy que vye holdeth over If he be a Disseisor or not The second point was If Tenant at will or at sufferance be such a Tenant of the Manor as he may grant Copyhold Estates to Copyholders For the first point It was agreed by Godfrey and he held that the principal Case was That if Tenant pur auter vye holdeth over the life of Cestuy que vye that he thereby gaineth the Fee But he granted the Cases That where a man holdeth at the will of another that after the Estate determined if he holdeth over he hath not thereby gained fee for he is Tenant at sufferance and as Littleton saith in his Chapter of Releases 108. Tenant at sufferance is where a man of his own head occupieth the Lands and Tenements at the will of him who hath the Freehold and such an occupier claims nothing but at will But he said That in the principal Case he otherwise claimed than at the will of the Lessor for that it appeareth that he hath granted Copy and he said that this difference doth give answer to the Case which is t. H. 8. br t. per Copy 18. where it is said for Law That none is Tenant at sufferance but he who first enters by authority of Law As if a man makes a Lease for years or for the life of another and he holdeth the Lands after his term expired or after the death of Cestuy que vye If he claim nothing but at the will of him who hath the Freehold he is a Tenant at sufferance But if he holdeth in the Lands against the will of his Lessor then he is a Disseisor and so if he do act after such continuance of possession contrary to the will of his Lessor he is a Disseisor 10 E. 4. If an Infant maketh a Lease at will and the Lessor dieth and the Lessee continueth in possession and claims Fee the Heir shall have Mortdancester 18 E. 4. If Cestuy que vye dieth and the Tenant hold in and was impleaded The Lessor shall not be received and he conceived the reason of the Case to be because that the reversion was not in him but that the Fee was gained and rested in the other 22 E. 4. 39. g. by Hussey If a Termor holdeth over his term there an Estate in Fee is confessed to be in him because he holdeth the possession of the Lands by wrong but there is a Quaere made of it if he be a Disseisor or not but I conceive that he is for Trespass doth not lie against him before the Lessor hath made his entry and therefore if the Lessee doth continue in the possession of the Lands by reason of the first entry that is the reason as I conceive that the Writ of Entre ad terminum qui praeteriit lieth against such a Termor who holds so over his Term and

14. but contrary in a Writ of Habere facias seisinam or in a Liberate for in these Writs there are not such words and therefore although they be not retorned Execution done by virtue of them is good enough See 11 H. 4. 212. If the Sheriff by force of an Elegit doth deliver the moyety of the Land and doth not retorn the Writ if the Plaintiff will plead a new Action of Debt the Defendant may plead in Bar the Execution aforesaid although the Writ be not retorned nor doth remain upon Record and it is not like unto the Case of Partition made by the Sheriff for that must be retorned because that after the Retorn of it a secondary Iudgment is to be given scil Quod Partitio praedict firma stabilis remaneat in perpetuum firma stabilis in perpetuum tenetur says the Book of Entries 114. And Egerton the Solicitor-General cited a Case to be lately adjudged betwixt the Earl of Leicester and the Lady Tanfield Earl of Leicester and Tanfields case That such an Execution was well enough although the Liberate was not retorned The second point was Admitting that it be a good Execution If the Executors being in possession of the Manor and suffering the Conusor to hold a Court there and saying the words aforesaid in the presence of the Lord who is Conusor if the same do amount unto a Surrender or not And it was the Opinion of Wray chief Iustice That it was not a Surrender for that here the words are not addressed to the Conusor who was capable of a Surrender but to other persons And it is not like unto the Case of 40 E. 3. 23 24. Chamberlains Assise where Tenant for life saith to him in the Reversion That his Will is that he enter upon the Land the same is a good Surrender because here is a person certain who may take the Land But in our case it is but a general speech and therefore it shall not be a Surrender LXVI Baskervile and Bishop of Hereford 's Case Mich. 29 Eliz. In the Common Pleas. IN a Quare Impedit brought by Walter Baskervile against the Bishop of Hereford and others the Plaintiff counted That Sir Nicholas Arnold Knight was seised of the Advowson in gross and granted the same to the said Baskervile and others to the use of himself for life and afterwards to the use of Richard Arnold his Son in tail Proviso That if the said Nicholas died his Heir being within the age of twenty three years that then the Grantees and their Heirs should be seised to themselves and their Heirs until the said Richard had accomplished the said age Sir Nicholas died Richard being but of the age of fourteen years by force whereof the Grantees were possessed of the said Advowson c. and afterwards the Church became void and so it appertained to them to present Exception was taken to the Count by Serjeant Gawdy because the Plaintiff had not averred the life of Richard upon whose life the interest of the Plaintiff did depend and he compared the same to the Case of the Parson which had been adjudged where the Lessee of a Parson brought an Ejectione Firmae and it was found for him and in Arrest of Iudgment Exception was taken to the Declaration because the life of the Parson was not averred and for that cause the Iudgment was stayed Anderson Vpon the dying of Sir Nicholas Richard being but of the age of fourteen years an absolute Interest for nine years vested in the Grantees not determinable upon the death of Richard or rather they are seised of a Fee determinable upon the coming of Richard to the age of 23 years Rhodes and Windham Iustices contrary and that here is an Interest in the Grantees determinable upon the death of Richard within the term for if Richard dieth without issue within the term the Remainder is limited over to a stranger And as to the Exception to the Count it was argued by Puckering Serjeant That the Count was good enough for although the life of Richard be not expresly added yet such an averment is strongly implied and so supplyed For the Count is Quod dictus Nich. obiit dicto Richardo being of the age of fourteen years non amplius by force of which the Plaintiff was possessed of the said Advowson quo quidem Nich. sic possessionato existente the Church voided and possessed he could not be if not that the said Richard had then been alive and that is as strong as an Averment See 10 E. 4. 18. In Trespass for breaking of his Close the Defendant pleaded That A. was seised and did enfeoff him to which the Plaintiff said That long time before A. had any thing B. was seised and leased to the said A. at will who enfeoffed the Defendant upon whom B. re-entred and leased to the Plaintiff at will by force whereof he was possessed untill the Defendant did the Trespass and that was allowed to be a good Replication without averring the life of B. who leased to the Plaintiff at will for that is supplied by the words scil virtute cujus the Plaintiff was possessed untill the Defendant did the Trespass See also 10 H. 7. 12. In an Assise of Common The Defendant made Title that he was seised of a House and a Carve of Land to which he and all those whose Estate he hath c. had common appendant and doth not say That he is now seised of the House but the exception was disallowed for seisin shall be intended to continue untill the contrary be shewed LXVII Morgan and Chandler 's Case Trin. 29 Eliz. In the King's-Bench IN Debt for Arrerages of Rent by Morgan against Chandler It was found by special Verdict That the Land out of which c. was assured by an Act of Parliament to the Marchioness of Northampton for the term of her life the remainder to the Lady Bourcher her daughter and the heirs males of her body the remainder to King H. 8. in Fee And it was ordained by the same Act Quod omnes concessiones dimissiones Anglice Grants and Leases factae vel in posterum fiendae by the said Marchioness of the Lands aforesaid per script Indentat dict Marchio bonae validae in Lege erunt durante termino c. The Marchioness made a Lease for 21 years to Kenelm Throgmorton rendring 10 l. Rent who assigned the same to the Defendant The Lady Bourcher died without Issue the Marchioness died and if the Lease should now bind the Queen was the Question And it was moved by Clark of Lincoln's-Inn That it should for the King was party to the Act of Parliament and those Estates for life in Tail and in Fee are all as one Estate and derived out of one Estate and the Estate of the King is bound with the Lease and it was moved by Broughton That the Lease should not bind the Queen and so by consequence not her Patentee and he

had also bona catalla felonum fugitivorum and at the payment the Lord St. John claimed the money But all the Barons of the Exchequer were clear of Opinion That the Lord St. John could not have the money for the place of payment nihil operatur but the Obligation is the substance which came to the Lord of Northampton within the Isle of Ely. Popham the Queens Attorny claimed the money for the Queen for the Lord of Northampton cannot have it for by the general words of bona catalla felonum things in Action do not pass but by express words they well pass otherwise not And therefore day was given to the Lord of Northampton to shew his Letters Patents LXXXII Ards and Smith 's Case Mich. 30 Eliz. Rot. 2737. In the Common Pleas. 3 Co. 8. EDward Ards brought a Replevin against Smith and Reading the Defendants made Conusance as Bailiffs to Robert Chamberlain and shewed That one A. was seised of the Manor of Keney in Fee whereof the place where is parcel and so seised gave the said Manor to Richard Chamberlain and Sibil Fowler and to the Heirs males of the said Richard Richard and Sibil intermarry and have issue Edward Richard dieth Sibil dyeth Edward hath issue Leonard and dieth Leonard hath issue Francis and dieth Francis hath issue Robert in whose Right the Conusance is made and dieth Robert entreth The Plaintiff in bar of the Conusance sheweth That one B. was thereof seised and thereof enfeoffed one Cottesford then Master of Lincoln College and the Fellows thereof after which the said Leonard Son and Heir male of the said Edward 25 H. 8. did release to the said Master and Fellows with warranty the said Robert in whose Right the said Conusance is made being Heir male of the said Robert and demanded Iudgment if against that warranty c. The Defendants confess the Gift before to the said Richard and Sibil and that they had issue the said Edward but farther shewed That after the death of the said Richard Sibil and Edward her Son leased the said Manor for years to one Mascal who entred and was possessed Edward suffered a common Recovery unto the use of the Recoverors who entred and ousted the Lessee and enfeoffed the said B. who enfeoffed the said Master and Fellows the Lessee re-entred Sibil died Leonard Son and Heir apparent of Edward released to the said Master and Fellows with warranty Edward died Leonard died and thereupon a Demurrer was by the parties and the matter was If this Recovery being suffered by him in the Remainder in tail upon an Estate for life the Recoverors entring upon the Lessee for years of the Lessee for life and putting him out and afterwards the Lessee for years re-entring If now any Estate did remain in the College after the Re-entry which might work a Release Snag Serjeant argued That a sufficient Estate did remain in the College upon which a Release might enure i.e. an Estate to begin after the death of Sibil and the expiration of the term for years and although rei veritate Edward was not Tenant of the Freehold at the time of the Recovery yet such an exception doth not lie for the Issue and to that purpose he cited the Opinion of Fairfax 12 E. 4. 14. Shuttleworth Serjeant contrary This Recovery works nothing but by way of Estoppel and Conclusion and therefore the issue in tail may well disclose the matter and avoid such Recovery and the better Opinion in the Case cited before 12 E. 4. is That such a Recovery against such a person is utterly void which see there by ●ittleton Choke and Brian 14 E. 4. 2. and also 28 Ass 17. and Dyer 8 Eliz. 252 253. Land conveyed to the Husband for life the Remainder to the Wife in tail the Remainder to the Right Heirs of the Husband and Wife The Husband and Wife suffer a common Recovery the Husband hath issue and dieth and afterwards the Wife dieth the issue shall avoid the Lease and Recovery See also the Case betwixt Hare and Snow Plow 20 Eliz. 514. where a common Recovery was had against Tenant in tail and his Wife whereas in truth the Wife had nothing in the Land whereof the Recovery was suffered It was holden that the issue in tail or any other person might shew the truth of the matter for he shall not be bound by any Estoppel which his Father hath admitted by joyning in Voucher with his Wife for he is not subject to the Estoppel and therefore it was holden That if the Wife in such case might sue Execution to have in value yet the Son in tail might oust him of it So 8 H. 4. 122. a Praecipe is brought against Tenant in tail who prays in aid of a stranger as Tenant for life who enters into the aid and bars the Demandant and afterwards the Tenant in tail dieth his issue is at large to claim the Estate-tail although the mouth of his Father was estopped as to it So Tenant in tail brought a Quod ei deforceat and counted upon an especial tail whereas in truth it was a general tail and recovereth and dieth the said Recovery shall not conclude the issue See 33 H. 6. 18. And in our Case when the Recoverors enter by force of the recovery the same is a wrong to the Lessee for years and also to the Tenant for life for the one is ejected and the other disseised and therefore the Re-entry of the Lessee doth defeat all the Estate which was in the College under that Recovery and here the Entry of the Lessee for years shall avoid all the Estate which was conveyed to the College by the Recoverors See 44 E. 3. 30 31. Bassingborn's Assise Land is given to A for life the Remainder to B. for life the Remainder to C. in Fee A. aliens in Fee the Ancestors collateral of him who hath the Fee doth release to the Alienee with warranty B. enters here the whole warranty is lost and all the first Estate is recontinued So in our Case by this Entry of the Lessee the whole Estate of the College under the Recovery is defeated so as nothing remains in the College upon which the Release can enure and then there is no warranty in the Case And as the Case is here Edward who suffered the Recovery dieth before the descent of the warranty by the death of Leonard by whom the Release with warranty was made by the death of which Edward the Interest which the College had in the said Manor by the said Recovery and the Estoppel of it was determined and utterly gone and then the warranty descending afterwards cannot attach upon the possession which was at the time of the warranty made which was by the conclusion which by the death of Edward is determined and removed by an Eign Title i. the Entail As if Tenant in tail doth discontinue the Discontinue is disseised Tenant in tail releaseth with warranty to the

Disseisor the Disseisee entereth in the life of Tenant in tail who afterwards dieth the warranty works nothing for the cause aforesaid And also he put this Case Tenant in tail of Land grants a Rent-charge in Fee and an Ancestor collateral releaseth to the Grantee with warranty and dieth the Tenant in tail dieth now the issue is bound but if Tenant in tail dieth before him who maketh the Release now the Rent is determined by the death of Tenant in tail and then the warranty cannot attach upon it At another day the Case was moved and conceived in these words scil Tenant for life the Remainder in tail Tenant for life leaseth for years a Recovery is had against him in the Remainder in tail living Tenant for life the Recoverors enter and oust the Lessee for years the Son and Heir of him in the Remainder in tail releaseth with warranty to him to whom the Recoverors have assured the Lands the Lessee enters he against whom the Recovery was had dieth the Releasor dieth c. It was holden that the Entry of the Lessee before that the warranty had attached upon the possession which passed had avoided the warranty And the Lord Anderson conceived That the Recovery should not prejudice the issue in tail but that the issue shall Fauxifie the same And if Tenant in tail be disseised and so disseised suffereth a common Recovery his issue shall not be barred quod fuit concessum per omnes And afterwards another matter was moved scil That the Release is pleaded to be made to Lincoln College by the name of Custodi sociis Scholaribus Lincolniensis Collegii in Oxonia where the true name of the College as is confessed by the Record in the Plea pleaded is Custos sive Rector Socii Scholares Lincolniensis Collegii in Oxonia c. It was adjourned See this Case reported 3 part Lincoln College Case LXXXIII Hall and the Bishop of Bath 's Case Mich. 32 Eliz. In the Common Pleas. HAll brought a Quare Impedit against the Bishop of Bath and others The Incumbent pleaded Quod ipse nihil habet nec habere clamat c. nisi de praesentatione Georgii Sidenham militis not named in the Writ and demanded Iudgment of the Writ upon which the Plaintiff did demur in Law And it was argued by Drew Serjeant for the Plaintiff That the Writ was well brought without naming the Patron for if a Quare Impedit be brought against the Patron and Incumbent and the Patron dieth 1 Leon. 45. pendant the Writ the Writ shall not abate 9 H. 6. 30. It might be that the Plaintiff did not know nor could tell who presented the said Incumbent but he findeth the Incumbent a Disturber by his Incumbency and if of necessity such Patron ought to be named then if such a Vsurper should die before the Writ brought he which hath cause of Action should be remediless And by Anderson and Periam the Writ is good enough for the reason aforesaid And Anderson put this case If A. wrongfully by Vsurpation doth present and his Clark is received and afterwards A. having gained the Patronage grants it over to B. Against whom shall the Quare Impedit be brought Walmsley Against B. which Anderson doubted LXXXIV Hughe 's Case Mich. 32 Eliz. In the Common-Pleas IN a Formedon the Writ was That A. Dedit Aliciae filiae suae and to J.S. and to the Heirs of their two bodies begotten and it was shewed in abatement of the Writ That the name of the Wife is put before the name of the Husband To which it was said by the Court that if such a Writ be brought against the Husband and Wife and the name of the Wife be put before the name of the Husband the Writ shall abate and if in the Case at Bar it had appeared That the Donees at the time of the Gift were Husband and Wife upon such a matter disclosed the Writ should abate but that doth not appear plainly to the Court. LXXXV Mich. 32 Eliz. In the Common-Pleas NOTE It was holden by the Court 1 Cro. 567. 3 Cro. 224. Post 189. That if a Writ of Dower be brought against an Infant who loseth by default at the Grand Cape that he may reverse the same by a Writ of Error but where an Infant appeareth by Guardian and afterwards loseth by default there he shall never avoid it for if any default be in the Guardian the Infant shall recover against him in a Writ of Deceit And afterwards the Iudgment in the first case was reversed LXXXVI Mich. 32 Eliz. In the Exchequer-Chamber NOTE In the Exchequer-Chamber before the Lord Chancellour The two chief Iustices and the chief Baron a Writ of Error was cast upon a Iudgment given in the Court of Exchequer and it was agreed Quod propter absentiam Dom. Thesaurarii Angliae They ought not nor could receive the said Writ and the Statute of 31 Eliz. doth not help the matter for that extends but to discontinuances which before the Statute many times hapned for the not coming of the Chancellour or Treasurer and not to give Conusance in a Writ of Error in the absence of the Treasurer c. LXXXVII Lacy and Fisher 's Case Mich. 32 Eliz. In the Common-Pleas IN a Replevin by Lacy against Fisher The Defendant pleaded that the place where c. is called Spicold and holden of the Manor of Easthall by certain Rent and made Conusance as Bailiff of the Lord of the said Manor and issue being joined hereupon It was tried by the Iury of the Visne of Spicold and it was moved in arrest of Iudgment that the issue was mis-tried For the Visne ought to have been of Spicold and Easthall also Web and Richmond's Case And a Case was cited to have been adjudged accordingly betwixt Webb and Richmond M. 31 Eliz. in the same Court. LXXXVIII Corbet 's Case Mich. 32 Eliz. In the Common-Pleas THE Case was That an Action of Debt was brought by original Writ against an Administrator in another County than where the Administrator was dwelling and before notice of that suit he paid divers other debts of the Intestate due by specialties so as he had not Assets to pay the debt in demand having Assets at the day of the Teste of the original and now the Defendant appearing pleads the same special matter and concluded And so nothing remained in his hands And it was holden per Curiam to be a good Plea See 2 H. 4. 21 22. LXXXIX Sir William Pelham 's Case Pasch 31 Eliz. In the Exchequer 1 Co. 41. THE Case short put was this A. Tenant for life of a Messuage c. the remainder in tail to B. with divers remainders over A. by Deed indented and enrolled bargained and sold the Messuage c. so conveyed to Sir William Pelham in Fee who afterwards suffered a common Recovery thereof in which A. is vouched and so a common Recovery is had and executed and

years is out of the Book for by the Statute of 21 H. 8. cap. 15. he may falsifie the Recovery but no Receipt lieth in the case of a common Recovery for that he who recovers cannot put out the Termor As to that which my Brother Clark hath said That the bargain and sale in this case is not any forfeiture but when the bargain and sale is enrolled then it is a forfeiture I am not of such Opinion for although that the Enrolment be of Record yet the Deed is not of Record for against a Deed enrolled a man may plead Infancy although none can plead Non est factum Also he held That although by the bargain and sale and the Enrolment of it the Bargainee had not a fee for by such act the Reversion is not removed yet by the Recovery and the Execution of it the Bargainee hath gained a fee out of the Lessor for the Recovery is to the use of the Bargainee against whom it was had It hath been objected that here is onely a Voucher which paradventure was lawfull in this case by reason of a warranty paramount or of a Release or Confirmation with warranty and two Cases have been vouched to that purpose viz. 5 E. 4. 2. Tenant for life being impleaded in a Praecipe voucheth a stranger the Demandant counterpleads the Voucher which is found for him he in the Reversion hath no remedy but a Writ of Right so if the Vouchee had entred into the warranty and lost c. As to that book we ought not to conceive That every Case reported in our books is Law but let us observe of what authority that case is truly it is the conceit of the Reporter himself for he puts the Case and resolves the case but no Iudge or Serjeant is named in the case c. The other case is 5 E. 4. 2. b. Note by Heydon clearly If my Tenant for life voucheth a stranger who entreth into the warranty generally and doth not know how to bar the Demandant the Tenant shall recover in value and the Reversion of that which he hath in value shall be in me in lieu of my former Reversion as a Release to the Tenant for term of life shall enure to him in the Reversion But that is but the Opinion of one Serjeant c. But I answer to these books If the demandant in such recovery hath a good Title so as the Tenant or the Vouchee as Heydon saith do not know how to bar the Demandant there such Voucher of a stranger is no forfeiture nor such Recovery suffered upon it for against his Will volens nolens he suffered it but if the Tenant hath good matter to bar the Demandant and no good cause of Voucher nor any warranty as the matter is in the case of a common Recovery there the Voucher of a stranger or suffering of a Recovery is a forfeiture of his Estate And here in our case if the Demandant hath not any Title the Tenant or Vouchee hath not any warranty but the Tenant might have barred the Demandant if he would And he said That the Voucher onely doth not make the forfeiture but rather the recovery for when Iudgment is given and Execution is had then the Fee is plucked out of the Reversioner vide 6 R. 2. If Tenant for life claimeth a Fee the same is a forfeiture but here Sir William Pelham hath done more for he hath gained Fee by the Iudgment therefore à fortiori it shall be a forfeiture But let us see a little what meddlings or attempts by the particular Tenants are causes of forfeiture and what not 5 Assis 3. A. brought a Writ of Entry against Tenant for life by Collusion to oust B. of his Reversion supposing that the Tenant for life held of his Lease the Tenant confessed the Action upon which Iudgment is given B. enters and his Entry adjudged lawfull for this Recovery is adjudged in Law but an alienation to the disinheritance of him in the Reversion and there it appeareth that such Recovery by Covin is but an alienation and without any strength of a Recovery And he cited many other cases cited before by Altham 14 E. 3. Recept 135. where Tenant for life pleads in chief and prays in aid of a stranger where he might bar the Demandant and would not the same is a forfeiture Also 2 E. 3. 2. and 27 E. 3. where Tenant for life in a Quid juris clamat attorned to the Conusee upon a Fine levyed by him that had not any thing in the Land the same was a forfeiture and yet the Attornment doth not devest the Reversion out of the Lessor 50 E. 3. 7. and 8. Land was given by Fine in tail the Remainder over to a stranger in fee the Donee took a Wife and died without issue the Wife accepted Dower assigned by a stranger he in the remainder brought a Scire facias against the Wife she is Tenant in Dower of the assignment of a stranger and pleads to the Title the Demandant recovereth she hath lost her Dower for she hath not pleaded as she ought being a particular Tenant c. H. 4. Tenant for life loseth his Land in a Recovery against him against his Will and thereupon brings Quod ei deforceat and declares upon an estate-Estate-tail and recovers the same is a forfeiture because he hath challenged a higher Estate than he had 5 H. 5. Tenant for life joyns the Mise upon the meer right 2 H. 6. Lessee for years being ousted brings an Assise and recovers 1 H. 7. Accepts a Fine of a stranger upon condition come ceo c. all these are forfeitures In the principal Case here the Tenant who suffers his Recovery doth not plead at all to defend the Right but whereas he might have barred the Demandant he giveth strength to his pretended Title and makes it a perfect Title and by suffering this Recovery and Iudgment to pass upon it he hath taken the Reversion out of the Lessor to whom he owed Fealty and therefore he shall forfeit his Estate And without any doubt it is apparent to the Court that the Demandant in this Recovery hath not any Title but the Recoverors in such cases are but as Assignees or Purchasors which appears by the Statute of 7 H. 8. ca. 2. which gives Distress and Avowry to Recoverors c. As to the inventing of Recoveries it was a necessary device for it was to take away Estate-tails which were the causes of great mischiefs and inconveniencies in this Realm and there was great reason for it for Tenant in tail might by the common Law alien his Lands post prolem suscitatam and now he hath an Inheritance and may do Waste But he was so restrained by the Statute of West 2. that all the Realm and the Subjects in it were inveigled thereby Ioyntures of Wives Leases of Fermors Mortgages to Creditors Statutes and other Assurances were defeated by the deaths of Tenants in tail which

was both against the common Law and also against all Conscience These matters coming to the knowledge of the Iustices and the mischiefs thereupon following being very frequent and it appearing that the Tenant in tail was a dangerous fellow and that there was no safe dealing with him they took consideration of them and considering also with themselves That Lineal Warranty and Assets and Collateral Warranty without Assets did bar the Entail upon this consideration they grounded the practice and usage of common Recoveries So as by that means Tenant in tail hath Potestatem alienandi as he hath at the Common Law and by this means right was done to the Common Law because its authority was restored and thereby injury was done to no man But as for Tenant for life he never had Potestatem alienandi And as to that which hath been said That the recovery shall stand in force untill after the death of Tenant for life and in our Case here Tenant in tail is alive Truly if the Law should be such great mischiefs would follow For then great Iointresses the Widows of great persons having assurances to them of great and stately Houses and of Lands furnished with Timber of great yearly value might suffer such Recoveries and so having plucked the Fee out of the Heirs might commit waste and the same should be dispunishable which would be an intolerable mischief and so he concluded that the suffering of a Recovery was a forfeiture and Iudgment Trin. 21 Eliz. was given and entred accordingly XC Noon 's Case Trin. 31 Eliz. In the Exchequer DEBT was brought in London against one as Executor and upon fully administred pleaded it was found for the Plaintiff who assigned the same to the Queen whereupon a Scire facias issued out of the Exchequer against the Defendant into the County of Dorset The Serhiff retorned Nulla bona c. which Scire facias was upon a Constat of goods in another County It was agreed by all the Barons that the Debt was well assigned to the Queen And also that the Scire facias might issue forth of another Court than where the Record of the Iudgment remained and that upon a Constat of goods in another County than where the Writ is brought or where the party is dwelling he may well have a Scire facias in another County But the Retorn was challenged because contrary to the verdict As in a Replevin No such beast is not a good Retorn but Averia elongata or Nullus venit ex parte querentis ad monstrand averia And here the Sheriff might have retorned Devastavit which well stands with the Verdict 5 H. 7. 27. But as to that it was said by the Barons That it is true that the Sheriff of the County where the Writ was brought is concluded by the Verdict to make any retorn contrary to it but the Sheriff of another County shall not so be but the Sheriff of the County where the Writ is brought ought to retorn Devastavit c. and thereupon the Plaintiff shall have Process into another County But the Question farther was If a Scire facias upon Testatum shall issue into another County before that the Sheriff of the County where the Writ is brought had retorned a Devastavit for some conceived That a Devastavit where the Writ was brought ought first to be retorned and then upon a Testatum Process should issue forth into any County within England But others were of opinion That without a Devastavit retorned upon a Testatum Process might be sued forth immediately into any other County Williams said If I recover goods by Action brought in Midd. I may upon a Testatum have a Capias into any foreign County XCI Western and Weild 's Case Trin. 31 Eliz. In the Exchequer IN a Writ of Accompt brought in London the Defendant pleaded Never his Receiver c. which was found for the Plaintiff and Iudgement given that the Defendant should accompt Afterwards the Defendant brought his Writ of Privilege and if the same should be allowed after Iudgment was the Question Coke It shall be allowed for the Defendant hath not surceased his time This Iudgement to accompt is not properly a Iudgment for no Writ of Error lieth upon it before the accompt be ended Manwood Regularly after Iudgment no privilege shall be allowed but that is to be intended of a Iudgment ended but here notwithstanding this Iudgment the Action is depending and therefore he conceived that the privilege should be allowed in this case It was objected That then the Plaintiff should be at great mischief for he should lose the advantage of his Trial for he must begin again and plead again and have a new Trial. Clark the Plaintiff shall have benefit of his former Trial by way of Evidence XCII Brian and Cawsen 's Case Trin. 27 Eliz. In the Common-Pleas Rot. 1353. 3 Len. 115. IN an Action of Trespass by Brian and his Wife and others against Cawsen That William Gardiner was seised in Fee according to the custome of the Manor of C. of certain Lands and surrendred them to the use of his last Will by which he devised them in this manner i. I bequeath to John Th. my House and Land in M. called Larks and Sone To Steph. Th. my House and Land called Stokes and Newmans and to Roger Th. my House and Lands called Lakins and Brox. Moreover If the said John Stephen or Roger live till they be of lawfull age and have issue of their bodies lawfully begotten then I give the said Lands and Houses 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 Assigns and the money to be given to the poor The Devisor dieth John Stephen and Roger are admitted according to the intent of the Will Roger dieth within age without issue John and Stephen are admitted to his part John comes of full age and hath issue J. and surrenders all his part of the whole and his Estate therein to the use of Stephen and his heirs who is admitted accordingly Stephen comes of full age John the father dieth Stephen dieth without issue John the son as cosin and heir of Stephen 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 said Lands called Larks and Sone and to the moyety of the Lands called Lakins and Brox parcell of Lands where c. by force whereof they enter into all the Lands where the Trespass is done and it was found That A. sole Executor died intestate and that Cawsen

peteret allowance c. so there was consent to take the accompt c. and 6 E. 3. it is adjudged ut supra And that the one joint Factor may accompt without his companion is the Law of Merchants for Factors are oftentimes dispersed so as they cannot be both present at their accompts and so it hath been heretofore allowed in the King's-Bench And as to that that Dawbeny onely hath given allowance to this accompt the same is good enough If I promise to two to doe any act the one of them may discharge me from it and that by word for it is but a personal thing Two joint-tenants of a Manor grant the Stewardship thereof to one and 20 l. per ann for the exercise of it if the one discharge him it is a good discharge as to the service but yet he shall have his Fee If the Lord of the Manor grant the Stewardship thereof to another taking 10 l. per ann of the issues and profits of his Court there for his Fee and afterwards the Lord dischargeth the Steward the same is void for it is a disadvantage to the Steward for he cannot have his Fee if no Courts be holden but if the Fee be limited to issue out of Lands there such discharge is good for there the Steward shall have his Fee although that no Courts be holden there See 18 E. 4. 8. to that purpose Egerton Solicitor to the contrary although as hath been objected the matter of joint Merchant be but matter of inducement it is notwithstanding material and without it the Action will not lie In Debt upon Arbitrament The Plaintiff in his Declaration ought to shew the submission and although the Defendant pleadeth Nihil debet yet if the place of the submission be not shewed in the Declaration all is naught for although that it be but inducement yet it is a material inducement for if no submision no award and if no award no Debt and then no cause of Action The Case of 14 E. 3. cited before there the Accomptants by their Deed or jointly or severally accomptable at the pleasure of him to whom c. Also because it is set forth in the Declaration that they were joint Merchants of wares adventured into Barbary for the space of two years the Factor in praying of allowance ought to shew what wares were adventured into Barbary within the said two years Conspiracy is a thing odious and ought to be directly proved and it is not reason that that which he himself hath once allowed he himself shall after defeat it as here he attempts And he relied much upon the variance between the Conspiracy and the execution of it moved before by Coke where by the Conspiracy Isaac is made the Debtor with his four sons and in the Execution Isaac is made the onely Debtor and to that point he vouched the Case 3 4 Ph. Ma. betwixt Brown and Nevil That an award was to be performed Brown and Nevil's Case scil an award made between Joh. Brown for and in the behalf of John Moore on the one part and R. Nevil on the other part and did not shew that Moore made the submission and for that cause it was holden naught For Moore was a principal person in the award and Brown but a servant c. So in our Case for Isaac Popham Attorney General in an Action upon the Case The Plaintiff declares Quod cum the Defendant was indebted to the Plaintiff in 20 l. he promised to pay to the Plaintiff 20 l. Here it needs not that the Plaintiff shew in his Declaration the place or time in which the Defendant became his debtor for the promise is the principal matter and the other matter is but inducement So if A. in consideration that I at his request have married his daughter promised to pay to me 100 l. In an Action upon the Case brought by me upon this promise it is not necessary that I shew the place where I married his daughter In all personal things where two are chargeable to two the one may satisfie it and one may accept of satisfaction and bind his companion and yet the one cannot have an Action without his companion nor both onely against one 18 E. 4. 3. Two joint tenants of a Manor have one Bailiff of it the one of them assigns Auditors to the Bailiff who accompts and is found in arrearages the same is a good accompt and it is holden there that both c. may have Debt upon the arrearages of the accompt taken by the manner And if one may assign Auditors he may also take accompt and discharge the accomptant against his companion And he conceived That this allowance of the accompt by Dawbeny did not exclude him of his Actions but rather gave him cause of Action Nam Laesus non esset nisi credidisset and the Bailiff of my Husbandry who bargains and sells for me if upon his accompt to me he alledgeth and surmiseth that he hath sold my Cattel to one who is decayed and upon that surmise I allow his accompt afterwards Re comperta I shall have an Action of Deceit And in this very Case at the Bar it was holden in the King's-Bench That Dawbeny notwithstanding his allowance of this false accompt should have his Action c. Note that afterwards viz. Trin. 32 Eliz. The Iudgment given for Dawbeny was reversed CI. Sir William Waller 's Case Trin. 31 Eliz. In the Exchequer IN this Case it was moved by Winter 3 Len. 259. 4 Len. 44. Post 87. That if one hath Iudgment in Debt and upon that within the year and day sues a Capias ad satisfaciendum although that he doth not prosecute the same by the space of two or three years yet when he pleaseth he may proceed thereupon and he shall not be put to a Scire facias for a Writ of Execution once sued forth shall be a continual claim and the party shall never be put to a Scire facias and of such opinion was Philips Manwood I grant that if one hath sued forth a Writ of Execution and that be continued by Vicecomes non misit breve for two or three years yet the Plaintiff may proceed thereupon and shall not be put to a Scire facias but if such 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 negligence of the Plaintiff of not continuing of it which within the year and day he might without Order of the Court but after the year not by any Order of the Court c. CII Griffin 's Case Trin. 31 Eliz. In the Exchequer IT was holden in this Case That if Lessee for years of a Messuage grants totum Messuagium suum the Grantee hath but at Will but if he grant all his Interest and Estate in such a Messuage then the whole Lease passeth and so it was said to have been lately

Scire facias shall issue forth against the Sureties and thereupon a Capias And this question If the Capias in this case lieth or not is to be decided either by Audita Querela in the Chancery or by Error in the King's Bench for the said Courts have authority to affirm the proceedings or to disaffirm them And here the Question was If Woodhouse were imprisoned or no and not if the Capias erronice emanavit or not And he took a difference where Process is awarded out of a Court which hath not authority of the Principal cause there it is coram non judice and the Process is void and if the Sheriff taketh the party by force of such Process it is meerly void and he a Trespassor but contrary if the Court hath authority of the principal cause there if the Process be misconceived it is onely erroneous 10 Co. 76. An unskilfull man in Chancery makes an Appeal of Murther retornable in the Common Pleas and there an unskilfull Clark makes a Capias upon it the same is coram non-judice and not all together void But if in a Writ of Entry in the nature of an Assise the Demandant hath Iudgment to recover Debt and Damages and thereupon issueth a Capias the same is not void for it is but a misawarding of the Process provide emanavit If out of the Common Pleas immediately a Writ issueth to the Sheriff of Chester which is a County Palatine where the King 's Writ doth not run the same is void and false imprisonment lieth upon such a taking A Formedon brought in the King's Bench and upon that a Capias is void coram non judice and the Sheriff is bound to take notice of the Law in such cases that those of the King's Bench have not authority to hold plea in real Actions As to that That Woodhouse was convict of Felony the same shall not avoid the Execution but I grant that the King shall be satisfied before the subject c. And he relied much upon the said Case cited before 13 E. 3. Bar. 253. as to the matter of the Capias 19 H. 9. In Escape the Defendant pleaded a Release of him who recovered to the Prisoner being in Execution and it was holden no Plea. And in the principal Case Iudgment was given for the Plaintiff CXIII Bridget Clark 's Case Antea 30 31. Mich. 29 Eliz. In the Exchequer THE Case was Clark was indebted to Archdel by Obligation and afterwards delivered to Andrews certain Hogsheads of Wine to satisfie the said Archdel the said Debt and afterwards the Obligation of Clark is assigned to the Queen for the Debt of Archdel And if the property of the said Hogsheads of Wine were altered by the delivery of them to Andrews before the Assignment was the Question Egerton Solicitor The property is not altered for the Bailor might have an Action of Account against Andrews before that he hath delivered the same over according to the Bailment but if he hath delivered them over the same is a good bar in an Account But if one be accountable to me upon a Bailment and afterwards I do require him to deliver the Goods over to A. the same is not in bar of Account but is good in discharge of account before Auditors for the same is matter after the Bailment not upon the Bailment If Goods be bailed to bail over upon a consideration precedent of his part to whom they ought to be bailed the Bailor cannot countermand it otherwise it is where it is voluntary and without consideration but where it is in consideration of a Debt not countermandable contrary if it be to satisfie the Debt of another Manwood Where the Debtor of the King is sufficient there a Debt due to him ought not to be assigned to the King but onely where the Debt of the King is doubtfull and that was the ancient course but now at this day multi videntur habentur divites qui tamen non sunt and therefore omnis Ratio tentanda est for the Recovery of the King's Debts But as to the Case before us The Wife is Executrix to her Husband who was indebted to Archdel and she delivers the Goods to Andrews to satisfie Archdel and all that is before the Assignment And I am of Opinion That the property of the said Goods is altered for as the case is Andrews was Surety for Clark and hath a Counter-Bond of Clark to save him harmless If I borrow 100 l. and deliver unto the Lender Plate for the security of it the property general of it is in me yet the Bailee hath a special interest in it untill he be paid If Goods be delivered to A. to pay unto B. A. may sell them An Executor hath Goods of the Testators and he with his own Monies payeth the Debts of the Testator he shall retain the Goods and the property is altered And here in our case Andrews may by virtue of this Bailment sell the Goods and with the Monies arising thereof pay the said Archdel And afterwards Iudgment was given accordingly that the property of the Goods by the delivery over by Andrews was altered CXIV Foskew 's Case Mich. 29 Eliz. In the Exchequer FRancis Foskew seised of the Manor of Foskew in his Demesn as of fee in consideration of a Marriage to be had with Francis his Son with M. Daughter of Sir Edw. Huddleston 9 Feb. 25. Feb. covenanted to levy a Fine of the Manor aforesaid and that the said Fine should be to the use of himself and his Wife for their lives and after their deaths to the use of the said Erancis their Son and M. and the Heirs of their bodies begotten with remainders over The Fine was levied accordingly afterwards 19 Octob. 27 Eliz. Francis the Father acknowledged a Recognizance to the Queen and died his Wife died and now this Manor is extended for the Debt to the Queen by force of the Statute of 33 H. 8. And now Coke came into Court and prayed that the said Manor might be discharged of the Debt to the Queen because it is not chargeable by the said Statute the words of whicih Statute are All Manors Lands Tenements c. which hereafter shall descend remain or revert in Fee-simple tail general or special by from or after the death of any his or their Ancestor or Ancestors as Heir or by Gift of his Ancestor whose Heir he is which said Ancestor or Ancestors was is or shall be indebted to the King or any other person or persons to his use by Judgment Recognizance Obligation c. In every such case the said Manors c. shall be charged c. This Statute was made for the benefit of the King in two points 1. To make Lands entailed liable to the King against the issue tail for the Kings Debts in the cases aforesaid where they were not liable 2. To make Bonds taken by the Officers of the King to the use of the King as

side if the Plaintiff had any remedy the same ought to be against the Executors of the Father of the Defendant and the Plaintiff hath not allowed that the Defendant is Executor to his Father and therefore he hath not any colour of Suit against him nor therefore is there any consideration Fenner The Defendant by the Law is not chargeable nor in conscience upon this matter he shall be charged for by the same reason he should be charged for the simple Contract of his Father and a promise to pay it will not bind him And afterwards Iudgment was given against the Plaintiff CXXXIV Veal and Robert 's Case Trin. 32 Eliz. In the King 's Bench. IN an Ejectione Firmae the Plaintiff declared 1 Cro. 199. How that John Veal leased to him 30 Eliz for twenty one years ten Acres of Land called M. The Defendant pleaded That before the Demise and Ejectment one John Roberts was seised of the said ten Acres called M. in Fee and 14 Eliz. demised the same to one John Cox for life and afterwards 25 Elizab. John Roberts dyed and the Reversion descended to the now Defendant Cox demised the Land to John Veal for thirty years who leased unto the Plaintiff as in the Declaration of which he was possessed quousque c. Cox dyed 30 Eliz. after whose death the Defendant entred and ejected prout was lawfull for him to do c. The Defendant by replication saith That before John Roberts had any thing one Wall of P. of Glocester was seised of the said ten Acres inter alia and 29 H. 8. demised to John Veal Father of the Lessor of the Plaintiff the said Land inter alia by the name of two Messuages and two Yard Lands in the County of Glocester nuper in tenura J. S. and of two other Houses in a Yard Land tunc in tenura E. H. nec non de ten acres vocat M. lying inter C. I. tunc in occupatione E. W. for term of years yet during Habendum dict four Messuages and three Yard Lands in tenura I.S. E.H. nec non the said ten acres to the said John Veal à tempore mortis sursum redditionis forisfactur vel determinationis status vel terminor praedict I.H. W. in eisdem for sixty years by force of which he was possessed of the interest of the term aforesaid and afterwards 14 Eliz. the Estate of the said E. W. in the said ten acres ended for which the said John Veal entred and 25 Eliz. dyed intestate and Administration was committed to J. S. Lessor of the Plaintiff by force of which he entred and Leased to the Plaintiff and so he was possessed untill ejected The Defendant did rejoyn and said That long before John Roberts had any thing William Roberts was seised in Fee and enfeoffed the said John Roberts before the Ejectment supposed who demised unto John Cox and so as in the Bar absque hoc That the said Abbat demised to the said John Veal modo forma prout the Plaintiff replicando allegavit the which matter he is ready to aver petit Judicium The Plaintiff said That the Abbat demisit ut supra hoc petit quod inquiratur per patriam and it was found for the Plaintiff And it was objected by Snag That this issue was not well taken for the Estate of John Veal was not to begin before all the Estates being in esse at the time of the making of the Lease by the Abbat of Glocester are expired Coventry contrary and that the Estates do begin severally and singulatim as the Estates precedent shall end and shall not expect untill the other Estates be determined which see Iustice Needham's Case now reported by Coke 5 part 37 Eliz. and see Pollard's Case there cited At another day it was objected by Snag That the new Estate could not begin in any part untill all the former Estates be determined for if this new Lease be made reserving Rent and one part thereof is now come in possession then he should pay for that part all the Rent But the Court was clear of Opinion That the Lease in the ten Acres did begin presently without having regard to the other Estates in demand for the intent of the Lessor was That no mean time should be betwixt the expiration of the Lease for ten years and the beginning of the new As in the Case betwixt Wrotesley and Adams 1 Eliz. Plo. Com. 198. A Lease is made to begin after the expiration of a former Lease for years the first Lessee takes a new Lease of the Lessor which was a Surrender of the former Lease If the Lease scil the second Lease shall now begin was the question or should expect untill the first Lease shall end by expiration for the former Lease is ended but not expired i. by effluction of time And it was holden that the said second Lease should begin presently for the intent of the Lessor was that no mean time should be betwixt the end and beginning of the said Estates And afterwards Iudgment was given for the Plaintiff CXXXV Pasch 32 Eliz. In the King's-Bench NOTE If a Record be removed out of the Common-Pleas into the King's-Bench by Writ of Error and the Plaintiff shall not assign his Errors then a Scire facias shall issue forth quare executionem habere non debet and upon summons or two Nichels retorned the Plaintiff shall have Execution yet the Plaintiff may assign his Errors And to such a Scire facias Exception was taken because the Writ was coram nobis apud Westm where it should be ubicunque fuerimus in Anglia and for that cause a Supersedeas was granted It was also holden That although a Writ of Error doth not lie here upon a Iudgment given in London yet upon a Iudgment given at Newgate which is upon Commission in their Sessions Error lieth here CXXXVI Bows and Vernon 's Case Pasch 32 Eliz. In the King's-Bench DEBT upon an Obligation was brought by Bows against Vernon and Hennington who pleaded the Statute of 23 H. 6. and shewed that Vernon was in Execution and that the Bond was made for his deliverance against the Statute The Plaintiff replied and said That at the time of the making of the said Bond the said Vernon fuit sui juris and at large absque hoc that he was in Prison tempore confectionis scripti praedict modo forma c. Egerton Solicitor moved that the Traverse was not good for if a man be in Prison in Execution and makes a promise to make a Bond for which he is inlarged and within an hour after he makes the Bond the same is within the Statute and therefore this issue is not well joined but it ought to be absque hoc that it was pro deliberatione c. and of such opinion was Fenner and Gawdy Iustices See Dive and Manningham's Case 4 E. 6. Plo. Com. 68 69. acc CXXXVII Hunt and Sone 's

Case Hill. 29 Eliz. In the Common-Pleas IN an Action upon the Case the Plaintiff declared Owen Rep. 42. 1 Cro. 118. 1 Roll. 30. 4 Len. 13. That whereas the said Plaintiff was seised in his Demesn as of Fee of certain Land and shews the certainty of them the Defendant Sone in consideration that the said Plaintiff permitteret the said Sone occupare terras praedictas ab eodem die scil 20 Julii 27 Eliz. usque ad secundum diem Novembris quod esset in Anno Dom. 1589. super se assumpsit quod ipse idem W. Sone ad festum omnium Sanctorum proxime sequen 10 l. 2 s. 6 d. ac abinde annuatim durante termino dicto 20 l. 5 s. at festa Annunciationis beatae Mariae ac omnium Sanctor per aequales portiones solvend eidem Hunt the Plaintiff bene fideliter contentare vellet Ac licet praedict W. Hunt permisit praefat Sone occupare terras praedict à dict 20 die Julii 27 Eliz. usque ad secundum diem Novemb. 28 Eliz. Licetque post dictum 20 diem Julii 27 Eliz. ante praedict diem 2 Novemb. Anno 20 Eliz. dictum festum omnium Sanctor Anno 27 Eliz. supradict ac festum Annunciationis beatae Mariae Virginis ac festum omnium Sanctor 28 Eliz. praeterierunt praed tamen W. Sone dict 10 l. 2 s. 6 d. ad praed festum omnium Sanctor proxime sequent post permissionem assumptionem praed ac aliud 10 l. 2 s. 6 d. ad festum Annunciationis 28 Eliz. ac alia 10 l. 2 s. 6 d. ad fest omnium Sanct. Anno 28 Eliz. supradict nondum solvit c. The Defendant pleaded That the Plaintiff entred into parcel of the premisses ultimo Octob. 28 Eliz. eadem occupare eidem W. Sone non permisit upon which they were at issue and it was found for the Plaintiff And now it was moved in Arrest of Iudgment That the Plaintiff had not cause of Action before the whole Term be expired for it is an intire Assumpsit and cannot be by Action severed and therefore it was said That if I promise to pay you 20 l. viz. at such a Feast 5 l. and at such a Feast other 5 l. c. there before the last day of payment no Action lieth for the sum of 20 l. is one and entire but if I promise to another at Easter next 10 l. and at Midsummer as much c. here are several Assumpsits and upon default of payment of the first sum Actio oritur without respecting the last payment But at the last the Court was agreed That Iudgment notwithstanding the said Exception should be given for the Plaintiff and said That the Declaration was well enough as well in respect of the Exception aforesaid as also that this word licet is effectual enough for the setting down the permission CXXXVIII Roper 's Case Trin. 30 Eliz. In the King's-Bench Stamf. 166 167. Terms of the Law 75 76. Inst 131. ROper was robbed by Smith and within a Week after the Robbery he preferred an Indictment against him and within a Month after the Robbery he sued an Appeal against Smith and prosecuted the same untill he was out-lawed and thereupon Coke moved to have restitution of the Goods taken And B. of the Crown-Office said That the Fresh-suit was not enquired for upon an Appeal one shall not have restitution without Fresh-suit Coke The Books are That if the Defendant in an Appeal of Robbery be attainted by Verdict the Fresh-suit shall be enquired of but here he was attainted by Outlawry and not by Verdict and so the Fresh-suit cannot be enquired and here the Indictment within a Week and the Appeal within a Month after the Robbery is a Fresh-suit Wray Fresh-suit in our Law is to persue the Felon from Town to Town but the suing of an Appeal is not any Fresh-suit See 21 E. 4. 16. Restitution granted upon an Outlawry in an Appeal of Robbery without Fresh-suit enquired 1 H. 4. 5. if he confess the Felony See 2 R. 3. 13. CXXXIX Piggot and Russel 's Case Trin. 30 Eliz. In the Common-Pleas 1 Cro. 124. 1 Co. English his Case NOTE it was agreed per Curiam in this Case That if Tenant for life being of full age and he in the Remainder within age levy a Fine and afterwards the Infant reverseth the Fine as to him for the Inheritance he shall not enter for forfeiture because he joined in the Fine and so assented to it CXL Sir John Savage 's Case Trin. 29 Eliz. In the King's-Bench IN Trespass the Defendant justified because Sir John Savage was seised of the Manor of D. within which Manor the custome is That if any man taketh to Wife any customary Tenant of the said Manor and hath issue and shall overlive his Wife he shall be Tenant by the Curtesie and pleaded farther That he took to Wife one Ann to whom during the said coverture Postea 208. a customary Tenement of the said Manor did descend and that he had issue by the said Ann and that she is dead and so c. and it was adjudged That the Husband by this custome upon this matter should not be Tenant by the Curtesie for Ann was not a customary Tenant of the said Manor at the time of the marriage CXLI Stainsby and Hales 's Case Trin. 29 Eliz. In the King's-Bench IN a second Deliverance by Stainsby against Hales Challenge was taken for the Hundred and it was shewed and confessed That the Hundred of Feversham in Kent was and is within the Lathe of Seray and that there is not nor ever had been any Court holden in the said Hundred of Feversham but that all the Inhabitants within the said Hundred have used to go to the Court of the Lathe of Seray and it was holden by all the Iustices that in this Case Challenge ought to be taken for the Lathe and not for the Hundred for no Court had been holden in the Hundred See 2 H. 4. 6. 11 H. 4. 2. A Iuror was challenged for the Hundred and the Triors said That the party challenged was not of the said Hundred where c. but they farther said that there were six Hundreds all which came to one Court and the same was holden a good answer to the challenge and the party challenged was sworn CXLII Sands and Hempston 's Case Trin. 27 Eliz. Rot. 1201. In the King's-Bench IN a Replevin The Case was That Henry Earl of Westmerland Dy. 270. 2 Brownl 26. 3 Len. 59. 1 Leon. 4. 16. Postea 15. 2 Roll. 157. was seised of the Manor of Kennington in Fee and granted a Rent-charge to William Cordel afterwards Master of the Rolls for life and afterwards made a Feoffment thereof to Sir John Clifton who granted a Copihold to Sands for life according to the custome of the said Manor the same being an ancient Copihold Sir John died seised the Rent is behind Sir William Cordel died

of it is taken away by the act of the Plaintiff himself CLIV. Heal 's Case Pasch 30 Eliz. In the King's-Bench HEal a Bencher of the Inner Temple being at the Bar Wiat another Apprentice at Law informed the Court against the said Heal and shewed That where his Client had obtained a Iudgment in the King's-Bench The said Heal being of Council with the other part did advise his Client to bring the party who had obtained the Iudgment into the Chancery and he procured an Order against him Co. 3 Inst 12. 123 124. 4 Inst 86 91. by which he was cast into Prison Which matter Heal could not excuse but submitted himself to the Court saying That he had seen a precedent which induced him so to doe and that was the Case of one Prince Princes Case where a Iudgment given in this Court was drawn into question and examined in the Chancery But the Iustices said That the same was an ill precedent and against the Statute of 4 H. 4. which is That no Iudgment be undone but by Error or Attaint CLV Gray and Constable 's Case Pasch 30 Eliz. In the King's-Bench SIR Thomas Gray covenanted with the Lady Constable That where he is possessed of a Lease for twenty one years of certain Lands That he will assure convey and assign the said Lease to one Nevil excepting the two last years of the said twenty one years and he said Sir Tho. Gray was bound in a Bond to perform the Covenants of the said Indenture upon which Indenture the Lady brought Debt against the said Sir Tho. Gray who pleaded the Conditions and the performance of them The Plaintiff replicando said That the Defendant non assuravit conveiavit transposuit Anglice set over the said Lease upon which they were at issue And at the day of the Nisi Prius it was moved by Cooper and Beaumont That the Issue was misjoined for the Defendant pleads as the Covenant it self is That he had assured conveyed and assigned the Lease and so pleaded the performance of other Covenants c. The Plaintiff assigned the breach in this Quod non assuravit conveiavit transposuit Anglice set over which word transposuit is not in the Covenant nor in the pleading of the performance thereof and the English word set over although it sounds the same with assigning doth not help the matter and if the Latin word doth not agree with the matter non refert of the English word although in the Plea there be this word Anglice set over Note the Covenant was ut supra The Plaintiff assigned the breach Quod non assuravit conveiavit transposuit Anglice set over c. And the Defendant pleaded Quod assuravit conveiavit transposuit Anglice set over c. And the Court was clear of opinion That the Issue for that cause was not well joined And afterwards by the assent of the parties it was amended CLVI Doghead 's Case Pasch 30 Eliz. In the King's-Bench Hutt 35. Hob. 250. Antea 110. 1 Cro. 177. And. 116. AN Information was upon the Statute of 27 Eliz. cap. 4. by the party grieved which Statute gives unto the King one moyety of the value and the other moyety to the party grieved The Plaintiff was nonsuit It was holden by the Court that he shall not pay costs and damages by the Statute of 18 Eliz. for the Statute as the Title of the same doth imply is to redress Disorders in common Informers and so is the Preamble and the words also of the clause of costs and damages are Every such Informer and so by Ive Secondary of the Crown-Office An Action given to the party grieved is not a popular Action and the Statute of 18 Eliz. extends onely to popular Actions CLVII Cony and Chomley 's Case Pasch 30 Eliz. In the King's-Bench IN an Ejectione Firmae after Verdict in Arrest of Iudgment it was moved That the Plaintiff had declared in Ejectione Firmae Quod cum Robertus Diggon per Indenturam suam gerent dat 20 Maii 1 Cro. 773. 890. dimisit c. where he ought to have said iisdem die anno For although the Indenture bear date ut supra yet it may be that it was delivered at another day and then it doth begin to be a Demise And if in an Action upon the Case upon Assumpsit to pay money upon request although it be found for the Plaintiff yet if no day be put in the Declaration when the request was made but onely licet saepius requisitus in case where a request ought to be made there the Plaintiff shall not have Iudgment as it hath been oftentimes adjudged Quod omnes Justiciarii concesserunt But yet afterwards notwithstanding the Objection aforesaid Iudgment was given for the Plaintiff CLVIII Marsh and Jones 's Case Mich. 29 and 30 Eliz. In the Common-Pleas IN a Replevin the Case upon the Evidence was 3 Len. 114. That before the Statute of Quia Emptores terrarum a man made a Feoffment in Fee to hold of him by the service solvendi post quamlibet vacationem sive alienationem the value of the annual profits of the Lands And it was holden by the Court That the value shall be intended such a value as was the value at the time of the Feoffment made and not as it is improved by succession of time CLIX. Willoughby 's Case Mich. 29 and 30 Eliz. In the King's-Bench WIlliam Willoughby and two other were indicted 1 Cro. 3 Len. 216. That whereas the Parson of the Church of D. and all his predecessours have used to have Common in such a place the said Willoughby c. vi armis c. had inclosed it and the Inclosure was upon their own Lands It was moved That upon this matter they ought not to be indicted but the party grieved is put to his Action as where a Presentment is made of a Disseisin See 27 Ass 20. And it was the Case of one Morden Morden's Case 1 Cro. Madox Case 29 Eliz. upon the stopping of a Way upon his own Land And it was said That if it should be upon the Lands of another it were not material for it is but a hindrance from the taking of Common which cannot be vi armis Also it was said That the Indictment is recorded and certified as found before the Iustices of Assise and Gaol-delivery and they cannot take such Presentments And although the said Iustices of Assise and Gaol-delivery were in rei veritate also Iustices of the Peace yet the Indictment being recorded and certified to be taken before them in quality of Iustices of the Peace will not help it for the Court shall not respect any other authority but that which appeareth upon Record and therefore for the causes aforesaid they were discharged by the Court. CLX Collet and Robston 's Case Error Hill. 30 Eliz. In the King's-Bench 3 Len. 149. COllet and Andrews recovered in a

the Office comes too late for the Queen c. as in the Lord Lovel's Case Plow 18 Eliz. 482. A Lease for years is made unto an Alien upon condition that if the Alien pay such a sum of Money to the Lessor at any time during the Lease that he shall have Fee the Alien is made a Denizen the Money is paid and all that is found by Office The Queen shall not have the Fee for at the time of the vesting of the Fee the Lesse was Denizen and the Office shall not relate to the time when the Fee vests and no farther but to avoid incumbrances and so in such Case the Office comes too late And if the King's Villain purchaseth Lands and the King make him free and afterwards Office is found the same shall not entitle the King but the Villain manumitted shall hold the Land So in our Case the Queen after this Grant shall not take the benefit of this Office or breach of the Condition found by it And afterwards Manwood chief Baron gave order That those who do argue after shall speak but to two points 1. Where the Queen Leases for years rendring Rent payable at the Receipt at West in which Lease there is a Proviso That if the Rent be behind the Lease shall be void If now the Rent not being paid the Lease shall be void without any Office 2. To what effect an Office now shall be being found after the Queen hath granted the Inheritance over At another day Owen Serjeant argued to the contrary and he said the Lease is void without any Office for as a Lease for years may be made by contract so it may be avoided by words of contract otherwise it is of Freehold So that a Lease shall be avoided without entry 6 E. 6. 137 138. Plow Browning and Beston's Case Offices are of two sorts First entituling the Queen as purchase of an Alien purchase of Villain alienation in Mortmain and Offices informing the Queen where she hath interest in the Land before as in our Case here Admit that the Office was necessary to find the breach of the Condition the Patentee shall take the benefit of it for being found by Office that the Queen hath made such a Lease with condition to be void for non-payment of Rent and that at such a day the Rent was behind now being of Record every Subject shall take advantage of it As where a Husband makes a Feoffment in Fee upon condition of the Land of his Wife and dieth If the Heir enter for the Condition broken now may the Wife enter upon him for now the discontinuance is avoided See 11 H. 7. 17. Where the Grantee of the Reversion shall take advantage of a condition ut supra concluding That the Lease shall be void And see 136. Plowd Browning and Beston's Case And although after the default of payment the Rent due afterwards was accepted yet that shall not conclude the Queen for this acceptance is not under the great Seal but onely done by the Office Also the Lease being void for the non-payment cannot be made good by acceptance afterwards Atkinson contrary Although that the Lease be void de facto yet until it appeareth to the Court the Court cannot say it is void or not void therefore Office is necessary to ascertain the Court The Queen is a body Politick and the chief body Politick above others because she is the Maker Authour and Creatour of all other Corporations and that is the reason that the King cannot speak without writing and this is the most solemn writing i. Writing of Record So she cannot take but by Record And in our Case it doth not appear by any writing of Record the Rent was behind and it is agreeable to the Majesty of a King to do nothing without matter of Record which see 4 Eliz. in the case of the Dutchy And he said there is no difference betwixt the Case in 2 H. 7. and our Case In each Case it is a Lease for years Rent reserved in this onely differing that there is a clause of re-entry and here the conclusion of the Condition is that the Lease shall be void but in both Cases none can say that the Rent is behind untill it be found by Office therefore none can say that the Lease is void untill Office found See by Thorp 35 E. 3. Chattels personals of the King's Villains are in the King without office for such things may be lost or worn contrary of Chattels Reals as a Lease for years for Land cannot but continue and such things which may be in the King without writing he may grant without writing as a chain of Gold or a Horse Deodands Felons goods Wreck c. vest without Office because Chattels personals See 20 E. 4. 11. contrary when they are Chattels reals and permanent for there an Office is necessary In the Case of year day and waste an Office ought to be found Ergo à multo fortiori in case of a Lease for years which is a greater interest c. 49 E. 3. 11. There is a general Rule Quo modo quodque ligatur eo modo dissolvitur That which passeth by Livery ought to be reduced by re-entry that which begins by Record ought to be determined by Record and here in our Case the Land cannot depart from the King without Record therefore it shall not revert without Record although that the breach of the condition be but matter of fact yet the proof of that ought to be of Record And here in our Case is a condition and not a limitation And he said that in the Case often cited before of 11 H. 7. 17. it is a limitation and not a condition For if it were a condition the Grantee by the Law could not take advantage of it because not privy and he was clear of opinion that where the words are That the Lease shall cease or shall be void yet in such cases there ought to be an Office for in Leases of the King there needs no re-entry because the King to speak properly cannot re-enter And the words That the Lease shall be void do amount to words of re-entry and he said That in the Case of a common person upon such a condition broken the Land shall not be in the Lessor without re-entry no more shall they be here in the Case of the Queen without an Office Also the Rent reserved upon this Lease was behind and the Lessee continuing the possession the Queen by acceptance of the Rent hath affirmed the party Tenant and afterwards granted the Reversion over before any Office found of that matter Now the Lessee is discharged and shall never be impeached for the said Rent behind and the Grant Ex certa scientia c. after found shall not defeat this Grant by any relation And the Queen by her Grant hath included all the advantage which accrued unto her by the breach of the Condition and as to that which hath

by the Lessor to the Lessee cannot enure and that for want of privity Lit. 109. And such Lessee cannot attorn and if the Lessor after that accepts of the Rent the same doth not make the Lease good and all for want of privity therefore here is no privity As to property such a Lease shall not be said Assets in the hands of an Executor nor shall be sold upon an Extent nor forfeited by outlawry And here in this Case the Queen cannot be said to take any thing by the breach of the Condition but hath her reversion discharged of the Lease and he said That the Office is found well enough for time and it shall relate to the time when the title accrued that is when the Rent was behind and the arrearages of the Rent do not pass by the grant of the Land or the reversion The Queen hath a Rent-charge out of Lands which is behind the Lands come to the Queen and she grants the same over yet she shall charge the Lands with the said arrearages but contrary in case of an injury done upon the Land of the Queen As the Tenant of the King aliens without licence and afterwards the Lands so aliened came to the King's hands who grants them over the Grantee nor the Land shall be charged but onely he who was party to the alienation his Lands and his Executors So of an Intrusion Tenant for life of the King makes a Feoffment in Fee the King grants over the reversion and afterwards the tortious Feoffment is found by Office this Office is soon enough for time and the Grantee of the reversion shall have advantage of it and the King the mean profits from the time of the alienation and afterward in Mich. Term 33 Eliz. the Case was argued by the Barons Clark Puisne Baron The Lease is conditional and with a limitation also so conditional and limitation mixt together 3 Ass 10. Land given to one untill he come from foreign parts Lands given to one so long as he shall continue sole is an Estate for life with limitation upon her marriage so during the coverture c. and these limitations are not collateral but begin with the Estates when the Estates are limited but conditions always come when the Estate is settled as it is in our Case yet if the intent and substance of the Contract betwixt the King and the Subject be well considered there shall not be any difference c. Lands devised to one Proviso That if the Devisee shall disturb the Executors of the Devisor his Estate shall be void and the land remain over c. the same is a good remainder for it is a limitation conditional See Scholastica's Case Plowd Com. 14 Eliz. 413. concerning an Estate tail with a limitation And Fitz. James Case there put by Dyer See Browning and Beston's Case before cited and Martin Dockra's Case where a condition is conceived in words of Covenant c. Gent Baron argued to the same intent Manwood chief Baron to the same intent The Rents reserved upon the Leases of the Queen are to be paid to Receivors Baileys or at the Receipt of the Exchequer The Queen shall not make any demand of her rent for she hath an infinite number of Farmors and if demand be necessary she were to send an army of Receivors or Baileys to receive and demand her rents If the Rent of the King be to be paid at the Exchequer if the King 's Fermor be there and tender the rent at due time and none be there to receive it he hath saved his Lease for he hath done his possible endeavor although the words of the Condition in the Lease be behind and unpaid yet not tendred shall be understood as in the common case of Mortgages and Obligations But in all the Record before us there is no words of any tender therefore according to the words of the condition the Lease is meerly void and determined in right in privity and in tenure for so is the pleasure of the Prince expressed in her Letters Patents under the great Seal of England That it shall be then void and of no effect Then i. whensoever the Rent shall happen to be behind and therefore as soon as the Rent was behind the Lease was determined so that if after the non-payment a stranger had entred upon him scil the Lessee upon which he brings Ejectione Firmae the Defendant might have pleaded the special matter against him Iudgment if Action so as the Lease is void in Right It is also void in Privity and Tenure for a Release to such Lessee after the Rent is behind is altogether void for he was not then Lessee and so the privity is gone and no acceptance can make such Lease good And if such a Lessee after his Rent would surrender and in consideration of such Surrender obtain a new Lease from the Queen this new Lease is also void for here upon the matter is no surrender Also such a Lease is void in property for if the Lessee in such case dieth his interest such as it is shall not be accounted Assets in the hands of his Executor upon the breach of this Condition for the Rent although that the Lease be become void yet the possession of the land is not resetled in the Queen without Office and although the Office doth not make the Lease void which was void before for non-payment of the Rent yet before Office found the possession is not vested in the Queen for before Office found we cannot award Process against such a Lessee for his continuing the possession after the Rent behind and untill Office found the Lessee cannot be found an Intruder and Tenant at Will he cannot be for no other Will appears of the Queen but that in the Letters Patents and that is to have the Lease void whensoever the Rent shall be behind and that Estate is gone because the Rent is behind Tenant at sufferance he cannot be in this case In case of a common person when Lessee for years holds over his term he is become Tenant at sufferance and such a Tenant shall not pay Rent for it is the folly of his Lessor to suffer his Lessee at sufferance to continue possession of the Land after his term so as every Tenancy at sufferance is made by the Laches of the Lessor which Laches cannot be imputed to the Queen therefore here this Lessee when the Condition is broken is not a Tenant at sufferance nor shall have the profits of the Lands to his own use but the Law shall account him to be a Bailiff of his own wrong and so be accountable to the Queen but no Intruder till Office be found and that appears in our Books 1 H. 7. 17. The King's Tenant dieth his Heir within age if any entreth into the Land of the Heir he shall not be an Intruder untill Office found but the Heir or a stranger who entreth before Office and takes the profits

shall be brought by Process into the Exchequer to make their Accounts and to answer the issues and profits but if he intermeddle after Office he shall be an Intruder Tenant of the King alieneth without licence by that the King is to have the profits untill he compound with the King and purchaseth his pardon and if the Feoffee taketh the profits after the Alienation he is a Pernor of the profits and shall answer for them but he is not an Intruder untill Office found Tenant of the King is attainted of Felony the King is entitled to the Land from the time of the Felony committed yet if he take the profits untill Attainder he is not an Intruder but he taketh the profits without Title therefore he is Bailiff of his own wrong and so accountable to the King. And it is not a new thing that a Conveyance or an Estate shall be void as to the Right onely and not as unto the Possession The Statute of Doms West 2. finis ipso jure sit nullus i. as to the right of the Entail yet as unto the possession the issue in tail is bound untill he hath recovered it by a Formedon Vpon the Statute of 21 H. 8. cap. 13. by acceptance of another Benefice against the said Statute the first Benefice shall be void c. yet the same shall not be construed so as to possession but that the same shall remain with him untill it be taken away from him The Queen leaseth for years Proviso that if the Lessee commit Waste the Lease shall be void when first Waste is done the Lease is determined in Right but not as to the possession before Office finding the Waste So if the Condition be for the building of a House for by the breach of the Condition the Lease as unto the right and interest is determined and after Office found it shall revest the possession also And if a Lease of the King expire by effluction of time and such effluction appeareth here of Record if the Lessee in such case continueth his possession he shall be an Intruder Sir Robert Chester's Case Dyer 4. Eliz. 211. Sir Robert Chester was Receivor of the King by Patent upon condition to render Account yearly at such a day and before such a day to pay the arrearages the condition is broken the Patent was void without Office thereof found but yet it is not altogether void for a Scire facias shall be brought against the Patentee The King leaseth unto A. his Manor of D. and after he leaseth also to the said A. his Manor of S. Proviso that if the Lessee doth not surrender his first Lease of the Manor of D. at such a day that then the latter Lease of the Manor of S. shall be void The Surrender is not made now the Lessee if he continue his possession in the Manor of S. after he is an Intruder Now is to see of what effect the Office is not to make the Lease void but to vest the possession in the King again It hath been objected That as the case is the Office is not to any purpose for the Queen hath granted the inheritance over so as the possession cannot be revested in the Queen by that Office against her own Grant nor can the Queen punish the Lessee as an Intruder for his continuance of the possession after the Office nor can seise the Land by such Office and there is not any such Office for the benefit of a Subject therefore the Office is meerly void Let us compare our Case unto the Case of Cessavit The Tenant of the King ceaseth for two years the King grants the Seignory over in fee the Cesser is found by Office the Grantee of the Seignory gains nothing by it but that is not like unto the Case in question for there when the Office is found the Tenant may tender the arrearages for the King is not absolutely entitled by the Cesser because by tender of the arrearages the Tenant may save his Tenancy But in this case after the Condition is once broken there is not any means for the Tenant to save the Forfeiture also the King by his Grant after the Cesser hath not granted the thing which accrued unto him by the Cesser scil the Tenancy but onely the Seignory but in our case the King hath granted the thing forfeited i the land demised and here is a full forfeiture contrary in the case of Cesser And in our Case the King hath granted onely the land demised and not the profits encurred mean between the breach of the Condition and the Grant of the King but these remain to the Queen and to that purpose the Office is good scil to entitle the Queen to these profits And as to that which hath been objected That the Lessee hath always paid the Rent unto the Queen after the Condition broken and hath an Acquittance of the Receipt of it therefore no profits due to the Queen for she hath the Rent in lieu of the profits and it is not reason that the Lessee shall pay an annual Rent and also shall be accountable for the mean profits and so the Office as unto the mean profits which in truth upon the matter aforesaid are not due unto the Queen is void and then altogether void quia nihil operatur To that he answered That the King shall not be bound off the mean profits in that case by the payment of the said Rent for by intendment the true annual value of the Land is more than the Rent reserved and it is not reason but that the Queen shall be answered of the surplusage or overplus above the Rent and therefore the Office entituling the Queen to part of the profits is good enough Tenant of the King for life or for years makes a Feoffment in Fee although that by this Act he cannot pluck any thing out of the King yet because he hath attempted to do such a wrong it is a forfeiture and the Lease for years utterly extinct by it for it cannot be in the Feoffor against his own act by which he hath departed with all his Interest c. And the Feoffee cannot have it for if he hath any thing it ought to be a Fee-simple or nothing at all and a Fee-simple he cannot have for that remains in the King and so neither have Estate then is all in the King and the King hath Title to have the profits c. But put case that after the Feoffment the King grant over the Land in Fee and after that tortious Feoffment is found by Office he who accupieth the Land after the forfeiture untill Office be found shall be occountable to the King for the issues and profits c. as Pernor of the profits or Baily of his own wrong and he who occupieth the Land after the Office shall be punished as an Intruder There was a Case very late in this Court betwixt Sir Tho. Henage and one Hungate which was thus Sir

the Case of making this Statute it was not to overthrow a foundation as it hath been said but it was rather a gratuity of the Subjects to the King for his bounty towards them for whereas by the Statute of Vses Vses were executed in possession so as the Subjects could not dispose of their Lands by their Wills as before the Vses Now by this Statute the King was pleased to give his Royal assent to an Act by which Lands might become devisable in respect of which the Subjects added to this Act the last clause to give him Wardship where it did not lie before by the Common Law and that as a recompence from the Subjects for the King's bounty and therefore it ought to be construed beneficially for the King. And to prevent covin and fraud was not the scope of this Statute For if three purchase Lands unto them and to the heirs of two of them now it is uncertain whose heirs shall inherit for non constat which of them shall survive and therefore no covin is averrable in such case and yet if the survivor of two to whom the Fee is limited dieth his heir within age such heir shall be in Ward So if such Lands be given to two and to the heirs of him of those two who shall first come to the Church of Paul Now it is uncertain which of them shall first come to the Church of Paul yet if he who first cometh to the Church of Paul dieth his heir within age he shall be in Ward which Cases prove that covin and fraud were not the cause of making this Statute but onely the thankfulness of the Subjects unto the King for his bounty as abovesaid for if this Act had not been made the Subjects should not have power to dispose of their Lands for the advancement of their children but all should descend So as now the King hath lost the Wardship and Primer seisin of two parts of the Lands of his Tenant and hath also lost the averment of covin which he had by the Common Law where Estates were made by the King's Tenant for advancement of their children In respect of which losses the Subjects gave unto the King Wardship in case where the Lands continue in jointure as to that which hath been said That this Statute shall not be taken by equity I conceive the contrary the words of the Statute are In every such case i. e. In every like case not onely where two or more persons hold jointly to them and the heirs of one of them but also in every the like Case as the Case now in question and in every Case where the life of him who hath the Freehold is the sole impediment quo minus the heir hath not the Land by descent in Demesne And it may be resembled unto the Statute of Marlbridge of Collusion which speaks of Leases for years Quas tradere voluerint ad terminum annorum and yet a Lease for life or Lease for years is within the said Statute for the Statute was made in restraint of an ill liberty that the Tenants had by the Common Law in prejudice of their Lords which see 4 E. 6. 53. Plow 59. And as to the word otherwise that may be construed for payment of his Legacies And as to equity enlarging the Statute speaks where many hold and to the heirs of one yet if two hold to them and the heirs of one of them the same is within the Statute And as to Equity restraining he puts this case Land is given to the Husband and Wife and the heirs of the body of the Wife who have issue the Wife dieth the issue within age he shall not be in Ward and yet he is within the Letter of the Statute but because that other matter That the Estate for life in the Husband is an impediment Quo minus he shall be in Ward It is a maxim of the Common Law That the father shall have the Wardship of the son and heir apparent therefore he shall not be within the meaning although he be within the Letter of the Statute So if Lands be given to my Villain and to another and to the heirs of my Villain who dieth seised his heir within age I seise the Villain and claim the remainder he shall not be in Ward and yet he is within the Letter of the Statute But I conceive in our Case the King shall have two Wards Simul semel the heir general of Wiseman and the issue in tail the heir general by the Common Law by reason that his father was the King's Tenant who disposed of his Lands for the advancement of his children and therefore the Queen shall have the third part in Ward And also the heir special shall be in Ward for that part of the Statute And it is no new thing to have two Wardships for one and the same Lands As 14 H. 8. of the heir of Cestuy quae use and also of the Feoffee and if the Tenant dieth seised having issue a daughter who is his heir the Lord seiseth the daughter and marrieth her and afterwards a son is born he shall have the Wardship also of him So of the heirs of the Disseisor and Disseisee and he said If Lands holden in chief be leased for life the remainder to A. in Fee A. dieth his heir within age he shall be in Ward and that by reason of these words in the Statute In every such case it is not the same Case but the like Case for if he who hath the Fee dieth so as the Freehold survives to the other now the Estate becomes as an Estate for life the remainder over It was adjourned CLXXXIV The Lord Howard and the Town of Walden 's Case 24 Eliz. In the Exchequer More Rep. 159. Post 162 163. BEtwixt the Lord Howard and the Town of Walden the Case was That the King made a Feoffment in Fee of Lands parcel of his Dutchy of Lancaster Tenend in feodi forma reddend inde sibi haeredibus suis aut illi cui de jure reddi debet 10 l. The question was How and of whom the Tenure should be It was argued by Plowden That it should be holden of the King as of his Dutchy he said The King is not bounden by the Statute of Quia emptores terrarum but here upon this Feoffment the Feoffee shall hold of the King as of his Dutchy All Grants of the King notwithstanding that they be of Lands yet they savour of the person of the King and his Prerogative being wrapt up in his person shall guide the disposition of the land and he said that this Tenure shall be implyed by reason and in respect of his person And the Statute of Quia emptores terrarum extends to Tenants onely Libere tenentes magnatum aliorum but the King is not Libere tenens alicujus magnat 32 H. 6. 21 22. The King hath an Advowson in the Right of his Dutchy to which

the Defendant Non parit actionem for there is not any consideration upon which it is conceived but is onely Nudum pactum upon which the Defendant could not have an Action against the Plaintiff And then here is not any sufficient consideration for the promise of the Defendant Mounson Iustice conceived that here the consideration is sufficient for here this counter promise is a reciprocal promise and so a good consideration for all the communication ought to be taken together Manwood Such a reciprocal promise betwixt the parties themselves at the match is sufficient for there is consideration good enough to each as the preparing of the Bows and Arrows the riding or coming to the place appointed to shoot the labour in shooting the travel in going up and down between the marks But for the Bettors by there is not any consideration if the Bettor doth not give aim Mounson A cast at Dice alters the property if the Dice be not false wherefore then is there not here a reciprocal Action Manwood At Dice the parties set down their monies and speak words which do amount to a conditional gift scil If that the other party cast such a cast he shall have the money CLXXXVIII Dunne 's Case 19 Eliz. In the King's-Bench DUnne possessed of divers goods in divers Dioceses died intestate at Bristow The Bishop of Bristow committed administration to Jones and his Wife who administred and afterwards the Bishop of Canterbury by reason of his Prerogative committed administration to Austen and Dunne and they brought an Action of Trespass against Jones and his Wife for taking of the goods of the intestate It was holden by Wray and Southcote 5 Co. 2 30. 1 Cro. 283. 457. that the Letters of administration granted by the Bishop of Bristow were void Gawdy and Jeofreys contrary for the granting of Letters of Administration de mero jure doth belong to the Ordinary and it might be that neither the Ordinary nor the parties to whom he granted the Letters of Administration had notice that the Intestate had bona notabilia in another Diocese and therefore it should be hard to make the Defendants Trespassors Exception was taken to the Declaration because it is shewed that the Archbishop of Canterbury by reason of his Prerogative committed Administration c. without shewing that the Intestate had bona notabilia c. but the Exception was not allowed for so are all the precedents as the Declaration is here which all the Clerks in Court did affirm and afterwards Exception was taken to the Bar because it is there pleaded that the Defendant had paid a certain sum of Money to one A. to whom the Intestate was indebted by Bond and did not shew how the Bond was discharged as by Release Acquittance cancelling of the Bond c. And that was holden to be a material Exception For the Defendants in such case ought to shew such discharge which is sufficient and by which the Plaintiffs may be discharged and for that cause the Plaintiff had Iudgment to recover CLXXXIX Kingwell and Chapman 's Case 19 Eliz. In the King's-Bench IN an Action of Debt upon a Bond by Kingwell against Chapman 1 Cro. 10. The Defendant pleaded that it was endorsed upon condition That where divers debates were betwixt the Plaintiff and one J. Brother of the Defendant the said Plaintiff and J. put themselves to the award of one Copston and the Defendant was bound by Bond to the Plaintiff that his brother should perform the award of the said Copston And the award was That the said J. should pay to the Plaintiff 30 l. viz. at the Feast of the Annunciation 20 l. and at Michaelmas after 10 l. and shewed that the said J. had paid the said 20 l. at the Annunciation and as to the 10 l. he pleaded That the said J. died before the said Feast of Michaelmas upon which there was a demurrer And by Wray Southcote and Gawdy Iustices the Bond is forfeit First because the sum awarded by the Arbitrament is now become a duty as if the condition of the Bond had been for the payment of it Secondly day is appointed for the payment of it 10 H. 7. 18. Thirdly the Executors cannot perform the condition But if I be bound by Bond to enfeoff the Obligee at such a day and before the said day I die my Executors shall not be charged with it for the Condition is become impossible by the Act of God for the Land is descended to the heir CXC Lodge 's Case 20 Eliz. In the Common-Pleas Syderf Rep. 362. LOdge an Attorney of the Common-Pleas was indebted unto Booth in 34 l. payable at a day to come and Booth was indebted to Diggs in 40 l. Diggs according to the custome of London attached in the hands of Lodge 34 l. to be paid to him at the day as part of his debt of 40 l. Lodge brought a Bill of Privilege directed to the Mayor and Sheriff of London and that every person who had cause of Action against Lodge Sequatur ad Com. Legem c. Si sibi videbitur expedire c. At the retorn of which Writ Bendloes prayed a Procedendo And by Harper Iustice the privilege shall not be allowed because that this Attachment is by custome and not allowable here and if Lodge should have the privilege then is the other party without remedy And if an Attorney of this place be impleaded in London upon a Concessit solvere debit alterius he shall not have the privilege Manwood contrary For according to the Common Law Lodge owed nothing to Diggs but is his Debtor by a custome And as to the Case of Concessit solvere there the promise was to the party himself who brought the Action and he hath no other remedy but in the Case at Bar Diggs who is a stranger vexes Lodge who ows him nothing having remedy against his proper Debtor which Dyer granted and farther said That the privilege of this Court ought not to be impeached by any custome And the Prothonotaries cited a Case adjudged in the point That such a privilege was allowed in the Case of one Underhil and afterwards in the principal Case the privilege was allowed CXCI. Segar and Bainton 's Case 21 Eliz. In the Common-Pleas 3 Len. 74. IN an Action of Trespass the Case was That King Hen. 8. an 27. of his reign gave the Manor of D. to Sir Edw. Bainton Knight and to the heirs males of his body Sir Edw. Bainton had issue Andrew his eldest son and the now Defendant his younger son and died Andrew Bainton covenanted by Indenture with the Lord Seymore That the said Andrew Bainton would assure the said Manor to the use of himself for life the Remainder to the use of the said Lord and his heirs and the said Lord in recompense thereof should assure other Lands to the use of himself for life the remainder to the use of the said Andrew Bainton in tail

who 37 H. 8. levied a Fine of the said Manor 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 by which all his Lands were forfeited to the King And afterwards the said Andrew Bainton made a suggestion to Queen Mary of all this matter and upon his humble Petition the said Queen by her Letters Patents reciting the said mischief c. Et praemissa considerans annuens Petitioni illius granted to him the Manor aforesaid and farther De ampliori gratia sua did release to the said Andrew Bainton all her right possession c. which came to her Ratione attincturae praed vel in manibus nostris existant vel existere deberent after which 5 Eliz. Andrew Bainton levied a Fine to the Plaintiff with Proclamations and died without issue and the Defendant as issue in tail entred Puckering Serjeant First it is to see if by the words of the Patent of Queen Mary viz. De ampliori gratia c. the Reversion in Fee which the Queen had shall pass or not Secondly Admitting that the Reversion doth not pass then if the Fine levied by Andrew Bainton 5 Eliz. to the Plaintiff the Reversion being in the Queen be a bar unto the issue in tail For as unto the first Fine levied 37 H. 8. which was without Proclamations the same shall not bind the issue in tail neither as to the right nor as to the Entry for it is not any discontinuance because the Reversion is in the King as of things which do not lie in discontinuance as Rent Common c. for such a Fine is a Fine at the Common Law and not within the Statute of 4 H. 7. and such Fine is void against the issue But if such a Fine without Proclamation be levied of a thing which lieth in discontinuance then such a Fine is not void but voidable by Formedon and therefore this Fine in the Case at Bar being levied without Proclamation 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 nothing but a Fee determinable upon the life of Tenant in tail which Fee was forfeited to the Queen by the Attainder of the Lord Seymore and that the Queen moved of pity did restore the same to A. B. in recompence for the Indentures of themselves were not sufficient to raise any use See 1 Mariae Dyer 96. As to the first point it seems that nothing passed of the Reversion for the Grant hath reference to the words All her 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 which was the foundation of the whole Grant and here the intent of the Queen was not to any other intent but onely to restore A. B. to the said Manor or to his former Estate in it and nothing appears in the Letters Patents by which it may appear that the Queen was knowing of her Reversion which she had by descent and therefore the same cannot pass by general words If the Queen grants the Goods and Chattels of all those which have done any Trespass for which vitam amittere debent the Goods of him who is attainted of Treason shall not be forfeited to the Grantee by such general words 8 H. 4. 2. The King grants omnia Catalla Tenentium suorum qualitercunque damnatorum the same shall not extend to the Goods of him who is condemned of Treason See 22 Ass 49. So in our Case the Patent shall not serve to two intents but to a restitution of the Manor and then nothing passed by this Patent but the Fee determinable which was conveyed to the Lord Seymore and forfeited by his Attainder Then we are to see how after this grant the said A. B. is seised And he said That he shall be in of the said Fee determinable and not of the Estate tail against his own Fine and then if he be not seised by force of the Entail at the time of the Fine levied 5 Eliz. the same Fine cannot bind the tail But admit that at the time of the second Fine levied he was in of an Estate in tail yet the same Fine shall not bar his 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 Sanders where A. makes a Lease to begin at a day to come and afterwards levies a Fine to a stranger with Proclamations the five years pass and afterwards at the day of the Commencement of the Lease the Lessee enters his entry is lawfull and he shall not be bound by the non-claim And so it was adjudged 21 Eliz between Sanders and Starky 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 Proclamation forasmuch as upon the death of their Ancestours they were as new purchasors per formam doni and therefore it was provided by the Statute of 32 H. 8. that the said Statute of 4 H. 7. should extend to such common Entails but there was no doubt of the Estate tail of the Gift of the King and see betwixt Jackson and Darcy Mich. 15 and 16 Elizab. Rot. 1747. 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 adjudged that that should bind the issues and 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 the words of the said Act are general of all Tenants in tail the makers of the said Act perceiving that it might be a doubt that the generality of the said words might exclude Estates tail of the Gift of the King they have restrained the words in a special manner as appeareth by the last words of the same Act Nor to any Fines heretofore levied or hereafter to be levied by any person or persons of any Manors c. before the levying of the said Fine 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 have been if the said Act had not been made and therefore he conceived it appeared at the said Parliament That such Estate tails of the Gift of the King were not bound b● 4 H. 7. for otherwise that Proviso or Exception had been frivolous Walmsley Serjeant to the contrary and he agreed That the

60 years and afterwards enfeoffed Oxenbridge to the use of the said Cheney 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 was not extinct And he put the case of the Lord Paget in the King's Bench adjudged A Feoffment was made unto the use of the Feoffor for life the remainder to him whom the Feoffor should name at his death in Fee the Feoffor and the Feoffees for good consideration levied a Fine unto a stranger and afterwards the Feoffor named one and died the party named by the Feoffor shall have the land notwithstanding the Fine Beamount The contingent use here is utterly destroyed by the Feoffment aforesaid and it appeareth by the preamble of the Act of 27 H. 8. That the makers of the Act did not favour Vses but their intent was utterly to extirpate Vses And if contingent Vses which are not nor cannot be excused by the Statute should stand in force The mischief would be That no purchasor should be secured and safe in his purchase but should always be in danger of a new born Vse not known before and he grounded his farther argument upon the reason of Manwood and Dyer Where a man makes a Feoffment in Fee to the use of himself and his Wife which shall be and afterwards he and the Feoffees and those in remainder make a Feoffment to divers new Feoffees and to new Vses and afterwards he takes another Wife and dieth It was the opinion of the said two Iudges That by that Feoffment ut supra the contingent Vses are destroyed For when the Estate which the Feoffees accept is taken away which was the root and foundation of the Vses which are the branches and fruit of the body of the said Tree it necessarily followeth That they be also taken away and because the Feoffees by their Livery are barred to enter to recontinue the Estate which should yield such Vses they also are gone and extinguished Yelverton was of opinion that notwithstanding the said Feoffment that the Vse should rise in his due time according to the limitation of it It was adjourned CCXIX. The Lord North 's Case Trin. 30 Eliz. In the King's-Bench THE Queen granted unto the Lord North and his heirs the Fines pro licentia concordandi and one would not pay him the Fine for which cause the Lord North brought an Action upon the Case against him and declared upon Indebitatus assumpsit c. Godfrey moved this matter to the Court to know their opinion if such Action would lie for the matter or not Fenner For a Fine in a Court-Baron or Court-Leet debt lieth but as he conceived 1 Leon. 249 250. 3 Len. 56. 234. here this Action doth not lie for it is a real Fine and there is no contract betwixt the parties but the same is given by the Law and some were of opinion that debt lieth for a relief for there is a contract by Fealty Gawdy conceived That the Action doth well lie for it is not any casual profit and therefore debt lieth for it although it be an inheritance And see Dyer 28 H. 8. 24. The heir shall have an Action of Debt upon a Nomine poenae reserved by his Ancestour Wray I do not see that he hath any other remedy and therefore I am of opinion that this Action will lie CCXX Mrs. Paschall 's Case Trin. 31 Eliz. In the Exchequer MIstress Paschall was bound with sureties for her appearance before the high Commissioners that she should not depart without licence under the hands of three of them and she pleaded the general Pardon at the last Parliament in which there is an Exception of all Bonds and Recognizances except onely such Bonds and Recognizances as are for appearance And Atkinson argued That she ought to be discharged by the Exception for although the departure without licence be not specially named yet it is within the sense for the not departure without licence is no other thing than to continue her appearance Popham contrary For The Non departure without licence was set down in the Condition to this purpose That she should not go into the Countrey to be corrupted there or to corrupt other and receive Seminaries c. therefore it is another thing than appearance Between Hore and Hare the Case was One was bound to make his appearance at such a day and in the mean time thrice every Month to repair unto such a Preacher to be better informed in Religion although the Non appearance was pardoned yet the other point i. the resorting to the Preacher is to be answered Atkinson There the resorting to the Preacher is collateral and a several point from the appearance But in the Case at Bar the not departure is pursuant to the appearance And the opinion of all the Barons was That the pardon did not extend to the same CCXXI Trin. 31 Eliz. In the Common-Pleas 1 Len. 205. AN Action was brought against an Executor who pleaded That he refused the Executorship upon which the parties were at issue The Bishop certified Quod non recusavit whereas in truth he had refused before the Commissary of the Bishop Fenner Serjeant moved to have the advice of the Court upon this matter and argued That the Court ought to write to the Commissary which was denied by the Court for he is not the Officer to this Court as to that purpose but the Bishop himself is our Officer and the party cannot have an Averment against the Certificate of the Bishop no more than against the Retorn of the Sheriff And the Court also held That the onely remedy for the Defendant was by an Action upon the Case against the Bishop for his false Certificate But it was moved That the issue joined upon the refusal ought to be tried by the Countrey and not by the Certificate of the Bishop and such was the opinion of Windham and Walmsley Periam Where the issue is that the Executor refused before such a day or after there the issue shall be tried by the Countrey contrary Where the issue is upon the refusal generally for the refusal is before him as Iudge as also resignation is CCXXII Giles 's Case Mich. 28 and 29 Eliz. In the King's-Bench A Writ of Error was brought in the King's-Bench to reverse a Iudgment given in an Action upon the Case in the Court of Common-Pleas where the Writ brought against the Defendant there in that Case was Quare exaltavit stagnum per quod pratum of the Plaintiff was inundatum The Defendant in the Action there pleaded Not guilty and the Iury found That the Defendant Erexit stagnum and they said That if the Court shall judge That Erectio and Exaltatio be all one then they find that the Defendant is guilty and afterwards Iudgment was given in the said Court of Common-Pleas for the Plaintiff Whereupon this Writ of Error is brought And Glanvile Serjeant who

Statute is recited which needs not and therefore being misrecited made the Indictment insufficient but here the Statute is well recited and therefore as unto that matter the Indictment is sufficient As to the second exception the Iustices were of opinion That the Indictment in that respect Antea 184. was too general and incertain The third exception was not allowed for the latter words i. e. in Putney do refer to the whole and extend as well unto the house as unto the lands But as to these words Lands to the said house belonging See the Case between Partridge and Croker 7 E. 6. 85. where it is good enough because that the number of the acres is set incertain And it was holden by the Court That a Schoolmaster is a good addition for it is a mystery as a Scrivener and afterward the Indictment for the house onely was holden good CCXXXIII Gray a Bencher of the Temple 's Case Mich. 32 Eliz. In the Chancery GRay a Bencher of the Temple's Case was this It was found by Office That one H. was seised in Fee of certain lands called Drayners and Codred alias Codreth in the County of Hertford in his Demesne as of Fee and thereof enfeoffed certain persons unto the use of himself and Anne Capel with whom he afterwards intermarried and of the heirs of their two bodies begotten and of such Estate died seised and farther it was found that the said H. was also seised of other Lands in Barmesden in his Demesne as of Fee and therefore died seised and now came Gray into the Chancery and shewed that the said H. was seised of the said Land called Drayners in his Demesne as of Fee and thereof enfeoffed certain persons unto the use of himself and the said Anne Capel for the term of their lives and afterwards by his Indenture dated the 23. of Decemb. and enrolled bargained and sold the Reversion thereof to the said Gray c. by force whereof c. Absque hoc that he was seised in tail and absque hoc that he thereof died seised in his Demesne as of Fee-tail as it is found by the said Office and for the Land in Barmesden he said that the Lady Judde was seised thereof for the term of her life the Reversion to the said H. in Fee who granted to him the said Reversion in Fee c. absque hoc that he died seised in his Demesne as of Fee c. And upon that the Queen's Attorney joined issue and the Venire facias issued De Cottred Barmesden and the Iury found That H. did not make the Feoffment to the use of himself and Anne his Wife in tail and farther found for Gray in all c. And it was objected here That the same is not a good and lawfull trial For the Land is alledged to be in Codrett and the Venire facias is of Codred c. And although the Venire facias be well awarded as unto Barmesden yet being naught in part it is naught in all which was granted by the whole Court And then a new Venire facias shall issue forth for the whole Another Objection was because he pleads that the Lady Judde was seised of that Land for the term of her life in which Case Gray who is in Reversion ought not to be admitted to this Traverse because that Tenant for life for any thing that is pleaded to the contrary is yet alive and it is clear that none shall be put to his Traverse but the party grieved and here he in the Reversion upon an Estate for life cannot be restored to the possession and by consequence shall not have Traverse See for that 6 H. 7. 15. and 37. Ass 11. c. 2. The seisin in tail ought to be traversed and not the descent or dying seised for if they were seised and disseised and so died the Queen shall have the Ward Coke contrary For Codred and Cottered idem sonant c. And although that it be found by Office that H. was seised of Lands in Codred alias Codreth yet the Defendant supplies the said matter for he saith thus as unto the Land in Codred praedicta which words import that the said Land was known by the one name or the other for this word praedicta is as an Averment which see 33 H. 8. Br. Averm 42. And so here this word praedicta is an Averment that Cottered and Codred are one And if so then the Venire facias is well awarded The Statute of 18 H. 6. gives Traverse to those who find themselves grieved by such Offices or which are put out of their Lands or Tenements and we are within the words of it for upon the whole matter we are out of possession as it was ruled in the Case of one Stukely in the Court of Wards the last Term. If it be found by Office That A. died seised of my Manor and that he held the said Manor of the Queen Now I am out of possession and for that cause the bargain and sale of Dorrel to Sir Francis Walsingham was holden void by the whole Court And 4 H. 6. 12. Traverse is given in lieu of Petition but he in the reversion may have Petition therefore he shall be also admitted to Traverse and this Case may be resembled to the Case of 2 E. 3. 23. where a Praecipe was brought against Tenant for life and he in the Reversion for life prayed to be received It was said by Thorp That is not within the Case of the Statute for he is Tenant onely in the Remainder and it is possible that neither shall have any thing and the Statute speaks onely of Reversion and yet it was awarded That he should be received otherwise great prejudice would follow And here we are at prejudice for now by reason of this Office we cannot have our Action of Waste Also here we need not to Traverse the dying seised in tail but it is sufficient to Traverse the gift in tail for if there be not a gift in tail it is not possible that he should die seised in tail which see 2 E. 4. 15. by Laicon Gawdy Iustice conceived that the trial is not good for the Venire facias is not from the place where the Land is and this word praedicta doth not amount to an Averment and the Case cited before is but the opinion of Brook. Wray said That as to the first exception that it was good enough for both the names idem sonant and as to the Office by that the Queen hath gained possession so as he who traverseth cannot have an Action of Waste and so he is prejudiced by the Office c. CCXXXIV Perchall 's Case Mich. 32 Eliz. In the King's-Bench PErchall was Indicted upon the Statute of 5 E. 6. cap. 4. for drawing of his Dagger in the Church against J. S. without saying That he drawed it to the intent to stick the Plaintiff and therefore the Indictment was holden void as to the

That William Heydon was seised of the lands and enfeoffed him And upon Ne enfeoffa pas the parties were at issue and it was found by special Verdict That the said William Heydon was seised and leased the Lands to the Defendant for years and afterwards he made a Deed of Feoffment to the same Lessee of the same Lands in Fee by the words of Dedi concessi with a Letter of Attorney within the said Deed to make Livery to the Lessee and the Deed of Feoffment was delivered to J. to deliver the same to the said Lessee who delivered the same accordingly The Lessee delivered the same to the Attorney named in the Deed who made Livery accordingly And it was moved by the Council of the Plaintiff That upon all this matter here is not any Feoffment And by Walmesly Serjeant This Deed so delivered took its effect presently as a confirmation and then the Livery and Seisin comes too late for as soon as the said Deed was delivered to the Lessee for years the Law gave to it its operation to this effect To vest the Fee and the Freehold in the Lessee by way of confirmation See for that Littl. 532 533. But the whole Court was of a contrary opinion for it is in the election of the Lessee to take the Conveyance as a Feoffment or as a confirmation And here it appeareth upon the Deed that the intent of both parties was That the Lessee should take by way of Feoffment and not of confirmation for otherwise to what use should be a Letter of Attorney inserted in the Deed And here the Lessee hath liberty to make his election how he will take either by Feoffment or by confirmation which election he hath determined by the acceptance of the Livery And by Anderson If tenant in tail be disseised and makes a Charter of Feoffment and delivers the same to the Disseisor who delivers the same to the Attorney named in the Charter who makes Livery accordingly here is a good Feoffment and a discontinuance and afterwards after many motions made and day given to shew cause Iudgment was given that the Plaintiff should be barred CCXLII. Rooke and Denny 's Case Trin. 28 Eliz. In the Common-Pleas IN an Action upon the Case by Rooke against Dennis for misusing of the Plaintiff's Horse by occasion of which misuse the said Horse became blind of one eye and gall-back'd The Plaintiff counted That the said Horse was stolen by three Felons after whom the Plaintiff made fresh suit and that the Felons were apprehended and attainted at his suit because Iustice Windham Hetley's Rep. 64. Rolls 809. More 572. Hetley's Rep. 64. and that the said Horse came unto the hands of the Defendant who misused it Ut supra The Defendant said that before that and the said Attainder of the said Felons the said Felons had waived the said Horse within his Manor in which Manor he had waife and estray c. And it was holden by the Court that the same was no Plea without traversing the fresh suit whereof the Plaintiff hath declared for by the fresh suit the property of the Plaintiff in the said Horse was preserved and so upon that misuser of the Horse by the Defendant an Action well lyeth and Iudgment was given for the Plaintiff accordingly CCXLIII Pretiman and Cooke 's Case Hill. 29 Eliz. In the King 's Bench. IN Ejectione firmae The Case was Ante 129. 1 Cro. 52. 3 Len. 180. That one Hawkins was seised of three Messuages in Bury and had issue Robert a son and Christian and Joan daughters and by his Will devised his three Messuages to his wife for life the remainder of one of them to Robert his son and his heirs and the remainder of another of them to Christian his daughter and her heirs and the remainder of the third Messuage to Joan his daughter and her heirs And farther willeth That if any of his said three issues should die without issue of his or her body that then the other surviving shall have Totam illam partem betwixt them equally to be divided The Devisor died the wife died one of the daughters died having issue the son died without issue the sister surviving entred into the whole part of Robert the son and died her husband held in the land as tenant by the Curtesie and the question was If the surviving daughter should have all the part of him that died without issue or she and the issue of the other daughter Coke The survivor shall have the whole And he said that the Devisees have an Estate in tail for the Fee doth not vest in them for it is incertain which of them shall survive but when one surviveth then he shall not have for life but in Fee for the words Totam illam partem goe as well to all the Estate as to all the things A. tenant for life the remainder to B. in tail the remainder to the right heirs of A. A. grants Totum statum suum both the Estates pass and the Grant includes the whole See 41 E. 3. Fitz. Br. 541. In Ravishment of Ward supposing the ravishment of two daughters Quarum maritagium ad ipsum pertinet and it was challenged because he doth not say Maritagia but the challenge was not allowed and he said That if a man deviseth his land wholly to A. that he hath a Fee-simple See the Case H. 28 Eliz. the Case between Higham and Harwood And Coke said That they had by this Devise a fee-Fee-tail with a Fee-simple Expectant each of them severally in the Messuage to them limited Golding Each of the Devisees hath an Estate-tail in the Messuage to them devised and but an Estate for life in the Messuage which is to accrue upon the death without issue c. For no Estate is limited expresly nor what Estate the survivor shall have for here are not any words which do import a Fee-simple as according to Littleton imperpetuum or to do what he will with c. See for that 22 E. 3. ad Terminum qui praeteriit but here are onely bare words of which no farther construction can be made but for life And as to the words Totam illam partem the same doth not extend farther than if he said Partem suam And he said that nothing vests in him who survives for there ought to be two to take by the survivor or otherwise nothing shall accrue to the survivor for the words of the Devise are aequaliter inter eos dividend and that which accrues by survivor shall be divided betwixt two otherwise nothing shall accrue And if it cannot survive to two then it shall descend to the issue of the sister who is dead and to the surviving daughter and they shall be tenants in common and not joint-tenants Clench These words Totam illam partem go onely to the house and not to the Estate in it which Shute granted If both the daughters had survived Robert they should have Fee

good answer for they are Pleas onely before the Auditors and not in an Action upon Accompt and farther he said That although the Verdict be found but for part yet it is good for no damages are to be recovered in an Accompt In trespass it is true if one issue be found and not the other and joint-damages be given the Verdict is not good for any part but if several damages be given then it is good as it is ruled in 21 H. 6. Coke 26 H. 8. is That the Plaintiff cannot declare generally of an house Curam habens administrationem bonorum but he must farther say Twenty quarters of Corn or the like c. In the principal Case it is a joint-charge and but one for the shop and goods and he answers unto one onely but he ought to answer to all or else it is no answer at all But Coke found out another thing viz. That there is a thing put in issue which is not in the Verdict nor found nor touched in the Verdict and that was the Verdict of all which is found not to be good and it is not helped by the Statute of 32 H. 8. of Jeofailes I grant that discontinuances are helped by the Statute of 32 H. 8. but imperfect Verdicts are not helped thereby Vid. 205. It was a great Case argued in the Exchequer Chamber and it was Brache's Case An information was against Brache for entring into a house and an hundred Acres of Lands in Stepney He pleaded not guilty The Iury found him guilty for the hundred acres but said nothing as to the house upon which a Writ of Error was brought and Iudgment was reversed and he said it was not a discontinuance but no verdict for part Daniel That was the default of the Clerks who did not enter it and it hath been the usage to amend the defaults done by the Clerks in another Term All the Iustices said That is true if the Postea be brought in and not entred but here it is entred in the Roll in this form Daniel Where I charge one in Accompt with so much by the hands of such a one and so much by the hands of such a one although there be but one Absque hoc to them all yet they are as several issues The Court answered Not so unless there be several issues joined to every one of them But by Gawdy Iustice If there be several issues and the one be found and the other not no Iudgment shall be given Clench Iustice In the principal Case It is not a charge of the goods but in respect of the shop therefore that ought to be traversed Shute Iustice The Traverse of the shop alone is not good Egerton the Queen's Solicitor said That the Books might be reconciled and that there needed not a Traverse to the goods for the Traverse of the shop Prout is an answer to all But now he takes issue upon the goods onely which issue is not warranted by the Declaration and he said That if one charge me as Bailiff of his goods ad Merchandizandum I shall answer for the increase and shall be punished for my negligence But if he charge me as his Receiver ad computandum I shall not be answerable but for the bare money or thing which was delivered CCXLVI Mich. 29 Eliz. In the Common-Pleas Postea 215. IN Trespass for taking of goods the Defendant justified as Bailiff to J. S. The Plaintiff by Replication saith That the Defendant prest his Cattel of his own wrong Absque hoc that he is Bailiff to J. S. And by Anderson 1 Leon. 50. If one hath good cause to distrain my Cattel and a stranger of his own head without any warrant or authority takes my goods not as servant or Bailiff to another and I bring Trespass against him he cannot excuse himself by saying that he did it as Bailiff c. for once he was a Trespassor but if one do distrain as Bailiff although that in truth he be not Bailiff if afterwards he in whose right he justifies assents to it he shall not be punished as a Trespassor for this assent shall have relation unto the time of the distress taken which Periam concessit and also Rhodes A. distrains and being asked for what cause he distrains and he assigns a cause which is not sufficient and afterwards an Action is brought against him 3 Co. 26. he may avow the distress for another cause CCXLVII. Mich. 29 Eliz. In the Common-Pleas THE Case was That the Queen gave Lands in tail to hold in Capite and afterwards granted the Reversion Windham In this Case the Tenure is not incident to the Reversion but is in respect of the person and therefore the Tenure in Capite doth remain and the Donee shall hold of the Queen as in gross And also the Grantee of the Reversion shall hold of the Queen in Capite and so two Tenures in Capite for the same Lands See 30 H. 8. Dyer 45. If the Queen in this cause had reserved a Rent upon the Gift in tail the same should go with the Reversion CCXLVIII Dighton and Clark 's Case Mich. 29 Eliz. In the King's-Bench DIghton brought Debt upon a Bond the Condition of which was That whereas the Plaintiff was in quiet possession of such lands If now neither J. S. nor J. B. nor J. G. did not disturb the Plaintiff in his possession of the said lands by any indirect means but by due course of Law That then c. that Defendant pleaded That neither J. S. nor J. D. or J. G. did disturb the Plaintiff by any indirect means but by due course of Law upon which there was a demurrer Godfrey The Plea in Bar is not good for there is a Negativa pregnans scil a Negative which implies an Affirmative See 21 H. 6.9 In a Writ of Entry Sur Disseisin the Defendant saith That the Demandant by his Deed after the Darrein continuance did confirm and ratifie the possession of the Tenant c. The Demandant said Not his Deed after the Darrein continuance and the same was holden to be Negativa pregnans See more there and see also 5 H. 7. 7. And see farther 39 H. 6. 8 9. Another Exception was taken to the Plea in Bar because he hath pleaded That neque J. S. neque J. D. neque J. G. had disturbed the Demandant by any indirect means but onely by due course of Law and that issue cannot be tried not by the Countrey for they cannot know what is a due course of Law and by the Court it cannot be tried for the Defendant hath not certainly shewed by what due course of Law the Demandant hath been disturbed which see 22 E. 4. 40 41 c. The Lord Lisle's Case In Debt upon a Bond the Condition was That if the Defendant before such a day or any other for him and in his name come to B. and there shew unto the Plaintiff or one of his

to the eldest child then the said eldest child shall have it de novo by the later conveyance And as to the Warranty of the Fine because the possession of the Conusees is removed by the Statute of 27 H. 8. to the daughter she shall not have the benefit of the Warranty as to vouch but she shall Rebutt as 22 Ass 37. 69. Where a Feoffment in Fee is made to my Villein with Warranty and before that the Feoffor dieth I enter upon my Villein so as the Warranty upon the death of the Warrantor is not attached upon the possession of my Villein I shall not have advantage of that Warranty A Disseisor makes a Feoffment in Fee upon Condition the Disseisee re-leaseth the Feoffee with Warranty the Disseisor entreth for the condition broken now the Disseisor shall Rebutt by that Warranty but not vouch And here in our Case the Fine is a discontinuance so as the son is put to his Action if he had right and then the Warranty shall bind him but contrary if his entry be lawfull And as to the Lease made by the Infant he conceived that it being made without Rent it was meerly void for it was without consideration Wray chief Iustice As to the first point he was of opinion That the Recoverers shall be seised to their own use untill they make the Estate for that was the use implied for all uses are directed and ruled by the intent implied or expressed of him to whom the land is and his intent was that such Estates should be made and to such purpose the Recovery was suffered As if I enfeoff A. unto the use of B. for his life there it is implied That B. shall be seised of the Fee to my use I covenant That J. S. shall take the profits of my lands for his life this is a good use of the lands for his life and he held that the Recoverors should be seised to their own use untill c. And the Recoverers ought to make the Estates within convenient time or otherwise the use should be revested again in him who suffered the Recovery and here the Estate was made within convenient time And he said That in every Case where a remainder is limited in abeyance to one by a proper name the same is not good but by a general name it is good enough if the party be in esse when the remainder falls as a remainder limited upon an Estate for life unto the first son or daughter of J. S. where J. S. at the time hath not any son or daughter the same is good if such person shall be in esse at the time of the death of the Tenant for life 17 E. 3. A remainder limited Filio primo genito c. and 3 E. 3. Fitz. Tail. 8. Land given to J. S. Et uxori quam primo matrimonio duxerit in uxorem and afterwards he taketh a wife she shall take by the same Conveyance And as to the Warranty This Fine with Warranty was levyed to C. and B. unto the use of himself for life the remainder to the use of the eldest child c. and he intended That the daughter should not have the benefit of this Warranty for by the Statute the possession is removed and transferred in the Post before the Warranty could attach and therefore the same shall not bind the son neither by Voucher nor by Rebutter But Tenant by the Curtesie shall have benefit of the Warranty for although he be in the Post yet he continueth the Estate which was made to the wife And as to the point in question we ought to consider that the Statute of 27 H. 8. of Vses is That Cestuy que use shall have the lands in such plight as he had the use which was without Warranty and therefore it shall be transferred into possession without Warranty As to the Lease made by the Infant without rent profit or other recompence he conceived the same to be utterly void as if he grant a Rent or an Advowson he may say that he did not grant c. for the thing included in the Deed doth not pass although he delivereth the Deed of Grant with his own hand Two ioynt-tenants within age one makes a Lease of years and dieth the other shall avoid it for the Lease is utterly void of which every stranger may take advantage but of acts voidable it is otherwise As two Infants joynt-tenants the one Leaseth for life and makes Livery in person and dieth the other shall not avoid it Two joynt-tenants the one maketh a Feoffment upon condition and dieth the other shall not take benefit of the condition But here the Lease is meerly void of which every stranger shall take advantage and therefore upon this point the Plaintiff shall be barred And also he was of opinion That this remainder in abeyance limited Seniori puero was not destroyed by the Fine for it is in the consideration of the Law and so preserved by the Law and therefore a descent in the time of vacation of an Abbat shall not bind the successor and so where the party is beyond the seas for such persons and their estates the Law privilegeth and preserveth So a remainder limited to the right heirs of J. S. And where the King seiseth by reason of a Ward and during such seisin of the King a descent is cast the same shall not bind him who hath right for he could not enter upon the possession of the King and by the Statute of 32 H. 8. A Recovery had against Tenant for life the remainder unto the right heirs of J. S. who is alive at the time of the Recovery is not helped by the Statute of 32 H. 8. For the words of the Statute are To whom the reversion or remainder shall then appertain See 11 R. 2. Fitz. Detin 46. and so he concluded because that this remainder is in the custody of the Law and not in esse it is privileged and preserved and not destroyed by the Fine and upon issue had the remainder shall be executed notwithstanding the said act done by the father and without any entry to be made by the Conusees to raise the use for the remainder limited Seniori puero neither was nor could be discontinued As to the principal point of the Case viz. How these words Seniori puero shall be expounded although divers authorities have been cited out of Latine Authours That this word puer shall be taken for the Male or Female yet I conceive That more commonly it shall be taken for the Male than for the Female and we ought to judge according to the intent of the parties and not according to the strict signification of the word in Latine especially where it is doubtfull how it shall be expounded 9 H. 7. 16. A. was bound in a Bond upon condition to pay decem libras auri puri although there be not any such phrase in Latine yet because it appeareth so to be the

Legacies c. did promise to pay to the Plaintiff 400 l. at four several days The first day of payment incurred and no money was paid whereupon the Plaintiff brought the Action the Defendant pleaded That he made no such promise and it was found for the Plaintiff and damages were assessed for the default of payment at the first day and that was moved in arrest of Iudgment because the Assumpsit was intire and the Plaintiff ought to have forborn his suit until all the days of payment were past and then to have one entire Action for the whole but the opinion of the whole Court was against that for they said It is not like unto a Debt upon a Contract or a Bill where the debt is to be paid at several days for here no debt is to be recovered but onely damages for the debt and this default of payment is a wrong and therefore the Action will well lie and so it was adjudged CCLXXX Pasch 16 Eliz. In the King's-Bench A. Devised that his lands should descend to his son but he willed 1 Cro. 252. Hob. 285. Dyer 251. a. Dy. 210. a. 3 Len. 9. 79. Yel en Ayleff Choppins Case Vaugh. 184. That his wife should take the profits thereof until the full age of his son for his education and bringing up and died the wife married another husband and died before the full age of the son and it was the opinion of Wray and Southcote Iustices That the second husband should not have the profits of the lands until the full age of the son for nothing is devised to the wife but a confidence and she is as Guardian or Bailiff for to help the Infant which by her death is determined and the same confidence cannot be transferred to the husband but contrary if he had devised the profits of the land unto his wife until the age of the Infant to bring him up and educate him for that is a Devise of the land it self CCLXXXI Bawell and Lucas 's Case Pasch 16 Eliz. In the Common-Pleas IN a Replevin by Bawell against Lucas It was agreed by all the Iustices viz. Mounson Manwood Harper and Dyer That if a man seised of a Manor leased part of the Demeans for years or for life That the reversion doth remain parcel of the Manor but such a Reversion by the Grant of the Manor doth not pass without Attornment of the Lessee And where a Manor is granted by Feoffment unto another and afterwards the Tenants attorn the services pass by the Livery and not by any Grant and although in the first Grant the Lessee doth not attorn but a long time after yet the Reversion is not severed from the Manor for the Attornment as to that intent shall have relation to the Livery to make the Reversion to pass from the time of the Grant but not to charge the Lessee with Waste and Dyer said That if a Feoffment in Fee be made of a Manor with an Advowson appendant and the Tenants do not attorn yet the Feoffee shall have the Advowson for the Advowson is appendant to the principal part of the Manor scil the Demeans and cannot be appendant to the services and Dyer said That if A. maketh a Feoffment in Fee of a Manor part of which is in Lease for years Habendum to the Feoffee and his heirs to the use of the Feoffee and his heirs upon condition that the Feoffee shall pay to the Feoffor within ten days 1000 l. and if he fail then to the use of the Feoffor for life the remainder to the use of his son in tail and the money is not paid the Lessee attorns after the ten days to the Feoffee 2 Leon. 265 266. the same is a good Attornment to raise secondary uses although that the first uses did not take effect for the condition is not annexed to the Estate of the Land but unto the use onely and the meaning was that the Feoffor should never have again the Inheritance A Feoffment is upon condition that the Feoffee shall give the Land in tail to a stranger who refuseth the gift there the Feoffor may re-enter but a Feoffment upon condition to enfeoff a stranger or to grant a Rent-charge if the stranger refuseth there the Feoffor shall not re-enter for his intent was not that the Land should revert c. CCLXXXII Vavasor 's Case Hill. 16 Eliz. In the Common-Pleas THE Case was That Nicholas Ellis seised of the Manor of Woodhall leased the same to William Vavasor and 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 in and committed waste in a Park parcel of the Manor It was moved If the Writ of Waste shall suppose that the wife holdeth in Ex dimissione Nichol. Ellis or Ex dimissione viri and the opinion of all the Iustices was That the Writ upon this matter ought to be general viz. That she holds in de haereditate J. S. haeredis c. without saying ex dimissione hujus vel illius for she is not in by the Lessor nor by the Feoffees but by the Statute of Uses and therefore the Writ shall be Ex haereditate c. And also the opinion of the Iustices was That the wife in this case is not remitted but that she is in according to the form of the Feoffment Dyer The Formedon brought against Manures rehearsed in the Writ a Will and divers Conveyances by reason of which the Writ was of exceeding length and in such cases the Writ is good yet if the Writ be general it is sufficient Note in this Case That the Plaintiff assigned the waste in destroying of Deer in the Park And Mead Serjeant said That waste cannot be assigned in the Deer unless the Defendant hath destroyed all the Deer and of that opinion was Dyer Manwood If the Lessee of a Pigeon-house destroy all the old Pigeons but one or two couple the same is waste and if the Keeper doth destroy all the Deer so as the ground is become not Parkable the same is waste although he hath not destroyed the whole See 8 R. 2. Fitz. Wast 97. If there be a sufficient store left in a Park Pond c. it is well enough c. CCLXXXIII Mutton 's Case Hill. 16 Eliz. In the Common Pleas. JAne Mutton brought a Writ of Entry Sur disseisin 1 Anders 42. More 96. against Anne Mutton who pleaded That one John Mutton was seised and levyed a Fine to the use of himself and such wife and wives as the said John should after marry by what name or names they should be called for term of their lives and afterwards to the use of the same Jane now Demandant in tail the remainder over to the right heirs of the said John Mutton and afterwards the said

did well lie and he said That this Case is not like unto the Cases which have been put of the other side For there is a great difference betwixt Contracts and this Case for in Contracts upon sale the consideration and the promise and the sale ought to meet together for a Contract is derived from con and trahere which is a drawing together so as in Contracts every thing which is requisite ought to concur and meet together viz. the consideration of the one side and the sale or the promise on the other side But to maintain an Action upon an Assumpsit the same is not requisit for it is sufficient if there be a moving cause or consideration precedent for which cause or consideration the promise was made and such is the common practice at this day For in an Action upon the Case upon a promise The Declaration is laid That the Defendant for and in consider action of 20 l. to him paid posted scil that is to say at a day after super se assumpsit and that is good and yet there the consideration is said to be Executed And he said that the Case in Dyer 10 Eliz. ●72 would prove the Case For there the Case was That the Apprentize of one Hunt was arrested when his Master Hunt was in the Country and one Baker one of the neighbours of Hunt to keep the said Apprentize out of prison became his ball and paid the Debt afterwards Hunt the Master returning out of the Country thanked Baker for his neighbourly kindness to his Apprentize and promised him that he would repay him the sum which he had paid for his servant and Apprentize And afterwards upon that promise Baker brought an Action upon the Case against Hunt and it was adjudged in that Case that the Action would not lie because the consideration was precedent to the promise because it was executed and determined long before But in that Case it was holden by all the Iustices That if Hunt had requested Baker to have been surety or bail and afterwards Hunt had made the promise for the same consideration the same had been good for that the consideration did precede and was at the instance and request of the Defendant Rhodes Iustice agreed with Periam and he said That if one serve me for a year and hath nothing for his service and afterwards at the end of the year I promise him 20 l. for his good and faith full service ended he may have and maintain an Action upon the Case upon the same promise for it is made upon a good consideration but if a servant hath wages given him and his Master ex abundanti doth promise him 10 l. more after his service ended he shall not maintain an Action for that 10 l. upon the said promise for there is not any new cause or consideration preceding the promise which difference was agreed by all the Iustices and afterwards upon good and long advice and consideration had of the principal Case Iudgment was given for the Plaintiff and they much relied upon the Case of Hunt and Baker 10 Eliz. Dyer 272. See the Case there CCLXXXVII Higham 's Case Trin. 25 Eliz. In the Common-Pleas 1 Cro. 15. More 221. 3 Len. 130. 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 let the said House and 40 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 the said J. S. unto his Wife for life and that after the decease of his Wife the remainder thereof and of all his other Lands belonging to Jacks should be to R. his second son c. And by Mead The Wife shall not have by implication the residue of Jacks for she had an express Estate in the House and 40 Acres of Lands and having expressed his Will concerning the same it shall not be extended by implication and he said It had been adjudged between Glover and Tracy That if Lands be devised to one and the heirs Males of his body and if he die without heirs of his body that then the Land shall remain over that the Donee hath but an Estate in tail to the heirs Males of his body Anderson 1 Roll. 839. in the time of Sir Anthony Brown it was holden that if a man seised of two Acres of Lands deviseth 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 hath not any Estate in the latter Acre It was also moved What thing shall pass to his second son by this Devise and by the Lord Anderson The words usually occupied with it amount to the words the Lands let with it but these 60 Acres are not let with it therefore they shall not pass Windham contrary Although they do not pass by the words occupied with it yet they shall pass by the name of Jacks or belonging to Jacks and afterwards Anderson mutata opinine agred with him A TABLE OF THE Matters in this Book A ASsise 11 55 94 Action upon the Statute of 5 Eliz. for Perjury 18 Abatement of Writs 18 64 Action upon the Statute of 13 E. 1. of Winchester 19 109 212 Actions of Slander 34 74 120 127 146 Assignment of a duty to the Queen for a Debt if good 79 Accompt 91 245 Appeal of Burglary 111 Award where good and where not 130 145 Action not good upon a Lease untill the whole term be expired 137 In Appeal of Robbery one shall not have restitution without fresh suit 183 Attaint of Felony 169 Appeal of Murther 195 Action against an Executor who refused the Executorship 221 Assumpsit upon an agreement to become bound in a Bond for the sum promised 223 Action upon the Statute of 5 Eliz. concerning Perjury 249 C COvenant 5 17 60 153 155 164 237 268 Covenant to levy a Fine 114 Custome 10 140 Costs none upon Non-suit in an Action upon an escape 12 Conversion by the Executors of the goods of the Testator 42 Challenge of Jurors 53 141 Common Recovery 61 89 169 170 275 Costs upon the Statute of 28 H. 8. not allowed 71 Copiholds and Copiholders 97 142 264 Capias ad satisfaciendum sued out and not prosecuted within a year and a day if Scire facias must be sued out 101 Condition in a Lease void if repugnant to the Demise 176 Conveyance of Lands to Feoffees with condition c. 175 Capias ad satisfaciendum sued out after a Release an Audita quaerela lies 215 Case for disturbing him of his Common 229 Case for Toll 240 Case for misusing of the Plaintiff's Horse to which the Defendant pleaded that the Horse was waved within his Manor c. 242 Case upon a promise whereas one became surety and bail to J. S. and afterwards for default of

J. S. he was constrained to pay the money J. S. promised for the same consideration to repay the money 286 D DIminution 3 Distress for Rent 8 Debt 10 26 33 49 88 90 122 126 136 150 153 162 163 172 181 189 200 208 248 Debt for Rent 14 28 67 121 Dower 15 85 174 238 Devise 16 92 123 165 171 198 239 243 276 279 280 287 Debt upon Recognizance 24 Descent no plea nor any title against the Queen 37 Debts of the King by the Statute of 33 H. 8. 39 Disseisin 80 Distress 179 Detinue 201 Discharge of a promise a good plea upon an Assumpsit 270 E ERror 2 3 4 77 86 100 115 132 135 160 161 222 231 244 251 255 256 263 Entry of Records 3 Estopell 3 17 Extent 20 75 167 Exceptions to a Writ 47 Extendi facias sued out and the Liberate not returned if good 65 Escape an Action of Debt brought upon it 112 Execution upon a Statute and the Sheriff voluntarily sets him at large 117 Execution 202 Enquest taken at the instance of the Plaintiff 203 Ejectione firme 250 Exposition of Statutes do belong unto the Queen 's temporal Courts 267 F FEoffments to Uses 7 25 118 183 194 218 233 257 282 285 False imprisonment 43 Fine 38 73 139 169 191 206 263 Formedon 84 196 Feoffment in Fee of Lands parcell of the Dutchy of Lancaster how and of whom the Tenure shall be 184 Fines in Courts 219 G GRant de Advocatione Ecclesiae what passeth 106 Grant of Lands of the Dutchy of Lancaster by the King unto another Tenend in Fee-farm if this Land shall be holden of the King in Capite or holden of the Dutchy 197 Gift where void both by Common-Law and the Statute of 13 Eliz. 284 H HEriot 10 Habeas Corpus not well returned day given to amend it 213 I JUdgment against Bail 2 Indictment upon the Statute of 23 Eliz. of Recusancy 6 Justicies no Original but a Commission to the Sheriff 41 260 Information upon the Statute of 18 H. 6. cap. 17. concerning the gaging of vessels of wine 52 In consideration that the Plaintiff would stay an intended suit in Chancery promised that if the Plaintiff can prove that the father of the Defendant took the profits of the Lands in question that he would pay to him for all the said profits 133 Information upon the Statute of Usury 144 In consideration of marriage the Defendant promised to pay to the Plaintiff 100 l. 146 Joint-tenants in Fee grant a Lease for years rendring Rent and one dies how the Rent shall be divided 148 In consideration that the Testator would forbear the payment of a sum of money for a week he promised to pay him within a week if the Action will lie for the Executors 149 Judgment not to be reversed but by Error or Attaint 154 Information upon the Statute of 27 Eliz. cap. 4. by the party grieved The Plaintiff was non-suit yet shall not pay costs and damages 156 Indenture delivered at another day and not the day of the date 157 Indictment for inclosing of Common vi armis c. not good 159 Intruder dying in possession the same descent taketh not away an Entry 182 Indictment upon the Statute of 23 Eliz. of Recusants 204 Indictment upon the Statute of Praemunire of 13 15 R. 2. 225 Indictment upon the Statute of 8 H. 6. of forcible entry 226 232 Indictment for not repairing of a Bridge 227 Indictment for an unlawfull assembly and entry 228 Indictment upon the Statute of 5 E. 6. cap. 4. for drawing of his dagger in the Church 234 Indictment upon the Statute of 5 Eliz. of Perjury 262 Judgment joynt against three will not lie against one of them in particular 277 L LEases 1 40 78 96 102 110 116 119 131 134 169 178 192 207 236 252 253 261 Leet how holden 31 98 266 Love is no consideration upon which to ground an Action 35 Letters Patents Bona Catalla felonum c. 81 Letters Patents of Offices not to be repealed after the death of the Grantor 128 Limitation and Condition with their difference 52 M MAintenance in returning a partial Jury 177 N NUsance for stopping a River with earth by which land was drowned 129 222 Nudum pactum quid 187 O OUtlawry 23 166 Obligation for appearance upon a Latitat where void 103 220 Office found 169 Obligation that the Obligor shall not exercise his Trade within a Town nor within a certain precinct of it void and against Law 259 P PArtition 3 Prescription 13 Property 35 113 Partitione facienda 69 Privilege is not for an Atturney against an Attachment by the custome of London 190 Presentments several make the Church litigious 205 Privilege pleaded for a Lord of Parliament 209 Prohibition prayed to the Court of Admiralty 224 Payment no good Plea without alledging it upon Record 269 Proof how to be made 273 Q QVare Impedit ●● 83 Quo Warranto 266 R REceit of the wife 11 Rectory Quid 13 Rent charge 21 185 186 Replevin 29 58 82 87 107 158 168 170 211 274 281 Rents and Services 57 Reparations 72 Replicando of his own wrong how construed 108 Remainder in tail who was attainted of Felony 169 Recognizance of good behaviour 199 Recovery in a Writ of Entry 214 Return of a Devastavit upon a Fieri facias a motion to have an Elegit 235 Replication where good by Executors 265 S SEals 27 Special Plea to an English Bill if it may be relinquished 38 Sheriff must deliver all the prisoners in his custody over to his successor 76 Scire facias against the bail in an action of Debt to which was pleaded the death of the Defendant before Judgment given against him 125 T TEnancy several where no good Plea 9 Trover and conversion 22 50 217 278 Tythes 30 32 93 95 98 105 124 180 216 Tail. 51 54 63 170 247 Trespass against the Warden of the Fleet brought in the King's Bench 56 Tenant per auter vye after the death of Cestuy que use holdeth over if he be a Disseisor 59 Tenant at will if he may grant Copihold Estates to Copiholders 59 Trespass upon the Statute of 8 H. 6. of forcible entry 70 Trespass for an assault and battery 104 Tender of rent if refused where good and where not 173 Trespass by one Administrator against another for taking away the goods of the intestate 188 Trespass Quare clausum fregit and new assignment pleaded 230 Toll no lands to be discharged of it but lands Socage onely 240 Trespass Quare clausum fregit 241 Trespass for taking of goods and the Defendant justifies as Bailiff to J. S. 246 Trespass for breaking of the Plaintiffs close and for killing his Conies 254 Trespass for cutting down of four Oaks and the Defendant pleads that he and all those whose Estate he hath c. Habere consueverunt rationabile estoverium suum for fuel c. 258 W WRit of entry in the Per 9 Will of the Request of Land and the name of the Devisor not in it if good 44 Waste 45 46 62 210 282 Writ of Annuity 68 Wager of Law 143 Writ of Enquirie of damages if too little damages be found no other Writ pro meliore Enquir can be granted 272 Writ of Entry Sur Disseisin 283 FINIS

it there And it was said If the Court there should not allow the Plea that they should incur the offence of contempt of this Court and the other party should have a Prohibition CCXXV. Sir Richard Buckley 's Case Mich. 32 Eliz. In the King's-Bench SIR Richard Buckley was indicted upon the Statute of Praemunire of 13 and 15 R. 2. and the effect was That whereas one Griffeth Matthew had murthered one Robert Footman at Beaumarris and whereas one Owen Wood prosecuted the said Griffeth Matthew for the said murther The said Griffeth Matthew Praemissorum non ignarus sed intendens the said murther a Curia Dominae Reginae ad aliud examen c. pro quodam supposito contemptu Curiae Admiralitatis traxit in placitum the said Owen Wood coram Julio Caesar in the Court of Admiralty holden at Islington supposing the said murther to be done upon the high Sea and thereupon caused him to be arrested and being under arrest to enter Bond unto the Lord Admiral that he should not prosecute the said murther against the said Griffeth Matthew nor examine any witnesses concerning the said murther and that the said Sir Richard Buckley was abettor and procurator of the said Griff. Mathew therein To this Indictment many Exceptions were taken by Coke In placitum pro quodam contemptu and doth not shew the contempt in certain for it is too general and so not good See 18 Ass for the stealing of certain Sheep without shewing what Sheep they were is not a good Indictment And here he doth not say concerning the said murther or concerning the premisses 2 Although that the matter of the Indictment be true yet the Stat. of Praemunire doth not extend to it for the Statute inflicts a punishment as well upon the Iudge scil the Admiral as upon the party See 10 H. 4. 164. If one Libelleth in the Court of Admiralty for a thing done upon the Land and it appeareth upon the Libel that the thing was done upon the Land and they notwithstanding that hold Plea of it A Praemunire lieth upon it But if the same doth not appear within the Libel then it is not within the Statute but a Prohibition shall onely issue So in the case of Tithes If the Parson sueth for Tithes severed from the nine parts and that appeareth in the Libel the same suit is within the Statute of Praemunire and that was Cardinal Woolsey's Case 3 It is alledged That Sir Richard Buckley procured him to do it but it is not shewed any place where the procurement was had And that was resolved in the Case of the Lord Paget 1 Len. 5. and the Bishop of Coventrey and Lichfield where the Bishop was indicted That he commanded J. S. to enter into the Close of the Lord Paget and to do a trespass there and because the place of the commandment was not set forth in the Indictment the Bishop was discharged M. 25 and 26 Eliz. Another matter was objected because that the words are That the said Sir Richard Buckley did abet and procure in hac parte without shewing what thing As to this last Objection The Court was of opinion that the words in hac parte did refer to the whole offence contained in the Indictment Wray It is hard That the matter of the Indictment should be within the Statute of Praemunire for by the suit it is supposed That the offence was done upon the sea and the Admiral hath jurisdiction to punish murthers committed upon the sea so in some degree the Admiral hath Conusance to enquire of Murther but if they hold plea of any thing of which in no degree they have Conusance it is otherwise And as to the place where the commandment was made the Court was clear of opinion that it ought to be shewed CCXXVI Hooper 's Case Mich. 32 Eliz. In the King 's Bench. JOhn Hooper 1 Cro. 198. alias Bartholomew of D. c. was indicted upon the Statute of 8 H. 6. Of forcible Entry and Exception was taken to the Indictment in default of addition of the place c. For the addition is here after the alias dict and so there is no addition and therefore the party was discharged and it was holden in this Case That Uxor is a good addition and where the husband and wife are indicted and the husband be indicted of such a place although the wife hath no addition of place yet the same is good enough but Ive said That in that case there needs not any place CCXXVII Mich. 32 Eliz. In the King 's Bench. A. Was Indicted for not repairing of a Bridge lying in such a high-way which A. is bound to repair by reason of his land adjoyning and the Indictment was That the Bridge was so ruinous Ita quod Ligei Dominae Reginae per eam transire non possunt and concluded ad nocumentum eorund c. and that was challenged because it doth not say Ad nocumentum omnium subditorum for otherwise it may be intended a private way of which a man cannot be indicted but the party grieved shall have his Action upon the Case But the Exception was not allowed but the Indictment is good enough For the words of the Indictment are Sic quod Ligei Dominae Reginae illuc pertransire non possunt i. e. all the Liege people and Subjects of the Queen and then ad nocument eorund amounts to as much as ad commune nocumentum c. and for that cause the Indictment was holden good enough CCXXVIII Ashpernon 's Case Mich. 32 Eliz. In the King 's Bench. ONE Ashpernon was Indicted at the Sessions in the County of Sussex for an unlawfull assembly and entry into the Close of one A. called The Parsonage land before two Iustices of Peace there and exception was taken to it because it is not set down in the Indictment that one of the Iustices was of the Quorum but that the exception was disallowed for the Indictment is sufficient if none of them be of the Quorum for they may enquire but not determine Another exception was because the contents of the Close is not set down in the Indictment scil the number of the acres nor if it be arrable pasture or Meadow but that was disallowed also for this is but an Indictment of trespass contrary it is upon an Indictment upon the Statute of 8 H. 6. Postea 186. for there the party grieved is to have restitution but so he is not here Another exception was taken because that in the Indictment no time is set down when the trespass was done but onely of the assembly but that was disallowed also for both shall be taken to be done together all at one time CCXXIX Leveret and Townsend 's Case Mich. 32 Eliz. In the King 's Bench. 1 Cro. 198. 3 Len. 263. IN an Action upon the Case for disturbing him of his common The Plaintiff declared That he was seised in Fee of a Messuage and certain

land and that he and all those whose Estate c. have common of pasture in 16 acres of land called D. from the time that the corn was reaped untill it be sowed again and also common of pasture in lands 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 and found for the Plaintiff and it was moved in stay of Iudgment That here it appeareth that the Plaintiff was seised in Fee and so he ought to have an Assize and not an action upon the Case but the exception was disallowed per Curiam See 2 H. 4. 11. 8 Eliz. Dyer 250. 11 H. 2. Action upon the Case 36. CCXXX Hore and Wridlesworth 's Case Mich. 32. Eliz. In the King 's Bench. HOre brought an Action of trespass against Wridlesworth Quare clausum domum suam fregit The Defendant pleaded and put the Plaintiff to a new assignment i. a House called a Stable a Barn and another house called a Carthouse and Garnier and that was assigned for Error for that Assignment is not warranted by the Declaration Gawdy The same is good enough for Domus in the Declaration contains all things contained in the new Assignment But if the Declaration had been of a Close and the new Assignment of a Barn it had not been good Wray Domus est nomen collectivum and contains many buildings as Barns Stables c. and so was the opinion of the whole Court. CCXXXI Savacre 's Case Mich. 32 Eliz. In the King 's Bench. A Writ of Error Ante 4. was brought by Savacre and the Bishop of Gloucester M. 31 and 32 Eliz. upon a Iudgment given in a Quare Impedit for the Queen And Error assigned 1. An Attachment was awarded against the Defendant in the Quare Impedit retornable Quind Pasch at which Savacre appeared and cast an Essoin and notwithstanding that a Distringas was awarded against them both retorned Crast Trin. and the awarding the Distringas was erronious for the Essoin was as an appearance for to save c. and therefore against him no Distringas ought to have been awarded And upon alledging of Diminution the Record of the Essoin was certified for the same did not appear upon the Plea Roll. 2 The Record is Ipsi in Misericord and so both of the Defendants are amerced for the default of appearance Quind Pasch whereas Savacre was then Essoined and so no cause of amerciment of him Coke The original Writ was here sued Mic. 26 Eliz. retornable Quind Hillar and then both the Defendants made default for which an Attachment was awarded retornable 15 Pas and then Savacre appeared and Iudgment was given Quod ipsi sint in Misericord in which point the Error is assigned But I conceive that it is not Error for upon the Attachment the parties ought to put in sureties for their appearance and the said sureties took upon them that the Defendants and each of them should appear and if they or one of them maketh default the sureties should be amerced and so here this Iudgment Ideo ipsi in Misericord shall refer to the sureties not to the parties for the Defendants shall not be amerced untill the end of the suit and but once onely in one action which see Book of Entries 464. where there was but one Defendant and therefore If the amerciment shall refer to the Defendant then it should be Ideo ipse not ipsi c. and that is the reason wherefore neither the Queen nor an Infant shall find pledges for no amerciament shall be upon their default therefore in vain for them to find pledges c. And if the pledges be amerced where they ought not to be amerced by the Law yet the Defendant shall not have Error upon it for he is not the party grieved by that amerciament And upon this reason it is That in a Scire facias against the bail if erronious Iudgment be given against him the Defendant in the Action shall not have a Writ of Error The awarding of the Distress upon the Roll against both where the one of them onely makes default is not error especially as this case is for though that one of them was Essoined untill the day aforesaid yet at the said day they make default and so the Distress is well awarded against him and although that the Writ were ill awarded yet when they appear Cr. Trinit at the day of the retorn of the Distress all mean defaults in the Process are saved and so the misawarding of the Distress by appearance afterwards is supplyed As 39 E. 3. 7. The Law requires that in an action grounded upon the Statute of Praemunire 27 E. 3. the Defendant hath warning by two Months yet if the Defendant having not had such warning appeareth the Process is well enough So 9 E. 4. 18. Where upon any Process the Defendant appeareth although the day of appearance be not lawfull yet the parties shall be put to answer and see many cases there to the same purpose and such was the opinion of the Court in the principal Case And as to the second Error that the Iudgment Ideo ipsi in Miseric shall be referred to the sureties onely and not unto the party and that the Defendant shall be but once amerced in one action the same is true that he shall be but once amerced for one default but if many defaults be the Defendant shall be severally amerced for every default And it should be unreasonable that the sureties should be amerced and that the Defendant who is as principal should go free See the Book of Entries 193. Ipsi plegii sui in Misericordia c. CCXXXII Farnam 's Case Mich. 32 Eliz. In the King's-Bench FArnam Schoolmaster and others were Indicted upon the Statute of 8 H. 6. for entring In domum Rectoriae de Putney ac in cert terras eidem domui part jacen in Putney c. Exception was taken to the Indictment because it recited the two parts of the Statute 1 Expulsion and Disseisin with Force 2 Holding out and there is not any offence in it contained as to one of them scil Holding out and although it was not necessary to recite the Statute yet the party meddles with it and doth not apply it to the special matter the same is naught See for that the Case between Strange and Partridge Plow Com. 2 The entry is supposed In domum certas terras eidem domui pertinen jacen in Putney which is incertain as to the lands and it is naught for the house also for it is not shewed in what Town the house is for this clause ac certas-terras eidem domui pertin jacen in Putney is a distinct clause by it self and refers onely to the lands and doth not extend to the house As to the first exception is was disallowed for it is not like unto Partridge's Case for there the