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
been objected That in the Letters Patents there are these words Notwithstanding the not finding of any Office c. truly the same makes the matter more clear for us for by these words it is apparent that the Queen would not have an Office found if so then the Land passeth as in Reversion and the Queen may dispense with a thing concerning her self as of late it was adjudged in the Case of one Michel The Queen makes a Lease for years rendring Rent Si petatur It was holden in such case that the Rent in such case ought to be demanded by the Queen's Officer and in such case the Queen may well enough dispense with her Prerogative and here the Queen conceived that she should not have an Office nor have her Title found by it Manwood chief Baron The Queen leaseth for years upon condition That if the Lessee doth not marry within two years that the Lease shall be void whether here there ought to be an Office or not Atkinson said That here ought to be an Office. At another day It was argued again by Godfrey This Lease is not void Ipso facto for the not payment of the Rent which is but matter in fact and as this Lease hath his beginning by matter of Record so also his end shall be by matter of Record In cases of a common person there ought to be a demand therefore in case of the King an Office Hob. 331. 3 Co. as in the Case of a common person demand ought to be as well where the Condition is by way of re-entry as that the Lease shall be void therefore in both Cases in the Case of the King there shall be an Office and he said That if the Lease and the Condition be in the Case of a common person that the Lease shall be void without any demand of that Rent then there needs no demand for demand is a part of Contract and here before Office found the Lease is not merely void for a Release unto the Lessee before Office is good and the Queen is not entituled to the profits before office found It was argued by Coke to the contrary The Lease is void without any demand without any Office for it is parcel of the Contract to be so void and he said That this Lease before Office is void in interest and property but not in possession Where a common person shall not have the Land without Action the King shall not have it without Office and Scire facias as Cessavit Wast contra formam donationis c. and where a common person shall not have before Entry the King shall not have before Office for Office is in the place of Entry Wardship Mortmain It is clear in the Case of a common person That if the Condition be that the Lease shall be void without any demand that there demand is not requisite therefore nor in the Case of the King See Browning and Beston's Case Plowd Com. 136. That such a Lease with such a Condition after the Rent behind cannot be made good And it is a general rule That where the certainty of the term appears by Record and the King is to have but a Chattel in it there the King upon matter in fait shall have it without Office as the Temporalties of the Bishop upon his death which is matter in fait See F. N. B. 174. The Widow of the King marries her self without licence of the King the King shall seize the Lands and that without Office and there the marriage is matter in fait The King leaseth for years upon condition that if the Lessee marry that then the Lease shall be void If the Lessee marry her self the Lease is void without any Office and if so then every stranger in the world shall have advantage of it as the Case is 11 H. 7. as was the Case of Ralph Thomas Ralph Thomas's Case The Husband seised of Land in the right of his Wife leaseth for years and afterwards he and his Wife levied a Fine to a stranger the Husband dieth the Conusee shall avoid the Lease because it was merely void by the death of the Husband So of a Rent charge granted by the Husband c. But although this Lease be merely void yet a Bill of Intrusion doth not lie against the Lessee before Office for in such case a common person shall not have Trespass before entry but yet if the Lessee dieth after the Rent behind ut supra the Lease shall not be said Assets to the Executors for the not payment of the Rent is a nullity of the Lease by the intent of the original Contract And also the Lessee is not become Tenant at sufferance after the Condition broken for Tenant at sufferance takes the profits to his own use also none can be Tenant at sufferance to the Queen for then he should have the profits of the Lands by Laches which shall never be imputed to the Queen Now it is to see To what purpose this Office is A common person makes a Lease upon condition that if the Lessee alien part and that be found by Verdict that the Lease shall be void the Lessee alieneth part the Lessor grants the reversion over after the alienation is found by Verdict the Grantee shall have advantage of it if the Case had been That if the Rent be behind and Office found of it that the Lease should be void the Rent is arrear and the King grants the reversion and afterwards Office is found now the Lease shall be void against the Grantee Also this Office shall have relation and comes in as good time as if it were found before the Grant Tenant of the King alieneth in Mortmain the King grants over the Seignory Office is found now by this Office the King is entituled not unto the Land but unto the profits before the Office And although the Queen hath granted the reversion over yet she hath not granted inclusive the mean profits A common person hath a Rent which is arrear he grants the Rent the arrearages do not pass As where the King is seised of an Advowson which becomes void and afterwards grants the advowson to another the avoidance shall not pass thereby Giles's Case and that was Giles's Case See 16 H. 7. 7 8. And in our Case This Office doth not entitle the Grantee for how can an Office entitle a common person If the Lease were but voidable perhaps so long as the Lease should continue unavoided the Queen should not be answered the profits contrary where it is void And a common person shall have advantage of it Egerton Solicitor general to the same intent And he said that this Lease is altogether void in privity property right and term In the Case of a common person after the Rent behind in such case the Lessee should be Tenant at sufferance which cannot be in the King's Case and if Tenant at sufferance then no privity for a Release
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-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
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
Son living his Father cannot take as heir i. by limitation as Heir to his Father because that none can be said or held Heir to his Father as long as the Father be alive yet by way of Devise the Law shall favour the intention of the party and the intent of the Devisor shall prevail But all the Court was strongly against it and held that as well in Case of Devise as of Grant all is one Whereupon the Tenant produced Witnesses who affirmed upon their Oaths That the Devisor declared his meaning concerning the said Will That as long as his eldest Son had issue of his body that the Daughters should not have the Land but the Court utterly rejected the matter and Iudgment was given for the Plaintiff XCV the Countess of Linnox Case 29 Eliz. In the Exchequer IN this Case it was said by Manwood chief Baron That whereas the Cistercians c. had a Privilege that they should not pay Tithes for their Lands quas propriis manibus excolant but their Fermors should pay Tithes and now by the Statute of 31 H. 8. they are dissolved That the Queen and her Fermors should be discharged of such Tithes as the spiritual persons were for the Queen cannot excolere ergo her Fermors shall be discharged and so long as the Queen hath the Freehold her Fermors shall have such Privilege although she Leaseth for years or at Will But if the Queen granteth over the Reversion then the Fermors shall pay Tithes More Rep. 915. XCVI Golding 's Case Mich. 29 Eliz. In the King's-Bench IN an Action upon the Case against Gloding the Case was 1 Len. 296. 1 Cro. 50. Noy 18. A Feme sole being Tenant for life by Devise of Lands Leased the same for years to begin after her death and afterwards made another Lease 18 Octob. for twenty one years to the same Lessee to begin at Michaelmas before and the Pleading was Virtute cujus quidem dimissionis and the Lessee entred Crast Sanct. Mich. which was before the making of the Lease And upon the Grant of these two Leases the consideration of Assumpsit was grounded in an Action of the Case thereupon and six hundred pounds damages given And now this was moved in Arrest of Iudgment Coke for the Plaintiff Where two Considerations are laid down in the Declaration although that the one be void yet if the other be sufficient the Action upon the Assumpsit lieth and damages shall be taken accordingly And the Grant upon the Assumpsit was That both the Leases should be assigned to the Defendant and the Plaintiff hath declared accordingly although that one of the Leases be void And the Agreement was That the Plaintiff should assign totum statum titulum interesse suum quae habet in c. It appears here in the Pleading That the Lease was made the eighteenth of October and the Lessee did enter and was thereof possessed Crast Mich. which was before and so the Lessee then entering was a Disseisor But by Coke the same is not a Disseisin although that the Lessee entreth before the Lease made for there was a communication of a Lease although the Lease was not made before the eighteenth of October and peradventure it was by assent of the Lessor in which case it cannot be a Disseisin but be it a Disseisin yet in as much as he hath assigned all his interest quod ipse tunc habuit the Consideration is answered and he hath also delivered both the Indentures of Demise and hath granted all that which he might grant be such Grant void or good it is good Consideration enough as to us Egerton Solicitor contrary In every Action upon the Case upon a Promise there are three things considerable Consideration Promise and Breach of Promise As to the Consideration in our Case the Grant of the Lease which is to begin after the death of the Lessor is merely void And as to the second Consideration it appeareth That the Lessor at the time of the making of the Lease had but a Right for he was disseised for he who was afterwards the Lessee entred before he had any Lease made unto him and so here is not any consideration to ground the Assumpsit upon But admit that there be a consideration yet the Action doth not lie For 19 Eliz. a difference was taken by the Iustices scil When in the Declaration in an Action upon the Case two or more considerations are laid and are not collateral but pursuant As if I owe you an hundred pounds and I say That in consideration that I owe you 100 l. and in consideration that you shall give me 10 l. I promise to pay unto you the said hundred pounds which I owe you If you bring an Action upon the Case against me for the hundred pounds and lay in your Declaration both considerations although you do not pay me the ten pounds yet the Action lieth But where the considerations are not pursuant but meerly collateral and do not depend the one upon the other As in consideration that you are of my Councel and you shall ride with me to York I promise to give to you an hundred pounds there both considerations ought to be performed or otherwise the Action doth not lie and so here in the principal Case the considerations being collateral they both ought to be performed Afterwards upon consideration had of the Case by the Court Iudgment was given for the Plaintiff and it was said by Coke That there was not any Disseisin in the Case but he who entred was Tenant at sufferance by reason of the precedent communication XCVII Curtise and Cottel 's Case Trin. 28 Eliz. In the King's-Bench THE Case was this That one Bonham was seised of a Manor within which there were divers Customary Lands demisable by Copy for three lives The Lord of the Manor did demise some of those Lands to three Sisters Habendum to them for their lives successive for the Fine of 100 l. by them paid and they being seised accordingly the eldest Sister who was Tenant in possession took to Husband one Chapman after which the said Lord by Indenture leased the same Land to the eldest Sister the Remainder to the Husband the Remainder to the second Sister and no Agreement was made thereunto by the second Sister by Deed before or after the making of the Indenture but four days after the Lease made she agreed to it in the Country and then took to Husband Curtise and they entred claiming the said Land upon which Entry the Action was brought The point was That when the Lease by Indenture was made to the eldest Sister at which time no agreement was made by the second Sister who was in Remainder yet when after she agreed If by that Agreement her Right to the Copihold were extinct or not so as the interest of the eldest Sister being gone by the acceptance of the Estate by the Indenture the second Sister might come and claim
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 bâ— 4 H. 7. for otherwise that Proviso or Exception had been frivolous Walmsley Serjeant to the contrary and he agreed That the
demurred and it was moved that the Traverse was not good but the Defendant ought to say that the Plaintiff did not require him modo forma but the Exception was not allowed but the Traverse was holden good by the whole Court and Iudgment was given for the Plaintiff VI. Elizabeth Dormer 's Case Trinit 32 Eliz. In the King's-Bench ELizabeth Dormer was indicted upon the Statute of 23 Eliz. of Recusancy and Exception was taken to the Indictment 1 Len. 241. because that these words of the Statute were omitted out of the Indictment viz. non habens aliquam rationabilem causam But the Exception was not allowed for Wray chief Iustice said That upon conference betwixt himself and all his companions it was resolved by them That those words need not be put into the Indictment but are to come on the other side Another Exception was taken to the Indictment That she being of the age sixteen years refused to come to any Church contra formam Statut. 1 Eliz. in malum exemplum c. contra formam Statuti in hujusmodi casu editi provisi and the Statute of 1 Eliz. doth not speak of sixteen years but the same is mentioned in the Statute of 23 Eliz. Fenner was of Opinion that the last Contra formam Statuti should be referred to the Statute of 23 Eliz. Wray contrary and that it should be referred to the Statute of 1 Eliz. It was adjourned VII Cranmer 's Case 16 Eliz. In the Common-Pleas THE Case was That Thomas Cranmer 1 Anders 19. More Rep. 100. 1 Len. 196. 3 Len. 20. Dyer 309 310. late Archbishop of Canterbury made a Feoffment in Fee to the use of himself for life without impeachment of Waste and after his decease to the use of his Executors for twenty years and after the twenty years to the use of his Son and Heir in tail And afterward Thomas Cranmer was attainted of Treason and dyed so as he could not make Executors but dyed intestate without any assignment Office Executors 118. Note the limitation was to his Executors and Assigns Queen Mary claimed the term limited as aforesaid and granted the same over the Heir in tail entred and Leased the same for years the Patentee entred and the Lessee of the Heir of the Tenant in tail brought Ejectione firmae Manwood All the doubt of this case is If the said term was in Tho. Cranmer so as he might forfeit it And he conceived that the said term was in Tho. Cranmer and that he had not power onely to dispose of it but also had possession of it 11 H. 4. 186. Scire facias 67. And Br. Annuity 17. Such a Grant is good and effectual and if he do not grant it his Executors shall have it and yet the term was not limited to him but he shall have it by implication of Law. 39 E. 3. A Lease was made to one his Heirs and Assigns during his life and one year after the Executors shall have the said term after the death of the Lessee yet the said term was not limited to him 7 E. 3. A Lease made for term of live and a year after in that case the term is conjoyned unto the Estate for life by the act of the Grantor himself and there is a difference when the Remainder is joyned to the particular Estate by the act of the Grantor and by any Purchase Grant or any act after for in the first case the Remainder shall be executed but in the latter not A Lease for life the Remainder in tail the Remainder to the right Heirs of Tenant for life he in the Remainder in tail dyeth without issue in the life of Tenant for life now the Fee is executed to the Freehold c. and the Heir shall not have a Scire facias where such conveyance is made by Fine See 17 E. 3. 29. In a Cui in vita A. Executor of B. came and said that the Land in demand was Leased to the said B. for the term of his life the Remainder for the term of eight years to his Executors and prayed to be received and they were received See 19 E. 3. A Lease was made for life to A. the Remainder to his Executors for twelve years the Lesse for life died the Executors died there it is agreed that the Executors of the Executors should have an Action of Covenant if they be ousted And see 20 E. 3. Quid juris clamat 31. A Lease is made to A. for life and if A. dieth within twenty years that his Executors shall have the term until the end of such term and in a Quid juris clamat against A. he saved his term by protestation which proves that the term was quodam modo in him 49 E. 3. A Lease for life unto A. the Remainder to his Heirs and Executors for twelve years and afterwards the Lessor confirms the Estate of the Lessee for life to have and to hold the Land to him for life and thirteen years over to his Executors the Lessee deviseth the term and the Devise holden good which proves that the term was in him Harper Iustice contrary Many cases put before may be answered for in the said case the term is limited to begin immediately and not by way of Remainder or after the death of the Lessee and then the Executors in the life of the Testator are not known nor able to seek any thing by the name of Executors and therefore that term shall take its beginning in the life of the Testator But in the Case at Bar the term is limited to the Executors after the death of the Testator Co. 1 Inst 54. b. and the Executor takes the term as a Purchasor and he hath it not as a Chattel of the Testator but as his own Chattel And in the Case of Receipt before cited the Executor shall be received as Executor for the term was limited to him as Executor And here the Statute of 27 H. 8. 1 Cro. 666. is to be considered for it extends as well to Chattels as to Freehold and the Statute doth execute the possession to the use limited for years as for life or in Fee and here the use is limited to the Executors and not to the Testator and therefore it shall not be otherwise transferred And therefore if a man seised in the Right of his Wife discontinueth and afterwards the Discontinuee makes a Feoffment in Fee unto the use of the said Husband and Wife for their lives in that case the Wife shall not be remitted for the Statute doth transfer according to the use and the use was limited for their lives therefore they shall not be in of another Estate Dyer chief Iustice to the same intent The Feoffor i. Thomas Cranmer limits all the uses and therefore he shall not have that which he hath limited and it is in the nature of a Reservation which shall be taken strictly and very strong against him who
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
ratione calumniae praedict ac praedict jurament tenebat proficua inde provenientia diutius quam aliter si praesens Triatio habita fuisset sine aliqua calumnia tenere potuisset See the Statute of 5 Eliz. against Perjury the words are grieved letted or molested c. LIV. George ap Rice 's Case Mich. 30 Eliz. In the King's-Bench George ap Rice Tenant in Tail after possibility of Issue extinct assigned his Estate to one A. against whom he in the Reversion brought a Quid juris clamat and it was adjudged that he should Attorn for although Tenant in Tail after possibility of Issue extinct himself is not compellable to attorn yet his Assignee shall attorn for the privilege is knit to the person who is in truth Tenant in Tail after possibility of Issue which cannot be the Assignee for by the Assignment the privity and the privilege are destroyed 1 Len. 290.291 And where the Defendant in a Quid juris clamat is adjudged to attorn Distress infinite shall issue forth against him to compell him to attorn and if he when he appears doth refuse to attorn he shall be imprisoned until he doth attorn And this Iudgment That the Assignee of Tenant in Tail after possibility should attorn being given in a Court in Wales was afterwards affirmed in a Writ of Error brought upon it in the King 's Bench. LV. Lucas and Picrost 's Case 30 Eliz. In the Common Pleas. THE Case was 3 Len. 137. That an Assise of Novel disseisin was brought in the County of Northumberland of two Acres of Land and as to one Acre the Defendant pleaded a Plea tryable in a Foreign County upon which the Issue was adjourned into the Common Pleas and from thence into the Foreign County where by Nisi prius it was found for the Plaintiff And now Snag Serjeant prayed Iudgment for the Plaintiff and cited the Book of 16 H. 7. 12. where Assise is adjourned in Bank for difficulty of the Verdict they there may give Iudgment But the whole Court is of contrary Opinion for here is another Acre the Title of which is to be tryed before the Iustices of the Assise before the Tryal of which no Iudgment shall be given for the Acre for which the Title is found And the Assise is properly depending before the Iustices of the Assise before whom the Plaintiff may discontinue his Assise And it is not like unto the Case of 6 Ass 4. 8 Ass 15. where in an Assise a Release dated in a Foreign County is pleaded which was denyed for which cause the Assise was adjourned in Bank and there found by Inquest not the Deed of the Plaintiff now the Plaintiff if he will release his damages shall have Iudgment of the Freehold presently But in our Case Postea 199. 14 H. 7. part 118. parcel of the Lands put in view doth remain not tryed which the Plaintiff cannot release as he may the damages And therefore the Court awarded That the Verdict should be sent back to the Iustices of the Assise LVI Povye 's Case Mich. 30 Eliz. In communi Banco POvy an Attorny of the King's Bench brought an Action of Trespass there against the Warden of the Fleet who came into the Common Pleas and demanded the Advice of the Court because he is an Officer of this Court and therefore ought not to be impleaded elsewhere But it was said by the Court 3 Cro. 180. That because that the Plaintiff hath also his Privilege in the King's Bench as well as the Defendant hath here this equality of Privilege shall render the parties at liberty and he shall have the benefit of the Privilege who first begins Suit and so the Warden of the Fleet was advised to answer LVII Inchley and Robinson 's Case Hill. 29 Eliz. In the Common Pleas. IN an Ejectione Firmae it was found by special Verdict Owen Rep. 88. 3 Len. 165 That King E. 6. was seised of the Manor and hundred of Fremmington and by his Letters Patents granted the same to Barnard in Fee rendering 130 l. per annum and also to hold by Homage and Fealty and afterwards Queen Mary reciting the said Grant by E. 6. and the Reservation upon it granted to Gartrude Marchioness of Exeter the Manor of Fremmington and the said Rents and Services and also the Manor of Camfield and other Lands and tenements to be holden by the twentieth part of a Knight's Fee Gertrude so seised devised to the Lord Montjoy the Manor of Fremmington the Manor of Camfield c. and also bequeathed divers sums of money to be levied of the premisses and they farther found That the said Rent of 230 l. was the full third part of the yearly value of all the Lands and Tenements of the Devisor The Question was If by those words of the Devise Of the Manor of Fremmington the Rent and Services of the Manor did pass i. the Rent and the Homage and the Fealty reserved the Grant of King E. 6. of the Manor and Hundred of Fremmington and if the said Rent and Services are issuing out of the Manor for if the Rent doth not pass then the same is descended to the Heir of the Marchioness and then being found the full and third part of the value the King and the Heir is fully answered and satisfied and then the Inheritance of the residue discharged and settled in the Devisee And if the Rent doth not pass then is the Heir of the Marchioness entitled by the Statute to a third part of the whole Shuttleworth Serjeant If the Marquess had devised by express words the said Rent and Services they could not have passed for as to the Services they are entire things as Homage and Fealty and they cannot pass by Devise in case where Partition is to follow for such things cannot receive any Partition or Division therefore they are not divisible for the Statute doth enable the Proprietor or Owner to devise two parts of his Inheritances in three parts to be divided i. as Catalla Felonum cannot be devised for the reason aforesaid which was granted by the whole Court. And as to the Devise he argued much upon the grounds of Devises and put a ground put by Fineax 15 H. 7. 12. where every Will ought to be construed and taken according as the words do import or as it may be intended or implyed by the words what the meaning of the Testator was out of the words of the Will. See thereof a good Case 19 H. 8. 8. and 9. and he relied much upon the Case of Bret and Rigden Plow 342. So he said in this case because the intent of the Devisor doth not appear upon the words of the Will that this Rent should pass it shall not pass for there is not any mention made of any Rent in all the Will. Fenner contrary and he argued much upon the favorable construction which the Law gives to Wills 14 H. 3. Reversion for Remainder
all this was before the Statute of 14 Eliz. And if the said Recovery should bind B. who was in the remainder in tail or if it be a forfeiture was the Question Altham of Gray's-Inn argued that here is a forfeiture First it is to see if a common Recovery suffered hy Tenant for life who is also Bargainor in this case be a forfeiture or not by the Common Law if no Execution be sued upon the same Recovery Secondly If the Recovery be executed if he in the Remainder may enter for the forfeiture When Tenant for life bargaineth and selleth the Messuage Post 65. acc 1 Len. 264. 1 Inst 251. b. acc 1 Inst 330. b. c. although upon it an Estate in Fee be limited yet nothing passeth from him but that which he may lawfully pass and that was the Estate for the life of the Bargainor for such Estate onely might lawfully pass and here the Bargainee is but Tenant for the life of another and when with his own consent he suffers a common Recovery and that without right the same is a forfeiture By matter in fact a particular Tenant may commit a forfeiture as well as by matter of Record By matter in fact he cannot commit a forfeiture if the Reversion be not thereby pulled out of him in the reversion As if Lessee for ten years maketh a Lease for 1000 years the same is no forfeiture for by that the Reversion is not touched but if he in matter of Record doe any thing which sounds to the disinheriting of him in the Reversion although in truth it doth not touch the inheritance yet it is a forfeiture which see 39 E. 3. 16. If Tenant for life plead any thing against the right of him in the Reversion it is a forfeiture And by Finchden and Belknap he cannot plead to the right 5 Ass 3. Tenant for life is impleaded in a Praecipe by a stranger and confesseth the Action upon which the Demandant hath Iudgment the Lessor enters against whom the Demandant sueth Execution and the Lessor brought an issue and had Iudgment to recover for it is a forfeiture because the Tenant for life hath admitted the Reversion in another because it is an alienation to the disinheritance of the Plaintiff i. the Lessor 19 E. 3. t. Receit 14. where Tenant for life pleads in chief or doth not gainsay the Action of the Demandant or makes default by Covin he shall forfeit his Estate but if a Rent be demanded against Tenant for life and he render the same it is no forfeiture 22 Ass 31. Tenant for life is impleaded by Covin betwixt him and the Demandant and pleads in chief without aid prayer upon which Iudgment is given he in the Reversion may enter In a Quid juris clamat against Tenant for life who pleaded faulty traversing the point of the Action he in the Reversion shall not be received for in as much as the Tenant hath traversed the Action he is not within the Statute of West 2. of default Reddition but he in the Reversion may enter by the Common Law 22 E. 3. 2. In a Scire facias to execute a Fine against Tenant for life who pleaded to the Enquest whereas in truth the Land in demand was not comprised within the Fine and Iudgment is given for the Demandant in the Scire facias that he in the Reversion may enter In the principal Case here there is apparent and manifest covin for the Tenant for life is vouched without cause and this Recovery is by assent and is to the use of the Bargainee who is Tenant for the life of another and therefore by the Common Law he in the Reversion may enter before the Execution be sued And it is well known that these common Recoveries are used to dock a Remainder in tail and that was the scope of this Recovery And as to the Case of 5 E. 4. 2. Tenant for life is impleaded in a Praecipe quod reddat who voucheth a stranger the Demandant counterpleads the vouchee and it is found for him he in the Reversion hath no remedy but a Writ of Right and if such vouchee enters into the Warranty and loseth by Action tried or by default c. That Book is to be intended of a Recovery executed for there in such a case he in the Reversion may not enter but is put to his Writ of Entry by the Common Law vide Br. Tit. Forfeit 87. 24 H. 8. Tenant for life is impleaded and prayes in aid of a stranger he in the reversion may enter but if he doth not enter untill the other hath recovered then he cannot enter but he is put to his Writ of Entry Ad terminum qui praeteriit vel de ingress ad com Legem and therein shall falsifie the Recovery And there by Brook Voucher of a stranger is not a cause of forfeiture for he doth not disaffirm the Reversion to be in the Lessor And he vouched 24 E. 3. 68. where Tenant for life pleaded in the Right without aid prayer and so he argued That before execution he in the Remainder might enter but after execution he is put to his Action but in our Case although Execution be sued yet he in the Remainder may enter for it is found by verdict That at the time of the Recovery he was within age and then no Laches of entry shall be imputed unto him and then he shall not be driven to his Action As if Tenant by the Curtesie maketh a Feoffment with Warranty and dieth and the same descendeth to his Heir within age yet he shall enter although that he had not avoided the Warranty in the life of his Ancestor And he also conceived that the Statute of 32 H. 8. cap. 31. did extend to this Case For Sir William Pelham the Bargainee was but Tenant for life and although that he be but Tenant for the life of another yet he is Tenant for life as fully as if he were Tenant for his own life The words of the Statute are or otherwise for the term of life or lives quo ad nom As upon the Statute of 20 E. 1. which gives receit i. de defensione juris the words are Cum quis aliquod Breve Dom. Regis impetret versus tenentem per Legem Angliae vel feodum talliatum vel sub nomine Dotis vel alio modo ad terminum vitae c. Also although that he who entreth at the time of the recovery was not next in the Remainder to the particular Estate yet he is within the Statute of 32 H. 8. for he was in the Remainder at the time of the Recovery and at the time of the entry he in the immediate Remainder was dead and then he next in Remainder See 15 E. 4. 9. by Littleton If I grant my services to one for life and he in a Praecipe brought against him plead in the Right or granteth unto another the said services in Fee the same is not any
was but Tenant in Law because Vouchee and also that the Recovery was a good bar to him in the remainder notwithstanding that he was within age at the time of the Recovery And afterwards at another day the Case was argued by the Barons and Clark Baron conceived That the Entry of him in the remainder was congeable It hath been said That Sir William Pelham did not know that the Bargainor had an Estate but for his life or that any other person had any remainder therein the same is not to any purpose to excuse him for 42 E. 3. Every Purchasor ought at his own peril take notice of the Estates and charges which are upon the Lands of which he is Purchasor and the Law presumes that none will purchase Lands without advice of Councel and without knowing the Titles to the Lands And although divers Statutes have been made to provide against the practices of particular Tenants yet it is no argument that no other remedy was before And by Littleton If Tenant for life joyneth the Mise upon the mere right it is a forfeiture And he held strongly That the Iudgment did not take away the Entry cause of forfeiture being given before the Iudgment See 5 Ass 3. and 22 Ass 31. to that purpose For where Tenant for life is impleaded he ought to attend upon him in the reversion and to expect instructions from him in defence of his Title c. And therefore if he maketh default or confesseth Action the same is a forfeiture And as to the supposed recompence the same shall not help this Case for this is a common recovery and nothing else but an Assurance And Recoverors they are but Assignees and they shall take advantage of Conditions by 32 H. 8. and a Recoveror shall be seised to the use of him who suffereth the Recovery if no other use be expressed And he also held That when Tenant for life bargains and sells his Lands by Deed enrolled although no Fee passeth yet it is a forfeiture and that by reason of the Enrolment which is matter of Record And he said that if an Infant Tenant for life be disseised and the Disseisor dieth and afterwards the Infant dieth that he in the Remainder might enter Gent Baron argued to the same intent and he said That if Tenant for life suffereth a Recovery the same is not simply a forfeiture for he may have a warranty upon a Release or Confirmation made to him Attornment doth not give a Right but is onely a Consent yet if he who hath not any thing in the Reversion will levy a Fine thereof unto another and afterwards the Conusee brings a Quod juris clamat against the Tenant of the Land and he attorn it is a Forfeiture Manwood Baron to the same intent this is a new Case and I have not seen nor read the Case in any Book nor seen any presidents and it is a great case and a general case and worthy to be argued And I conceive clearly That here is a direct and express forfeiture the Dignity of Iudgments in reputation of Law hath been urged which ought to stand in force until they be reversed by Error or Attaint And also Littleton 481. hath been urged where upon the Statute of West 3. he saith That before the Statute aforesaid if a Lease had been made to one for life the remainder to a stranger and afterwards a stranger by faint Action hath recovered against Tenant for life by default and afterwards the Tenant for life died he in the Remainder had not any remedy But there Littleton doth not report the same as his own Opinion but as an Opinion conceived by a Reader upon the said Statute and in truth it is but a meer conceit And as to the main point he took this difference Such Recoveries in which the title of the Demandant stands indifferent to the Court and non constat if it be good or not being suffered by Tenant for life by default or confession without aid-prayer of him in the Reversion do not make any forfeiture although that the Tenant for life hath not dealt with him in the Reversion not having prayed in aid of him And in such case if a Lease be made for life the Remainder over in Fee upon such Recovery he in the remainder shall have a Formedon in the remainder or a Writ of Right and shall not put out him who recovered without any Action and that by the common Law. Then came the Statute of West 2. c. 3. which gave unto the Wife a Gui in vita upon a Recovery had against the Husband by default where before she had not any remedy but onely Writ of Right and notwithstanding si ulterius quaeratur si necesse habet ostendere jus suum secundum formam brevis quod prius impetraverat And if his Right be not better than the right of him in the Reversion he shall lose it notwithstanding the Iudgment given before for him and that Statute gave Receipt or Writ of Entry ad terminum qui praeteriit and that Statute is to be intended of such Recoveries where a good Title or indifferent is so as non Constat Curiae if it be good or not After that Tenant for life was driven unto a new shift and would not make default or lose for not pleading but he would plead but that faintly for the remedy of which mischief the Statute of 13 R. 2. which gave Receipt in such case the particular Tenant being restrained by this Statute he jugled yet and practised to suffer a Recovery secretly without notice of him in the Reversion for the remedying of which mischief the Statute of 32 H. 8. was made and that makes such Recovery had against such a particular Tenant void against him the Reversion It hath been objected That the said Statute of 32 H. 8. did not give any forfeiture in this case but makes the Recovery void and therefore he in the Reversion ought to stay until after the death of the particular Tenant To that I shall speak after But here our case is of a common Recovery and it doth appear to the Court that the Demandant hath not right for the Tenant might have barred him Also this Recovery is not to the use of the Recoveror but to the use of him who was Tenant in it and in truth it is nothing else but an assurance and in these feigned Recoveries the Recoveror comes in under the Title of the Tenant to it and not paramount as in case of a Recovery upon a good Title A Lease for years made by him who after suffers a Recovery is good and shall not be defeated by the Recovery otherwise it is where the Recovery is upon a good Title See Statute of Glocest cap. 11. where upon default of the Tenant Receipt is given for Lessee for years yet if the Tenant vouch upon default of the Vouchee the Lessee for years shall be received and now Receipt of Lessee for
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-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
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
also of Statutes We cannot deny but that we have Lands of the Conusor and of the Gift of the Conusor our Ancestor whose Heir we are who was indebted to the Queen and yet we are not within this Statute Was or shall be indebted shall not be intended after the Gift made for if he first convey his Land and afterwards becomes indebted the same is not within the Statute and where a mischief is to be remedied by a Statute the remedy in exposition of the Statute is to be applied according as the mischief doth require Shall be is to be intended of future Debts after the Statute and in our case the Father was not Receivor or other Officer to the Queen And if this Statute should be so construed the Father might take 10000 l. for the Marriage of his son and assurance of Lands unto him and then if he will acknowledge a Debt to the Queen he should defeat the whole which should be a very great mischief The words are By Gift after the Debt acknowledged to the Queen And he cited the Case 19 Eliz. Plow 191. betwixt Ludford and Gretton upon the Statute of 18 H. 6. the words of which are That whatsoever Warrant hereafter to the Chancellor of England addressed the day of the delivery of the same it be entred of Record in the Chancery and that the Chancellour make Letters Patents upon the same Warrants bearing date the day of the said delivery in the Chancery and not before and all Letters Patents made to the contrary shall be void And the Case was That a Warrant was directed to the Chancellour for the making of Letters Patents and delivered to him before the making of them but the day of the delivery was not entred of Record c. And it was holden that notwithstanding that the Letters Patents were good for the mischief at the Common Law intended to be reformed by that Act was not the post-dating of the Letters Patents but the ante-dating and therefore that ought to be principally taken into consideration which mischief being understood the words of the said Statute are to be applied to it ipsae etenim Leges cupiunt ut jure regantur i. with an Equity according to the Mischief and not always according to the precise words and in that case it is sufficient if the Letters Patents bear date after and not before the delivery of the Warrant and that was the matter intended to be reformed Also as our Case here is we are not within this Statute for the words are Of the Gift of his Ancestour but here the Son hath not the Lands of the Gift of his Ancestour but rather by the Statute of Vses and so he is in the Post and not in the Per by his Ancestour for here the Fine was levied to divers persons unto the Vses aforesaid and here the Gift was not a mere gratuity to his Son but in consideration that he should marry the Daughter of Sir Edw. Huddleston and also the Father was the King's Debtor after the Gift and not before Popham Attorney-General to the contrary The letter of the Statute is with us for he comes in of the Gift of his Ancestour who was indebted to the Queen and although that the Gift was by way of use yet the precedents in the Common-Pleas and other Courts are That he may declare of the Feoffment of such a one although it was by way of use and he said If A. be bound to enfeoff B. of such Lands if he maketh a Feoffment to the use of B. and his Heirs he hath well enough performed the Condition and if the Case should not be within the Statute then should that branch of the Statute be idle and to no purpose For if the Ancestour be seised and becometh indebted to the Queen and after makes a conveyance ut supra the same is provided for by the first branch of the Statute For the Land is liable to the Recognizance or Obligation made to the King and that they shall be as effectual as a Statute Staple and reason requires that the son who comes in by mere gratuity of his Ancestour should be charged And it was a common practice before the making of that Statute That the King's Officers would convey their Lands to their children and then become the King's Debtors for the remedy of which mischief the Statute was made and the Statute of 27 Eliz. doth not respect the Heir because he is Heir but as a purchasor onely and that upon good consideration Coke If any fraud can be found in our Case then without doubt we should be within the Statute but being upon good consideration it is out of the Statute nor was there any purpose in the father when he made the said Conveyance to become the King's Debtor or Officer to him for if there were then he is within the Statute also the Gift had been a mere gratuity c. And afterwards at another day the Case was moved by Coke and he said That here is not any Gift because it was in consideration of Marriage and then no gift for it is an old Proverb What is freer than gift Egerton The father giveth to his son and heir the same is within the Statute and yet here is consideration scil of blood Coke contrary Where the father giveth to his younger son or to his daughter which is not his heir and of that opinion was Manwood chief Baron And afterwards as Coke reported the son and his Lands were discharged CXV Amner and Luddington 's Case Mich. 26 Eliz. In the King's-Bench Error 3 Len. 89. 8 Co. 96. ERror was brought in the King's-Bench by Amner against Luddington Mich. 25 and 26 Eliz. Rot. 495. The Case was That one Weldon was seised and leased unto Pierpoint for ninety nine years who devised the same by his Will in this manner I bequeath to my Wife the Lease of my House during her life and after her death I will that it go amongst my Children unpreferred Pierpoint died his Wife entred and was possessed virtute legationis praedict and took Husband one Fulshurst against whom one Beswick recovered in an Action of Debt 140 l. upon which Recovery issued forth a Fieri facias and upon that a Venditioni Exponas upon which the Sheriff sold the said term so devised to one Reynolds Fulshurst died his Executor brought Error to reverse the Iudgment given against the Testator at the Suit of Beswick the Wife did re-enter and sold the Land and died Alice an unpreferred Daughter of Pierpoint did enter and upon that matter found by special Verdict in the Common-Pleas the entry of Alice was adjudged lawfull upon which Iudgment Error was brought in the King's-Bench And it was argued upon the words of the Devise because here the House is not devised but the Lease it self scil all his interest in the thing devised And it is not like unto the Case betwixt Welchden and Elkington 20 Eliz. Plow 519.
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
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
indictment and prayed his Clergy c. and demanded Iudgment If the Plaintiff should have this appeal The Plaintiff Replicando said by protestation Nul tiel record and for plea did demur in Law. Dalton for the Plaintiff took Exception to the plea for the conclusion of it viz. Iudgment if appeal where it ought to be Iudgment if he shall be again put to answer And he took a difference where a matter is pleaded against the Plaintiff to which the Plaintiff is party As where a man pleads a Fine levied by the Plaintiff himself there he shall conclude Iudgment if action but where the Fine is pleaded levied by the Ancestors of the Plaintiff there he shall plead Iudgment if against such Fine c. Vide 9 H. 7. 19. At the common Law before the Statute of 3 H. 7. such conviction at the suit of the King did discharge the party convicted from farther trouble but if the indictment upon which he was arraigned be insufficient then it is not any plea. And here the indictment is insufficient for by the Statute of Articuli super Chartas cap. 3. the Coroner of the County together with the Coroner of the King's Houshold shall do the Office which belongs to it and send the roll to which Office two Coroners are requisite but here in the taking of this inquisition there was but one person although two capacities id est Coroner of the County and also Coroner of the Verge and so the indictment was taken Coram non Judice See the Statute of the Star-Chamber which is That the Chancellor c. calling to them one Bishop and one temporal Lord of the King's Council c. If the Chancellor be a Bishop yet another Bishop ought to be called c. If I devise that my lands shall be sold by two Bishops and J. S. hath two Bishopricks yet his sale is not sufficient Egerton contrary Although here is but one person yet there are two Coroners Quando duo jura concurrunt in una persona aequum est ac si essent in diversis At the common Law before the Statute De Articulis super Chartas The Coroner of the Verge by himself might enquire of Murther but because the Kings Court oftentimes removed into another County by reason whereof no enquiry could be made for the remedying thereof that Statute was made which is in the affirmative and doth not abridge the common Law before and therefore it shall have a reasonable construction See the Statute of West 1. cap. 10 By which it is enacted that sufficient men shall be chosen Coroners of the most loyal and the most sage Knights this Statute shall not be taken Stricto sensu that none shall be chosen Coroners but Knights but the Statute requires that sufficient persons shall be chosen As to the Statute of 3 H. 7. It is to be known That the common Law before acquitted was a good Plea and the cause was for the great regard that the common Law had to the life of a man In which case a great mischief as the Statute recites did ensue that to save the appeal of the party they would not arraign the party within the year and day after the murther within which time the offender did compound with the party interessed and so after the year expired all the matter concerning the prosecution at the King's suit was put in oblivion wherefore it was enacted That such offender shall be within the year arraigned at the suit of the King and if the party be acquitted at the Kings suit within the year and day That the Iustices before whom c. should not set the party at large but to remain in prison or to let him to bail untill the year and the day be past and within the said year and day the wife or next heir to the party slain may take their appeal against the party so acquitted or attainted the said acquittal or attainder notwithstanding and he said that these words person attainted did not extend to person convicted for they are two distinct conditions in Law for attainder procures corruption of bloud but the same is not wrought by conviction and every Treason imports in it self Felony but yet notwithstanding they are distinct Offences See 22 E. 4. Coron 44. where it was ordered by all the Iustices of England That none should be arraigned of the death of a man at the suit of the King within the year and day so as the suit of the party be saved And the Iustices counselled all men of Law so to do and that the same be executed as a Law without alteration upon which rule of the Iustices arose an inconvenience for after that order of the Iustices was known The offender would practise with the party to whom the appeal by the Law belonged to obtain from him a release for some sum of money and then when the year and day passed the heinousness of the murther was out of memory This mischief being espied was the occasion of the making of the Statute of 3 H. 7. But the said Statute doth not meet with our Case but our Case is at the common Law for this Statute extends onely unto persons attainted but a person convicted is not touched by it and therefore being out of the words of the Statute it shall be also out of the meaning of it for being a penal Law it shall be taken by equity as all Statutes which give attaint shall be Stricti juris and shall not be taken by equity It hath been objected that the Statute de Frangentibus prisonam 4 E. 1. hath been taken by equity the same is not so for it is not any penal Law but the same mitigates the rigor of the common Law for before that Statute the breaking of the prison was Felony in every case but now it is not Felony but where the party was committed to prison for Felony c. CXCVI. 21 Eliz. In the Common Pleas. IN a Formedon of a Manor Dyer 291. 3 Len. 92. the Tenant pleaded Ioynt-tenancy by Fine with J. S. The Demandant did aver the Tenant sole Tenant as the Writ doth suppose and upon that issue was taken and found for the Demandant upon which a Writ of Error was brought and Error assigned in this That whereupon Ioynt-tenancy pleaded by Fine the Writ ought to abate without any averment by the Demandant against it the averment hath been received against the Law c. Southcote At the common Law If the Tenant had pleaded Ioynt-tenancy by Deed the Writ should abate without any averment but that was remedied by 34 E. 1. but Ioynt-tenancy by Fine did remain as it was at the common Law for he hath punishment enough in that by that plea if it be false he hath by way of conclusion given the moyety of the Land in demand to him with whom he hath pleaded Ioynt-tenancy and the Law doth not intend that he would so slightly depart with his land
for the abatement of a Writ As in a Praecipe quod reddat the Tenant acknowledgeth himself to be Villein to a stranger the Writ shall abate without any averment if Frank and of Frank Estate for the Law presumes that the Tenant would not enthral his condition Wray to the same intent But the Demandant may confess and avoid the Fine as to say That he that levyed the Fine was his disseisor upon whom he had before entred c. And if Tenant in Fee-simple be impleaded and he saith that he is Tenant for life the remainder over to A. in Fee and prayes in aid of A. the Demandant shall not take averment that the Tenant the day of the Writ purchased was seised in Fee. Note that in this fine Ioynt-tenancy was pleaded but to parcel It was holden by Wray and Southcot that the whole Writ should abate As in a Writ the misnosmer of one shall abate the whole Writ against all the Defendants and so where the Demandant enters into parcel of the land in demand if the thing in demand be one intire thing it shall abate the whole Writ In this Case the Demandant ought to have in his Writ de Forsprise of the land in demand whereof the Ioynt-tenancy by Fine is pleaded per availe and under the gift of which the Formedon is conceived and therefore in respect of the title of the Demandant it remains in right parcel of the Manor and therefore ought to be demanded accordingly with an Exception But if A. give to B. a Manor except ten acres in tail there if after upon any discontinuance the issue in tail have a Formedon in such case there needs no exception for the said ten acres were never after the gift parcel of the Manor which was given in tail for they were severed from the Manor upon the gift but if land in demand was several as twenty acres except two an exception is not good for he might demand eight acres See E. 1. F. N. B. 866. Praecipe unam bovat terrae except a Seleon and the Writ was abated for every demand ought to be certain but a Seleon is a parcel of land uncertain as to quantity in some places an acre in some more in some less Another point was That because the Tenant hath admitted and accepted this averment scil sole Tenant as the Writ doth suppose If the Court notwithstanding the admittance of the Tenant ought without exception of the party Ex officio to abate the Writ and Wray conceived that they should for it is a positive Law as if a woman brings an appeal of murther upon the death of her brother and the Defendant doth admit it without challenge or exception yet the Court shall abate the appeal 10 E. 4. 7. And see the principal Case there Non ideo puniatur Dominus and if an Action be brought against an Hostler upon the common custome of the Realm and in the Writ he is not named common Hostler and the Defendant doth accept of such Writ without exception to it yet the Court shall abate the Writ Ex officio 11 H. 4. 198. and 38 H. 6. 30. CXCVII 24 Eliz. In the King 's Bench. Antea 150. More Rep. Saffron Walden's Case THE Case was this King Henry the 8. seised of certain lands in the right of his Dutchy of Lancaster Granted them unto another Tenend in Fee-farm Reddend dicto Dom. Regi haeredibus suis aut illi cui de jure reddi debet 10 l. And if this land should be holden of the King in Capite or holden of the Dutchy was the question Egerton Solicitor general argued much upon the Statute of 1 H. 4. by which the Dutchy and possessions thereof were severed from the Crown See Plowden in the Case of the Dutchy of Lancaster 213. And see ibid. the Statute of 1 H. 4. Entituled Charta Regis Hen. 4. 1. De separatione Ducatus Lancastr à Corona by which it is enacted That the Dutchy of Lancaster taliter tali modo deducatur gubernetur pertractetur c. ac si ad culmen dignitatis Regiae assumpti minime fuissemus So as by that Act the Dutchy is dis-joined from the Crown and in such point as to possession as it was in a common person But the possession of the Dutchy doth not bind the person of the King as 10 H. 4. 7. The King brings an Action for certain Lands to him descended from his Vncle the Duke of Lancaster and the Writ was Non omittas propter aliquam libertatem and exception was taken to the Writ because that such clause ought not to be in the King 's Writ but where the King sueth as King but that Writ he sueth as Duke of Lancaster but the exception was not allowed The King cannot sue otherwise but as King for the person of the King ought not to be measured according to his possession so as it was a severance in order survey government and process and not in respect of the person But after the Statute of 1 H. 4. The said Act of Separation was repealed and farther enacted that the said King should hold the said Dutchy to him and his heirs Kings of England so as thereby the Dutchy is settled in the politick Body of the King afterwards came the Statute of 1 H. 7. by which it is enacted That the King shall hold the said Dutchy and the possessions thereof in such manner and form and so separated from the Crown as King Henry the fourth and King Henry the fifth did hold the same so as the Dutchy was devested out of the Body politick of the King where it was setled 1 H. 4. and vested in the Body natural of the King so as the possession of the Dutchy as to their government c. are in the King as they were in the Duke of Lancaster before he was King and if the Duke of Lancaster had made a Feoffment c. the Feoffee should not hold of him but of the King So if the King himself maketh a Feoffment of Lands of the Dutchy the Feoffee shall hold of the King c. which see in the Dutchy of Lancaster's Case in the end of it And he conceived That notwithstanding the union of the Crown and the Dutchy yet the privity of the Tenure doth remain being preserved by the said Act of 1 H. 4. Another matter was That here the Tenure reserved is Tenend in feodi firma Reddend 10 l. c. And he said that this Rent is not parcel of the Tenure but rather a Rent-charge collateral to the Tenure For in all Cases where there is a Tenure expressed in suit or implied in Law before there Reddendo following shall not make the thing rendred parcel of the Tenure 3 Cro. 210 211. but it shall be a Rent in gross and here Tenend in feodi firma makes the Tenure c. and the Reddendo after shall not make the Rent reserved parcel of the Tenure See the
relief of the poor resident in the Parish where the offence was committed and therefore it ought to appear upon the Indictment of what Parish the party Indicted is or otherwise Non potest constare Curiae to which Parish the third part of the Penalty doth belong so that full execution may be made according to the Statute But the whole Court was clear of opinion That the Indictment is good enough notwithstanding that Exception for all the penalty which accrues by the said Statute belongs first to the Queen viz. a third part thereof to her own use another third part for the relief ut supra to be delivered by Warrant by the Officers of the Receipt of the Exchequer And afterwards the Inhabitants of the Parish in which the offence was committed are to sue in the Exchequer for their third part of the penalty and surmise in their Bill that the offence was committed within their Parish and Rule was entred accordingly CCV Gerrard 's Case Pasch 26 Eliz. In the Common Pleas. 3 Len. 98. GErrard Master of the Rolls presented Chatterton Bishop of Chester to the Church of Bangor to which Church one Chamber 's also presented his Clerk by which several presentments the said Church became Litigious The Archbishop of York being loci illius Ordinarius awarded a Jure Patronatus c. depending which the Archbishop admitted the said Bishop whereupon Chambers Libelled in the Spiritual Court against the said Bishop because the said Archbishop Dicto Episcopo plus aequo favore admisit dictum Episcopum pendente the Jure Patronatus in which case by the Law of the Church the admittance is void For Lite pendente nihil movetur and now came the said Bishop and prayed upon that matter a Prohibition which was granted because that the right of the Patronage came in debate after which came the said Chambers and prayed a consultation because he did not meddle with the right of the Patronage but onely with the tortious admittance To which it was said by the Court That the awarding of the Jure Patronatus is not a thing of necessity but at the will of the Ordinary and so for his better instruction but if he will at his peril take notice of the right of the Patronage he may admit which of them he will without a Jure Patronatus awarded And it may be in this Case that after the Jure Patronatus awarded and before any Verdict given upon it the Archbishop was satisfied of the right of the now Plaintiff in the Prohibition to the Patronage and thereupon admitted the Clerk c. and if he was deceived to subject himself unto a Quare Impedit whereof he had discharged himself if he had attended the Verdict in the Jure Patronatus and by the clear opinion of the Court the Consultation was denyed CCVI. Barker and Taylor 's Case Mich. 29 30 Eliz. In the Common Pleas. THE Case was That a woman Tenant in tail within the Statute of 11 H. 7. accepted of a Fine Sur Conusans de droit come ceo c. and by the same Fine rendred back the lands to the Conusor for 100 years It was moved If this conveyance and disposition be within the penalty of the said Statute for the Statute speaks of Discontinuances c. And it was the clear opinion of the whole Court That it is within the Statute for by such practice the meaning of the Statute might be defeated 3 Co. 51. and if such a render for 100 years should be good by the same reason it might be for 1000 years which is like mischievous and as dangerous unto him in the reddition as a Discontinuance And by Rhodes Iustice It hath been adjudged That if a woman who hath Title of Dower before that she be endowed will enter and levy a Fine that the same is within the said Statute and yet she is not Tenant in Dower See Dyer 5. Ma. 140. Penycock's Case and see now 36 Eliz. Sir George Brown's Case adjudged accordingly CCVII. Morris and Webber 's Case Trin. 29 Eliz. In the Common Pleas. IN an Ejectione firmae by George Morris against Webber alias Turnor 5 Co. 98. the Plaintiff declared upon a Lease by Humphrey Bury c. And upon Not guilty the Iury found this special matter That Hen. Bury was seised Et cepit in uxorem quandam Willmottam Gifford 4 Mariae And afterwards 1 Eliz. she Libelled in the Spiritual Court against the said Henry in causa divortii de nullitate matrimonii and found upon the Libel In haec verba and all the sentence upon it viz. In Dei Nomine Amen Per depositiones examinationes Medicorum aliorum fide dignorum honestarum expertarum matronarum comperimus invenimus Quod praedict Henr. Willmotta legit aetatis plenae pubert exist per duos annos integros simul cohabitaverunt in uno lecto concubuerunt licet dict Willmotta operam liberis dare cupierit nunquam tamen per carnalem copulam cum dicto Henrico conjungi aut ab illo cognosci potuit aut potest idque propter vitium perpetuae frigiditatis naturae impotentiae generandi Quae nulla medicorum opera curari pot idque praedict Humphrid saepius confessus est se nunquam cum praedicta Willmotta tanquam virum cum uxore conjunctum fuisse aut conjungi potuisse Igitur invocato primitus Dei nomine Matrimonium praedict irritari cessari quatenuscunque de facto processit cassum irritum nullumque in Lege Juribus juris omnino carere carere debere decernimus declaramus ipsosque quatenus sunt de facto matrimonialiter ad invicem conjuncti a vinculo Matrimonii separamus c. Humphry made a Feoffment in Fee unto the use of himself for life and after to the use of the first or eldest son of the body of the said Henry in tail Willmot married Cary Henry took to wife Phillippam Mountjoy scientem Matrimonii praedict definitivae sententiae praedict durantibus ambobus Matrimoniis tam inter dict Cary Willmotta quam inter dictos Henricum Phillippam dicta Phillippa exitum habuit per dict Henricum Humphrey the Lessor upon which Lease the Plaintiff declared Humphrey died Henry entred and leased to the Plaintiff Shuttleworth Serjeant argued for the Plaintiff That this Divorce not reversed or undone by appeal or otherwise should stand in force and according to it the Law of the Land should judge See 47 E. 3. 17. Casu ultimo Five manner of Divorces are mentioned 1 Causa professionis 2 Praecontractus 3 Consanguinitatis 4 Affinitatis 5 Frigiditatis upon a Divorce Causa professionis the wife shall be endowed and the heir shall inherit but in the other not And the principal Cause is reported by the Lord Dyer 2 Eliz. 179. where Cary and Willmott levying a Fine of the lands of Willmott as husband and wife and it was moved That such Fine ought not to be
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
a stranger abateth after the death of the Devisor and dieth seised the same shall take away the descent CCXL The Case of the Town of Leicester for Toll Trin. 28 Eliz. In the King's-Bench 2 Inst AN Action of Trespass Tam pro Domina Regina quam pro seipso and shewed That the Town of Leicester is an ancient Town and ancient Demesne and the Inhabitants there have used to be discharged of Toll and that the Queen by her Letters Patents gave command to all Bailiffs Sheriffs Mayors c. That those of Leicester should be discharged of Toll and notwithstanding that That the Defendant took Toll c. Exception was taken because that the suit was prosecuted Tam pro Domina Regina quam pro seipso whereas the party grieved was onely to have the information See the Case 49 E. 36. Where the Writ is ad respondend tam pro nobis quam c. and no exception is taken to it Another exception The Plaintiff declares That Leicester is an ancient Town and ancient Demesne and doth not shew that it is parcel of a Manor See 20 E. 3. Ancient Demes 25. such exception is taken but after the Defendant pleads That all such Towns whereof the Land in question is parcell is ancient Demesne and such plea was holden good See 30 E. 3. 12. parcell of a Manor which is ancient Demesne and the Plaintiff replied Absque hoc that it is parcell of the Manor Another exception That Lands holden in Socage onely and no other ought to be discharged of Toll and here it is not shewed in the Declaration that the place where c. is holden in Socage To which it was answered That the same needs not to be set down in the Declaration for that is implied in these words Ancient Demesn for otherwise it cannot be but Socage Land onely and of no other Tenure A fourth Exception The Letters Patents here shewed in discharge are of no value for the King by his Letters Patents cannot disinherit any one Erg. nor discharge one of Toll wich is a kind of disinheritance To which it was said That the Plaintiff doth not declare of any Grant but of an usage or custome for those of ancient Demesn and farther hath commanded by the said Letters Patents that such customs and usages should hold place and upon the custome and the contempt this Action is grounded A fifth exception because the Plaintiff hath not shewed that the Toll whereof the Plaintiff hath counted was concerning things for provision for their houses manurance of their lands c. 7 H. 4. 111. In an Action upon the Case for not paying of Toll The Defendant said That he held certain lands of R. Lord of the Manor of H. which Manor is ancient Demesn of which Manor all the Tenants have been free to sell or buy beasts or other things for the manurance of their lands and maintenance of their houses without paying Toll in any Market or Fair c. And so justifies that he came to the same Market and bought certain beasts as the Plaintiff had declared and that some of them he used about his manurance of his lands and some of them he put into pasture to make them fat and more fit to be sold and afterwards he sold them at such a Fair c. and the opinion of the Court was with the Defendant And by Godfrey and Coke Such Tenants shall be discharged of Toll not onely for buying of things which concern their sustenance provision and manurance of their lands but also for all things bought as common merchandizes 28 Ass ult by Thorp Green and Seton of all things bought by any for his own use they shall be quit of Toll and then If the privilege of Tenants in ancient Demesn shall not be quit of Toll but for things bought for their sustenance provision and manurance of their lands they have no more favor than ordinary Subjects See 19 H. 6.66 Some are of opinion That such Tenants shall not pay Toll for things sold and bought coming upon their lands and touching their sustenance See F. N. B. 228. D. such Tenants are discharged of Toll for all things by them sold and bought by way of merchandize as also of things of necessity as sustenance And see Crook in the cases of Itiner 138. he conceives that such Tenants for merchandizes shall pay Toll as other merchants but see the Writ of F. N. B. 228. the words are De bonis rebus suis And Coke said That he had found the reason wherefore such Tenants should be quit of Toll throughout the Realm in an ancient Reading viz. That all the lands in the hands of Edw. the Confessor and Wil. the Conqueror set down in the Book of Doomsday were ancient Demesn and so called Terrae Regis and they were to provide victuals for the Kings Garrisons for then they were troublsome times and for those causes and because they made provisions for others they had many privileges amongst which this one Ut quietius aratra sua exercerent terram excolerent The Lord himself in ancient Demesn shall not have such privilege for his Seignory is pleadable at the Common Law Vid. F. N. B. 228. B. And he said That the Plaintiff ought to alledge that his lands are parcel of such a Manor for there cannot be ancient Demesn if there be not a Court and Suitors c. And he granted that such a Town might be ancient Demesn of the Crown but yet they shall not have the privileges and liberties which the Tenants in ancient Demesn have Towns were before Manors London hath the name of ancient Demesn and yet they have not such liberties nor the lands in it pleadable by Writ of right Close 7 H. 6. 31 32. Shute Iustice was of opinion That an Inhabitant within ancient Demesn although he be not Tenant shall have the privileges See for that F. N. B. 228. B. Tenants at will in ancient Demesn shall be discharged of Toll as well as Tenants of the Freehold for life or for years 37 H. 6. 27. by Moile London is ancient Demesn for they prescribe that a Villein who hath there dwelt c. shall not be taken from thence by Capias or Attachment Billing London is not in the Book of Doomsday Moile They make their Protestation in a Writ of Right Patent Littleton That is used in divers places and at this day in Exeter And by Clench If a Tenant in ancient Demesn levyeth a Fine of his lands then he shall not have the privilege untill the Fine be reversed Quod fuit concessum If the Lord of a Manor in ancient Demesn purchaseth all the Tenancies the whole privilege is gone which Coke denyed The Case was adjorned CCXLI. Lennard 's Case Trin. 28 Eliz. In the Common Pleas. 2 Roll. 787. 3 Len. 128. IN the Case of Lennard Custos Brevium who was Plaintiff in an Action of Trespass for breaking of his Close The Defendant pleaded
such a pasture but so many beasts that such a prescription is a void prescription It was argued on the other side That the owner of the soil hath not the true property of the Conies in him but a kind of property And see F.N. B. 86 and 87. Quare clausum fregit 20 Cuniculos cepit Against a stranger he may have an Action but not against the commoner because he hath wrong in his common by the feeding of the Conies there for although he hath not an interest in the soil yet he hath an interest in the profits of it and a commoner may distrain the beasts of him who hath not right of common for damage-feasance as the books are 4 H. 7. 3. 15 H. 7. 15. and there the commoner hath not any remedy if he cannot enter and kill the Conies for he cannot take them damage-feasance nor can impound them for no Replevin lyeth of them if the owner of the soil ploweth the lands yet the commoner may put in his cattel claiming his common and he may well justifie the same because the wrong beginneth in the owner of the soil At another day the Case was moved again and then it was argued by Coke and he said The point is Whether a commoner having common of pasture may kill the Conies which are upon the ground and he argued That he might not And first he said It is to be considered what interest he who hath the Freehold may have in such things as are Ferae naturae and then what authority a commoner hath in the ground in which he hath common As to the first point he said That although such beasts are Ferae naturae yet they are reduced to such a property when they are in my ground by reason of my possession which I then have of them that I may have an Action of trespass against him who taketh them away as in the book in 42 E. 3. If one hath Deer in his Park and another taketh them away he may have an Action of Trespass for the taking of them See 12 H. 8. If a Keeper or Forrester follow a Buck which is chase out of the Park or Forrest although he who hunteth him killeth the Buck in his own ground yet the Keeper or Forrester may enter into his ground and seize the Deer because the property and possession of the Deer is yet in them by their persuit In 7 H. 6. It is holden That if a wild beast doth go out of the Park the owner of the soil hath lost his property in it but upon the said book it may be well collected that whilest it remains in the Parke That the owner of the Park hath property in it for 18 E. 4. 14. It is doubted whether a man can have property in such things which are Ferae naturae But in 10 H. 7. 6. it is holden That an action of Accompt lyeth for things which are Ferae naturae and see 14 H. 8. 1. In the Bishop of London's Case and 22 H. 6. 59. That as long as such things are in the parties ground they are in his possession and he hath a property in them and in an Action brought for them The Writ shall be Quare damas suas cepit by Newton And see in the Register fol. 102. where an Action was brought Quare ducent Cuniculos suos pretii c. cepit It hath been objected on the other side That the Defendant hath common there To that I answer Admit he hath common yet he hath not an interest in the soil for he cannot meddle with the wood grass or other profit arising of the soil but the interest which the commoner hath is onely the feeding of the grass with â—he mouths of his cattel and if he who hath the Freehold in the ground doth bring an Action against the commoner for entring into his land If the Defendant pleads Not guilty he cannot give evidence that he hath common there for such evidence will not maintain the issue See 22 Ass A commoner cannot take in the cattel of a stranger to agist upon the common and therewith agreeth the book of 12 H. 8. and so it hath been adjudged in this Court. Godfrey contrary And he argued That it is lawfull for the commoner to kill the Conies feeding in the common And he agreed all the cases which were put by Coke and farther he said That the owner of the ground had not an absolute but a kind of a qualified property in the Conies and therefore see the Book of 3 H. 6. and F.N. B. If a Writ of Trespass be brought Quare Cuniculas suas cepit the Writ shall abate and yet he hath a kind of property or a possession rather in them I grant that against a stranger the Plaintiff might have his Action for killing of his Conies but not against the commoner because the commoner hath a wrong done unto him by the Conies eating of his common and therefore he may kill them and although the commoner may not meddle with the land because he hath not an interest in it yet in some cases he may meddle with the profits of it and he may distrain the cattel of a stranger there damage-feasance as the Book is in 15 H. 7. I grant that it is not lawfull for Tenant for life to kill the Conies of him who hath free-warren in the land For if a man bringeth an Action of Trespass Quare warrenam suam intravit Cuniculos suos cepit It is no Plea for the Defendant to say That it is his Freehold See 43. E. 3. accordingly In L. 5 E. 4. In Trespass Quare clausum fregit Cuniculos suos cepit The Defendant said That the Plaintiff made a Lease at will to J. S. of the land and that he as servant to the said J. S. did kill the Conies there and it was holden a good Plea and yet it is there said That by the grant of the land the Conies do not pass but the reason of the book might be as I conceive because the feeding on the land with the Conies is to his damage and therefore that he might justifie the killing of them and so are the Books of 2 H. 7. and 4 E. 4. If I have common of pasture in lands and the Tenant ploweth up the land I shall have an action upon the Case in the nature of a Quod permittat And in 9 E. 4. If one hath lands adjoyning to my land and levyeth a Nusance I may enter upon the land and abate the Nusance So if a man taketh my goods and carrieth them unto his own lands I may enter therein and seize my goods So if a Tenant of the Freehold plows the land and soweth it with corn the commoner may put in his cattel and therewith eat the corn growing upon the land So if a man do falsly imprison me and put me in his house I may justifie the breaking open of his house to get forth In 21 H.
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
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
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 â—â— 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
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