be divided For he had not the Mannor of H. for his Wife had it joyntly with him See many excellent Cases in the Booke at large adjudged upon this word Having in the Statutes the Initium of a Will ought to be full and perfect which is the writing and therefore if the devisor command one to write his Will and he devises white Acre to A. and his Heires and black Acre to B. and his Heires and dyes before the devise to B. is written yet the devise to A. is good But if he devises to A. c. upon condition and he writes the devise and the Testator dyes before the Writing of the condition t is voyd for in the one case the devises are severall and the one is perfect in the other Case t is maimed and imperfect for the intire devise was not fully put in writing so t was resolved in the Case at Barre that neither the commencement nor the end of the Will was full or perfect for at the time of writing of it and at the death of the devisor he had no power in respect of the joynt estate in H. to dispose all the Mannor of T. which amounts to the value of two parts of all Also upon the first Branch he ought to have a sole estate and here his Wife is joyntly seised with him and shee cannot disagree during coverture The Statute gives liberty to him for to devise two parts by will but this is to be intended of such Land which he might convey by act executed but here by reason of the undivided estate of the Wife he cannot dispose it but during coverture Also the third part of cleere yearly value is saved to the King and the intent of the Statute was that the King shall have the equall benefit at least for his third part as the devisee hath for two parts but here the devisee had two parts absolutely and the King but a possibility Viz. If the Wife would disagree which is at her pleasure and this Statute hath been constru'd that equality should be observed A man which held three Mannors of three Lords could not devise two of them but two parts of every one upon these words Cleere yearly value 't was said that of Inheritances which are not of any yearly value some are devisable some not as Bona et catalla felonum fugit or utlagat Fines amerciaments within such a Mannor or Towne these cannot be devised nor left to discend but a Leete Waife or Stray or other hereditament appendant or appurtenant to a Mannor passe by devise of the Mannor with th' appurtenances as incidents and the Statute had no intent for to dismember these things which by lawfull prescription had beene united But if a hundred with goods of Fellons Outlaws Fines Amerciaments returne of Writts and such other casuall hereditaments within the same hundred have beene accustomably demised for a yearely rent they may be devised within the purview of the said Act. 'T was said upon the words of the Statute which says that he may devise a rent common c. Out of two parts that a devise of a rent of the full value out of all is voyd but out of two parts 't is good And 't was observed that upon 32. H. 8. a devile of all his land had beene good for two parts as adjudged in Vntons Case for Land is severable but a rent is a thing intire and 34. H. 8. onely gives authority for to devise it The second branch which speakes of division cannot be satisfied for during his life he himselfe could not Set it out and after his death it survives to the Wife The third and fourth branch is not satisfied in this word immediatly for till disagreement without question the Mannor of H. survived to the Wife and if an Office had beene found before disagreement without doubt the Queene should have a third part of the Mannor of T. and the devise being voyd at the death of the devisor the third part lawfully vested in the Heire by discent it cannot be made good and devested by a subsequent disagreement Littleton discent to the Heire of Tenant by the courtesy of a disseissoresse doth not take away entry for the Heire comes not in immediatly 't was agreed if a man devises two acres holden by Knights service and a reversion upon a Lease for life discends to the heire this is no immediate discent within the Statute but the third part of the two ought to discend see many excellent Cases of devises adjudged upon the Statute Another good Case of relations Jennings and Braggs Case a disseisee makes an Indenture purporting a Lease for yeares and delivers it to a stranger out of the Land as an Escroule and commands him for to enter and deliver this as his deed to the Lessee who doth it and adjudged a good Lease and this diversity agreed First When the person at the first delivery hath not ability to make the contract and before the second delivery hath 't is voyd as an Infant and a Fème covert otherwise when at first delivery the person hath ability but cannot perfect it till an impediment removed which is done before the second delivery there 't is good as at Barre Resolved secondly that to some intent the second delivery shall have relation to the former by fiction of Law Vt res magis valeat quam pereat as if a Feme sole deliver a Lease as an escroule and after takes Husband or dyes yet by the second delivery 't is a good deed Ab initio and to some intent Vt res magis valeat c. it shall not relate yet in truth the second delivery hath all its force by the first and is but an execution and consummation of the former as at Barre for if it should relate to the first delivery then it would avoyd the lease for it should be made by one who was out of possession fictio legis inique operatur alicui damnum vel injuriam Thirdly 't was resolved that as to collaterall acts that there shall be no relation Omninò as if the Obligee release before the second delivery such release is voyd Ratcliffes case 34. of the Queene fo 37. A. Feme sole devises Socage land to the sonne of her daughter in taile the remainder to two Sisters of the devisee and to the heires of their two bodies by equall portions to be divided the remainder in fee to the Mother of the daughters and dyes the sonne dyes without issue Martha one of the daughters dwelling in her Mothers house daughter of the devisor within the age of 16. and above 14. departed at the second houre in the night with the consent of the husband of her Mother in whose house she was 8. miles and there married E. R. the issue was whether E.R. the Mother had the custody of the said M. at the time of the contract and marriage aforesaid for if she had then the
a grant but the common Law requires that he be so instructed that he be not deceived there a Non obstante supplies it and makes the grant good As the King having made a lease for life or yeares grants the land Non obstante that it be in lease for life yeares c. or if he grants the land and further grants the reversion of it depending upon an estate for life yeares c. 't is good See the booke at large Resolved when the words are not sufficient ex vi termini to passe the thing granted but the grant is voyd there a Non obstante will not serve as in the principall case and the Pattents were not holpen by 18. of the Queene ca ' 2. for Pattents of concealement are expressely excepted out of the Act. Terringhams case 27. El. in banco regis fo 36. REsolved that prescription doth not make a thing appendant except the thing which is appendant agree in quality and nature to the thing unto which it should be appendant as a thing incorporate as an advowson to a thing corporate as a Mannor or as a thing corporate as Lands to a thing incorporate as an office these may be appendant but every thing incorporate may not be appendant to a thing corporate as common of turbary may not be appendant to Land but to a Messuage or house as it is holden 5. ass 9. for the thing which is appendant ought to accord with the nature and quality of the thing to which it is appendant and turves ought to be expended in a Messuage The commencement of common appendant by the ancient Law was in this manner viz. When a Lord of a Mannor infeoffed another of arrable Lands to hould of him in Soccage id est per servicium socae the Feoffee ad maintenand ' servicium socae had common in the wasts of the Lord for his necessary beasts that did plowe and ayre his Lands and this common is of common right and commenceth by operation of the Law and in favour of tillage and therefore it needeth not to prescribe in that for so it is houlden 4. H. 6. 22. H. 6. as one ought if it were against common right But it is onely appendant to the ancient arrable Lands and onely for oxen horses kyne and sheepe c. And because it is against the nature of common appendant to be appendant to meadowe or pasture and because that here the prescription was to have common time out of minde to a house meadow and pasture as well as to arrable by which it appeares to the Court that there hath been a house meadow and pasture time out of minde 't was resolved that this common was appurtenant not appendant But if of latter times men have builded upon some part of such arrable Lands and some part thereof is imployed to meadow and pasture and this for maintenance of tillage the originall cause of common the common remaines appendant and it shall be intended in respect of the continuall usage of the common for beasts leavant and couchant upon such lands that at the beginning all was arrable But in pleading he ought to prescribe that the same is appendant to Land for though terra dicitur a terrendo quia vomere territur yet terra includes all and is arrable though converted to meadow c. For it may be plowed A man may prescribe to have common appendant to his Mannor for all the demeanes shall be intended arrable at least in construction of Law redd ' singula singulis it shall be appendant to such demeanes which are ancient arrable c. And when a man claimes common appendant to his Mannor no incongruity appeares of his own shewing as here So common may be appendant to a Carve of land which may containe pasture meadow and wood but it shall be applyed to that which agrees with the nature of the common Resolved that common appendant may be apportioned because 't is of common right for if a commoner purchase part of the Lands in which he hath common yet the common shall be apportioned as well as if the Lord purchase parcell of the tenancy the rent shall be apportioned And if A. a commoner enfeoffe B. of parcell of his ancient Lands the common shall be apportioned and B. shall have common pro rata And 't was agreed that such common which is admeasurable remaines after severance of part of the land to which c. But here for that the common was appurtenant 't was adjudged that by the purchase all was extinct for 't was against common right for by the act of the parties it cannot be in esse for part and extinct for part 'T was said that pertinens is the Latine word as well for appurtenant as appendant and therefore subjecta materia and the circumstances ought to direct the Court to adjudge the common appurtenant or appendant Resolved that unity of possession of the intire land to which c and of the intire land in which c. extinguishes the common appendant By Wray chiefe Justice common for vicinage is not appendant but for that it ought to be by prescription 't is resembled to common appendant but common appurtenant or in grosse may commence at this day by grant or prescription and by him the one may inclose common for vicinage against the other as hath been adjudged in Smith and Redmans case Resolved that a man may chase out beasts that doe him trespasse with a small dog and shall not be compelled to distraine them damage feasant Cases of Appeales and Indictments Brookes case 28. of the Queene fo 39. REsolved that in an appeale of Burglary 't was an insufficient count that the defendant domum c. felâ—… burgaliter fregit for it ought to be burglaâ—… or burgulariter which is vox artis as murdravit â—…it which cannot be otherwise expressed Resolved if the count had been sufficient he being â—…icted once should not be againe impeached but here he was discharged upon the insufficient count By Wray Chiefe Justice if upon accident a man and all his family are out of the house and one in the interim breakes the house and commits felony 't is burglary for the indictment is domum mansionalem fregit and so 't was resolved 38. of the Queene where a man hath two mansion houses servants in both and in the night when the servants are out c. the house is broken 't is burglary Wetherell and Darlys case 35. of the Queene fo 40. IN an appeale of murder the Defendant was found guilty of homicide and had his Clergy after indicted and arraigned for murther pleaded this conviction Resolved that 't is a good barre at common Law and restrained by no Statute the reason is because the life of a man shall not be brought twice in question for the same offence Youngs case 38. of the Queene fo 40. AN Indictment that dedit unam plagam mortalem circiter pectus
is no difference in Law whither it be fixed with great Nailes or little Nailes or Screws or Irons put through the Walls for if it be fixed by any wayes or meanes to the house or Posts or Walls thereof the Lessee may not remove it but he is punishable in an action of wast For it is parcell of the house and by Lease or grant of the house in the same Mannor as Sealing or Plaistering it shall passe as parcell thereof Fulwoods Case 33. of the Queene fo 64. C. Acknowledged a recognizance of 250. li. to the Chamberlaine of London and his Successors after acknowledges a Statute of 200. li. before the Recorder of London and Major of the Staple to A. after A. sues Execution by Liberate but it doth not appeare that it was ever returned after the Successours of the Chamberlaine sue Execution by precept to the Serjeant of the Mase in nature of an Elegit and hath a moyty C. dyes his Wife recovers Dower and had this house assigned for her third part she dyes the Chamberlaine assignes to Fulwood after A. assignes also to F. after the Heire of C. demises to B. c. Resolved that the Successors of the Chamberlain-shall have this recognizance though a body solee for that the Corporation was by custome to diverse purposes for Orphanage for the recognizance was acknowledged for Orphanage money and the same custome inables the Successors to take such an Obligation c. otherwise of a Bishop Parson c. and that the Execution by the Serjeant of the Mase was good notwithstanding the Statute of W. 2. ca ' 18. which saith Vic' liberet ei medietatem c. By reasonable extent to wit by inquisition of honest men and the Sheriffe is sworne and the Serjeant is not sworne to take the Jury c. For the Statute extends to every other immediate officer to any Court of the King of record c. Resolved that execution of the Elegit was good enough without suing a Scire facias against A. being in by matter of Record bu 't was said if the Sheriffe had returned the former execution he ought to have a Scire facias by the Court if the Sheriffe makes execution 't is good Resolved that the Verdict was good which finds that C. acknowledged a recognizance before the Maior though not said secundum formam Statuti nor per scriptum suum obligatorium for being the trover of lay People it shall be intended according to the Statute Resolved that the Conusee cannot have aide of the Statute of 32. H. 8. ca ' 5. for which see the Booke at large Resolved that if a man be bound in two Statutes and the latter Statute be first extended and delivered in execution for a longer time and a greater sum then the first was yet when the first Statute is satisfied and his interest lawfully determined the second Conusee shall have the Land againe by force of the first extent It was resolved Per tot Cur. that the execution of a liberate is good although the Writ be not returned and so of a Capias ad satisfaciendum and an Habere fac ' sec ' seisinam and other writs of execution And that the Conusee shall hold the Land not onely untill he be satisfied for damages for detayning of the Debt and costs of Suite but also for his reasonable Labours and expences looke the words of the execution and being in by matter of record the conusor must bring his Scir fac but in Case of an elegit the Conusor after satisfaction may enter for there is no costs and damages but the meere Debt Hyndes Case in com Banco 33. Eliz. fo 70. WIlliam Hawe seised of certaine Lands by deed indented demised the same to Robert Gerrard for 16. yeares who assigned over to Elizabeth Hynd William Hawe afterwards by bargaine and sale in consideration of money due sould the reversion to one Libb and before the same was inrolled the said William Hawe leavyed a fine to Libb and his Heires c. and after the leavying of the fine the said Indenture of bargaine and sale was inroled within six Moneths according to the forme of the Statute and Elizabeth Hynd the Tenant did not atturne The question was Whither the Conusee of the fine after the said Indenture inrolled Shall be in by the fine and by the bargaine and sale for if he shall be adjudged to be in by the fine no action of wast lyeth for default of atturnement and if he shall be in by the Indenture inrolled then there needeth no atturnment And it was resolved Per tot Cur. that when Hawe by deed indented did bargaine and sell the reversion to Libb and his Heires and before the inrollment leavyed a fine to Libb and his Heires and after the Deed is inrolled within six moneths that the Conusee shall be in by the Fine and not by the Deed inrolled for the Fee simple passeth by the fine to the Conusee and his heires and after the inrollment of the deed may not divest and turne the estate out of himselfe which was absolutely established in him by the fine for when the common Law and the Statute Law concurre the common Law shall be preferred And it is true that the inrollment shall have relation to the delivery of the Deed. But that is onely to avoyd estates or charges made of the same thing by the bargainor to strangers after the delivery of the Deed and before the inrollment but not to divest any estate lawfully setled in the interim in the bargainee The Records are so high and sacred that they import in themselves inviolable verity which if any man dare to gainsay the Law doth attribute so great honor to them that they shal be tryedonely by themselves and not by the Countrey and if averrement against a Record should be permitted then the effect and validity of the record should be tryed by the Country which is against the rule of the Law Nullum iniquum est in jure presumendum Yet resolved in this Case that the Lessee shall be admitted to averre that the Deed was inrolled after the Fine and not before because it stands with the Record and doth not impugne any thing within the Record and great inconvenience would follow if such averrement should not be admitted Boroughes Case 38. Eliz. In Banco Regis fo 72. REsolved that the rent reserved upon a demise ought to be demanded if the Lessee will take advantage of a condition for non payment of the same and the demand to be made at the place limitted for the payment of the rent although there be no words of demand in the demise and although it be out of the Land demised but in the Kings Case it is otherwise Prerogativa Regis for there the rent upon a reentry reserved ought to be tendered and in such Case the Pattentee of the King shall demand the rent upon the Land Resolved if the Queene leases rendering
his consent and after the other two did alien without license and it was adjudged 28. Eliz. that in this case the condition being determined as to one person by the license of the Lessor it was determined in all for when the Lessee alieneth any part of the residue the Lessor may not enter into any part aliened with license and therefore the condition being determined in part is determined in all for the condition being entire may not be apportioned and 16. Eliz. Dyer 334. fuit deny per Popham Chiefe Justice Vide lit 80. b. 4. and 5. Ph. and M. Dyer 152. Bustards Case 1. Jac. fo 121. IN every lawfull exchange of Land this word Excambium imports in it selfe Tacite a condition and a warranty and the other a Voucher and recompence and all in respect of reciprocall consideration the one land being given in exchange for the other but that is a speciall warranty for upon the voucher he shall not recover other Lands in value but those onely which were given in Exchange and this warranty followes onely in privity for none may vouch by force thereof but the parties to the Exchange and their heires and no assignes If A give in Exchange three acres of Land to B. for other three acres and after one Acre is evicted from B. in this Case all the exchange is defeated and B. may enter into all his Lands Beverleys Case de non compos mentis in banco regis 1. Jac. fo 123. EVery act that a man De non compos mentis doth eyther concerning his Lands life or goods eyther done in Court of record or out of Court of record all acts that he doth in any Court of record eyther concerning his Lands or goods shall bind himselfe and all others for ever and those acts which he doth out of Court of record shall binde himselfe during life and in some Cases shall binde all others for ever so as the party himselfe shall not be admitted to stultifie himself or disable himself but an ideot a nativitate may not make Feoffment Gift Lease or Release but it may be avoyded during his Life by office at the Kings suite which shall have relation a tempore Nativitatis to avoyd all acts done by him and after his death the King shall deliver his Lands Rectis Haeredibus foure manner of men de non compos mentis 1. An ideot or foole naturally 2. One which was of good and perfect memory and by the visitation of God hath lost the same 3. Lunaticus qui gaudet lucidis intervallis who somtimes is of good and perfect memory and some other times Non compos mentis 4. He that is so by his owne act as a Drunkard All acts which a Lunatick during the time of his Lunacy doth and all acts which a mad man doth who once was of perfect memory and by the act of God hath lost his understanding are equivalent to the act done by an Ideot but the act which a man doth Qui Gaudet lucidis intervallis at such time as he is of good and perfect memory shall binde him and are good And a Drunkard who for the time of his Drunkenesse is Non compos mentis yet his drunkennesse shall not extenuate his act or offence but doth aggravate his offence and doth not derogate from the act which he doth during the time of his drunkennesse and that as well touching his Life Lands and goods as any other thing that concernes him The King shall have the custody of the Land goods Chattells c. of one non compos mentis to the use of him his Wife Children and Family a man non compos mentis shall not loose his life for felony or murder for no felony or murder can be committed without a felonious intent and purpose and he is deprived of reason understanding and intentions Dicta est fellonia quia fieri debet felleo animo furiosus non intelligit quid agit animo ratione caret non mulum distat a brutis as Bracton saith and stultus dicitur a stupore The End of the Fourth Booke THE FIFTH BOOK Claytons Case 37. Eliz. in Com. Banco fo 1. AN Indenture of demise dated 26. May 25. Eliz. to hold for three yeares from henceforth it was delivered at foure a clock in the afternoone of the twentieth of June after The Question was when the Lease should begin from henceforth shall be taken the day of the delivery inclusive idefi from the making or delivery Traditio loqui facit cartam this Lease must end the nineteenth of June in the third yeare after The day of the delivery is parcell of the tearme but a Die confeccionis or a Die datus the terme beginneth the day after the date from the date and from the day of the date is all one because that in judgement of Law the date includes all the day of the date c. Elmers Case 30. Eliz. Banco Regis fo 2. 1. REsolved that the Statute of 1. El. is a private act whereof the Court shall not take notice without pleading of it 2. Whereas the Bishop ousted his Lessee for yeares and made a Lease for three lives this is voidable by the successor for first the Statute giveth him power to make a Lease for twenty one yeares or three lives and therefore cannot make both 2. Lessee for lives shall have the rent reserved upon the Lease for yeares and shall not pay rent to the Bishop untill the terme determined and so hospitality will decay in the meane time and where 32. H. 8. ca ' 8. provided that the old Lease be surrendered before the making of a new illusory surrender upon condition is not within the act but judgement given against the Plaintiffe for not pleading of the said act of 1. Eliz. Jewells Case 30. Eliz. banco regis fo 3. LEase of a faire reservaing rent is not within the Statute of 1. Eliz. for although the rent be due by reason of the contract yet it is not incident to the reversion and 't is also without remedy by assise or distresse Lord Mountjoyes Case 31. 32. El. banco regis fol. 3. TEnant in tayle according to the Statute with power to make Leases c. reserving the ancient rent maketh a Lease of two distinct farmes reâ—erving the ancient rents in one summe out of both sthe farmes this is a new rent and not the accustomed rent and if he reserve a lesser rent during his life and after his death then the ancient rent the Lease is not good If Tenant in tayle be seised of three acres of Land every one of them of equall annuall value and all have beene demised for 3. shil per annum in this case he may not demise one of them for 12. d. per annum or two of them for 2. shil per annum and so Pro rata Justice Windams Case fo 31. 32. Eliza. Banco Regis in a Writ of Error fo 7
inqure of the value if they finde for the Plaintiffe as in an Assize if issue be joyned upon a release and found for the Plaintiffe yet the recognitors must inquire of the seisin and disseisin and this defect shall not be supplyed with a Writ of inquiry because then the Defendant would be prevented of his Writ of attaint But if the Court ought to inquire of things whereof no attaint lyeth this being but of Office it may be supplyed by a Writ of inquiry as the foure points in a Quare impedit Viz. De plenitudine ex cujus praesentatione si tempus semestre transierit and the value of the Church per annum and in the case at Barr by the rule of the Court a new Venire facias was awarded The Case of the Maior and Burgesses of Lynn Regis touching misnaming of Corporations 11. Jacobi fol. 122. Communi Banco H. 8. in the 29. yeare of his Reigne did incorporate that Towne by the name of Majoris Burgensium burgi domini Regis de Lynn Regis and one made an Obligation to them by the name of Maior and Burgesses of Lynn Regis omitting these words Burgi Regis this is good because it is the same name in substance and doth not vary in materiall words and though it be not Idem nomen sillabis yet it is Re sensu for Burgesses that implyes it is a Burrough for Burroughs and Burgesses are conjugata and by Lynn Regis it appeares that it is Burgus suus i. Regis a fortiori because there is no other Corporation of the same name Apices juris non sunt jura there may be a difference betweene ancient Corporations and new for ancient Corporations may by usage have severall names and the Maior and Burgesses notwithstanding Non est factum pleaded had judgment to recover William Cluns Case 11. Jacobi fol. 127. Banco Regis A Lease for yeares if the Lessor should so long live rendring Rent at the foure Feasts or within thirteen weeks after after one of the Feasts the Lessor dyeth and before the thirteene weekes be past the Executor brings debt against the Lessee and the Defendant demurreth upon the Count and it was adjudged a good demurrer and that the action did not lye 1. Because the disjun ive is added for the benefit of the Lessee and the first day was but for voluntary payment but the legall time of payment was the end of the thirteene weeks before which when the Lessor dyeth the Lessee is discharged by act of God for that Quarter if Lessee before the day pay the Rent this is voluntary and not satisfactory but it is good to give seisin if payment be in the morning and the Lessor dyeth at noon this is voluntary and satisfactory against the heire but not against the King Payment the last instant of the day is satisfactory and after the day it is coercive and satisfactory 2. When the first day is past it is as if the Rent had been onely reserved the second day for the election is good 3. The rent is to he payd out of the profits of the Land Ergo in regard of time it shall not be apportioned and if the Lessor dye betwixt the first day and the last day his heire and not the Executor shall have the rent because it was not then due if a man lease for yeares rendring Rent at M. or within a moneth after with a condition of re-entry and the Lessee tenders it at the last instant of M. the Lessor shall not re-enter upon demand the last day of the moneth because the Lessee had liberty to pay it then and the difference was taken betwixt the sayd disjunctive Reservation and when the reservation is at a certaine Feast and a condition is added that if it be arrere by the space of a moneth after the Feast that then the Lessor c. there the Lessee for salvation of his Lease cannot tender it at the last instant of the Feast because he had no such liberty as in the other Case A Lease for yeares rendring Rent at M. or within twelve dayes after upon condition to re-enter if it be arreare by the space of twelve dayes after any of the sayd Feasts or dayes the Lessee shall have twenty foure dayes in safegard of his Lease after the Feast of M. and in the Case at Barr judgement given Quod quaerens nil capiat per billam James Osbornes Case 11. Jacobi fol. 130. Banco Regis IN an action upon the Case for that the Plaintiffe had bought of the Defendant diverse goods which he refused to deliver whereof one was unum fulchrum lecti Anglice a Feild Bedstead with a Testerne and Curtaines of Saye the Plaintiffe recovers and damages assessed intirely where none ought to be given for the Testerne c. for Fulchrum signifieth a Bedstead onely upon errour brought therefore judgement was affirmed for one thing onely is here put in issue for the other things are not alleadged Positive sed expositive and are nugation but when two things are put in issue or Obliqué inquired of by the Jury there it is not good and it shall not be intended that damages were given for that onely for which the action was brought but in an action upon the Case for words spoken at one time whereof some are actionable and some not there damages may be assessed intirely and shall be intended to be given for the words actionable onely 1. Because the Plaintiffe must declare as the words were 2. Because the words not actionable aggravate the damages otherwise if spoken at severall times but here damages shall be intended to be for that which is actionable onely and the rest as if never alleadged and in Writs or Pleas English words are not admitted by 36. E. 3. cap. 15. except they be parcell of a name as Jo. in the Hall 2. words which passe under the name of Latine are 1. Good Grammaticall Latine 2. Words significant in Law and not in Grammar 3. Incongruous Latine which doth not vitiate a Plea or Grant nor judiciall Writ 4. Words insensible having no countenance of Latine and are rejected but fained words as Velnetum Stapedia c. are good Read and Redmans Case 10. Jacobi fol. 134. THe Defendant in debt brought by two Executors pleads the death of him who was summoned and severed Resolved The Writ shall not abate if two purchase an originall reall action and one dyeth pending the Writ this shall abate in all as in case of joyntenants or parceners where one dyeth having issue or no issue because that shee may have a Writ for the whole and shall not recover a moity and one shall not recover upon a false reall Writ or unapt for his Case in respect hee may have an apt Writ although it happen after by act of God but if two purchase a judicial Writ and one is summoned and severed and dyes without issue the Writ shal not abate the same law where jointenants
nor body were lyable to Execution in Debt or damages recovered but Execution was to be done by Fieri facias or Levari facias of his Goods and Chattells and profits growing upon his Land but in debt brought against one as heire his Land was liable to Execution because the Plaintiffe had no other remedy for the goods belong to the Executors but the body goods and Lands of the K. Debtor or accomptant were ever liable to Execution but such Levari facias or Fieri facias ought to have beene sued within the yeare or otherwise he was chased to his Writ of Debt and now by Westm 2. c. 45. he may have a Scire facias and by the 18º Chapter of that Statute an Elegiâ— is given of the moity of the Land which was the first Act that subjected Land to Execution for Debt or Recognizance and by the Statute of 13. E. 1. de Mercatoribus 27. E. 3. c. 9. 23. H. 8. c. 6. In Statute Merchant and Statute Staple all the Lands of the Conusor at the day of acknowledgement shall be extended into whose hands soever they shall after come But in all Actions Vi armis where a Capias lyeth in Processe there after judgement a capias ad satisfaciendum lyeth the K. shall have a Capias pro fine and in such cases the Law the preserver of peace subjecteth the body to Imprisonment and by Marlebridge c. 23. West 2. c. 11. a Capias was given in an accompt the proces before being a distresse infinite and by 25. E. 3. c. 17. the same proces given in Debt as in account for before this Act the body was not liable to Execution for Debt as aforesaid 2. If Land of the heire be seised in Execution upon a recognizance of his auncestor he shall not have contribution against a purchasor of his Auncestor although he come in without consideration and although the Heire be not charged as Heire but partly as Terretenant but one purchasor shall have contribution against another purchasor and one Heire against another Heire because they are in Aequali jure and therefore the Writ here which issued against the Heires without naming the purchasor is good although he be charged as Terretenant The Heire shall have an Audita quaerela as well as the Conusor himselfe before Execution sued and a Supersedeas but a Stranger shall not If diverse acknowledge a recognizance the charge doth not survive and the Land of one shall not be put in Execution but all their Lands equally so if two are bound to warranty both or their Heires and the survivor and the Heire of the other shall be jointly vouched and the Land of both shall be rendered in value But if Baron and Feme and the Heires of the Feme are bound to warranty and the Feme dye the Land of the Baron may be solely taken in Execution because there are no Moities betweene Baron and Feme So that when Land shall be charged by any Lien the charge ought to be equall but in a Lien personall otherwise it is as if two are bound in an Obligation there the charge shall survive But a Purchasor Bona fide before any Action brought shall not be subject to any charge And three Errors were moved in the record 1. The Scire facias was Haerediterrarum c. which is improper for he is not Heire to the Land but to his auncestor 2. The Writ is Scire facias haeredi terrarum c. and the Retorne is Scire fecit W. H. militi haeredi praedicti M. and every Retorne must answer the point of the Writ 3. The judgement is generall against Sir W. H. where it ought to be speciall for otherwise his owne Land shall be liable where by the Law the Land onely which came to him by his Father ought to be charged and he is charged as Terrtenant as aforesaid but these poynts were not resolved by the Court. Nota the new Writ of Error after entry of the first was not brought Quod coram vobis residet because the Record is not removed out of the keeping of him who had the custody thereof before A Perfect Table of the Principall matters contained in every Case in this Booke WHAT words doe make a generall warranty and to whom the custody of evidences doth belong Page 1 Tenant for life commeth in as Vouchee in a common recovery it is a forfeiture Page 1 2 23. H. 8. Extends not to suppresse good uses the conveyance good and the bad use void any man may give Lands to Charitable uses Page 2 Touching the Exposition of the Kings grants and how the words Ex speciali gratia mero motu c. therein shall be construed Page 3 A common Recovery by Tenant in taile binds them in remainder and reversion and all Leases and charges granted by them ib. A feoffement by Tenant for life destroyeth a contingent remainder Page 4 Conusee of Tenant for life and him in remainder in taile renders a rent to Tenant for life it is good during his life ib. Tenant for life and he in remainder in taile infeoffe I. S. it is no discontinuance or forfeiture otherwise if without deede Page 5 Perpetuities are against Law but the Parliament or Law may make an estate as to one and good to another Page 5 6 Tenant in taile suffers a recovery and dyes before Execution it may be sued against the issuâ— and when a man may enter or claime the Law will not put things in him till entry or claime Page 7 A man may be in by discent and yet not have his â—…ge ib. A future power of revocation may be released Page 8 When any thing Executory is created by consent of all it may be voided Page 8 A feoffement by feoffees devesteth all future uses contingent Page 9 27. H. 8. Transferreth the possession to uses onely In esse ib. When a remainder ought to vest ib. 27. H. 8. Of uses shall not be taken by equity ib. A diversity when Tenant for life infeoffeth the reversioner mediate and when imediate there it is no forfeiture ib. A disseissor may make admittances but not voluntary grants Page 11 A difference when a confirmation is made to one that is in upon an expresse condition and when not there the estate is absolute ib. Every fee simple may be charged one way or other Page 12 A difference betweene Terminus annorum Tempus annorum Page 13 A Termor grants to B. so many yeares as shall be behind Tempore mortis suae it is void otherwise if for a certeine number of yeares ib. A lease cannot comence upon a double contingency Page 14 He who hath a power of revocation may doe it part at one time and part at another time till he hath revoked all Page 15 By the same conveyance the old uses may be revoked and new raised Page 16 Vpon what conveyances uses may be raised upon a generall consideration Page 16 17 An Action of
dyes after R. enters and dyes 18. Eliz. the executor of T. enters and assignes to J. S. the Successor of the Rector enters and Leases to B. who upon ouster brought an Ej. Firmae Resolved for the Plaintiffe and that the Lease to T. is voyd Argued for T. that his demise was good and a difference taken betwixt terminum annorum and tempus annorum as in this case of the demise to T. during so many yeares of the fourescore yeares c. not of the terme of fourescore yeares if a Lease be made for 21. yeares and after another Lease to commence from the end and expiration of the said terme of yeares and after the first Lease is surrendered the second terme shall commence presently not so if it were from the end of the said 21. yeares Resolved that the demises to R. and W. are voyd because the terme that El. had was sub modo if she should so long live which is determined by her death ergo no residue can remaine to R. and W. and so 't was adjudged between Greene and Edwards and the Court agreed the diversity betwixt the demises to R. and W. and the demise to T. 't was argued that the demise to T. was voyd 1. Because that the Lessor had not power for to contract for the land during the fourescore yeares for he had but a possibility to have the land againe during the fourescore yeares viz. if El. dyed which possibility cannot be demised but the Court delivered no opinion to this poynt 2. That the Lease to T. was voyd for the incertainty how many yeares should be behinde at the death of El. a termor grants to B. so many yeares as shall be behinde tempore mortis suae 't is voyd Locrofts case adjudged a man possessed of a terme of 90. yeares upon marriage of his Sonne demised the land to his Sonne for 70. yeares to commence after his death the Lessor dyes the lease was adjudged good because here he demised the land for 70. yeares which is certaine in which this differs from 7. E. 6. which diversity was agreed by the whole Court 3. That 't was voyd because he dyed in the life of El. so that the incertainty cannot be reduced to a certainty in his life time and so cannot rest in the executors a lease to one for so many yeares as his Executors shall name is voyd Note a diversity betwixt a covenant and agreement which is perfect and certaine though it takes effect in possession upon a future matter precedent and a covenant and agreement incertaine which is to be reduced to a certainty by matter ex post facto for in the first case the estate is bound presently in the other not which was agreed by the Court. 4. It was moved if T. had been in life the demise could not rest in him T. dyed before R. or W. and R. survived El. and by the expresse condition precedent R. could not take except El. dyed within the terme and W. could not take except R. dyed within the terme and this is as much as to say that if R. dyes before El. and T. cannot take except W. dye in the life of El. and R. survived El. So that both precedent contingencies faile viz. the death of R. and W. in the life of El. and though the demise to R. and W. are voyd yet the limitation precedent viz. the death of R. and W. in the life of El. to the demise to T. is not voyd for his interest may depend upon both the contingencies for so was the intention of the parties and this was affirmed by the whole Court by Popham Chiefe Justice The Lease to T. was voyd for another cause for it cannot commence upon a contingent which depends upon another contingent as here the demise to T. depends upon the contingent annexed to the demise made to W. and the demise to W. depends upon a contingency annexed to the demise to R. Digges Case 42. Eliz. fo 173. C. Digges was seised of the land in question and other lands in fee and by Indenture 6. Maij. 10. of the Queene covenanted in consideration of marriage betwixt him and his wife and for the advancement of T. their Sonne and for two hundred pounds paid to him before marriage that he and his heires would stand seised to the use of himselfe for life and after to T. in taile and after to the use of himselfe in taile with a proviso for the considerations aforesaid c. that it should be lawfull for him at any time during his life with consent of certaine persons by Indenture to be Inrolled in any of the Kings Courts to revoke any of the uses or estates and for to limit new uses 6. Maij. 12. of the Queene C. by consent c. by Indenture inrolled in the Chancery revoked the uses and estates aforesaid in part of the land and limitted the use of it to him and his heires after 20. Sept. 13. of the Queene by Indenture with consent c. inrolled in Banck M. 13. 14. of the Queene declared that for the payment of his debts that from the time of the inrollment of this Deed in Chancery all the uses in the first Indenture should be voyd and that the land should be to the use of himselfe in fee after C. 26. Octob. 14. of the Queene by Indenture covenanted for to levie a Fine of all his land part of which should be to the use of himselfe and his wife and his heires which Fine was levied the same terme after the Indenture dated 20. Sept. was inrolled in Chancery after C. enters and makes his claime and whether C. dyed seised in fee of the land mentioned in the Deed of Revocation of 20. Sept. was the question Adjudged 1. that C. D. might revoke part at one time part at another till he hath revoked all but he can revoke the same part but once except that he hath a new power c. to uses newly limitted for these words at any time amount to from time to time c. 2 That where the revocation is to be by Deed Indented to be inrolled this is as much as to say as by Deed Indented and inrolled and till inrollment no revocation shall be for otherwise perchance none shall be inrolled 3. That 't was no perfect revocation by the Indenture of 20. Sept. till the Deed were inrolled in the Chancery for though that the proviso of revocation in the first Indenture shall be satisfied with an inrollment in any of the Kings Courts yet for that the Indenture of revocation it selfe limits the revocation to take effect after the inrollment in Chancery it ought to be so 4. That the Fine levied before the inrollment in Chancery which was before the revocation hath extinct the power see Albaines case before adjudged and Popham Chiefe Justice said that without question such a power might be released for 't is not meerely collaterall but savours and tastes of
Lands to the use of himselfe and of the heires males of his body And for default thereof to the use of the Queene her heires and successors After the Tenant in tayle in possession suffereth a common recoverie with voucher And whether it was a barre to the issue in tayle was the question And it was adjudged that the issue in tayle was barred for good considerations are too general to raise any use without speciall averment that valuable or other good consideration was given Resolved that the Land should continue in his name and bloud is not a consideration to raise a use to the Queene though the limitation to her were for the preservation of the tayle against discontinuances and barres for there wants quid pro quo Resolved if he had said in consideration that the Queene is the head of the weale publique and hath the care and charge as well to preserve peace as for to repell hostility yet 't is no good consideration for Kings ex officio ought to governe their Subjects in tranquillity which is implyed in the word King And admit the consideration had been sufficient to raise a use to the Queene yet that would not preserve the estate tayle by force of the Act 34. H. 8. for no estate tayle is preserved by the said Act except the same estate tayle be of the creation or provision of the King and not where the estate tayle is given or created of a common person without provision of the King as may appeare by the preamble of the Act. Resolved that before the Statute of 34. H. 8. a common recovery barred a tayle created by the King Lanes Case 29. Eliz. fo 16. THe Queene seised of a Mannor in right of her Crowne by her Steward granted coppie-hold Lands parcell thereof to one by coppie according to the custome in Fee And after the Queene under the Exchequer Seale made a Lease of the same Lands to another for 21. yeares who granted the same Tearme to the coppie-holder and after the Queene reciting the Lease for yeares granted the reversion thereof in Fee the Tearme of 21. yeares expired The Patentee of the reversion entreth upon the coppie-holder and the entrie was adjudged good Resolved that the Lease under the Exchequer Seale was good by the usage there for the course of every Court is as a law of which the common law takes notice without alledging of it in pleading and every Court at Westminster is bound to take notice of the Customes of other Courts otherwise of Courts in the Countrey and the order of Exchequer is to make Leases by Committimus such land Resolved that the estate of the Coppie-holder was determined by the acceptance of the Lease for yeares And so it was adjudged against the Coppie-holder for notwithstanding that the Coppie-holders estate is taken to be but an estate at will yet the custome hath so established the estate of the Coppieholder that he is not removeable at the will of the Lord so long as he performes his customes and services and by the same reason the Lord cannot determine his interest by any act that he can doe And so it hath been adjudged many times And the aceptance of this Lease was the proper act of the Coppie-holder Resolved that by the severance of the free-hold from the Mannor the Coppiehold estate is not extinguished Baldwyns Case 31. Eliz. fo 23. THings which lye in grant and take their essence and effect by delivery of a Deed without other ceremony as rent or common out of Lands c. by the premisses of the Deed to one and his heires habendum to the grantee for yeares or life this habendum is repugnant to the premisses for the Fee passeth by the premises by the delivery of the Deed and therefore the habendum is voyd And when a man giveth Lands by Deed in Fee by the premisses habendum to the Lessee for life there the habendum is voyd and when livery is made the effect of the Deed shall be taken the most strongly against the Feoffor and the best for the Feoffee When a ceremony is requisite to the perfection of an estate in the premisses limitted and to the estate limitted in the habendum no ceremony is requisite but onely the delivery of the Deed although the habendum be of meaner estate then the premisses the habendum shall stand good and qualifie the generalitie of the premisses as a Fee granted in the premisses habendum for yeares it is for yeares and no inheritance Note There is a diversity betwixt the estate implied in the premisses and expressed as if A. grant a rent to B. this is an estate for life but if the habendum be for yeares this is good and qualifies the implication of the premisses Case of Bankrupts 31. Eliz fo 25. REsolved that a grant or assignement of goods by a Bankrupt after the Commission awarded which is matter of Record of which every one ought to take notice and though to a Creditor in satisfaction of his debt is voyd and that a sale of such goods by the Commissioners is good Which sale by the Statute of 13. of the Queene ought to be equall to every one rate and rate like according to the quantity c. And the Court resolved that the proviso in the said Statute concerning gifts bona fide doth not make any gift good but excludes them out of the penalty c. Commissioners may sell by Deed without Inrollment and though they have not seene the goods agreed that the distribution ought to be severall not joynt for the one debt may be greater then the other and in this case the Jury found that the Commissioners sold the goods to three Creditors joyntly but further that the Bankrupt was indebted to them in 273. pounds which shall be intended a joynt debt and so good Resolved that the act giveth benefit to such as will come and not to them that refuse vigilantibus non dormientibus jura subveniunt and every Creditor may take notice of the Commission being matter of Record Bettisworths Case 33. Eliz. in communi Banco fo 31. A Lease for yeares was made of one Messuage one Close called Raynolds and of divers other Lands in Dale and afterwards the Lessee being in the house the Lessor entred into the same Close and maketh a Feoffment of the Messuage and of the Lands therewith demised and maketh livery in the same Close and afterwards the Lessee reentreth into the said Close And if this was a good Feoffment and livery of seison of the said Close the Lessee nor any for him being in the said Close was the question And it was adjudged that the livery and seison was voyd as well for the Close as for the Messuage and the other Land therewith demised For the Possession of the Messuage which is his Castle is a good possession of the Lands therewith demised and it matters not whether livery be made on the Land within view of the
prescribe In modo decimandi but not In non decimando And the reason is because he is not except in speciall Cases capable of Tythes at the common Law before the Statute of 32. H. 8. Cap. 7. And therefore without speciall matter shewing it shall not be intended that he hath any Lawfull discharge and in favour of the Holy Church although it may have a lawfull comencement the Law will not suffer this prescription In non decimando to put it to the Tryall of lay men which sooner will straine their conscience for their private benefit then render to the Church the duty which belongeth to it A spirituall person that was capable of Tythes at the common Law in pernancy may prescribe to be discharged of Tythes generally or to have a portion of Tythes in the Land of another Before the Counsell of Lateran every man might give his tythes to any spirituall person that he would and if the Lands of the Bishop were discharged in his hands absolutely by prescription the demising it to a lay man cannot make it chargeable and the Bishop might reserve the greater Rent And in discharge of Tythes the Judges of our Law doe know that the Ecclesiasticall Judges will not allow any such allegation and therefore a Traverse Absque hoc quod judices placitum c. recusarunt is insufficient for the refusall is not materiall for the party might have a prohibition before any plea pleaded by him but in some Cases the refusall is traversable as t was adjudgd in Morris and Eatons Case where t was pleaded that the plaintiffe did not read the Articles c. and that the Ecclesiasticall Judge refused this Plea But the truth is a man may prescribe that hee and all others whose estate he hath in the mannor of D. time out of remembrance have paid to the parson of C. for the time being one certaine pension yearly for the maintenance of Divine service there in contentation of all Tythes renewing or happening within the same Mannor and prescribe in respect of the pension payd c. to have all the Tythes within c. and this was adjudgd good in Banco Regis Mich. 39. Et. 40. El. Rotulo 199. And that a lay-person may sue for the Tythes c. For at the beginning it shall be intended that the Lord was seised of the whole Mannor before any tenancy was derived out of the same and then by composition or other lawfull meanes the Lord had all the Tythes within the Mannor for the said Pension paying to the parson and the Law intends it was for Divine service Et pro bono Ecclesiae the reason of whch intendment is the continuall usage time out of remembrance And upon such speciall matter a man might have Tythes as appurtenant to a Mannor for he prescribes in a Que estate in the Mannor and therefore cannot have them in grosse but t was adjudged Winscombs Case in a prohibition that a man cannot prescribe generally in him and all those c. to have Tythes appurtenant to a Mannor without speciall matter shewne because Tythes are due Jure divino The Arch-Bishop of Canterburies Case 38. Of the Queene fo 46. A Religious house in M. was given to E. 6. by the Statute of 1. E. 6. a Rectory which was impropriated to it was granted to the Arch-Bishop of Canturbury who leased to the Defendant and Land within M. parcell of the said Colledge came to the Lord Cobham and from him to the Plaintiffe who shewes that the Master of the Colledge was seised of the said Land and Rectorie Simul semel as well at the making of 31. H 8. as of 1. E. 6. Resolved that this Colledge came to the King by 1. E. 6. onely for when 31. H. 8. speakes of dissolution renouncing relinquishing forfeiture giving up which are inferior meanes by which c. or by any other meanes cannot be intended of an act of Parliament which is the highest manner of conveyance that can be and the makers would have placed this in the beginning if they had intended it Bishops are not included within 13 of the Queene which begins with Colledges Deanes and Chapters c. Also 1. E. 6. Enacts that all Colledges by this Parliament shall be in actuall possession of the King which last act being of as high nature as the first it cannot come to the King by 31. H. 8. and it was never pleaded that of Colledges which came by 1. E. 6. the King was seised Vigore of the Statute of 31. H. 8. Resolved that neither the Act nor the meaning of 31. H. 8. extends to other Colledges then to those which came to the King by 31. H. 8. for it should be absurd that a Branch of the act of 31. H. 8. should extend to a future Act of which the makers of 31. without a spirit of prophecy could not have foreknowledge and the Act of 31. concludes in as large manner as the late Abbots c. which late as it hath been agreed extends onely to those to be dissolved by 31. Resolved admitting that the Colledge had come to the King by 31. H. 8. that such a generall allegation of unity of possession of the Rectory and the Land with it was not sufficient for no unity shall be sufficient but lawfull and perpetuall unity of possession time out of minde as 't was adjudged in Knightly and Spencers case and that the generall allegation of the plaintiffe that the Master of the Colledge at the making of 1. E. 6. held the Land discharged is not good without shewing how either by prescription composition or other lawfull meanes as 't is adjudged in the Bishop of Winchesters case otherwise if the Land had come by 31. then by force of the said branch of discharge such generall allegation had been good Resolved that no Ecclesiasticall house except religious was within the Statute of 31. H. 8. Resolved that though 1. E. 6. saith that the King shall have the lands of Colledges in as ample and large manner as the said Priests c. enjoyed the same yet these generall words doe not discharge the land of any tythes for they doe not issue out of the land for a Prior had tythes against his own Feoffment of the Mannor and 't is no good cause of prohibition to alledge unity of possession in a Colledge which came to the King by 1. E. 6. as 't is upon 31. H. 8. in Abbyes c. For the Statute of 1. E. 6. hath no such clause of discharge of payment of tythes as 31. hath and therefore such perpetuall unity will not serve upon 1. E. 6. So 't was likewise resolved betwixt Greene and Buffkin Sir Hugh Cholmleys case 39. of the Queene fo 50. TEnant in Taile the remainder in taile the remainder bargaines and sells the Land and all his estate to J. S. to have for the life of Tenant in taile the remainder to the Queene c. upon condition that the
House and Tenant at will of Land and Tenant by coppy of other Land within the Mannor of S. to Fermor leased all for life to I. S. and also seised of other Land there in Fee levyed a fine with Proclamations of all Messuages and Lands which comprehends all those leases and also his inheritance by covin to dissinherit his lessor and after the fine alwayes continues in possession and payes the severall rents to F. The lessee for life dyes the yeares expire S. claimes the inheritance Resolved that the Lord of the Mannor was not barred by the said fine 1. The makers of the Statute of 4. H. 7. never intended that a fine levyed by Tenant at will yeares or Coppy which pretend no Inheritance nor title to it but intend the disherison of the Lord c. should barre them of their inheritance and where the Statute sayth That Fines ought to be of greatest strength to avoyd strife and debate This Feoffement and fine by the Lessee shall be the cause of strife where none was before 2. The Statute doth not intend that those who of themselves without such fraud could not levy a fine to barre those which had the freehold and inheritance should be inabled to levy a fine by making of an estate to another by practise and fraud 3. If doubt be conceived upon an act of Parliament 't is to be construed by the reason of the common Law and that so abhorres fraud and covin that all acts as well judiciall as others and which of themselves are lawfull and just yet being mixt with fraud and deceit are tortious and illegall If a Woman intituled to have Dower which is favoured in Law by covin causes a stranger to disseise the terretenant to the intent to bring Dower against him and recovers accordingly 't is all voyd So if a Feme covert or Infant much favoured in Law of covin causes another to disseise the discontinuee and infeoffe them they are not remitted Sale in Market overt shall not binde if the Vendee had notice that the property was to another or if the Sale be by covin the Law hath ordained the common Bench as a Market overt for assurance of Land by fine for it sayth Finis finem litibus imponit yet covin shall avoyd them A Vacat was made in Banco of a recovery had by covin 33 34. of the Queene adjudged where Tenant for life levyed a fine with Proclamations and five yeares passed and he dyed that the Lessor shall have five yeares after his death for though the Statute saves the right which First shall grow and the right first accrued to the Lessor by the forfeiture yet because the Lessor by covin of the Lessee might be barred for he expected not to enter till after the death of the Lessee 't is no barre and namely when the Lessee hath Land of Inheritance in the same Towne as in this case so 't was agreed in the same case if the Feoffee of the Lessee for life hath Lands in the same Towne and levys a fine c. the Lessor shall have five yeares after the death of the Lessee for he knew not of what land the fine was levyed not being party to the Indenture or agreement c. So the Judges have construed the act against the Letter for Salvation of the Inheritance of him in reversion And 't was said if the Feoffee of a Lessee for yeares who made a feoffement by practise hath Land in the same Ville and levy a fine and the Lessee payes the rent to the Lessor it shall not binde and in the principall case the payment of the rent after the fine makes the fraud apparant for by this the Lessor was secure and not cause of any doubt of fraud But 't was resolved if the Bargainee or Feoffee of A. perceiving that C. hath right levies a fine or takes a fine of a Stranger to the intent to barre C. this fine levyed by consent shall binde for nothing was done in this that was not lawfull and the intent of the act was to avoyd strife So if A. pretending title disseise B. and to the intent to barre the disseissee levies a fine for the desseisor Venit tanquam in arena and 't is not possible but the disseisee had knowledge of it and if he doth not enter 't is his folly But in the case at barre every one will presume that the fine is levyed of his owne Land because that he might lawfully doe and though this conteines more acres then his owne Land this is usuall almost in all fines and the covin of the Lessee is the cause of non-claime of the Lessor and a man shall not take advantage of his owne covin and here the fraud is the more odious because of the great trust viz. Fealty To the objection that it should be mischievous to avoyd fines upon such nude averments 't was answered that it should be a greater mischiefe principally if fines levyed by such covin should binde And an averrment of fraud may be taken by the Statute of 27. of the Queene against a fine leavyed to secret uses by fraud for to deceive Purchasors So by the Statute of 13. of the Queene an averrment may be taken against a fine levyed upon an usurious contract Twynes Case 44. Eliz in Cam. Stel. fo 80. IN an Information per Cooke Atturney Generall against Twyne of Hampshire for contriving and publishing of a fraudulent Deed made of goods The case upon the Statute 13. Eliz. ca. 5. was thus Pierce was indebted unto Twyne in 400. l. and to one C. in 200. l. C. brought an action of Debt against Pierce and hanging the Writ Pierce being possessed of goods and Chattells to the value of 300. l. in secret made a deed of all his goods and Chattells to Twyne in satisfaction of his Debt yet Pierce continued in possession of the same some of them he sold and his Sheepe he marked with his owne marke after C. had judgement a Fier fac to the Sheriff by vertue thereof Bayliffs came to make execution of the goods and divers persons by the commandement of Twyne with force resisted them claiming them to be the goods of Twyne by vertue of the same deed and whether this deed was fraudulent or no was the Question and 't was resolved by Sir Thomas Egerton Keeper of the Great Seale of England and by the chiefe Justices Popham and Anderson and all the Court of Star-chamber that this deed was fraudulent and within the Statute of 13. El. And in this Case divers things were resolved First That this Deed had the markes of fraud it was generall and without exception of his apparell or any thing of necessitie for dolosus versatur in generalibus Secondly The Donor continueth in the possession Thirdly It was made in secret Et dona clandestina semper sunt suspiciosa Fourthly it was made hanging the Writ Fifthly there was trust betweene the parties for
the Donor was in possession and used them and fraud is alwayes apparelled with trust and trust is the cover of fraud Sixthly it was contained in the deed that it was honesty truely and bona fide Et clausulae inconsuetae semper juducunt suspitionem and it was resolved although it was a due debt to Twyne and a good consideration of the deed yet it was not within the proviso of the said Act of 13. Eliz. By which it is provided that the said Act doth not extend to any estate or interest in Lands c. goods and chattells made upon good consideration and Bona fide for although it be upon good and true consideration yet it is not Bona fide for no deed shall be deemed to be made Bona fide within the said proviso that is accompanied with any trust for the proviso saith upon good consideration and Bona fide so as good consideration doth not serve if it be not also Bona fide Therefore good Reader if any deed be made to thee in satisfaction of any debt by one that is indebted unto others also First let it be in publick manner before Neighbours Secondly valued-by good men to a true value Thirdly take them out of the possession of the Donor presently for continuance of possession in the Donor is a marke of trust There are two considerations Viz. Consideration of blood or nature and valuable consideration And if one that is indebted to five severall persons every one 20. l. in consideration of naturall affection doth give all his goods unto his Sonne or Cosen The intention of the Statute was that the consideration in this case should be valuable for equity requires that this deed that defeates others shall be made of as high a consideration as the things are that are so defeated thereby for it is to be presumed that the Father if he had not beene indebted unto others would not dispossesse himselfe of all his goods and subject himselfe to his Cradle And therefore it shall be intended that it was to defeate his Creditors And if a consideration of nature or blood should be a good consideration within this proviso the Statute would serve for little or nothing and no creditor should be sure of his Debt A feoffment made solely in consideration of nature or blood shall not take away the use raysed upon valuable consideration but it shall take away a use raised in consideration of nature for both considerations are in Equali jure and of the same nature Many men marvaile the reason that so many acts and Statutes are dayly made this Verse answereth Queritur ut crèscunt tot magna volumina legis In promptu causa crescit in orbe dolus And because fraud abounds in these dayes more then in former times it was resolved that all Statutes made against fraud shall be liberally expounded for to suppresse the fraud and according to this see severall resolutions in the Booke at large It was resolved that no purchasor may avoyd a precedent conveyance made by fraud but he that is a purchasor for money or other valuable consideration paid for consideration of blood is a good consideration but not such a consideration as is intended by the Statute 27. El. ca 4. for valuable consideration is onely good consideration by the same act Anderson chiefe Justice of the common banck said That a man who is of small capacity and not able to governe his Lands that discends unto him and being disposed to ryot and disorder by the mediation of his friends by open Act conveyes his Lands to them upon trust and confidence that he shall take the profits for his maintainance and that he shall have no power to wast or consume them And after he being seduced by deceitfull and covetous persons bargained for small summes his Lands of great value this bargaine although it were for money was holden to be out of this Statute for this act was made against all fraud and deceit and shall not ayd any purchasor that commeth not to the Lands for good considerations lawfully without fraud or deceit And in this case Twyne was convicted of fraud and he and all the others of a ryot Resolutions P. 44. of the Queene upon the Statutes of Fines fo 84. A. Tenant for life the remainder to B. in taile the remainder to B. and his heires B. levies a Fine hath issue and dyes before all the Proclamations passed the issue then beyond the Sea the Proclamations are made the issue retournes and upon the land claimes the remainder Resolved that the estate which passed was not determined by the death of tenant in taile so if tenant in taile of a rent Advowson Tythes Common c. grants by Deed and dyes for if the issue brings a Formedon for the rent he makes the grant voidable if he distraines or claimes it upon the land he by this determines his election And there is no diversity betwixt tenant in taile of a rent c. and tenant in taile of a reversion or a remainder upon an estate for life though in the first case the issue may have a Formedon presently after the death of tenant in taile Holden by Popham and divers other Justices that the Statute of 32. H. 8. hath inforced the case that the estate which passes by the Fine of tenant in taile shall not be determined by his death for by this 't is provided that Fines levied of any lands c. intailed immediatly after the Fine ingrossed and Proclamations made shall be a barre if the Fine cannot be a barre without continuance the Statute hath provided that the estate shall continue for it provides for all necessary incidents to the perfection and consummation of it Every Fine shall be intended with Proclamations for 't is most beneficiall for the conusee and all Fines being the generall assurance of land are levied according Resolved that though by the death of tenant in taile a right of the estate taile descends to the issue for that the tenant in taile dyed before all the Proclamations passed yet when they are passed without claime this right is barred by the Statute of 32. H. 8. Resolved by all the Judges and Barons but three that the issue in this case being heire and privy cannot by any claime save the right of the taile which is descended to him but that after the Proclamations he shall be barred for 't is provided that every Fine after the ingrossing of it and Proclamation had and made shall be a finall end and conclude as well privies as strangers And if no saving had been all strangers had been barred also and all the exceptions extend onely to Strangers but the issue is privy To the objection if by the equity of the Statutes the issue cannot claime c. to what purpose are the Proclamations with such solemnities Answered 32. H. 8. being an Act of explanaiton of 4. H. 7. as to the Fine by tenant in taile shall
offence but here his life was not in jeopardy So if a man be convicted by verdict or confession upon an insufficient indictment and no judgement given he may be againe indicted and arraigned for the law wants its end but if upon such insufficient indictment the felon hath judgement quod suspendatur per collum and so attainted which is the end of the Law he cannot be indicted againe c. till this judgement be reversed and upon such acquittall no conspiracy lyes Wrote and Wigges case 33. 34 of the Queene fo 45. THe defendant in an appeale of murder pleads that auter foits by inquisition taken before the Coronor of the Queenes houshold and B. one of the Coronors of M. he was indicted of Manslaughter which inquisition was certified to N. at the Goale delivery and the defendant upon this was arraigned confessed the felony and had his Clergy and it appeares the arraignement c. was after the purchase of the Writ of appeale and before the retourne Resolved that auter foits convict of man-slaughter and Clergy is a good barre in an appeale of murder as 't was adjudged in Holcrofts case In which it was likewise resolved that an inquisition taken before B. Coronor of the houshold c. and one of the Coronors of M. is well taken and within the Statute of articuli super chartas though the Statute requires two persons for the intent of the Act was performed and the mischiefe recited avoyded for though the Court removes yet he may proceed as Coronor of the County Resolved also upon the Statute of 3. H 7. ca ' 1. that this case was out of the Statute for if the defendant had his Clergy the appeale lyes not a fortiori when he is convicted onely and prayes his Clergy and the Act of the Court to be advised as to the allowance of Clergy so the case was shall not prejudice the party in case of life And 't was resolved that attaint of murder in the Act extends to a person convicted by confession or verdict as to a person attaint for he which is attainted is convicted and more And Agnes Gainsfords case adjudged that where 3. H. 7. is That the wife or heire of him so slaine shall have appeale that the heire of a woman c. shall have it against him who was acquitted of the same murder So resolved here an indictment and conviction or acquittance of manslaughter is a barre to an indictment of the same death for all is the same felony though the circumstance alter it Resolved that at common law the Coronor of the houshold had an exempt jurisdiction within the Verge and the Coronor of the County could not meddle as appeares by Articuli super Chartas and Swifts case adjudged where a Coronor of the County tooke an inquisition within the Verge 't was avoyded by plea the one cannot meddle within the power of the other But Justices of the Kings Bench of oyer and terminer c. may inquire heare and determine all murders c. within the Verge for their authority is generall through all the County so resolved in Holcrofts case Resolved that the indictment was insufficient for it doth not appeare that D where the stroke and death was was within the Verge and though in truth it were within yet it ought to be found by the oath of the indictors and cannot be supplied by nude averrement and it shall not be voyd coram non judice as to the Coronor of the houshold and good before the Coronor of the County for the Record is intire and taken intirely before them c. And the defendant in his plea hath averred that D. was within the Verge so the Coronor of the County could not take the indictment onely Resolved for that the indictment upon which he was convicted was insufficient that he may be newly indicted c. for his life never was in jeopardy Resolved that where the stroke was one day the death another the conclusion ought to be that he was murdered the day of his death otherwise 't is nought for 't was not murder before and 't was resolved that the finding of the stroke and the death were not sufficient of it selfe without conclusion and so T. W murdered the said R. W. Resolved that though the conviction were pending the appeale yet if it had been lawfull and before that the defendant was compelled to plead it had been a good barre Waits case 45. of the Queene fo 47. REsolved that where a woman brought seaven severall appeales against severall persons as principalls all ought to abate but the first for all the principalls and the accessories before the murder and after and before the Writ purchased against whom the plaintiffe will bring an appeale ought to be named in the Writ for if all make default except one yet the plaintiffe ought to count against all therefore he ought to bring the appeale against all And the defendant shall not have damages by the Statute of W. 2. for it is out of it because the Writ abated And the Statute of Magna Charta says appellum in the singular number Hill ' 30. of the Queene fo 48. AN indictment upon 8. H. 6. was quashed Quia fuit inquisitio capta ad sessionem pacis in Com' S. tent ' die Martis die Mercurij though the sessions may indure two or three dayes yet the Record ought to mention that they were holden at a day certaine as also for that the Statute was misrecited in a point materiall Note because misrecitall is fatall the sure way is to draw the indictment with conclusion contra formam statuti and with no recitall of the Act. Ognels case 29. of the Queene fo 48. AN Executor possessed of a grange consisting of divers parcels demises all the grange except H. to A. for 23. yeares and H. to F. for 23. yeares and grants all the residue of his terme in the intire grange to A. F. B. the revertion or grants a rent charge in fee out of all his lands c. called C. grange quondam in tenura B. the testator and now in tenura occupatione de A. The rent is areare the intire terme expires the reversionor makes a Feoffement the grantee dyes the Feoffee leases at will the Executors distraine for arrearages Resolved that at common law in some case debt lyes for arrearages of an Annuity in fee though it continues as if a Parson or Prebend resigne or dyes because the Parson is chargeable otherwise of a rent service charge or secke when the Freehold continues and for a rent there is a diversity when a rent in fee is extinct by the act of the party and when of the Law and when particular estates expire see the booke at large But 't was resolved in the case at barre that the arrerages due in the life of the grantee were lost at common Law Resolved that H. was not charged with the
in Banco Regis BY the Law it is not sufficient that the testator be of memory when he makes his Will to answer to ordinary and usuall questions but he ought to have a disposing memory so as he is able to make disposition of his Lands with understanding and reason And this is such a memory which is called safe and perfect memory otherwise a Prohibition lyeth at the common Law generally to stay all the proceedings in the spirituall Court as the probate of the Will c. untill this Suggestion be tryed at the common Law Reades Case 42. Eliz. banco regis fo 24. IN trespasse the Defendant makes Title for that A. W. was seised in fee and leased to him the Plaintiffe maketh title by discent and traverseth the Lease and good for it may be true that A. W. was seised and yet that a discent was cast to the Plaintiffe therefore the Lease is most materiall to be traversed Helyars Case 41. Eliz. banco regis fo 24. IN a Replevin the Defendant avoweth by grant of a terme by I. A. to S. from whom he claimeth the Plaintiffe pleads in barre that I. A. married T. who by a former deed granted the terme to the plaintiffe and traverseth the grant made to S. and vitious for he who claimeth by the first assignement shall not traverse the second but he who claimes by the second shall traverse the first But the first Feoffee shall traverse the last feoffment and the last feoffee shall not traverse the first feoffement because fee may be gained by disseisin after the first feoffement but a Lease for yeares caanot Ruddocks case 41. Eliz. banco regis fo 25. IN replevyn against six the Plaintiffe recovers the Defendants bring error the Plaintiffe pleads the release of one of them not good Where diverse are to recover a personall thing the release or default of one barres all but not where they are to discharge themselves of a personalty if they are compelled to joyne as in error and attaint otherwise in Outlary because not compellable to joyne for where they are to discharge themselves they have no joynt interest and although they shall have their damages againe it shall be intended that they paid them of their severall goods otherwise it may be doubted if Execution had beene made of goods which they have joyntly Sharps case 42. Eliz. fo 26. com banco IF a man make a feoffement in Fee or a Lease for life and say to the Feoffee being eyther on the Lands of within the view Enter into this Land and enjoy the same according to this deed c. this is a good livery but the delivery of the deede upon the Lands without any further ceremony or saying doth not amount to a livery Throughgoods Case 9. Jacob in the nineth Booke The actuall delivery of a Writing sealed to the party without any words is a good livery but not a livery of seisin although the Party be upon the ground If I deliver a deede unto the feoffee or Lessee of the Messuage mentioned in the deede in the name of seisin of the said Messuage and of all the Lands tenements c. in the same contained or other such like words without any ceremony or act done this is a good seisin The Case of Souldiers 43. Eliz. fo 27. THe Statutes of 7. H. 7. cap. 1. and 3. H. 8. cap. 5. against Souldiers who run away are acts perpetuall for the word King includeth all his succession and a gift to the King inureth to his Successors Vicount Mountagues Case 43. Eliz. in Scaccar fol. 27. VIcount M. with License of the K. suffers a recovery to B. and D. to uses with power of revocation and limitting of new and revokes and limits new uses the King shall have no fine for alienation 1. Resolved if the King doth license to alien to one and alienation is made to the use of another the King shall not have a fine for although that the King was not informed of his Tenant yet the use is executed by the Statute of 27. H. 8. which can doe no wrong and the proviso in the Statute that a fine shall be paid for executing of uses is to be intended of uses raised by Covenant or declared upon a Fine Feoffement c. when no License of alienation is obtained 2. Although that by revocation and new limittation of uses the tenant of the King be altered yet no fine is due because all ariseth out of the estate of B. and D. which was made with License Greenes Case 44. Eliz. banco regis fol. 29. TEnant for life of a Mannor to which an advowson is appendant the remainder in Fee to I. S. presenteth one who at the suite of the Tenant for life is deprived for not reading the Articles but no notice is given to the Patron the Queene by lapse presents the Defendant Tenant for life and his incumbent die he in the remainder presents the Plaintiffe Greene who recovereth 1. Resolv Although the Patron were party to the Suite and so had notice yet lapse shall not incurre without notice given by the ordinary as the Statute speakes and the notice ought to be speciall that he did not reade the Articles and therefore was deprived and generall notice is not sufficient 2. The Church is voyd Ipso facto by the Statute of 13. Eliz. without deprivation 3. If the Queene present Ratione Lapsus where shee is Patron this is voyd A fortiori when shee had no title at all 4. The Patron is not put to a Quare impedit by presenting him who read not the Articles nor by Collation but by Collation of him who had right to Collate the Patron is put out of possession 5. The Queene may be put out of possession of an advowson because it is transitory but shee cannot be put to a Writ of right of advowson for none can gaine the Inheritance from her by wrong Boothies Case 3. Jacobi com banco fol. 30. THe condition of an Obligation is to deliver an Obligation to the Obligee and to acknowledge satisfaction it must be done in convenient time for acts transitory to be done to the Obligee although a place be appointed shall be done in convenient time and acts of their nature locall ought to be performed in convenient time if concurrence of the Obligor and Obligee be not requisite Also here the delivery of the bond being transitory and the acknowleding satisfaction such an act as may be performed in the absence of the Obligee they ought to be done in convenient time without request but if the Act be locall and their concurrence necessary the Obligor had time during his Life if not hastened by request If the concurrence of the Obligor and a stranger be necessary it ought to be done in convenient time if concurrence of the Obligee and a stranger it ought to be hastened by request And alwaies if the Act to be done is not for the benefit of the Obligee
arrerages Page 79 A rent must be paid without an acquittance but not an annuity ib. The Heire is infeoffed by collusion within age the Lord accepteth services he looseth the wardship ib. The Law adjudgeth an escape although the party be in prison Page 80 Vntill the prisoners be delivered to the Sheriffe they are in the custody of the old but if the old dye the new must take notice Page 81 If a prisoner breake Gaole in such Case before the new be made this is no escape for they are in custody of Law ib. A Translation by the K. of a priory into a Deane and Chapter is good by 25. H. 8. Page 82 Notwithstanding a surrender of their Church the Corporation remaineth ib. The Deane and Chapter are to assist the Bishop in two things ib. The Bishop is Patron of all Prebends of common right ib. Originally all Bishopricks were donative by the King ib. If by their surrender to the King the Corporation should be dissolved three inconveniences would follow Page 83 A fine levyed by covin by a Copy-holder barreth not the Lord Page 84 All acts mixt with fraud are tortious and illegall ib. The Judges have construed the Act against the Letter for Salvation of the inheritance of the reversioner Page 85 An averrment of fraud may be taken by 27. Eliz. and so upon 13. Eliz. an averrement may be against a fine upon an usurious contract Page 86 Six Markes of fraud within 13. Eliz. c. 5. Page 87 The Deed must be upon good consideration and Bona fide ib. Directions to make a Deed by one that is indebted unto others Page 87 88 A consideration of nature is not good within this Statute Page 88 Statutes against fraud shall be liberally expounded to suppresse it ib. None but a purchasor for money without fraud shall avoid a faudulent Deed Page 89 The issue in taile is barred after Proclamations made although he claime Page 90 Quod partes finis nihil habuerunt where it is a good plea Page 92 To what purposes the proclamations serve Page 93 Though the issue be beyond the Seas yet he is bound because privy c. ib. THE FOURTH BOOKE VVHere a right to a freehold cannot be barred by acceptance of a collaterall satisfaction Page 95 Wherefore those Branches touching jointures in 27. H. 8. were made Page 96 No estate a good jointure except it take effect presently after his death ib. An estate for life upon condition is a good jointure ib. Where a jointure may be waived ib. Where a dâ—vise to the Wife for life or in taile c. is a good jointure Page 97 Seisin of fealty is a seisin of all other services Page 98 No distresse excessive for homage fealty escuage c. ib. Seisin of a superior service is seisin of all inferior services incident ib. Doing of homage is a seisin of all services inferior and superior ib. Seisin of one annuall service is not seisin of another Page 98 99 Seisin in Law sufficient to make avowry within 32. H. 8. Page 99 To what services that act doth not extend ib. Writs of Escheate Cessavit and rescons are not within that act Page 100 If a distresse be and nothing arreare the tenant may rescue but he shall not have Trespasse Vi armis against the Lord ib. See the Booke at large where an incroachment is avoidable ib. If a man hath beene out of possession sixty yeares if his entry be not taken away he may enter and bring any possessory Action ib. Actions of Slaunder The Judges must take notice of all statutes which touch the King Page 101 Articles of the good behaviour exhibited against I. S. are no cause for him to bring an Action upon the Case Page 102 A Bill in the Starre-Chamber for Causes examinable there no cause of action otherwise if not examinable there Page 103 No action lyeth upon an appeale of Murder returnable in the Common Bench Page 103 To say to one that he is perjured an Action will lye Page 104 Sermo relatus ad personam intelligi debet de conditione personae Page 105 Two things requisite to have an Action for Slaunder Page 107 Where an Action will lye for Slaundering a mans Title Page 108 109 Verba accipienda sunt in mitiori sensu Page 110 Three things incidents to a Defamation in the Ecclesiasticall Court Page 111 Copy-hold Cases When custome hath created such inheritances their discent shall be according to the rules of Law but not to have collaterall qualities Page 112 The heire before admittance may take the profits and surrender ib. Admittance of a Copy-holder for life inureth to him in remainder but not to prejudice the Lord of his fine Page 114 The heire before admittance may have Trespas ib. One who hath no title maketh voluntary grants they bind not but otherwise it is of admittances upon surrenders or discents Page 116 Quid operatur by severance of the inheritance of the Copy-hold from the Mannor Page 116 117 A release to a disseisor of Copy-hold where it is good Page 118 A Copy-hold is within 32. H. 8. of maintainance and Champerty ib. Copy-holder for a yeare may maintaine an Ejectione firmae ib. Every Mannor comprehends in effect two severall Courts Page 119 The Lord may admit out of the Mannor but not the Steward ib. The Lord cannot exact unreasonable fines Page 121 If the Tenant deny to pay his fine it is a forfeiture Page 122 Sentence against the Wife shall bind the Husband De facto Page 123 A man may surrender to the use of his Wife Page 124 The Lord may retaine a Steward by Parol Page 125 What things are grantable by Copy Page 126 What acts are destructions of Copyholds Page 127 How a custome ought by a Copy-hold to be alleadged Page 128 What things are incident to the Office of Sheriffe Page 129 130 Touching Exposition of the Q grant and where a Non obstante aideth Page 131 What things may he appendant to others Page 132 The Originanall of Common appendant by the Common Law Page 133 That it is apportionable Page 134 See many excellent Cases of Appeales and Indictments and much good matter thereupon from Folio 135. to 143. Touching arrerages of rents and the remedy given for them by 32. H. 8. c. 37. Page 144 The Roll amended according to the speciall verdict Page 146 VVhere a condition or rent shall be suspended ib. The Jury must find matters of estoppell Page 147 An infant admitted by Gardian and no record made of it yet good Page 148 Debt upon a puisne judgement must be paid before Statutes c. ib. Marriage is a countermand of a VVill Page 149 Touching a Lease for life or yeares of Land whereon Trees are growing and what property the Lessee hath in them and of Timber Trees blowne downe with the wind and wast committed in VVindowes VVainscot c. Page 150 151 Touching a recognizance acknowledged before the Chamberlaine of London and of
Execution thereupon by Elegit Page 152 153 How long the Conisee shall hold the Land Page 153 Concerning Deeds inrolled and levying of fines of Land the Common Law preferred before the Statute Law the excellency and antiquity of Records Page 154 155 Rent must be demanded at the place limitted although out of the Land before advantage of a condition taken Page 155 Vpon a Lease by the Q it must be paid at the Exchequer ib. By vertue of a Fieri facias the Sheriffe may sell a Lease but the beginning and ending must be expressed Page 156 If the first benefice be of 8. l. per annum upon acceptance of another with cure the Patron must take notice upon 21. H. 8. c. 13. Page 157 Touching Corporations and their Elections and Ordinances ib. The effect of institution and also of induction and of Letters of dispensation Page 158 Touching Covenants and warranties in Law and when broken Page 159 Touching Strangers occupying Lands without notice of the Devisee Page 160 Goods delivered to one to keep or carry and they are purloyned Page 160 161 Estovers appendant to a house by grant or prescription and when destroyed and of suite to the Lords Milne Page 161 162 Touching reteining of Chaplaines by a Countesse within 21. H. 8. c. 13. Page 162 Of Contracts executory and Actions of the case upon Assumpsit and wager of Law Page 163 An ample and exact explanation of 1. E. 6. c. 14. of Chanteries Page 164 165 Touching reteining Chaplaines and dispensations Page 166 167 That the Lessee shall not alien without License and where a condition may be apportioned Page 167 Concerning Exchanges and what the word Excambium imports and of the warranty thereunto annexed and the nature of it Page 168 Arts done by a man Non compos mentis some binde himselfe and some others and how many sorts of them Page 169 THE FIFTH BOOKE A Lease to begin from henceforth and delivered after when it beginneth Page 171 What power the Bishop hath to make Leases by the private act of 1. Eliz. ib. A Lease of a Faire rendring rent is void by 1. Eliz. Page 172 What rent shall be said to be the true and ancient rent ib. Joint words taken severally in six respects Page 173 A Lease to A. during the life of B. and C. how long it lasteth ib. Therein is a difference betweene a limittation and condition Page 174 An Administrator hath judgement and dyes who shall sue execution thereupon ib. By what act an estate at will is determined ib. By exception of Wood the soile is excepted ib. Acceptance of a new Lease is a surrender of the first Page 175 If the Lessee of Lands may dig for Coles ib. A Lease to A. for his life and the life of B. and C. when it endeth ib. No Action of wast for permissive wast Page 176 Where there is a confidence an Action of the Case for negligence ib. Leases made to the Q. by Colledges Deanes c. are restrained by 13. Eliz Page 177 When a Covenant extends to a thing In esse of the demise it shall bind the Assignee otherwise when to a thing not in essence Page 178 If the thing to be done be meerly collaterall the assignee shall not be charged Page 178 Concessi or demisi import a Covenant Page 179 If any Covenantor breake the Covenant all the Covenantees must joine otherwise when severall interests passe Page 180 A diversity betweene a power and an authority ib. The Covenantee himselfe cannot devise the assurance ib. The Counsell must be given to the Purchasor Page 181 An Indenture void without a manuall act of indenting ib. Where a Condition or Covenant once broken may be salved after Page 181 A condition of two parts and both possible and one becometh impossible Page 182 An estate to be made at the costs of the Covenantee the Covenantor must doe the first act i. give notice what assurance he will have ib. The Seale of one Covenantor is broken it is void against him onely Page 182 183 A. is bound to give such a release as by the Judge of c A. must procure him Page 183 Terror of Suite is a damification upon a Counterbond ib. An action for reparations lyeth against the assignee Page 184 What interest is assignable over Page 185 Where an Indenture precedent to declare uses is only directory Page 186 Where an averment may be against a matter in writing Page 187 Cases of Executors Where a release by an Infant Executor is a barre Page 188 An Executor may release before probate but not have an action ib. A judgement for Debt shall be paid before a Statute Page 188 189 Administration during minority ceaseth at 17. yeares of age Page 189 Such an administration may not sell goods but for necessity ib. Where an administration is void and where voidable ib. Where an Executor of his owne wrong may retaine goods Page 190 An action against an Executor or by him where it must be in the Debet and where in the Detinet tantum ib. What retorne the Sheriffe must make upon a Devastavit Page 191 Administrator brings Debt barred because Executor ib. What act maketh a man Executor of his owne wrong ib. Constructions of the Statutes of Jeofails c. Amendment of Records Fines c. In Trespasse the nature of the Fishes must be shewed Page 192 Where a Debt against Baron Feme must be in the Debet Page 193 An ejectment of Lands out of A. B. and C. tried by a visne out of A. onely it is insufficient ib. 23. Jurors are returned and 12. appeare and find for the Plaintiffe it is good ib. Variance betweene the Writ and Count is not aided by 18. Eliz. ib. Five parts of a fine and where the Conisor may assigne Error Page 194 A common recovery not like other assurances more favoured Page 195 A pannell is annexed to the Venire facias without returne not good ib. A difference where a man is misnamed in the Venire and where in the pannell Page 196 Issue joined upon a point not materiall aided by the Statute ib. An amendment good after the transcript removed Page 196 197 Error in the Originall matter of Substance Page 197 A writ of Covenant upon a fine dated after the returne is there amendable but not in other actions ib. A common recovery taken by intendment Page 197 198 Cases of Pardons When a Writ shall be said to be depending Page 198 VVhere an Amerciament is pardoned the Statutes of Jeofailes extend to VVALES Page 199 Debts to the Q are excepted but not Originally due to the Subject ib. VVhere the K. may pardon corporall punishment Page 200 The K. may pardon the Suite in the Court Christian but not costs ib. An Office of intitling but not of Instruction may be under the great Seale Page 201 VVhere the rents are severall and where joint and where the Patentee of part may take advantage of a condition Page 202 A
Heires Males of his Body c. And if A. or his issue c. shall attempt c. to alien c. by which any estate shall be barred c. that after such attempt and before any act executed the use and Estate of him so attempting c. shall cease onely as to him so attempting in the same degree as if he were naturally dead and not otherwise and that then it shall be immediately to such persons to whom it should come by the intent of the Indenture c. C. dyes A. suffers a recovery B. enters c. adjudged he could not for this proviso is repugnant impossible and against Law for the death of Tenant in taile is not a cesser of the Estate taile but death without issue Males and by this reason the issue should have it in the life of the Father c. And for every discent c. Death naturall or civill is requisite and t is not materiall though Tenant in taile had no issue at the time of the breach for t was repugnant at the beginning and the estate taile doth not commence by the having of issue and a gift in taile upon condition that if the Donee dyes his estate shall cease is a void condition Also the proviso is void for the incertainty as a gift to two Et haeredibus is voide though a Warranty be made to them and their Heirs in Jermine Arscotts Case the like proviso was adjudg'd voide for be the proviso a condition or a limitation the intire estate ought to be defeated by it and an Estate in Land cannot cease for part and continue for the residue nor cease for one person and continue for another nor cease for a time and revive after The like judgement was betwixt Chomly and Humble but the Parliament or Law may make an estate voide as to one and good to another as Tenant in speciall taile levies a fine the issue is barred not the wife so a release by the demandant to the vouchee is good not by a stranger so if an Executor surrender a tearme to one respect t is extinct to another t is assetts c. And uses are within the Statute De donis though it speakes onely of Lands and Tenements and there shall be a Possessio fratris c. of them for they are guided by the Rules of the common Law Richill in the time of R. 2. and Thirning in the time of H. 4. Justices intended for to make a perpetuity but could not Shelleyes Case 23. Eliz Fol. 94. EDward Shelley leased for yeares and after Covenanted to suffer a recovery which should be to the use of himselfe and after to the use of A. for 24. yeares and after to the Heires Males of the body of the said E S. and the Heires Males of the said Heires Males c. E. S. dyes 9 of Octob. the first day of the Terme in the morning betwixt five and six a clock the recovery passes the same day and an Habere facias seisinam awarded the recovery was executed the 19 of Octob. 4 Decemb. the Wife of the Eldest Son before dead of E. S. was delivered of a Son named Henry Richard the second Son of E. S. entered and made a Lease c. Henry entred upon the Lessee who brought an Eject firmae and Judgement was given for the Defendant and t was resolved that if Tenant in taile suffer a common recovery and dye before execution that execution may be sued against the issue for the intended recompence in favour of the common assurance resolved that the revertion in judgement of Law is not in the recoveror before execution sued for the judgement is Quod recuperet seisinam which cannot be executed till entry or claime as 't is of a Common c. granted upon condition for when a man may enter or claime the Law will not put things in him till entry or claime The third and great point resolved was that the Uncle is in as by discent though he shall not have his age nor be in ward 1. Because the recovery being the Originall act had its Essence in the life of E. S. to which the execution hath retrospect 2. Because the use might have vested in E. S. if he were in life 3. Neither the recoverors by their entry nor the Sheriffe by making execution may make an Inheritance to whom they please 4. Because the Uncle claimed the use by the recovery and Indenture and by words of limitation not purchase Albanies Case 28. Eliz Fo. 111. A By Indenture infeoffed B. of two Acres to the use of A. for life the remainder in taile to C. the remainder in fee to D. with a proviso if E. dye without issue that A. at any time by indenture sealed c. in the presence of foure c. may alter c. any use c. A. of the one acre infeoffes F. and for the other Acre A. by Indenture renounces surrenders releases c. to B. C. and D. the said power condition authority c. E. dyes without issue A. by Indenture in presence of foure revokes the first uses and limits new resolved that by the feoffement the power to revoke as to limit new uses was extinct and by Wray chiefe Justice the future power may be released as a condition subsequent though the performance or breach cannot be done without an act precedent but as to this poynt the Court did not give their resolution but the whole Court agreed that if the power had beene present as t is usuall this might be extinct to any one who hath a free hold in possession reversion or remainder 'T was moved if the future power could not be released whether it might be defeated by the words of defeasance both being executory and 't was said that in all cases when any thing executory is created by a deed that the same thing by consent of all parties to the creation by their deed may be nullified as a warranty recognizance rents charge annuities covenant c. And of the same opinion was Wray chiefe Justice and the whole Court and judgement given according Chudleighs Case Or the Case of perpetuities Fo. 120. SIr Richard Chudleigh was seised in fee of the Mannor of D. and had issue foure Sonnes A. B. C. D. and 26º Aprill the third and fourth of Phillip and Mary infeoffed E. F c. in fee to the use of himselfe and his Heires of the body of G. then Wife of H. and after to the use of the performance of his Will for ten yeares immediately after his death and after to the use of the feoffes and their Heires during the life of A. the Eldest Sonne the remainder to the use of the first issue Male of the body of A. and the Heires of the body of the first issue Male and so to the second issue Male the remainder to the use of B. the second Sonne and the Heires of his body the remainder to C.
c. the remainder to D. c the remainder to the right Heires of himselfe Sir Richard Chudley died without issue of the body of G. 1º of the Queene the feoffees C. living by deed infeoffed A. in fee without consideration he having notice of the first uses A. hath issue a Sonne named S. and after I. and after infeoffes Sir I. C. with warranty S. died without issue c. I. enters c. agreed by all the Justices and Barons but two that the feoffement made by the feoffees which had an Estate for life devests all the estates and the future contingent uses also and though A. had notice of the first use 't is not materiall because the ancient uses were devested and this new estate cannot be Subject to the ancient uses which rose out of the ancient estate agreed that 27 H. 8. doth not extend to destroy uses otherwise then by execution and transferring the possession to them agreed by the most that 27. H. 8. doth not transferre the possession to any use but onely to uses In esse which doth appeare by the Statute for there ought to be a person In esse seised and also a use In esse for if there be onely a possibility of a use there cannot be an execution of the possession to the use the Statute sayes That the estate shall be out of the feoffees and that the estate shall be in such person which hath the use So that no Estate of the feoffees shall be transferred in abeyance and upon this t was concluded that contingent uses or in possibility may be destroyed or discontinued before that they come In esse as they might at common Law so the remainders limitted in use here shall follow the rule and reason of Estates executed in possession by the common law and if the estate for life here had beene determined by death before the birth of the Sonne the remainder in future should be voide though the Sonne were borne after for a remainder ought to vest during the particular estate or Eo instanti when it ends And t was holden by all that if the contingent use here had come In esse without alteration of the estate of the Land it should be executed by the Statute of 27. H. 8. Also it was holden by most that 27. H. 8. against the expresse Letter of it shall not be taken by equity because by preservation of contingent uses mischeives intended to be prevented shall be preserved and greater introduced Popham chiefe Justice said that by 27. H. 8. some uses in esse are executed presently uses in futuro agreeable to Law are executed if they come In esse in due time but uses not agreeable to Law are extirpated for the intention of the Statute was to restore the ancient common Law Five other points adjudged besides the principall matter 1. When Tenant for life the remainder being in taile to A. infeoffes the reversioner t is a forfeiture for it devests the estate in remainder so if there be Tenant in taile the remainder in taile ctc. and the diversity is when the privity and estate is sole and immediate when not 2. If A. hath issue B. and C. infants and a lease is made to A. for life the remainder to B. in taile the remainder to C. in taile A is diseised and releases to the disseisor with warranty and dyes this discends upon B. within age B. dyes the warranty discends upon C. within age C. comes to full age and three yeares after enters his entry is lawfull for he might enter in the life of his Ancestor and if he doth not enter yet the warranty shall not binde him otherwise it is when he is put to action and Caveat that after his full age he doth not suffer a discent before entry 3. If a disseisor c. who hath a defeasible title in a Mannor grant a voluntary estate by Coppy being forfeited or escheated to him this grant shall not binde him that hath right after a recontinuance of the Mannor but admittances which a disseisor c. makes to Coppy holds are good for they are in a manner judiciall acts and shall binde the disseisee 4. That an estate made to one and his Heires during the life of B. is but an Estate for life upon which a remainder may depend 5. That an Estate made to A. and his Heires of the body of Jane S. is an Estate taile against the opinion of Ascugh 20. H. 6. 36. Anne Maiowes Case 35. Eliz. fo 146. FEeoffor and Feoffee upon condition by Deed joyne in a grant of a rent charge to C. the condition is broken the Feeoffor reenters the grantee distraines the Feoffor brings a Replevin Resolved that the rent remaines to the objection that 't is the grant of the Feoffee and the confirmation onely of the Feoffor and a confirmation cannot make a conditionall estate absolute nor alter the quality of it except it inlarge it as if a Feoffor confirme the estate of the Feoffee upon condition before the condition broken it doth not make it absolute Answered and agreed by the Court that there is a diversity when the estate of him to whom the confirmation is made is upon an expresse condition there the confirmation doth not toll the condition but if such feoffee infeoffe another without condition there a confirmation to the second feoffee extincts the condition Feoffee upon condition grants a rent in fee the feoffor confirmes it to him and his heires and after enters for condition broken yet the rent remaines and by Littleton every fee simple land may be charged one way or other Concurrentibus his c. and the case 11. H. 7. is all one with our case and here 't is the stronger because the grant and confirmation were by the same Deed so that the rent was never subject to any condition The Rector of Chedingtons case 40. Eliz. fo 153. 2. E. 6. the Rector of Ched demised the Rectory to El Elderker for fourescore yeares if she should live so long and if she dyed within the said terme or aliened that then her estate should cease and then by the same Indenture demises the premises to R. E. for so many yeares as shall remaine unexpired after the death or alienation of El. for the residue of the terme of fourescore yeares if he shall live so long without alienation c. And if he dye or alien within the said terme then his estate shall cease and then by the same Indenture he grants the premisses to W. for so many yeares of the said terme of fourescore yeares as remaine if he lives without alienation and if W. dyes or aliens within the said terme that his estate shall cease and then he grants c. during so many of the fourescore yeares which shall be unexpired to T. his executors and assignes which Indenture and estate was confirmed by the Patron and Ordinary the Rector dyes T. dyes W. dyes and 17. Eliz. Ellerker
the estate of the land which all the Court agreed 5. If the Fine had not been the auncient uses were determined without entry or claime because he himselfe was tenant for life of the land and the act of revocation is as strong as claime and this point was agreed in the Earle of Salops case 6. By the same conveyance that the auncient uses are revoked others may be raised without claime or other act and the Law adjudges a priority of operation Whites case adjudged according Maildmayes Case 24. Eliz. fo 175. A Use cannot be raised by any covenant proviso or bargaine c. upon a generall consideration and therefore if a man by Deed indented and inrolled c. for divers good causes considerations bargaine and sell his Land to another and his heires nihil operatur inde for no use shall be raised upon such generall considerations for it doth not appeare to the Court that the bargain or had quid pro quo But the bargainee may averre that money or other valuable consideration was paid or given if in truth it was so and the bargaine and sale is good It was resolved that when uses are raised by covenant in the consideration of advancement of any of his bloud and after in the same Indenture a Proviso that the Covenantor may make Leases for yeares c. that the Covenantor in this case may not make Leases for yeares to his sonne daughter or any of his bloud much lesse to any other person because that the power to make Leases for yeares was voyd when the Indenture was sealed and delivered For the covenant upon this generall consideration will not raise any use and no particular averment in this case may be taken but if the uses be limitted upon a recoverie fine or feoffment there needeth not any consideration to raise any of the uses Resolved that the words other consideration cannot comprise any consideration expressed in the Indenture before the proviso for other ought to be in quality nature and person different and advancement of his daughter is a consideration mentioned before Anthonie Mildmay brought an action of the case against Roger Standish for saying that Lands were lawfully assured to John Talbott for 1600. yeares and that he was lawfully possessed of the same tearme whereas in truth the said Lands were not lawfully assured for the said tearme nor the said John Talbott was lawfully possessed of the interest thereof And so for slaundering of the title by speaking of the words Mildmay brought an action Standish justified the words and shewed the title of Talbott and it was adjudged that the action was maintaineable and good although that Talbott had a limitation of the Land by will which was the reason that Standish being a man not learned in the Lawes affirmed the words yet because he tooke upon him the notice of the Law and medled in a matter that did not concerne him Judgement was given for Mildmay Et ignorantia juris non excusat THE SECOND BOOK Of Sir Edward Cooke Lord c. Mansers Case 26. Eliz. fo 3. IF a man be unlearned and cannot read and be bound to doe an act of sealing assurances writings c. upon tender c. he is not bound to seale and deliver any such writing if there be not some ready which may read the Deed if the party so require it and in the same language and tongue that he understandeth Ignorantia duplex est facti juris and ignorance in reading or of the language Quae sunt ignorantia facti may excuse but ignorantia juris non excusat and if it be read unto him he may not have a reasonable time to shew it to his Councell learned to see whether it agree with his bond or covenant for he must seale it at his perill or if the same be truly expounded to him it is good enough But if it be read amisse or declared contrary to what it is and thereby the illiterated man is deceived he may very well plead non est factum For the Law saith it is not his Deed and so it was adjudged in Throughgoods case being the third case in this second Booke Resolved that if a man be bound that a stranger shall doe an act in such case he takes upon him that he shall doe it at his perill for he which is bound takes more upon him for a stranger then for himselfe in many cases If a man plead that he hath kept a man indemnified c. he ought to shew how otherwise where he pleads in the negative Non fuit damnificatus Goddards Case 26. El. fo 4. AN obligation dated the fourth of Aprill Anno 24. El. and delivered as the Deed of the partie 30. July An. 23. El. adjudged the Deed of the partie for though the plaintiffe in pleading cannot alledge the delivery before the Date because he is estopped yet a Jury which are sworne to speake the truth shall not be estopped The Date of a Deed is not the substance of the Deed. For if it want date or have an impossible Date as the 30. February the Deed is good For there are three things of the essence or substance of a Deed viz. writing in paper or parchment sealing and delivery And if it have these three although it want In Cujus rei testimonium Sigillum suum apposuit c. yet the Deed is good and when a Deed is delivered it takes effect by the delivery not by the date Throughgoods Case 26. Eliz. fo 9. REsolved that 't is not materiall whether the party to whom the Deed is made or another by his procurement or a Stranger of his owne head reades the writing in other words then the writing is so that he that seales it be a lay man and without covin in him deceived and the pleading of it is alwayes generall without shewing by whom 't was read and A. shall voyde an obligation to B. by pleading that he did it â—y menace of C. Resolved that such a lay-man is not bound to deliver a Deed if no body be present that can reade it in such language as he can understand and if it be read in other words it shall not binde him and 't is at the perill of him to whom 't is made that the very effect and purport of it be declared if it be required but if he doe not request it he shall be bound by it though it be made contrary to his meaning Resolved that it shall not binde if the effect be declared in other words then it is as if the Deed had been read in other words Two Justices a Feoffement of two acres is read as of one it shall not binde see Mansers case before Wisemans Case 27. Eliz. fo 15. TEnant in tayle of certaine Lands the remainder to another in Fee he in remainder by Deed indented and inrolled in consideration of bloud c. as for other good considerations doth covenant to stand seized of the said
house or not When a man maketh a feoffment of a Messuage cum pertinentii he departeth with nothing thereby but that which is parcell of the house as buildings curtelage and gardens If a Lessee for yeares makes a Lease for a certaine Tearme of any parcell and so divides the possession thereof from the residue if of this parcell so severed Liverie be made the possession in the residue by the first lessee is not any impediment to the liverie of this parcell otherwise if a Lessee make a Lease at will of any parcell there his possession of the residue shall hinder the liverie made in this parcell and with this judgement agreed all the other Justices and Serjeants of Serjeants Inne in Fleete-streete Doddingtons Case 27. Eliz. fo 32. KIng H. 8. Ex certa scientia c. granted to A. for 300 l. Omnia illa Messuagia in tenura Johannis Browne Scituate in Well nuper prioratini de W. Spectant ' And in truth the Lands lie in D. in this Case 't was resolved that the grant was voide by the Common Law as well in case of a common person as the King because the grant is generall and is restrained to one certaine Village and the grantee shall not have any Lands out of that Village to which the generallity of the grant is referred for this Pronoune Illa hath his necessary reference as well to the Towne as well as to the Tenure of I. B. for if eyther the one or the other faile the grant is voide And so it was adjudged Per tot cur de Banco Regis Resolved also that this grant was not holpen by the Statute of 34. H. 8. For no grants are holpen by this Statute nor by any act of confirmation but such as comprehend convenient certainty 1. Quia generale nihil certum implicat And here no Tenements are mentioned to be granted because the generall grant being intire was referred to a falsity and therefore it cannot be said that the Towne was misnamed and great inconvenience would follow if c. for the King should be deceived but the Statute helpes when there is a convenient certainty as a Mannor Farme Land knowne by a certaine name or containing so many Acres c. So that it may appeare what things the King intended to passe Note t is the most sure way for the Pattentee to expresse as much as he can in certainty before the generall words SIR Rowland Heywards Case In cur Wardor 37. Eliz. fo 35. SIr Rowland Heyward seised of a Mannor in Demeans and rents in consideration of money doth demise grant Bargaine and sell to A. the said Mannours Lands Tenements and the reversions and remainders with all Rents reserved upon any demise to have and to hold to A. and his asignes after the death of the Lessor for seaventeene yeares rendring a rose the Indenture was inrolled and after the Lessor by Indenture doth Covenant with B. to stand seised of the premises to the use of himselfe and the Heires of his body and no attornment was made to A. The Question was What passed to A and it was resolved by Popham and Anderson chiefe Justices and the Court that A. may have his election eyther to take the same by demise at the common Law or by bargaine and Sale Per Statutum 27. H. 8. without attornment for it was one entire demise and bargaine of one Mannor without any fraction or division thereof and this election remaineth to A. and his Executors and assignes for here is not Election to claime one of two severall things by one Title but to claime one thing by one of the two severall Titles for where the things are severall nothing passeth before Election and the Election must precede but when one thing passeth the Election of the Title may be subsequent For if I. have 3 Horses and doe give to you one of them the property comenceth by Election and must be made in the life of the Parties The Bi of Sarum had a great wood of 1000 Acres called Brerewood and infeoffed another of one House and seaventeene Acres parcell of the Wood and made Liverie in the Wood House nothing passeth of the Wood before Election and the Heire of the feoffee may not make Election Bullocks Case 10. Eliz. Dyer In case where election is given of two several things he which is the primer Agent and that ought to doe the first act shall have alwayes the Election As if a man grant a Rent of twenty Shillings or a Robe the Grantor shall have the Election for he is the primer Agent eyther by paying the one or delivering the other If a man make a Lease rendring twenty shillings or a Robe the Lessee shall have the Election Causa qua supra but if I give unto you one of my Horses in my Stable there you shall have the Election for you are the Primer Agent by taking or seising one of them and so of twenty trees in my Wood. Note for Elections these diversities 1. When nothing passes to the grantee c. before Election there it ought to be made in the life of the Parties but when the Estate passes presently c. the Grantee c his Heire or Executor may elect 2. When the same thing passes and the Donee c. hath Election in what manner c. he will take it the Donee Heire or Executor may elect 3. When Election is given to severall persons the first shall stand 4. When Election is given of two severall things he which ought to doe the first Act shall have Election 5. When the thing granted is annuall and to have continuance there the Election remaines to the Grantor in case where the Law gives him Election as well after the day as before otherwise t is when the thing is to be performed Vnica vice 6. The feoffee c. by his act may forfeit his Election as if A. infeoffe B. of two Acres Habendum the one for life the other in Taile and hee before Election makes a feoffement of both here the feoffor shall enter in which he pleases for the wrong of the feoffee 7. Though the Lessees here enter generally yet they may Elect after so if one be Executor and Devisee of a terme and enters generally c. and after the Lessees in the principall case made Election for to take by bargaine and Sale and had the Rents The Bishop of Winchesters Case 38. El. fo 43. In a prohibition REsolved that at common Law none had capacity to take Tythes but spirituall persons or Persona mixta as the King and regularly no meere Lay man was capable of them except in speciall Cases for he could not sue for them in Court Christian and regularly a lay man had no remedy for them till 32 H. 8. A Lay-Man may be discharged of Tythes at the common Law by grant or by composition but not by prescription for it is commonly said in our Law-Books that a lay man may
fine be reversed by nonage of the wife all the estate shall be restored to the wife presently for all the estate passed from her by the fine and so it was adjudged Banco regis in Worseleys case Resolved that though the variance of the limitation be onely in one estate and they agree in all the other yet all is voyd But if two joynt tenants or two having severall estates vary 't is good for every of their parts and shall be directed by their interests but if the variance had been in limitation of part of the land and they had agreed in the use it should be voyd for that part and good for the residue Note That though the husband might dispose of the land during coverture yet for the cause aforesaid his declaration was voyd If A. tenant for life and B. in reversion or remainder both levie a fine together generally the use shall be to A. for life the reversion or remainder to B. in fee for either of them grants that which lawfully he may grant and either of them shall have the use which the Law vesteth in them according to the estate which they would convey over Winningtons case 40. of the Queene fo 59. W. Infeoffed B. upon condition to regive to the Feoffor for life the remainder to J. Sonne and heire of the Feoffor the Feoffor enters and takes the profits without agreement or contradiction of the Feoffee and leases to D for 21. yeares and yet continues possession the Feoffee acknowledges a Statute to J. the Feoffor makes a feoffement to the use of himselfe for life the remainder to his second Sonne in taile c. and dyes the Feoffee enters and infeoffes the Sonne and heire upon which the second Sonne enters c. Resolved that though the intention was that the Feoffee should make an estate to him for his life when he hath entered without agreement of the Feoffee 't is a disseisin and the rather because as owner of the land he tooke upon him to make a Lease for yeares Resolved that by the Lease by Indenture he hath dispensed with the condition during the terme Resolved that when the Feoffor disseises the Feoffee upon condition and the Feoffee acknowledges a Statute c. This is no disability to cause the Feoffor to enter for the right of the Feoffee is not subject to the Statute but when the Feoffee in possession takes a wife grants a rent or acknowledges a Statute the land is presently subject c. And though upon entry he may be disabled yet till then he is not because the wife may dye or the Statute be released and then he may enter and performe the condition and the Feoffor by his feoffement hath extinct the condition so that the Feoffee may enter and when he hath infeoffed the eldest Sonne he hath done well Westcots Case in Communi Banco 41. El. fo 60. IF a man make an estate to three and to the heires of one of them one of them in this case hath Fee simple and yet the joynt estate continues for it is all one estate created at one time and therefore the Fee simple cannot drowne the joynture which taketh effect with creation of the remainder in fee but when three joyntenants are for life and after one of them purchase the Fee or else the Fee discends to him there the Fee simple doth drowne the estate for life for the estate for life was in esse before Note by this resolution if tenant for life grant his estate to him in the reversion and a stranger 't is a surrender for the moity and the benefit of survivor not regarded so the doubt in 7. H. 6. well resolved Resolved upon view of three presidents that judgement should be given for the plaintiffe upon a demise made by husband and wife without alledging it to be by Deed. Tookers Case 43. Eliz. fo 66. IOhn Arundell seised of Lands in Fee maketh a Lease thereof to A. and B. for their lives and after grants the reversion to C. for his life to which grant A. doth atturne being joynt tenant with B. and after A. by his Deed doth surrender to C. all his estate title and interest c. and then dyeth C. entereth claiming to hold in common with B. and whether his entree was lawfull or no was the question and judgement was given that it was lawfull for the attornement of the one tenant for life shall vest the entire reversion in the grantee because the estate of the joynt Lessees is entire and every joynt tenant is seised per my pro tout ' and by consequence the reversion which is dependent and expectant upon this estate is entire also and the atturnement of the one joyntenant is the atturnement of both Attournement is a lawfull act if one joyntenant assigne Dower 't is good Also the attornement passes no interest from him that attournes but perfects the grant of another And if one joyntenant give seisure of rent that shall binde the other but in a quid juris clamat or quem redditum reddit or per quae servitia one joyntenant shall not be permitted to attourne without his companion for doing of prejudice to his companion By Popham one joynt-tenant may prejudice another in the personalty but not in the realty if one take all the profits or release a personall action the other hath no remedy because of the privity and trust betweene them and the folly imputed to him to joyne with such a companion Note if a tenant have notice of the grant by a stranger and doe give his assent thereunto it is a good atturnement although it be in the absence of the grantee but disagreement ought to be to the party himselfe or doe atturne for any part it is good for the whole for the intent of an atturnement is but onely an assent to perfect the grant of another and he which atturnes cannot apportion divide or alter the grant Lord Cromwells case 40. of the Queene fo 70. BLunt bargained c. the Mannor of Alexton to which the Advowson of A. was appendant by Indenture to have as after in the same Indenture is mentioned and B. covenanted to suffer a common Recovery to the use of Andrewes and his heires rendring 42. pounds per annum to B. and his heires with a nomine poenae And further 't was covenanted and agreed as well for the assurance of the Mannor to A. as of the rent to B. that B. should levie a Fine c. to A. and his heires and A. by the same Fine should render a rent of 42. pounds per annum c Provided alwayes that A. by Deed should give the Advowson c. to B. during his life and if it did not become voyd during his life one turne to his executors c. And further 't was covenanted and agreed that all assurances afterwards to be made should be to the use of this Indenture c. after a recovery was
had and after B. and A. levie a Fine to Perkins and he renders a rent of 42. pounds to B. and the Mannor with the Advowson to A. A. dyes without granting the Advowson and B. did not request it B. enters for condition broken and by Indenture inrolled bargained c. to the Lord Cromwell by which he entered and upon the reentry of the Sonne and heire of A. brought an Assise In this Case is shewed when this word proviso or provided maketh a condition and when not which upon long debate was judged by all the Justices of England It was adjudged that the Law hath not appointed any place in a deed or instrument proper or particular to a condition but in what place it pleaseth the parties and this word proviso or provided is as apt a word to make an estate conditionall as Sub conditione or any other word of condition but notwithstanding when this word proviso maketh an Estate or interest conditionall three things are to be observed First that the proviso doe not depend upon another sentence nor participate thereof but stand originally of it selfe Secondly that the proviso be the word of the bargainor Feoffor Donor Lessor c. Thirdly that it be compulsory to enforce the barganee Feoffee Donee Lessee c. to doe an act and where these concurre it was resolved that it was a condition in what place soever it be placed for Cujus est dare ejus est disponere And although words of Covenant be contained in the same clause of the proviso it selfe yet the proviso being in judgement of Law a word of condition it shall not loose his force and so it hath beene judged In Symson et Titterell 26. El. Serjeant Bendlowes demysed to Titterell certaine Lands in Essex for forty yeares provided alwayes and it is Covenanted and agreed betweene the said Parties That the Lessee c. should not alien and this was adjudged a condition by force of the proviso and a Covenant also by force of th' other words Also it was adjudged in Banco Regis 36. El. betweene the Earle of Pembrooke Plaintiffe and Sir Henry Barkely Defendant The Earle granted the Office of the Lievtenant-ship of the West part of the Forrest of Fronslewood in Com. Somerset to Sir Mawrice Barkely Father of the said Sir Henry in Taile provided alwayes and the said Sir Mawrice Barkeley for him c. doth Covenant to and with the said Earle that neyther he the said Earle nor any of his Heires Males c. shall cut downe any Wood growing upon any part of the premises And it was resolved by all the Justices of England upon argument before them at Serjants Inne that although the proviso was coupled with the expresse Covenant of the Grantee and every condition ought to be created by the words of the Grantor Donor Feoffor c. yet in judgement of Law this word provided was a condition created by the Grantor although all the residue of the sentence be the words of the Grantee for proviso being an apt word of a condition the same sentence containeth the words of the Grantor purporting a condition and the words of the Grantee comprehending a Covenant This word proviso when it dependeth upon another sentence or hath reference to another part of the deed doth not make a condition but a qualification or limitation of the sentence or part of the deed to which it is referred As in a Lease without impeachment of wast provided that he shall not doe voluntary wast grant of a Rent charge provided that the Grantee shall not charge the Grantor c. Resolved that B. shall have the Rent notwithstanding that before the Reddendum the use in Fee was vested by the recovery in A. and notwithstanding 't was objected that the Rent ought to be limitted out of the Estate of the Recoverors for 27 H. 8. hath an expresse clause Where diverse be seised to the intent that one shall have an annuall Rent the same person be adjudged in possession and seisin of the same rent as if a sufficient grant had beene made and so here the intent being that B. should have the Rent construction shall be made Vt res magis valeat quam pereat Resolved that the fine leavyed by B. and A. to P. hath not extinct the condition and this was the great doubt of the Case 1. Because by the generall Covenant 't is declared that all assurances afterwards to be made should be to the uses and intents in the same Indenture and to no other and the Indenture intends that the condition should be saved as the Lord releases all his right in the Land saving his Rent Putnams Case 4. 5. P. and M. Dyer Feoffement of a Mannor rendring Rent and a reentry and a Covenant by any Indenture to Leavy a fine which should be to the uses and intents of the first Indenture and to no other use which was leavyed according with the usuall words of release of all his right yet resolved that neither the Rent nor the condition was destroyed and 23. of the Queene Tussers Case a rent reserved by a fine before was not destroyed by a common recovery and generall entry into warranty and 34. of the Queene in Clever and Childs Case adjudged according to Putnams Case for the same reason t was adjudged in this Case 14. of the Queene for the Advouson of Alexton for Modus et conventio vincunt legem and Covenant and agreement of the parties hath power First to raise a use Secondly to declare uses upon fines recoveries c. Thirdly for to preserve Rents and conditions and for to direct recoveries fines c. and the saving may be contained in another deed delivered at the same time And these common assurances as fines and recoveries are to be construed according to the intent and common usage without prying into them with Eagles eyes Also here the Bargaine c. recovery c fine c. though made at severall times yet all by mutuall agreement are but one assurance and tend for to perfect a bargaine c. and therefore the one shall not destroy the other resolved that except in speciall cases a fine Sur grant render cannot be averred by word to another use then is in the fine feoffement c. yet in some cases it may be ruled in part by averrement by word when the originall contract is by deed but a man may by word averre another consideration which stands with the consideration expressed but not against it Reade the Booke at large for this purpose Resolved that by the death of A. the condition was broken for when the Feoffee or Grantee is to doe an act to the Feoffor c. upon condition and no time is limitted regularly the Feoffee may doe it at any time during his life If the Feoffor or Grantor doe not hasten the same by request and upon request and day or time limitted the Feoffee or Grantee ought to doe it
the common Case which is many times agreed on in our Books a lease is made to one for life the remainder to the right Heires of I. S. this remainder is good upon contingency viz. If the Lessee for life survive I. S. otherwise not and by the same reason if a man have issue a Son of 9 yeares of age maketh a Lease untill the Sonne shall accomplish his full age the remainder to another in Fee as in this case nothing vesteth in him in remainder presently Quod fuit concessum per tot Cur. vide Chudleyes Case Libr. 10. Answered that in Wills the intent of the devisor is to be considered for when the devisor in his life by apt words by good advise might have made his Will sufficient in Law there though he makes it in disordered manner and in barbarous and unapt words the Law will order those words which want order according to his intent as in Wellock and Hamonds Case Coppy-holder in Borough English devises to his Eldest Son paying 40. shillings within c. to every of his other Sonnes c. surrenders according and dyes the Eldest Son did not pay within c. the youngest enters and adjudged lawfull and resolved First That he had a fee for the recompence and consideration though it be not to the value makes a fee in construction of a will Secondly That though paying in a Will makes a condition yet here 't is a limittation otherwise it would discend upon the Eldest Son who is to take advantage of it and then it should be at his pleasure for to pay or not and therefore it shall be as if he had devised to the Eldest Quousque he failes in payment So here the devisor hath computed what profits of his Land during the nonage of his Son will suffice for payment of his Debts c. and that he did not intend that the tearme of the Executors should end by death of H. for so his Debts should remaine unsatisfied and his Will unperformed and therefore the Law sayth it shall be construed that the Executors shall have till H. should have come to 21 yeares of age and therefore the Executors have a terme for twelve yeares which the Court agreed And though when and then are Adverbes of time yet when they referre to a thing which must of necessity happen they make no contingency and t is certaine that H. did accomplish or might have accomplished the age of 21 yeares and here if the tearme should be ended by death the remainder should be voyd and the Court agreed that in Wilis and grants the remainder ought to vest in possession Eo instanti the particular estate ends but here the Terme did not end c. Walkers Case 29. Eliz. in Banco regis WAlker Leased certaine Lands to Harries for yeares the Lessee assigned all his interest to another Walker brought an action of Debt against Harries for Rent arreare after the assignement and if the action be maintainable or not was the Question and upon great deliberation and conference with others it was adjudged per Wray chiefe Justice Sir Thomas Gawdy and Tot. Cur. that the Action did lye and was maintainable in the argument whereof many things were resolved If a man Lease a stock of Cattle or other goods rendering a Rent at severall dayes he shall not have an Action of Debt untill all the dayes be expired Likewise if a man make an obligation or other contract to pay severall summes of money at severall dayes he shall not have an action of Debt untill all the dayes be expired for these are personall contracts and not reall but in case of a Lease for yeares which is a reall contract the Lessor shall have an action of Debt after every day By the Court Debt doth well lye in this case against the Lessee there are three privities 1. In respect of the estate onely 2. Of contract onely 3. Of estate and contract together The first betweene the Grantee of the reversion or Lord by escheate and the Lessee so betwixt the Lessor and the Assignee of the Lessee the second betwixt the Lessor and the Lessee as here for notwithstanding the assignement and the privity of estate removed by the act of the Lessee himselfe the privity of contract remaines First because the Lessee himselfe cannot prevent the Lessor of his remedy but when the Lessor grants his reversion against his owne grant he shall not have remedy because the Rent is incident to the reversion Secondly the Lessee might grant it to a poore man not able to manure the Land or for malice will suffer it to lye fresh so the Lessor shall be without remedy if Debt should not lye against the first Lessee Thirdly there is privity of contract and estate together as betwixt the Lessor and the Lessee If a Tenant in Dower or Tenant by curtesy assigne over their estate yet the privity of the action remaineth betweene the Heire and them and he shall have an action of wast against them for wast done after the assignement but if the Heire grant over his reversion then the privity of the action is destroyed and the Grantee may not have any Action of wast but onely against the assignee for betweene them is a privity of Estate and betweene the Grantee and the Tenant in Dower c is no privity at all If a lessor enter for condition broken or if a lessee surrender to the lessor yet the lessor may have an action of Debt for arrerages due before the condition broken or the surrender and this is in respect of the contract betweene the lessor and the lessee 36. of the Queene Vngle and Glovers Case adjudged the lessee assignes his interest the lessor bargaines c. the reversion the bargainee shall not have Debt against the lessee but agreed that the lessor himselfe might 37. Eliz. in Banco regis Int. Overton et Siddall Two points were resolved First if an Executor of a Lessee for yeares assigne over his interest that an Action of Debt doth not lye against him for Rent due after the Assignement If a Lessee for yeares assigne over his interest and dye the Executor shall not be charged for rent due after his death for by the death of the Lessee the personall privity of the contract as to the Action of Debt in both these cases were determined 40. of the Queene Brome and Hores Case A. Lessee of three acres rendring Rent assignes one to B. the Lessor suffers a recovery to the use of C. in fee who brought Debt against the first Lessee adjudged it lyes for the Lessee assigned his interest but for part for the privity of Estate remaines because he assigned but part 41. of the Queene Marrow and Turpins Case in Debt against two administrators upon a Lease made to their Testator the Defendants plead that before the tren areare the one of them had assigned all his interest to I. S. of which the Plaintiffe had notice
and accepted the Rent by the hands of the assignee due after the assignement and before that this rent now demanded was due the Plaintiffe demurred and adjudged against him because the privity of the contract was determined by the death of the Lessee and therefore after the assignement made by the administrator Debt doth not lye for rent due after the assignement Also it was said that if a Lessee assigne over his terme the Lessor may charge the Lessee or his Assignee at his Election And if the Lessor accept the rent of the assignee he hath determined his Election and shall not have an action after against the Lessee for rent due after the assignement no more then a Lord having received the Rent of the Feoffee shall avow upon the Feoffor afterwards Butler and Bakers Case 33. and 34. of the Queene fo 25. W. B. and his Wife seised of the mannor of H. by an Estate made to them during coverture for the joynture of the Wife in taile holden In Capite and W. seised of Land in F. both which amount to a third part of all his Lands and also of the Mannor of T. In capite which amounts to two parts W. devises T. to his Wife upon condition that shee should take no former joynture and dyed the Wife in pays refused H. the question was whither the Will were good for the intire Mannor of T. or but for part by the Statutes of 32. and 34. H 8. Resolved that at common Law if a gift be to a Husband and Wife in taile c. the Husband dyes the Wife cannot devest the free hold by any verball Waiver or disagreement in pays as if she say before entry that shee will never agree to it shee may enter when shee pleases so if shee saith reciting her estate that shee assents c. to the said estate yet afterwards shee may waive it in a Court of record but if shee enters into the Land and takes the profits though shee saith nothing t is a good agreement in Law for the Law more respects acts without words then words without acts and a freehold shall not be so easily devested to the intent that the Tenant to the Praecipe should be the better knowne But as an act in Pays may amount to an agreement so it may amount to a disagreement but this is alwayes of one and the same thing if the Tenant by deed infeoffe the Lord and a stranger and maketh livery to the Lord if the Lord dissagree ' by word t is worth nothing and if he enters generally and takes the profits t is an agreement but if he distraines for his Seigniory t is a dissagreement yet in some cases a claime by words shall direct the entry to be an agreement to one Estate and a disagreement to another c. See the Booke at large but a man may devest the property of goods and Chattells or an obligation sealed to him by disagreement In pays Resolved that though the estate was created by way of use which use before the Statute might have beene waived in Pays yet now the Statute hath so incorporated the use and possession of the Land that it cannot be waived In pays more then an Estate created by feoffment c. yet t was here resolved That the refusall In pays to have H. and the entry and agreement to T. was a good agreement to the one and disagreement to the other And this by 27. H. 8. ca ' 10. If any Woman hath Lands c. assured after Marriage c. after the death of the Husband She may refuse her joynture and take her Dower c. And upon these words the Court agreed That a Woman might refuse her Joynture In pays and be indowed by consent or Writ The great doubt was if by this refusall of H. by operation of Law it doth discend immediatly to the Heire after the death of the Devisor for to satisfie the Statute which saith The King shall take for his third part such Mannors c. as shall discend c. immediatly after the death of the devisor Resolved First Upon the reason of the common Law the refusall shall not have such relation that the devise shall be good for the intire Mannor of T. for a relation is a fiction of Law to make a nullity of a thing Ab initio to one certaine intent which in truth had being and that Propter necessitatem ut res magis valeat quam pereat 11. E. 3. The Law will make a nullity Ab initio that the Wife shall have dower but not as to a collaterall intent as if the reversion were granted of the Lands which the Husband and Wife held in taile and the Wife for to have Dower dissagrees yet the grant is good for shee may be endowed though the grant stand and Relatio est fictio juris et intenta ad unum And though relations aide acts in Law as Dower yet t will never aide the acts of the party to avoyd them by relation as a man infeoffes an Infant or Feme covert and after gives c. or devises the Land or any thing out of it the Infant or Husband disagrees this shall have relation betwixt the parties that the Infant or Husband shall not be charged in damages but shall not make the voyd devise c. good A Lease for life the remainder to the King the King grants his remainder the deed is in-rolled it shall have relation to make this passe Ab initio to the King not to make the voyd pattent good And as relations extend onely to the same thing and the same intent so also to the same parties not for to prejudice a Stranger feoffement of a Mannor and a long time after livery the Tenants attourne this shall have relation to make the services passe Ab initio or otherwise they could never passe nor be parcell of the Mannor but not for to charge the Tenants for the arrerages in the meane time So here the refusall shall relate as to the mannor of H. onely not to T. and to the wife onely but not to prejudice the Heire upon whom part of the Mannor of T. discended to make the devise good for the third part which was voide at the time of the death For Omne testamentum morte consummatum est and as it was at the death so it shall remaine Resolved that after the Statute of 27. H. 8. and before the Statute of 32 H. 8. the Mannor of T. was not devisable and therefore when the devisor hath not pursued the Authority which the Acts of 32. 34. H. 8. gives t was voide for part The first branch he hath not pursued which saith That all c. having a sole estate in fee simple in any Mannors c. shall have full and free liberty c. to dispose by his last will in writing as much of c. as shall amount to the cleere yearely value of two parts in three to
not be taken by any strained construction against the letter for then 't is requisite to have a new Act of explanation upon the explanation sic in infinitum By 4. H. 7. every one hath liberty to pursue a Fine according to the said Act viz. with proclamations c. or without as at common Law and therefore the Act of 32. H. 8. of necessitie prescribes that Proclamations shall be made according to 4. H. 7. to distinguish it from a Fine at common Law and not to inable the issue for to make claime for this should be against the expresse intent of the Act in the preamble and purview Also it should be very inconvenient if when such Fine is levied for a valuable consideration advancement of his issues or payment of his debts and he dyes before Proclamations that all should be avoyded by the claime of the heire when the conusee could not have better assurance by Recovery for that he was not tenant to the Praecipe See the Booke at large in what case the issue in taile may averre seisin in a Stranger quod partes Finis nihil habuerunt what not Objected 1. 't is provided by the Statute de donis c. that as to the issue Finis ipso jure sit nullus 2. That the Statute of 27. E. 1. extends not to the heires in taile as 8. H. 4. is for the issue is not bound by any Record which inures by way of Estoppell 3. 27. E. 1. speakes De finibus ritè levatis and when there wants seisin which is the essence of a Fine 't is not ritè levatus 46. E. 3. that 't is a good plea. Answered the Statute de donis c. was made 13. E. 1. and the Statute of Fines 27. in which the issue is not excepted therefore he is bound and according there is a good opinion 8. H. 4. To the second though the issue was not barred of his right before 4. H. 7. yet he was estopped to say Quod partes Finis nihil habuerunt To the third Finis ritè levatus is intended in due forme of Law which it may be though it be onely by way of conclusion for the same Act ousts the parties from such averment and 46. E. 3. is to be intended of a collaterall auncestor from whom the heire doth not claime the Land and then the averment is good In Conisbies case 't was resolved upon a Fine levied to tenant in taile in remainder by tenant for life and a grant and render of a rent that this was not within the Statutes of 4. H. 7. or 32. H. 8. for the Fine was not of the land it selfe which was intailed but of the rent newly created out of the land And in the Lord Zouches case 't was resolved that 4. H. 7. and 32. H. 8. doe extend to Fines levied by conclusion and shall binde though partes c. nihil habuerunt as if tenant in taile makes a Feoffement or be disseised and levies a Fine for the Statute says All Fines of any lands c. in any wise intailed to the person so levying or to any of his auncestors and in 4. H. 7. the exception Quod partes c. is saved to all persons not party nor privy to the said Fine and the issue in taile is privy for he claimes as heire by discent and if such Fine shall barre where the tenant in taile had nothing though the issue enter after the death of the auncestor before all the Proclamations passe a fortiori here when tenant in taile at the time was seised of an estate though 't were in reversion See Archers case where a Fine shall barre the issue where the Father had onely a possibility at the time of the Fine levied Purslowes case 32. of the Queene tenant in taile levies a Fine Term. P. T. and dyed in August next his daughter being heire to the taile and her husband brought a Formedon and pending the plea the Proclamations passed and 't was agreed by the Court that the tenant shall plead the Fine and the Proclamations which passed pending the Writ shall barre the demandant yet there the issue did all that might be done for the conveyance is the Fine and the Proclamations are but a short repetition of the Fine out of this foure things are to be observed 1. Though after the Fine a right descends to the issue yet after Proclamations the right is barred 2. Though he pursues a Formedon yet after Proclamations he is barred ergo in the principall case he is barred notwithstanding his entry or claime in pays 3. When tenant in taile levies a Fine and dyes before Proclamations the issue is not within any of the savings for then the bringing of a Formedon should avoyd the barre 4. The Proclamations serve for no purpose but to distinguish the Fine from a Fine at the common Law Trin. 4. of the Queene Bendlowes tenant in taile disseised the discontinuee and levied a Fine and tooke an estate by render the discontinuee enters and claimes before all the proclamations passed and avoides the estate after the proclamations passe tenant in taile continues his possession and dyes within the yeare after the entry and claime Resolved that the issue was not Remitted but barred by 32. H. 8. Though the estate was avoyded before all the Proclamations passed Resolved though the issue be beyond the Sea yet because he is privy c. he is bound as if he he were within age covert or non compos Which was agreed by all the Justices Ergo the claime of the issue is not materiall and if Infancy c. should avoyde the Fine no man should be assured of land conveyed THE FOURTH BOOK Vernons Case 14. 15. of the Queene fo 1. IN Dower the tenant shews that the husband made a Feoffement of other Land to the use of himselfe for life and after to the use of the demandant for life c. and averres that the said estate was for her Joynture c. and that the demandant hath entered c. and agreed to the estate the demandant shews that the estate was upon condition for to performe the will of the husband and that divers things were to be performed in it judgement if the tenant shall be admitted c. Resolved that at Common Law a right or title to a Freehold cannot be barred by acceptance of a collaterall satisfaction or recompence As if a disseisor of the Mannor of P. gives to the disseisee the Mannor of S. in satisfaction of all his right c. And therefore 't is said in our Bookes that an accord with satisfaction is a good plea in a personall action where damages are to be recovered not in a reall and therefore no barre in Dower but Dower ad ostium Ecclesiae or ex assensu patris concludes her if she enters after c. for the Law allowes them c. to be Dowers in Law Before 27. most lands were in use
and because wives were not dowable of the use estates were made by the Feoffees to the husband and his wife before or after the marriage for life c. for a competent provision for the wife then 27. transferred the possession to the use and if further provision had not been the wives should have their dowers and joyntures also and therefore those branches were made in the same Statute of 27. Resolved that the Feoffement to the use of himselfe for life the remainder to his wife for life for the joynture of the wife is within 27. for though that five estates onely are expressed 1. To the husband and wife and the heires of the husband 2. c. to the heires of their two bodies 3. Of the body of one of them 4. For their lives 5. To the husband and wife for life of the wife yet many other estates are within the Act for these are put for example not to exclude others But resolved that no estate is a joynture except it takes beginning presently after the death of the husband for so are all the examples and therefore to himselfe for life the remainder to B. for life the remainder to his wife c. is not within the Statute c. And therefore though the wife enter and takes the profits she shall have Dower An estate to one and his wife and the heires males of their two bodies adjudged a good joynture yet none of the five estates mentioned an estate made to a woman for life before marriage adjudged a good joynture Resolved though the estate here were upon condition and though Dower in place of which the joynture comes were absolute yet because an estate for life upon condition is an estate for life 't is within the words and the intent of the Act if the wife accept it c. Resolved that a wife cannot waive a joynture made before the coverture as she may a joynture made after and this by the Proviso if any woman hath lands c. assured after marriage for her life c. after death of the husband she hath liberty to refuse c. and therefore the intent of the Statute was that she should not refuse a joynture made before and land conveyed for part of her joynture or in satisfaction of part of her Dower is no barre of any part for the incertainty for the Statute says for the joynture of the wifes and not for part of the joynture Resolved that though the estate of the wife be upon an expresse condition for to performe the will which imports a consideration of making the estate yet it may be averred for joynture for the one consideration well stands with the other and though it be not expressed in the Deed yet it may be averred and the case is the stronger because the averment is given by the words of the Act. And a Fee simple to the wife in satisfaction of her Dower is a joynture within the equity of 27. for the reasons aforesaid as also because 't is within the expresse words for terme of life or otherwise for all estates as beneficiall or more are within by this word otherwise in joynture after judgement was given against the demandant A devise to a wife for life in taile c. for her joynture is a good joynture within 27. as 't was resolved in Leake and Randalls case Otherwise where a man devises to his wife for life c. generally this cannot be averred to be for joynture and therefore no barre of Dower 1. Because a devise imports a consideration in it selfe and shall be taken as a benevolence 2. All the will for land by 32. 34. H. 8. ought to be in writing and no averrement ought to be taken out of the will which cannot be collected by the words within an estate before marriage is within the equity of the Statute so an estate by devise which takes effect after the marriage dissolved is within 27. Bevills Case 27. 28. of the Queene fo 8. TEnant by Homage Fealty and Escuage and suite to Court twice a yeare the Lord was seised of the Fealty onely by the hands of the tenant Resolved that seisin of Fealty was a seisin of all the said services for when the tenant doth fealty he takes a corporall oath that he shall be faithfull and true to the Lord and shall beare him faith of the tenements which he claimes to hold of him and that he will lawfully doe the customes and services c. And though Homage be more honourable and the most humble service that a Freeholder can doe to his Lord yet Fealty is the more sacred service for this is done upon oath not the other And the words shall be faithfull and true are also parcell of Homage and Seisin of any part of any service is a Seisin of the whole and the Law for this reason so respects these services that no distresse for them shall be excessive and though distresse be so often that the tenant cannot manure his land he shall not have an Assise as for rent or other profits Resolved that seisin of a superior service is a seisin of all inferior services incident to it as a seisin of escuage of homage and fealty homage of fealty rent of fealty where the Seigniory is by fealty and rent Resolved that doing of homage is a seisin of all services inferior and superior because he takes upon himselfe to doe all services Resolved that seisin of rent or suite or of other annuall service is seisin of escuage homage fealty ward releife heriot service service for to cover the hall of the chiefe house of the Mannor for to impale the Parke of the Lord or such casuall services which perchance will not fall in sixty yeares but seisin of one annuall service is not seisin of another annuall service as rent of suite nor of worke dayes for 't is the folly of the Lord that he attained not seisin and it should be mischeivous to the tenant for perhaps in ancient time the worke dayes are discharged which now cannot be shewne Note Reader all this is to be intended of a seisin in Law for seisin of fealty here is no actuall seisin of homage nor of suite nor fealty of rent but seisin of any part of a service is an actuall seisin of all to have an Assise And as to make a vowry seisin in Law suffices but for an Assise actuall seisin is requisite so in a Writ of right of Land See the Booke at large and there where ancient seisin to an estate altered or changed from one person to another shall be sufficient where not Resolved that seisin in Law was sufficient to make an avowry within the letter and the intent of the Statute of 32. H. 8. for the intent was to limit a time within which seisin ought to be had not to exclude any seisin which was a lawfull seisin by the common Law which appeares by the Preamble Also the
binde the lessor otherwise of admittances upon surrenders or descents for he was tenant at sufferance who hath no lawfull interest and a Writ of entry ad terminum qui praeteriit lyes against him and so he is a deforceor Murrell and Smiths case 33. and 34. of the Queene fo 24. THe Queene grants a Copyhold in fee and after grants the inheritance of the Copyhold to a stranger the Copyholder devises to M. and after surrenders to the use of his will Resolved that custome hath so established the estate of a Copyholder that by severance of the inheritance of the Copyhold from the Mannor the Copyhold is not destroyed for being the Lord himselfe could not ouste the Copiholder no more can another claiming in by him Objected that every Copyhold ought to be parcell of the Mannor and to be demised or demisable time out of memory Resolved that because once this had both the incidents aforesaid and its perfection the severance made by the Lord shall not destroy it Resolved that notwithstanding the surrender and devise the Copyhold descended to the heire for after the severance of the inheritance from the Mannor the surrender was utterly voyd for the land was not parcell of the Mannor at the time and the devise onely cannot transferre such a customary estate but it ought to be by surrender into the hands of the Lord c. Resolved that after severance the Copyholder shall pay his rent to the Feoffee and shall pay and do other services which are due without admittance or holding of a Court as to plough the demeanes of the Lord Heriot c. but suite of Court and Fine upon alienation or admittance are gone for now the land cannot be aliened for though the Copyholder hath some benefit by the severance as appeares before so he hath great prejudice for now he cannot surrender or alien his estate nor the Feoffee cannot make an admittance for he is not dominus pro tempore Resolved that such forfeitures remaine as were before the severance as Feoffement lease wast denier of rent So if the land were of the nature of Borough English or Gavelkind and other customes which run with the land remaine And 't was said that such Copyholder hath no other meanes to alien but by Decree in Chancery against him and his heires but by this the interest of the land is not bound but the person onely Kite and Queintons case 31. of the Queene fo 25. COpyholder in fee surrenders out of Court by the custome to the hands of certaine Copyhold tenants to the use of another and his heires upon certaine condition at the next Court the surrender was presented but the condition omitted he to whose use c. dyes the Lord admits his heire he that made the surrender releases to the heire being in possession and after enters Resolved that the presentment of the surrender was voyde for that the condition was omitted for the surrender that the Copiholder made was not presented but if the surrender the condition had been presented and the Steward in entring of it omits the condition upon sufficient proofe of it the surrender shall not be avoyded but the roll amended for the roll doth not conclude the party for to plead or give in evidence the truth of the matter Resolved if a Copyholder be ousted by wrong a release by him to the disseisor doth not transferre his right because he hath not any customary estate upon which the release of the customary right may inure and this should be prejudiciall to the Lord for by this he shall lose his Fine and services but a release made to him which is admitted by the Lord and in possession is good and a release of a customary right may inure to him and the Lord not prejudiced and the release shall inure by way of extinguishment And Littleton speaks of an alienation by surrender onely which ought to be into the hands of the Lord but a release cannot be done to the Lord and Littleton says He which claimes a Copihold by surrender hath no other evidence but he which claimes an extinguishment of a right may have it by release by Deed and 't is no perill to purchasors for if the Copiholder in possession sels it he will shew the release and he which is out of possession cannot sell till he hath regained the possession caveat emptor By Wray if he which hath a pretensed title c. to a Copihold bargaines c. this is within 32. H. 8. for the Statute says any right or title and great part of the land within the Realme is in Copy and therefore the intention was to include them to avoyde maintenance and champerty Melwich and Luters case 30. of the Queene fo 26. REsolved that the lessee of a copiholder for a yeare shall maintaine an Ej ' Firmae for his terme being warranted by Law by force of the generall custome of the Realme 't is reason that he should have remedy by Ej ' Firmae And this is a speedy course against a Stranger Resolved that the Copiholds are not destroyed by severance of the inheritance of them from the Mannor but remaine in force So Murrels case before adjudged Resolved that when the Lord of a Mannor having many ancient Copiholds in a Towne grants the inheritance of all the Copiholds the grantee may hold a Court for the customary tenants and accept surrenders and make admittances and grants for every Mannor which consists of Freeholders and Copiholders comprehends in effect two severall Courts the one the Court Baron for Freeholders and in this the Suitors viz. the Freeholders are Judges and the other Court for the Copiholders and in this the Steward or the Lord himselfe is Judge and though this is not a Mannor in Law because it wants Freeholders yet the grantee may hold such Court as aforesaid for Copiholders onely as the grantor himselfe might So if all the Freeholds escheate or the Lord releases the tenure and services yet he may hold a customary Court for the Copiholds Note Reader though the Lord by his own act cannot make of one and the same Mannor at common Law divers severall Mannors consisting of Demeanes and Freeholders yet he may make a customary Mannor of Copiholders Resolved that the Lord himselfe may make a grant or admittance of a Copiholder out of the Mannor at what place he pleases but if the Steward at any Court holden out of the Mannor shall make grants or admittances they are voyd Neales case 37. of the Queene fo 26. ADjudged that where the Lord of a Mannor demises all his lands granted by Copy for two thousand yeares that the lessee may hold Courts for Copiholders as Melwiches case is before and 't was said so to be resolved in C. Hattons case Note Reader a good diversity where the number of the Copiholders may support the custome and a singular case of a Copiholder as in Murrels case before in which case the
money to the said uses yet these Lands are given to the King for it shall not be intended to be upon other consideration but that which they at that time conceived to be the service of God which is the most worthy consideration and the reason wherefore the demise was made to his Friends was because he imposed more trust in them then others therefore the persons shall not be regarded 2. A demise of an estate for life or in taile is within this Statute by equity although that the Statute saith To have continuance for ever for the intent of the Statute was to tolle such uses and regardeth not the time of their continuance 2. An estate taile may continue for ever and so was the intent of the devisor in this case that the uses should continue for ever for he limits his heire to doe it 3. Without this construction the Statute should be defrauded 3. The Statute giveth to the King Lands given for the finding of a Priest and giving of Lands upon condition to find a Priest is within the Statute for this is more compulsory then the other 4. All the Land is given to the King but not by the first Branch for that extends onely to lawfull Chanteries or those who have countenance of lawfull comencement but not to such who are without any colour of lawfull comencement as if they were founded by license of the Pope this chantry is without colour of lawfull comencement or foundation also if Lands be given to the finding of a chantery without Corporation this is out of the said Branch Neither by the second Branch for that giveth the Lands belonging to such Colledges to the King without which he shall have onely the Scites but by the third Branch for this extends to finding of a Priest without Corporation But 't was objected that the Land was not given to the finding of a Priest for he had but a pension out of it and the Statute is that the King shall have in as large c. as the Priest had it 2. Here is a good use limitted six pence by the Weeke to six poore men and although it be Ad orandum c. this is not within for it is out of the Statute except that Orisons be to be performed in publique For answer to these these differences were taken 1. If one give 20. li. per annum for the finding of a Priest and limit to the Preist 10. li. per annum all is given to the King for the residue shall be intended for the finding of necessaries otherwise it is if a condition be annexed to the gift to give 10. l. per annum to a Priest there the King shall have but 10. li. 2. Land of 20. l. per an is given to find a Priest with 10. l. thereof and that the other ten pound shall be to the Poore the King shall have but ten pound but if it be for finding of a Preist and maintainance of Poore Men without limitting how much the Priest shal have the King shall have the Land for otherwise he shall have nothing 3. If Land of 20. l. is given for finding Sallary for a Priest with 10. l. of it and also a good use is limitted there the King shall have but ten pound although that other necessaries are to be found for the Priest because a good use in certaine shall be preferred before a superstitious incertaine use but if nothing in certaine be limitted to the Preist the King shall have the Land 4. If Land be given to find a Priest the King shall have it but if a Priest have but a stipend the King shall have but the stipend 5. When a certaine summe is limitted to a Priest and other good uses are also limitted which depend upon the superstitious use all is given to the King 6. If all the uses be superstitious of what certainty soever they are the land is given to the King otherwise it is if there be any good use and as to that which was objected that the King shall have no more then the Priest It was answered that that extends to the 1.2 and 4. Branches and not to the third for otherwise the King should never have the land it selfe for this was never used to be limitted to the Priest himselfe And although that these Orisons are to be made out of any Church yet it is within the Statute for the words Church or Chappell extend to Lamps and lights and not to prayers 2. The Statute speakes of an anniversary c or other like thing and this is a like thing but in the Case at Barre if he had said that his Friends should have the residue of the profits of the Land this had saved the Land Actons Case 45. Eliz com banco in a Quare imperit fo 117. A Noble Woman reteineth a Chaplaine who purchaseth a dispensation she taketh a Husband the Chaplaine is promoted to another benefice then that which he had before the reteiner his first benefice is not voyd It was Objected that the Statute speakes of duches c. being Widdowes or Married under the degree of a Baron and for that when she Marrieth above the degree she is out of the Statute and 't is not sufficient that she be within the Statute at the time of the reteiner but she ought to be so also at the time of the promotion It was answered that all which the Statute requires at the time of the reteiner is that she be a Noble Woman Married under the degree of a Baton or a Widdow and to be noble at the time of the promotion therefore a noble Woman Married above that degree cannot reteine or if at the time of the promotion she be not noble as if her Earle be attainted and although that Baron and Feme have but one body yet they have two souls wherefore it is not inconvenient that they should have severall Chaplaines and the reason for which the said provision was made for a noble Woman who marrieth an ignoble Husband was not to exclude those who married Nobles but because such Femes are in Law ignoble except they be noble by descent and without such provision shall be out of the Statute Baron reteineth a Chaplaine and dyeth the Chaplaine may reteine both the benefices but he shall be punished for non residency without suing a non obstante Dumpors Case 45. Eliz. banco regis in Trespas fo 119. A Man maketh a Lease provided that the Lessee or his assignes shall not alien the premises without speciall license of the Lessor c. The Lessor giveth license to the Lessee to alien the same or any part thereof c. in this Case the Lessee may alien and his assignes Ad infinitum without any more license and the proviso is determined The Lord Stafford made a Lease to three persons upon condition that they nor any of them should alien without the consent of the Lessor and after one of them did alien with
fine after delivery of the Indentures of the fine the fine is said to be ingrossed 3. The Conusor shall not assigne error in the render because it is to his advantage and none shall assigne Error except it be to his disadvantage Dormers Case 35. Eliz. Banco regis fo 40. A Common recovery is had in a Writ of Entry in the Post de uno annuali redditu sive pensione quatuor marcarum and of an advowson whereupon a Writ of Error is brought 1. Because every Praecipe ought to be certaine but here it is in the Disjunctive 2. A Writ of entry in the Post lyeth not of an advowson But judgement was affirmed and thereby 't was resolved 1. That a common recovery is not like to other recoveries for it may be averred to an use 2. It is by mutuall consent consensus tollit errorem 3. A Writ of entry in the Post lyeth of an advowson common c. to suffer a common recovery and not otherwise for no other assurance can be had to barre the remainders 2. The demand of the rent is good for one of two things is not demanded but one thing by two names for rent and pension are Synonima and the rather here because it is said to issue out of Land which a Pension properly cannot 3. Common recoveries are so usuall that the Court shall take notice that they are common recoveries Rowlands Case 35. Eliz. Banco regis fo 41. A Pannell of a Jury is annexed to the Venire facias without returne this is vicious and not remedied by 18. Eliz. cap. 14. for that remedieth insufficient returnes but not where no returne The Countesse of Rutlands Case 36. Eliz. fo 42. RObert Moore is returned upon the Venire facias but in the panell before the Justices of Nisi prius and in the Postea he was named Robert Mawre if it appeare that Moore is his right name and that it is he who was sworne it is good for by the common Law this was a discontinuance against all the Jurors and discontinuances are ayded by the Statute otherwise if he were misnamed in the Venire facias and had his right name in the Panell and Postea Codwells Case 36. Eliz. Banco regis fo 42. A Juror who gave verdict was misnam'd in the Venire facias and had his right name in the Distringas and Postea and for that the judgement was arrested Nicholls Case 38. Eliz. Banco regis fo 43. C. Brings Debt upon a single Bill against N. who pleaded Payment without Acquittance which was found for the Plaintiffe although issue was joyned upon a point not materiall yet after Verdict this is aided by 32. H. 8. and 18. Eliz. Bohuns Case 39. Eliz. fo 43. A Fine was levyed of a Mannor and other Lands to the value of twenty Marks per annum so that the Kings silver is 40 s which was paid but in entering of it upon the Writ of Covenant the Mannor was omitted and thereupon error was brought but after that the transcript of the fine was remov'd into the Kings Bench the Judges of the common place amended the Record because it appeares to them that the Kings silver was payd for the Mannor and where the Writ of Covenant was Dede meipso for Teste meipso they amended that also and certified it into the Kings Bench upon dimunution and allowed Freemans Case fo 45. 41. Eliz. Banco regis IN an original Writ c. Quod nullus faciat vastum venditionem et destrictionem where it should be destructionem the fault was onely in one Letter the Court resolved upon good Consideration that it was matter of substance for Destrictio is a Latine word and altereth the sence of the Statute and matter of Substance in an Originall Writ is not remedied but matter of forme onely Vide Statute 32. H. 8. ca. 30. 18. Eliz. ca. 14. If an Originall at this day want forme or containe false Latine or vary from the Register in matter of forme after Verdict no judgement shall be stayed or reversed But if it want substance although it be the misprision of the Clerke this is not remedied by any Statute Gages Case 41. Eliz. Banco regis fo 45. A Writ of Covenant to levy a fine boare Date after the returne this is amendable because a common assurance but in other actions no amendment c. Cookes Case 41. Eliz. com banco fo 46. A Common recovery of the Mannor of Isfeild by the name of Iffeld is amendable because it appeared to the Court by collaterall things shewed unto them that Isfield was intended to passe Cases of Pardons Francklyns Case 36. Eliz. fo 46. In the Starr-Chamber A Bill was exhibited for a Ryot in the Starre-Chamber five yeares before the generall Pardon 35. Eliz. and it was resolved that the Kings fine was excepted but not the corporall Punishment but if it were exhibited within foure yeares all shall be accepted In this Case the Kings attourney may proceede for the fine Guilbert Littletons Case 39. Eliz. fo 47. Starre-Chamber A Bill exhibited in the Starre-Chamber before the Parliament 35. Eliz. and returned after this is excepted out of the generall pardon for it was depending before the returne but if an Originall Writ issueth out of the Chancery returnable in the common place this is not depending before the returne because out of another Court but after the returne it shall be said depending by relation from the day of the Teste and if the Tenant alien before the returne and after the Teste this shall be said an alienation pending the Writ Drywoods Case 42. Eliz. Starre Chamber fo 48. A Bill in the Starre-Chamber more then foure yeares and within 8. yeares before the Parliament in 39. Eliz. the Plaintiffe dyeth before the generall pardon this is pardoned for this doth not depend now and the words remaining to be prosecuted shall be intended for the party and not for the Kings Atturney Vaughans Case 40. Eliz. Banco regis fo 49. A Writ of entry in the Quibus depends in Wales before the generall Pardon and after the Demandant had judgement but the Tenant was not amerced 1. Resolved the Amercement is pardoned because the Torte was pardoned which together with the delay was the ground thereof 2. The Statutes of Jeofailes extend to Wales because it is made parcell of England by the Act of 27. H. 8. Wyrrells Case 41. Eliz. In the Exchequer fo 49. THe Queene brings debt upon an Obligation made by the Defendant to one who was Outlawed the Defendant pleads the generall Pardon and although that Debts due to the Queene are excepted yet Debts Originally due to the Subject and after came to the Queene are not excepted also the genetall pardon is to be taken beneficially for the subject and most strong against the King Biggens case 41. Eliz. Banco regis fo 50. THe King may pardon burning in the hand where the Defendant is found guilty of Man-slaughter and hath his
his warrant to bring the party before himselfe and it is good and sufficient in Law for it is most like that he hath the best knowledge of the matter and therefore most fit to doe Justice in that matter upon refusall to finde surety the Constable may commit him without a new warrant Gooches case 32. El. in banco le roy fol. 60. WRay chiefe Justice said that if A. make a fraudulent conveyance of his Lands to deceive a purchasor against the Statute of 27. El. and continueth in possession and is reputed as owner B entereth in communication with A. for the purchase and by accident B. hath notice of this fraudulent conveyance Notwithstanding he concludes with A. and takes his assurance In this case B. shall avoide the said fraudulent conveyance by the said Act notwithstanding the notice for the Act by expresse words hath made the fraudulent conveyance voyde as to the purchasor And for as much as that is within the expresse provision of the Statute it ought to be taken and expounded in suppression of fraud Resolved that fraud may be given in Evidence because the estate is voyde by the Act of 13. Eliz. and fraud is hatched in secret in arbore cava opaca And according to this opinion it was resolved Per tot ' Cur ' in communi banco Pasche 3o. Jac. where one Bullock had made a fraudulent estate of his Lands within the Statute of 27. El. to A. B. and C. and after offred to sell the same to one Standen and before the assurance by Bullock Standen had notice thereof and notwithstanding proceeded and tooke the assurance from Bullock Standen avoyded the former assurance of fraud by the said act for the notice of the purchasor cannot make that good which an Act of Parliament hath made voyde as to him And it is true Quod non decipitur qui scit se decipi But in this case the purchasor is not deceived for the fraudulent conveyance whereof he had notice is made voyde as to him by the Statute and therefore he knew it could not hurt him Sparries case 33. Eliz. in Scaccar fol. 61. IN action of Trover and convertion the defendant pleads that there is another action depending in the Kings Bench for the same Trover and good for in actions which comprehend no certeinty as assize or trespas this is no plea before a Count because thereby it is made certeine and then it is a good plea and not before but in this action and debt and detinue it is a good plea at the first because they are certeine that an action is depending in an inferiour Court is no plea. Cases of By-Lawes Chamberlaine de Londons case 32. El. in Banco le roy fol. 66. THe Inhabitants of a village without any custome may make Ordinances or By-Lawes for reparation of the Church or of high-wayes or any such thing which is for the publicke weale generally and in this case the consent of the greater part shall binde all without any custome vide 44. E. 3.19 But if it be for their owne private profit for that Towne as for their well ordering of their common of pasture or such like then without custome they cannot make by-Lawes And if it be a custome yet the greater part shall not binde all if it be not warranted by the custome for as custome hath created them so they ought to be warranted by the custome 8. E. 2. tit ass As pontage murage Tolle and such like as appeareth in 13. H. 4.14 In which cases the summes for reparations of the Bridge walls c. ought to be so reasonable that the Subject may have more benefit thereby then charge Clerks case 38. Eliz in communi banco fol. 64. KIng Edward 6. did incorporate the Towne of St. Albones and granted them to make Lawes and Ordinances c. The Tearme was kept there and the Major c. by assent of the plaintiffe assessed every Inhabitant for the charges in erecting of the Courts there and if any did refuse to pay c. to be imprisoned c. the plaintiffe being Burges refused to pay c. and the Major justified c and it was adjudged no plea c. For this Ordinance is against Magna Charta ca. 29. Nullus liber homo imprisonetur which act hath been confirmed divers times viz. thirty times and the assent of the plaintiffe cannot alter the Law in this case But it was resolved that the Major c. might inflict reasonable penaltie but not imprisonment which penaltie ought to be Levied by Distresse for which offence an action of Debt lyeth and the plaintiffe in this case had judgement Jeffrays case Michaelis 31 32. en Bank le Roy. fol. 66. WIlliam Jeffray Gent. brought a prohibition against Abraham Kenshley and Thomas Forster Churchwardens of Haylesham in Com' Sussex for that they sued him in Court Christian before Doctor Drury for certaine money imposed upon him without his assent for repaire of the Church That the Church-wardens with the assent of the greatest part of the Parishioners juxta quantitatem qualitatem possessionum reddit ' infra dict' parochiam existent Determined and agreed to make a taxation for repaire of the said Church and that notice of such assembly was given in the Church at which day the Church-wardens and greater part of the Parish which were there assembled made a taxation viz. every occupier of Land for every acre 4. d. c. Geffray dwelt in another Parish and declared that the Parishioners of every Parish ought to repaire their Church and not the Church of another Parish Cooke of councell with the defendant demurred in Law and after many arguments a Writ of consultation was granted And it was resolved that the Court Christian hath conusans de reparatione corporis sive navis Ecclesiae Britton who writ in 5. E. 1. And in the Statute of Circumspecte agatis but in Rebus manifestis errat qui authoritates legum allegat quia perspicuè vera non sunt probanda It was also resolved that although Geffray did dwell in another Parish yet for that he had Lands in the said Parish in his proper possession he is in the Law Parochianus de Haylesham But it was resolved that where there was a Farmor of the same Lands the Lessor that receiveth the rent shall not be charged but the Inhabitant is the Parishioner and the receipte of the rent doth not make the Lessor a Parishioner Diverse of the civill Lawyers certified the Court that the Church Wardens and a greater part of the Parishioners upon a generall warning assembled may make a Taxation by their Law and the same shall not charge the Land but the Person in respect of the Land for equality and indifferency and this was the first leading case that was adjudg'd reported in Our Bookes touching these matters and many causes after were adjudged thus and now it is generally received for Law The Lord Cheneys Case 33. Eliz.
Deed to the Court the plaintiffe may pray it to be entred in haec verba the same Terme but not after Pagetts case 35. El. in communi banco fol. 76. IT was resolved that if tenant for life the remainder for life the remainder in fee if tenant for life maketh wast in trees and after he in remainder for life dye an action of wast is maintainable for the wast done in the life of him in remainder for life because it was to the disinheritance of him in remainder in fee. And now the impediment which was the meane estate for life is taken away Et remoto impedimento emergit actio It was resolved that when the trees are cut downe the property thereof belongeth to him in remainder in fee. And where it is said in some Bookes That he in remainder or reversion in fee shall not have an action of wast it is to be intended during the continuance of the meane remainder And in other Bookes is said in this case that an action of wast doth lie it is intended after the death of him in remainder for life Boothes case 36. Eliz. in communi Banco fol. 77. GEeorge Booth brought an action of wast against Skevington and declared that Sir William Booth demised for yeares to Ensor who assigned to Skevington The defendant pleaded an assignement to Elizabeth Cave before which assignement no wast was made the plaintiffe replyed and shewed the Statute 11. H. 6. ca. 5. and that the grant to Elizabeth Cave was made to the intent he should not know against whom to bring his action and averred that Skevington did take the profits the defendant rejoyned that Elizabeth Cave granted her estate to A. who demised to the defendant at will and traversed the fraud c. the plaintiffe demurred it was resolved that every assignee of every Lessee mediatly or immediatly is within the said act for the Statute was made to suppresse fraud and deceipt and therefore it should be taken most beneficially Secondly that he in remainder is within the said act as well as he in reversion Thirdly the intent of fraud aforesaid is not traversable but the taking of the profits which is a thing notorious whereof the Country may have knowledge In a formedon the tenant pleaded Non tenure the demandant said that he made a Feoffment to persons unknowne to defraud him of his tenancy and to keepe the profits the pernancy of the profits and not the Feoffment is traversable Samons case 36. Eliz. Banco Regis fol. 77. THe plaintiffe and defendant referred all controversies to the Arbitrement of J. S. who did arbitrate that the defendant shall enter into an obligation to the plaintiffe that the plaintiffe and his wife shall injoy certeine lands which he had not done this is voyde for the incerteinty of what summe the obligation shall be for the award ought to be certeine like a Judgement Also the award was voyde as to the feme for she was a stranger to the submission Grayes case 37. Eliz. Banco Regis fol. 78. Replevin THe plaintiffe intitles himselfe in barre to the avowry to Common c. which was traversed the Jury found that every c. time of minde have used to pay for the Common a henne and five egges the plaintiffe had Judgement for he needs not shew more then makes for him for this is not Modus Communiae paying so much nor parcell of the issue but a collaterall recompence to be paid for the Common for which the Terretenant had remedy but if the Terretenant had no remedy then the Commoner shall have the Common sub modo and may be disturbed by the Terretenant Fitz-Herberts case 37. Eliz. Banco Regis fol. 79. THe father tenant for life the remainder to the sonne in taile leaseth for yeares to A. to the intent to barre the sonne A. infeoffeth J. S. to whom the father releaseth with warranty and dyeth this doth not barre the sonne for although that the disseisin which is made by the feoffment precedes the warranty yet because it was to that intent the Law will adjudge upon the intire act and so a warranty by disseisin 2. Although the disseisin was made to the father yet because he consented unto it the warranty commenceth by disseisin but if the father had made a feoffment in fee and dyed this shall binde the sonne if it be with warranty Foordes case 37. Eliz. Com' Banco fol. 81. A Prebend leaseth for 70. an Patron Deane and Chapter confirme dimissionem praedictam in forma praedicta fact ' for 51. yeares non ultra this is a confirmation for all the Terme for when they confirme dimissionem c. for 51. yeares it is repugnant but if they had recited the Lease and confirmed the land for 51. yeares this had been good for they have an authority coupled with an interest otherwise if onely a bare authority but by what words soever they confirme a lease for life or a gift in taile for part this is a confirmation of all because they are intire so if the estate of the disseisor or his lessee for life be confirmed for an houre yet all is confirmed Cases of Customes Snellings case 37. Eliz. Com' Banco fol. 82. S. Brings Debt upon an Obligation against an Administrator who pleads there is a custome in L. that an Administrator shall pay debts upon contract to a Citizen as well as upon Obligation and that J. S. upon a Contract had recovered and good 1. Resol Although that debt is given against an Administrator by the Statute of 31. E. 3. yet because they were charged as Executors before so that onely the name is changed the custome generally alledged is good 2. The ordinary by taking the goods was chargeable at the Common Law 3. This custome bindeth strangers The case of Markett overt 38. Eliz. fo 83. SHopps in L. are Marketts overt for things to be sold there by the trade of the owner therefore if plate be sold there in a Scriveners shop the property is not altered otherwise if in a Goldsmiths shop if he who passeth in the street may see it Nota the reason of this case extends to all Marketts overt in England Perimans case 41. Eliz. Com. Banco fol. 84. IT is a good Custome of a mannor that all sales of lands within that mannor be presented at the Court of the Mannor Obj. What remedy if the Steward will not accept the presentment Resp What remedy if the Clerke will not Inrolle a deede of bargaine and sale and therefore Caveat Emptor 2. Obj. That Interest is by the feoffment vested in the feoffee which shall not be devested by the Custome Resp That livery was ordained to give notice and a Custome which addeth more solemnity and notice is good Sir Henry Knivets case 38. Eliz. Banco Regis fol. 85. TEnant for life the remainder in fee leaseth for yeares the Termor is ousted the disseisor leaseth for yeares his lessee sowes the land tenant for life dyes he
it was resolved that when one hath a power of revocation yet if he suffer any thing to be lawfully executed as touching that he cannot make any revocation as if a man make a Letter of Attourney to another to doe any thing before Execution he may revoke it but after Execution lawfully done it cannot be revoked if one to whom another is indebted be Outlawed and he that oweth the money payeth it to the King and the Outlary is after reversed yet the Creditor shall recover his Debt against the party if the goods of an Outlawed person be sold by the Sheriffe upon a cap. utlagat ' after the Outlary is reversed by Error the Defendant shall have restitution of his goods for the Sheriffe or Escheator is not compellable to sell the goods but he may keepe them to the use of the King agreeing to the Booke 20. Eliz. Dyer 363. but if a Sheriffe by vertue of a Fieri facias sell the goods and after the judgement be reversed by error the Defendant shall not have restitution of the goods but the value of them for which they were sould And the reason is the Sheriffe is compellable to Levy the Debt of the goods of the Defendant and therefore great reason that the Sale should stand Semaynes case 2. Jac. fo 91. Banco regis THat the House of every man is to him as his Castle and Fortresse as well for his defence against injuries and violence as for his repose that if a man kill another in his defence or permisfortune without any intent yet it is felony and he should loose his goods and Chattells for the great regard that the Law hath to the life of a man But if Theeves come to the House of a man to rob or murther and the owner or his servant kill any of the Theeves in defence of him or his House this is not felony neyther shall he loose any thing any man may assemble his Neighbours or friends to Guard his House against violence but he may not assemble them to goe with him to the Market or abroad to safe-gaurd him against violence and the reason of all this is Domus sua cuique est tutissimum refugium It is resolved that when any House is recovered by any reall Action or by Ejectione firmae the Sheriffe may breake the House and deliver seisin or possession It was also resolved that in all cases where the King is party the Sheriffe may breake the House if the Doores be shut and make Execution of his Writ but before he breake the House he ought to signifie the cause of his comming and make request to have the Doores opened West 1. ca. 17. which Act is but an affirmance of the common Law but if the Officer breake the House when he might have the Doores opened he is a Trespassor 41 Ass pl. 35. For fellony or suspition of fellony the Officer may breake open the Doore in all Cases where the Door is open the Sheriffe may enter and make Execution of his writ either for body or goods at the suite of a subject or the Lord may distraine for his rent But it was resolved that the Sheriffe at the Suite of a common person upon request made to open the Doors and denyall thereof ought not to breake open the Doore or the House to Execute any processe at the Suite of any Subject or to execute a Fieri facias being a Writ of Execution but he is a Trespassor yet if he doe Execution in the House it is good in the Law being done it was also resolved that the house of a man is not a Castle or defence for any other person but for the owner his Family and goods and not to protect another that flyeth into the same or the goods of another for then the Sheriffe upon request and denyall may breake the House and doe Execution And this is proved by the Statute of West 1. ca. 17. whereby is declared that the Sheriffe may breake the House or the Castle to make replevin when the goods of another that he hath destrayned are conveyed away to prevent the owner but in this case the Sheriffe must demand the goods first Barwicks Case 39. Eliz. in Exchequer fo 93. THe Queene 28. Die Julij Anno. 26. demised the Mannor of Sutton to Humfrey Barwicktenend sibi a die confectionis It was resolved that the same 28. day of July is excluded and the demise began the 29. of July It was also resolved that an estate of freehold cannot commence In futuro but ought to take effect presently in possession Reversion or Remainder A Lease for yeares may commence in future but not a Lease for life and the reason is for that a Lease for yeares may be made without livery and seisin but an estate of freehold may not be made without livery eyther in deed or in Law and therefore when a man maketh a Lease for Life to commence at a day to come he cannot make a present Livery to a future estate and therefore in this case nothing passeth and it is all one whither it commenceth at a day to come or yeares to come for the distance of the times doth not make alteration in this Case but in the case of two joynt Lessees the Livery made to one is good in the name of both for they have an interest in the Land before their entry and livery to one in the name of both maketh an actuall possession in both which is sufficient to support the remainder to a third person in Fee Vide Claytons ' Case in the Fifth Booke Lycense to occupy Land for one yeare is a Lease for one yeare 5. H. 7. 1. in consideration of a former demise to be surrendered which was false and void is a void consideration as to the Queene Goodalls case 40. El. Banco Regis fol. 95. COnditions for payment of money touching inheritance ought to be truly performed and not covenous if they concerne a third person The Law doth not finde an assignee in Law where there is an assignee in fact Expressum facit cessare tacitum affirmed in the Exchequer chamber upon Error there brought Countesse of Northumberlands case 40. El. Communi Banco fol. 97. FItton and the Countesse of Northumberland his wife Sir Thomas Cecill Knight and Dorothie his wife William Cornewalleys and Lucy his wife and the Lady Davers Daughters and heires of the Lord Latimer brought a Quare impedit against Hall who pleaded a release of William Cornewalleys pendente breve and it was adjudged that this should but goe in barre onely against William Cornewalleys and his wife and the Writt should stand for others and all shall vest in the others because intire and in the realty presentment of the lessor and lessee is not double for the lessors onely traversable Buries case 40. El. in communi banco fol. 98. BEtween Whebster and Burie in Ejectione firmae a speciall verdict was given upon divorce between Burie and his wife
the Leete But no action of the case lyeth for any particular man for the infinitnesse of actions that might be brought And of this opinion touching the new erecting of a Dove-cote was Sir Roger Manwood chiefe Baron and the Barons of the Exchequer in the Exchequer chamber Aldens case 43. Eliz. Com. Banco fol. 105. AUncient demise is a good plea in an Ejectione firmae although it is not in trespas because by intendement the freehold may come in debate and the interest of the Land is bound auncient demesne is extendable upon a Statute by Elegit but in an assise by tenant by Elegit auncient demesne is a good plea. 22. Ass Pl. 45. Sir Henry Constables case 43. El. in banco le roy fo 106. NOthing shall be said Wreccum maris but such goods onely which are cast or left upon the Land by the Sea Flotsam maris is when a Ship is drowned or otherwise perish and the goods flote upon the Sea Jetsam maris is when a Ship is in perill of drowning and for disburthening thereof the goods are cast into the Sea and after notwithstanding the Ship perish Lagan vel potius Ligan is when the goods so cast out of the Ship and the Ship perish and such goods are so ponderous that they sinke to the bottome and the marriners to the intent to finde them binde thereunto a Boy or a Corke or other such thing to finde them againe Et dicitur Ligan a Ligando and none of these words which are called Flotsam Jetsam or Ligan are called wreck so long as they remaine in or upon the Sea But if any of them be cast upon the Land by the Sea then it is said to be wreck and by the Statute 15. R. 2. ca. 3. the Lord Admirall shall not have conusance or jurisdiction of wreck of Sea but of the other three hee hath for wreck is when the goods are cast upon the Land and so within some County whereof the Common Law may take conusance But the other three are upon the Sea Magis proprie dici poterit wreccum si Navis frangatur ex qua nullus vivus evasit maxime si dominus rerum subversus fuerit quicquid inde ad terram venerit erit domini regis wreck may by prescription belong to the Lord of a Mannor It was resolved also that the soyle upon which the Sea doth flow and reflow scil Between the high water marke and the low water marke may be parcell of the Mannor of a Subject 16. El. Dier And it was resolved that when the Sea doth flow ad plenitudinem maris the high Admirall shall have jurisdiction of every thing done upon the water between the high water marke and the low water marke as felony c. No proofe is allowable by the Law but the verdict of twelve men part of the goods were wreck and part not damage assessed intirely ergo Judgement given for the defendant The King shall have flotsam upon the Sea because within the ligeance of the King Foxleys case 43. El. Banco Regis fol. 109. IT was resolved if a Felon steale any goods and leave them in a Mannor or Towne or in his house or in the house of another or hide them in the earth or any other secret place and afterwards fly these goods are not forfeited nor waife goods in the Law for waife is where a felon in pursuite waveth or leaveth the goods or for feare to be taken thinking that pursuite was or is made having the goods with him in his possession flyeth away and leaveth the goods In these cases the goods shal be said waved in Law But if he had not the goods w th him when he did fly being pursued or for feare of being apprehended the goods are not waved nor forfeited but the owner may take them againe when he will without any fresh suite But if the Felon in his flying wave them the goods are forfeited by the Common Law If the Felon upon fresh suite be not attaint at the suite of the owner of the goods And the reason that wave is given to the King is for default of the owner that he doth not make fresh suite after for to apprehend the felon Wherefore the Law doth impose the penaltie on the owner Bona fugitivorum are the proper goods of him that flyeth away for felony But it is to be observed that if a man fly for felony his goods are not forfeited untill they be found by indictment or otherwise lawfully found of record upon his acquitall that he fled for the felony they cannot be claimed by prescription because that things forfeited by matter of record cannot be claimed by prescription But waife stray treasure trove wreck of the Sea c. which things may be gained by usage without matter of record there a man may prescribe to have Bona catalla felonum in some cases bona catalla felonum shall be forfeited by conviction and sometimes without conviction but alwayes when any forfeiture is of any goods of felons it ought to appeare of record and that is the cause that such goods cannot be claimed by prescription Deodanda are goods which cause the death of a man by misadventure and are not forfeited untill they be found of record therefore cannot be claimed by prescription the Jury that presents or finds the death ought to finde and apprise the Deodandum also omnia quae movent ad mortem sunt deodanda Bona catalla in exigendo positorum are when any be appealed or indicted of felony and he withdraw or absent himselfe for so long time as an exigent is awarded against him for his absenting which is a flying away in Law he shall forfeite all his goods and chattells which he had at the time of the exigent and after be found not guiltie 22. Lib. Ass Looke the Statute 21. H. 8. ca. 11. concerning goods waved and for restitution c. Mallaryes case 43. Eliz. fol. 111. REndring rent to one and his heires and to one or his heires are all one But a Feoffment tenendum to one or his heires is but during the life of the Feoffee Nemo potest plus juris in alium transferre quam ipse habet this case consisteth much upon atturnements vide le case Wades case 43. Eliz. in Communi Banco fo 114. A Man was bound to pay 250. li. Legal monet Angliae on a day certaine the last time of the day that so much money can be numbred is the best time so that it be before the setting of the Sunne and the most convenient time by Law that both parties may meete five shillings in Spanish money and two pistolets in gold were tendered It was resolved that the Spanish silver was lawfull money of England by Proclamation in tempore Philippi Mariae and so French Crownes for the King by his Prerogative and Proclamation may make any forreigne coyne lawfull money of England That if a man
The question was whether they have an estate for life or an inheritance in taile And it was resolved that if they had children at the time of the Demise made then they had but an estate for life But if they had no children then they had an estate of inheritance in taile Sir Edward Cleeres case 42. Eliz. fol. 17. A Man is seized of three acres of Land houlden in Capite and maketh a Feoffment in Fee of two of them to the use of his wife for her life and after maketh a feoffment by Deed of the third acre to the use of such persons and of such estate and estates as he should limitt and appoint by his last Will in writing And afterwards by his last Will in writing hee Devised the said third acre to one in fee and if this Devise was good for all the third acre or not or for two parts thereof or voyd for all was the question And it was adjudged that the Devise was good For the Feoffor by his last Will limitted the estates according to his power reserved to him upon the Feoffment the estates should take effect by force of the Feoffment and the use is directed by the Will So as in this case the Will is onely directory But if he declared his Will by writing without any reference to his authoritie or power as owner of the Land and to limitt no use according to his power In this case the Land being houlden in capite the Devise is good for two parts and voyd for the third part If a man make a Feoffment in Fee of Lands in capite to the use of his last Will although he Devise the Land with reference to the Feoffment yet the Will is voyd for a third part for a Feoffment to the use of his last Will and to the use of him and his heires is all one In this case when the partie had conveyed two parts to the use of his wife by his act executed hee cannot as owner of the Land Devise any part of the residue by his Will and therefore because he hath not an election as in the case put before whether to limit according to his power or Devise the same as owner of the Land for in the case at Barre as owner of the Land having conveyed two parts to the use of his wife he cannot make any Devise The Devise of necessitie must inure to a limitation of the use otherwise the Devise should be altogether voyd Packmans case 37. Eliz. Banco Regis fol. 18. WIlson brought an action upon the case upon a trover against Packman The case was thus A man dyed intestate and the Ordinary committed the administration to a stranger and after the next of kindred of the Decedent sued out a Citatiō in the Court Christian to have it repealed and pendente lite the administrator to defeate the plaintiffe selleth the goods of the decedent to the defendant and after the Letters of administration were revoked by sentence and the first sentence anulled and made voyd and the administration granted to the plaintiffe And it was resolved that the action did not lie and in this case the diversitie was houlden betweene a suite by Citation for to countermand or revoke the former administration and an appeale which is alwayes a reversing of a former sentence for an appeale doth suspend the former sentence otherwise of a Citation And in this case because the first administrator had the absolute propertie of the goods in him without question he may sell them to whom he will and although the administration be revoked afterwards yet that cannot defeat the Sale But if the sale or gift be by covine it is voyd against Creditors by the Statute of 13. El. but it is good against a second administrator And if an administrator wast the goods and afterwards the administration is granted to another yet every debtor shall charge him in debt An administration may be granted upon condition and whatsoever the administrator doth before the condition broken is good Gregories case 38. El. Banco Regis fol. 20. VErba aequivoca in dubio posita intelliguntur in digniori potentiori sensu secundum excellentiam as if the speech be or writing of J. S. generally it shall be intended of the father where the father and sonne are both of a name and if it be of two Brothers both of a name it shall be intended of the eldest for these are more worthy so where the Statute of 4. 5. Phil. Ma. speaketh in any Court of Record it shall be intended of the foure Courts at Westminster because the Kings Attorney is attendant there Michelbornes case 38. Eliz. Banco Regis fol. 21. THe Court of Marshalsea doth onely hould plea of actions of trespasse within the verge if the one of the parties be of the Kings houshold and in contracts and Covenants where both parties are of the Kings houshold and of none other actions nor persons by the Act of Articuli super Chartas 28. E. 1. Butler Goodalls case 40. El. Banco Regis fol. 21 IT was resolved upon the Statute of 21. H. 8. that a Parson of a Church ought to stay and be Commorant upon his Rectorie viz. upon the Parsonage-house and not in any other house although it be within the Parish but lawfull imprisonment without covine is a good excuse of non-residence also if there be no Parsonage-house for impotentia excusat Legem also sicknesse without fraud if the patient remove by advice of his Councell in Physicke bona fide for better aire and recovery of his health Ambrosia Gorges case 40. El. fol. 22. in Cur. Wardorum IT was resolved that the Father shall have the Wardship of his Daughter and heire apparent so long as shee continueth his heire apparent But when the Father hath issue a sonne then shee shall be in ward to the Queene for then he is heire apparant and not the Daughter Ambrosia was daughter of Sir Arthur Gorge by Douglas Daughter and heire of Vicount Bindon and was married to Francis Gorge which Francis dyed when Ambrosia was of ten yeares of age It was resolved also that the Queene notwithstanding the said marriage should have the Wardship of the said Ambrosia for it was not a compleat marriage because to every marriage there ought to be a consent For consensus non concubitus facis matrimonium consentire non possunt ante annos nubiles And upon conference had with the Civilians it was agreed after such a marriage if the husband and the wife marry again it shall not be counted Bigamie And 30. E. 1. tit Gard. 156. if the ancestor marry his heire infra annos nubiles and dye the Lord shall recover the body of the Infant because the heire may disagree It was agreed that the grandfather shall not have the wardship of the sonne within age the father being dead in his life time Marquesse of Winchester his case 41. Eliz. fol. 23.
but a labour to the Obligor or a stranger there he had time during his Life Fitz-Williams Case 2. Jacobi banco regis fol. 32. BAron and Feme Tenants for life and to the heires of the body of the Baron the Baron sole is vouched in a common recovery the taile is barred Copledicks Case 3. Report 2. Resol If Tenant in taile suffer a recovery to his owne use the remainder to his wife with diverse remainders over with power of revocation and limittation of new uses by any such writing he revoketh all the remainders except that to his Wife and by the same deede limits new uses this is good for by any such writing shal be intended the same or any such and it may be by the same deede for first it takes effect as a revocation 2. By limittation of new uses and there are not more instances then one in it See there Leaper Wroths Case cited 30. El. to prove that powers whereby the interest of Strangers shall be changed shall be taken strictly as a power to make leases for twenty one yeares he cannot make a Lease for 21. yeares to commence in Futuro The Bishop of Bathes Case 3. Jacobi com banco fo 34. THe B. 18. H. 8. Leaseth to E. and R. for sixty yeares proviso if they dye within the terme that the B. and his Successors shall reenter E. dyes the B. dyes the Successor Leases to C. Cum post sive per mortem c. praedict R. acciderit vacare for sixty yeares with confirmation R. dyeth Resolv every Lease ought to have a certaine beginning and the continuance ought also to be certaine eyther by expresse number of yeares or by reference to an expresse certeinty or where a Lease may be reduced to a certeinty by matter Ex post facto Agreed the second Lease vests presently in poynt of interest to take effect in possession at the end of the first Terme if by none of the accidents the first Lease become voyd in the meane time and then the Lease shall commence at the first accident which doth happen and the Lessee hath no Election The Deane and Chapter of Worcesters Case 3. Jacobi fo 37. THe D. and Ch. seised of a Mannor in Fee in which were Copy-holds grantable for three lives for 8. s. 8. d payable quarterly and herriotable grant a copy-hold for the Life of three reserving the old rent halfe yearely this is not voyd by 13. Eliz. cap. 1. Resolved the grant of a copy-hold for the life of 3. is good for although there may be an occupancy yet it is not inconvenient for an occupant shall be punished in wast 2. Grant of a Copy-hold is a demise by the intent of the Statute for in Law it is a Lease at will 3. The omission of Herriot doth not make it voyd because the annuall rent is reserved 4. It is sufficient that the yearely rent be reserved twice in the yeare for the Statute saith yearly which maketh a difference betweene this Case and the Lord Mountjoyes Case in the fifth Report Bellamyes case 3. Jacobi com banco fol. 38. A Lease upon condition that the Lessee shall not alien without License Assignee of the Lessee pleads that the Assignement was with License and shewed not forth the Deede of License 1. Because he did not claime by it 2. Because the License was Ex provisione hominis and not Ex institutione legis 3. Because it was executed and good Henry Finches Case 3. Jacobi banco regis fol. 39. A Grant of a rent charge out of diverse Mannors c. in the Parishes of E. and W. Aut alibi dictis marerijs spectantur and out of Lands which is not parcell of any of the Mannors these are not charged with the distresse for Alibi doth not charge more Land then is parcell of those Mannors but all parcells of the said Mannors out of the said Parishes Sir Anthony Mildmayes Case 3. Jacob. banco regis fol. 40. 1. REsolved a perpetuity is against the rules and pollicy of the common Law 2. It is impossible that an estate tayle shall cease before that Tenant in taile dyes without issue and an estate cannot be made to continue as to one and determine as to another except by Statute 3. A gift in taile upon condition that he shall not suffer a common recovery is voyd because he had power by the Law 4. It is a voyd saying that his estate shall cease if he goe about c. for Non officit conatus nisi sequatur effectus Also many ambiguities will arise thereupon because the Law doth not define it and it is so uncertaine that is not traversable Blakes Case 3. Jacobi com banco fo 43. AN accord with satisfaction is a good barre in a Writ of Covenant because the duty accrueth not meerly by the deede but by a torte subsequent together with the deed and it is a good barre in an attaint because this is not founded upon the record onely but upon the false Oath also In all cases where an arbitrament is a good Plea an accord with satisfaction is also and so generally in all Actions where damages onely are to be recovered Higgins Case 3. Jacob. com banco fo 44. IF a man have judgement upon an Obligation so long as this judgement is in force he may not have a new action upon the same Obligation For Interest reipublicae ut sit finis litium infinitum in jure reprobatur A Statute Staple is but an Obligation recorded and one Obligation cannot drowne another although they be both for one Debt and the Obligee may choose upon whither he will bring his Action 11. H. 4. and 2. Jac. Sir William Cornewalles Case and Branthwaytes Case and in every judgement the Defendant is amerced and so he shall be amerced in Infinitum Dowdales Case 3. Jac. com banco fol. 46. IN Debt against an Executor the Defendant pleads fully administred the Plaintiffe saith that he hath assets at E. the Jury found assets in Ireland 1. Resol when the place is materiall the poynt in issue cannot be found in another place 2. Where the place is named but for conformity assets may be found in another County 3. In a generall issue the Jury shall finde all materiall locall things in another County 4. The Jury by a meane shall trie locall things in another County as a release in a forreigne County the Jurors shall assesse damages for the profits of the Land in the other County Multa conceduntur per obliquum quae non c. but in case of felony the Tryall shall be where the offence was done 5. The finding of assets is the substance and that it is in Ireland is surplusage A thing done beyond the Sea shall be tryed here if the foundation of the Action be here Boswells Case 3. Jac. banco regis fol. 48. IN a Quare impedit judgement was given to remove the incumbent of the Queene not party to the Writ who was presented
pending the Writ Resolv That by the common Law by admission and institution the Usurpor gaines the inheritance of the advowson without regard of the nonage of the Patron because he is in by judiciall act and the Bishop shall be supposed not to doe wrong to the Patron and the incumbent shall not be disturbed to excercise his function but the King shall have a Quare impedit at the common Law Collation doth not put him who hath right to present out of possession but if one have right to Collate it doth an infant by the Act of W. 2. c. 5. shall have a Quare impedit if a man usurp upon an infant who had a Mannor to which c. by discent who at full age infeoffeth B. the Church voideth c. by the usurpation the infant was out of possession and his right passed not and seems the Infant is without remedy If a Clerke commeth in by course of Law this gaineth not the inheritance against the right Patron who was not party to the writ The King shall not recover damages by this Statute for he is not within the first branch Si tempus semestre transierit nor within the second Branch for that depends upon the first yet he shall count to damages An incumbent shall not be moved if he be not named in the writ and if he be not admitted c. pending the writ and lapse shall not incurre if the Bishop be named in the Writ otherwise if he be not If he who is presented pending the Writ be in by rightfull Patron or not yet he who recovereth in a Quare impedit shall have a generall Writ to the Bishop which he must execute of necessity and after that the parties may try their titles as the Law shall determine Countesse of Rutlands Case in the Starre-Chamber 3. Jacobi fo 52. THat the person of a Countesse or a Baronesse may not be arrested for Debt or trespasse for although in respect of their Sex they may not sit in the Parliament yet they are Peers of the Realme and shall be tryed by their Peers Stat. 20. H. 6. Peers of the Realme may not be sworne in any inquest a Countesse in Marrying with a Husband doth loose her Name of a Countesse If a Baronesse c. by Marriage marry againe under the Nobility shee looseth her dignity but if she be Noble by Birth or descent yet whomsoever she Marryeth she remaineth Noble for Birth-right is Character intelebilis and that which is gained by Marriage may also be lost by Marriage A Sheriffe ought not to dispute the Authority of Courts but he ought to Execute the Writs to him directed for thereunto be they Sworne Serjeant at Mace upon a cap. ad satisfaciendum came to the the said Countesse in Cheapside being in her Coach and touched her body with the Mace and said I arrest you Madame at the Suite of S. and those were all the words that were us'd therupon compell'd the Coach man to carry her unto the Counter-gate in Woodstreete and the Sheriffe tooke her into his house In this Case it was resolved that the Sheriffe Bayliffe c. upon the Arrest ought to shew at whose suite out of what Court for what cause it is and when the processe is returnable and that this generall Arrest of the Countesse cannot be said that it was by force of the said Writ of Execution and that this Arrest was of the Serjeants owne head without warrant and against Law and that the said Countesse was falsly imprisoned but she remained in the Sheriffes custody 7. or 8. dayes untill shee paid the Debt but because the Arrest was by a fained Action entered in the Counter the Serjeants were sentenced The Lord Chandos case 4. Jacobi fol. 55. THe King grants to B. in taile and in consideration of the surrender of the Letters Patents by force whereof the King is seised in fee granteth to him and his wife and to the heires of B. the reversion passeth for the recitall that the King was seised in fee was but the Collection of the King and no part of the consideration or suggestion of the party And when the King grants land in posseâ—… if he had but a reversion this shall passe for he is not deceived because lesse passes then he intended Bredimans case 4. Jacobi Com. Banco fol. 56. A Man deviseth a rent for life out of a Mannor and he deviseth the Mannor for yeares the termor enters and pays the rent after the Terme the devisee brings an assize against the Terretenant Resol Payment by lessee for yeares of the rent giveth no seisin to have an assize 1. In respect of the imbecillity of his estate 2. He cannot give seisin because he had not seisin and therefore a Pracipe lyeth not against him because he cannot render seisin but he may take seisin to the use of him in the freehold A disseisor may give seisin of a rent secke because he hath a freehold and it is lawfull 3. A rent secke is caecus siccus therefore it behoveth the first payment which giveth life unto it shall be made by a Tenant of the freehold and in this case being created by devise an Annuity lyeth not thereupon otherwise if it be by grant and Tenant of the freehold ought to attorne to a grant of such a rent over therefore he shall give seisin But seisin by a Bailiffe is good if seisin were had before within sixty yeares and seisin given by Tenant at will is good but it ought to be pleaded as payment by the lessor himselfe If the King hath rent out of a ville to be paid by all the Inhabitants seisin alledged in generall without naming any is good Gatewards case 4. Jac. in Com. Banco fol. 59. TO claime common ratione Commorantiae residen in villa de B. is not good for no man may have interest â—…ommon in respect of a Messuage wherein he hath no interest For custome should alwayes extend to that which hath certenty and continuance and without question tenant in fee simple ought to prescribe in his owne name and tenant for life or yeares by elegit at will c. in the name of him that hath the Fee and he that hath no interest cannot have any common and none that hath any interest although it be but at will and ought to have common but by good pleading he may enjoy the same No improvement might be made in any wasts if this custome viz. in respect of habitation and Comorance should be allowed for tenants for life or yeares at will by elegit by Statute c. of the houses of the Lord should have common in the wasts of the Lord if this prescription were allowed which were inconvenient A Custome that every Inhabitant in B. shall have a way over such grounds either to the Church or Markett c. is a good custome for that is onely easement and no profit and a way or passage may well sequi
countenance that dangerous and desperate error of the Spencers viz. That Homage and Oath of legeance was more by reason of the Kings Crowne that is of his politique capacity then by reason of the person of the King which was condemned by two Parliaments one in the Reigne of E. 2. called Exilium Hugonis le Spencer and the other in 1. E. 3. cap. 1. No one Opinion in all our Bookes is against this judgement The Lord Chancellour and 12. of the Judges concurred in one opinion herein and not in any remembrance so Honourable and Intelligent an Auditory as was at this Case Bulwers Case 27. Eliz. fol. 1. H. H. recovered against the Plaintiffe in the common place and dyeth the Defendant in the name of H. Outlawed the Plaintiffe who brings an Action of the Case in N. where the first Action was brought and recovered for there was the visible torte when matter in one Câ—unty dependeth upon matter in another County the Plaintiffe may choose in which County to bring his Action except that the Defendant upon generall issue pleaded may be prejudiced of his Triall as if two conspire in one County to Endite one in another County and doe it an Action may be brought in either but if he be indited but not by them there it shall be brought where the conspiracy was If Manasse be made in E. whereby my Tenants recede into L. an Action shall be brought in E. if an action be founded upon two things materiall and traversable in two severall Counties an action may be brought in any of them An Annuity granted in one County to be paid in another the Action shall be brought where the grant was he who is robbed may have an appeale of felony in every County where the goods came but of robbery where the fact was done onely A lease for yeares in one County of Land in another Debt shall be brought where the Lease was made and wast where the Land lyeth every Action which concerneth the life of a man shall be brought where the offence is committed Every issue which ariseth upon an Action in which Land shall be recovered shall be brought where the Land lyeth as in right of ward of Land or body or intrusion of ward and forfeiture of Marriage Valore maritagij and Quare impedit but ravishment of ward where the ravishment was and a Quare non admisit where the refusall was before the Statute of 7. R. 2. c. 10. an Action for Land in diverse Counties or for common in one County appendant to Land in another County shall be brought by severall Writs in both Counties but now In confinio comitatuum a per quae servitia shall be brought where the note of the fine is levyed Sir Miles Corbets case 27. Eliz. in Scaccario fol. 5. REsol That the speciall manner of Common in Norf called Shacke to be taken in arrable land after harvest untill sowing begin is good Resol also if in D. there are fifty acres and in S. 100. l. who ought to intercommon for vicinage D. cannot put in more in their Common then it will depasture and so to escape reciprocally for the originall cause of this Common was onely to prevent suits in Champian Countries Cases upon the Statute of 13. E. 1. of Winchester upon hue and cry Sendills case 27. Eliz. in Com. Banco fol. 6. A Robbery for which the Hundred must answer by force of the said Statute is to be done openly so as the Country may take notice thereof themselves but a Robbery done secretly in the house the Country cannot take notice thereof for every one may keepe his house as strong as he will at his perill For it was adjudged in Ashpoles case that the partie robbed needed not to give notice thereof to the Country For it may be that the partie robbed was bound or maimed c. so as he could not make hue and cry to give notice A robbery was done in January presently after the Sunne setting during day-light and it was adjudged that the Hundred should answer for the same for it was a convenient time for men to travell or to be about their businesse One was killed in the Evening and escaped and by the common Law the Towne was amerced for that was accounted in Law parcell of the day and not of the night But by the Statute 27. El. ca. 13. none shall have action upon the said Statute except the partie robbed so soone as he may give notice of the same to any of the Inhabitants of any Village Towne or Hamlet next to the place where the robbery was done and if they in pursuite apprehend any of the offenders that will excuse the Towne Mibornes case 29. Eliz. in Com. Banco fol. 6. A Robbery was done in the morning ante lucem the Hundred shall not be charged Cum quis felonicè occisus fuit per diem nisi felocaptus fuit tota villata illa amercietur The Earle of Bedfords Case 29. Eliz. fol. 7. 1. REsol If tenant in taile make a voydable lease for yeares and dyeth his heire in ward to the King or other Lord the Lord shall avoyde this lease but if an infant make a feoffment the Lord by Escheate shall not avoyde it but a gardian shall because he doth it in right of the infant 2. This avoidance is but during the interest of the Lord for afterwards the heire may make it good But if he who hath a particular estate avoideth an act in all after his Interest determined it shall not be made good as if a feme be indowed of an appropriation and her clerke inducted the appropriation is defeated for ever so if a feme Covert as a feme sole levy a fine and the Baron enters and dyeth the Conâ—see shall not have the land for the estate is wholly defeated Vghtreds Case 33. Eliz. fol. 9. THe M. of W. granted the Captainship of a Fort to the plaintiffe and for exercising of the said office and for finding a Master Gunner and six Souldiers granted to him an Annuity of 32. li. per annum the plaintiffe brings an Annuity 1. Except It doth not appeare by the Count that the M. had power to grant this office Non allocatur 2. The plaintiffe doth not averre the exercising of the said office Non allocatur for if he had not used it that shall come in on the other part because this is a condition subsequent and not precedent but if one be to have a thing in consideration of an act to be done by him there he must shew the performance because that amounts to a condition precedent as in debt for salarie but if each party had equall remedy one for the money and the other for the act to be done there the Count shall be without shewing the performance as if one Covenant to serve c. and the other Covenants to give money c. But although that an interest vested is to be devested by non feasance
disseissed at the common ley and dyed and the Feme before entry dyed this is a discontinuance to the Sonne because he cannot enter as Heire to both but if the Feme enter the discontinuance is purged 2. The estate which the Feme had jointly with her Baron is within the purviewe of the Statute of 32. H. 8. c. 28. That no fine levyed by the Baron sole of Lands of the Feme shall hurt her and within the Statute of West 2. c. 3. 3. The entry of the Sonne is lawfull although he claimes not as heire to the Feme as the Statute speakes but as heire to both because he is within these words or to such as have right by the death of such Wife and this is to be intended of discontinuances made by the Baron and not of a rightfull barre of the issue for they cannot avoide it and the Statute is that they may enter which they cannot doe where they are barred and if the Feme enter within 5. yeares as shee may after a Fine levyed by the Baron this doth not take away the future barre of the issue and if shee enter not within 5. yeares shee also is barred Baron tenant in taile the remainder to the Feme in taile makes a feoffement the Feme may enter after his death by this Statute but if the Baron suffer a recovery she shall not enter in the Case at barre the son may have a Formedon at the common Law and where before this Statute a Cuj in vita or Sur cuj in vita did lye entry is given by this Statute and not otherwise The Lord Staffords Case 7. Jacobi fo 73. THe Queene revertioner upon an estate taile grants the revertion to T. T. in taile upon condition is to have Praedictam reversionem in fee the condition is performed the Lord Stafford Tenant in taile levyeth a fine his issue is barred 1. Resolved that a condition of accruer may be annexed to a thing which lyeth in grant and to an estate taile as if Lessee for life be the remainder for life with condition of accruer to the first this is good and yet no Merger of estate 4. things are requisit to an accruer 1. A particular estate as the Foundation Ergo a Lease at will shall not be 2. The estate ought to continue in the Grantee untill accruer therefore if the Grantee alien and repurchase the condition is Tolled but Quaere if the Tenant alien upon condition which is broken if the fee shall accrew but grantee may grant part of his estate as if Lessee for life make a Lease for yeares he may performe the condition after so may Tenant in speciall taile after he is become tenant in taile after possibility c. so may the surviving jointenant and the heire of Tenant in taile An instant is sufficient to support an accruer as if the condition be if the Lessee be ousted Eo instante that the ouster is the fee accrueth but if Lessee for yeares accept a confirmation for life the condition is gone but it is not necessary that the estate of the grantor or Lessor continue because by his owne act he shall not defeate his grant 3. It ought to vest at the time of the condition performed or never and for that rather that it shall not vest at this time by performance of the condition the fee without office or other ceremony shall be devested out of the King 4. It is necessary that the particular estate and the condition be in one deede or two deeds delivered at the same time for in Law they are but one grant and by the condition performed he had fee from the delivery Resolved Praedict reversionem signifies the reversion which the Queene had Viz. That which depends upon both the estates taile and so was the intent also shee granted Omnia praemissa which maketh it cleere Resolved also that these words Will and Declare doe amount to a grant and are so used in Patents of Liberties and things to take effect in Futuro Tenant in taile the remainder in taile the remainder to the King Tenant in taile suffers a recovery this doth not barre the remainder in taile because the issue in raile is not barred and therefore the revertions and remainders in taile are preserved by the Statute of 34. H. 8. c. 20. Lastly Resolved if the reversion in fee had remained in the Crowne that the fine levyed by Ed Lord Stafford the Father had not barred the Lord that now is Notlyes Case 31. Eliz. com banco Wiat Wields Case 7. Jacobi 78. W. W. seised of Land to which he had common appurtenant aliens 5. acres to one who in replevin counts that he and those whose estate he had in the said 5. acres have had common there c. and good 1. Resolved although by purchase of part of the Land in which c. the common appurtenant is destroyed in all yet it is not so by alienation of part of the Land to which but all remaines without damage to the Tenant of the Land 2. That the pleading of it was sufficient Vinyors Case 7. Jacobi fo 80. ONe was bound to stand to the award of W. R. and revokes the submission the Obligee brings Debt 1. Resolved the Countermand is good for an authority Countermandable by the Law cannot by any way be made irrevocable 2. Although that the Plaintiffe doth not show that the Defendant had given notice to the arbitrator yet it is good because this is implied for without notice the revocation is void 3. The Obligation by the Countermand is forfeited because he doth not stand to c. when he Countermands it 2. By his owne act he had made the condition impossible Ergo the Obligation is single if one bindes himselfe to give License to carry Wood c. for a certaine time if he give it and disturbe him the Obligation is forfeited Sir Richard Pexhalls Case 7. Jacobi fo 83. SIr R. P. seised of Lands part whereof is houlden in Capite deviseth 100. Sheepe 10. Bullocks and 10. l. quarterly to one with clause of distresse and that the Grantee shall hold his Courts for his life for rent arreare for 2. yeares the grantee avoweth 1. Resolved a devise of rent out of all is good and taketh effect out of two parts and as to the third is void 2 The grantee shall have an estate for life in rent and so he shall if it be granted by Deede also by the Intent of the Devisor it appeares that the Grantee shall hold Courts and have 10. l. per annum for his wages and quarterly here had relation to rent onely because the word Et disjoyneth it from Sheep and Bullocks and judgement given for the Avowant Buckmers Case 7. Jac. fo 86. T. B. gave a House in Gavellkinde to M. his Eldest Daughter in taile the remainder of one Moity to J. a second Daughter in taile the remainder of the other Moity to K. a third Daughter in
taile with crosse remainders to J. and K. M. discontinueth and dyeth without issue J. dyeth without issue K. dyeth and her issue brings a Formedon in the remainder and good although severall remainders for they depend upon one estate and commence by gift at one time In actions reall in which title is expressed a man shall not have one Writ for Lands to which he had severall Titles as in escheate cessavit Writ of Mesne c. but he may have a Writ of ward of Land onely although it be by severall Tenures nor one formedon upon two distinct gifts where the foundation is severall but he shall have it if there be one gift although it take effect at severall times because the foundation was joynt and single as upon a gift in taile to Brother and Sister who dye without issue or if the Brother dye without issue and the Sister dye having issue who dyes without issue he to whom the remainder limitted shall have one formedon although it vest at severall times so in an estate taile to Father and Sonne and so here In actions reall founded upon Torte a man shall have one Writ to recover Lands to which he had severall Titles as in an assize a Writ of entry c. but in a Writ of entry upon disseisin made to my Mother and her Sister Coperceners because there title is in the Writ it appeareth he ought to have severall actions but in personall actions one may comprehend severall torts and causes of actions as trespasse for trespasse made at severall dayes and places wast upon severall Leases and so of Debt Nota if a remainder be executed issue in remainder shall not have a formedon in remainder but in the discender and Count of an immediate gift but if there be a Lease for life to one the remainder in taile to A. the remainder in taile to B. A. dyes without issue if B. be chased to his formedon he shall not count of an immediate remainder but shall shew the first remainder to A. and that he is dead without issue 2. In formedon in the remainder or reverter omission of issue inheritable in the pedigree of the demandant abates the Writ but not upon the part of the perticular Tenant 3. The Demandant must make mention of the Sonne who survived the Father to which Son the Land discended but was not seised by force of the taile but he shall name him Sonne but not heire 4. The Demandant in a formedon in the Discender must make himselfe heire to him that was last seised and he to the Donee Note here because K. was never seised the Writ shall say Remanere not descendere and the Writ was Remansit jus because a discontinuance otherwise it should be Tenementa remanserunt Fraunces Case 7. Jac. fo 89. THe Plaintiffe pleads in barre of avowry that R. F. devised to I. his Sonne who leased to him the avowant replyeth that after the devise R. F. made a Feoffement to the use of the said I. upon condition that he shall suffer his Executors to take away his goods and the estate limitted to him was for sixty yeares if he should so long live with diverse remainders over and that after the death of F. I. hindered the Executors to carry away the goods whereupon T. in remainder entered and judgement given for the Plaintiffe 1. Resolv Although the condition be taken strictly the uses to I. onely and to his Heires are onely avoided by it 2. A disturbance by paroll is no Breach of the condition and because the avowant did not shew a speciall disturbance his replication was void 3. I. ought to have notice of the condition being a Stranger to it or otherwise he cannot breake it as a Copy-holder shall not forfeite for denyall of rent to him to whose use a Mannor is transferred before notice but he who bindes himselfe to doe any thing must take notice at his perill because he hath taken it upon him 4. Although that the Title which the Plaintiffe had made in barre to the avowry be destroyed yet he shall have judgement because his count is good and another Title that is to have the Land for sixty yeares by force of the uses declared upon the feoffement is given unto him by the Replication although that the title which he made for himselfe be destroyed yet the Court must adjudge upon all the record and judgement was entered for him accordingly Edward Foxes Case 7. Jacobi fo 93. A Revertioner upon a Lease for life the remainder for life in consideration of 50. l. demiseth granteth c. his reversion for 99. yeares rendering rent this is a bargaine and sale and there needs no attornement for the words of bargaine and sale are not necessary if there are words which tantamount as if at the common Law one had sould his Land an use had beene raised to the Vendee because their intent so appeared so here but if it appeare that their intent was to passe it at the common Law as if a Letter of Attorney be made to make livery the use had not risen and here appeareth their intent to passe it as a bargaine and sale because rent is reserved presently therefore it is reason that he shall have the rents of the particular Tenants presently which cannot be if it passe not by bargaine and sale and inrollment is not necessary because a tearme for yeares onely passeth in this case and â—o freehold See Sir Rowland Heywards Case 2. Report fo 35. Matthew Mannings Case 7. Jacobi fo 94. LEssee for yeares is bound in 200. Markes to W. C. and deviseth to his Wife for life and after her death to M. M and makes his Wife Executrix who agrees and dyeth intestate M. M. enters and takes administration of the goods not administred W. C. brings Debt against him Resolved that M. M. takes by Executory devise and not as a remainder and the estate limmitted to him in construction precedeth the limittation to the Wife as if he had devised that if the Wife die within the terme that then M. M. shall have the residue and also devised it to his Wife for life 2. This case is most strong because a Chattell which may vest and revest at pleasure of the Devisor without mischiefe to the Praecipe 2. A devise of the Terme and Occupation thereof all one Viz. So many yeares as the Feme shall live the remainder to M. M. 4. After the Executrix had agreed the first devisee cannot barre the Executory devise 5. A man may devise an estate which he cannot convey by act executed as to his Executors untill his Debts shall be paid the remainder over they have a Chattell determinable upon payment of the Debts which cannot be at the common Law If a Sheriffe sell a Terme upon a Fieri facias and judgement is reversed the sale shall stand otherwise none will buy any thing upon Execution and judgement was given for the Plaintiffe and affirmed in Error
the prochein avoidance be within the tearme the grant is good for yeares cannot determine but the effluxion of time and the Law implyes this limitation if the Church doe come voyd during the tearme For expressio eorum quae tacite insunt nihil operatur Likewise if a lessee for yeares grant a rent charge and after surrender yet for the benefit of the grantee the tearme hath continuance although in rei veritate it is determined and the grantor himselfe shall not derogate from his owne grant to make it voyd at his pleasure The six Carpenters Case 8. Jacobi fol. 146. IT was resolved when entry authority or license is given to any by the Law and he abuse the same in this case hee shall be a trespassor ab initio But where entry authority or license is given by the party and he abuse the same there he shall be punished for this abuse but he shall not be sayd to be a trespassor ab initio and the diversity is this because the Law doth judge by the act subsequent quo animo or to what intent hee enters acta exteriora judicant interiora secreta But when the partie giveth authority c. to doe a thing he cannot for any subsequent cause punish the same 1. The Law doth give authority of entry into a common Inn Taverne c. 2. To a Lord to enter and distreine 3. To an owner of the soyle to enter and distreine dammage feasant 4. To him in reversion to view if waste be committed 5. To a commoner to enter into his Land to view his Cattell c. But if hee that enters into an Inn c. doe trespasse or take any thing away or if the Lord that distreines for rent or owner for dammage feasant labour or kill the distresse or he that enters to view wast bruse the house or stay there all night or if a commoner sell Tymber in these cases and such like the Law judgeth that hee entred for the same purpose and therefore the act that doth demonstrate this is to be a trespasse and he shall be a trespassor ab initio It was resolved that the non-seasons or not doing of a thing is not any trepasse where the Law giveth license or authority to enter viz. to deny to pay for Wine in a Taverne is not a trespasse but the Taverner may have an action of debt 12 E. 4.8 If a Taylor overvalue the making of a Garment and the necessaries thereunto he shall not have an action of debt for his owne values unlesse it be specially agreed upon before but he may detaine the Garment untill he be payd or satisfied and if the party sue for the same the Jury shall set downe the value and the Taylor shall have no more but be barred for the rest Likewise an Ostler may deteine an Horse c. Tender of sufficient amends for dammage fesant befor the distresse taken is good and the taking of a distresse afterwards is wrong tender after the taking of a distresse and before the impounding maketh the detaining wrong but not the taking but tender after the impounding commeth too late for then the cause is put to the tryall of the Law Edward Althams Case 8. Jacobi fol. 159. In dower and pleaded N. Seised in fee of Lands in W. and G. deviseth the Lands in G. to his younger Son for life it was agreed betweene the eldest Son and the Widow of T. N. that shee should release her dower in W. shee releaseth unto him omnes actiones demand c. necnon omnem dotem titulum dotis c. de aliquibus terris in W both the Sons dye shee brings dowre of the Lands in G. and judgement given for the demandant 1. Resol A release of all actions to him in the reversion barreth not dowre because shee had no cause of action against him but against the tenant of the free hold but a release of all her right to him in the reversion extinguisheth dowre for a release of right beareth actions but a release of actions barreth not a right if there be other meane to come to it otherwise not as if the disseisee release all actions to the heire of the disseisor the right is extinct otherwise it is if the release be to the disseisor and a discent after or if the release be to the lessee for life of the heire a release of all actions reall and personall is no barr in a Writ of errour but a release of a Writ of errour is a release of actions is no barr to have execution if he be not put to a Scire facias a release of a thing due before the time of payment thereof is good Quaerela is more then an action for by that the cause of action is released by release of suites executions are barred for none shall have execution without suite for it so it is of all duties but a release de quaerelis infectis in that case barreth not dowre by release of titles dowre is barred and by release of demands which is the most ample release of all 2. The collaterall agreement is not of any force or effect but generall words ought to be qualified by apt words contained in the same Deed as in this case mihi contingent per mortem dicti T. viri mei de aliquibus terris in W. c. and so extends not to any Lands in G. but restraineth the generall words to the Lands in W. onely Quando carta continet generalem clausulam posteaque descendit ad verba specialia quae clausuâ—ae generali sunt consentaneae interpretanda est carta secundum verba specialia As if a man grants a rent in manerio de D. precipiendum in 100. Acres parcel thereof with clause of distresse in the 100 Acres the rent shall issue out of the 100. Acres onely Arthur Blackamores Case 8. Jacobi fol. 156. THe Defendant is named Gent. in the originall Writ but by negligence of the Cursitor hee is outlawed by the name of Knight this is amendable at the common Law but in case of the King default of the Court was amendable at the Common Law as erroneous entrance of the continuance essoyne c. and any part of the Record the same Terme and therefore diverse Statutes of amendments were made one of the last whereof was 8. H. 6. cap. 12. which was more large and extends to processe and to seven other things to Records Pleas Parolls Warrants of Attorney to Writs originall and judiciall Pannels and Returnes that is where it was the misprision of the Clerke and onely the default of the Clerke by negligence is amendable but not by his nescience as if an action be brought against executors in the debet and detinet or if it be false Latine but if a word which is not Latine be written for a Latine word this is amendable as Imaginavit for Imaginatus est In a Writ of trespasse against diverse if it abate for default against one it
sustenance c. his Chattells eyther reall or personall Hales Case 8. Jacobi fol. 172. THe Heire Ward comes to full age and tenders his livery and bargaines and sells and dyes the interest of the King is determined and the Bargainee shall not answer for the meane profits for the Heire had done all that he could doe and no default in him otherwise if he had not tendered it Sir Henry Constables Case 8. Jacobi fol. 173. THe Sonne of the Tenant of the King is made a Knight in the life of his Father the Father dyes the Sonne within age tenders his livery by that the meane profits are saved and the King shall not have the rates within age Virgill Parkers Case 8. Jacobi fol. 173. VIrgill Parker seised of the Mannor of Fushell in fee houlden of the King in Chivalry of his Dutchie of Lancaster maketh a feoffement of the one halfe to the use of himselfe for life and after to the use of Mary Coney whom he intended to Marry for her life for her joynture and after he Married her and then Leased the other halfe to I. C. for yeares for payment of his Debts and Legacies and dyed his Heire within age Question whither the King should have the third part out of the Mannor so Leased onely or out of the whole and it was resolved that it shall be out of the whole Mannor although the estate of the Wife was precedent that is equally out of both parts The End of the Eighth Booke THE NINETH BOOK Dowmans Case 28. Eliz. Communi Banco fol. 7. An Assize pleaded THe Defendant in an Assize makes Title by a recovery suffered by P. V. to certaine uses the Plaintiffe confesseth the recovery and saith That it was to the use of the said P. in fee and traverseth that it was to the uses mentioned by the Defendant the Jury found that it was suffered as the Defendant had alleadged and that by Indenture subsequent the intent of the parties was declared by them to be as the Defendant had alleadged adjudg'd for the Defendants 1. Resolved that this subsequent Indenture directs the uses of the precedent recovery by estoppell against the Recoveree and his Heires and although that it be granted that a deede is requisit to the priviledge without impeachment of wast yet the estate without deede is good No averrment can be taken that the recovery was to other uses then are mentioned in a precedent indenture otherwise in an Indenture subsequent because if uses were declared by a precedent indenture no Declaration after shall devest them So if P. V. had charged the Land and then had made such a Declaration this shall not devest estates of grantees c. but no declaration being the uses by Declaration subsequent be devested 2. In all actions betweene all persons and in all issues the Jury may give a Verdict at large and the Statute of W. 2. cap. 30. which giveth it in Assize is but an affirmance of the Common Law but a Jury cannot find a thing impertinent to the issue The death of Sir James Dyer Chiefe Justice of the Common Pleas with an ample and memorable Encomium of him by Sir Edward Cooke c. Vivit post funera virtus Anna Bedingfeilds Case 28. Eliz fol. 15. In dower A Common essoyne is allowable in dowre and the Statute of 12. E. 2. is to be intended of an essoyne in the Kings service for the Statute saith in prorogation of the right which is properly this essoyne which is for a yeare and a day 2. If tenant of the King dyeth seized of diverse Mannors and it is found by office that he dyed seized of one in dowre brought against the Heire of full age he sueth a Circumspecti agatis this extends not to more then is in the Office for this Writ is in the nature of an ayde praier and the King hath no right to seise more then is in the Office and as to this Mannor it was objected that it shall be allowed as well as if the Heire be within age for in this Case by the Statute of Praerogat Regis cap. 4. that the Feme may be indowed in Chancery It was answered that by the Statute of Bigamis cap. 4. ayde shall not be granted of the King in that Case and therefore before the Statute of Praerogat the King nor other Lord could not indow the Feme if the Heire were of full age because he is not then Gardian and the Statute of Praerogat giveth power to the King to indow the Wife in such case if shee will and not otherwise Where the Heire pleads to Dower detinue of Charters they ought to concerne the same Land and this Plea is to be allowed because the Feme who deteineth Chartars is not worthy to have Dower and also for the privity which is betweene the Heire and her 2. The Heire ought to shew the certeinty of the Charters or that they were in a Chest 3. None but the Heire himselfe shall have this plea nor the Heire himselfe if he commeth in by purchase or if the Feme had them by his delivery nor if he comes in as Vouchee having no Lands in the same County or as Tenant by resceite because in these Cases he cannot pleade as he ought that he is ready to render Dower 4. A Gardian shall not pleade it because the Charters doe not belong unto him but he may pleade detinue of the Ward and if be be not restored unto him unmarried the Feme shall loose her Dower and after the Tenant waived this plea and pleaded Vnques accouple in loyall Matrimony and the Bishop of N. certified that they were lawfully married where upon the Demandant had judgement Case of Avowry fol. 20. IF there be Lord and Tenant by fealty and rent and the Tenant make a Lease for yeares and the Lessee hath done his fealty and paid his rent continually and yet the Lord distreineth the Beasts of the Lessee for the rent and avowed upon a meere stranger as upon his very Tenant Question whither the Lessee be without remedy for it is a position in Law that a stranger to the avowry shall not plead but Hors de son fee c. But it was resolved that the Lessee shall be releeved and he must alledge that the Lessor is seised of the Tenancy c. and the Lord shall be compelled to avow upon the Tenant and the false avowry of the Lord upon a stranger which is not very Tenant shall not hurt the Lessee against the verity of the Case Quia veritas nihil veretur nisi abscondi If one come to distreine for damage Fesant and seeth the Beasts and the owner chase them out the party may not distreine them damage feasant but is put to his Action of Trespasse for the beasts must be damage feasant at the time of the distresse taken he who distreines for services upon fresh suite may avow upon the Land by the equity of 21. H. 8. c. 19. if
give to them any interest or Title eyther to the things in action or possession for they have all their title and interest by the Testament and not by the Probate Power to grant administrations was granted to the Ordinary by the act of 31. Ed. 3. ca. 11. for before that time when a man died intestate the King who is Parens patriae was accustomed by his Ministers to seize his goods to the intent they might be preserved and bestowed for the Buriall of the dead for payment of his debts for advancement of his Wife and Children if he had any otherwise to his Kindred as appeareth in Rot. Claus de 7. H. 3. in ib. bona intestatorum capi solebant in manus regis c. And after this care and trust was committed to the Ordinaries and it was resolved Per totam Cur. M. 8. and 9. Eliz. Dyer that the Ordinary himselfe hath not any authority to sell any goods of the intestate although they be in danger of perishing neither can he release any debt due unto the intestate by a statute in Ao 31. Ed. 3. ca. 11. the Ordinary shall depute the next and most lawfull friends of the dead person intestate to administer his goods And the Statute in Ao 21. H. 8. ca. 5. is that the Ordinary shall grant the administration to the widdow of the same person so deceast or to the next of his Kin or to both as by the discretion of the Ordinary shall be thought good c. Reade this latter Statute to whom administrations shall be granted The Earle of Shrewsburies Case 8. Jacobi fol. 46. 1. REsolved that the grant of the Stewardship of the Mannors of M. and B. without naming the County in which c. is good as if the K. grants all the Lands of priors aliens without naming the County but the party in pleading must name the County and upon Non concessit pleaded it will appeare by the evidence and by circumstances what Mannor was granted but if he had demanded oyer and demurred it will be adjudged against him for it is matter in fact and the acts of confirmations extend not where the County is omitted but where the County is misnamed 2. The grant from a day past is good and the intent was that the Earle shall have the fees from that day but if that cannot be it shall be good for the time to come 3. The Earle had no power to make Deputies for three offices passe by these Letters Patents severally whereof this is the middle and to the first power is annexed to make Deputies but not to the second the words are Habendum offic praed with such a contraction To that the Court answered that this Habendum shall have relation to this office for it is intended that the Earle shall excercise this base office by Deputy for if a Sheriffe shall doe it a Fortiori an Earle 2. Admitting that he cannot make a Deputy this Non user is no cause of forfeiture for true it is when an office toucheth administration of Justice Non user without request is cause of forfeiture but if he be not bound to exercise it without request otherwise it is as here he is not bound by the Letters Patents to hold Courts untill he be required if an office be private and not for administration of Justice Non user without damage or request is no forfeiture 4. Resolved that the Writ and count were good although they were Vi armis and the difference is betweene Non feasans or negligence and mis-feasance that may be Vi armis therefore if one bring an Action upon the Case Quare vi armis he hindered men from comming to his Fayre which is Causa causans whereby he lost his toll which is Causa causata and the point of the Action this is good 5. The office not being meinorable it is in his election to have an Action of the Case or an assize otherwise it is of Land See five Exceptions taken to the Verdict Falsa Orthographia Non vitiat concessionem and the difference is betweene Writs and Grants Ille numerus sensus abbreviationum accipiendus est ut concessio non sit in anis and judgement was given for the Earle of R. Hickmots Case 8 Jacobi Com. banco fol. 52. IN Debt upon an Obligation the Defendant pleads a release which is in these words The Obligee confesseth himselfe to be discharged of all bonds c. and that he will deliver all but one bond whereupon the action is brought which was made by the Plaintiffe and another 1. Resol These words that the Obligee confesseth himselfe to be discharged of all bonds is a release and amounteth to that that the bonds are discharged 2. The exception extends to all the premises and not onely to the delivery 3. The Plaintiffe by confessing that the Obligation was made by another and the Defendant against whom onely he brought the Action had abated his owne Writ and after the Plaintiffe was Non-suited Batens Case 8. Jacobi fol. 53. A Quod permittat to abate a House levyed Ad nocumentum liberi tenementi I. P. and now of the Plaintiffe and Counts that the House of the Defendant doth juttie over the House of the Plaintiffe and judgement given for the Plaintiffe 1. Resolved the Plaintiffe needs not shew how he had the estate of I. P. 2. The Writ is Ad nocumentum liberi tenementi I.P. and now of the Plaintiffe and counts to the Nusans of the Plaintiffe onely it is good for the levying in the time of I. P. imployeth a Nusans to him and he must shew a Nusans to himselfe to maintaine the action 3. If it appeare to the Court that the Nusans is to the damage of the Plaintiffe he needs not shew it specially as if the House of the Defendant hangeth over the House of the Plaintiffe as here for it appeareth that the light was stopped and that the raine discended Quod constat clare non debes Verificare and the Plaintiffe may abate the Nusans if he will the Statute of Westm 2. c. 24. which giveth the Quod permittat against the alienee of him who levyed the Nusans extends not to the alienee of the alienee The Poulters Case fol. 55. IF one were taken for the death of a man he was not bailable at the Common Law without a Writ De Odio acia which serveth not if he be appealed or indicted 2. If he be found not guilty upon the said Writ he was not bailable without a Writ De ponendo in ballivum 3. A Writ of conspiracy lyeth not before acquittall but the conspirators may be indicted or censured in the Starre-Chamber Confedracies punishable by Law before Execution ought to have 4. incidents 1. They must be declared by some manner of prosecution as was in this Case 2. They ought to be malicious and for revenge 3. They ought to be false against an innocent 4. They ought to be out of
he lost his Common the Jury found that the Defendant did not put in the Beasts but they of themselves depastured there 1. The Jury have found the substance of the issue for the Plaintiffe the depasturing there and it is not materiall if he put them not there 2. This Action lyeth for the Commoner for he may distreine damage feasant and it may be that with strong hand he is hindered to distreine and so if he shall not have this Action he is remedilesse 2. A Commoner who had freehold in the common shall have an Assize Ergo a Copy-holder shall have this Action 3. The wrong ought to be so great that the Commoner loose his Common as a Master shall not have an Action for beating his Servant without losse of his Service and it appeareth not to the Court that there are more Commoners then he and if there be yet an Action lyeth because each had private damage and it is not like to a common Nusans which shall be punished onely in a Leete if there be not speciall damage but be the Trespasse never so little the Lord may have an Action of Trespasse The Lord Sanchars Case 10. Jacobi fol. 117. For procuring the Murther of John Turnor Mr. of Defence 1. REsolv That a Baron of Scotland shall be tried by Commons of England 2. The Indictment of the accessory in one County to a Fellony in another County by the Statute of 2. E. 6. c. 24. shall recite that the fellony was done in the other County for an Indictment is no direct affirmation of the fact 3. The Justices of the Kings Bench are within these words of the Statute Justices of Gaole-delivery or Oyer and Terminer for they are the supreame Judges of Gaole-delivery 4. The Lord Sanchar cannot be in the Terme-time Arraigned in Midd. before Justices of Oyer and Terminer because Justices of Oyer and Terminer shall not sit in the same County where the Kings Bench is but the principalls were Arraigned in L. in the Terme-time because this is another County 5. There needs not be 15. dayes for the returne of the Venire facias upon an Indictment in the same County where the Kings Bench is otherwise in another County 6. Because there is no direct proofe that the Lord S. commanded one of the principalls but that he associated himselfe to one who was commanded the best way is to arraigne him as accessory to him whom he commanded but if he be Indicted as accessory to two and found accessory to one of them this is good The word Appeale in the Statute of W. 1. c. 14. is to be intended generally Viz. By Indictment by Writ or Bill c. and attainders is to be intended upon any such accusation Ergo if upon any such accusation the principall be attainted erroneously the accessory may be arraigned because the attainder is good untill it be reversed but if the Accessory be Hanged and after the Attainder against the principall is reversed the Heire of the Accessory shall be restored to all which his Father lost either by entry or Action By 5. H. 4. cap. 10. none shall be imprisoned by Justices of Peace but in the Common Gaole whereby it appeares that Justices of Peace offend who commit Fellons to the Counters in L. and other Prisons which are not Common Gaoles Cases in the Court of Wards Anthony Lowes Case 7. Jacobi fol. 122. A. L. Tenant of 59. Acres parcell of the Mannor of A. by chivalry and Suite of Court to B. whereof A. was parcell and both A. and B. were parcell of the Duchie of L. out of the County Palatine holden formerly of the King in Chivalry in Capite and of another House there holden of A. by fealty and rent H. 8. grants the rent by release to him and confirmeth his estate in the said Lands by fealty onely and grants to him the Mannor of A. Tenendum by fealty and rent It was Objected that when the King grants the Seigniory to his Tenant the ancient Seigniory is extinct and a new one that is best for the King created Viz. Chivalry 2. When he extinguisheth services parcell of the Mannor of A. this shall be holden as the Mannor of A. is that is by Chivalry But resolved that the 59. acres and house shall be holden by fealty onely and as to the said Objection the release of the King doth not extinguish service which is inseparable to a Tenure that is fealty but all others are gone and true it is when the K. grants and expresseth no tenure it shall be by Chivalry but when the Land moveth from a Subject and the Tenure is changed the new Tenure shall be as neere the ancient as may be as Feoffee of Tenant in Frankalmoigne shall hold by fealty onely and here although they grant the services yet he limits the grantee to doe fealty A Knights fee is not to be taken according to the quantity but the value of the Land as 20. l. per annum and a Hide of Land is as much as a Plough can Plough in a yeare Reliefe is the fourth part of the annuall value that is of a Knight five pound of a Baron a 100. Markes of an Earle 100. l. of a Marques 200. Markes of a Duke 200. l. The Eldest Sonne of E. 3. called the black Prince was the first Duke in England and Robert Earle of Oxford in the Raigne of R. 2. was the first Marques and the Lord Beaumont was the first Viscount created by K. H. 6. Floyers Case 8. Jacobi fol. 125. BAron and Feme seized of Lands holden in Chivalry in right of the Feme in Fee levy a Fine to one who grants and renders to them and the heires of the Baron and levy another Fine to their use for life the remainder to their three Sons in taile one after another the remainder in fee to the heires of the Baron the K. shall have neither wardship of body nor Land 1. Resol That is out of the Statute of 32. H. 8. cap. 2. if he who had the fee dye c. in respect the estate by the first Fine did not continue and this although both the Conveyances are voluntary 2. The King shall not have wardship of the third part because it is not for advancement of the Wife for in the first Fine the Land moved from her and shee had no more by the second Fine then by the first 3. In regard the particuler estate is out of the Statute no wardship accrueth to the King by advancement of him in the remainder but if a revertioner upon an estate for life convey it to the use of his Wife this will give wardship of the body of the heire for he in revertion is tenant if a Lease for life be the remainder to two and to the heires of one he who hath the fee dyeth his heire shall not be in ward if the heire of one joyntenant who had the fee dye of full age living the tenant for
defeasible Title the other shall distraine for the moity of the Seigniory and the Act of the Coparcener shall not prejudice her There are foure manner of Avowries 1. Upon his very Tenant 2. Upon his very Tenant by the manner where the Tenant had but a particular estate 3. Upon his Tenant by the manner when the Lord had but a particular estate 4 Upon the matter in the Land as within his fee but the Lord hath liberty to Avow according to the Common Law Thoroughgoods Case 9. Jacobi fol. 136. TEnant in fee infeoffeth one by Deed indented and delivereth it upon the Land in the name of seisin this is good and hath a double operation at one instant Viz. to deliver the Writing as a Deed and to deliver seisin of the Land according to the Deede 1. Resolved this is his Deed although he doth not say so but delivers it in the name of seisin for delivery is good without any words if one deliver a Deed to one as an escrow to be his Deed upon performance of conditions this is his Deed presently otherwise if he deliver it to a stranger so words are good without actuall delivery as if he saith take it like to a livery within view If the Obligee deliver the Obligation to the Obligor to redeliver the Obligor may retaine it for the words to redeliver are void 2. Delivery of the deede upon the Land amounteth not to livery and seisin but it doth if delivered in the name of seisin so of any other thing or if he saith I deliver you seisin without delivering any thing this is good also Beaumonts Case 10. Jacobi fol. 138. I. B. and E. his Wife Tenants in speciall Taile the remainder to the Heires of the Baron I. B. levies a Fine to K. E. 6. who grants to the Earle of H. in fee I. B. dyeth E. enters the Earle of H. confirmes her estate to have to her and the Heires of the body of I. B. E. dyeth seised having issue F. B. who accepts a fine Sur conusans de droit tantum with Proclamations and dyes having issue Sir H. and I. Sir H. in Ward to the K. after full age and before livery Covenanteth to stand seised to the use of himselfe and his heires Males of his body and dyes having issue onely a Daughter in Ward whether shee or I. B. shall have the Land c. 1. Resolved that E. had an estate taile and the Statute of 4. H. 7. c. 24. which inableth the Baron to barre the issue saveth the right of the Feme if shee enter or c. and one may have an estate taile which cannot discend as if the Sonne in the life of the Father levyeth a fine the Father remaineth Tenant in taile still although it cannot discend and E. here hath an estate taile so long as shee liveth or the Heires in taile remaine 2. The Confirmation is void for he who did confirme had but a possibility which passeth not by the confirmation and if he had a reversion in fee yet it should be void 1. Because the taile which the Feme had was confirmed which cannot descend 2. The confirmation doth not add a descendible quallity where he who should have it is disabled to receive by discent 3. This would in effect repeale 4. H. 7. 32. H. 8. two of the principall Pillars of the Law 4. 5. If Tenant in Dower grants her estate there is a discendible quality in the Heire to bring wast against Tenant in Dower and although the Heire confirme her estate for life and after shee assigneth it to I. S. who committeth wast yet the action of wast is maintainable against her Pari ratione in the Case at Barre in regard the confirmation doth not inlarge the estate of E. it cannot add unto it a discendible quallity 6. There are but three manner of Confirmations Viz. Perficiens Crescens aut diminuens and the Confirmation in this Case is none of them and if E. had no power to levy a fine or suffer recovery the reason is because she cannot barre that which was barred before by her Husband but this point was not now in Question The End of the Ninth Booke THE TENTH BOOK The Case of Suttons Hospitall Baxter Plaintiffe Sutton and Law Defendants in Trespasse in the Kings Bench and adjourned into the Exchequer Chamber and judgemet given against the Plaintiffe 1. Obj. BY the Parliament 7. Jacobi the Hospitall was Founded at H. in Essex Ergo the incorporation made after by the Kings Letters Patents is void and the Charterhouse is not given by the said Statute because S. purchased it after 2. Sutton who had License to Found an Hospitall before the Foundation dyed 3. The K. cannot name the House and Lands of S. to be an Hospitall because in Alieno solo 4. Every Corporation ought to have a place certaine but here the License is to found an Hospitall at or in the Charterhouse Ergo before that S. had made it certaine there was no incorporation also the place of Corporation ought to be certaine by Meates and Bounds and a place knowne will not serve 5. The King intended to make an incorporation presently which cannot be before that S. name a Master 6. Governors cannot be untill there be poore in the Hospitall Ergo S. calleth it in his Will his intended Hospitall 7. The Foundation cannot be without the words Fundo erigo c. and before such Foundation a Stranger cannot give Lands unto it 8. The Master was named at will where he ought to be for life and have freehold in the Lands also the Hospitall must be Founded before a Master be named 9. The bargaine and sale made by S. is void 1. Because the Money paid by the Governours in their private capacity shall not inure to them in their politick capacity 2. The Habendum is to them upon trust which cannot be in a Corporation 3. Because as before no Hospitall was Founded 10. The King cannot make Governours of a thing not in Esse To the first it was answered that the Letters Patents recite the preamble of the Act whereby and in many parts of the Act it appeareth that the incorporation was to be In futuro when it shall be erected and the Statute doth not give any Lands unto it but power to give without License of alienation and mortmaine and it appeareth by the Letters Patents that the erection precedes the License 2. The License is to him his Heires Executors c. at any time hereafter and the words of incorporation are in the present and so the incorporation precedeth the execution of this License 3. Although the King gave the name yet S. devised it and assented to it and the K. did it at his Suite 4. The K. makes an Hospitall of all the premises so that it is certaine and as to that which was said that a place uncertaine cannot be an Hospitall It was answered that a Mannor may be which is
more uncertaine then the Charterhouse To the essence of a Corporation five things are requisite 1. Lawfull authority to incorporate and that may be foure wayes by the common Law as the King himselfe by authority of Parliament by the K. Chartar and by prescription 2. The persons either naturall or politicall 3. A name by which c. 4. A place 5. Words sufficient but not restrained to a strict forme 5. A Corporation may be without head as if the K. incorporate a Towne and give to them power to choose a Maior they are a Corporation before Election 6. It is a sufficient incorporation that there be an Hospitall potestate for the Temple was a Corporation in the time of H. 1. and yet was not built till H. 2. time but here the House was built before 7. The first Donor is in Law the Founder and when the K. giveth a name and designes the place and the persons the Founder hath nothing to doe but the Donation but if the K. leaveth the nomination to the party there many times although not of necessity he useth the words Fundo erigo c. But in truth the incorporation is made by the K. Chartar and the Founder is but an instrument 8. The Master may be at will for by the Letters Patents S. had power to name one at his will and pleasure 9. The money paid by some of the Governours in their private Capacity is good but the payment was as Governours and so they are acquitted 2. A rent was reserved which is a good consideration 3. A bargaine and sale may be upon confidence and trust 10. They may plead that they are seised In jure incorporationis although then it be not In esse In Answer to the presidents some are Explanatory some Nugatory Ex consuetudine clericorum Sir Thomas Fleming Chiefe Justice of England became sick whereof he after died so that he never argued the Case See there his severall advancements and commendations Mary Portingtons Case 11. Jacobi fol. 35. AFter many things said concerning Perpetuities in this Case it was said that a recovery in value barreth an estate taile although no recompence be had because it is by judgement as if issue in taile be barred in a formedon by warranty and assets but if the issue before judgement given alien the assets his issue shall recover the Land in taile if Tenant in taile suffer a recovery and die before Execution the issue is barred It is absurd that one may barre one of going about to suffer a recovery when he cannot bare the recovery it selfe but if such a condition had beene good a Feme Covert by that shall not loose her Land for she shall not loose her Land by any conclusion without examination upon Writ in Court and if shee acknowledge a recognizance this is void although it be with her Husband because there is no Writ to examine her if an Infant levy a fine this is voidable and shall be tried by inspection but a fine levyed by a Feme Covert is void if the Husband enter otherwise not Jennings Case 38. ElIz Banco regis fol. 43. Tenant for life suffers a common recovery in which he in remainder in taile is vouched who dyeth the reversion in fee is barred 1. Resolved that at the common Law a recovery against Tenant for life upon a true warranty and recovery in value binds him in the remainder 2. No Statute was made to provide for him who had a reversion or remainder upon an estate taile and the Statute of W. 2. c. 3. which giveth receite to a revertioner upon default of him who holds Per donum is to be intended of Tenant after possibility of issue extinct and 32. H. 8. c. 31. provides onely for a reversion or remainder upon a Lease for life 3. There have beene diverse evasions out of the Statute of 32. H. 8. as if Lessee for life Lease for yeares to one who infeoffeth one who in recovery Vouches Lessee for life this was out of the Statute because the Lessor and Lessee were put to a right whereupon 14. Eliz. c. 8. was made 4. 14. Eliz. extends not where Lessee for life vouched him in remainder in taile because it is in the power of him in remainder to dock the reversion c. and the course is that Tenant in taile bargaines and sells to one who suffers a recovery in which Tenant in taile is Vouched and yet the bargainee had but for life judgement affirmed in Error Lampets Case 10. Jacobi fol. 46. LEssee for 5000. yeares deviseth for life to one whom he makes Executor the remainder to his Sister and the Heires of her body and dyes the Sister taketh Husband they release to the Executor who demiseth for ten yeares to the Defendant the Baron dyes the Executor dyes the Feme takes another Baron who demise to the Plaintiffe judgement against the Plaintiffe 1. Resolved a devise of the use of a Tearme to one for life the remainder to another for life is good as an Executory devise 2. A devise of the tearme it selfe in such manner is good 3. The first Devisee cannot barre him who had the Executory devise 4. Assent of the Executor to the first devise is an assent for all 5. If such a devise be made to the Executor and he enter generally he shall have it as Executor 6. Such an Executory devise cannot be granted over 7. Such an Executory devise may be extinguished by release to the first devisee Object That the first devisee had all the interest in him and the other but a possibility which cannot be released as if Conisee of a Statute release his right in the Land yet he may sue Execution It was answered that a thing in Action cannot be granted to a Stranger neither by the Act of the party nor of Law but it may be released to the Terre-tenant and here to him who had the present interest 1. Because as it may be easily created being a Chattell so it may be easily determined 2. Every right as well present as future by joyning all who have interest one way or other may be extinguished so if the Executor and the Sister here had joined in an assignement this had beene good 3. When many things are requisite to the perfection of any thing the Law respects the Originall Act and here the fundamentall acts were the devise death of the devisor the assent of the Executor and death of the first devisee and shee hath a right that may be released and the death of the Executor is but a meanes to bring it into possession as a Feme Covert barreth her selfe of Dower by joyning in a Fine with her Husband but if the Baron sole levy a fine and dyeth and five yeares passe the Feme is not bound so if Tenant in ancient demesne levy a fine he had possibility to have the Land againe if the Lord bring a Writ of desceit but he may release that possibility but
devise of Land purchased after 2. The statute doth not regard this seck reversion but inheritances of annuall value Resp To the first that this reversion shall hinder the devise by the words of the Statute for he had a reversion of Lands holden but although the Statute saith that he may alien two parts by act executed or will if he alien to one of the three uses by act executed he may devise the reversion for the Statute is to be intended of an intire Alienation and where the Statute saith in reversion or remainder it is to be intended that the devisor be seised of such a remainder which drawes wardship To the second it was answered that things which of their nature are seck are out of the Statute but not things which of their nature are of annuall value but are not of value in respect of some Lease or gift Absque abliquo inde reddendo and therefore seck reversions are devisable by the said Statutes but if they be not yet they shall hinder the devises of other Lands To make one able to devise by those Statutes the time of Having Holding and disposing must concurre and therefore if a grant to the second Sonne here had beene in fee although with power of revocation the devise had been good because he had no Lands In Capite at the time of the devise if the Father conveyeth his Land to the use of his younger Sonne the eldest being within age after the death of his Father he shall be in ward although nothing discend A true Child and not in reputation is within the Statute and if the Sonne purchase Land Bona fide of his Father this is out of the Statute because it is not for his advancement If Tenant in socage devise and after purchase Land in Chivalry the devise is void for a third part but if Tenant in Chivalry and socage devise all and after aliens the Land holden this is good To make division that the King shall have a third part holden the Lands shall be taken according to their value at the time of the death of the Devisor The time of provision that a third part must discend needs not concurre with the time of alienation but it is sufficient that he had it at the time of his death The estate to any of the three purposes ought to continue to the time of death and the Tenure must till after death to make it within the Statute and the estate also of Lands holden ought to continue after death therefore if Tenant in taile in Capite devise socage Land and dye without issue this is good so privity must continue after death therefore if he who made the conveyance be attainted this is out of the Statute The uses to the second Sonne are in contingency and not executed by 27. H. 8. by the power to make Leases and devise reserved to the feoffor and therefore the fee is in the feoffor in the meane time so that having disposed of it and being seised of it he cannot devise the Land purchased after It was Objected that the Statute saith lawfully executed in his life but here no use was to be executed in the second Sonne untill after his death It was Answered that after his death the uses were derived out of the feoffement and so are as it were executed in his life It was holden by the Chiefe Justice that the remainder to the second Sonne is contingent in regard no alienation is found to be made by the Eldest and if there had been then it would be repugnant that after alienation the Land should remaine to the second Sonne and so Quacunq via data the remainder as this Case is cannot vest in him but this point was not resolved by the Court. 2. The revocation is good although the Indenture precedeth the feoffement and that the uses are in contingency and that the revocation is but in part and the Chiefe Justice held that the Eldest Sonne had but a terme determinable and the second an estate taile But in this the Kings Bench and Common pleas differ in Opinion and that if Lands be devised to one and the Heires of his body for 500. yeares the Executors shall have it and not the Heire and the devisee may alien it for it cannot be intailed and so in Peacocks Case 28. Eliz. Banco Regis was it resolved Doctor Leyfields Case 8. Jacobi fol. 88. in Trespasse IN Trespasse for Corne taken at O. C. the Defendant pleads that Q. Eliz. granted the Rectory of O. C. to C. P. without shewing the Letters Patents who demised to G. P. for 8. yeares if the said C. P. so long live and that he as servant of G. P. tooke the Corne and avers the life of C. the Plaintiffe demurreth because the plea amounteth to the generall issue and it was adjudged in the K. Bench that the barre was insufficient because the Defendant shewed not the Letters Patents and Error was brought in the Exchequer-Chamber because the plea amounts to the generall issue because the Defendant gave no colour wherein judgement ought not to be given against the Defendant but onely to answer over 2. Because he is not bound to shew the Letters Patents It was answered that colour shall not be given for colour shall not be given where the plea goeth to the barre of the right for it would be in vaine to give colour of right and to barre him if he had right as if a collaterall warranty fine Statute be pleaded or if he claimes by a waife otherwise where he pleads a discent for this doth not barre the right but the possession he who claimes by sale in a Market overt shall not give colour if he pleads generally but if he pleads that I. S. was possessed as of his owne goods and sold them in a Market overt or waived them there he shall give colour because he confesseth no interest in the Plaintiffe 2. If the Defendant claimes by the Plaintiffe he shall not give colour 3. If the plea be to the Writ or action of the Writ no colour shall be given 4. Colour shall not be given in case of Tithes for to whomsoever the Lands belong the Tithes belong to the Parson 1. Colour ought to be a doubt to the Laygents 2. It must have continuance 3. It must be such a colour that if it be effectuall will maintaine the Action 4. It ought to be given by the first conveyance 2. Resolved Lessee for yeares of Lessee for life of the K. must shew the Letters Patents for he who is privy in estate or interest or who justifieth in right of a Party or privy although he claime but part must shew the first deed and the reason that deeds are shewed to the Court is that the Judges and Jury that which respectively to them belongs shall judge of the sufficiency thereof therefore a deed shall not be suffered to be given in evidence by Witnesses or Copy except it be burned
or some such inconvenience but a Copy of a record is good evidence if a release be made to Tenant for life this inureth to the reversioner yet he cannot pleade it without shewing a Fortiori here because the Lessee may contract with the Lessor to suffer him to have the deed to shew but Strangers who claime not the thing granted nor interest out of it need not to shew the deed otherwise if he claimes the thing granted or interest out of it Ergo the second grantee of a rent charge must shew the first grant but he who claimes as Gardian or meerly by the Law without privity or power of providing the deed need not to shew it But Tenant by the courtesie must shew it because the deed was in his power living the Wife otherwise of Tenant by Statute c. 3. The not shewing of the deed is matter of substance therefore judgement shall be given against the Plaintiffe in the Writ of Error although it was not shewed as Cause of Demurrer And judgement was affirmed Nota when a plea amounts to a generall issue if the Plaintiffe demurre specially upon 27. Eliz. and the Defendant joyne judgement shall be given for the Plaintiffe Edward Seymors Case 10. Jacobi fol. 95. THe Lord Cheyny Tenant in taile the remainder in taile to I. C. the reversion to the Lord C. bargaines and sells and levyes a fine to the bargainee with warranty to him and his Heires the bargainee nfeoffeth the Lord S. who infeoffeth E. S. I. C. dyes having issue T. the Lord C. dyeth without issue Edward Lord S. leaseth to the Plaintiffe the Defendant by the command of T. ejected him and judgement was given for the Defendant and affirmed in Error 1. Resolved the bargainee had an estate discendible during the life of the bargainor whereof his Wife shall have Dower and also the reversion in fee expectant upon the remainder in taile 2. The fine after bargaine and sale is not discontinuance of the remainder for this operates upon the estate passed by bargaine and sale and corroborateth that and maketh it determinable onely upon the death of the bargainor without issue otherwise if the fine had preceded the bargaine and sale 3. It was Objected that the feoffement of the bargainee displaceth the remainder so that the warranty which discends upon him barreth him But resolv that the warranty doth not bind him 1. Because it was annexed to an estate determinable by the death of Tenant in taile without issue and to the reversion in fee granted by bargaine and sale and fine and not to the remainder in taile and the Conisee by his owne Act cannot make it to extend any further therefore the estate taile being determined the warranty ceaseth 2. A warranty barreth not an estate which is not displaced at the time of the warranty annexed as if the Father maketh a feoffement of Land out of which his Sonne hath a rent with warranty this binds not the Sonne as to the rent 3. The feoffement was lawfull because he had fee therefore he cannot make discontinuance 4. A warranty cannot enlarge an estate the remainder in taile to I. C. was not discontinued for the feoffor was not then seised by force of the taile 5. A collaterall warranty may be given in evidence if it be not pleaded for although it giveth not a right yet it barreth anothers right and the rather in an Ejectione firmae and other personall actions because in them it cannot be pleaded by way of barre Note there are some Titles to which a warranty extendeth not as in case of Mortgage Mortmaine consent to a Ravishor for in these cases no Action lyeth in which Voucher or Rebutter can be neither shall a discent take away an entry Bewfages Case 10 Jacobi Common Pleas. fol. 99. THe Sheriffe upon a Fieri facias executed did take an Obligation of the Defendant to pay the money in Court at the returne of the Writ and this was adjudged good notwithstanding the Statute of 23. H. 6. Before this Statute the Sheriffe could not let any person to baile which was taken Ad respondend as may appeare Fitz. Na. br 25. a b. and in 34. Eliz. in Debt by Dawson Sheriffe of B. against Burnam upon an Obligation the Defendant pleaded the Statute 23. H. 6. and shewed that one K. recovered Debt and damages against him and pursued one Writ of Fieri facias against him directed to the Sheriffe of B. and that he made the Obligation to the Plaintiffe for the Execution and that the Obligation was void by the Statute whereupon the Plaintiffe demurred and it was resolved First that the Obligation was not within the Statute because that the Statute extended onely to such Obligations which any who is in their ward did make unto him Secondly that the same Obligation was not void at the Common Law whereupon the Plaintiffe had judgment and another judgement 28 El. Inter Burwey Kett upon an Obligation taken by the Sheriffe Pro solutione pecuniae debitae dominae reginae upon extent out of the Exchequer Now it is said in the later clause of the Act that if any of the Sheriffs or other Officers or Ministers aforesaid take any Obligation in other forme by colour of their Offices that it should be void c. There are two manner of formes Viz. Forma verbalis forma legalis for Verbalis stands upon the Letters and Sillables of the Act Forma legalis is Forma essentialis and stands upon the substance of the thing to be done and upon the sence of the Statute Quia notitia ramorum hujus Statuti non in sermonum folijs sed in rationis radice posita est and according to this distinction this Branch of this Statute is to be expounded and therefore in 37. H. 6. 1. If the Sheriffe take a single Obligation of one in his ward that was bailable this was void for this Obligation wants essentiall forme prescribed by the Statute for the condition prescribes the fault which is part of the substance And there Moyle said that if the Sheriffe let one to Baile or Mainprise that is excepted in the Statute and not mainpernable and take a simple Obligation that the same is void Quod alij Justiciarij concesserunt for by the exception it appeareth that it was not the intention of the Statute that such should be let to Baile and therefore the Obligation is taken in another sence then the Statute intends And it seemeth to me that as well in the same Case of 37. H. 6. as in the principall Case of Dive and Manningham plow 67. the Obligation which hath the condition to save the Sheriffe harmelesse when the Sheriffe against the Law letteth one to Baile who is not Baileable is against the Law and void by the Common Law And with this accordeth William Wishams Case 15. Eliz. Dyer 324. in 7. E. 4. One was in custody of the Sheriffe by force of a Capias upon an
the Lord Dyer made a Quaere of that if one of the Jurors die before Verdict be given a Tales shall be granted he who is meerly a Defendant cannot pray a Tales untill default be made by the Plaintiffe the number ought to be under the number in the principall pannell except in an appeale because there the Defendant may challenge peremptorily the number shall be diminished in every new Tales and they ought to be of the same quality with the former as if the principall pannell were Per medietatem linguae so shall the Tales be Justices of Assize shall not award a Tales de circumstantibus in an Assize for the Statute of 35. H. 8. c. 6. speaketh where the Triall is Habeas corpora distringas or Nisi prius for an Assize cannot be taken by Nisi prius but must be taken in the proper County and after by advice of all the Justices of the common place and Barons of the Exchequer the judgement was affirmed Humphrey Lofields Case 10. Jacobi fol. 106. In debt upon Bond. D. Leased for a yeare to H. L. and if the parties shall please to renue the terme at the end of that yeare that he shall have for three yeares rendring 40 l. per annum H. L. bindeth himselfe to performe Covenants and faileth of payment of 20 l. at Christmas Quarter D. bringeth debt It was resolved for the Plaintiffe It was objected against the action 1. That the reservation was upon a contingency if the terme shall revive 2. Because the reservation is durante termino praedicto Viz. the last terme 3. The reservation shall be taken strictly because the words of the Lessor But it was resolved that the reservation extendeth to the first yeare for the proper place of a reservation is after the limitation of the estate as if a Lease be made with diverse remainders over reserving Rent this goeth to all and although the second terme be in contingency yet the first is certaine and Termino praedicto signifieth both the termes for it is Nomen collectivum and the reservation shall be taken reasonably according to the intent of the parties Tenant in taile of an Acre in borough English and of another by the Common Law by an Oxe dyeth having issue two Sons the service shall not be increased And Increase is onely betweene very Lord and very Tenant for there may be an increaser but not where there is a reservation or if the Seigniory be by Deed and services are reserved within time of memory for he shall have no more then he himselfe reserved In the Case at Barre in respect the obligation was forfeited the Court moved the Plaintiffe to take his arrerages costs and damages with which he was contented and so no judgement was given Arthur Legats Case in subversion of pestilent Patents of theevish Concealors 10. Jacobi fol. 109. in Communi Banco THe King ex certa scientia c. grants fifteene Acres as concealed which were parcell of a Mannor of the profits whereof the King was answered Nothing passeth 1. Resol If the King were answered of the old Rent of the Mannor and the Fermors c. suffer one to intrude in part this is not concealed 2. The grant is voyd for quae quidem c. is the suggestion of the party 2. This is a clause of restraint and nothing passeth which is not concealed 3. The King did not intend to diminish his Revenue which will be if the grant be good 4. The clause quae quidem hath a double conjunctive concelata detenta and Land cannot be detained from the King 3. Ex mero motu c. aydeth it not 4. If the Officers of the King may by matter of Record have notice of putting the Land in charge in Court of Record and doe it not yet this is not concealed and if the clause quae quidem be added for more certainty the grant shall not be vicious by it if it be false as if a Mannor be granted quod quidem was in the tenure of I. S. where it was not this is good If one substract or take the Kings Rents this is not concealed for the King may charge him as Baily and the Law will make a privity See the Statute of 4. H. 4 cap. 4. called in the Rolle Brangwyn in English White Crow And it was sayd that Perpetuities Monopolies and Patents of concealement were borne under one unfortunate constellation for as soone as they came in question judgement was ever given against them and none ever for them and they have all two inseperable qualities Viz. to be troublesome and fruitlesse Robert Pilfolds Case 10. Jacobi fol. 115. THe Plaintiffe in trespasse counts to damages of 40 l. and at the Nisi prius the Jury assessed for damages 49 l. and 20 s. costs at the day in banke hee released 9 l. parcell of the damages and had judgement of 40 l. and 10 l. for costs de incremento the defendant brings error because the damages and costs surmount the summ in the Count but judgement was affirmed for in reall actions before the Statute of Glocester 6. E. 1. cap. 1. no damages were recoverable but in personall actions and mixt they were and by that Statute a man shall have costs in all cases where he recovers damages Viz. before or by the same Statute therefore if after this damages are given where they were not at the Common Law costs shall not be recovered as in a Quare impedit but if a Statute after this give double or treble damages where damages and costs were by the common Law there the Plaintiffe shall recover the damages increased and costs also but in waste against tenant for life costs shall not be recovered for although that this Statute was at the same Parliament yet it was an act of Creation and therefore no costs And true it is that damages include costs in a generall sense but in the count it is taken for damages before the action brought in a relative signification therefore expensae litis may be added to it although he count not of them as a man shall doe in reall actions without counting of them because he shall recover them pending the Writ In entrie sur disseisin the Plaintiffe shall recover damages from the disseisin to the Writ of Inquiry c. and if the issue be tryable by verdict c. to the verdict but in a Praecipe of Rent of his owne possession hee shall recover all arreares to the judgement Judgement affirmed by all Cheyneyes Case 10. Jacobi fol. 118. IN a Valore maritagij issue is joyned upon the tenure and found for the Plaintiffe but the Jury did not inquire of the value Adjudged the verdict is insufficient and shall not be supplyed by a Writ of Inquiry 1. In this Writ three things are to be recovered the value damages and costs and although the issue be joyned upon the tenure yet as a consequent upon the issue and their charge they ought to
in the Kings Bench betweene Frampton and Frampton Tr 2. Jacobi Quia non refert an quis intentionem suam declaret verbis an rebus ipsis vel factis and when he limits new uses he signifieth his purpose to determine the uses before The End of the Tenth Booke THE ELEAVENTH BOOK The Lord de la Wares Case 39. Eliz. in Parliament fol. 1. THOMAS la Ware great Grandfather of the now Lord in 3. H. 8. was summoned to the Parliament by Writ and by 3. E. 6. it was enacted that William the Father of the now Lord Thomas shall be disabled to claime any dignity during his life notwithstanding W. was called to Parliament by Q. Elizabeth and sat as Puisne Lord and dyed and Thomas now Lord sued in Parliament to the Q. to be restored to the place of his Great-Grandfather that is betwixt the Lord Barkly and the Lord Willoughby of Eresby and resolved that he should be restored for his Fathers disability was not absolute by attainder but onely temporary and personall during his life and the acceptance of the new Dignity shall not hurt the Petitioner the Father being then disabled and an Esquire onely so that when the old and new Dignity descend together the old shall be preferred which resolutions by the Judges was well approved of by the Lords Committees and after confirmed by the Queene Auditor Curles Case 7. Jacobi fol. 2. QUeene Elizabeth grants Officium unius Auditorum Curiae Wardorum to W. T. and W. C. for life eorum diutius viventi the K. grants it in reversion to I. C. I. T. I. C. dyeth the K. grants it in reversion to R. P. W. T. dyeth 1. Resolved the grant of the Office Vnjus auditorum c. is good to two and the survivor of them for 32. H. 8. c. 46. maketh the two Auditors one Officer and the word Vnjus is not numerative but denoteth the unity of the Office 2. In such a grant the words eorum diutius viventi are not void for otherwise by the death of one of them the interest of both would be ended but now the survivor remaines auditor and another shall be added to him and till another is added to him his voice in Court is suspended because by the Statute there must be two so if the K. grant by a Patent to one and by another to another this is good and untill the second is added the first hath no voice in Court 3. The Nomination of Auditors ought to be under the Great Seale 4. This Office cannot be granted in reversion 1. Because it is judiciall and one cannot be Judge in futuro and perhaps he was sufficient at the time of the grant but not when it takes effect 2. Although it be in part judiciall and in part ministeriall yet it is intire and although ministeriall Offices may be granted in futuro yet this cannot because it is inseparably judiciall also for the K. cannot grant the judiciall part to one or two and the ministeriall to others 3. If the grant be good as to the ministeriall part yet it shall not take effect now because one of the ancient Officers is living and if he should exercise the ministeriall part with the survivor there would be three Offices 5. He who surviveth remaines Auditor yet had no voice in Court untill the King add another to him 6. The grant to P. is void 1. Because in reversion 2. Because it reciteth a void grant to I. C. and I. T. as good and so the K. is deceived in his grant Sir John Heydons Case 10. Jacobi fol. 5. SIr J. H. brings trespasse against F. C. T. C. I. C. F. C. appeareth against whom the Plaintiffe declareth with Simul cum c. who pleads Non culp so doth T. C. which issues were tried severally and the issue betweene the Plaintiffe and F. C. was first tried and damages assessed to 200. l. and the other against T. C. 50. l. I. C. appeares and confesseth the Action a Writ of inquiry of damages is awarded but none issued judgement for the Plaintiffe and affirmed in Error 1. Resolved in trespasse against diverse who plead Non cul or severall Pleas which are found in all for the Plaintiffe damages shall not be assessed severally although one did more wrong then another because the trespasse is intire and the Act of one is the Act of all but if they be found guilty at severall times they may and if the Plaintiffe confesse the trespasse to be at severall times the Writ shall abate 2. If two trespassors pleade severally both shall be bound with the damages taxed by the first Jury and the other shall have an attaint although he be a Stranger to the issue because he is privy to the charge if one of them after appearance make default a Writ of inquiry shall be awarded to save a discontinuance but none shall issue because he shall be contributory to the damages taxed by the Jury who tryed the other issue and the other shall not be charged in damages assessed upon a Writ whereupon he can have no attaint but if the other issue be found against the Plaintiffe then it shall issue 3. Although there was a discontinuance against I. C. because in the common place where the Action was brought there is no continuance after a Writ of inquiry otherwise it is in the Kings Bench yet it is aided by the Statute of 32. H. 8. c. 30. 4. If two Juries give a Verdict at one time the Plaintiffe shall have judgement De melioribus damnis if he will but fiat nisi unica executio in trespasse against diverse who plead severall pleas triable by the same Jury if the Jury sever the damages all is vitious Priddle and Nappers Case 10. Jacobi fol. 8. THe Plaintiffe in a prohibition declareth that the Prior of M. was seised of 22. acres and of a rectory time out of mind c. untill the dissolution c. and so for all that time held them discharged of Tithes and conveys the said 22. acres from the King to himselfe and that the Defendant Proprietarius rectoriae praedict sued the Plaintiffe for Tithes the Defendant traverseth the prescription of discharge the Jury found that the Prior time out of c. was seised of the said 22. acres and of the advowson of the Rectory and did appropriate it by License 20. H. 8. the Incumbent then being living who dyeth and that the Prior held it united to the dissolution judgement for the Plaintiffe 1. Resolved although that every Church parochiall is supposed to be presentative yet the Plaintiffe may plead that the Prior c. time out of c. were Rectors of it for this amounts to so much that it was impropriated but he needs not shew how because before time of memory but the conclusion of the prescription of unity Viz. Ratione cujus he was discharged of tithes was not good for Land is not discharged of Tithes by unity
but of payment of them notwithstanding the mistaking of the conclusion doth not vitiate the Count when the cause to have a prohibition is good 2. The plea of the Defendant to have a prohibition is not good because he traverseth the conclusion Viz. The prescription of discharge where he ought to traverse the prescription of unity for the conclusion is not traversable and because it is matter in Law 3. The issue is not well joyned 1. The matter of discharge is by reason of discharge by the Statute and the issue is by discharge at the common Law 2. In every issue there must be an affirmative and a negative but here is no affirmative for the conclusion is no affirmative but an inference 4. The impropriation is sufficient although the License were generall and the incumbent living for it shall be construed in such a speciall sence that it may take effect and the License is alwayes generall for the incumbent may dye or resigne before the impropriation 5. Admitting the impropriation void it had not beene made good by 35. Eliz. c. 3. for this settles in the K. all possessions of Abbeys with qualification notwithstanding any defect in any surrender c. which intitleth the K. and this defect is not within this qualification but if the impropriation had been good by reputation and so used this had beene given by the Statutes of 27. 31. H. 8. 6. If the Jury found matter to barre the Plaintiffe this is not to be regarded because an attaint lyeth not nor the Witnesses punished for perjury that matter not being materiall to the issue 7. Resolved that perpetuall unity untill the dissolution is by the Statute Prima facie a discharge of payment of Tithes except that the Fermors have paid Tithes and such an unity ought to be Justa aequalis that is fee in one and other Perpetua libera but if the Abbey were founded within time of memory he cannot at all and here it appeareth that the impropriation was made in 20. H. 8. so that it appeareth to the Court that before that the 20. acres were charged with Tythes for of common right all Lands ought to pay Tithes therefore the Chiefe Justice concluded that the said 20. acres as this Case is were chargeable with Tythes but in regard the information is good and the plea Pro consultatione habenda altogether insufficient and the Verdict impertinent to the issue they would not grant a consultation Doctor Grants Case 11. Jacobi Communi Banco fol. 15. In a prohibition 1. REsolved it is a good prescription that every Inhabitant in a Parish have paid 2. s. in the pound of the value of their houses per annum in Lieu of Tithes because it may have a lawfull comencement for it may be that this was so time out of mind for the Lands whereupon the Houses were built as a Modus decimandi 2. That the Parson may sue for it in the Court Christian for that it is in the nature of Tithes and every ancient City and Borough had for the most part such a custome for their Houses for the maintainance of their Parson and obvensions include oblations rents or other revennues and after a consultation was granted Sir Henry Nevills Case 11. Jacobi fol. 17. IT was resolved that a customary Mannor may be holden of another Mannor and there may be Lord Mesne and Tenant of it and such a customary Lord may hold Courts and grant Coppies and such a Mannor shall passe by surrender and admittance and fines shall be paid upon alienation or discent and if it be forfeited the Lord shall have the services as anexed to the Mannor so if Tenant at will c. admit Copy-holders reserving rent this shall goe with the Mannor after the will determined and so note a difference betweene reservations at the common Law and by the custome of the Mannor And it was said that the Mannor of Aylesham in Norfolke is holden by Copy and others in diverse other places And judgement was affirmed in Error Doctor Ayrayes Case 11. Jacobi fol. 18. 14. E 3. the K. Lycensed R. de E. to Found in Oxford a Hall sub nomine aulae Scholarium Reginae de Oxonio in the exemplification 8. Jac. it was Sub nomine aulae Reginae de Oxonio they present to the Church by the name of praeposit Coll. Reginae in Vniversitat Oxonio sociâ—r Schollar ejusdem the incumbent deviseth the Rectory and they by the name of praeposit Socior Scholar Aulae vel Collegij reginae in Vniversitate Oxonii confirme the demise and notwithstanding these variances it was adjudged that as well the confirmation as the presentation was good and the sole doubtfull variance is that it was Aulae Reginae where it ought to be Aulae Scholarium Reginae but good for the true name of the Colledge is so for the word Scholarium is not necessary but once and if it be taken in construction to come after Aulae the provost will be the sole Corporation by the name of praeposit Aulae Scholar reginae Ergo it doth precede in good construction Also the Founder named it so and so it hath beene alwayes taken and if there be a small variance this is not to the purpose if it be so described that another cannot be meant as a gift Omnibusfilijs I.S. or filiae I.S. when there is but one or if Richerus Abbot of W. grant by the name of Richardus Nil facit error nominis cum de corpore constat and this was the ancient and constant Opinion in Case of Corporations See the Case of the Major and Burgesses of Lin in the tenth Booke Henry Harpurs Case 12. Jacobi fol. 23. IN ejectione firme upon a Lease to J. W. in unam capellam and Land in W. in the Parish of B. and Tithes without shewing the certainty of them the Visne was from B. the Case was Sir H. B. seized of G. of the value of 30 l. per annum and of N. of the annuall value of 18 l. in capite covenanted to stand seized to the use of him and his Wife in taile with remainders in taile the reversion to himselfe and after purchaseth Lands in Socage and deviseth them to be sould by his Executors the matter in Law resolved but no judgement given because diverse exceptions taken c. 1. Resol That if tenant of the King in capite conveyes his Land to one of the uses c. and after purchase Socage he may devise all the Socage 2. A seck revertion upon an estate taile shall hinder the devise of Socage Land for a third part 3. Although the reversion in fee continue in him yet he may devise two parts of the Socage and all if he had granted the reversion over 4. Although he had exercised his power in making a Joynture of more then two parts yet if the reversion in fee had not hindred he might have devised all the Socage purchased after howsoever the
a Stranger be not in another part of the House but this was before 39. Eliz. cap. 15. whereby clergy is taken away without putting any feare if he rob any man of above the value of five shillings Accessory before in robbing a House in the day is ousted of Clergy by 4. 5. Phiâ— Mary Accessory in robbing a Booth in the night or day or out House upon 39. Eliz. shall have his Clergy Nota Although a Statute takes away Clergy from the principall yet the accessory before or after shall have it and where by statute for any offence a man is ousted of his Clergy the indictment must containe the offence with the circumstances in the Statute Dyer 99. and 183. And A. P. was ordered to be hanged in Chaines c. Metcalfs Case 12. Jacobi fol. 38. In Accompt IUdgement is given against M. Quod computet ideo in misericordia quia prius non computavit and before finall Judgement Error is brought 1. Resol It lyeth not 1. Because the Writ of Error saith Si juditium inde redditum sit which shall be intended of the principall Judgement as the Feast of St. M. shall be intended the principall Feast and the Feme shall be received upon default of her Baron after judgement of admeasurement before the principall judgement 2. It shall be intended an intire judgement therfore in an action against two if one plead to the issue and the other confesseth and judgement given against him he shall not have error before the Plea determined against the other for otherwise there would be a failer of right for the Kings Bench cannot proceed upon the Record nor the Common place because it is removed 3. The first judgement is not ad grave damnum for by that he looseth nothing but judgement of the arrearages and damages is the end of the originall 4. This is not properly a Judgement but an Award of the Court as ouster of ayde in partitione facienda an awarde quod partitio fiat c. which are but interlocutory and not definitive 5. They have day by the Roll untill the last judgment but if a Felon dye after the exigent awarded and before attainder a Writ of Error lyeth for necessity for otherwise his goods are forfeited by awarding of the exigent without remedy if diverse are sued by severall Praecipes and Judgement given against one he shall have error before judgement given against the other and if error be in the originall the tenor onely shall be certified for otherwise the Court cannot proceede against the others 2. It was Resolved That the Record is not removed because untill finall Judgement be given the Chiefe Justice of the Common place hath no authority to send it and they may proceed notwithstanding the Roll be marked Mittitur Richard Godfreys Case 12. Jacobi fol. 42. TWelve chiefe pledges according to the custome of the Mannor to present at the Leet that every one of themselves ought to pay for themselves 10 s. pro certo letae the Stewart imposeth a Fine of 6 l. upon them the Lord distreineth for the Fine and certainty of Leet one of the pledges brings Replevin and judgement was given for the Plaintiffe 1. Resol The Fine is not well assessed for it ought to be severall and not joynt as it is because the offence is severall and although that the offence be joynt yet the Fine shall be severall as in disseisin and trespasse But for the incertainty of the persons and infinitenesse of the number many may be fined together as a Towne for the escape of a Felon and the reasonablenesse and excessivenesse of the Fine shall be determined by the Judges Excessus in re qualibet jure reprobatur communi as excessive distresse excessive ayde and excessive amerciament are against the Common Law 2. If the Fine be imposed erroneously it may be avoyded by Plea for he had no other remedy 3. The Lord cannot distraine pro certo Letae without prescription because it is against common right but he may for a Fine or amercement but for an amercement in a Court Baron the Lord must prescribe a Fine because it is assessed by the Court needs not to be affered but an amercement must be affered by the Countrey 4 Admitting that he may distraine pro certo Letae he shall have a returne although hee had not cause to distraine for the Fine for where one brings an Action for two things and it will not lie for one of them it shall abate onely for that if he cannot have a better action for it but if he may it shall abate for the whole as in a Formedon of Land and of an advowson the Writ shall stand for the Land so if a man avow for diverse Rents arreare and it appeareth that parcell is not yet due yet the avowry is good for the residue but if a man bring a Writ of Entry in nature of an Assize of two Acres where it appeareth that for one Acre he ought to have a Writ of Entry in the per there all shall abate for this extends not to the action but to the Writ onely Richard Lifords Case 12. Jacobi fol 46. IN trespasse the Defendant pleads that J. L. was seized in fee and demised to T. S. and M. P. excepting Trees above twenty one yeares growth if not decayed for their lives and covenanted to stand seized de tenementis predictis cum pertinentijs superius dimissis to the use of R. L. in taile c. and the Defendant as Servant to the sayd R. L. entered and sold Trees and Judgement was given against the Plaintiffe 1. Resol That the Trees notwithstanding the exception remaine parcell of the inheritance and are not Chattels but shall descend to the Heire for the Law doth not favour severance of the Trees from the Land therefore if one bargaine and sell Land upon which there are Trees they shall not passe without inrolement 2. If there had not been such an exception the generall interest of them is in the Lessor and the Lessee had but a particular interest in them and the Lessor may sell them without license of the Lessee to take effect after the Lease determined and tithes shall not be payd for them because they are parcell of the inheritance 2. By the exception of them the soile is not excepted but onely so much as sustaineth the Tree and if he by licence of the lessee root them up the lessee shall have the soile but by exception of Wood the Land it selfe is excepted if an Acre or an advowson be severed from the Mannor by exception upon a Lease for life it shall not be parcell of the Mannor againe otherwise of trees for they were not severed in facto because they grow out of the Land 3. A thing in possession cannot be parcell of a reversion upon an estate for life but Trees which grow out of the Land and Fish or Deer in the Land may and shall passe with it
the Case lyeth for disparaging the Plaintiffes Title unto Lands Page 17 THE SECOND BOOKE AN illiterate man is not bound to seale a Deed without hearing the same read and Ignorantia facti may excuse but Ignorantia juris doth not Page 19 If a man plead that he hath kept I. S. indemnified he must shew how but not if he pleads in the negative Page 19 20 The Date of a Deed is not of the substance thereof Page 20 If a Deed be made by Menace it is avoidable by Plea ib. If it be read in other words then it is it bindeth not Page 21 But if he require it not to be read it shall bind him ib. Touching considerations to raise an use Page 21 Where an estate taile is barrable notwithstanding 34. H. 8. Page 22 A Lease by the Q. under the Exchequer Seale is good ib. What Act doth extinguish a Copy-hold Page 23 Things which lye in grant are effectuall by delivery of the Deed without other ceremony ib. Where the Habendum in a Deed is void and where voidable ib. A sale by the Bankrupt after a Commission awarded is void Page 24 13. Eliz. giveth benefit to such onely as comes in ib. The possession of the House is a good possession of the Lands also Page 25 What passeth by this word Cum pertinentijs ib. Where by a Deed Lands are granted Scituate in one place and they lye in another what passeth thereby ib. Where the Act of 34. H. 8. aideth a voidable grant Page 26 A. demiseth bargaines and sells to B. upon consideration for yeares and no Attornement to B. what passeth to him Page 27 Much learning of Elections ib. What Persons capable of Tithes at the Common Law Page 29 Where a man may prescribe to have Tithes appurtenant to a Mannor Page 30 Where a Religious House or Colledge is given to the K. by 1. E. 6. Page 31 Where a perpetuall unity dischargeth Tythes by 31 H. 8. or 1. E. 6. Page 32 Where a possibility shall make a grant good Page 33 Where a Tender upon a condition shall devest an estate Page 34 An estate of freehold cannot commence in Futuro Page 35 The Office of the premisses and Habendum ib. Where the Husband solely may declare the use of a fine of his Wifes Land and when it shall bind her and when not Page 36 Where a Variance in the Declaration avoideth all Page 37 What act of the feoffor dispenseth with a condition Page 38 Where a feoffee is disabled to performe a condition ib. An estate made to three and to the Heires of one the jointure continueth ib. A demise made by Baron and Feme without saying by Deed ib. Attornement of one Tenant for life to the grantee is good Page 39 Where one jointenant may prejudice another ib. In what clauses this word Proviso maketh a condition Page 40 By a fine levyed a condition is not extinct much good matter Page 43 Common assurances construed favourably ib. Where another use may be averred upon a fine upon grant and render or another consideration then is expressed Page 44 When a request is necessary and in what cases ib. The remainder to the right Heires of the Conisor is a reversion Page 45 Where a Donee in taile shall hold of no body Page 46 A man wounded upon the Sea dyes upon the Land unpunishable ib. The Law respects the Originall Act Page 47 THE THIRD BOOKE WHere a Writ of Error or right of Action is given to the King by 28. H. 8. Page 49 A diversity betweene inheritances and Chattells personall Page 50 Neither an Action without a Right nor a right without an Action shall make Remitter ib. A reversion upon an estate taile is out of the Statute of 9. R. 2. c. 3. Page 51 Where a grant from the Q. ought to haue precise words ib. A render to the Wife onely voidable where shee is not party Page 52 The Husband onely vouched where it barreth the remainder Page 53 A recovery against Tenant for life and he in remainder in taile shall not bind the taile Page 54 A grant of a Copy-hold for life is within 31. H. 8. of Monasteries ib. Excellent Rules for interpretation of all Statutes ib. What Statutes extend to Copy-holders and what not ib. Whether West 2. c. 1. extends to Copy-holds Page 55 Where the rents shall be intended to be the old rents Page 56 If the particular estate may determine before the remainder can comence what is become of it ib. In VVills the intent of the Devisor must be considered Page 57 Paying in a VVill where it is a condition and where a limittation ib. VVhere Debt lyeth for rent before the last day of payment Page 58 Three sorts of privities Page 59 Lessee assigneth Bargainee of the reversion shall not have Debt against the Lessee but the Lessor might Page 60 An Executor of a Termor not liable to Debt after Assignement ib. The Lessor may charge the Lessee or his Assignee Page 61 VVhere an estate may be waved in pays at the common Law and where by the Statute of 27 H. 8. of Vses Page 61 62 Much notable Learning upon the Statutes of 32. 34. H. 8. of VVills and of Relations and what inheritances are devisable Page 63 64. c. VVhere the second delivery of a Deed shall relate to the former Page 67 The severall sorts of custodies and Gardians Page 68 VVho shall have the custody of the Heire apparent an infant Page 68 69 The Mother shall have the custody c. within 4 5. Phil. Mar. c. 8. Jure naturae Page 69 Equally to be divided in a VVill and their construction Page 70 Excellent Learning of discents and of Possessio fratris ib. The Sheriffe is not bound to bring a prisoner in Recta linâ—a Page 71 VVhat Act is an escape and how prevented by the Sheriffe ib. A lease for three lives by a fine where within 11. H. 7. c. 20. Page 72 VVhat person may take advantage by entry within that Act ib. A VVoman accepts a fine and renders back for 1000. yeares it is within that Statute Page 73 A prisoner taken againe in Recenti insecutione is in Execution againe Page 73 An Action will lye against the Sheriffe before he be retaken ib. And after he is taken he shall be in prison againe ib. After a demurrer there shall be no repleader Page 74 Issue Tenant in taile suffers a recovery the Mother releaseth with warranty this is not within 11. H. 7. Page 74 75 Otherwise if the Wife had released after the death of the issue Page 76 An estate transferred in the Post before the warranty discend Page 77 The Lessor having cause of entry but no notice accepts rent ib. The Lessor may have debt after a reentry Page 78 A Lease for yeares is not made good by acceptance if the condition be to be void othewise of a Lease for life ib. Acceptance and an acquittance barreth all former
grant after Office and before the retorne is good ib. The Bishop must shew the cause of refusing a Clerke Page 203 The Constable may bring an Offendor to what Justice he will ib. Vpon refusall to find surety the Constable may commit him ib. Where a man shall avoid a fraudulent deed by 27. Eliz. Page 204 The Defendant pleads another Action depending for the same Page 205 Cases of By-laws Where the Inhabitants of a Towne may make By-laws and where the consent of the greater part shall bind all ib. Who are liable towards the repaires of a Church Page 207 Against a devise of Lands by writing no averrment can be received Page 208 Cases of Usury What manner of contract is Vsury Page 208 209 A demurrer is a confession of all matters in fact well pleaded Page 208 What things may be released before the day Page 209 Daggs Pistolls c. are within the Statute of 33. H. 8. c. 6. ib. The Sheriffe or his officers may carry Weapons invasive or defensive ib. One man cannot have an Action for a common nusance Page 210 If an Orphan sue for goods in the Court Christian a prohibition lyeth ib. A Deed shewed in Court remaineth there all that Terme Page 211 In the K. B. imparlances in barre are entered but not to reply ib. The Wife Tenant for life dyes the Baron is not liable for wast ib. When amends may be tendered after a distresse but not after impounding tender to the Bailiffe is not good Page 212 The Plaintiffe may pray a Deed to be entered In haec verba the same Tearme but not after ib. An action of wast lies after the death of him in remainder for life ib. Every assignee of every Lessee mediate or immediate is within 11. H. 6. c. 5. Page 213 An award must be certaine and binds none but parties Page 214 A prescription for common where it is good ib. Where a warrāty comenceth by disseissin Page 214 215 A confirmation of the Land and of the terme a diversity Page 215 Cases of Customes Where a custome binds Strangers Page 216 Where property is altered by sale in a Market Overt ib. A custome which addeth more solemnity to the Law is good ib. Who shall have the Corne upon the ground Page 216 217 Where judgement finall shall be given in Wales Page 217 Cases of Executions One in execution escapeth yet the other is liable Page 218 VVhere the Defendant is in Execution for the King he shall be also for the Plaintiffe Page 219 If a Man be in custody and another VVrit commeth to the Sheriffe he is in custody of force of the second VVrit also Page 220 A judiciall VVrit needs no returne but not so of an Elegit ib. VVhere restitution shall be after reversall of Outlarly or judgement Page 221 VVhere the Sheriffe may breake the House to make Execution Page 222 That a House is not a defence of Strangers ib. A false consideration is void as to the Queene Page 223 224 The Law findeth not an assignee in Law where one in Fact Page 224 Foure bring a Quare impedit and one releaseth it barreth onely him ib. After a Divorce issue by the second Husband legitimate Page 225 False evidence to the Grand Inquest is not within 5 Eliz. ib. Commissioners of Sewers must tax all who are in danger ib. A Quod permittat for a Nusance where it lyeth without request Page 226 227 And where against a Feoffee or assignee Page 227 Two have Title to present by turne one presents I. S. who is deprived or Merè laicus it is a turne not if the admission be void ib. Vterque taken sometimes discretive sometimes collective Page 228 The Plaintiffe cannot refuse to joine in demurrer but the King may ib. A man cannot have an Action for damage by Coines ib. None may erect a Dovehouse but the Lord of a Mannor ib. Ancient demesne is a good plea in Ejectione sirmae not in Trespasse Page 229 Excellent diversity of Learning touching Wrecke ib. When the high Admirall shall have jurisdiction Page 230 Plentifull matter touching goods wayved goods of Fellons Deodands c. Page 231 What things may be gained by usage without matter of Record ib. Rendring rent to one and his heires and to one or his heires is all one Page 232 The King by his Proclamation may make forreigne Coine currant ib. A Tender of money in bagges is a good tender Page 233 In a writ of Estrepement the Sheriffe may take posse com ib. Estrepement lyeth in wast as well before judgment as after ib. Feme Copiholder durante viduitate soweth the Lord shall have it ib. Payment of parcell before the day is satisfaction for all Page 234 Grantee of a remainder liable for arreares of a rent charge ib. Debt against one joint obligor hee cannot plead Non est factum Page 235 But hee may if the deed become void by matter Ex-post facto ib. In Indictments certainty to a certaine in generall is good ib. False Latine shall not quash an Indictment ib. In Indictments of death Percussit must be except in case of poisoning Page 236 A lense for yeares is an interest within 4 H. 7. c. 25. ib. A libell may be as well against a private man as a Magistrate ib. Non refert whether it be true or the party of good fame ib. If a man finde a Libell advise how to to preserve himselfe Page 237 Gardian in chivalrie shall have the single value of the marriage without Tender ib. The great Case De jure regis Ecclesiastico upon the Statutes of 1 Eliz. c. 1. p. 2. Touching a Deprivation by the Bishop and the Kings supremacy in Causes Ecclesiasticall Page 237 238 THE SIXTH BOOKE VVHere services shall be multiplyed apportioned or extinct Page 239 Where the parole shall demurre for nonage of the demandant and where the Tenant shall have his age much good learning Page 240 The King grants the tenancy by attainder the mesnalty is revived Page 241 The K. grants land Tenendum by a rose pro omnibus c. what Tenure Page 242 Resolutions and Diversities when a barre in one action shall be a barre in another ib. Where a Writt shall be brought by Journeyes accounts Page 243 Who are Judges in Inferiour Courts Page 244 Jointenants cannot make partition by words after 28. H. 8. c. 1. ib. A Parson deprived for Adultery which is pardoned he is restored Page 245 A Visne must be from the most certain place ib. Tenant for life and hee in remainder joyne in a lease how it inureth Page 246 Riens passa tryed where the land is not where the patent dated ib. A devise to his brother paying 20. s. he hath fee ib. A devise to Baron and Feme and their children what estate it is Page 247 Where the will is directory and where declaratory without reference to power ib. A diversity betweene a suite by Citation and an Appeale Page 248 If a Statute speaks
in any Court of Record it shall be intended of the foure Courts of Westminst propter excellentiam Page 249 Of what actions the Marshalsea holdeth plea ib. A Parson must be resident and what is a good excuse of it Page 250 Where the Father shall have the wardship of his daughter ib. If the daughter be marryed infra annos nubibiles and the Baron dye yet she may be in warde to the Queen ib. By the law the Testator must have a disposing memory Page 251 Where the lease and not the seisin must be traversed ib. He who claimeth by the first assignment shall not traverse the second Page 252 Where the Release of one Plaintiffe barreth the rest ib. VVhat act shall amount to a livery of seisin ib. The word King includeth all his Successors Page 253 Where the King shall have a fine for alienation ib Where Lapse shall not incur without notice Page 254 If the Q. present Ratione lapsus where she is Patron it is void ib. Acts transitory and locall must be done in convenient time Page 255 Where they must be hastened by request ib. What is a good revocation of uses Page 256 Every Lease must have a certaine beginning and continuance ib. Grant of a Copy-hold for three lives by Deane and Chapter good by 13. Eliz. Page 257 Where an Assignee may plead a Deed of License without shewing ib. The Construction of Alibi in a grant of rent charge Page 258 A condition of an intaile not to suffer a recovery is void ib. Where an accord with satisfaction is a good plea ib. So long as judgement in Debt is in force no new action lyeth Page 259 When the place is materiall the issue cannot be found elsewhere ib. Where a thing done beyond the Sea is triable here Page 259 260 Where the Vsurpor gaineth the inheritance against an Infant Page 260 Where collation putteth a man out of possession ib. An Incumbent shall not be moved if not named in the VVrit ib. A Peere cannot be Arrested for Debt Page 261 A difference betweene nobility by discent and by Marriage ib. The duty of the Officer upon an arrest ib. The K. grant good if he be not deceived Page 262 Payment of rent by a Termor giveth no seisin to have an Assize ib. In the Kings Case generall alleadging of seisin is good Page 263 To claime common Ratione commorantiae is not good ib. Tenant for life or yeares must prescribe in his name who hath fee ib. A custome for every inhabitant to have a way is good ib. The difference betweene a prescription and a custome Page 264 Six Moneths given to present according to the Kalender ib. By grant and render of the Demesnes the Mannor is destroyed Page 265 But otherwise it is if by act in Law as upon partition ib. Who may surrender and where it is requisit Page 266 The heire Female shall not forfeite the donable value ib. Where the purchasor shall avoid a Lease by fraud Page 267 If the Heire be Knighted in the life of his Auncestor no wardship Page 268 Where the Heire shall forfeite the double value ib. VVhat shall be collusion within Marlebridge c. 6. ib. Excellent Resolutions upon 32. H. 8. of VVills ib. The Lord may have a certeine summe Pro certo letae Page 269 Judgement in Debt against a jointenant who releaseth to his Companion that Moity is liable to the Judgement ib. Executors though not named are within diverse Statutes Page 270 THE SEAVENTH BOOKE SIx demonstrative conclusions resolved why Calvin the Postnatus ought to be answered Page 271 VVhere the Plaintiffe may choose in what County to bring his Action Page 273 The Common in Norfolke called Shack is good Page 274 Cases upon the Statute of 13. E. 1. of VVinchister for Hue and Cry and what alteration is made therein by 27. Eliz. c. 13. Page 275 VVhat acts a Gardian shall avoid but not the Lord by escheate Page 276 If one be to have a thing in consideration of an act to be done by him he must shew the performance of it Page 277 The Q Tenant Pur auter vie leaseth for yeares good without recitall Page 278 VVhat conditions are given to the Q ib. VVhat kind of Certificats are traversable Page 279 All wild Swannes in a Common River may be seised for the K. ib. A Swan-marke must be by grant of the K. or prescription ib. And he must have five Marks per annum by 22. E. 4. c. 6. ib. To what Debts the Statute of 33. H. 8. c. 39. extendeth Page 280 Processe in one Court and decree in another Bond for Covenants is within it ib. In what Cases Lands are extendable by the K. within 33. H. 8. Page 281 VVhat debts are not within that Statute ib. A rent issueth out of one acre and the other liable to the distresse ib. A rent may be seck and charge at severall times Page 282 Cases of Quare impedit VVhere a Quare impedit may be without naming the Patron Page 282 283 If the Plaintiffe in a Q. I. after appearance be Non-suite where it is peremptory and where not Page 283 VVhen the King hath a transitory title onely it may be lost ib. VVhere a demand of rent must be made precisely on the day Page 284 Discontinuance of Proces and what is revived by generall resummons and what by speciall ib. VVhat fine levyed by the King barreth the taile Page 285 VVhat Statutes bind the King ib. A dignity may be intailed and forfeited Page 286 The King cannot grant the penalty of a Statute to a Subject ib. A rent extinct shall be in esse to some purposes Page 287 A consideration may be averred which stands with the Deed ib. VVhere an estate taile may be with the words Of the body of Page 288 The sentence of Divorce being in force the issue before is a Bastard Page 288 Such sentence may be repealed after death of the parties ib. One Bill of reviver upon another not sufferable Page 289 THE EIGHTH BOOKE THe Charter of Creation of the Prince Duke of C. 11 E. 3. is an act of Parliament Page 291 The grant to the Patentees is not aided by the Statute of Confirmations Page 292 Five things requisit to maintaine an Action against an Inkeeper for Goods lost Page 293 VVhere the Husband shall be Tenant by the courtesie ib. VVho shall be said a common Barretor Page 294 VVho may assesse a fine for a contempt and what remedy for it Page 294 295 VVho shall avoid a feoffement by an Infant Page 295 Three manner of Privities ib. Lessor for life shall avoid a Lease for yeares made by Tenant for life ib. There were but two manner of Assizes at the Common Law Page 296 In an assize of a new Office the profit thereof must be shewed Page 296 297 A warranty is intire and barreth all upon whom it discends Page 297 Good matter upon the Statute of Glouc. c. 3. ib. The King hath three
manner of inheritances grantable in him Page 298 VVhen the Kings Charter shall be taken to two intents good how it shall be expounded ib. A Retraxit must be in proper person and where one may appeare by Attorney Page 299 No writ of Errour lyeth after disclaimer it doth after Retraxit ib. The copiholder commeth in by custome paramount Page 300 Where seisin of a rent needeth not to be alleadged within forty yeares ib. If the Jury try an Issue they shall not try it again by new nisi prius Page 301 Where de Injuria sua propria is a good plea and where not Page 301 302 Who may certifie excommunication and when it rightly done ib. VVhen a power to make leases for 21. yeares or 3. lives rendring the ancient rent is well pursued Page 303 Baron and Feme tenants in speciall taile she is within 32. H. 8. c. 28. Page 304 To what things a condition of accruer may be annexed Page 305 Foure things requisite to an accruer ib. By purchase of part of the land in which c. common appurtenant destroyed Page 306 An authority is countermandable but then the bond is forfeited Page 307 A devise of rent out of all the Capite land is good out of 2. parts ib. VVhere one formedome lyeth upon two distinct gifts Page 308 In actions reall founded upon tort one writ lyeth upon severall Titles ib. In personall actions one may comprehend severall torts ib. The demaundant must make himselfe heire to the party last seized Page 309 A disturbance by parol is no breach of a condition Page 310 VVhere the Plaintiffe shall have judgement although his title destroyed ib. VVhat words with consideration amount to a bargaine and sale ib. An Inrollment not necessary where a chattell only passeth Page 311 VVhere a will inureth by way of executory devise ib. A man may devise an estate which he cannot doe by act executed ib. What shall be said a good awarde Page 312 Where the heire of a copy-holder beyond the seas shall be barred c. ib. Mulier prisne over the seas barred by the death of bastard eigne Page 313 What manner of services multiplyed and what extinct ib. Herriot custome by purchase of part is not extinct Page 314 What power the Censors of Physicians Colledge have ib. Where a count may be made good by the barre and that by Replication Page 316 Many things good by custome which cannot be by Charter ib. The improvement shall be employed to the former charitable uses Page 317 Nothing accompted administred but the money paid by Composition Page 318 Where the plaintiffe shall have judgement the Replication being evill ib. Fully administred pleaded the Jury find assetâ—s for part what judgement ib. The force of a Repeale and where the ordinary may commit administration Page 319 A difference where obligor is made administrator and where executor ib. A commoner in a forrest where he may enclose within the stat of 22. E. 4. c. 7. ib. If A. be in execution upon an erroneous judgement and escape and the judgement is reversed the action against the Sheriffe is gone Page 320 But if judgement and execution be against the Sheriffe before that it shall stand good against him ib. Tenant for yeares grants the next avoidance and surrenders how it worketh Page 321 Where a man abusing his License hee shall be Trespasser ab initio ib. Tender of sufficient amends for damage feasant when good Page 322 What is barred by a Release of diâ—…ctions Quarrells Suites c. ib. What Errors in a Record are amendable much good matter Page 324 325 See there ten Misprisions not yet remedied Page 326 Cases in the Court of Wards Where Collusion may be averred to defraud the King of Wardship ib. The King shall have no wardship where there is no heire Page 327 Where a Patent shall he good Quacunque via data ib. If the first Melius inquirendum be good no other shall issue Page 328 To what severall times an Office shall have relation ib. A sale of Chattells after judgement Bona is good not after Execution Page 329 A Bargaine and Sale by the heire after livery tendered is good ib. The Heire Knighted in the Life of the Father who dyeth the Heire tenders livery the mean rates are saved ib. Where the King shall have his third part out of the whole Page 330 THE NINTH BOOKE WHere a subsequent Indenture may direct uses in a precedent recovery Page 331 Where an averrment of other uses may be made ib. A common essoyne is allowable in Dower Page 332 In a Writ of Dower who may plead deteinment of Chartars Page 333 The Beasts of the Termor are distreined and an avowry made upon a meere Stranger what remedy for the Termor Page 334 No distresse for damage feasant if the Cattell be chased out ib. What ancient Franchises ought to have allowance Page 335 What priviledges are extinct if they returne to the Crowne ib. Where the Tenure and where the seisin is traversable Page 336 A difference when one Executor refuseth and when all doe Page 337 They can bring no actions before probate Page 338 What power the Ordinary hath over the goods of the intestate ib. See 21. H. 8. c. 5. touching granting administrations Page 339 The grant of the Stewardship of the Mannor of D. good without naming the County where it lyeth ib. Where such a Grantee may make a Deputy without expresse power Page 339 Where Non user is a forfeiture of an Office Page 340 What Writs Vi armis are good Causa causans and Causa causata ib. What words amount to a Release Page 341 If it appeare that the Nusans is to the damage of the Plaintiffe he needs not shew it he may abate the Nusans if he will ib. Westm 2. c. 24. extends not to the Alienee of the alienee ib. How conspirators may be punished before acquitall Page 342 Conspiracies punishable before Execution must have foure incidents ib. What Act shall be said to be a Nusans as a Lime-pit c. Page 343 What things requisite to convict a man of Libelling ib. A man needs not to shew that which lyeth not properly in his notice Page 344 Much noteable matter touching Indictments and a Serjeants duty Page 344 c. Commissioners to examine witnesses are not bound strictly to the Letter Page 346 What the duty of a Commissioner is and how he must demeane himselfe Page 347 Whither a Feme Covert be within the Sâ—… of Westm 2. c. 35. ib. What Marriage is within that Statute Page 348 A surrender made by a Copy-holder by Letter of Attorney is good ib. What authorities may be Executed by Attorney ib. VVhere the Act must be done in the name of the authorizor Page 349 VVhere an accord is a good plea and what is requisite thereunto Page 349 350 VVhat Act shall be adjudged murder Ex eventu Page 351 VVhere an Attornement shall bind an Infant ib. An action of the Case
lyeth against Executors for the Testators Debt Page 352 VVhere a man may wage his Law Page 353 VVhat words shall be adjudged a good consideration Page 354 VVhat Offices grantable for yeares and by what Acts Offices may be forfeited and where the King may seise without Scire facias Page 355 356 Copy-hold estates are within 4. H. 7. of fines Page 356 Disseissor of Copy-hold levyes a fine what time the Lord hath ib. VVho may enter without command to avoid a fine Page 356 357 A plea by an administratrix of fully administred must be certeine Page 358 VVhere an Allegation generally of Covin is good ib. A commoner Copy-holder may have an Action of the Case for the losse of his Common so he may distreine damage feasant ib. A Baron of Scotland shall be tried by Commons of England Page 359 See the diverse Resolutions of difficulties arising upon the Indictment of the Lord Sanchar and others Page 359 360 Cases in the Court of Wards The Kings release doth not extinguish a service inseparable Page 361 VVhen the Land moveth from a Subject and the Tenure is changed the new Tenure shall be as neere the ancient as may be ib. VVhere the particular estate is out of 32. H. 8. no wardship accrueth to the King by advancement of him in remainder otherwise of a reversion for he is Tenant Page 362 VVhat words are sufficient to create an estate taile Page 363 The Kings possibility shall not devest a VVardship vested Page 364 The reviving of an ancient Tenure preferred before the reservation of a new ib. By death of the father before livery sued after tender The King looseth primer seisin but no meane rates Page 365 Of a fruitlesse reversion a wardship but not primer seisin ib. Where the saving in 32. H. 8. giveth ward and primer seisin Page 366 A Mensnalty cannot be suspended in part and in esse for part by the act of the party but it may by Act of Law or a third person ib. There are foure manner of Avowries Page 367 What Act is a good delivery of a Deed or of seisin of Land ib. One may have an estate taile which cannot discend Page 368 Three manner of Confirmations Page 369 THE TENTH BOOKE WHat things requisite to the Founding of an Hospitall see at large Page 371 An estate taile barred by recovery in value without recompence Page 374 A Feme Covert shall not loose her Land by any conclusion without examination upon a Writ in Court ib. Tenant for life suffers a recovery and he in remainder in taile is vouched the reversion in fee is barred Page 375 The devise of a terme to one for life the remainder to another for life is good as an Executory devise Page 376 The first Devisee cannot barre him who hath the Executory devise ib. Assent to the first devise is an assent for all ib. Such an executory devise not grantable over ib. but it may be extinguished by release to the first Devisee ib. Qui destruit medium destruit finem Page 377 If a Recusant grant the next avoidance before conviction it is void by 3. Jacobi for he is disabled from the beginning of the Session c. Page 378 Covin shall not be presumed if it be not averred ib. A private Act shall be taken as it is Pleaded ib. What grants of Offices by a Bishop are void by 1. Eliz. except for twenty one yeares or three lives and what Circumstances requisite Page 380 Praerogativa Regis c. 15. excepts Knights fees and advowsons and indowments all other appendants now passe by grants and so doe they in Case of Restitution Page 381 A Corporation aggregate may make a surrender in Law not in Deed Page 382 The Jurisdiction of the Marshalsea and the reasons thereof Page 382 383 About 4. E. 3. the Court of Kings Bench became resident Page 383 A good diversity where the Court hath Jurisdiction but proceed In verso ordine and where they have not Jurisdiction there all they doe is Coram non judice and void Page 383 384 Diverse abstruse points resolved some at the common Law and severall upon the Statutes of 32. 34 H. 8. of wills Page 385 386 VVhat Colour is and where it must be given Page 388 VVhere a privy interest although he claime but part must shew the first Deed except he claim meerly by Law Page 388 389 VVhere a man may have a freehold discendible Page 390 A warranty barres no estate which is not displaced at the time of c. ib. A warranty cannot inlarge an estate where it may be given in evidence Page 391 VVhat Obligations made to Sheriffes are within the Statute of 23. H. 6. Page 391 Forma verbalis Forma legalis or Essentialis Page 392 393 The time of granting a Tales and when it is well granted Page 396 397 The proper place of a reservation is after limitation of the estate Page 397 Increase of services is betweene very Lord and very Tenant Page 398 VVhen Lands shall be said to be concealed from the K. 398 399 A man shall have costs in all cases where hee recover dammages Page 400 Where a man shall recover damages and costs also ib. Where to the writ of Inquiry and to the verdict and judgement ib. Where insufficient verdict may be supplyed by a writ of Inquiry and where it cannot a good difference Page 401 A difference between auncient Corporations and new in matter of Misnosmer Apices Juris non sunt Jura Page 401 402 Which is the legall time of payment of Rent Page 402 If payment be in the morning and the lessor dye at noone this is satisfactory against the heire but not against the King ib. Where the lessee shall hold rent free for a quarter Page 402 Where Damages may be assessed intirely and where not Page 403 404 What words passe under the name of Latine Page 404 Where by death of one of the Plaintiffes after summons and severance the writ abateth divers good diversities Page 404 405 A Qu. impedit praesentare ad medietatem Ecclesiae where good ib. Cases upon the Commissions of Sewers Where the Commissioners may subvert a Cawsey and where not Page 406 If a wall be subverted by a sodaine inundation the Commissioners may taxe all equally who have damage thereby ib. Otherwise if it come by neglect of him who ought to doe it ib. If the Commissioners have power to make a new River and a generall taxe so much upon every Towne for doing thereof Page 407 What is a good revocation of old uses and limitation of new Page 409 THE ELEVENTH BOOK A Difference between a disability absolute and temporary or personall Page 411 The grant of the office of Auditor to two is good Page 412 What offices grantable in reversion ib. Where the Jurors may assesse damages severally Page 413 Where one shall have an attaint that is a stranger to the issue ib. Where a writ of Enquiry shall issue Page 414 The plaintiffe shall have judgement de melioribus damnis ib. The conclusion of a plea is not traversable Page 415 In every issue there must be an affirmative and a negative ib. The Impropriation sufficient in the life of the Incumbent ib. VVhere the witnesses are not punishable for perjury Page 416 Perpetuall unity a discharge and what requisite thereunto ib. VVhat prescription for tithes of houses is good ib. A customary Mannor may be holden of another Mannor Page 417 VVhat variance in the name of a Corporation doth vitiate Page 418 VVhat devise of socage by tenant is Capite is good Page 419 An Ejectione firmae of tithes without shewing their kinds not good ib. If a deed be rased the obligor may plead Non est factum Page 420 A diversity where it is rased by the obligee himselfe and where by another ib. VVhere Clergy allowable at the Common law and where at this day copious and excellent matter Page 421 VVhere an Errour lyeth not before the finall Judgement Page 423 A fine by the Stewart of a Mannor where it is well assessed Page 425 VVhere the Lord may destreine for it without prescription ib. VVhere an action shall abate in part and where for the whole Page 426 Notwithstanding the exception trees remaine parcell of the Inheritance ib. A thing in possession cannot be parcell of a reversion upon an estate for life Page 427 None may be prohibited by the common law to use any trade Page 428 An ordinance by a Corporation against law is void ib. How an Ejectione firmae must be brought Page 429 Although the dammages are not well assessed yet the Plaintiffe may have judgement ib. Much variety of Learning touching Recusancy and upon the severall Statutes concerning them Page 429 430 Master and Fellowes of a Colledge restrained to grant by 13. Eliz. what statutes doe binde the King Page 432 Some grants to the King void and some voidable Page 433 VVhere acceptance of Rent doth barre and where not Page 434 Tenant in taile after possibility of c. hath a greater estate in quality then tenant for life not in quantity Page 434 435 VVhat priviledges belong to his estate Page 435 A lease without impeachment of wast what passeth thereby ib. A monopoly is against law and hath three incidents against the weale publique Page 436 What fees belong to the office of Master of the Ordnance Page 427 In the Kings Case the law maketh a privity to be accomptable ib. For what causes a Citizen may be disfranchised Page 438 The 3. Book fol. 9. Dowties Case A Difference where the first certainty is false in a grant and where the first is true and the second false Page 439 Where lands are in the Q. by 33. H. 8. c. 20. without seisure ib. Fol. 11. Sir William Harberts Case What remedy for debts at the common law and when the body and lands became liable thereunto Page 440 44â— In all actions vi et armis the body was subject unto Imprisonment and so for debt at the Kings suite Page 441 The heirs of the conâ—isâ—ser shall not have contribution against a purchasor ib. Changes reall doe not survive but personall doe Page 442 Three Errours there moved but not resolved ib. FINIS
the hands of the Feoffee shall not barre the Lord of reliefe due after for that is no service if it were Debt would not lye for it 'T was said if the Lord accepts services by the hands of the Heire infeoffed within age by collusion he loses the wardship But against this 't was objected First because the Lord upon tender of the arrerages and notice is compellable to avow upon him Secondly he cannot be concluded before title accrued Answered the Lord is not compellable c. for he may shew the collusion and avow upon the Feoffor and by acceptance the Lord waives the benefit of the Statute purges the collusion and loses the wardship Westbyes Case 40. Eliz. In Banco Regis Fol. 71. WEstby brought an action of Debt against Skynner and Catcher Sheriffes of London for an escape One Buston was in execution and in their custody at the Suite of one Dighton and at the Plaintiffes Suite and at the end of their yeare the Sheriffs deliver'd the body of Buston amongst others unto the new Sheriffes by Indenture wherein the execution at the Suite of Dighton was mentioned but the execution at the Suite of Westby was omitted and Buston still continued in the Gaole and if the Defendants should be charged in this Case with the escape was the Question And it was adjudged that they should be charg'd for although he was within the walls of the Prison yet that was an escape in Law as to the Plaintiffe And it was resolved that Eo instanti that the ancient Sheriffes delivered their Prisoners to the new Sheriffes the escape began as to the Plaintiffe Note hereby that the Law judgeth one that remaines in the Gaole to have escaped and it was resolved that the ancient Sheriffes ought to give notice to the new Sheriffes of all executions that they have against any that are in their custody and it was also resolved untill the Prisoners be delivered to the new Sheriffes they remaine in the custody of the old Sheriffes Notwithstanding the new Letters Patents the Writ of discharge and the Writ of delivery And 't was resolved that if the old Sheriffe die before a new one be made the new Sheriff at his owne perill ought to take notice of all executions against any of the Prisoners and this is for necessity and if one in Execution breake the Gaole betweene the death of the old Sheriff and the making of the new this is no escape but when the Sheriff is dead all the Prisoners are in the custody of the Law untill the new Sheriff be made and although no fresh Suite be made after they may be taken in Execution in what place soever they come in Deane and Chapter of Norwich Case 40. and 41. of the Queene fo 73. H. 8. Anno. 30. translated the Priory and Covent of the Cathedrall Church of the holy Trinity of Norwich into the Deane and Chapter c. and discharged them by their speciall names Tam de habitu quam de regula ipsosque decanum Capitulum perpetuis temporibus duraturis corporavit and granted them all the Mannors c. which of late belonged to the Priory and granted that they should be the Deane and Chapter of the Bishop of Norwich and his Successors after 2. E. 6 the Deane and Chapter surrendered to the King their Church and possessions and he incorporated them by the name of the Deane and Chapter Sanctae individuae Trinitatis Norw ' ex fundatione E. 6. And regranted them their Church and Possessions by the name of the Deane c. omitting Ex fundatione Regis E. 6. Objected that Herbert heretofore Bishop of Norwich was Founder and being not party to the translation 't is voyd Answered the King was Founder as appeares by many Records and by the Foundation but admit the Bishop Founder yet the translation was good for the Pope might have discharged a Monke of his profession and therefore the King may doe it by the Statute of 25. H. 8. And this translation is no prejudice to the Founder for he remaines Founder and nothing is altered but the rule and profession and rhis Prior was eligible 11. of the Queene Dyer Corbets case proves this very translation good and by judgement of Parliament 33. H. 8. such translations are good All Chapters were Monkes and notwithstanding their translation into Prebends or Cannons the Advowson remaines as before But admit the translation voyd yet 't is good by the Statute of 35. of the Queene see the Booke at large Objected when they surrendered to E. 6. and he regranted to them by the mis-naming of the Corporation for ex fundatione Regis E. 6. was omitted the grant was voyd and nothing passed for the name of the Founder is parcell of the Corporation Answered notwithstanding the surrender of their Church their Corporation continues and they remaine the Chapter of the Bishop though there cannot be a Gardian of a Chappell when the Chappell and all the possessions are aliened In Christian policy 't was thought necessary for that the Church could not be without Sects and Heresies that every Bishop should be assisted with a Counsell viz. a Deane and Chapter 1. To consult with them in deciding of difficult Controversies of Religion to which purpose every Bishop habet Cathedram 2. To consent to every grant the Bishop shall make to binde his successors for the Law did not judge it reasonable to repose such confidence in him alone at first all the possessions were to the Bishop after a certaine portion was assigned to the Chapter therefore the Chapter was before they had any possessions and of common right the Bishop is Patron of all the Prebends because their possessions were derived from him so that so long as the Bishopricke continues the Deane and Chapter being his Counsell remaines though they have no possessions as at first they were when the Bishopricke consisted all of spiritualty The Prior and Friers Carmilites had not any possessions nor place And 32. H. 8. Fitz. held if an Abbot or Prior and covent sell their possessions yet their Corporation remains All Bishopricks were of the Foundation of the Kings of England and anciently Donative by them but by grants of the Kings became after Eligible by their Chapter wherefore if by their surrender their Corporation should be dissolved three inconveniences would follow First to the Bishop for his assistance in the Episcopall function Secondly to the Bishop and others touching the confirmation of Grants Thirdly to all the Church for how should the Bishop be chosen Resolved First if there were any imperfection in the Translation the Statute of 35. of the Queene hath made it good Secondly that the Act of 1. E. 6. hath made it good though the Corporation were gone by the surrender and the misnamer materiall Holden by the Justices and Lord Keeper that the ancient corporation remaines notwithstanding the surrender Fermors Case 44. of the Queene fo 77. SMith Lessee for yeares of a
the Lord distreine when no rent is arreare the Tenant or Lessee may make rescons and so releive himselfe The Abbot of Strata Mercella his Case 34. Eliz. fol. 23. IN a Quo warranto for claiming Waifes c. and Fellons goods c. the Defendant pleaded as to the Fellons goods that the Abbot of S. M. Licite habuit gavisus fuit them untill the Abbey was granted to the King by 27. H. 8. and pleads also 32. H. 8. c. 20. of reviving of priviledges of Abbies and that the K. granted a Mannor parcell of the Abbey tot talia tanta privilegia as the late A. had to one by whom he claimed by feoffement and pleaded not the feoffement by deede Judgement against the Defendant for the Queene it was said that the Charter of the Defendant was void 1. Because it appeares not what estate the Abbot had 2. Because the Defendant claimeth Catalla felonum appendant to a Mannor because he pleaded a feoffement of the Mannor and had not pleaded it by deed without which the priviledges doe not passe To the first the Court answered that it shall be intended a seisin in fee untill the contrary be shewed To the second no resolution but it was resolved that if the K. grant a Mannor bona catalla felonum dicto Manerio spectant these passe although they cannot be appendant But for the third exception judgement was given against the Defendant In this Case foure things worthy of consideration 1. What ancient franchises ought to have allowance as to that some may be claimed by prescription without record and some by record onely and a Charter of the latter shall not be allowed if it be before time of memory if it be not allowed within time of memory as allowance in Eyre or confirmation by the K. but usage will not serve and no more shall be allowed then are confirmed Obscure words in these ancient Charters shall be construed according to ancient usage and not according to usage at this day 2. A man may prescribe in Franchises lying in poynt of Charter with aide of allowance in Eyre without shewing the Originall Charter 3. If a Patent of priviledges whereby they are granted in fee referre to a grant made before to one for life onely this is good for the relation is to the quality and not to the quantity of the estate See there what trialls shall be allowed by Law such priviledges as are ancient flowers of the Crowne as Bona catalla felonum fugitivorum c. if these come againe to the K. they are merged in the Crowne but not those which were erected and created by the K. as Faires Markets Parkes Warren and the like Bucknalls Case 42. Eliz. Com. banco fol. 33. IF the Lord avow for other services then the Tenure is traversable if for more services of the same nature the seisin is traversable for he may incroach and it cannot be avoided in an avowry if it be not for an outragious distresse but seisin binds not in Ne injuste vexes Cessavit Assize Rescons or Trespasse but in them he shall traverse the Tenure but issue in taile successor of a Bishop c. shall avoide seisin in an avowry and every one may that can shew a deed of the tenure but none shall have a Contraformam feoffamenti but the feoffee or his Heires and incroachment hurteth not where there is no Tenure and if an incroachment be of payment at more dayes if they agree in the Sum it doth not prejudice Seisin in an avowry is not traversable generally as never seised of the services because by that meanes he leaveth no remedy to the Lord by avowry but in such a Case he shall disclaime or pleade out of his fee and so traverse the Tenure He who denyeth seisin after the limittation must first acknowledge a Tenure that the Lord may have his Writ of Customes and Services as if the Avowry be for rent fealty and suite Henslowes Case 42. Eliz fol. 36. AN Action of Debt was brought against Gage and others as Executors one of the Executors refused before the ordinary the probate and the rest of the Executors proved the Testament it was adjudged that notwithstanding that refusall he may administer the will afterwards at his pleasure for when many are named Executors and some of them refuse and other some prove the Testament those which refused may afterwards administer notwithstanding the refusall before the Ordinary but if all refuse before the Ordinary and the Ordinary commit the administration to another then they cannot prove at any time and the Executor that proveth the will ought to name every other of the Executors that refused in every action for recovery of Debts of the Testator and they may release the debts duties c. and they which refused may have an Action by survivor and after that Executors have administred and have once taken upon them the charge of the Executor-ship they cannot refuse at any time after It is holden in 2. R. 3. tit testament 4. that it is but of late times that the Church had the probate of Testaments in this Land for 't was given by an act c. and in all other Nations it is not so but in England and in many places of England the Stewards in their Courts Baron have probate of Testaments in their temporall Courts at this day Lynwood who was Deane of the Arches and writ in Anno. Dom. 1422. did confesse the probate of Testaments to belong to the Ordinaries De consuetudine Angliae non de communi jure and that in other Realms the Ordinaries have not so and in another place he affirmeth that the power of the Bishop in probate of Testaments is Per consensum regni suorum procerum ab antiquo And I have seene a Booke in Latine published 1573. by the Reverend Father Matthew Parker Arch Bishop of Canterbury who was very Learned in matters of Antiquity in these words Rex Angliae olim erat consiliorum Ecclesiasti orum praeses vindex temeritatis romanae propugnator Religi nis nec ullam habebant Episcopi authoritatem praetam eam quam à rege acceptam referebant jus testamenta probandi non habebant administrationis potestatem cuique delegare non poterant It was resolved by Littleton Newton and Danby in 7. E 4. 14. that if all the Executors refuse before the Ordinary they may prove the Testament afterwards but I think this is before the Ordinary hath committed the administration for afterwards they cannot The Executors have their Title by their Testament which is temporall But to the suing of Actions in the Kings Courts the Judges will not admit the Executors for to sue except that they shew the Testament proved under the seale of the Ordinary duely but alwayes the Kings Courts have used to allow the probate of any of the Executors to inable them all to sue actions but the probate of the Testament doth not