shall not supply the defect of the words in the grant V. Gilbert and Sir George Harts Case Mich. 25 and 26 Eliz. in the Kings Bench. GIlbert brought Debt upon Escape against Sir George Hart Sheriff of Kent and declared Escape 1. Cro. 188. 271. That he recovered a certain debt against A. who was taken in Execution c. And the Case was That the said A. was taken in Execution in the time of the old Sheriff and escaped also then and afterwards the Defendant being Sheriff the Plaintiff again sued a Scire facias against the said A. upon the Iudgment aforesaid upon which Execution was awarded by default and thereupon issued a Capias ad satisfaciendum by which A. was taken and escaped And by the opinion of all the Iustices the Defendant in this Case shall be charged for notwithstanding that A. was once in Execution which was determined by escape in the time of the old Sheriff yet when Execution was now awarded against him upon his default in the Scire facias the same shall bind the Sheriff out of whose custody he escaped VI. Moor and Farrands Case Mich. 25 and 26 Eliz. in the Common Pleas. MOore leased Lands to Farrand upon condition that he 1. Cro. 26. Condition where shall not bind Administrators 1. Anders 123. Dy. 6. 1 Cro. 26. 757 3. Len. 67. his Executors or Assigns should not alien without the leave of the lessor Farrand died intestate his Wife took Letters of Administration and aliened without leave and by Periam Iustice she is not within the penalty of the Condition for the Administrator is not meerly in by the party but by the Ordinary And by Meade and Periam If a Lease for years upon such a Condition be extended upon a Recognisance the same is not an alienation against the Condition But if feme lessee for years upon such Condition taketh a Husband and dieth the Husband is within the danger of the Condition for he is Assignee If the King grant to a Subject bona catalla felonum and the lessor for years upon such a Condition be out-lawed upon which the Patentee enters Now by Periam the Patentee is not bound by the Condition Meade contrary for the Condition shall go with the Land. VII Maynyes Case Mich. 25 and 26 Eliz. in the Exechequer MAyney seised of Lands in Fee took a Wife Co. 1. Inst 41. â— made a Feoffment to a stranger committeth Treason and thereof is attainted and hath a Charter of Pardon and dieth It was moved by Plowden in the Exchequer if the Wife of Mayney shall have Dower against the Feoffee Dower Manwood Chief Baron by reason of this Attainder Dower cannot accrue to the Wife for her title begins by the Enter-marriage and ought to continue and be consummated by the death of the Husband which cannot be in this Case for the Attainder of the Husband hath interrupted it as in the Case of Elopement Attainder where an Estoppel And this Attainder is an universal Estoppel and doth not run in privity only betwixt the Wife and him to whom the Escheat belongs but every stranger may bar her of her Dower by reason thereof for by the Attainder of her Husband the Wife is disabled to demand Dower as well as to demand his Inheritance and he cited the Resolution of all the Iustices of England in the Case of the Lady Gates 4. Ma. Dyer 140. and the Pardon doth not help the matter for the same extends but to the life of the Offender but doth not take away the Attainder by which she is barred to demand Dower during the said Attainder in force See the Statute of 5. E 6. cap. 11. Vid. Fitz. Dower 82. 13. E 3. 8 E 3. Dower 106 Fitz. Utlag 49. 8 Mich. 25 and 26 Eliz. in the Exchequer 4. Len. 117. Leases for three lives of Copy-hold estate are not within Stat. 41. Eliz. IN the Exchequer it was found by special verdict That the Guardians and Chanons Regular of Otlery were seised of the Mannor of O c. and that 22 H 7. at a Court holden there granted the Lands in question to W. and W. his Son for their lives by Copy according to the Custom of the said Mannor and that afterwards 30 H 8. They leased the Lands by Indenture to H. rendering the ancient and accustomed Rent and afterward surrendred their Colledge c. and afterward W. and W. dyed And if that Lease so made during the customary estate for life notwithstanding the Statute of 31 H 8. be good or not was the Question being within a year before the surrender c. It was argued by Egerton Sollicitor that the said Lease is void by the Statute the words of which are whereof or in the which any estate or interest for term of life year or years at the time of the making of any such Lease had his being or continuance and was not then determined finished or expired and therefore we are to see if that right or possession which W. had at the time of the making of the Lease were an interest or an estate for life And as to this word estate it is nothing else than measure of time for an estate in Fee-simple is as much as to say an interest in the Lands for ever and the like of other estates and therefore here W. and W. had at the time of the making of this Lease an estate for life in the thing demised And although such customary Tenants are termed in Law Tenants at will yet they are not simply so nor meerly Tenants at will but only Tenants at will secundum Consuetudinem Manerii Copy-holdeâ—â— Interest which Custom warrants his possession here for his life and therefore it is a more certain estate than an estate at will for the Copyholder may justifie against his Lord so cannot a Tenant at will whose estate is determined at the will and pleasure of his Lessor And although this estate is but by Custom and by no Conveyance the estate is raised it is as material so as it be an estate and this estate being supported by Custom is known in Law an estate and so accounted in Law and the Law hath notably distinguished Copy-hold Tenancies by Custom and Tenancies at will by the Common Law for a Copy-holder shall do Fealty shall have aid of his Lord in an Action of Trespass shall have and maintain an Action of Trespass against his Lord his Wife shall be indowed the Husband shall be Tenant by the Curtesie without new admittance and it was adjudged in the Common Pleas 8. Eliz. That if a Copy-holder surrender to the use of another for years the Lessee dieth his Executors shall have the residue of the Term without any admittance M 14. and 15. Eliz. a Copy-holder made a Lease for years by Indenture warranted by the Custom it was adjudged that the Lessees should maintain Ejectione firm although it was objected that if it were so then if
Lands within the said Town every second year left their Lands to lye fresh and untilled and prescribed further that the Tenants of the Lands within the said Town might erect Herdals in in their Lands with the Licence of the Lord of the said Manor and not otherwise and further declared that the said Bedingfield had let to him the said Manor and that the Defendant had erected Herdals upon his Lands without Licence so as the profit of his Foldage is impaired by it And all this matter was found by Verdict And it was objected in stay of Iudgment that the prescription is not good for it is against Law and common right to abridge the Subject of the profits of his Lands But the whole Court was clear of opinion that the prescription is good enough as 15 E 2. Prescription 51. Prescription to have common appendant in other Land afte that the Hay is cut and v E. 1. Prescription 55. A. seised of Lands may Plow it and Sow it and cut and carry away the Corn and afterwards when the Corn is carried B. by prescription may have the said Land as his several and the other who sowed it cannot meddle with that land but to plow and sow it in season c. And the Cattel cannot eat and pasture in the Land when they come to plow or sow it or to carry it away nor have any profit but the Corn and yet the Free-hold of the Land is in such person c. and that was holden a good Prescription and a difference was taken by the Court where one doth prescribe to take away the whole interest of the Owner of the Land and where a particular profit is restrained And here this prescription doth not extend but to restrain the Ter-tenant to erect Herdals which is a reasonable prescription See 1 H 7 24. The Lord of the Town doth prescribe to have free Foldage of the Beasts of his Tenants in D. and see there that libera Falda is not any other but to hav the Beasts of the Tenants to manure the lands of the Lord c. And afterwards Punsany the Plaintiff had Iudgment to recover XVI Mich. 25 26 Eliz. at Serjeants Inn. IN the Dutchy Chamber the case was that King E 6. leased for years certain lands parcel of his Dutchy of Lancaster rendring rent with clause of re-entry and that a lease was made to one Bunny It was found by Office that the Rent was arrear and by another Office that the Servant of the said Lessee had tendred the rent in his absence and by the commandment of his Master and that afterwards one I. S. Receiver General of the Dutchy received the said Rent and had accounted for it and upon his account it was allowed And this matter was opened at Serjeants Inn in Fleet-street before Wray Anderson Manwood Clench Rhodes Plowden and Stanhop and it was argued by Shuttleworth that in this case of rent reserved upon a Lease for years made by the King of Dutchy-Land The King not bound to demand Rent the King is not bound to demand it but he may for default of payment of it re-enter without demand and that the Lessee is tied to tender it at his peril as well as if the Queen had been seised of the said land in the right of her Crown and as to that payment the Statute of 1 H 4. is to be considered by which it is enacted that the possessions of the said Dutchy Taliter tali modo per tales officiarios ministros in omnibus remaneant deducantur gubernentur sicut remanere deduci gubernari debuissent si ad culmen Regis Dignitatis assumpti non fuissemus and these words ought to be intended of things which concern the Lands themselves but this Act of demand is a personal thing and concerns the person of the King and toucheth the Majesty and dignity of the King and in all cases of the Dutchy the person of the King shall hold his priviledge notwithstanding that the possession of the Land be carried in the course of a private person And therefore if the Queen will alien Lands parcel of her Dutchy she ought to make Livery for now she meddles with the possession it self but if the Queen will sue for parcel of her Dutchy non omittas shall be in the Writ for she cannot sue but as Queen and the Queen hath such Prerogative that none shall execute her Writs at her own sute but the Officer of the Crown 21 E 4. 60. for Livery if it be not Land within the County Palatine and for the residue See 10 H. 4. 7. 3. Eliz. 216 217. Plowden Lessee for years of Lands of the Dutchy shall have aid of the King before Issue joyned c. And if the King make a Feoffment of Lands of his Dutchy out of the County Palatine to hold of him in Capite the Feoffee shall hold it so and a Feoffment of such Lands upon condition that the Feoffee shall not alien is a good condition and Lapses shall not bind the Queen in case of an Advowson which the Queen hath in the right of the Dutchy and if the Villain of the Queen in the right of the Dutchy purchaseth Lands in Fee and aliens yet the Queen shall seise and that hath been adjudged in the Exchequer Chamber and if the Queen make a Lease of such Land and afterwards makes another Lease of the same Land without recital of the first Lease it hath been adjudged that the second Lease is void It was argued contrary by Beamount the younger that this condition which goeth to the realty to reduce the Land again ought to be ordered and governed by the Queen as it ought to be by a Subject and therefore if the Queen will take advantage of this condition she ought to make a Letter of Attorney under the Dutchy Seal to her own Officer authorizing him thereby to make demand of the said Rent c. And by Shuttleworth here be two Offices the one contrary to the other the best shall be taken for the Queen 14 E 4. 5. in Skreens Case in the end of it And if the Rent of the Kings Farmor be behind now although that after the Receivor of the Dutchy doth receive it yet the same doth not purge the forfeiture as if the Bayliffs of a Manor receive rent of a new Feoffee the same will not change the Avowry of the Lord without notice given to him 41 E 3. 26. And if a Copy-hold escheat the Steward without a special Warrant cannot grant it over de novo XVI Rearsbie and Rearsbies Case Intrat Trinit 25 Eliz. rot 746. Mich. 25 and 26 Eliz. in the Kings Bench. REplevin by W. Rearsbie against A. Rearsbie and L. Rearsbie who avow the distress because that one W. Vavasour was seised of the Manor of Deniby whereof the place where c. is parcel in his Demesne as of Fee and so seised gave the said Manor to
upon the Evidence Notwithstanding that the number set down in the plaint be by the plea of the Defendant quodam modo admitted and the lesser number surmised and the contrary not proved shall go in mitigation of the damages and the Iury shall conform their verdict in the right of damages according to the proof of the number notwithstanding that the number set forth in the plaint be not by the Plea denied by the Defendant and so it was put in ure in this Case for the Plaint was of the taking of one thousand Cattle but the proof extended but to eight hundred sixty five Note also in the same Plea it was holden that whereas one Chock was returned upon several Iuries in two several Courts at Westminster and both the Iuries are adjourned to one day now in which of the said two Courts the said Chock was sworn he shall be discharged of his attendance at the other Court the same day LV. Carters Case Mich. 28 29 Eliz. In the Common Pleas. CArter brought an Action upon the Case against I.S. and declared Assumpsit that A. was possessed of certain Lands for years the Inheritance thereof being in the Wife of the Plaintiff upon which Lease a Rent was reserved The Defendant in consideration that the Plaintiff would procure the said A. to assign the said Lease to the Defendant promised to pay the said Rent to the Plaintiff for all the residue of the Term It was objected that upon this matter the Action doth not lie because that the Plaintiff hath a higher remedy scil an Action of Debt or Distress but the opinion of the whole Court was that the Action did lie for here upon the promise an Action is given to the Husband alone in his own right whereas the Rent is due to the Husband in the right of his Wife in its nature and the Rent is also to be paid for the Land. But upon this Assumpsit it is payable to the person of the Husband And afterwards Iudgment was given for the Plaintiff LVI Kimpton and Bellamyes Case Mich. 28 29 Eliz. In the Common Pleas. GEorge Kimpton brought a Replevin against Wood and Bellamy Replevin who make Conusance as Baylies to George Burgain for Damage Feasance The Plaintiff in Bar of the Conusance sheweth That he himself and all those whose estate he hath in one hundred and forty Acres of Land time out of mind c. have had common for all manner of Cattle in six Acres of Lands whereof the place where c. is parcel and so put in his Cattle c. against which the Defendants say that the Plaintiff c. had common in forty Acres of Land whereof the said six Acres are parcel all lying in Communi campo and that the Plaintiff a long time before the taking had purchased two Acres parcel of the said forty Acres c. upon which there was a demurrer in Law It was argued by Serjeant Shuttleworth that the Replication to the Bar to the avowry is not good for in the Bar to the Avowry the Plaintiff hath shewed that he hath common in six Acres and the same shall be intended common in six acres only for common in forty acres cannot be the common in six acres as 35 H. 6. 38. In Debt for Rent reserved upon a Lease for years the Plaintiff declared that he leased to the Defendant ten acres of Land rendring the Rent in demand the Defendant pleaded that the Plaintiff leased to him the said ten acres and also such a Rectory rendring the same Rent the same is no plea without traverse absque hoc that he leased the ten acres only See Dyer 29 H. 8. 32. And the whole Court was clear of opinion that for want of such traverse Traverse the plea is not good for by Periam the Common supposed in the bar to the Conusans out of the six acres cannot be intended the Common supposed in the Replication scil out of the forty acres And by him if in Trespass the Defendant justifie by reason of Common in six acres of Land upon which the parties are at issue and the Defendant in Evidence shews that he hath common in forty acres whereof the said six acres are parcel the same doth not maintain his title but the issue shall be found against him Post 80 81. But by the Lord Anderson because that this Demurrer is general the other party shall not take advantage of that defect of pleading for the want of the Traverse and that by reason of the Statute of 27 Eliz. For Traverse is but matter of form and the want of the same shall not prejudice the other party in point of Iudgment but the Iudges ought to judge upon the substance and not upon the manner and form of the pleading And as to the matter of the Common Extinguishment the Court was clear of opinion that by the purchase of the said two acres the whole Common was gone LVII Knights Case Mich. 28 29 Eliz. In the Common Pleas. KNight brought Debt against three Executors and now surmised by his Counsel that one of the Executors is dead pendant the Writ Debt and prayed the opinion of the Court if the Writ should thereby abate or not for by some it is not like where a Writ is brought against two Executors Abatement of Writ for there if any of them dieth pendant the Writ it shall abate for now the plural number is gone for there is but one Executor but in our Case the plural number continues But notwithstanding that the Court was clear of opinion that the Writ should abate Wherefore the Plaintiff seeing the opinion of the Court prayed that upon his surmise aforesaid he might have a new Writ by Iourneys Accounts which was granted to him The Queen and Middletons Case Mich. 28 29 Eliz. In the Common Pleas. Quare Imped THe Queen brought a Quare Impedit against Middleton and counted that W. Lord Say was seised of the Manor of Bedington in the County of Hertford to which Manor the advowson of the Church was appendant ad Ecclesiam praedict praesentavit Coo Clericum suum and afterwards died seised having issue two Daughters Mary married to the Earl of Essex and Ann to the Lord Mountjoy who make partition and the said Manor of Bedington inter alia was allotted to the said Mary for her part and afterwards the said Earl and Mary died having issue Ann who took to Husband the Marquess of Northampton and afterwards 33 H. 8. a Fine was levyed of the said Manor inter c. Querent and the said Marquess and Ann Deforceants by which Fine the said Manor was granted and rendred to the said Marquess for term of his life the remainder to the said Ann his Wife in tail the remainder over to Hen. the eighth in Fee the Marquess is attainted of High Treason by which the King seised and afterwards Ann died without issue after which
plead it specially but as our case is here is no Act to be done but a permittance as abovesaid and it is in the Negative not a disturbance in which case permisit is a good plea and then it shall come on the other side on the Plaintiffs part to shew in what Lands the Defendant non permisit Which difference see agreed 17 E. 4. 26. by the whole Court. And such was the opinion of the whole Court in the principal case 1 Co. 127. Another Exception was taken to it that the Defendant had covenanted that his brother Edward should pay to the Plaintiff the said Rent To which the Defendant pleaded that his said brother had payed to the Platntiff before the said Feast of Michaelmas in full satisfaction of the said Rent three shillings and that was holden a good plea and upon the matter the Covenant well performed for there is not any Rent in this Case for here is not any Lease and therefore not any Rent For if A. covenant with B. that C. shall have his Land for so many years rendring such a Rent 1 Roll. 847. 1 Cro. 173. Owen 97. here is not any Lease and therefore neither Rent But if A. had covenanted with C. himself it had been otherwise because it is betwixt the same parties And if the Lessee covenant to pay his Rent to the Lessor and he payeth it before the day the same is not any performance of the Covenant causa patet contrary of a sum in gross Another Covenant was that the said Humphry solveret ex parte dicti Edwardi 20 l. to which the Defendant pleaded that he had paid ex parte dicti Humfridi 20 l. and that defect was holden incureable and therefore the Plaintiff had Iudgment to recover CLXXXVII Geslin and Warburtons Case Mich. 30 Eliz. In the Common Pleas. 1 Cro. 128. IN an Ejectione firmae by Joan Geslin against Hen. Warburton and Sebastian Crispe of Lands in Dickilborough in the County of Norf. Mich. 30. 31 Eliz. rot 333. upon the general Issue the Iury found a special verdict that before the Trespass supposed one Martin Frenze was seised of the Lands of which the Action was brought in tail to him and his Heirs males of his body so seised suffered a common Recovery to his own use Devises and afterwards devised the same in this manner I give my said Land to Margaret my Wife until such time as Prudence my Daughter shall accomplish the age of nineteen years the Reversion to the said Prudence my Daughter and to the Heirs of her body Lawfully begotten upon condition that she the said Prudence shall pay unto my said Wife yearly during her life in recompence of her Dower of and in all my Lands 12 pounds and if default of payment be made then I will that my said Wife shall enter and have all my Lands during her life c. the Remainder ut supra the Remainder to John Frenze in tail c. Martin Frenze died Margaret entred the said Prudence being within the age of fourteen years Margaret took to Husband one of the Defendants John Frenze being Heir male to the former tail brought a Writ of Error upon the said Recovery and assigned Error because the Writ of Entry upon which the Recovery was had was Praecipe quod reddat unum Messuag and twenty acras prati in Dickelborough Linford Hamblets without naming any Town And thereupon the Iudgment was reversed And it was further found that in the said Writ of Error and the process upon it Hutt 106. 2 Cro. 574. 3 Cro. 196. no Writ of Scire facias issued to warn dictam Prudentiam ten existentem liberi ten praemissorum ad ostendendam quid haberet vel dicere sciret quare Judicium praedict non reversaretur The Iury further found that the said Margaret depending the said Writ of Error was possessed virtute Testamenti ultimae voluntatis dict Martini reversione inde expectant dictae Prudentiae pro ut lex postulat And they further found Error that six pound of the said tewlve pounds were unpaid to the said Margaret at the Feast c. and they found that the said John Frenze praetextu Judicii sic reversat entred into the premisses as Heir male ut supra And so seised a Fine was levyed betwixt John Frenze Plaintiff and one Edward Tindal Owen 157. Dyer 321. 1 Cro. 471. 739. and the said Prudence his Wife Deforceants and that was to the use of the said John Frenze And that afterwards Humphry Warburton and the said Margaret his Wife brought a Writ of Dower against the said John Frenze Edw. Tindal and Prudence his Wife of the said Lands The said Edward and Prudence made default and the Demandants counted against the said Frenze and demanded against him the moity of the third part of the said Lands To which the said Frenze pleaded that the default of the said Edward and Prudence idem John Frenze nomine non debet quia he said that he the said John was sole seised of the Lands aforesaid at the time of the Writ brought c. and pleaded in Bar and it was found against the said John and Iudgment given for the Demandants of the third part of the whole Land and seisin accordingly And that afterwards 17 Eliz. the said Frenze levyed the Fine to the said Tindal to the use of the said Tindal and his Heirs And they found that after the said Feast the said Henry Warburton and Margaret his Wife came to the Messuage aforesaid half an hour before Sun-set of the said day and there did demand the Debt of the said twelve pounds Dower to the said Margaret by the said Martin Frenze devised to be paid unto them and there remained till after Sun-set of the said day demanding the Rent aforesaid and that neither the said Tindal nor any other was there ready to pay the same And first it was moved if the said yearly sum of twelve pounds appointed to be paid to the said Margaret were a Rent or but a sum in gross And the opinion of the Court was that it was a Rent and so it might be fitly collected out of the whole Will where it is said that Prudence his Daughter should have the Land and that she should pay yearly to Margaret twelve pounds in recompence of her Dower c. But if it be not a Rent but a sum in gross it is not much material to the end of the case For put case it be a Rent the same not being pleaded in Bar the Dower is well recovered and then when default of payment is made if the Wife of the Devisor shall have the whole was the Question And the Court was clear of opinion that by the suit and Iudgment in the Writ of Dower the Wife of the Devisor had lost all the benefit which was to come to her by the devise For the said Rent was devised to her in recompence of
be a strange construction that the King should be within one part of the Statute and out of the other And 34 H. 6. 3. The Kings Attorney could not have damages which is a great proof and authority that the Iudgment for damages in such case is Error The experience and usage of Law is sufficient to interpret the same to us and from the time of E. 3. until now no damages have been given in such case Thrice this matter hath been in question 1. 3 H. 9. and the Iustices there would not give damages 34 H. 6. there the Councel learned of the King could not have damages for the King. And 7 Eliz. there was no damages And whereas it hath been said that a man shall not have a Writ of Error where Iudgment is given for his benefit that if Iudgment be entred that the Defendant be in Misericordia where it ought to be Capiatur yet the Defendant shall have a Writ of Error And he conceived also that here is but one Iudgment Clench The first President after the making of that Statute was that damages were given for the King in such case but afterwards the practice was always otherwise that the said Statute could not be construed to give in such case damages the reason was because the Iustices took the Law to be otherwise And the King is not within the Statute of 32 H. 8. of buying of Tythes nor any Subjects who buy any title of him And here in our case the Queen is not verus Patronus but hath this presentment by Prerogative And if title do accrue to the Bishop to present for Lapse yet the Patron is verus Patronus At another day the case was moved and it was said by VVray that he had conferred with Anderson Manwood and Periam who held that the Queen could not have damages in this case but Periam somewhat doubted of it Gawdy In 22 E. 4. 46. In Dower the Demandant recovered her Dower and damages by verdict and afterwards for the damages the Iudgment was reversed and stood for the Lands Clench It shall be reversed for all for there is but one Iudgment And afterwards Iudgment was given and that the Queen should have a Writ to the Bishop and damages Popham The Court ought not to proceed to the examination of the Errors without a Petition to the Queen and that was the case of one Mordant where an Infant levyed a Fine to the Queen and thereupon brought a Writ of Error and afterwards by the Resolution of all the Iudges the proceedings thereupon were stayed See 10 H. 4. 148. a good case CCVIII Chapman and Hursts Case Trin. 31 Eliz. In the Kings Bench. BEtwixt Chapman and Hurst Tythes the Defendant did libel in the spiritual Court for Tythes against the Plaintiff who came and surmised that whereas he held certain Lands by the Lease of Sir Ralph Sadler for term of years within such a Parish that the now Defendant being Farmor of the Rectory there The Defendant in consideration that the Plaintiff promised and agreed to pay to the Defendant ten pounds per annum during the Term for his Tythes he promised that the Plaintiff should hold his said Land without Tythes and without any sute for the same and thereupon prayed a Prohibition And by Gawdy the same is a good discharge of the Tythes for the time and a good Composition to have a Prohibition upon and it is not like unto a Covenant See 8 E. 4. 14. by Danby CCIX. Kirdler and Leversages Case Trin. 31 Eliz. In the Common Pleas. IN Avowry the case was Avowry 1 Cro. 241. that A. seised of Lands leased the same at Will rendring rent ten pounds per annum and afterwards granted eundem redditum by another deed to a stranger for life and afterwards the lease at will is determined Periam was of opinion that the Rent did continue and although that the words be eundem redditum yet it is not to be intended eundem numero sed eundem specie so as he shall have such a Rent scil ten pounds per annum As where the King grants to such a Town easdem libertates quas Civitas Chester habet it shall be intended such Liberties and not the same Liberties so in the principal case Also he held that a Rent at will cannot be granted for life and therefore it shall not be meant the same Rent But it was afterwards adjudged that the Rent was well granted for the life of the Grantee CCX Heayes and Alleyns Case Trin. 31 Eliz. In the Common Pleas. Cui in vita 1 Cro. 234. Poph. 13. HEayes brought a sur cui in vita against Alleyn And the case was this The Discontinuee of a Messuage had other Lands of good and indefesible title adjoining to it and demolisht and abated the said house and built another which was larger so as part of it extended upon his own Land to which he had good title And afterwards the heir brought a sur cui in vita and demanded the house by the Name of a Messuage whereas part of the house did extend into the Land to which he had no right And by Periam The Writ ought to be of a Messuage with an Exception of so much of the house which was erected upon the soil of the Tenant Demand and the manner of it in a writ as demand of a Messuage except a Chamber And it was argued by Yelverton That the Writ ought to abate for if the Demandant shall have Iudgment according to his Writ then it shall be entred quod petens recuperet Messuagium which should be Erronious for it appeareth by the verdict it self that the demandant hath not title to part of it and therefore he ought to have demanded it specially 5 H. 7. 9. parcel of Land containing 10 Feet 16 E. 3. Br. Mortdanc of a piece of Land containing so much in breadth and so much in length And the moyetie of two parts of a Messuage and 33 E. 3. br Entrie 8. a Disseisor of a Marsh ground made Meadow of it Now in a Writ of Entry it shall be demanded for Meadow Drue Serjeant contrary and he confessed the Cases put before and that every thing shall be demanded by Writ in such sort as it is at the time of the action brought as a Writ of Dower is brought of two Mills whereas during the Coverture they were but 2 Tofts but at the day of the Writ brought Mills and therefore shall be demanded by the name of Mills 14 H. 4. 33. Dower 21. 13 H. 4. 33. 175. 1 H. 5. 11. Walmesly part of a Msseuage may be demanded by the Name of a Messuage and if a House descend to two Coparceners if they make partition that one of them shall have the upper Chamber and the other the lower here if they be disseised they shall have several Assisses and each of them shall make his plaint of a Messuage and by him a Chamber may be
And after four and twenty years after the death of the said Sir Anthony the said Edward entred into the Land to him devised by the said Devise and leased the same to the Plaintiff Descent where tokes away entire c. And it was moved here if this dying seised of Henry of the Lands in Hertford and descent to his Heir should take away the Entry of Edward the Devisee And by Anderson cleerly If here upon the whole matter be a descent in the Case then the Entry of Edward the Devisee is taken away although that the Devisee at the time of the descent had not any Action or other remedy for it shall be accounted his folly that he would not enter and prevent the descent But VVindham Periam and VValmesly Iustices 2 Len. 147. 1 Cro. 920. 3 Cro. 145. Owen 96. were of a contrary opinion For a Devisee by a Devise hath but a Title of Entry which shall not be bound by any Descent as Entry for Mortmain for Condition broken And after long deliberation they all agreed that there was not any Descent in the Case for by the Devise and death of the Devisor the Frank-tenement in Law and the Fee was vested in the Devisee Edward And then when the Queen seised and leased the same during the Nonage of Henry and the Lessee entred he did wrong to Edward and by his Entry had gained a tortions Estate in fee although he could not be said properly a Disseisor nor an Abator And afterwards when Henry after his full age when by his Indenture he leased without any special Entry ut supra and by colour thereof the Lessee entred now he is a wrong-doer to Edward the Devisee and by his Entry had gained a wrongful Possession in Fee and then the paying of the Rent to Henry nor the walking of Henry upon the Land without any special claim did not gain any Seisin to him and so he was never seised of the Land and could never dye seised and then no Descent and then the Entry of Edward was lawful and the Lease by him made to the Plaintiff was good And so Iudgment was given for the Plaintiff CCXCIV. Greenwood and Weldens Case Mich. 32 33 Eliz. In the Common Bench. Replevin IN a Replevin between Greenwood and VVelden The Defendant made Conusans as Bayliff to John Cornwallis shewed how that seven acres of Land called Pilles is locus in quo and at the time of the taking were holden of the said Cornwallis by certain Rent and other Services And for Rent arrear he made Conusans as Bayliff to Cornwallis The Plaintiff pleaded out of the Fee of Cornwallis upon which they were at Issue And it was found that the Plaintiff is seised of seven acres called Pilles hoden of Cornwallis ut supra But the Iury say That locus in quo doth contain two acres which is called Pilles and these two acres are and then were holden of Agmondesham of the Middle-Temple And if upon the whole matter videbitur Curiae c. And by the opinion of the whole Court out of his Fee upon that matter is not found for although it be found that the two acres be holden of Agmondesham yet it may be that they are within the Fee of Cornwallis for it may be that Cornwallis is Lord Paramount and Agmondesham Mesne and then within the Fee of Cornwallis And therefore for the incertainty of the Verdict a Venire facias de novo was awarded CCXCV. Bishop and Harecourts Case Mich. 32 33. Eliz. In the Common Bench. Assumpsit 1 Cro. 210. IN an Action upon the Case The Plaintiff declared that the 5 Junij 30 Eliz. the Defend in consideration that the Plaintiff the same day and year sold and delivered to the Defend a Horse did promise to pay the Plaintiff a hundred pounds in Trinity Term then next ensuing and shewed that the Term began 7 Junij after And upon Non assumpsit pleaded it was found for the Plaintiff And it was moved in arrest of Iudgment That it appeareth upon the Declaration that the Plaintiff hath not cause of Action for the Trinity Term intended is not yet come for the day of the Assumpsit is the fifth of June and the fourth day was the first day of the said Term scil the day of Essoins and the seventh day 4. die post and then the promise being made at the day aforesaid after the Commencement of the said Term the same is not the Term intended but the Plaintiff must expect the performance of the promise until a year after And of that opinion was Anderson but the three other Iustices were strongly against him to the contrary for by common intendment amongst the people the Term shall not begin until 4. die post and so it is set down usually in the Almanack And afterwards Iudgment was given for the Plaintiff CCICVI Mich. 32 33. Eliz. In the Common-Bench COoper Serjeant came to the Bar and shewed that A. Tenant in tail the Remainder over to B. in Fee. Co. 2 Inst 483. 484. 1 Cro. 323. 471. 567. Hob. 496. 3 Cro. 224. A. for a great sum of mony sold the Land to I. S. and his Heirs and for assurance made a Feoffment in Fee and levied a Fine to the said I. S. to the use of the said I. S. and his Heirs And note that by the Indenture of Bargain and Sale A. covenanted to make such further Assurance within seven days as the said I. S. or his Heirs or their Council should devise And shewed that before any further assurance was made the said I. S. died his Son and Heir being within age And now by advise of Council and of the Friends of the Infant it was devised that for such further assurance and cutting off the Remainder a common Recovery should be suffered in which the said Infant should be Tenant to the Praecipe and should vouch the Vendor Common Recovery suffered by an Infant by his Guardian and because that the said Term of seven years is almost expired and that the said Recovery is intended to be unto the use of the said Infant and his Heirs it was prayed that such a Recovery might be received and allowed And two Presidents in such Case were shewed in the time of this Queen one the Case of the Earl of Shrewsbury and the other one VVisemans Case But the Iustices were very doubtful what to do But at last upon good assurance of people of good Credit that it was unto the use of the Infant and upon the appearance of a good and sufficient Guardian for the Infant in the Recovery who was of ability to answer to the Infant if he should be deceived in the passing of that Recovery and upon consideration had of the two Presidents and upon Affidavit made by two Witnesses that the said intended Recovery was to the use of the Infant the Recovery was received and allowed CCICVII Cottons Case Mich. 32
Disseisor as well to Robert as to the Infant Then if the Defendant be Disseisor and hath no title by the Infant Robert who hath Right in a moyety may well enter into the whole for he hath the possession per my per tout by his Entry and then when the Defendant doth eject him he hath good cause of Action And after at another day the Case was moved and it was agreed That for one moyety the Infant is bound for Sir Thomas had an estate tail in a moyety for he was Issue of the body of the Comisor But for the other moyety the Fine levyed by Tenant for life William the Father being then Tenant beyond the Sea It was holden by Anderson Windham and Walmesly that the Infant was not barred notwithstanding the objection abovesaid That William the Father never returned into England and notwithstanding the words of the Statute of 4 H. 7. And by Walmesley If an infant make his claim within age it is sufficient to avoid the Fine and yet the said Statute seems to appoint to him time within five years after his full age so that according to the very words a claim made before or after should be vain yet in Equity although he be not compelsable to make his claim until the time allowed by the Statute yet if he make it before it is good enough And by Anderson Although that VVilliam the Father did not return yet if he makes not his claim within five years after the death of his Father being of full age and without any impediment c. he shall be barred If in such case a man hath many impediments he is not compellable to make his claim when one of the impediments is removed but when they are all removed So if the Ancestor hath one of the said impediments and dieth before it be removed and his Heir is within age or hath other impediment he is not bound to make is claim till five years after his impediment is removed And Somes case cited before was holden and agreed to be good Law for the Forfeiture may not be known unto him And as to the objection against the Lease at Will because it was made by an Infant and no Rent reserved upon it nor the Lease made upon the Land and therefore the Lessee should be a Disseisor To that it was answered Be the Defendant a Disseisor or not it is not material here for if the Plaintiff had not title according to his Declaration he cannot recover 1 Cro. 220. 1 Cro. 438. whether the Defendant hath title or not for it is not like unto Trespass where the very possession without other title is good contrary in Actions against all who gave not title but in Ejectione firmae if the title of the Plaintiff be not good and sufficient be the title of the Defendant good or not he shall not recover And afterwards Iudgment was given for the Defendant Hill. 33. Eliz. CCXCVIII Cheny and Smiths Case Mich. 32 33 Eliz. In Communi Banco IN an Ejectione firmae by Cheny and his Wife against Smith The Plaintiffs declared upon a Lease made by the Master of the House or Colledge of S. Thomas of Acons in London to I.S. who assigned it over to Knevit who by his Will devised the same to his Wife whom he made also his Executrix and dyed and afterwards she took to Husband one VVaters and died VVaters took Letters of Administration of the Goods and Chattells of his Wife and afterwards leased to the Plaintiffs And upon not guilty they were at Issue And it was given in Evidence That the Lease given in Evidence was not the Lease whereof the Plaintiffs have declared for the oriâ—inal Lease shewed in Court is Master of the House or Hospital where the Lease specified in the Declaration is Master of the House or Colledge 38 E. 3. 28. And some of the Iustices conceived that there is not any material Variance but if the parties would it might be found by special Verdict For by them Colledge and Hospital are all one And afterwards the Court moved the Plaintiffs to prove if the wife were in as Executrix or as Legatee for by Anderson and Periam until election be made he shall not be said to have it as Legatee especially if it be not alledged in fact that all the debts of the Testator are paid And Anderson doubted although that it be alledged that the debts be paid If the Executor shall be said to have the said Lease as a Legacy before she hath made Election vid. Weldens Case and Paramours Case in Plowd And afterwards it was given in Evidence That the wife after the death of the Husband had repaired the Banks of the Land and produced Witnesses to prove it as if the same should amount to claim it as a Legacy and the Court said that that matter should de referred to the Iury 1 Roll. 620. And it was further shewed in Evidence that the said Wife Executrix and her said Husband Waters formerly made a Lease by Deed reciting thereby that where the Husband was possessed in the right of his said Wife as Executrix of her first Husband c. And by the opinion of the whole Court the same was an express claim as Executrix and then when the Wife died if the Husband would have advantage of it he ought to take Letters of Administration of the Goods of her first Husband and not of the Wife but if she had claimed the Land and the Term in it as Legatee and had not been in possession Administration taken of the Rights and Debts of the Wife had been good as to that intent that his Wife was not actually possessed of it but only had a Right unto it and of such things in Action the Husband might be Executor or Administrator to his Wife but here they have failed of their title The Administration being taken of the goods of the Wife where it should be of the Goods of the Testator the first Husband And for this cause the Plaintiffs were non-suit and the Iury discharged And it was agreed by all the Iustices that if the Wife before Election had taken Husband that the Husband might have made the Election in the Case aforesaid CCXCIX The Lord Cobham and Browns Case Mich. 32 33 Eliz. In the Common Bench. THe Case between the Lord Cobham and Brown was that the Abbot of Grace was seised of the Mannor of Gravesend in the County of Kent which Mannor doth extend to the Parishes of Gravesend and Milton and that the said Abbot and all his Predecessors c. time out of mind c. have had a Water-Court within the said Mannor which Court had been holden at Gravesend Bridge in the end of it and that all the Inhabitants within the said Parishes which have Boats either entirely or joyntly with others and have used to transport or carry passengers from Gravesend to London e contra and have used to fasten
appeareth upon his own shewing as it was holden in a Hampshire Case betwixt Sutton and Dowze Sutton and Dowzes Case 2 Len. 55. 3 Len. 155 164. which see Mich. 25 26 Eliz. and in that case the Lease is void for it was made within a year after the Statute of 31 H. 8. the January before and the Statute in April after for he hath not averred that the usual Rent is reserved nor that the Land was usually let to farm for which Leases otherwise made within the year are absolutely void by the said Statute But it will be objected Ante 306. 1 Cro. 707 708. Heydons Case That this matter shall come in of our part and it is sufficient for them to plead the Case but it is not so as it was lately agreed in Heydons Case in the Exchequer where the Case was That the Warden and Canons of the Colledge of Otery leased certain Lands to Heydon for years and he in pleading of his Lease did not shew that the ancient Rent was reserved and therefore naught and so was the opinion of the Iustices of the Common Pleas Lord Cromwel and All-Souls Case in the Case betwixt the Lord Cromwel and All-Souls Colledge upon the Statute of 18 Eliz. cap. 6. upon a branch of it by which it was provided that the third part of the Rent reserved upon any Lease should be paid in Corn c. and the Leases made to the contrary should be void and in an Ejectione firmae brought upon such Lease because it was not shewed in the Declaration that the Corn was reserved according to the Statute Iudgment was arrested and we need not to plead the Statute for although the Statute be particular yet because the King hath interest in it it shall be holden in Law a general Act and the Iudges shall take notice of it although it be not alledged by the party as it was ruled in the Lord Barcklays Case 4 Eliz. Plow 231. but if such Rent was reserved yet the Lease cannot be good for the King cannot have his Rent because it is not incident to the Reversion nor passeth by the Grant of the Reversion for it is not a Rent but rather a sum due by reason of contract which see 30 Ass 6. A man leaseth a Hundred rendring Rent or grants a Rent out of a Hundred the same is not a good Rent but meerly void for a Hundred is not Manorable nor can be put in view nor any Assize lieth of such Rent See 9 Ass 24. and in 20 Eliz. in the Case betwixt Corbet and Cleer 7 Co. 5. Corbet and Cleers Case the Dean and Chapter of Norwich leased a Parsonage and common of Pasture rendring Rent 1 E. 6. they surrendred their possessions to the King and afterwards the King granted the Parsonage without speaking of the common of Pasture It was holden that the Patentee of the Parsonage should have all the Rent and no apportionment should be in respect of the Common for all the Rent issueth out of the Parsonage and nothing out of the Common So here 2 Co. 48. for Tithes are not an Hereditament which cannot support a Rent within this Statute for which cause the Lease is void Also he said that the traverse of the Defendant was not well taken for the Plaintiff hath said That time out of mind c. the Abbot and his Predecessors were seised of the Rectory and Manor aforesaid simul semel and ratione inde was discharged c. at the time of the dissolution the Defendant traverseth absque hoc that the Abbot and his Predecessors held discharged of Tithes time out of mind c. which is not good for he hath traversed our conclusion for our plea is an argument wheresoever is unity time out of mind c. there is a discharge of Tithes but in the Abbot was such an Vnity ergo he held discharged of Tithes as 21 E. 3. 22. In a Praecipe quod reddat the Tenant saith that the Land in demand is parcel of the Manor of D. which is ancient Demesn and c. to which the Plaintiff saith That it is Frank-fee and the same was not good for he denies the conclusion but he ought to plead to the nature of the Manor that it is not ancient Demesn or that the Land in demand is not parcel of it Another matter was because it is pleaded fuit in tenura occupatione of Goodman and others but he did not shew by what Title Disseisin or Lease or other Title c. Buckley contrary And he said This unity of possession is not any discharge of Tithes by the said Statute and as to the Case cited before of 3 H. 7. 12. where Tenant in tail of a Rent entreth upon the Tenant of the Land now is the Rent suspended and then after when he makes a Feoffment in fee by that Feoffment the Rent is extinguished which was but suspended at the time of the Feoffment and therefore some have holden that if after such Entry he makes a Lease for life of the Land that his Rent or Seigniory is utterly gone in perpetuum for by the Livery all passeth out of him which he said cannot be Law and so it seemed to Gawdy Iustice Then upon such Feoffment with warranty he could not vouch as of Land discharged of the Rent generally but as of Land discharged at the time of the Feoffment which proves that the suspension is not a discharge for it was suspended before the Feoffment and discharged by the Feoffment and so suspension is not a discharge à fortiori in the Case of Tithes for in the case of Common and Rent although they are suspended so as they cannot be actually taken yet they are to some intent in esse As where Lands holden of other Lords are in the hands of the King for Primer seisin by reason of Prerogative and during such seisin of the King the Lord gets seisin the same is a good seisin notwithstanding that it was suspended so as he could not distrain And also in Assize of Land damages as to the Rent out of the Land shall be recouped therefore the rent in some sort is in esse and à multo fortiori this Tithe which is a thing of common Right shall be in esse but goes with the Land A Rent in esse to some purposes and suspended to other and therefore by unity of possession shall not be suspended 35 H. 6. He who hath liberty of Warren in the Lands of another entreth into the Land the Warren is not suspended nor by Feoffment of the Land is extinct and in this Case upon the matter during the unity of possession the Tithes were paid although not in specie Also the Abbot had the Tithes as Parson of B. and the Land as Abbot and therefore no suspension for the Tithes were always in esse although not taken in the manner as Tithes commonly are but by way of Retainer 22
at last after many motions it was resolved by all the Iustices Averment â—here superâ—luous that the Averment aforesaid was superfluous ex abundanti for it had been sufficient for the Plaintiff to have assigned the breach of the Covenant in the not repairing the Messuage without any Averment de non appunctuando and if the house in the not repairing of which the breach of Covenant is assigned was appointed to be pulled down the same shall come in on the defendants part to whose advantage it trencheth for such appointment doth discharge the Covenant as to that In the same plea it was moved in stay of Iudgment that one Sharp Solicitor of the said Sir John in the said suit had given eight shillings to the Iurors mean betwixt the Charge and their Verdict and that matter was testified by the oaths of two men upon which the Court examined the said Sharp who upon his oath denied the matter and also the Foreman of the Iury to whom the mony was supposed to be given who upon his oath denied the same And it was moved if receipt of mony by any of the Iurors should make the Verdict void and by Wray it shall not for it is but a Misdemeanor which is punishable on the person of him who takes the mony But Gawdy and Ayliff Iustices the Verdict is void See 24 E 3. 24. 14 H. 7. 1. 20 H. 7. 30. And for that cause the Iudgment was reversed XXII Cordall and Gibbons Case Pasch 26. Eliz. Intr. Trin. 25. Eliz. Rot. 492. In the Kings Bench. IN an Ejectione firmae upon not guilty pleaded the Iury found the special matter viz. that one Hierom Heydon was seised of two Messuages whereof the Action is brought and came to Cordall the Plaintiff and prayed him to send him ten pounds Cordall asked him what assureance he would give him for the re-payment of it he answered that he would mortgage to him the said two Messuages whereupon Cordall lent him the mony and afterwards they both went to the said two Houses and being before the doors of them Heydon called Tenants at will of the Houses and said to them Sirs I have borrowed of this Cordall ten pounds upon these Houses and if I pay this mony at Michaelmas next I must have my Houses again and if not then I bargain and sell these Houses to Cordall and my Will is that you become his Tenants after which Heydon put the said Cordall into the Houses and seeing him in the Houses he put in the Keys of the said Cordall by the Windows c. And it was adjudged by the whole Court that this conveyance by word of mouth was good enough to pass the estate ut supra and the words of bargain and sale in this Case are as strong as of gift and grant See 38 E 3. 11. 43 E 3. 11. 27 E 3. 62. 28 E 3. 11. XXIII Richards and Bartlets Case Pasch 26 Eliz. Intr. Mich. 25 26 Eliz. Rot. 72. In the Kings Bench. DOrothy Richards Executrix of A. her former Husband Assumpsit brought an Action upon the Case upon a promise against Humfrey Bartlet and declared that in consideration of two weighs of Corn delivered by the Testator to the Defendant he did promise to pay to the Plaintiff ten pounds to which the Defendant said that after the Assumpsit the Plaintiff in consideration that the said two weighs were drowned by Tempest and in consideration that the Defendant would pay to the Plaintiff for every twenty shillings of the said ten pounds three shillings four pence scil in toto thirty three shillings four pence did discharge the said Defendant of the said promise and averred further that he hath been always ready to pay the said sum newly agreed upon which there was a demurrer And the opinion of the whole Court was clearly with the Plaintiff first because that here his not any consideration set forth in the Bar by reason whereof the Plaintiff should discharge the defendant of this matter for no profit but damage comes to the Plaintiff by this new agreement and the Defendant is not put to any labour or charge by it therefore here is not any agreement to bind the Plaintiff See 19 H. 6. Accord 1. 9 E. 4. 13. 12 H. 7. 15. See also Onlies Case 19 Eliz. Dyer then admitting that the agreement had been sufficient yet because it is not executed it is not any Bar And afterwards Iudgment was given for the Plaintiff XXIV Lendall and Pinfolds Case Pasch 26 Eliz. In the Kings Bench. IN Trespass for breaking of his Close by Lendal against Pinfold Trespass the Case was that two brake the Close and entred and did the Trespass the Owner of the land brought an Action of Trespass against one of them and had Iudgment and execution accordingly and afterwards brought Trespass against the other Bar. 1 Cro. 667. 2 Cro. 73. 1 Cro. 30. 31. and declared upon the same Trespass And by Ayliff Iustice it is a good Bar and he likened it to the case of one Cobham who brought an Action of Trespass of Assault and Battery and recovered and had execution and afterwards brought an Appeal of Mayhem against the same person upon the same matter the said Recovery and execution is a good Bar c. so here as to the breaking of the close but not as to the Entry But by Wray it is a good Bar for the whole and he likened it to the case of Littleton Pl. 376. A Release to one of the Trespassers shall discharge both Gawdy agreed in opinion with Ayliff XXV Kempe and Hollingbrooks Case Pasch 26 Eliz. In the Exchequer IN an Ejectione firmae for Tythes the case was upon the Statute of 18. Eliz. Cap. 6. By which it is enacted that no Masters Tithea and Fellows of any Colledge in Cambridge or Oxford shall make any Lease for life or years of any Farm or of any their Lands Tenements or other Hereditaments to the which any Tythes arable Land Meadow or Pasture doth or shall appertain unless the third part at least of the accient Rent be reserved and payed in Corn for the said Colledges c. otherwise every Lease without such Reservation shall be void c. If now the said Statute shall be construed to extend to Leases of such extraordinary pecuniary Tithes which are not natural or paid in kind It was argued that the said Statute is to be intended of Tithes in kind and also of such things to be demised which render Corn Hay c. But the Tithes in London which is the thing demised in our case doth not render any such thing Tithes in London but only mony according to the decree made for payment of Tithes in London in the time of E. 6. And although the words of the Statute be other Hereditaments to the which any Tithes c. Yet the said Statute doth extend to Tithes in gross but they ought to be
things 1. Leases the number of the years 21 non ultra 2. antiquus redditus vel eo amplior yet in reason and good understanding we ought to think that the intent of the Act was that the said Manor should now come to the said Lady Frances surcharged with Leases in Reversion or to begin at a day to come for if by this Act the said Earl might make a Lease to begin three months after by the same reason he might make a Lease to begin twenty years after and also to begin after his death It hath been objected that the Lord Treasurer had a Commission to make Leases of the Queens Lands and that by virtue thereof he made Leases in Reversion I know the contrary to that for every such Lease is allowed by a Bill assigned and not by the ordinary Commission aforesaid the words of our Act are Dimissiones facere pro termino 21. annorum that shall be meant to begin presently As if I lease to you my Lands for one and twenty years it shall be intended to begin presently and he cited the Case betwixt Fox and Collier upon the Statute of 1 Eliz. cencerning Leases made by Bishops That four years of a former Lease being in being the Bishop leased for one and twenty years the same was a good lease notwithstanding the former lease for the lease began presently betwixt the parties And it hath been adjudged that a lease for years by a Bishop to begin at a day to come is utterly void And he cited the Case of the late Marquess of Northampton who by such an Act of Parliament as ours was enabled to make leases of the Lands of his Wife for one and twenty years and of the said Lands an ancient lease was made before the said Act which was in esse and before the expiration thereof he made a lease by virtue of the said Act to commence after the expiration of the former lease and that lease was allowed to be a good lease warranted by the said Statute because that the first lease which was in esse was not made by force of the said Act but if the said former lease had been made by virtue of the said Statute the second lease had been utterly void XLV Trin. 28 Eliz. In the Kings Bench. Copy-hold Surrender by Attorney not good A Copy-holder of the Manor of the Earl of Arrundel did surrender his customary Lands to the use of his last Will and thereby devised the Lands to his youngest Son and his Heirs and died the youngest Son being in prison makes a Letter of Attorney to one to be admitted to the Land in the Lords Court in his room and also after admittance to surrender the same to the use of B. and his Heirs to whom he had sold it for the payment of his debts And Wray was of opinion that it was a good surrender by Attorney but Gawdy and Clench contrary 3 Cro. 218. 9 Co. 75. and by Gawdy If he who ought to surrender cannot come in Court to surrender in person the Lord of the Manor may appoint a special Steward to go to the prison and take the surrender c. and by Clench Lessee for years cannot surrender by Attorney but he may make a deed purporting a surrender and a letter of Attorney to another to deliver it XLVI Troublefield and Troublefields Case Trin. 28 Eliz. In the Kings Bench. Dy. 337. b. Co. 1 Inst 15. 2. b. 52. 245. b. 252. 6. Post 51. Entry THe Case was that a Copy-holder did surrender to the use of his Will and thereby devised the Land to his Wife for life the remainder over to his son in tail and died the Wife entred and died a stranger did intrude upon the Lands and thereof made three several Feoffments to three several persons he in the Remainder entred upon one of the said three Feoffees in the name of all the Lands so devised and made a lease of the whole Land And by Clench and Wray it was a good Entry for the whole and by consequence a good lease of the whole Gawdy contrary Note all the Lands were in one County See 16 Eliz. Dyer 337. 9 H. 7. 25. XLVII Parmort and Griffina's Case Trin. 28 Eliz. In the Kings Bench. IN Debt upon an Obligation by Parmort against Griffina a Merchant-stranger the Defendant pleaded Debt that the Obligation was made upon condition for the performance of certain Covenants contained within certain Indentures and shewed what c. and alledged further that in the said Indenture there is a proviso that if aliqua lis vel controversia oriatur imposterum by reason of any clause article or other agreement in the said Indenture contained that then before any sute thereupon attempted the parties shall choose four indifferent persons for the ending thereof which being done the Indenture and Obligation shall be void And in fact saith that Lis controversia upon which the Action is brought groweth upon the said Indenture upon which there was a demurrer in Law. And because the Defendant hath not shewed specially upon what controversie or strife and upon what article certain The Court was clear of opinion that the Bat was not good And also the Court was of opinion Proviso taken strictly that the said Proviso did not extend to subject and submit the breach of every Covenant or Article within the said Indenture to the Arbitrament of the said four persons but only where strife and controversie doth arise upon the construction of any Covenant c. within the said Indenture so as the Defendant ought to have shewed such matter which fell within the Arbitrament by the meaning of the said Indenture and Iudgment was given against the Defendant XLVIII Partridge and Partridges Case Mich. 28 29. Eliz. In the Common Pleas. IN Dower by Partridge against Partridge the Case was Dower that Land was given to the Father for life the reversion to his Son and Heir for life the remainder to the right Heirs of the body of the Father The Father and Son joyn in a Feoffment to the Vncle in Fee scil to the Brother of the Father The Vncle takes a Wife the Father dieth the Son being his Heir in tail the Vncle dieth without issue so as the Land descendeth to the Son as Heir to his Vncle against whom the Wife of the Vncle brought Dower It was moved if the Son being Herein can to his Father and Heir also to his Vncle for the Fee descended be now remitted for then no Dower accrueth to the Wife of the Vncle for the estate of which she demands Dower is gone but if the livery in which the Son joyned with his Father be the livery of the Son Remittâ— the same lies in his way in the impediment and preventing of the Remitter so as during his life he shall be adjudged seised of the Lands in Feesimple by descent from his Vncle Then Dower lyeth for the same
the Obligation which was made for the further assurance of the duty And here the Defendant ought to have pleaded the tender and see 14. E. 4. 4. A. is bound unto B. that where he hath granted to the said B. a Rent-charge out of such Land now if the said B. shall enjoy the said Rent according to the form and effect of the said Grant that then c. there he needs not to plead any tender for the Rent is not payable in other manner than it was before contrary if the Condition had been for the payment of the Annuity And of that opinion was the whole Court that he ought to have pleaded a tender Another matter of the Award was that the said Audar should yield up surrender relinquish to the Plaintiff all such Houses and Tenements which he had in his possession by reason of the custody of the said Plaintiff As to that the Defendant pleaded that he had yielded up c. All such Houses c. generally without shewing which in certain And for that cause the Court was clear of opinion that the Plea was not good which see 9 E. 4. 16. If I be bounden upon condition to enfeoff the Obligee of all Lands Tenements which were to I.S. in pleading the performance of that Condition I ought to shew what Lands and Tenements in certain for they pass out of me by the Feoffment See also 12 H. 8. 7. 13 H. 8. Non damnificatus generally where no Plea. 19. Another point of the Award was That the said Audar should acquit and discharge and save harmless the Plaintiff of such an Obligation to which the Defendant pleaded that Querens non fuit damnificatus and that Plea was holden insufficient for he ought to have shewed how he had discharged him and it is not sufficient to answer only to the damnification as if I be bounden to convey unto you the Manor of B. in pleading the performance of the condition it is not sufficient to shew that I have conveyed the said Manor but to shew by what manner of conveyance viz. by Fine or Feoffment c. 22 E. 4. 43. If the condition be to discharge the Plaintiff c. then the manner of the discharge ought to be shewed but if it be to save harmless only then non damnificatus generally is good enough 40 E. 3. 20. 38 H. 6. 39. The condition of an Obligation was that the Obligor should keep without damage the Obligee of such a sum of mony against B. to whom he was bounden for the payment of it and the said Obligor pleaded that at such a day c. the said B. at his request delivered the Obligation to the Plaintiff in liew of an acquittance without that that the Plaintiff was damnified by the said Obligation before the delivery of it and it was holden by the Court that if the Defendant had pleaded that he had kept the Plaintiff without damage and had not shewed how that the Plea had not been good See 22 E. 4. 40. The Lord Lisles Case And afterwards Iudgment was given for the Plaintiff XCVI Heydons Case Mich. 29 30 Eliz. RAlph Heydon pretending title to certain Land entred into it and made a Lease of it to try the title Vpon which his Lessee brought an Ejectione firmae in which the parties were at Issue And now at the day of the Enquest the Iurors were called and but five of them appeared whereupon the Defendant came and shewed to the Court that the said Heydon by his Friends and Servants had laboured the Iury not to appear and that for the further vexation of the Defendant who had four Verdicts in affirmance of his title that the said Heydon to procure the Iury not to appear had surmised to them that he and the Defendant were in course of an agreement whereas in truth no such communication of agreement had any time passed betwixt them And all this was openly deposed in Court as well upon the oath of the Defendant himself as upon the oath of one of the Iurors upon which the Court awarded an Attachment against the said Heydon to answer the contempt And also granted to the Defendant that he might sue a Decem tales with proviso for his own expedition XCVII Smith and Kirfoots Case Mich. 29 30 Eliz. In Communi Banco Debt upon Arbitrament SMith brought Debt upon an Arbitrament against Kirfoot and declared that the Defendant and he imposuerunt se in arbitrium ordinationem judicium Johannis Popham ar arbitratoris indifferenter electi de jure titulo inturesse in quibusdam Messuagijs c. Who taking upon him the burthen of the Arbitration ordinavit that the said Defendant should pay unto the Plaintiff ten pounds in plenam satisfactionem c. and thereupon he brought his Action It was moved by Walmesley Serjeant that the Declaration is not sufficient for it appeareth that the Arbitrament set forth in the Declaration is utterly void because whereas ten pounds is awarded to the Plaintiff nothing is awarded to the Defendant and so the Award unequal and so void But the Court was clear of opinion that notwithstanding that such an Arbitrament be void in Law yet it may be for any thing that appeareth that the award is good enough 1 Cro. 904. â— Cro. 354. 355. For the Plaintiff is not to shew in his Declaration all the Award but such part only of it which doth entitle him to the thing c. and if the Defendant will impeach the Award for any thing that is to come in on his part vide ac Book of Entries 152. 123. vide For the Arbitrament 39 H. 6. 12. by Moile 7 H. 6. 41. XCVIII Arundel against Morris Mich. 29 30 Eliz. In Communi Banco RIchard Arundel sued an Audita Querela against Morris and it was comprehended in the Writ That Morris had recovered against him a certain Debt and that he was taken by a Capias ad satisfaciendum Audita Querela at the suit of the said Morris by Hickford Sheriff of the County of Gloucester who let him go at large c. And they were at issue upon the voluntary escape it was found for the Plaintiff It was objected in arrest of Iudgment that the Writ of Audita Querela is not good for the words are that the Plaintiff captus fuit virtute brevis nostri judicialis whereas this word judicialis is not in the Register but only brevis nostri de capiendo But by the whole Court the Writ is good for the word judicialis is but a word of surplusage and shall not make void the Writ And afterwards Iudgment was given for the Plaintiff XCIX Brook against King. Mich. 29 30. Eliz. IN Debt upon an Obligation by Brook against King the Defendant pleaded that the Bond was endorced with such condition viz. Debt That it the said Defendant King shall procure one I.S. to make reasonable recompence to the
most valuable part of the services of the Copy-holder The Statute of 1 E. 6. of Chantries doth extend to Copy-hold by the general words Lands Tenements and Hereditaments for otherwise the Proviso which excepts Copy-holds were not necessary And in our Statute the words are Lands Tenements and Hereditaments which are forceable words which proves that our exposition to extend it to Copy-holds is proper and agreeable to the Statute and this in the first branch of it for Copy-hold is some Land Tenement or Hereditament the clause in this branch of the Statute is and also all other the Lands Tenements and Hereditaments liable to such seisure c. the same is to be meant of such Lands which are bound with clause of revocation of which is spoken in the former part of this Statute He who departs out of the Realm against the Statute of 5 R. 2. shall forfeit his goods and thereby his debts also The King grants omnia bona catalla felonum Debts of Felons shall pass Ergo Copy-holds also 2 Lâ—n 56. Post 201. 202. by the name of Lands Tenements c. as well as debts by the name of goods In our Case the meaning of the Statute was that the Queen should have two parts of the whole estate of the Recusant be it Copy-hold Ancient demesne c. If upon the Statute of Bankrupts a Copy-hold estate be sold to the King the King shall pay the Rent but shall not do any of the services and in so much the Lord shall be prejudiced patiatur etiam hic rather than Recusants should not be punished and it is not a strange thing in Law that the Lord of a Copy-holder should be prejudiced for the offence of his Tenant as where a Copy-holder is outlawed the King shall have the profits of his Copy-hold Lands and the Lord hath not any remedy for his Rent CXXVII Stebbs and Goodlacks Case Pasch 30 Eliz. In the Kings Bench. BEtwixt Stebbs Goodlack the Case was the Parson of Letcome in the County of Berks libelled in the Spiritual Court for Tithes Fraud shall not avoid payment of Tithes the Defendant shewed that the custome of the Town of Letcome is that the Parson shall have for his Tithes the tenth Land sowed with any manner of corn and he shall begin his reckoning always at the first Land which is next to the Church c. The Parson shewed that the Defendant by fraud and covin sowed every tenth Land which belonged to the Parson ut supra very ill and with small quantity of corn and did not dunge or manure it as he did the other nine parts by means whereof whereas the other nine every of them yielded eight Cocks the tenth yeilded but three Cocks and for this matter the Parson libelled in the Spiritual Court and confessed the custome but for abusing of the custom prayed to have his Tythes in kind the Defendant prayed a prohibition and the Parson afterwards a consultation And the opinion of Wray Iustice was that the custom was against common reason and so void but if it be a good custom then the Parson shall have the Action upon the case CXXVIII Rumney and Eves Case Pasch 30 Eliz. In the Kings Bench. Copy-holder IN Ejectione firmae by Jane Rumney against Lucie Eve it was holden that if customary Land do descend to the younger Son by custom and he enters and leaseth it to another who takes the profits and after is ejected Poph. 39. 4 Co. 22. That he shall have an Ejectione firmae without any admittance of his lessor or presentment that he is heir For which the Defendant shewed that there were thirty years incurred betwixt the death of the Father and the making of the Lease so that here is supina negligentia which shall disable his person to make any demise quod fuit concessum In answer of which it was said that the Lessor at the time of the death of his Ancestor was but of the age of two years and that after his full age no Court had been holden for a long time and that at the first Court that was holden which was of late he prayed to be admitted but the Steward refused to admit him and the same was holden a good excuse of his negligence And it was holden that the Plaintiff ought not to shew that the Lease is warranted by the custom 1 Cro. 469. 483. 717. 728. Ante 16. but that shall come of the other side and so it had been lately adjudged which Wray granted And by him if a Copy-holder surrender in extremis to the use of himself for life c. If he shall be well again the surrender shall stand 4 Len. 30. 31. 8 Co. 100. for he hath reserved an estate to himself It was further holden in this Case that if a Copy-holder dieth his Heir within age he is not bound to come at any Court during his non-age to pray admittance or to tender his Fine Also if the death of the Ancestor be not presented nor proclamations made he is not at any mischeif although he be of full age CXXIX Saint-John and Petits Case Pasch 30 Eliz. In the Kings Bench. IT was covenanted betwixt Saint-John and Petit that Saint-John should present Petit to the Church of A. and that afterwards Petit should lease the Parsonage to Saint-John or to any other person named by him and that the said Petit should not be absent by eighty days and that he should not resign and Petit was bound to perform these Covenants Petit is presented to the Benefice Saint-John brought an Action upon the Obligation pretending that he could not enjoy his lease by reason of the absence of the said Parson c. And the Lease was made to the Curate at the nomination of Soint-John The Parson said that the Obligation is void by the Statute of 14 Eliz. cap. 11. See the Statute All Leases c. made by any Curate shall be of no better force than if it had been made by the beneficed Parson himself Tanfeild by 13 Eliz. 20. When a Parson leaseth to his Curate who leaseth over The Statute doth not make the Lease void by any absence of the Parson but of the Curate by forty days Quaere For that it seemeth that by the Statute of 14 Eliz. the Curate cannot lease c. CXXX Gates and Halliwels Case Pasch 30 Eliz. In the Kings Bench. BEtwixt Gates and Halliwel the Case was one having two Sons 3 Len. 55. devised that his eldest Son with his Executors should take the profits of his Lands until his youngest Son should come to the age of two and twenty years and that then the said youngest Son should have the Land to him and the Heirs of his body It was holden clearly by the whole Court that the eldest Son should have Fee in the interim until the youngest Son came to the said age CXXXI Prowse and Carys Case Pasc 30 Eliz. In the
Kings Bench. PRowse brought an Action upon the Case against Cary for words That the Plaintiff did subborn procure and bring in false Witnesses in such a Court at Westminster c. The Defendant pladed Not guilty And it was found that he did procure and brought in false Witnesses but was acquitted of the suborning It was objected 1 Cr. 296. 554. 607. That the Action doth not lie for it may be that the Defendant did not know that he would depose falsly Thou art a forger of false Writings are not actionable and so it was adjudged for it may be understood of Letters of small importance but that Exception was not allowed for it shall be taken in malam partem and cannot be spoken of any honest man. CXXXII Pasch 30 Eliz. In the Kings Bench. A. Was bounden in an Obligation to B. upon condition that if A deliver to B. twenty Quarters of Corn the nine and twentieth of February next following datum presentium that then c. and the next February had but eight and twenty days And it was holden that A. is not bounden to deliver the Corn until such a year as is Leap-year for then February hath nine and twenty days and at such nine and twentieth day he is to deliver the Corn and the Obligation was holden good CXXXII Allen and Palmers Case Pasch 30 Eliz. In the Kings Bench. THe Case was a Copy-holder did surrender his Lands to the use of a stranger for life Copy-holder surrenders where his heir shall be in by purchase 2 Roll. 416. Co. 1 Inst 226. and afterwards to the use of the right Heirs of the Copy-holder who afterwards surrendred his Reversion to the use of a stranger in Fee died and the Tenant for life died and the right Heir of Palmer the Copy-holder entred And by Cook nothing remained in the Copy-holder upon the said surrender but the Fee is reserved to his right Heirs for if he had not made any such second surrender his Heir should be in not by descent but by purchase And the common difference is where a surrender is to the use of himself for life and afterwards to another in tail the remainder to the right Heirs of him who surrendreth there his Heirs shall have it by descent contrary where the surrender hath not an estate for life or in tail limited to him for there his Heir shall enter as a purchasor as if such use had been limitted to the right Heirs of a stranger And by him if a Copy-holder surrender to the use of his right Heirs the Land shall remain in the Lord until the death of the Copy-holder for then his Heir is known c. See Dyer 99. The Husband made a Feoffment to the use of his Wife for life and afterwards to the use of the right Heirs of the body of the Husband and Wife begotten they have issue the Wife dieth the issue cannot enter in the life of his Father for then he is not his Heir See Dyer 7 Eliz. 237. The Husband is sole seised in Fee and levieth a Fine of the Land to the use of himself and his Wife and the Heirs of the Husband and they render the Land to the Conusor for the life of the Husband the remainder to B. for life the remainder to the right Heirs of the Husband The Husband dieth B. dieth Now the Wife shall have the Land for the life of the Wife for she shall not lose her estate by that render and this remainder to the right Heirs of the Husband is void and the Land and estate in it is in him as a Reversion and not as a Remainder And a man cannot tail a Remainder to his right Heirs whilest he is living unless it begin first in himself See Br. 32 H. 8. Gard. 93. CXXXIV Pearle and Edwards Case Pasch 30 Eliz. In the Kings Bench. THe Case was that the Defendant had leased Lands to the Plaintiff rendring Rent for certain years Assumpsit Consideration 1 Cro. 94. and after some years of the Term expired the Lessor in consideration that the Lessee had occupied the Land and had paid his Rent promised the Plaintiff to save him harmless against all persons for the occupation of the Land past and also to come And afterwards H. distrained the Cattle of the Plaintiff being upon the Lands upon which he brought his Action Golding Here is not a sufficient consideration for the payment of the Rent is not any consideration for the Lessee hath the ocupation of the Land for it and hath the profits thereof and also the consideration is past Cook The occupation which is the consideration continues therefore it is a good Assumpsit as 4 E. 3. A Gift in Frank-marriage after the espousals and yet the marriage is past but the blood continues so here and here the payment of the Rent is executory every year and if the Lessee be saved for his occupation he will pay his Rent the better Godfrey If a man marrieth my Daughter against my will and afterwards in consideration of that marriage I promise him one hundred pounds the same is no good consideration 2 Len. 111. which Clench Iustice denied And afterwards the Plaintiff had Iudgment to recover his damages CXXXV Wakefords Case Pasch 30 Eliz. In the Kings Bench. Extinguishment of Copy-hold by Release THe Earl of Bedford Lord of the Manor of B. sold the Free-hold Interest of a Copy-holder of Inheritance unto another so as it is now no part but divided from the Manor and afterwards the Copy-holder doth release to the purchasor It was holden by the Court that by this Release the Copy-hold Interest is extinguished and utterly gone but if was holden that if a Copy-holder be ousted so as the Lord of the Manor is disseised and the Copy-holder releaseth to the Disseisor nihil operatur CXXXVI Docton and Priests Case Pasch 30 Eliz. In the Kings Bench. IN Trespass for breaking of his Close 1 Cro. 95. it was found by special verdict that two were Tenants in common of a house and of a close â—djoyning to the house and they being in the house make partition without deed of the house and the close see 3 E. 4. 9. 10. Partition without deed upon the Land is good enough Vide 3 H. 4. 1. And it seems by 3 E 4. Partition made upon the Land amounts to a Livery Vide 2 Eliz. Dyer 179. Partition by word out the County void 19 H. 6. 25. Betwixt Tenants in common not good without deed 2 Roll. 255. 47 E. 3. 22. being upon the Land it is good without deed Two Ioynt-tenants make partition by word make partition in another County the same is no partition for as to that matter the common Law is not altered by the Statute but as to compel such persons to make partition Wray Iustice conceived that the partition here being without deed was not good although made upon the Lands Vide 18 Eliz. Dyer 35.
the custom might be known Also it appeareth here upon the Declaration that Trespass vi armis should lye and be brought for the Declaration is that the Defendant did break and pull down the Herdels which cannot be without express force as 42 E. 3. 24. Trespass upon the case against a Miller and declared that the Plaintiff used to grind at the said Mill without Toll and that he sent his corn to the said Mill to be ground and there the Defendant came and took two Bushels of his said corn And the Writ was upon the prescription to grind sine multura and that the Defendant praedict querent sine multura molire impedivit and by Award of the Court the Plaintiff took nothing by his Writ for he hath declared that the Defendant hath taken Toll and therefore he ought to have a general Writ of Trespass Beaumont to the contrary A Market is as well for the common Wealth as a Fishing Also he is at the costs for providing of Herdels and the erecting of them so as he hath declared he hath taken divers sums of mony for it and as to any sum not certain it is well enough for peradventure sometimes he hath taken a penny sometimes two pence as the parties could agree And as to the exception of vi armis the same is not material for the Plaintiff doth not rely upon the pulling down of the Herdels only but upon the loss of the mony also which he should have had if the Defendant had not broken his Herdels And afterwards Iudgment was given for the Plaintiff CXLVIII Beverly and Bawdes Case Pasch 30 Eliz. In the Kings Bench. BEverly brought a Writ of Error to reverse an Out-lawry pronounced against him at the suit of one Bawdes and shewed Error that he was outlawed by the name John Beverly of Humby in the County of Lincoln Gent. And that within the said County there are two Humbyes scil Magna Humby Parva Humby and none without addition To which it was said of the other side that the truth is that there are two such Towns and that Humby Magna is known as well by the name of Humby only as taken for the name of Humby Magna And upon that they are at Issue And it was moved Tryal by Inquest of what County or place if the Inquest to try this Issue shall come de corpore comitatus or from Humby Magna And by Cooke it shall be tryed by an Inquest of Humby Magna and he confessed that if the Issue had been No such Town then the Inquest ought to be of the body of the County but here is another Issue to be tryed 22 E. 4. 4. In Trespass done in Fulborn and Hinton in the County of C. The Defendant said that there is no such Town nor Hamlet of Hinton within the same County Iudgment of the Writ See there by Briggs the tryal shall be de corpore comitatus See 14 H. 6. 8. Over-dale and Nether-dale and none without addition and so at Issue tryed by them of the body of the County 35 H. 6. 12. And by him wheresoever an Issue may be tryed by an Inquest out of a special Visne there it shall never be tryed by the body of the County As the case before 22 E. 4. Trespass in two Towns A. and B. The Def. as to A. pleads there was no such Town and as to B. pleaded another plea. Now the whole Inquest shall come out of B. for the Inquest in one Town may try any thing within the same County which see Fitz. Visne 27. 22 E. 4. 4. And here in our case the Issue is if Humby Magna be as well known by the name of Humby only as by the name of Humby Magna And therefore the same may well be tryed by Inquest out of the Town of Humby Magna But by Wray Iustice this Issue doth amount to no such Town for the perclose of the plea is and no Humby without addition and the book cited out of 22 E. 4. is not ruled but is only the opinion of Brian and afterwards it was awarded that the tryal was well Another matter was objected because it is not shewed in the Writ of Error betwixt what parties the first Writ did depend for otherwise how can the Plaintiff in the Writ of Error have a Scire facias ad audiendum Errores if none be named in the Writ of Error against whom it shall issue And Godfrey affirmed that upon search of Presidents it was both ways so as it is at the pleasure of the Plaintiff to do it or not And Kemp Secondary shewed divers Presidents to that purpose And afterwards the Out-lawry was reversed CXLIX Cibel and Hills Case Pasch 30 Eliz. In the Common Pleas. Debt for a Nemine pene A Lease was made of a certain House and Land rendring Rent and another sum Nomine poenae and for the Nominae poenae the Lessor brought an Action of Debt The Lessee pleaded that the Lessor had entred into parcel of the Land demised Roll. Tit. Extinguishment upon which they were at Issue and found for the Plaintiff and now the Lessor brought Debt for the Rent reserved upon the same Lease to which the Defendant pleaded ut supra scil an Entry into parcel of the Land demised And issue was joyned upon it And one of the Iury was challenged and withdrawn because he was one of the former Iury And the Issue now was whether the said Cibel the Lessor expulit amovit adhuc extra tenet the said Hills And to prove the same it was given in Evidence on the Defendants part that upon the Land demised there was a Brick-kill and and thereupon a little small cottage and that the Lessor entred and went to the said cottage and took some of the Bricks and untiled the said cottage Suspension of Rent by entry upon part of the Land. But of the other side it was said that the Lessor had reserved to himself the Bricks and Tiles aforesaid which in truth were there ready made at the time of the Lease made and that he did not untile the Brick-kill house but that it fell by tempest and so the Plaintiff did nothing but came upon the Land to carry away his own goods And also he had used the said Bricks and Tiles upon the reparation of the house And as to the Extra tenet which is parcel of the Issue the Lessor did not continue upon the Land Hob. 326. Rolls ubi supra Post 172. but went off it and relinquished the possession But as to this last point it seemed to the Court that it is not material if the Plaintiff continued his possession there or not for if he once doth any thing which amounts to an Entry although that he depart presently yet the possession is in him sufficient to suspend the Rent and he shall be said extra tanere the Defendant the Lessee until he hath done an Act which doth
otherwise it should be idle And afterwards Iudgment was given against the Queen CLXIII Piers and Leversuchs Case In Ejectione firmae Trin. 30 Eliz. In the Kings Bench. IT was found by special verdict that one Robert Leversuch Grand-father of the Defendant was Tenant in tail of certain Lands whereof c. and made a Lease for years to one Pur. who assigned it over to P. father of the Plaintiff Robert Leversuch died W. his Son and Heir entred upon P. who re-entred W. demised without other words the Land to the said P. for life the remainder to Joan his Wife for life the remainder to the Son of P. for life with warranty and made a Letter of Attorney therein to enter and deliver seisin accordingly P. died before that the Livery was executed and afterwards the Attorney made livery to Joan. W. died Ed. his Son and Heir entred upon the Wife she re-entred and leased to the Plaintiff who upon an ouster brought the Action Heale When P. entred upon W. Leversuch the issue in tail he was a disseisor and by his death the Land descending to his Heir the entry of W. Leversuch the issue in tail was taken away 3 Cro. 222. Cook contrary P. by his entry was not a disseisor but at the Election of W. for when P. accepted such a deed from W. it appeareth that his intent was not to enter as a disseisor and it is not found that the said P. had any Son and Heir at the time of his death and if not then no descent and there is not any disseisin found that P. expulit Leversuch out of the Land. And Iudgment was given against the Plaintiff And Cook cited a Case which was adjudged in the Common Pleas and it was the Case of Shipwith Grand-father Tenant in tail Father and Son The Grand-father died the Father entred and paid the Rent to the Lessor and died in possession and adjudged that it was not any descent for the paying of the Rent doth explain by what title he entred and so he shall not be a Disseisor but at the Election of another CLXIV Severn and Clerks Case Trin. 30 Eliz. In the Kings Bench. â—ts THe Case was that A. by his Deed Poll recited That whereas he was possessed of certain Lands for years of a certain Term By good and lawful conveyance he assigned the same to I. S. with divers Covenants Articles and Agreements in the said deed contained which are or ought to be performed on his part It was moved if this recital whereas he was be an Article or Agreement within the meaning of the condition of the said Obligation which was given to perform c. Gawdy conceived that it is an agreement For in such case I agree that I am possessed of it for every thing contained in the deed is an Agreement and not only that which I am bound to perform As if I recite by my deed that I am possessed of such an interest in certain Land and assign it over by the same deed and thereby covenant to perform all Agreements in the deed if I be not possessed of such Interest the covenant is broken And it was moved if that recital be within these words of the condition which are or ought to be performed on my part And some were of opinion that it is not within those words for that extends only in futurum but this recital is of a thing past or at the least present Recital 2 Cro. 281. Yyl. 206. Clench Recital of it self is nothing but being joyned and considered with the rest of the deed it is material as here for against this recital he cannot say that he hath not any thing in the Term. And at the length it was clearly resolved that if the party had not that Interest by a good and lawful conveyance the Obligation was forfeited CLXV Page and Jourdens Case Trin. 30. Eliz. In the Kings Bench. IN Trepass betwixt Page and Jourden the case was A Woman Tenant in tail took a Husband who made a Feoffment in Fee and died The Wife without any Entry made a Lease for years It was moved that the making of this Lease is an Entry in Law. As if A. make a Lease for years of the Land of B. who enters by force of that Lease A general entry amounts to a disseisin now the Lessor without any Entry is a Disseisor And it was resolved that by that Leasâ— the Free-hold is not reduced without an Entry CLXVI Havithlome and Harvies Case Trin. 30. Eliz. In the Kings Bench. Action upon the Statute of 5 Eliz. cap. 9. 1 Cro. 130. 3 Cro. Goodwin vers West HAvithlome brought an Action upon the Statute of 5 Eliz. cap. 9. against Harvy and his Wife for the penalty of ten pounds given by the said Statute against him who was served with process ad testificandum c. and doth not appear not having any impediment c. and shewed that process was served upon the Defendants Wife and sufficient charges having regard to her degree and the distance of the place c. tendred to her and yet she did not appear And it was found for the Plaintiff It was moved in arrest of Iudgment that the Declaration is not good because the Plaintiff in setting forth that he was damaged for the not appearance of the Wife according to the process hath not shewed how damnified Also it was moved that a Feme Covert is not within the said Statute for no mention is made of a Feme Covert and therefore upon the Statute of West 2. cap. 25. If a Feme Covert fail of her Record she shall not be holden disseisseress nor imprisoned Also here the Declaration is that the Plaintiff tendered the charges to the Wife where he ought to have tendered the same to the Husband To these three Exceptions it was answered 1. That although the party be not at all damnified yet the penalty is forfeited 2. Feme Coverts are within the said Statute otherwise it should be a great mischeif for it might be that she might be the only witness And Feme Coverts if they had not been expresly excepted had been within the Statute of 4 H. 7. of Fines 3. The wife ought to appear therefore the tender ought to be to her And afterwards Iudgment was given for the Plaintiff CLXVII Dellaby and Hassels Case Pasch 30 Eliz. In the Kings Bench. IN an Action upon the Case 1 Cro. 132. the Plaintiff declared that the Defendant in consideration that he had retained the Plaintiff to go from London to Paris to Merchandize diverse goods to the profit of the Defendant promised to give to him so much as should content him and also to give him all and every sum of money which he should expend there in his Affairs and further declared that he was contented to have twenty-pounds for his labour which the Defendant refused to pay And exception was taken to the Declaration because there is
by it self and the Declaration only enrolled Godfrey It was resolved in the Case betwixt Pendleton and Hunt Prohibition for tythes that an Agreement betwixt the Parson and any of his Parishioners is a good cause to grant a Prohibition if he libel in the Spiritual Court against such Agreement because the Spiritual Court cannot try it and they will not allow such Plea. Curia The Surmise is as a Writ for which if variance be betwixt the same and the Declaration all his naught CLXXVI Colebourn and Mixstones Case Intrat Hill. 31. Eliz. Rot. 146. Trin. 30. Eliz. In the Kings Bench. COlebourn was sued in the Spiritual Court for that being Executor to one Alice Leigh he had not brought in a true Inventory of all the goods of the said Alice but had omitted and left out a lease of two houses and this suit was at the pursuit of two Daughters of the Testator Colebourn sueth for a Prohibition and surmises and declares how this Lease is extinct and the matter was this H. Leigh was seised of a house called the Marigold and two other houses in London and leased the said two houses to one Alice Cheap for 21 years if she should live so long and afterwards made a Lease in Reversion of the said two houses to the said Alice Leigh for 21 years and afterwards he devised these two houses Devises and also the house called the Marigold to the said Alice Leigh for her life for to bring up his children and died after whose death the said Alice Leigh entred into the said house called the Marigold and took the rents and profits of the said two houses for the space of 7 years virtute testament praedict upon which Declaration the Defendants do demurr in Law. Coke the Declaration is not good and for the matter of it it is clear that by this devise unto Alice her Term in futuro is not extinct without her agreement to it And also in this Case the Devise is not for the benefit of the said Alice Leigh but of her children and she hath liberty to accept or refuse the said estate by devise and to make her election Extinguishment And the Plaintiff hath declared that she hath accepted the Rent reserved upon the Lease of the said two houses for 7 years And therein the Declaration naught in divers respects 1. He hath declared that the said Alice Leigh hath accepted the Rents of the said two houses by reason of the reversion virtue testament praedict by 7 years which is double and treble for acceptance of a Rent at one day scil one rent day is a sufficient election As if the Issue in tail after the death of his Ancestor who hath made a Lease not warranted by the Statute once accepts the Rent the Lease is affirmed but if in plea pleading the acceptance of the said Rent for 3 years be pleaded the same clearly is not good for no good Issue can be taken thereupon 2. This acceptance is not pleaded as the Law wills and in the phrase of the Law viz. to which devise she agreed but pleads the acceptance of the Rent which is matter of evidence the which is not good pleading As 5 H. 7. 1. One sweareth another to enter into his Land and the same to occupy for a certain time Estate executed the same is a Lease in Law and if in pleading the party is to make his title to the same Land he ought to plead it as an expres Lease and not as a Licence and if the Lease be traversed he may give the Licence in evidence Tanfield presently by the devise the estate for life is in the Devisee and the Term extinct by it and that is sufficient for the Plaintiff And if there was any disagreement the same is to be shewed on the other side But if Alice had not notice of the Devise but dieth before notice the same amounteth unto a disagreement And as to the pleading of the Agreement I conceive it s well enough pleaded for if the Lease had not been she might have entred and then if such Entry had been pleaded it had been good enough and then because she could not enter by reason of the said Lease she hath taken the rents and profits which is an actual agreement and as strong as an Entry Also we have shewed that she had entred into the house called the Marigold Assent not to be apportioned of which the Devisor died seised in possession and that is a sufficient agreement for the whole for it is an entire Legacy As 18 E. 3. Variance 63. If the Reversion of three acres be granted and the Tenant for life attorneth for one acre it is a good attornment for the whole for he cannot apportion his assent and 2 E. 4. 13. If the Executor deliver unto the Devisee goods to him devised to redeliver them to him again at such a day the same is a good assent and execution of the Devise and the words of the re-delivery are void Gawdy The devise doth not vest the estate in the Wife until agreement where a man takes in a second degree as in a Remainder the same vests presently before agreement but where he taketh immediatly it is otherwise and he held the agreement was well enough pleaded Wray Presently upon the death of the Testator the Free-hold rested in the Devisee and it was not an Agreement ut supra by taking of the Rents yet the entry into the Marigold was a consent and an Execution of the whole Legacy and as to the rest he agreed with Gawdy Clench The Free-hold rested presently in Alice Leigh before agreement also the entry into the Marigold is an execution of the whole Legacy to the Devisee for her entry shall be adjudged most beneficial for her and that is for all the three houses CLXXVII Stransham and Medcalfes Case Trin. 30 Eliz. In the Kings Bench. 1 Cro. 178. STransham libelled in the Court of the Bishop of Norwich against Medcalfe for a portion of Tithes as Farmor of the Rectory of Dunham the Parson of Stonham came in and said that the Land whereof the Tithes are demanded is in his Parish of Stonham and not in the Parish of Dunham and afterwards sentence passed against Stransham who brought an Appeal and notwithstanding that by the Statute of 32 H. 8. cap. 7. the spiritual Iudges may proceed to make process against the Appellant for costs for the principal matter scil parcel or within such a Parish or not is tryable at the Common Law. Cook now prayed a Consultation and he confessed ut supra that the matter was tryable at the Common Law but yet the costs were not given for the matter but for the unjust vexation No Prohibition for costs in the spiritual Court. and it was his suit and own act to prosecute the same in the Spiritual Court. Note that Stransham had a Prohibition to stay the proceedings for the costs for
the Plaintiff and thereupon Iudgment was given for the Plaintiff CCV Read and Nashes Case Trin. 31. Eliz. In the Kings Bench. IN an action of Trespass by Read and his Wife against Nash for entring into a house called the Dayry-house upon Not guilty pleaded The Iury found this special matter Sir Richard Gresham Knight was seised in Fee of the Mannours of I. and S. and of diverse other Lands mentioned in his Will and 3 Edw. 6. devised the same to Sir Thomas Gresham his Son for life the Remainder to the first son of the said Sir Thomas Gresham in tail the Remainder to the second son c. the Remainder to the third son c. The Remainder to Sir John Gresham his brother Proviso That if his Son go about or made any Alienations or discontinuance c. whereby the premisses cannot remain descend and come in the form as was appointed by the said Will otherwise than for Ioyntures for any of their Wives for her life only or leases for 21. years whereupon the old and accustomed Rent shall be reserved That then such person shall forfeit his estate Sir John Gresham dyed Sir Thomas Gresham his son built a new House upon the Land and 4 Mariae leased to Bellingford for one and twenty years rendring the antient Rent And afterwards 2 Eliz. he levyed a fine of the said Manours and of all his Lands and 5 Eliz. he made a Iointure to his Wife in this manner sci He covenanted with certain persons to stand seised to the use of himself and his Wife for their lives and afterwards to the use of his Right Heirs and afterwards 18 Eliz. he leased unto Read and his wife for one and twenty years to begin presently which was a year before the expiration of the said Lease made unto Bellingford which Lease being expired Read entred It was argued by Cook That here upon the words contained in the Proviso Sir Thomas had power and authority not being but Tenant for life to make a Lease for years or Iointure and that upon implication of the Will which ought to be taken construed according to the intent of the parties for his meaning was to give a power as well as an estate otherwise the word otherwise should be void and it is to be observed That the parties interessed in the said conveyance were Knights and it is not very likely That the said Sir Richard Gresham did intend that they should keep the Lands in their own manurance as Husbandmen but set the same to Farm for Rent And it is great Reason although he willeâ— that the order of his Inheritance should be preserved yet to make a Provision for Iointure and it is great reason and cause to his family to enable and make them capable of great Matches which should be a strengthning to his posterity which could not be without great Iointures wherefore I conceive it reasonable to construe it so That here they have power to make Iointures for their Wives It hath been said That no grant can be taken by implication as 12 E. 3. Tit. Avow 77. Land was given to I. and A. his wife and to the heirs of the body of I. begotten and if I. A. dy without heir of their bodies betwixt them begotten that then it remain to the right heirs of I. and it was holden that the second clause did not give an estate tail to the wife by implication being in a grant but otherwise it is in Case of a devise as 13 H. 7. 17. and there is no difference as some conceive when the devise is to the heir and when to a stranger but these cases concern matter of Interest but our case concerns an Authority And admit that Sir Thomas hath power and authority to make this lease Then we are to consider if the Iointure be good for if it be Then being made before the Lease Use cannot rise out of a power it shall take effect before and the woman Iointress is found to be alive But I conceive That this Iointure is void and then the Lease shall stand for an use cannot rise out of a power but may rise out of an estate of the Testator and out of his Will 19 H. 6. A man deviseth That his Executors shall sell his reversion and they sell by Word it is a good Sale for now the Reversion passeth by the Will. But an use cannot be raised out of an use and a man cannot bargain and sell Land to another use than of the Bargainee And it is like unto the case of 10 E. 4 5. The disseisee doth release unto the disseisor rendring Rent the render is void for a rent cannot issue out of a right so an use cannot be out of a Release by the disseisee for such release to such purpose shall not enure as an Entry and Feoffment Also here after that conveyance Sir Thomas hath built and erected a New house and no new Rent is reserved upon it and therefore here it is not the ancient Rent for part of the sum is going out of the new house But as to that It was said by the Iustices do not speak to that for it appears that the Rent is well enough reserved Another matter was moved for that That a year before the Expiration of the Lease made to Billington this Lease was made to Reâ—d for 21 years to begin presently from the date of it although by the same authority he cannot make Leases in Reversion for then he might charge the Inheritance in infinitum But yet such a Lease as here is he might make well enough for this Lease is to begin presently and so no charge to him in the Reversion as in the Case betwixt Fox and Colliers upon the Statute of 1 Eliz. A Bishop makes a Lease for three years before the Expiration of a former Lease to begin presently It was holden a good Lease to bind the Successor for the Inheritance of the Bishop is not charged above one and twenty years in toto But if a Bishop make a Lease for years and afterwards makes a Lease for three lives the same is not good 8 Eliz. Dy. 246. Tenant in tail leaseth to begin at Michaelmas next ensuing for twenty years it is a good Lease by the Statute of 32 H. 8. so is a lease for 10 years and after for eleven years and yet the Statutes are in the Negative but this power in our Case is in the Affirmative and the Inheritance is not charged in the whole with more than one and twenty years CCVI. Kinnersly and Smarts Case Trin. 31 Eliz. In the Kings Bench. 〈◊〉 upon a usurious Contract 1 Cro 155. IN Debt upon a Bond The Plaintiff declared That the Bond was made in London The Defendant pleaded That an usurious Contract was made betwixt the parties at D. in Stafford-shire that the Obligation was made for the same contract The Plaintiff by Replication saith that the Bond was made bona
day the same had bin good for such By-law doth not take away but order the Inheritance For the nature of a By-law is to put Order betwixt the Tenants concerning their affayrs within the Manor which by law they are not compellable to do And by Periam The Avowant ought to have averred That this By-law was for the Common profit of the Tenants See the Lord Cromwells Case 15 Eliz. Dyer 322. and afterwards in the Principal Case Iudgment was given against the Avowant CCLXXI. Wicks and Dennis Case Mich. 31 32 Eliz. In the Common Pleas. Replevin WIcks brought a Replevin of Dennis who avowed That one Dennis his Father was seised of the Manor c. and granted out of it to the avowant a Rent of twenty pounds per annum and further granted That if the said Rent be arrear unpaid six days after the feasts c. wherein it ought to be paid si licite petatur That then it should be lawful to distrein The grantor afterward by Indenture Covenanted with the Lord Treasurer and others to stand seised of the same Manor unto the use of himself and his heirs until he or his heirs have made default in they payment of one hundred pounds per annum until three thousand pounds be paid and after default of payment to the use of the Queen and her heirs until the sum of three thousand pounds should be paid and levied The grantor afterwards levied a fine to the said Lord Treasurer and others to the uses aforesaid the Rent is arrear default of the payment of the hundred pounds in made Office is found The Queen seised the land the Avowant during the possession of the Q. demanded the Rent the arrearages thereof The Queen granted over the Manor to W. B. D. the grantee did distrain for the rent arrearages demanded ut supra It was moved by H. Serjeant That this demand of several sums payable at several days before is not good for every sum ought to be severally demanded when it was first due scil si licite petatur scil within the six days for otherwise without such demand distress is not lawful and he resembled it to the case of Sir Thomas Gresham 23. Elizabeth Dyer 372 of several Tenders Periam conceived that the demand ought to be several Anderson That the demand is good enough And as to the demand made during the possession of the Queen It was holden by the whole Court to be good enough for although the possession of the Queen be priviledged as to the distress yet the demand is good Demand of Rent charge during the possession of the King good without any wrong to her prerogative for the Rent in right is due and the possession of the Queen is in right charged with it and the Rent is only recoverable by Petition as it was by way of distress and if the partie sueth to the Queen by Petition for the said Rent he ought to shew in his Petition that he hath demanded the Rent for if the possession had bin in a common person he could not distreyn before demand nor by consequence have Assise And the Rent notwithstanding the possession of the Queen is demandable and payable for to entitle the party unto Petition against the Queen and to distress against the subject when the possession of the Queen is removed And see 7 H. 6. 40. disseisee may make continual claym although the possession of the Land of which he is disseised be in the King. And 34 H. Br. seisin 48. If the heir at full Age intrude upon the possession of the King and pays Rent to the Lord of his Land holden of a subject the same is a good seisin and shall bind the heir after he hath sued his livery 5 E. 4. 4. and see 13 H. 7. 15. That distress taken upon the possession of the King is not lawful but seisin obtained during it is good So in 21 H. 7. 2. CCLXXII Ashegells and Dennis Case Mich. 31 32 Eliz. In the Com. Pleas. Int. M. 30 31. Rot. 458. AShegel brought a Quare Impedit against Dennis Quare Impedit 1 Cro. 163. Hob. 304. and the Plaintiff Counted that the Defendant had disturbed him to present ad vicariam de D. and shewed that the Queen was seised of the Rectory of D. and of the Advowson of the vicaridge of D. and by her letters Patents gave unto the Plaintiff Rectoriam praedictam cum pertinentiis etiam vicariam Ecclesiae praedict And it was holden by the whole Court That the Advowson of the vicaridge by these words doth not pass nor so in the Case of a common person much less in the Case of the King But if the Queen had granted Ecclesiam suam of D. then by Walmesley Iustice the Advowson of the vicaridge had passed CCLXXIII Collman and Sir Hugh Portmans Case Mich. 31 32 Eliz. In the Common Pleas. IN Ejectione firmae by Collman against Sir Hugh Portman it was found by special verdict Ejectione firmae That the lands where were holden by Copy of the Manor of D. whereof Sir H. Portman was seised and that the Plaintiff was Copyholder in Fee and further found That the said Sir H. pretending the said Copy-hold lands to be forfeited Surrender of Copy-holder entred into Communication with Collman touching the same upon which Communication it was agreed betwixt them That the said Collman should pay to the said Sir Hugh five pounds which was paid accordingly that in consideration thereof Collman should enjoy the said Customary lands except one Wood called Combwood for his life and also of Alice his wife durante sua viduitate and that Collman should have Election whether the said lands should be assured unto him and his said wife by Copy or by Bill c. he chose by Bill which was made accordingly and further found That the said Sir H. held and enjoyed in his possession the said Wood c. upon this matter The Court was clear in opinion That here is a good surrender of the said lands and that for life only and that the said Sir Hugh had the Wood discharged of the customary interest CCLXXIV Thetford and Thetfords Case Mich. 31 32 Eliz. In the Common Pleas. Debt IN an Action of Debt for Rent the Plaintiff declared That Land was given to him and to T. his wife and to the heirs of their bodies and that his wife leased the Lands to the Defendant and that the Donees were dead and that the Plaintiff as heir c. for rent arrear c. and upon Non demiserunt the Iury found that the Husband and Wife demiserunt by Indenture and afterwards the husband died and the wife entred and within the term died Now upon the matter it seemed clear to Anderson that the Iury have found for the Defendant scil Non demiserunt for it is now no lease ab initio because the Plaintiff hath not declared
the opinion in Baintons Case 8 Eliz. Dyer 37. is not Law and so hath the Law been taken of late Popham contrary If before the Statute of 27 H. 8. the Father covenant in consideration of Advancement of his Son to stand seised to the use of I. S. for life and after the death of I. S. to the use of my Son in Fee here the estate of I. S. in the use is void and yet the estate in the use limited to my Son shall not take effect before the death of I. S. for the estate of my Son is not limited to take effect till after the death of I. S and therefore the possession of the Father is not charged with the use during the life of I.S. But if by way of Feoffment I.S. had refused the Son should have it presently and the Father should not have it for he by his Livery hath put all out of him and it was not the intent of the Feoffment that the Feoffee should have the Land to his own use Popham allowed the difference mentioned before out of 2 E. 4 19 H. 6. betwixt a Feoffment upon condition to enfeoff a stranger and to give in tail to a stranger and that is grounded upon the intent of the parties And Owen Serjeant put the Case cited before 1. 3 Eliz. Dyer 330. A Feoffment is made by the Husband to the use of himself for life and afterwards to the use of one Ann whom he intended to marry for during and until the Son which he should beget on the body of the said woman had accomplished the age of thirty one years and after such time that such Son should come unto such age unto the use of the said woman quamdiu she should live sole they entermarry the Husband dyeth without Issue the wife entreth immediately and continues sole and her Entry was adjudged lawful and the estate in Remainder good although she never had any Son and thereupon a Writ of Error was brought and the first Iudgment was affirmed note by Tanfield and others at the Bar that that was the most apt case to the purpose in the Law and the reason of such Iudgment was because they took it that Deeds ought to be expounded according to the meaning of the parties and estates in possession I grant there ought to be a particular estate upon which a Remainder may depend but the same is not necessary where the Conveyance is by way of use And if I covenant that A. shall have my Lands to him his Heirs to pay my Debts and Legacies the same is by way of bargain and sale and nothing passeth without Enrolment And here the Attainder doth not prevent the use as it hath been objected by Master Solicitor for the use doth rise before the Attainder for William Paget had a Remainder in tail in the life of his Father upon the first limitation c. Periam Iustice I lease my Lands to you to begin after the expiration of a Lease which I have made thereof to I.S. and in truth he hath not any Lease the same Lease shall never begin Manwood chief Baron I lease my Lands to you or grant a Rent to you to begin after the death of Prisoit Serjeant at Law when shall that begin Coke Presently Manwood cujus contrarium est Lex CCLXXX The Queen against the Arch-Bishop of Canterbury Fane and Hudson Mich. 31 32 Eliz. In the Common Pleas. Rot. 1832. THe Queen brought a Quare Impedit against the Arch-Bishop of Canterbury the Bishop of Chichester and Hudson Quare Impedit 4 Len. 107. Hob. 303. 175. Owen 155. and counted that John Ashburnham was seised of the advowson of Burwash was outlawed in an action of Debt during which Out-lawry in force the Church voided for which it belongs to the Queen to present The Arch-Bishop and Bishops plead that they claim nothing but as Metropolitan and Ordinary Fane pleaded that King E. 4. Ex gratia sua speciali c. and in consideration of faithful service c. did grant to the Lord Hastings the Castle and Barony of Hastings and Hundred c. Et quod ipse haberet omnia bona catalla tenentium residentium non residentium aliorum residentium quorumcunque hominum de in Castro Baronia c. or within the same pro munero debit c. tam ad sectam Regis c. quam c. Ut legatorem quid ipse faceret per se vel per his sufficient Deputies c. And from him derived to the now Earl of Huntington as Heir and the said Earl so seised and the said Ashburnham seised of the advowson as appendant to the Manor of Ashburnham holden of the said Barony the Church aforesaid during the Out-lawry aforesaid became void For which the said Fane ad dictam Ecclesiam usurpando presentavit the said Hudson who was admitted and instituted c. with this That idem T.C. verificare vult that the said Church of Burwash is and at the time of the grant was within the Precinct Liberty and Franchise aforesaid and that the said Manor of Ashburnham at the time of the grant aforesaid was holden of the said Barony and the Incumbent pleaded the same Plea if by that grant of King Edward the fourth to the Lord Hastings scil omnia bona catalla c. The presentment to the Church should pass or not was the question Shutleworth Serjeant argued for the Queen he confessed that the King might grant such presentment but it ought to be by special and sufficient words so as it may appear by them that the intent of the King was to grant such a thing for the general words omnia bona catalla will not pass such special Chattel in the Kings grant And he conceived that by the subsequent words no Goods or Chattels shall pass by such Grants but such which may be seised which the avoidance of a Church cannot be quod ipse liceret per se vel ministros suos ponere se in seisinam 8 H. 4. 114. 15. the King granted to the Bishop of London that he should have Catalla felonum fugitivor de omnibus hominibus tenentibus de in terris feodis praedict and of all resiants within the Lands and Fees aforesaid Ita quod si praedict homines tenentes residentes de in terris feodis praedict seu aliqui eorum seu aliquis alius infra cadem terra feodis pro aliqua transgressione c. vid. librum c. and by Tirwit By that Grant the goods of those who are put to Pennance shall not pass so of the goods of one Felo de se vid. 42 E. 3. 5. One being impanelled on the Grand Enquest before the Iustices of Oyer and Terminer pleaded the charter of the King of exemption from Enquests and because in the said charter was not this clause More 126. licet tanget nos
appendant to it and conveyed the said capital Messuage and Advowson to the King by the dissolution and from the King to the said Thomas Long who so seised without any Deed did enfeoff the Plaintiff of the said Manor and made Livery and Seisin upon the Demesnes And that the said Thomas Long by his Deed made a grant of the said Advowson to the said Strengham and afterwards the Free-holder attorned to the Plaintiff And by the clear opinion of the whole Court here is a sufficient Manor to which an Advowson may be well appendant and that in Law the Advowson is appendant to all the Manor but most properly to the Demesnes out of which at the commencement it was derived and therefore by the attornment afterwards within construction of the Law shall have relation to the Livery the Advowson did pass included in the Livery And the grant of the advowson made mesne between the Livery and the attornment was void and afterwards Iudgment was given and a Writ to the Bishop granted for the Plaintiff CCXC. Mich. 32 33 Eliz. In Communi Banâ—o Debt A Made a Bill of Debt to B. for the payment of twenty pounds at four days scil five pounds at every of the said four days and in the end of the Deed covenanted and granted with B. his Executors and Administrators that if he make default in the payment of any of the said payments that then he will pay the residue that then shall be un-paid and afterwards A. fails in the first payment and before the second day B. brought an action of Debt for the whole twenty pounds It was moved by Puckering Serjeant Sâ—y 31. 32. 1 Cro. 797. That the Action of Debt did not lye before the last day encurred And also if B. will sue A. before the last day that it ought to be by way of covenant not by Debt But by the whole Court the action doth well lye for the manner for if one covenant to pay me one hundred pounds at such a day an action of Debt lyeth a fortiori Owen 42. 1. 2 Rol. 523. when the words of the Deed are covenant and grant for the word covenant sometimes sounds in covenant sometimes in contract secundum subjectum materiae CCXCI. Lancasters Case Mich. 32 33 Eliz. In Communi Banco Roll. Tit. Covenant pl. 72. AN Information was against Lancaster for buying of pretended Rights Titles upon the Statute of 32 H 8. And upon not guilty pleaded It was found for the Plaintiff it was moved in arrest of Iudgment because the Informer had not pursued the Statute in this that it is not set forth that the Defendant nor any of his Ancestors or any by whom he claimed have taken the profits c. and the same was holden a good and material Exception by the Court although it be layed in the Information that the Plaint himself hath been in possession of the Land by twenty years before the buying of the pretended Title for that is but matter of argument not any express allegation for in all penal Stat. the Plaintiff ought to pursue the very words of the Stat. and therefore by Anderson It hath been adjudged by the Iudges of both Benches that if an Information be exhibited upon the Stat. of Vsury by which the Defendant is charged for the taking of twenty pounds for the Loan and forbearing of one hundred pounds for a year there the Information is not good if it be not alledged in it that the said twenty pounds was received by any corrupt or deceitful way or means And in the principal Case for the Cause aforesaid Iudgment was arrested CCXCII Bagshaw and the Earl of Shrewsburies Case Mich. 32 33. Eliz. In the Common Bench. BAgshaw brought a Writ of Annuity against the Earl of Shrewsbury for the arrerages of an Annuity of twenty Marks per annum Annuity granted by the Defendant to the Plaintiff Pro Consilio impenso impendendo The Defendant pleaded that before any arrerages incurred he required the Plaintiff to do him Service and he refused The Plaintiff by replication said that before the refusal such a day and place the Defendant discharged the Plaintiff of his Service c. And the opinion of the Court was that the Plea in Bar was not good for he ought to have shewed for what manner of Service to do the Plaintiff was so retained and for what kind of Service the Annuity was granted and then to have shewed specially what Service he required of the Plaintiff and what Service the Plaintiff refused Another matter was moved If the discharge shall be peremptory and an absolute discharge of the Service of the Plaintiff and of his attendance so that as afterwards the Defendant cannot require Service of the Plaintiff And by Walmesly Iustice it is a peremptory discharge of the Sevice for otherwise how can he be retained with another Master and so he should be out of every Service VVindham contrary For here the Plaintiff hath an Annuity for his life and therefore it is reason that he continue his Service for his life as long as the Annuity doth continue if he requirreth But where one is retained but for one or two years then once discharged is peremptory and absolute CCXCIII Matheson and Trots Case Mich. 31 32. Eliz. In the Common Bench. BEtwixt Matheson and Trot the Case was Sir Anthony Denny seised of certain Lands in and about the Town of Hertford 2 Len. 190. holden in Socage and of divers Mannors Lands and Tenements in other places holden in chief by Knights-service and having Issue two Sons Henry and Edward by his last Will in writing devised the Lands holden in Hertford to Edward Denny his younger Son in Fee Devises and died seised of all the Premisses Henry being then within age After Office was found without any mention of the said Devise the Queen seised the Body of the Heir and the possession of all the Lands whereof the said Sir Anothony died seised and leased the same to a stranger during the Minority of the Heir by force and colour of which Lease the Lessee entred into all the Premisses and did enjoy them according to the Demise And the Heir at his full age sued Livery of the whole and before any entry of the said Edward in the Land to him devised or any entry made by the said Henry the said Henry at London leased the said Lands by Deed indented to I.S. for years rendring Rent by colour of which the said I.S. entred and paid the Rent divers years to the said Henry And afterwards by casualty the said Henry walked over the Grounds demised by him in the company of the said I. S. without any special entry or claim there made I.S. assigned his Interest to I.D. who entred in the Premisses and paid the Rent to the said Henry who died and afterwards the Rent was paid to the Son and Heir of Henry
of her Dower of all his Lands and dyed and the said A. took to Husband the Defendant And that after betwixt the Plaintiff and Defendant colloquium quoddam habebatur c. upon which conference and communication the Defendant in consideration that the Plaintiff promised to pay to him the said one hundred pounds promised to make to him a discharge of the said one hundred pounds and also of the Dower of his Wife and shewed further that notwithstanding that the said Pett was ready and offered the said one hundred pounds and Dower also yet c. Vpon which there was a Demurrer in Law It was moved by Tan. that here is not any cause to have a prohibition for the agreement upon the communication is not any cause for it doth not appear that it was performed Coke A Prohibition lieth for the Wife cannot have both money and Dower for that was not the meaning of the Devisor and therefore it hath been holden that if a man deviseth a Term for years to his Wife in satisfaction and recompence of her Dower if she recovereth Dower she hath lost her Term Also here is modus and conventio which alters the Law scil mutual agreement So if the Parson and one of the Parishioners agree betwixt them that for forty shillings per annum he shall retain his Tithes for three years c. as it was in the Case betwixt Green and Pendleton c. it is good CCCXIX. Martingdall and Andrews Case Mich. 32 33. Eliz. In Banco Regis Action upon the case for Wast IN an Action upon the Case the Plaintiff declared that one Mildmay was seised of a House in A. and that he and all those whose estate c. time out of mind c. have had a way over certain Lands of the Defendants called C. pro quibusdam averiis suis and shewed that the said Mildmay enfeoffed him of the said House and that the Defendant stopt the said way to his damage c. And it was found for the Plaintiff and it was moved in Arrest of Iudgment that the title to the way is not certainly set forth i.e. pro quibusdam averiis suis quod omnes Justiciarii concesserunt But Gawdy Iustice conceived that the same was no cause to stay Iudgment For it appeareth to us that the Plaintiff hath cause of Action although that the matter be incertainly alleadged and of this incertainty the Defendant hath lost the advantage having surceased his time by pleading to it as 20 E. 3. Trespass for taking and carrying away of Charters the Defendant pleaded Not guilty and it was found for the Plaintiff to the damage c. And Error was brought because the Plaintiff had not set down in his Declaration the certainty of the Lands comprized in the Charters But non allocatur for the Defendant ought to have challenged that before and also 47 E. 3. 3. In a Writ of Covenant the Plaintiff declared of a Covenant by which the Defendant covenanted with the Plaintiff to assure to him all his Lands and Tenements which he had in the Counties of Gloucester and Lincoln and declared that at a certain day he required the Defendant to make him assurance of all the Lands c. And the Writ of Covenant was general quod teneat conventionem de omnibus terris quas habeat in c. And it was objected as here that the Writ wanted certainty as how many Acres or such a Mannor but non allocatur for here the Plaintiff is not to recover Land but only Damages and the Writ was awarded good Fenner Iustice the Cases are not like to the Case at Bar for in the said Cases the certainty is not needful but for the taxing of the Damages but here the certainty of the number of the Cattel is part of the title CCCXX Beale and Taylors Case Mich. 32 33 Eliz. In the Kings Bench. UPon Evidence to a Iury Leases 1 Cro. 222. it was holden by Gawdy and Clench Iustices that if a Lease for years be made and the Lessor covenants to repair during the Term if now the Lessor will not do it the Lessee himself may do it and pay himself by way of Retainer of so much out of the Rent which see 12 H. 8. 1. 14 H. 4. 316. Retainer of Rent A Lease for years by Indenture and the Lessor covenants to repair the Houses and afterwards the Lessor commands the Lessee to mend the Houses with the Rent who doth it accordingly and expends the Rent in the charges c. So 11 R. 2. Bar. 242. The Lessor covenants that the Lessee shall repair the Tenements when they are ruinous at the charge of the Lessor In debt for the Rent the Lessee pleaded that matter and that according to the Covenant he had repaired the Tenements being then ruinous with the Rent and demanded Iudgment if action Jones 242. Yelv. 43. c. and good Fenner Iustice contrary for each shall have action against the other if there be not an express Covenant to do it Quaere If the Lessor covenant to discharge the Land leased and the Lessee of all Rent-Charges issuing out of it If a Rent-charge be due if the Lessee may pay it out of his own Rent to the Lessor ad quod non fuit responsum CCCXXI. Offley and Saltingston and Paynes Case Mich. 32 33 Eliz. In the Kings Bench. OFfley and Saltingston late Sheriffs of London Escape 1 Cro. 237. brought an Action upon the Case against Payne because that he being in Execution under their custody for fifty three pounds in which he was condemned at the Suit of one Spicer made an escape the debt not satisfied by reason whereof they were compelled to pay the money The Defendant confessed all the matter but further pleaded that after the Escape Spicer had acknowledged satisfaction being after the Escape upon Record of the sum recovered upon which there was a Demurrer Owen Serjeant argued that the acknowleding of satisfaction being after the Escape was not any Plea for when the Plaintiffs Sheriffs have paid the money recovered there was no reason that Spicers acknowledging satisfaction should stop the Sheriffs of their Remedy against Payne It was holden by the Iustices that the Plaintiffs in this Action ought to shew that they had been impleaded by him who recovered for they cannot have this Action before they are sued For perhaps the Plaintiffs who recovered must be contented to hold themselves to the Defendant and to be satisfied by him It was said by Glanvil Serjeant that by the Escape the Debt was cast upon the Sheriffs and the Defendant discharged and that it was the Case of Sir Gervas Clyfton who being Sheriff suffered him who was in Execution and in his custody to go and see a Play and the same was adjudged an Escape and the party could not be in Execution again And then he said that this acknowledgment of satisfaction could not be any Bar to the
over the Feoffees do not pay the said mony within the said 15 days afterwards Curties attorns to the Feoffees It was moved if the Reversion of the Lands passed to Curties passeth by the Feoffment of the Manor without attornment which see Littleton 133 134. 2. Attornment If by the attornment of Curties after the 15 days the uses can rise to Bracebridge and his wife c. and it was said That the Case 20 H. 6. Avowry 11 12. If a Manor be granted for life the remainder over in Fee Tenant for life dieth if the Tenants attorn to him in the Remainder the same is good and if a Reversion be granted to two and one of them dieth attornment to the survivor is good and if a Reversion be granted to Husband and Wife in special tail the Wife dieth afterwards without issue Attornment to the Husband is good and if a Reversion be given in Frank-marriage and afterwards the Husband and Wife are divorced and afterwards the particular Tenant attorns to the Wife the same is good and by Manwood If a Man seised of a Manor the demesns of which extends into two Counties and hath issue a Son and a Daughter by one woman and a Son by another woman and dieth the eldest Son enters into the Demesns in one County only and takes the profit in one County only and dieth without issue the Daughter shall have and inherit the Demesns or Services whereof her Brother was seised and the Son of the half-blood the rest And by Manwood the attornment of Curties who was the first Lessee shall bind Moore the second Lessee for he ought to attorn against whom lieth the Quid juris clamat And if a Lease for years be made of a Manor and the Reversion of it be granted to another in fee if the Lessee for years attorneth it shall bind the Tenants of the Manor 18 E. 2. A man seised of a Manor in the right of his Wife leased parcel of it for years without his wife the Reversion thereof is not parcel of the Manor contrary if the Lease had been made by Husband and Wife And by Dyer if Tenant in tail of a Manor leaseth parcel for years and afterwards makes a Feoffment of the whole Manor and makes Livery in the Demesns not leased the Reversion of the Land leased doth not pass for by the Feoffment a wrong is done to the Lessor which the Law shall not further enlarge than appeareth by the Deed contrary in case of Tenant in fee of a Manor and that without Deed with Attornment And it was the Case of one Kellet 25 H. 8. Kellet was Cestuy que use before the Statute of 27 H. 8. of divers Lands by several Conveyances the use of some being raised upon Recovery of some upon Fine and of some upon Feoffment and he made a Feoffment of all these Lands by Deed with a Letter of Attorney to make Livery the Attorney entred into part of the Land and made Livery in the name of the whole and it was agreed by all the Iustices that the Lands passed notwithstanding in others possession i.e. other Feoffees And by Dyer If the Tenants of a Manor pay their Rents to the Disseisor they may refuse again to pay them and if a Lease be made for years the Remainder for life if the Lessor will grant over his Reversion the Lessee for years shall Attorn and his attornment shall bind him in the remainder for life and if a Lease be made to one for years the remainder over for life the remainder to the Lessee for years in Fee. Now if the Lessee for years grant all his interest c. there needs no attornment and if Grantee of a Rent in fee leaseth for life and afterwards grants the Reversion to another the Attornment of the Ter-tenant is not requisite but only of the Grantee for life It was also holden Relation That this Attornment by Curties two years after the Livery was sufficient for it shall have relation to the Livery to make it parcel of the Manor but not to punish the Lessee for waste done mean between the Livery and the Attornment but betwixt the Feoffor and the Feoffee it shall pass ab initio It was holden also That although the uses for it limited are determined by the default of payment within the 15 days yet the Feoffees shall take the Reversion by this Attornment to the second uses 2 Len. 222. and if I enfeoff one upon condition to enfeoff J.S. who refuseth now the Feoffee shall be seised to my use but if the condition were to give in tail contrary So here is a Limitation beyond the first use which shall not be defeated for want of Attornment to the first uses and here it was not the meaning of Bracebridge to have the Lands again upon breach of the condition in his former estate but according to the second use and Iudgment was given in the principal case according to the resolutions of the Iudges as aforesaid And it was said by Harper Iustice That if a Feoffment in Fee be made to J. S. upon condition that he shall grant to A. a Rent-charge who refuseth it J.S. shall be seised to his own use Antea 199. CCCLVI. 20 Eliz. In the Common Pleas. THe Case was this Lord and Tenant by service to pay every year such a quantity of Salt but since 10 H. 7. the Tenant hath always paid the money for Salt. The question was If the Lord might resort to the first service Seisin and if the money be Seisin of the Salt. And Manwood took this difference i.e. where the Lord takes a certain sum of money for the Salt the same is not any Seisin for the service is altered as at the first Socage Tenure was a work done by labor i.e. Plowing but now it is changed into certain Rent and the Lord cannot resort to have his Plowing and in Kent divers Tenants in ancient time have paid Barley for their Rent but the same afterward was paid in a certain sum of money so as now the Lord of Canterbury who is Lord of such Tenements cannot now demand his Barly c. but if the sum which hath been used to be paid be incertain one year so much according to the price of Salt then such a payment of money is a sufficient Seisin of the Salt. Quod fuit concessum per Curiam CCCLVII 20 Eliz. In the Common Pleas. IN Accompt brought by an Heir Copyholder for the profits of his Copyhold Lands taken during his Nonage the Defendant pleaded That by the Custom of the said Manor Accompt by the Heir of a Copyholder the Lord of the Manor might assign one to take the profits of a Copyhold descended to an Infant during his Nonage to the use of the Assignee without rendring an accompt and the same was holden to be a good Custom as a Rent granted to one and his Heirs Custom to cease during the
word Children a good name of purchase But the whole Court was against that conceit for these words in the case At the Assignment of Friendship are not void but shew what person should take if the intent of the party should take effect i. he who the Father by Assignment should enable for no Child shall take but he who the Father shall assign that is part of the contract and although by such Assignment no title accrues to the Child assigned yet without Assignment no Child is capable for by the Lease the Father hath such Liberty that he may assign what Child he will And by Wray If the words of the Lease had been at the assignment of the Father within one month and the Father surcease his month Antea 275. the Interest should not vest in any of the Children And by Ayliff Iustice If the words of the Lease had been to the Husband and wife and their Son John where his name is William nothing should vest And peradventure in this case at the Bar if the Father had assigned his Son then born and had assigned him before or at the time of the Lease i. the delivery of the Lease it had been well enough Note that this Action was brought by Cole Lessee of the Son of the Husband and VVife born at the time of the Lease made And afterwards Wray with the assent of all the rest of the Iustices gave Iudgment that the Plaintiff Nihil capiat per Billam CCCXCII Pasch 26 Eliz. In the Kings Bench. Execution where joynt where several NOte It was agreed by the whole Court and affirmed by the Clerks That if Debt be brought upon an Obligation against two upon a joynt Praecipe and the Plaintiff hath judgment to recover that a joynt Execution ought to be sued against them both But if the suit were by one Original and several Praecipes execution might be sued against any of them CCCXCIII Trin. 26 Eliz. In the Kings Bench. Replevin IN a Replevin The Defendant doth avow for Damage Feasant and shewed that the Lady Jermingham was seised of such a Mannor whereof c. and leased the same to the Defendant for years c. The Plaintiff said That long befor King H. 8. was seised of the said Manor and that the place where is parcel of the said Manor demised and demisable by copy c. and the said King by his Steward demised and granted the said parcel to the Ancestor of the Plaintiff whose Heir he is by copy in fee c. upon which it was demurred because by this Bar to the Avowry the Lease set forth in the Avowry is not answered for the Plaintiff in the Bar to the Avowry ought to have concluded and so was seised by the custom until the Avowant praetextu of the said Term for years entred And so it was adjudged CCCXCIV The Lord Dacres Case Trin. 26. Eliz. In the Kings Bench. Ante 227. Stewardship of a Manor Office of Trust Grants per Copy Deputy Steward IN Ejectione firmae the case was That the Lord Dacres was seised of the Manor of Eversham and that I.S. held the place where of the said Manor by copy for term of his life and the said Lord granted the Stewardship of the said Manor to the now Marquess of Winchester who appointed one Chedle to be his Deputy to keep a court ad traden dum the said Lands I.S. being now dead to one Wilkins by copy for life afterwards the said Chedle commanded one Hardy his Servant to keep the said court and grant the said Land by copy ut supra which was done accordingly the copy was entred and the Lord Dacres subsigned it confirmed it It was further found That Hardy had many times kept the said court both before and after and that the custom of the Manor was that the Steward of the said Manor for the time being or his Deputy might take Surrenders 1 Co. 48. 49. and grant estates by copy And if this estate so granted by Hardy were good or not was the question because by the Servant of the Deputy whereas the custom found did not extend further than the Deputy It was argued that the estate granted ut supra was void for a Deputy cannot transfer his authority over for it is an office of trust See 39 H. 6. 33 34. 14 E. 4. 1. and 6 Eliz. it was adjudged That the Duke of Somerset had divers Stewards of his Lands and they in the name of the said Duke made diverse Leases of the Lands of the said Duke rendring Rent and the Duke afterwards assented to the said Leases and received the Rents reserved upon them and yet after the death of the said Duke the Earl of Hertford his Son and Heir avoided them So here the assent and the subsignment of the copy by the Lord Dacres doth not give any strength to the copy which was void at the beginning against which it was said That to take a Surrender and to grant an Estate by copy is not any judicial Act but meerly an Act of service and no matter of trust is transferred to Hardy for trust is reposed in him who may deceive which can't be in our Case for here is an express commandment which if Hardy transgress it is absolute void for nothing is left to his discretion And the admitting of a Copy-holder is not any judicial Act for there need not be any of the Suitors there who are the Iudges And such a Court may be holden out of the Precinct of the Manor for no Pleas are holden which was concessum per totam Curiam And by Ayliff Iustice If the Lord of such a Manor makes a Feoffment of a parcel of his Manor which is holden by copy for life and afterwards the Copy-holder dyeth although now the Lord hath not any Court yet the Feoffee may grant over the Land by copy again And the whole Court was clear of opinion That the grant for the manner of it was good especially because the Lord Dacres agreed to it And Iudgment was given accordingly CCCXCV Burgesse and Fosters Case Trin. 26. Eliz. In the Kings Bench. IN Ejectione firmae the case was 1 Cro. 48 49. That the Dean and Chapter of Ely were seised of the Manor of Sutton whereof the place where c. is parcel demised and demisable by copy according to the custom and by their Deed granted the Stewardship of the said Manor to one Adams to execute the said office per se vel legitimum suum Deputatum eis acceptabilem Surrenders Afterwards Adams made a Letter of Deputation to one Mariot ad capiendum unum sursum redditionem of one I. W. and I. his Wife and to examine the said I. aforesaid ea intentione that the said I.W. and A. might take back an estate for their lives the Remainder over to one John Buck in Fee Note the Surrender ought be de duobus Messuagiis Mariot took two several
Recovery against Massey Error And in the said Recovery four Husbands and their VVives were vouched and now the Plaintiff brought this Writ of Error as heir to one of the Husbands and Exception was taken to his Writ because the Plaintiff doth not make himself heir to the Survivor of the four Husbands Egerton The Writ is good enough for there is a difference betwixt a Covenant personal and a Covenant real for if two be bound to warranty and the one dyeth the Survivor and the heir of the other shall be vouched and he said each of the four and their heirs are charged and then the heir of each of them being chargeable the heir of any of them may have a Writ of Error And afterwards the Writ of Error was adjudged good Ante 86. And Error was assigned because the Vouchees appeared the same day that they were vouched by Attorney which they ought not to do by Law but they might appear gratis the first day without Proces in their proper persons and so at the sequatur sub suo periculo See 13 E. 3. Attorn 74. and 8 E. 2. ib. 101. Another Error was assigned Because the Entry of the warrant of Attorney for one of the Vouchees is po lo. suo I.D. against the Tenant where it should be against the Demandant for presently when the Vouchee entreth into the warranty he is Tenant in Law to the Demandant Coke As to the first Error Although he cannot appear by Attorney yet when the Court hath admitted his appearance by Attorney the same is well enough and is not Error As to the other Error I confess it to be Error but we hope that the Court will have great consideration of this case as to that Error for there are one hundred Recoveries erronious in this point if it may be called an Error And then we hope to avoid such a general mischief that the Court will consider and dispense with the rigor of the Law As their Predecessors did 39 H. 6. 30. In the Writ of Mesne But I conceive That the Writ of Error is not well brought for the Voucher in the said Recovery is of four Husbands and their Wives and when Voucher shall be intended to be in the right of their Wives which see 20 H. 7. 1. b. 46 E. 3. 28. 29 E. 3. 49. And so by common intendment the Voucher shall be construed in respect of the Wife So also the Plaintiff here ought to entitle himself to this Writ of Error as heir to the Wife And for this cause The Plaintiff relinquished his VVrit of Error And afterwards he brought a new VVrit and entituled himself as heir to the wife CCCXCIX The Queen and the Dean of Christchurch Case Mich. 26 27 Eliz. In the Kings Bench. Praemunire 3 Len. 139. THe Queens Attorney General brought and prosecuted a Praemunire for the Queen and Parret against Doctor Matthew Dean of Christ-church in Oxford and others because they did procure the said Parret to be sued in the City of Oxford before the Commissary there in an Action of Trespass by Libel according to the Ecclesiastical Law in which suit Parret pleaded Son Franktenement and so to the Iurisdiction of the Court and yet they did proceed and Parret was condemned and imprisoned And after that suit depended The Queens Attorney withdrew the suit for the Queen And it was moved If notwithstanding that the party grieved might proceed See 7 E. 4. 2. b. The King shall have Praemuire and the party grieved his Action See Br. Praemunire 13. And by Brook none can have Praemunire but the King Coke There is a President in the Book of Entries 427. In a Praemunire the words are ad respondendum tam Domino Regi quam R.F. and that upon the Statute of 16 R. 2. and ib. 428 429. Ad respondendum tam Domino Regi de contemptu quam dict A. B. de damnis But it was holden by the whole Court That if the Kings Attorney will not further prosecute the party grieved cannot maintain this suit for the principal matter in the Praemunire is The conviction and the putting of the party out of the protection of the King and the damages are but accessary and then the principal being released the damages are gone And also it was holden by the Court That the Presidents in the Book of Entries are not to be regarded and there is not any Iudgment upon any of the pleadings there but are good directions for pleadings and not otherwise CCCC Mich. 26 27. Eliz. In the Kings Bench. Fines levied 1 Cro. 35. THe Case was A. gave Lands in tail to B. upon condition That if the Donee or any of his heirs alien or discontinue c. the Land or any part of it that then the Donor do re-enter The Donee hath issue two Daughters and dieth One of the two Daughters levieth a Fine Sur Conusans de droit come ceo Forfeiture to her Sister Heale Serjeant the Donor may enter for although the Sisters to many intents are but one Heir yet in truth they are several Heirs and each of them shall sue Livery 17 E. 3. If one of the Sisters be discharged by the Lord the Lord shall lose the Wardship of her and yet the Heir is not discharged And if every Sister be heir to diverse respects then the Fine by the one Sister is a cause of Forfeiture Harris contrary For conditions which go in defeating of estates shall be taken shortly Conditions and here both the Sisters are one Heir and therefore the discontinuance by the one is not the Act of the other Clench Iustice The words are Or any of his heirs therefore it is a forfeiture quod fuit concessum per totam Curiam And Iudgment was given accordingly CCCCI Mich. 26 27 Eliz. In the Kings Bench. THe Case was Assumpsit Hutt Rep. 34. Hob. 284. A Woman seised of a Rent-charge for life took Husband the Rent was arrear the wife died the Tenant of the Land charged promised to pay the Rent in consideration that the Rent was behind c and some were of opinion Because that this Rent is due and payable by a Deed that this Action of the Case upon Assumpsit will not lye no more than if the Obligor will promise to the Obligee to pay the mony due by the Obligation 3 Cro. 5. an Action doth not lye upon the Promise but upon the Obligation But it was holden by the whole Court That the Action did well lye for here the Husband had remedy by the Statute of 32 H. 8. And then the consideration is sufficient and so Iudgment was given for the Plaintiff CCCCII. Williams and Blowers Case Hill. 27 Eliz. In the Kings Bench. REignold Williams and John Powell brought a Writ of Error against the Bishop of Hereford and Blower Error upon a Recovery had in a Writ of Disceit by the said Bishop and Blower against the said
the other side there the Descent is traversable and not the dying seised and that was the Case betwixt Vernon and Gray Vernon and Grays Case In an Avowry Vernon conveyed the Lands from the Lord Powes to him as next Heir to him because the Lord Powes died seised in his Demesn as of Fee without issue and the Plaintiff conveyed from the said Lord Powes by Devise and traversed the Descent to the Avowant for the dying seised was confessed and avoided by the Devise 22 Eliz. Dyer 366. See 21 H. 7. 31. In Trespass the Defendant saith That T. was seised and died seised and that the Lands descended to him as Son and Heir and that he entred the Plaintiff said That T. was seised and took to wife K. and they had issue the Plaintiff and died seised and the Land descended to him and teaversed the descent to the Defendant and see Sir William Merings Case 14 H. 8. 22 23. But if the parties do not claim by one and the same person or the dying seised be not confessed and avoided there the dying seised shall be traversed and not the descent Glanvil Serjeant Be the Bar insufficient or not if the Declaration be not sufficient the Plaintiff shall not have Iudgment and here is not any breach of Covenant viz. that the Plaintiff shall enjoy it without any lawful impediment of the Defendant his Heirs or Assigns or any claiming by Marland and then if the Heir of Marland cannot make any lawful claim then there is not any breach of Covenant assigned and he said because it is not shewed that the Land is not holden in Socage the Devise is not good for it may be that the Land is holden in Capite but admit the Devise good that when Andrews bargains and sells unto Marland and the Tenant never attorns then nothing passeth and then the Heir of Marland cannot make any lawful claim or lawful impediment Periam Iustice Here Marland was assignee of Andrews and if he or his heirs make claim although that the assignment be not sufficient in Law yet because he hath colour by this assignment his claim is lawful and so there is a breach of the Covenant and although it is not alledged that the Land devised is holden in Socage yet the Devise is good for two parts of the Land. Anderson Iustice If it be good but for two parts then is the Reversion apportioned and the Rent destroyed and so Marland hath not any Rent by his purchase of the Reversion and so he can't lawfully disturb the Plaintiff The Law doth create his apportionment which grows by the Devise and therefore the Rent shall not be destroyed but if it had been done by the Act of the party it had been otherwise and I would willingly hear if the Heir of Marland be assignee of Andrews for otherwise he is not within the words of the Covenant for Marland hath an estate to him and his heirs for the life of another Now after the death of Marland his heir is a special occupant and vide H. 26 Eliz. Rot. 560. in the Common Pleas such an Heir shall not have his age CCCCXXX Oglethorpe and Hides Case Pasch 33 liz In the Common Pleas. IN Debt upon a Bond for the performance of Covenants Debt it was holden by the whole Court That if the Defendant pleaded generally the performance of the Covenants and the Plaintiff doth demur generally upon it without shewing cause of Demurrer Iudgment shall be given according to the truth of the cause for that default in pleading is but matter of form and is aided by the Statute of 27 Eliz. But if any of the Covenants be in the disjunctive so as it is in the Election of the Covenantor to do the one or the other then it ought to be specially pleaded and the performance of it for otherwise the Court cannot know what part hath been performed CCCCXXXI Tracy and Ivies Case Mich. 32 Eliz. In the Common Pleas. IN Dower by Margaret Tracy against Ivie the Case was Dower That John Finch was seised and enfeoffed Shipton and others of two parts of the Lands to the use of himself and the Defendant his then wife and their heirs for ever with Condition That if his said wife did survive him Co. 4. Vernons Case she should pay such sums of mony not exceeding two hundred pounds to such persons which the Feoffor by his last Will should appoint and afterwards he declared his Will and thereby appointed certain sums of mony to be paid to divers persons amounting in the whole to the sum of one hundred and fifty one pounds and by his said Will devised the residue of his Lands to divers of his Kindred having no issue and died The wife married Tracy and they brought Dower against the Devisees who pleaded the Feoffment aforesaid and averred the same was made for the Ioynture of the Demandant And because that no other matter or circumstance was proved to verifie the Averment the Court incited the Iury to find for the Demandant which they did accordingly CCCCXXXII Bond and Richardsons Case Mich. 32 Eliz. In the Common Pleas. IN Debt upon a Bond Debt 1 Cro. 142. the Condition was to pay a lesser sum such a day and at such a place the Defendant pleaded payment according to the Condition upon which they were at issue And it was found by Verdict That the lesser sum was paid such a day before the day contained in the Condition of the Bond and then received and upon this Verdict Iudgment was given for the Plaintiff for the day is not material nor the place but the payment is the substance CCCCXXXIII Marshes Case Trin. 32 Eliz. In the Common Pleas. Trover had Conversion GOods came to a Feme covert by Trover and she and her Husband did convert them to their own use It was holden per Curiam That the Action upon the Case shall be brought against the Husband and Wife and not against the Husband only for the Action doth sound in Trespass and it is not like unto Detinue for upon a Detainer by the Wife the Action lieth against the Husband only CCCCXXXIV Corbets Case Trin. 32 Eliz. In the Common Pleas. Debt 2 Len. 60. AN Action of Debt was brought by Original Writ against an Administrator in another County than where the Administrator was commorant and before notice of the Suit he paid divers Debts of the Intestate due by specialty and so he had not Assets to pay the Debt in demand having Assets at the day of the Teste of the Original And now Plainment Administred 1 Cro. 793. the Defendant appearing pleaded this special matter and concluded so he had nothing remaining in his hands And it was holden per Curiam to be a good Plea. See 2 H. 4. 21 22. CCCCXXXV Gillam and Lovelaces Case Mich. 32 Eliz. In the Common Pleas. Administration KAtharine Gillam Administratrix of John Gillam brought Ejectione
the Plaintiff doth recover Post 16 2 Len. 119. he should have Habere facias possessionem and then Copyholds should be ordered by the Laws of the Land 10 Eliz. Lord and Copy-holder for life the Lord grants a Rent-charge out of the Mannor whereof the Copy-hold is parcel the Copy-holder surrenders to the use of A. who is admitted accordingly he shall not hold it charged but if the Copy-holder dieth so that his estate is determined and the Lord granteth to a stranger de novo to hold the said Lands by Copy this new Tenant shall hold the Land charged and so was it rated and adjudged in the Common Pleas. It was adjorned IX The Lord Paget and the Bishop of Coventry and Leichfields Case Mich. 25. 26 Eliz. in the Kings Bench. THE Bishop of Coventry and Leichfield was endicted of Trespass in the County of Srafford Endictment of breaking and entring of the Close of Thomas Lord Paget called the Vineyard Challenge the Bishop traversed the Endictment and at the day of appearance of the Iury the Bishop challenged the Array because that he being a Peer of Parliament no Knight was returned c. Vpon which challenge the Queens Counsel did demur in Law but at last for expedition c. the Court delivered to the Councel of the Bishop a Bill sealed to save him the advantage of the said challenge And the Enquest was taken de bene esse who found that one A. by the Commandment of the Bishop entred into the said Close called the Vineyard being then in the occupation of one B. at will of the said Lord Paget and did the Trespass viz. digged a Turff there and there left it and so departed The matter of challenge was many times argued and it was argued against the said challenge because that the King is party against whom no Lord of Parliament shall have such Prerogative To which it was answered on the other side that so much the rather the challenge lyeth in the Case for where a Peer of the Parliament is to be tryed upon an Endictment of Treason or Felony it shall be per pares if upon appeal of Murder or Felony by ordinary tryal See 33. H. 8. Br. Tryal 42 and Br. Enquest 49. It was said on the Plantiffs side that here the Bishop is quodam modo and the Venire facias issued at his own Sute and therfore the mismaking of the Pannell is his own fault But by Gaudy Iustice the Venire facias in this Case is reputed in Law the Sute of the Queen notwithstanding that the parry endicted for his expedition doth pay the Fees for the Process for that the Clarks of the Court have encroached for their gain for otherwise there should be none paid by the Queen and by the better opinion of the Court the challenge was holden good Another matter was moved because the Endictment is clausum Domini Paget and it appeareth by the Verdict that the said close at the time of the Trespass was in the occupation of B. at the will of the Lord Paget for the Lord Paget cannot have an Action of Trespass against the said Bishop or the said A. upon the matter and by Wray the Lord Paget cannot have Trespass Quare clausum fregit intravit upon this matter but for digging upon the Land demised or cutting of Trees an Action lyeth 19 H. 6. Tit. Trespass 36. But here the Endictment is that one F. entred by the commandment of the Bishop upon which matter no Action lyeth against the Bishop by the Lord Paget and especially in this case where the said A. did not carry away the said Turff from thence But by Wray notwithstanding that the Action of Trespass doth not lye for the Lessor yet it is well enough by way of Endictment Another exception was taken to the Endictment because it is alleadged 2 Len. 183. that A. by Commandment of the Bishop entred and did the Trespass and no place is shewed where the commandment was and for this cause the Bishop was discharged X. Stonley and Bracebridges Case Mich. 25 26 Eliz. in the Kings Bench. IN Ejectione firmae by Stonley against Bracebridge the case was Pâ—o. Com. 417. 418. Thomas Bracebridge Father of the Defendant was seised of the Mannor of Kingsbury to him and to the heirs males of his body and 32 H. 8. Leased a Field called Stalling parcell of the said Mannor to Tho. Coke for years and afterwards 4 E. 6. Leased the said Field the first Lease being in esse to Sir Geo. Griffith for seventy years who assigned the same to A. Bracebridge Brother of the Lessor and to Joyce Wife of the Lessor and afterwards 5 E 6. the said Tho. Bracebridge the Lessor by his Deed Indented gave the said Mannor to the said Sir George by these words dedi concessi barganizavi vendidi Proviso and upon condition That the said Sir George should pay to the said Thomas Bracebridge within fifteen days after ten hundred pounds and if he fail of payment thereof that then after the said fifteen days the said Sir George should be seised of a Tenement parcel of the said Mannor of the yearly value of three pounds now of sate in the occupation of Thomas Smith to the use of the said Thomas Bracebridge for his life and after to the said Sir George until he had levyed five hundred pounds for the payment of the debts and the education of the children of the said Thomas Bracebridge and after to the use of the Defendant in tail And of the residue of the said Mannor to the use of the said Tho. Bracebridge and of the said Joyce his Wife for their lives c. Tho. Bracebridge made livery to the said Sir George in one place parcel of the said Mannor which was in his own occupation in the name of the whole Mannor the fifteen days incur without payment of the said ten hundred pounds the Indenture is enroled Coke attorns Joyce dyes Tho. Bracebridge grants the Lands to a stranger by Fine and before Proclamations Thomas his Son and Heir apparent within age enters in the name of the Feoffees by reason of the forfeiture Proclamations are made Tho. Bracebridge the Father dyeth the Term of Coke expireth A. enters and leaseth to the Plantiff who enters upon whom Tho. Bracebridge the Son enters upon which Entry the Action is brought it was argued by Beamount the elder Although here in the Indenture of bargain and sale there is not an express consideration set down in the common form of a consideration yet because the consideration is implied in the condition it is good enough see the Proviso and condition ut supra that the said Sir George should pay c. As if I bargain and sell to you my Land Proviso that you pay to me for the same at such a day one hundred pounds that consideration set down in the form of a condition is as effectual as if it had been
extend ad veritatem facti which is set forth in the Avowry but only to reputation and so both stand together well enough Rent charge parcel of a Mannoâ— And that a Rent charge may be parcel of a Manor see 22 E 3. 13. 31. E 3. 23. in the Lord Tiptofts Case where it is ruled that title made to a Rent charge as parcel of a Manor is a good title and the Assize awarded upon it and in our Case the Reputation is enforced by the sute at the Court which was also reserved upon the said Feoffment together with the said Rent so as the intent of the parties to the Feoffment was that this Rent so reserved and accompanyed with the said sute shall be esteemed a Rent service and so parcel of the Manor and as to the continuance of Reputation it sufficeth if at the time of the bargain and sale aforesaid which was 26 H 8. it was by many reputed parcel of the Manor and he cited the Case of the Marquess of Winchester The King gave to his Ancestor the Manor of Dale and all lands then antea reputed parcel of the said Manor and in a Bill of Intrusion against the said Marquess he pleaded the grant with averment that the Land then antea reputed parcel Manerii praedict And because he did not shew certainly at what time the Land was reputed parcel of the Manor Iudgment was given for the Queen for it might be for any thing in his Plea that the said Land was reputed parcel of the said Manor before time of memory which Reputation would not serve but such Reputation ought to be within time of memory and understanding He cited also the Case of the Earl of Leicester King Edward the sixth seised of the Manor of Clibery of which a Wood was parcel granted the said Wood in Fee which afterwards escheated to the King for Treason Queen Mary granted the said Wood to another in Fee who granted it to the now Queen who granted the said Manor omnes boscos modo vel ante hac cognit vel reputat ut pars membr vel parcel Maner praedict to the Earl of Leicester and it was resolved in the Exchequer that by that grant the said Wood did pass to the Earl and Iudgment was given against the Queen Dy. 362 â— for it was part of the Manor in the time of E 6. at which time an t ' hac without the word unquam shall be extended ad quoddamcunque tempus praeteritum And Reputation needs not so ancient a Pedigree for to establish it for general acceptance will produce reputation As the house of the Lord Treasurer now called Tibould was of late a private Manor but now hath a new name by which it is known and that within these twenty years which is not so long a time as we have alleged for our Reputation and would pass in a conveyance by such name so None-such But as to Reputation I conceive that Reputation is not what this or what that man thinketh Reputation quid but that which many men have said or thought who have more reason to know it quaenam est inter illos reputatio There was a Case ruled in the Exchequer 13 Eliz. in a Bill of intrusion the Case was that King Hen. 6. was seised of a Manor to which a Neif was regardant who purchased Lands which the King seised and let by Copy as parcel of the said Manor and so continued until the time of E 6. who granted the same to Allice Hardwick and all Lands Tenements reputed parcel of the said Manor And it was adjudged that the said Land so purchased by the said Neif and demised by Copy did pass by the said grant to Hardwick And afterwards the same Term the Iustices without any solemn Argument shewed their opinions in the principal Case viz. That this Rent did not pass by the bargain and sale made as above by Anthony Wingfield to Bohan father of the Avowant for here in the premisses of the Avowry is not any matter set forth importing Reputation or by which it may appear that the Rent in question was ever reputed parcel of the said Manor but rather to the contrary and the bare averment of Reputation in the conclusion of the Avowry is not sufficient to induce Reputation But if the Avowant had set forth in his Avowry any special matter to induce the Court to conceive a Reputation upon the matter of the Avowry as to shew that the Bayliffs of the said Manor had always received the said Rent as parcel of said Manor and as Bayliffs of the said Manor had accounted for it as parcel of the Manor and that the Lessees of the said Manor had enjoyed the said Rent as parcel of the said Manor the same had been good matter to induce a Reputation to have incorporated the said Rent with the said Manor and so judgment was given against the Avowant and of such opinion as was affirmed by Wray was Anderson chief Iustice of the Common Pleas and Manwood chief Baron of the Exchequer XIX Cham and Dovers Case Pasch 26 Eliz. in the Kings Bench. Ejectione firmae IN an Ejectione firmae the Case was that one Michel was seised of the Manor of D. within which diverse parcels of Land part of the said Manor where customary Tenements demised and demisable by copy c. according to the Custom of the said Manor for one two or three lives within which Manor there was a Custom scil that the Lord of the Manor for the time being might grant Copy-hold estates for life in Reversion The Lord granted such Lands for life by copy in possession took a wife and granted the same Copy-hold to a stranger in Reversion for life and died the Copy-holder in possession died the Land demised by copy is inter alia assigned to the Wife for her Dower who had Iudgment to recover in a Writ of Dower who entred and made a Lease thereof to the Defendant who entred against whom the Lessee of the Copy-holder brought Ejectione firmae Custom ad pasturandum non ad colendum and all this matter was found by Verdict and further found that every Copy-holder of the said Manor might Lease his Copy-hold for a year ad pasturandum sed non ad colendum and that the Lease made to the Plaintiff was for a year ad pasturandum 1. Cro. 469. Wells versus Partridge Post 100. Popham Attorny General of Council with the Defendant took exception to the Declaration because the Plaintiff had declared a Lease at the common Law and the Iury have found a Lease by the custom which cannot stand together And such a Verdict doth not maintain the Declaration as if the Plaintiff had declared upon a Lease for years of Lands and the Iury found a devise for years c. but the exception was disallowed by the Court. As to the matter in Law he argued that the Tenant in Dower should
hold the Land discharged of the Copy-hold for her life and he put this case If the Lord of such a Manor taketh a Wife a Copy-holder for life dieth the Lord grants a Rent-charge out of the customary land and afterwards grants the said land by copy for life dieth the wife shall hold the land discharged of the Rent but the Copy-holder shall be charged and he put a difference where the Lord grants such Copy-hold in possession and where in Reversion for in the first case the Wife shall hold charged but contrary in the last And he cited the Case of one Slowman who being Lord of a Manor ut supra by his Will devised that his Executors should grant estates by Copy 2. Len 109. and died having a Wife the Executors make estates accordingly Dower discharged of a grant of Copy-hold the Wife in case of Dower shall avoid them Plowden contr the Lord of such a Mannor is bound by recognisance and afterwards a Copy-holder for life of the said Mannor dieth the Lord grants his Copy-hold de novo the said new Grantee shall hold his Copy-hold discharged of the Recognisance which Gawdy Iustice granted and by Wray if the Lord of such a Manor grants a Copy-hold for three lives takes a Wife the three lives end the Lord enters and keeps the lands for a time and afterwards grants them over again by copy and dieth the copy-holder shall hold the Land discharged of the Dower and this is a clear case for the copy-holder is in by the custom which is paramount the title of Dower and the Seisin of the Husband and by him in the case of the Earl of Northumberland 17 Eliz. Dyer 344. That the grant of a copy-hold in Reversion by the Earl of Northumberland doth not make such an impediment as was intended in the condition there for it is by the custom and not by the act of the party And afterwards the same Term Iudgment was given for the Plaintiff that he and his Lessor should hold the lands discharged of the Dower XX. Fringe and Lewes Case Pasch 26 Eliz. In the Kings Bench. DEbt by Fringe against Lewes upon a Bond who pleaded Debt that the condition was that whereas the Defendant was Executor to one Morris Degle that if the Defendant should perform observe fulfil and keep the Will of the said Morris Degle in all points and Articles according to the true intent and meaning thereof that then c. and pleaded further that the said Morris by the said Will bequeathed to the Poor of such a Town ten pounds to be distributed amongst them and also to the Church-wardens of the Parish ten pounds and to I S. three pounds and that he had distributed the said ten pounds to the Poor and that he had paid the ten pounds to the Church-wardens and as to three pounds Uncore priâ—â— a good Plea. he said that he is and always was ready to pay the same to the said I. S. if he had demanded it upon which there was a demurrer And as to the ten pounds to be distributed amongst the Poor the same was holden good enough without shewing the names of the Poor amongst whom the mony was distributed so the pleading of the first payment to the Church-wardens was sufficient without nameing of them See 42 E 3. brief 539. Scire facias out of a Recovery against Executors and the Writ was challenged because it was Scire facias Executors not naming their proper names It was holden to be no exception for Executors are as a corporation known in that they are Executors and as to the third part of the Plea scil always ready and yet is the plea is well enough for this Obligation the Condition of which being general to perform the Will c. Poph. 10â— hath not altered the nature of the payment of the Legacy but the same remains payable in such manner as before upon request and not at the peril of the Defendant See 22 H 6. 57 58. 11 E 4 10. 6 E 6. Br. Tender 60. And afterwards the same Term the Court was clear of opinion and so delivered the Law to the Counsel on both sides that in this case the Legacies are to be paid upon request and not at the peril of the Executors in such manner as they were before the Obligation and afterwards Iudgment was given against the Plaintiff XXI Sir John Smith and Peazes Case Pasch 26 Eliz. In the Kings Bench. SIr John Smith brought Debt upon an Obligation against Peaze who pleaded that the Bond was upon condition to perform covenants contained in an Indenture and shewed what and that he had performed them the Plantiff assigned the breach of one covenant that where the Plaintiff had leased to the Defendant for years certain messuages by the same Indenture the Defendant by the same Indenture did covenant to repair all the said Messuages Covenant alia quam quae appunctuatae forent divelli per script dicti Johannis Smith and shewed further that the Defendant had not repaired the said Messuages to him demised as aforesaid and averred that the said house in which the breach of the covenant is assigned non fuit durante termino praedicto appunctuata divelli and upon that matter of reparation they were at Issue and found for the Plaintiff It was moved in Arrest of Iudgment that the Averment in the Replication was not sufficient for the Lease was made in November to begin the Michael after Averment and it might be that the Messuage in the not repairing of which the breach of the covenant is assigned was appointed to be pulled down scil divelli before the Term for years began and then the Defendant is not bound to repair it and then the breach of the covenant is not well assigned and so the Averment doth not answer the exception and because this clause alia quam is in the body of the Covenant it ought to be satisfied by him who pleads it scil by him who assigns the breach in the Covenant in which the exception is contained As by the Lord Dyer in his argument in the argument of Stowels Case reported by Plowden 376. Where a man pleaded the Feoffment of Cestuy que use he ought to plead that Cestuy que use at the time of the Feoffment was of full age sanae memoriae c. for that is within the purview contr upon the Statute of 4 H. 7. in pleading of a Fine for that is in a clause by it self which conceit of Plowden the Lord Wray denyed to be Law for he said he that pleads the Feoffment of Cestuy que use or a Fine according to the Statute of 4 H. 7. shall not be driven to shew that the Feoffor or Conusor at the time of the Feoffment or Fine levyed was of full age c. but he who comes in by such Fine 〈◊〉 21 or Feoffment shall shew the same for his own advantage And
prohibition And the Court upon the first Motion conceived a prohibition should pass for if the grant be without deed nothing passed and then hath not Withy cause to claim these Tithes against the said Saunders And notwithstanding that Tithes are quodam modo spiritual things and so demandable in a Court of that nature yet now in divers respects they are become a Lay-fee and lay-things for a Writ of Assise of Mortdauncester and an Assise of novel disseisin lyes of them and a Fine may be levyed of them But it hath been doubted whether Tithes be devisable by Will But at another day the matter was moved and the Court was clear of opinion that a Consultation should be awarded for whether Withy hath right or not right to these Tithes Saunders of common right ought to pay his Tithes and he ought to sever them from the nine parts and whosoever takes them whether he hath right to them or no right Saunders is discharged But Saunders may prescribe in modo decimandi without making mention of any severance and may surmise that the Tithes do belong to I. S. with whom he hath compounded to pay such a sum for all Tithes and afterwards a Consultation was awarded XXX Stacy and Carters Case Trin. 26 Eliz. in the Kings Bench. STacy brought an Action of Trespass for breaking his Close against Walter Carter And declared of a Trespass in Somers-Land in Tunbridge The Defendant pleaded that heretofore he himself brought an Assise of Novel disseisin against the now Plaintiff and supposed himself to be disseised of his Free-hold in Lee juxta Tunbridge and the Land where the Trespass supposed to be done was put in view to the Recognitors of the said Assise and further averred that the Land where c. and the Land then put in view is one and the same c. upon which there was a Demurrer Exception was taken to the form of the Demurrer because in the perclose and conclusion of the Demurrer these words are omitted Averment Et hoc paratus est verificare But as to that it was said by the Court that the Demurrer was well enough with or without such Averment in the conclusion of it which see oftentimes in the Commentaries c. and in the Book of Entries 146. the greater part of the Demurrers have not any such conclusion Another Exception was taken to the bar because the Defendant pleads that heretofore Walter Carter had brought an Assise against the now Plaintiff c. and that the Land put in view to the Recognitors of the Assise per praefatum Warrhamum Carter c. and the Land where c. is all one c. here is Warrhamum for Walterum and notwithstanding that it was after demurrer and not after verdict it was adjudged amendable and as to the matter of the bar it was said by the Defendants Council that recovery of Lands in one Town by Praecipe quod reddat is not a bar for Lands in another Town but where the recovery is by Assise it is otherwise for there the Plaint is general De lib. ten̄to and the Plaintiff shall recover per visum Juratorum and the view is the warrant of the Iudgment and Execution And therefore if a recovery in an Assise be pleaded in bar Not comprised is not any Plea against it as in the Case of recoveries upon a Praecipe quod reddat but not put in view and so not comprised c. which proves that the Record doth not guid the recovery but the view of the Iurors See 26 E 3. 2. Assise brought of Lands in D. the Tenant saith that he holdeth the said Lands put in view joyntly with A. not named in the Writ c. and sheweth the deed of Ioynt-tenancy which speaks of Tenements in B. and the plea holdeth good because he alledgeth the Ioynt-tenancy and the Lands put in view See 24 E 3. It was said on the Plaintiffs side that recovery in Lee juxta Tunbridge could not extend to Lands in Tunbridge no more than a recovery of Lands in one County can extend to Lands in another County See 23 E 3. 16. Assise of Novel disseisin brought of Lands in N. the Defendant pleads recovery in Assise c. brought before by him against the now Plaintiff of Lands in H. and the same Lands put then and now in view and adjudged no bar See also 16 E 3. 16. in an Assise of Tenements in W. the Tenant pleads a Recovery of the same Lands agaist one A. by Assise brought of Tenements in C. which was found by the Assise and that C. is a Hamlet of W. and the Plaintiff notwithstanding that recovery so pleaded had Iudgment for a recovery of Lands in one Town shall not be a bar in an Assise of Lands in another Town See Br. Tit. Iudgment 66. 10 E 3. And the whole Court was clear of opinion that the plea in bar was not good for in the Assise which is pleaded in bar in the principal Case the Tenant there who is now Plaintiff in this Action of Trespass pleaded Nul tort nul disseisin which is no plea as to the Free-hold in Lee juxta Tunbridge and therefore it cannot be like to the Case which hath been put of 26 E 3. for there the Tenant pleaded that he held the said Lands put in view joyntly for there he agreeth with the Plaintiff in the Lands demanded the which Lands are put in view but if in the Case at bar the Defendant being Plaintiff in the Assise the now Plaintiff being then Tenant had pleaded to the Land put in view in bar and the Plaintiff in the Assise had recovered now in this Action of Trespass the Plantiff in the Assise being Defendant in the Action of Trespass might well plead this Recovery in bar for by his plea in the Assise he hath tyed himself to the view and to the Land put in view but it is not so in the Case at Bar where the Tenant in the Assise pleads nul tort nul disseisin for there he doth not plead expresly to the Land put in view but to the supposal of the Plaintiff sc de libero tenemento in Lee juxta Tunbridge afterwards Wray with the assent of the other Iustices awarded that the Plaintiff should recover his damages See by Wray 44 E 3. 45. in Assise of Tenements in B. the Plaintiff pleads that he himself brought an Assise of the same Tenements and his plaint was of Tenements in E. and the same Tenements put in view and recovered and holden a good Plea because the Tenant hath said that the same Tenements were put in view and that took by Assise upon which the Plaintiff said not put in view and so not comprised XXXI Benicombe and Parkers Case Trin. 26. Eliz. In the Kings Bench. IN an Action of Trespass the Iury found this special matter that the Grandfather of the Plaintiff was seised and made a Feoffment to the use of himself for life
passeth and doth extend into D. and the residue which is in C. shall remain in me in gross v. 9 E. 4. 17. Catesby And if I be seised of a Manor which doth consist of services and of twenty Free-holders and one hundred Acres of Demesnes and I grant the services of my twenty Free-holders and forty or twenty Acres of the said one hundred Acres a Manor shall pass although it was not granted by the name of a Manor but if I grant the services of three four or five of my Free-holders and forty or twenty of the said one hundred Acres upon such a grant no Manor shall pass Windham Iustice contrary We are not here to speak of the creation of a Manor that is a forraign matter but we are here to consider upon the division and apportionment of a Manor They that have argued in this case at the Bar have stood much upon the words of the Conveyance manerium suum de North-kelsey and that Sir Fr. Askew at the time of that assurance had not any Manor of North-kelsey or in North-kelsey but that is not any reason for if Cestuy que use mean between the Statute of 1 E. 3. 27 H. 8. will make a Feoffment of the Manor which was in use by these words manerium suum the same had been good and yet it is not manerium suum but the Manor of the Feoffees but it may be said suum by receiving of the profits according to the trust and confidence reposed in the Feoffees so in our case in as much as Sir Fr. Askew had before this grant aswell demesnes as services in North-kelsey it may collaterally be said a Manor there and notwithstanding that tempore concessionis proprie loquendo no Manor was in North-kelsey yet now upon operation of the Law upon this grant a new Manor shall rise for in divers cases where a thing which was not in esse before upon a grant may rise As if I grant unto you out of my Land a Rent de novo And also a thing which was not in esse before may upon a grant take upon it a new nature As if I. seised of a great Wood grant to you Estovers out of it they were not before in me but as Woods and Trees now by this grant they are become Estovers in the Grantee so as they are in the Grantee in another nature than they were in me So in our case although North-kelsey was not a Manor in Sir Fr. Askew yet now upon the grant it is a Manor in Bard 9 E. 4. 17. And as to the matter which hath been objected because a Court cannot now begin the same is not any reason for the Court Baron is incident to the Manor and also to every part of the Manor and transitory through the whole Manor and if Sir Fr. Askew had sold all the demsnes of the Manor in Castord where the Court Baron for the said Manor had always been held and not else-where yet such a Court might be holden in any part of the Demeans in any other of the said Towns The Lord Anderson to the same purpose It hath been argued of the other side that the Manor doth not pass because the grant is in these words manerium de North-kelsey in North-kelsey I conceive that these words de North-kelsey are void as matter of surplusage and the grant shall be construed as if the words had been manerium suum in North-kelsey And a Manor is such a thing as may be determined divided and suspended As if the Lord of a Manor leaseth for years all the Demeans of the Manor the Manor is suspended during the term for years as lately it hath been adjudged And a warranty may be divided as if a Feoffment in Fee be made to two with warranty and the one of them releaseth the warranty vide L. 5. E. 4. 103. A. seised of a Manor which extendeth in four Towns B. C. D. and E. and he gives his Manor in B. C. and D. by this gift the Manor and all that is in the said four Towns passeth And he cited also a Case 21 E. 4. 3. The Lord of a Manor erected a Chapel within his said Manor as a Chapel of Case c. and afterwards it is a Parish-Church now it is become presentable an Advowson appendant as the soil upon the which the Church is built is parcel of the Manor See 32 H. 6. 9. One Manor may be parcel of another Manor as A. holdeth of B. twenty acres of Land as of his Manor of C. which Manor B. holdeth of D. as of his Manor of E. B. dieth without Heir so as his Manor of C. is escheated unto D. now the twenty acres are holden of the Manor of C. as they were before and the Manor of C. is by the Escheat become parcel of the Manor of E. and by Lease of the Manor of E. it shall pass Post 32. And I do not know any difference between the Case of Parceners and the Case of Ioynt-tenants for now they are both equally compellable to make partition And he cited the Case of one Estopp lately adjudged viz. the Queen was seised of the Rectory of D. which extended into the Counties of Lincoln and York and the Queen granted her Rectory of D. in Lincoln these are several grants and now upon the matter they are become several Rectories And as to that which hath been objected concerning a Court Baron which ought to belong to this new Manor and that such a Court cannot now at this day be erected and therfore here cannot be a Manor here needs not the erection of any new Court but forasmuch as the Court Baron before this grant might be by Law holden in any place within the Manor therefore every part of the Demeans of the Manor is capable of a Court to be holden there As where one is seised of a Manor to which an Advowson is appendant now is the Advowson appendant not only to the said Manor but to every part of it for if he alien an acre parcel of the Manor with the Advowson the Advowson is now appendant to the said acre See 43 E. 3. 26. So in the Case at Bar because this liberty and franchise of a Manor is throughout the whole Manor and in every part of the Services and Demesnes upon this grant of the Services and Demesnes in North-kelsey and of his Manor in North-kelsey a Manor passeth which Windham also granted and agreed unto Note at this time there were but three Iudges in this Court And afterwards Iudgment was given for the Defendant XXXIV Alington and Bales Case Pasch 27 Eliz. In the Kings Bench Rot. 584. 1 Cro. 660. 661. ALington and others Executors of Sir W. Cordel late Master of the Ross brought an Action Debt against Bales The Case was this One Bream being seised of certain Lands by Indenture bargained and sold the same to one Platt by these words give grant bargain sell and by
Tanfield contrary I confess that the Father ought to have the marriage of his Son and Heir so long as he is sub potestate patris but here the Father hath committed all his interest power and authority in his Son to the Defendant his Master with whom he hath bound his Son Apprentice for seven years during which term the Father hath not any thing to do with his Son or his Marriage Wray The Action Quare filium haeredem c. is not given to the Father because his marriage belongs to him but because of the Education and such was the opinion of Clench Iustice and the marriage doth not belong properly to the Father For if the Son marrieth himself without the leave of the Father there is not any remedy for the Father And afterwards Iudgment was given against the Plaintiff LXIV Bullers Case Pasch 29 Eliz. In the Common Pleas. â—â—â—â—evin EDmund Buller brought a Replevin against two who make Conusans as Baylies to A. for rent arrear reserved upon a lease for life To which the Plaintiff in Bar of the Conusans pleaded that two strangers had right of Entry in the place where 2 Len. 196. c. and that the said two Defendants by their Commandment entred c. and took the Cattle of which the Replevin is brought damage feasant absque hoc that they took them as Baylies to the said A. and upon that Traverse the Defendants did demur in Law. 2 Len. 216. Post 327. Shuttleworth Serjeant the Traverse is not good for by that means the intent of the party shall be put in issue which no Iury can try but only in Case of Recaption See 7 H. 4. 101. by Gascoign If the Bayly upon the distress shews the cause and reason of it he cannot afterwards vary from it but the other party may trice him by Traverse but if he distrain generally without shewing cause then he is at large to shew what cause he will and the other party shall answer to it â— Co. 7â— And it was said by the Court that when a Bayly distreins he ought if he be required to shew the cause of his distress but if he be not required then he is not tied to do it Anderson We were all agreed in the Case betwixt Lowin and Hordin that the Traverse as it is here was well taken The Number Roll of that Case is M. 28 29 Eliz. 2494. LXV Hudson and Leighs Case Pasch 29 Eliz. In the Kings Bench. HUdson recovered against Leigh in an Action of Battery for which a Capias pro fine issued against Leigh and also a Capias ad Satisfaciendum returnable the same Term at one and the same Return Process As to the Capias pro fine the Sheriff returned Cepi and as to the Capias ad Satisfaciendum non est inventus And for this contrariety of the Return the Court was of opinion that the Sheriff should be amerced but it was moved by the Council of the Sheriff Return of the Sheriff that the awarding of the Capias pro fine was meerly void for the Fine is pardoned by the Parliament And it is also Enacted That all process awarded upon such Fines shall be void and then the Capias pro fine being void it matters not how or in what manner it be returned for the Court shall not respect such process nor any return of it and then the Court not having resepect to that Return there is not any contrariety for the Capias ad Satisfaciendum only is returned and not the Capias pro fine And at another day it was moved again the Battery was supposed Junij 1586. and Iudgment given the thirteenth of February the same year upon which issued Capias pro fine Escape 5 Co. â—â— and before the Return thereof the Parliament ended which pardoned such Fines and made all process thereupon void And it was said by the Court that if the Sheriff in such Case takes the party by a Capias pro fine now upon that taking he is in Execution for the party and if the Sheriff let him go at large he shall answer for the escape And in that case the Capias pro fine was well awarded and the Court ought to regard it and the Defendant lawfully taken by virtue of it and also in execution for the party in Iudgment of Law and afterward when the Parliament came and Enacted ut supra although the process be made void thereby the same ought to be meant as to the interest of the King in the Fine and the vexation of the Subject by it but not as to the Execution of the party but the Sheriff shall answer for that Execution And it was also holden by the Court that if the Plaintiff sueth an Elegit then upon the Capias pro fine executed the Defendant shall not be adjudged in Execution for the party for he hath made his Election of another manner of Execution scil of the Land and he shall never resort to an Execution of the body 13 H 7. 12. And as our case is there was an Elegit obtained but it was not on Record nor any Record made of it and therefore the election of the Execution remained to the Plaintiff And as to the point aforesaid that such process shall be void as to the King only not as to the party See now 5 Ja. C. 6. part 79. Sir Edward Phittons Case LXVI Potter and Stedals Case Pasch 29 Eliz. In the Common Pleas. IN Trepass by Samuel Potter against Stedal the Case was Trespass Tenant for life of Land leased parcel thereof to hold at Will and being in possession of the residue levyed a Fine of the whole the Lessor entred into the Land which was let at will in point of forfeiture in the name of the whole it was holden the same is a good entry for the whole Ante 56. But if the Disseisor leaseth for years part of the Land whereof the disseisin was committed Entry 1 Inst 252. and the disseisee afterwards entreth into the Land which continueth in the possession of the Disseisor in the name of the whole the same Entry shall not extend to the Land leased for here the Lessee is in by title but in the other Case not for when Tenant for life leaseth it at will and afterwards levies a Fine the same is a determination of the Will. 16 Eliz. Dyer 377. 1. In the same plea it was holden that if there be lessee for life the remainder for life the remainder in fee Lessee for life in possession levyeth a Fine Sur Conusans de droit c. to his own use upon that Fine a Fee-simple accrues LXVII Leigh and Hanmers Case Pasch 29 Eliz. In the Common Pleas. Debt upon a Recognizance THomas Leigh Esquire brought an Action of Debt upon a Recognizance in the nature of a Statute Staple against John Hanmer Esquire before the Mayor and Aldermen
within the said Close the Beans were growing and were parcel of his endowment and that at the time of the taking they were severed from the nine parts whereupon he took them And it was holden by Ashton and Danby because it is confessed on both sides that the Beans whereof c. were Tithes the Right of which would come in debate betwixt the Parson and the Vicar and both are spiritual persons that the tryal thereof doth belong to the Spiritual Court. See 6 E. 4. 3. 22 E. 4. 23. 24. in such a matter betwixt the Parson and Vicar there the Temporal Court was ousted of the Iurisdiction See also 31 H. 6. 11. betwixt the Parson and the Servant of another Parson 7 H. 4. 102. In Trespass by a Parson against a Lay-man who said that one A. is Parson of a Church in a Town adjoyning to a Town where the Plaintiff is Parson and that A. let to him the Tithe and demanded Iudgment c. and pleaded to the Iurisdiction and by Gascoigne the Plaintiff may recover his Tithes in the Spiritual Court. LXXVII Bunny against Wright and Stafford Pasch 29 Eliz. In the Kings Bench. IN Trespass the Case was this Leases within 1 Eliz. and 32. 7 8. made by Bishops Grindal Bishop of Lond. leased parcel of the possessions of his Bishoprick for one and twenty years and afterwards ousted the Lessee and leased unto another for three lives rendring the antient and accustomed Rent which was confirmed by the Dean and Chapter And afterwards Grindal is translated Cook argued That the Lease is warranted by the Statute of 1 Eliz. At the Common Law a Bishop might make an Alienation in Fee-simple being confirmed by the Dean and Chapter But by 32 H. 8. cap. 28. Bishops without Dean and Chapter or their confirmation may make a Lease for one and twenty years but with the confirmation of the Dean and Chapter may make a Lease for one thousand years Co. 1. Inst 45. 2. More 107. 1 Anderson 65. But by the Statute of 1 Eliz. the power of Bishops in that right is much abridged for now with confirmation or without confirmation they cannot dispose of their possessions but for one and twenty years or three lives and this Lease is in all points according to the Statute of 1 Eliz. for first it begins presently upon the making of it Secondly the antient rent is reserved payable yearly during the term for although here be an old Lease in esse yet the Rent reserved upon the second Lease is payable during the second term for payable is a word of power and not of action as 1 H. 4. 1. 2. 3. Lord Mesne and Tenant the Mesne gives the Mesnalty in tail rendring Rent it is a good Rent and well reserved although here be not a present distress yet it may be the Tenancy will escheat and then the Donor shall distrein for all the Arrearages And so the Rent is payable by possibility And 10 E. 4. 4. A. leaseth for years and afterwards grants the Reversion to a stranger if the Beasts of the stranger come upon the Lands during the term A. may distreâ—â— for the Arrearages incurred and if he happen seisin he shall have aâ—â— Assise during the continuance of the first term And he cited a Case lately adjudged in the Exchequer A Lessor entred upon Lessee for years and made a Feoffment rendring Rent with clause of Re-entry the Lessee re-entred claiming his Term and afterwards during the said Term for years the Rent reserved upon the Feoffment upon demand of it is behind Now hath the Lessor regained the Reversion And so a Rent may be demanded although not distreinable And all that was affirmed by Egerton Solicitor General And see the words of the Statute of 32 H. 8. cap. 28. Rent reserved yearly during the said Lease due and payable to the Lessor c. such Rent c. and yet by the said Statute such Leases may be good although there be a former interest for years in being if the same shall be expired surrendred or ended within one year after the making such new lease and so not expresly payable in rei veritate annually during the Term. LXXVIII Bonefant and Sir Rich. Greenfields Case Pasch 29 Eliz. In the Kings Bench. Sale of Lands by the Executors of the Devisor BOnefant brought Trespass against Sir Rich. Greenfield and upon the general issue this special matter was found Tremagrie was seised of a Manor whereof the place where c. was parcel in his Demesne as of Fee and by his Will devised the same to his four Executors and further willed Post 260. that his said Executors should sell the same to Sir John Saintleger for the payment of his debts if the said Sir John would pay for it one thousand one hundred pounds at such a day and died Sir John did not pay the mony at the day One of the Executors refused Administration of the Will the other three entred into the Land and sold it to the Defendant for so much as it could be sold and in convenient time It was moved that the sale was not good for they have not their authority as Executors but as Devisees and then when one refuseth the other cannot sell by 21 H. 3. Cestuy que use Wills that is Executors shall alien his Land and dieth although the Executors refuse the Administration yet they may alien the Land. 19 H. 8. 11. 15 H. 7. 12 Egerton Solicitor argued that the sale is good by the Common Law and also by the Statute 49 E. 3. 16 17. Devise that his Executors shall sell his Land and dieth and one of the Executors dieth another refuseth the third may sell well enough 1 And. 145. and the sale is good See Br. Devise 31. 30 H. 8. 39 E. 3. Br. Assise 356. And he put a difference where an Authority is given to many by one deed there all ought to joyn contrary where the Authority is given by Will And if all the Executors severally sell the Lands to several persons such sale which is most beneficial for the Testator shall stand and take effect And here it is found by verdict that one of the Executors recusavitonus Testamenti Ergo he refused to take by the Devise for it was devised unto him to the intent to sell therefore if he refuseth to sell he doth refuse to take and so it is not necessary that he who refuseth joyn in the sale and although we are not within the express words of the Statute yet we are within the sense and meaning of it And afterwards it was adjudged that the Condition for the manner of it was good LXXIX Gamock and Cliffs Case Pasch 29 Eliz. In the Common Pleas. Ejectione firmae EJectione firmae was brought by Gamock against Cliff of the Manor of Hockly in the County of Essex and upon the evidence the case was That the King and Queen Philip and Mary seised
Plaintiff for certain Beasts which he wrongfully took from the Plaintiff that then c. And he said in facto That the said I. S. had stolen the said Beasts from the Plaintiff Condition against Law. and thereof he was endicted c. and so the condition being against the Law the Obligation was void upon which the Plaintiff did demurr in Law. And it was argued by the whole Court That where the condition of an Obligation shall be said against the Law and therefore the Obligation void the same ought to be intended where the condition is expresly against the Law in express words and in terminis terminantibus Post 103. and not for matter out of the condition as it is in this case And Iudgment was given for the Plaintiff C. Hawks against Mollineux Mich. 29 30 Eliz. In Communi Banco IN a Replevin by Hawks against Mollineux who avowed for Damage-fesant The Plaintiff in Bar of the Avowry pleaded that Sir Gervase Paston Knight was seised of a Messuage and twenty Acres of Land And that always those whose estate Repleviâ— Yelv. 185. Prescription c. have used to have Common in the place where c. for all their Cattel commonable in this manner viz. If the said Land be sowed by assent of the Commoner then no Common until the Corn be mowed and when the Corn is mowed then Common until the Land shall be sowed again by assent of the Commoners And this Prescription was found by Verdict and exception was taken to this prescription because against common right so as a man cannot sow his Land without the leave of another But the exception was disallowed by the Court for the prescription was holden to be good by the whole Court for by the Law of the Land the Owner of the Land cannot plow the Land where another hath Common but here is a benefit to each party as well for the Owner of the Land against the Commoner as for the Commoner against the Tenant of the Land for each of them hath a qualified Interest in the Land. CI. Baldwin and Cocks Case Intr. Pasch 29 Eliz. Rot. 1410. In Communi Banco Replevin Owen 52. Post 225. 1 Inst 225. 2. BAldwin was Plaintiff in a Replevin against Cocks and upon the pleading the Case appeared to be this That Sir Richard Wayneman was seised of the place where c. and leased the same to one Truepeny and one Eliz. Reade for term of 21 years if the said Truepeny and Eliz. or any child or children betwixt them begotten should live so long Eliz. within the term died without issue If now the term for 21 years be determined was the Question And the Lord Anderson conceived that the estate for years is not determined by the death of Elizabeth And it was argued by Shuttleworth Serjeant that upon the matter the term is determined And he put the Case of the Lord Bray 3 Eliz. Dyer 190. Where the Lord Bray sold unto four great Lords the marriage of his Son and Heir to the intent to be married at the appointment and nomination of the said Lords the Lord Bray died one of the said Lords before any marriage 5 Co. 9 1 Brown. 31. 46 47. 80. 101. 2 Br. 83. 148. or appointment or nomination died the Son is married by the appointment c. of the surviving Lords That marriage is not within the intent of the Covenant and adjudged that upon that marrriage no use shall accrue And also he cited this Case adjudged in the Kings Bench. The administration is committed to one durante minore aetaâ—e of two Infants one of them becomes of full age the power of the Administration is determined which Walmesley Serjeant granted for it is but an authority but here in the Case at Bar is a matter of interest And by Anderson all the construction of this lease and grant rests upon this point if this word Or either shall be taken as disjunctive as it is in its nature or as a conjunctive and if it be taken as a disjunctive if it make the whole sentence in the disjunctive as if the limitation had been if the Husband or Wife or any Child c. And Fenner put this Case out of 17 E. 3. as he cited it Land is given to I. S. in Fee so long as A. B. hath issue of his body A. B. dieth without issue his Wife priviment enâ—â—ent Now the estate is determined and upon birth of the issue after shall not revive which Rhodes and Anderson denied for in many Cases the Law shall respect the existency of the child in the mothers belly And see 7 Eliz. Plow 289. where a Copulative shall be taken in the disjunctive as a covenant with B. to make a lease for years of such Lands to the said B. and his Assigns Exposition of words in deeds 244. Post 251. 1 Roll. 444. the same shall be construed or his Assigns And it was clearly agreed by the other parties that if the words had been If Truepeny Elizabeth or any child or children c. so long c. upon the death of any of them the interest is determined And by Rhodes Periam and Windham in the principal Case the lease shall endure as long as any of the persons named in the Proviso shall live and so seemed to be the meaning of the parties And Anderson haesitavit in the words of the limitation i. the Habendum to the said Truepeny and Eliz. for 21 years a festo Sancti Johannis Baptist post terminum annorum the expiration of a former term if the said Truepeny and Elizabeth or any child c. And he conceived that the limitation did go to the commencement of the lease only and not to the expiration or determination as if the lease should not begin if they all were not alive at the commencement of the lease And all the other Iustices were clear of the contrary opinion for by them this limitation shall go and shall be referred to the determination of the Lease and not to the commencement of it Anderson If any cause should be for which the lease should endure untill the years be encurred notwithstanding the death of the Husband or Wife it was because the lease was intended a common advancement to both for it should be in vain to name the Wife in the lease if the lease should cease by the death of the Husband And afterwards after many arguments on both sides it was adjudged that by the death of Elizabeth the lease was not determined for the disjunctive before Child makes all the limitation in the disjunctive CII Zouch and Bamfields Case Mich. 29 30 Eliz. In Communi Banco THe Case between the Lord Zouch and Bamfield was now argued by the Iustices And Rhodes the puisne Iustice argued 1 And. 165. 3 Co. 88. that the Lord Zouch the Demandant should be barred Four Exceptions have been taken to the bar First because it is not shewed in
the bar that the moyety of those sixty messuages c. of which he pleads the Fine was parcel of the Manor at the time of the Fine levyed for the pleading is that the Grandfather of the Demandant was seised of the said Manor unde medietas praedictorum 60. messuagiorum c. a tempore cujus contrar memoria c. was parcel and so seised de manerio praedict unde c. Finis se levavit and he conceived that the pleading notwithstanding that was good enough for he hath said as much in effect contrar cujus memoria hominum non existit in the present tense which amounts to this that men cannot remember c. but that this moyety was parcel of the said Manor As 10 H. 7 12. In an Assise of Common the Plaintiff makes his title that he was seised of a Messuage and Carve of Land in D. to which the said Common is appendant and that he and all his Ancestors and all those whose estate he hath c. have used to have Common c. Exception was taken to the title because the Plaintiff doth not shew in his title that he is seised of a Messuage c. for if he hath aliened the Messuage the Common passeth so if he be disseised c. but the Exception was not allowed for it appeareth upon the words of the title that the Plaintiff is seised i. all those whose estate he hath in the present tense which words do shew and declare possession and seisin in the Plaintiff the time of the plea pleaded so in this case the substance of the words in which the defect is assigned is ut supra That men cannot remember but that this moyety was parcel of the Manor and then the words after unde c. reddidit Manerium praedict unde c. shall have the same construction as before Periam conceived that the Bar is nought for the cause aforesaid for it is not so pleaded that we can adjudge upon it that the said moyety was parcel of the Manor at the time of the Fine levyed and then the Fine cannot extend unto it And the reason alledged by my brother Rhodes shall not help that matter for the said words cannot be construed otherwise but that no man can remember but the said moyety was parcel but not that it is parcel or at the time of the Fine levyed was parcel Vide 32 H. 6. 24. In Trespass the Defendant pleaded That A. was seised of the Manor of D. whereof the place c. is parcel he ought to say expresly that the place where was parcel of the Manor at the time of the trespass supposed Windham conceived that the plea was good and that it appeareth well upon this plea that the said moyety was parcel of the said Manor at the time of the Fine levyed for he pleads that the Grandfather of the Demandant was seised of the Manor of N. Unde medietas praedictorum c. a tempore cujus contrar memoria hominum non existit sic scisitus existens Finis se levavit sic scisitus i. e. seised of the Manor in such sort as the Manor is set forth before and that is good pleading especially by way of bar which if it be good to a common intent is well enough and the word unde c. so often repeated after shall be idle and to no purpose if the Law shall not give such a construction Anderson to the same purpose And he much relyed upon the reason of Windham and so seised Another Exception was taken to the Bar Averrment because in pleading of the Fine it is not averred that the Conusor at the time of the Fine levyed was of full age out of prison c. And as to that Rhodes took the difference between the pleading upon the Statute of 1 H. 3. where these disabilities are within the purview of the said Statute and upon the Statute of 4 H. 7. where in the body of the Statute no mention is made of them but afterwards in an especial Exception by it self and he cited the opinion of the Iustices especially of the Lord Dyer in the Case reported by Plowd 5 Eliz. 365. betwixt Stowel and the Lord Zouch Periam to the same intent and upon the same reason and further he said that although the Statute of 32 H. 8. contains in its purview the same disabilities Yet this Fine is pleaded upon the Statute of 4 H. 7. and therefore the pleading of the same shall not be directed nor waged by the Statute of 32 H. 8. which doth not alter the pleading of a Fine which was before nor the reason of it for it is not properly a Statute nor do Fines receive any strength or virtue by it but is but a construction of the said former Statute And he put the Case betwixt Hide and Umpton where Umpton mean betwixt the Statutes of 32 and 34 H. 8. Declared his Will of all his Lands which devise if it be good for two parts of the Land devised it was doubted or that the devise should be void for the whole afterwards came the Stat. of 34 H. 8. and cleared the doubt for to that intent it was made and in the said Statute there is a Proviso that the said Statute shall not extend to the Will or the Devise of Tho. Umpton or shall be prejudicial or hurtful to any person or persons for any Lands c. contained or specified in the said Will or Devise but that the said Will and Devise shall stand remain and be in the same case in force and effect in the Law as the same was before the making of this Act. Now notwithstanding that Proviso the Will of Umpton was holden good but for two parts for so the Statute of 34. H. 8. construed the Statute of 32 H. 8. So in our Case the Statute of 32 H. 8. of Fines construes the Statute of 4 H. 7. to extend to Fines levyed by Tenant in tail therefore the estate tail shall be adjudged in Law to be bound by the Statute of 4 H. 7. and not by 32 H. 8. which is rather a Iudgment upon the said Statute of 4 H. 7. than any new Statute Windham to the same intent and he relyed upon the reason aforesaid And further said if one will plead a Lease made by Tenant in tail upon the Statute of 32 H. 8. he need not to aver the full age of the Lessor and yet that quality of full age is within the purview of the said Statute First all Leases to be made c. by any person being of full age c. and so is the common use of pleadings And of the same opinion was the Lord Anderson for the said Exception for the reasons and upon the difference aforesaid Another Exception was taken to the Bar because it is not alledged that the said Fine was engrossed in the same Term in which it was levyed And as to that it was holden by Rhodes that
their amendment makes alteration of the substance of the pleading or of the Verdict as 20 H. 6. 15. In Trespass the Plaintiff declared of a continuando usque diem impetrationis brevis viz. 18. die Martii where the Teste of the Writ was 2 die Januarij the Defendant pleaded to Issue which was found for the Plaintiff and that Misprision of the Teste or date of the Writ could not be amended And no amendment upon this Stat. of 27 Eliz. two things are to be considered First that the Iudges in such amendment medle not with matter nor alter the substance Secondly that they do not amend but according to their judicial knowledge Anderson to the same intent for as it hath been said before the truth of the Case doth not appear unto us according to which we can judge and I conceive that upon any amendment upon this Statute we cannot take out one Roll and put in another and as our case is we cannot amend this defect without taking out the whole Roll and therefore in the Case of Leonard which was late Custos brevium here where in a Replevin he avowed for a Rent-service and upon especial Verdict the Case was that Sir Henry Isley held of the said Leonard by Fealty and the Rent mentioned in the Avowry and was attainted of high Treason and the King seised and granted the Land to the Plaintiff upon whom Leonard avowed for the Rent-service and I and my companions were agreed that the rent notwithstanding the seisure and grant of the King remained distrainable of common right but Leonard could not have return of the Cattel because he had avowed for a Rent-service now it appeareth to us upon the Verdict that he had right to so much rent but not to such a Rent but a Rent-seck distrainable of common right so a Rent in another degree and we also agreed that the Avowry was not amendable for then upon such amendment we ought to take out a whole Roll which was not intended by this Statute And he conceived also that in debt against Executors in the Debet detinet such a Writ shall not be amended by this Statute and he conceived that his exception to the Bar quod ad medietatem 60. Messuag c. parcel medietatis c. is relieved by this Statute for the meaning appeareth And also the exception that it is not expresly shewed that the Fine was engrossed in the same Term in which it was levied And Periam moved another matter Co. 1 Inst 71. b. 72. a. if now the parties demurring in Law as to part of the Land in demand and being at Issue upon the residue if the Court shall adjudge the matter in Law before the Issue be tried or not 32 H. 6. 5 6. In Trespass for taking of his Cattel the Defendant as to parcel pleaded not guilty and as to the remnant pleaded another Plea upon which the parties did demur and there they proceeded to trial before the matter in Law determined and found for the Plaintiff and he had Iudgment thereupon for the damages but the costs were suspended until c. And the Defendant brought his Writ of Error 48 E. 3. 15. In an Action of Wast as to parcel the Defendant pleads no Wast and as to the rest pleaded matter in Law upon which there was a demurer joyned It was holden that the Issue should not be tried until the matter in Law be determined But it was said by Fulthorpe in Trespass if the Defendant to parcel plead the Enquest and to other parcel matter in Law in such case he should proceed to trial presently and damages should be taxed of the whole as well of that upon which there was a demurrer in Law as of that of which the Issue was joyned ad quod non fuit responsum See also 11 H. 4. 228. In Trespass the Defendant pleaded to Issue for part and for the residue did demur in Law Process for the trial issued before the matter in Law determined And Periam conceived that the Court might proceed in such Case the one way or the other As to the matter in Law whether the issue in tail upon this Fine should have the Averment he conceived that he should not have the said Averment for that it should be very perilous to the Inheritances of the subjects And he argued much upon the dignity of Fines out of Bracton and Glanvil whom he called Actores non Authores Legis that Fines at the common Law were of great authority until the Statute of West 2. And afterwards by the Statute of 34 E. 3. of non-claim from whence they became to be of so little value in Law that they were accounted no other than Feoffments upon Record so as thereby no assurance was of Inheritances but a general incertainty until the Statute of 4. H. 7. by which Statute they were restored to their ancient power and virtue After which Statute many shifts were devised to creep out of it So as the Statute of 32 H. 8. was made to take away all questions and ambiguities which were conceived upon the said Statute of 4 H. 7. And therefore we who are Iudges ought to frame our Iudgments for the maintaining of the authority of Fines for so the possessions and inheritances of the Subjects shall be preserved And that is the reason that if a stranger levy a Fine of my Land in my name that I have not any remedy but a Writ of Deceit against him who levyes the Fine so if a Feme-covert levyeth a Fine of her Land as a Feme-sole the same shall bind her after the coverture if the Husband do not enter upon the Conusee during the coverture and interrupt the possession gained by the Fine And 17 E. 3. and our Books are very plentiful to this purpose that the Law doth aerge admit of such allegations against such Fines A Fine was pleaded in Bar of Land in A. B. and C. he against whom it was pleaded was not received to aver against the supposal of the Fine that there was no such Town or Hamlet as A. 46 E. 3. 5. A woman Tenant in tail had Issue a Daughter who was inheritable to the tail the Daughter took a Husband they both living the Mother and during her seisin levied a Fine of the Land entailed to a stranger sur conusans de droit come ceo c. who rendred the Land to the Husband and Wife in specil tail the Husband died having Issue the Wife took another Husband had Issue and died the Husband to entitie himself to the Land as Tenant by the curtesy would in pleading have averred the seisin of the Mother at the time of the Fine levyed and he could not and yet he was a stranger to the Fine but he was privy to the estate and his claim was by her who levyed the Fine 6 E. 3. 46. Fitz. Averment 40. In a Writ of Entry sur dissei sin the Fine of the
Term which reason in construction of the said Statute the Iudges in the case of the Cooks of London 20. Eliz. have observed which see Plowden 538. For although Successors are not mentioned in the said Statute of 4 H. 7. but only Heirs yet the Iudges did construe the said Statute to extend to them that they should be bounden as well as the Heirs for it is in the like mischief and the said Statute was made for the publick good and for the repose of the Inheritances of the Subjects of this Realm and therefore the same ought to be largely extended in the meaning and sense of it and for the benefit of the Possessors of the Lands and to the destroying of former rights which were not claimed It hath been said that this Fine is but a Fine by conclusion and not in verity and therefore not within the Statute But without question Fines by conclusion are within the Statute And that is clear by the Saving scil to all persons other than parties to the said Fines c. And Periam was against the opinion in Stowells Case by Sanders 356. A Disseisor maks a Feoffment in fee upon condition the Feoffee levies a Fine with Proclamation five years pass the condition is broken the Disseissor re-entreth and Periam conceived that in such Case the Disseissee is bounden for by the Fine and five years non-claim the right of every stranger is barred and when the Disseissor entreth for the condition broken the Fine is not annoyed but rather confirmed and former rights shall not be revived Windham to the same intent and vouched the Books before remembred and that the meaning of the Statute of 32 H. 8. made upon the Statute of 4 H. 7. was to bind the Issue in tail as strongly as the heir of Tenant in Fee-simple was bound at the common Law and that Fines by conclusion are as fully within the purview of that Statute as Fines in verity for Fines by conclusion are Assurances And as to the objection against our Fine that it is not rite levatus because that partes ad finem nihil habuerunt c. the same is no reason wherefore this Fine should not be rite levatus for these words rite levatus to the external form of a Fine are to be taken as to a Fine levied coram Edmundo Anderson socijs suis where all the Iustices ought to be named and so it seemed also to Periam and Anderson Our case had little resemblance to the Case where Tenant in tail maks a Lease according to the Statute of 32 H. 8. if he be not seised at the time of the demise it is void for the Stat. speaks seised in tail but so are not penned the Statutes of 4 H. 7. 32 H. 8. as 4 H. 7. a Fine levied shall bind privies strangers c. 32 H. 8. Fines levied of any Lands entailed to the Conusor or any of his Ancestors and it is not a Fine in respect of the possession which passeth by the Fine but in respect of the Concord and Agreement And Tenant in tail by these Statutes hath as great power to bind the right of the entail although he cannot meddle with the possession as the Tenant in Fee-simple at the common Law. Anderson to the same intent All the matter rests upon this point if the Issue in tail be privy or not for if he be privy then clearly he is bounden And as to that the Issue in tail before the Statute of 32 H. 8. hath been always accounted privy See 29 H 8. Dyer 32. Tenant in tail of the gift of the King levieth a Fine the same shall bind his Issue for they are privy And he argued much upon the Cases cited by the other Iustices before and especially upon the said Case of Stowel and the Lord Zouch how that the Issue in tail is there holden privy and that the Statute of Fines ought to be taken and construed to enfore the operation of Fines against former rights and for the establishment of the present possessions and estates And by him divers rights and persons are excepted by the said Statute but this right in gross of possession nor the Issue in tail whose Ancestor being out of possession levieth the Fine is not excepted therefore both of them comprehended in the Statute And in his argument he stood much upon it how dangerous a matter it should be to receive such averments and allegations which go meerly in avoidance of Fines for so every Fine might fall in the mouth of the Lay-Gens which would be very inconvenient And he concluded his Argument with this Case Tenant in tail doth discontinue and disseiseth his discontinnuee and levieth a Fine the discontinuee before the proclamations reentreth the proclamations are made Tenant in tail doth re-enter and dieth seised against this Fine his Issue shall not be remitted See as to the averment 3 H. 627. 33 H. 6. 18. 42 E. 3. 20. 8 H. 4. 8. 12 E. 4. 19. by Fairfax and Needham and fol. 15. by Brian and Choke And afterwards Iudgment was given that the Demandant should be barred CIII Gunerston and Hatchers Case Intr. Pasch 24 Eliz. Rot. 2112. In Communi Banco CHarles Duke of Suffolk was seised of three parts of the Manor of D. and Poole was seised of the fourth part of the said Manor Avowry and afterwards the Duke granted out of the said three parts a Rent-charge of five marks to Gunerston and afterwards the said Duke of the said three parts did enfeoffe Hatcher in Fee after which Poole conveyed his said fourth part of the said Manor to the said Hatcher in Fee and afterwards Hatcher being seised ut supra reciting the said several purchases especially the said fourth part devised to Katherin Hatcher at Will and Gunerston distreined the Cattel of Katherin Hatcher for the arrearages of the said Rent and in a Replevin avowed the distress and by the opinion of the whole Court the Avowry was not maintainable for the fourth part of the said Manor which was in the possession of Poole was not charged with the Rent and although all the Manor be now in the possession of Hatcher yet the Mannor is not so consolidated nor united by this unity of possession but that the owner might well enough single out eandem quartam partem and grant it and the grantee shall hold the same discharged as the said Poole held it and the beasts of the said Katherin shall not be distreined and so Iudgment was given against the Avowant CIV Mich. 29 30 Eliz. In Communi Banco Voucher Post 291. IT was moved by Serjeant Walmesley If a common Recovery be to pass at the Bar and the Tenant is ready at the Bar and voucheth to warr A. for whom one is ready at the Bar to appear for the vouchee by his warrant of Attorny It was holden that this appearance is meerly void for in such case the vouchee ought to appear in person
because without summons but where summons issueth and the same is entred upon the Roll there may the vouchee at the Return appear in person or by Attorny at his Election And that was the clear opinion of all the Iustices and also of the Prothonotaries CV Keys and Steds Case Mich. 29 30 Eliz. In Communi Banco IN a Formedon by Keys against Sted the Case was the Sted and his Wife were Tenants for life Formodon 2 Len. 9. the Remainder over to a stranger in Fee and the Writ of Formedon brought against Sted only who made default after default whereupon came his Wife and prayed to be received to defend her right which was denied her by the Court for this Recovery doth not bind her and it is to no purpose for her to defend her right in that Action which cannot here be impearched Whereupon he in the Remainder came and prayed to be received and the Court at first doubted of the Receit forasmuch as if the Demandant shall have Iudgment to recover he in the Remainder might falsify the Recovery because his estate upon which he prayeth to be received doth not depend upon the estate impleaded scil a sole estate whereas his Remainder doth depend upon a joynt estate in the Husband and Wife Falsifier of Recovery not named in the Writ But at the last notwithstanding the said Exception the Receit was granted See 40 E. 3. 12. CVI. Liveseys Case Mich. 29 30 Eliz. In Communi Banco Writ of Right IN a Writ of Right against Thomas Livesey of the Mannor of D. de duabus partibus Custodiae Forrestae de C. the Tenant did demand the view and he had it and return was made and now the Writ of Habere facias visum was viewed by the Court and it was Visum Manerii duarum partium Custodiae c. And it was holden by the Court not to be a sufficient view for the Forrest it self ought to be put in view scil the whole Forrest View and not duae partes tantum as where a Rent or Common is demanded the Land out of which the Rent or Common is going ought to be put in view and there a Writ of Habere facias visum de novo issued forth CVII Germys Case Mich. 29 30 Eliz. In Communi Banco GErmy brought Debt upon a Bond against A. as Executor Debt 2 Len. 119. and the Case was That the Testator of A. by his Will did appoint certain Lands and named which should be sold by his Executors and the moneys thereof arising distributed amongst his Daughters when they have accomplished their ages of one and twenty years the Lands are sold if the moneys thereof being in the hands of the Executors until the full age of the Daughters shall be assets to pay the debts of the Testator And by the clear opinion of the whole Court Assets Post 224. the same shall not be assets for that this money is limited to a special use CVIII Mich. 29 30 Eliz. In Communi Banco IN an Action of Debt upon an Obligation the Defendant saith that the Plaintiff shall not be answered for he is out-lawed and shewed the Outlawry in certain by the name of I. S. of D. in the County of c. The Plaintiff shewed that at the time of the sute begun against I.S. upon whom the Out-lawry was pronounced the said I.S. now Plaintiff was dwelling at S. absque hoc that he was dwelling at D. Vide 21 H. 7. 13. And it was holden a good Replication to avoid the Out-lawry without a Writ of Error by Anderson 10 E. 4. 12. For if he were not dwelling at D. then he cannot be intended the same person See 39 H. 6. 1. CIX Mich. 29 30 Eliz. In Communi Banco IT was agreed by the whole Court and affirmed by the Prothonotaries That if in Account the Defendant be adjudged to account and be taken by a Capias ad computandum and set to mainprize pendent the Account before the Auditors and doth not keep his day before them that now a Capias ad computandum de novo shall issue forth against him CX Glosse and Haymans Case Mich. 29 30 Eliz. In the Common Pleas. JOan Glosse brought an Action of Trespass vi armis Trespass vi armis against a Servant for carrying away his Masters goods Owen 52. Morâ— 248. against John Hayman who pleaded the general Issue and the Iury found this special matter That the Plaintiff was a Grocer in Ipswich and there held a Shop of Grocery quod illa reposuit fiduciam in the Defendant to sell the Grocery Wares of the Plaintiff in the said Shop And further found that the said Defendant being in the said Shop in form aforesaid cepit asportavit the said Wares and did convert them c. It was moved in Arrest of Iudgment that this Action vi armis upon this matter doth not lie but rather an Action upon the Case But the Court was clear of opinion that the Action doth well lie for when the Defendant was in the Shop aforesaid the Goods and Wares did remain in the custody and possession of the Plaintiff her self And the Defendant hath not any Interest possession or other thing in them and therefore if he entermeddle with them in any other manner than by uttering of them by sale according to the authority to him committed he is a Trespassor for he hath not any authority to carry the Wares out of the Shop not sold but all his authority is within the Shop And Rodes put the Case of Littleton 25. If I deliver my Sheep to another to manure his Land or my Oxen to plow his Land and afterwards he kills them I shall have an Action of Trespass against him And afterwards Iudgment was given for the Plaintiff CXI Martin and Stedds Case Mich. 29 30 Eliz. RIchard Martin Alderman of London brought an Action upon the Case against Stedd and declared That whereas the Queen by her Letters Patents dated the 27. of August anno 24. of her Reign had granted to the Plaintiff the Office of Master of the Mint through all England to exercise the said Office secundum formam quarundam Indent betwixt the said Queen and the said Plaintiff conficiendam and that in January following the said Indenture was made by which it was agreed betwixt the said Queen and the Plaintiff that the money in posterum should be made in such manner c. according to the true Standard and declared that he had duly and lawfully made all the money according to the said Standard Yet the Defendant machinans c. had slanderously spoken and given out speeches in these words Mr. Martin hath not made the money as good and fine as the Standard by an half penny in the ounce and so he hath saved four thousand pounds It was objected against this Declaration by Walmesley Serjeant that here the Plantiff hath declared upon
as in case where the Husband died seised Dy. 370. the which dying seised is not found by the Verdict In which Case it was said by the Court the Demandant might pray Iudgment of the Lands and release damages or the Demandant may aver that the Husband died seised and have a Writ to enquire of the damages quod omnes Pregnotarii concesserunt CXIX Michel and Hydes Case Mich. 29 30 Eliz. In the Common Pleas. Dower DOwer by Michel and his Wife against Lawrence Hyde who appeared upon the grand Cape And it was because that the said Hyde in truth was but Lessee for years of the Land of which c. in which case he might plead non-tenure if now he might wage his Law of non-summons so as the Writ be abated for by the wager of Law he hath taken upon him the Tenancy and affirmed himself to be Tenant 33 H. 6. 2. by Prisoit to which it was said by Rhodes and Windham Iustices that here the Tenant being but Lessee for years is not at any mischief for if Iudgment and Execution be had against him he notwithstanding might afterwards enter upon the Demandant Another matter was moved That where the Writ of Dower was de tertia parte Rectoriae de D. and upon that the grand Cape issued Cape in manum nostram tertiam partem Rectoriae and the Sheriff by colour of this Writ took the Tythes severed from the nine parts and carried them away with him And it was agreed by the said Iustices that the same is not such a seisure as is intended by the said Writ but the Sheriff by virtue of such Writ ought generally to seize but leave them there where he found them And the Court was of opinion to commit the Sheriff to Prison for such his misdemeanor CXX Hamington and Ryders Case Mich. 29 30 Eliz. In the Common Pleas. RIchard Haming Executor of Isabel Haming brought Debt upon an Obligation against Ryder Debt Savil Rep. 74. Owen Rep. 6. 1 Co. 52. 1 Andâ— 162. the Case was that Kidwelly was seised leased for years to John Hamington Husband of Isabel and afterwards John Hamington being so possessed by his will devised that the said Isabel should have the use and occupation of the said Land for all the years of the said Term as she should live and remain sole and if she died or married that then his Son should have the residue of the said Term not expired John died Isabel entred Devises to whom the said Lawr. coveyed by Feoffment the said Land in Fee and in the Indenture of the said Conveyance Lawr. covenanted that the said Land from thence should be clearly exouerated de omnibus prioribus barganijs titulis juribus omnibus alijs oneribus quibuscunque Isabel took to Husband the Son entreth If now the Covenant be broken was the question It seemed to Anderson at the first motion that this possibility which was in the Son at the time of the Feoffment was not any of the things mentioned in the Covenant scil former bargain title right or charge But yet it was conceived by him that the word bargain did extend to it for every Lease for years is a contract and although that the Land at the time of the Feoffment was not charged yet it was not discharged of the former contract And by Windham if I be bounden in a Statute-staple and afterwards I bargain and sell my Lands and covenant ut supra here the Land is not charged but if after the condition contained in the defeazance be broken so as the Conusee extends now the Covenant is broken And by him the word charge doth extend to a possibility and this possibility might be extinct by Livery as all agreed but not translated by grant Ante 33. 3 Len. 43. Covenant or extinguished by release as it was lately adjudged in the Case of one Carter At another day it was argued by Walmesley and he much relied upon the words clearly exonerated utterly discharged or altogether exonerated and without doubt it is a charge which may happen and if it may happen then the Land is not clare exonerated And also former bargains do extend to it and the Term is not extinct by the acceptance of the Feoffment aforesaid of Kidwelly and although that at the time of the Feoffment it was but a possibility and no certain interest yet now upon the marriage of Isabel it is become an actual burthen and charge upon the Land and he cited a Case adjudged 8 Eliz. A man seised of Lands grants a Rent-charge to begin at a day to come before which day he bargains and sells the Lands and covenants that the said Lands are discharged of all charges in that case when the day when the Rent ought to begin is incurred the Covenant is clearly broken for the Lands were not clearly exonerated c. At another day the Case was moved at the Bar. And Anderson openly in Court declared that he and all his companions were agreed that the Land at the time of the Feoffment was not discharged of all former Rights Titles and charges and therefore commanded that Iudgment should be entred for the Plaintiff CXXI Howel and Trivanians Case Hill. 30 Eliz. In the Kings Bench. HOwel brought an Action upon the Case against Trivanian in the Common Pleas and declared Assumpsit that he delivered certain goods to the brother of the Defendant who made the Defendant his Executor and died after which the Plaintiff came to the Defendant and spake with him concerning the said goods upon which communication and speech the Defendant promised the Plaintiff that if the Plaintiff could prove that the said goods were delivered to the Testator 2 Roll. 594. that he would pay the value of them to the Plaintiff And the Declaration was in consideration that the said goods came to the hands of the Testator and also afterwards the goods came to the Defendants hands and upon non Assumpsit pleaded It was found for the Plaintiff and Iudgment given And afterwards Error was brought in the Kings Bench and Error assigned because that the Plaintiff had not averred in his Declaration that he had proved the delivery of the said goods to the said Testator 1 Cro. 105. for the words of the promise are si probare potuisset And also it was assigned for Error that here is not any consideration upon which this promise could receive any strength for the Defendant hath not any profit or advantage thereby scil by the bailment of the said goods to the Brother of the Defendant And also it is a thing before executed and not depending upon the promise nor the promise upon it As the Case reported by the Lord Dyer 10 Eliz. 272. The Servant is arrested in London and two men to whom the Master is well known bail the said Servant and after the Master promiseth to them for their friend-ship to save them harmless from all costs
which process issued out of the Exchequer to take and seize all the goods and two parts as well of all the Lands Tenements and Hereditaments Leases and Farms of such Offender as of all other the Lands Tenements and Hereditaments liable to such seisure or to the penalties aforesaid by the true meaning of this Act leaving the third part c. And Popham Attorney General moved If a Recusant hath more than a third part of his Lands in Copy-hold land if this Copy-hold as to the surplusage shall be liable to the penalty Manwood chief Baron conceived that the Copy-hold is liable in this Case by the Statute although not directly by express words yet within the intent of it and that by reason of these words all other the lands c. liable to such seisure c. Walmes Serjeant Copy-hold is not liable to a Statute Merchant or Staple also if the Queen hath the Copy-hold how shall the Lord have the services which the Queen cannot do Also a Copy-hold is not an Hereditament within this Statute which extends only to Hereditaments at the common Law and not by custom Also in Acts of Parliaments which are enacted for forfeiture of Lands Tenements and Hereditaments by those words they shall not forfeit Copy-holds Clark Baron this Statute was made to restrain Recusants from taking the benefit of their Livings and Copy-holds are their Livings as well as Free-holds and by this Statute the Queen shall not have every estate in the Copy-hold Land but only the taking of the profits but the scope of the Statute was to impair the Livings of Recusants and that by driving of them for want of maintenance to repair to the Church Walmesley If the Statute had given to the Queen to seise two parts of their livings then the Statute had extended to Copy-holds Manwood when a Statute is made to transfer an estate by name of Lands Tenements and Hereditaments the Copy-hold is not within such Statute but if the Lords Signiory his Customs and Services are not to be impeached or taken away by such Statute then it is otherwise for such Statute doth not make another Tenant to the Lord And by him Copy-holder shall pay Subsidies and he shall be assessed according to the value of his Copy-hold as well as of his Freehold and in this Case the Queen is to have the profits of the Lands only but no estate At another day the case was argued for the Recusants by Snag Serjeant and he said that these words Lands Tenements and Hereditaments are to be construed which are such at the Common Law not by Custom If I give to one all my Lands Tenements and Hereditaments in D. my Copy-holds do not pass and Statutes which are made to take away Possessions and Hereditaments out of persons ought to be strictly taken and not by Equity The Statute of 13 Eliz. of Bankrupts enacts that the Commissioners may sell the Lands and Tenements of the Bankrupts if the Statute had not made a further provision the Commissioners could not sell Copy-hold Lands but there are express words in the Statute for that purpose i.e. as well copy as fee Also the Staute of 13 Eliz. cap. 4. of Auditors and Receivers of the Queen doth not extend to Copy-holds And it should be a great prejudice to the Lords of such Copy-holds that the Queen should have the Land. Popham the intention of the Law somtimes causes a liberal construction of a Statute in the letter of it What Statutes extend to Copy-holds somtimes a strict and precise exposition and here it appeareth that the intention of the Statute was that the Queen should have all the goods of the offender and two parts of the Lands c. Leases and Farms and the Recusant but the third part of all his Lands only And therefore the Recusant is not to have any other thing but only that which is allotted to him by the Statute and that is the third part which is all the maintenance which the Law allows him and then if Copy-holds be not within this Statute a Recusant who hath great possessions in Copy-holds and hath no Free-hold should be dispunishable and hath his full maintenance against the meaning of the Statute And he said that many things are within the meaning of a Statute â—y 5. 6. Co. 3. Inst 109 Yel 60. 12 Co. 12. which are not within the words as Bonds Obligations and Specialties made to Recusants shall pass to the Queen by this Statute by force of the word goods according to the meaning of the Statute and all personal things are within the Statute c. profits of the Lands Advowsons and the like and the very scope of the Statute was to take away from Recusants all personal things whatsoever and two parts of real things as Leases Farms Lands Tenements c. with the intent that with the superfluity of their goods and possessions she should not maintain Iesuits and Seminary Priests people more dangerous than the Recusants And by him Lands in ancient demesne are liable to the penalties by the Statute although not by express words So if a Recusant hath Lands extended by him upon a Statute acknowledged unto him that Interest is not properly a Lease or Farm yet it is Land within this Statute liable c. And if I be Tenant by Elegit or Statute c. of Lands in D. not having other Lands in the said Town and I grant all my Lands in D. my Interest ut supra shall pass contrary If I have other Lands there And I grant that if I have Copy-hold Lands in D. and none other and I grant all my Lands in D. Copy-hold Land shall not pass by such assurance because that Copy-hold cannot pass but by surrender If I put out a Copy-holder out of his Lands the same is a Disseisin to the Lord of whom the Copy-hold is holden And if I levy a Fine of such Lands and five years pass not only the Lord is bounden as to his Free-hold and Inheritance but also the Copy-holder for his possession for the intent of the Statute of 4 H. 7. was to take away controversies litibus finem imponere 5 Co. 124. and contention may be as well for Copy-hold as for Land at the common Law. One hath a Lease for years to begin at a day to come he who hath the Free-hold thereof is disseised the Disseisor levieth a Fine five years pass he who hath the Free-hold is bound by it but not he who hath the Interest for years in futuro as it hath been lately adjudged But he said That if that point were to be handled again the Law would be taken to the contrary but it is clear that a Lease in possession shall be bound by such Fine And as unto any prejudice to the Lord it is clear that notwithstanding that the Queen hath the Copy-hold Land yet the Lord shall have the Rent during the possession of the Queen which is the
And at another day Wray said Dy. 179. that partition by Tenants in common without deed wheresoever it is made is good but in this case it appears that the parties who made the partition were in the house for they were Tenants in common of the Messuage and a close adjoyning to it and made partition that one should have the house 6 Co. 12. and the other the close so as they were not upon the close when they made the partition and then it was void for the close and if for the close then also for the house And Iudgment was given accordingly CXXXVII Cook and Songats Case Pasch 30 Eliz. In the Kings Bench. IN an Action upon the case by Cook against Songat the Plaintiff declared Quod cum quaedam Lis and controversie had been moved betwixt the Plaintiff Lord of the Manor c. and the Defendant claiming certain Lands parcel of the said Manor to hold it by copy and whereas both parties submitted themselves to the Iudgment and Arbitrament of I. S. Counsellor at Law concerning the said Land and the title of the Defendant to it The Defendant in consideration that the Plaintiff promised to the Defendant that if the said I. S. should adjudge the said Copy to be good and sufficient for the title of the Defendant that then he would suffer the Defendant to enjoy the said Land accordingly without molestation The Defendant reciprocally promised the Plaintiff that if the said I. S. should adjuge the said Copy not sufficient to maintain the title of the Defendant that then he would deliver and surrender the possession of the said Land to the Plaintiff without any sute And shewed further that I. S. had awarded the said Copy utterly insufficient c. yet the Defendant did continue the possession of the Land c. And by Godfrey here is not any consideration But by Gawdy the same is a good and sufficient consideration because it is to avoid variances and sutes And Iudgment was given for the Plaintiff CXXXVIII Pawlet and Lawrences Case Pasc 30 Eliz. In the Kings Bench. GEorge Pawlet brought an Action of Trespass against one Lawrence Parson of the Church of D. for the taking of certain Carts loaded with Corn which he claimed as a portion of Tythes in the Right of his Wife and supposed the Trespass to be done the seven and twentieth of August 29 Eliz. upon Not guilty it was given in evidence on the Defendants part that the Plaintiff delivered to him a Licence to be married bearing date the eight and twentieth of August 29 Eliz. and that he married the Plaintiff and his said Wife the same day so as the Trespass was before his title to the Tythes And it was holden by the whole Court that that matter did abate his Bill But it was holden that if the Trespass had been assigned to be committed one day after that it had been good but now it is apparent to the Court that at the time of the Trespass assigned by himself the Plaintiff had not Title and therefore the Action cannot be maintained upon that evidence for which cause the Plaintiff was Non-suit CXXXIX Sir John Braunches Case Mich. 30 Eliz. In the Kings Bench. Forfeiture IN the Case of Sir John Braunch it was said by Cook that if a Copy-holder be dwelling in a Town long distant from the Manor a general warning within the Manor is not sufficient but there ought to be to the person notice of the day when the Court shall be holden c. For his not coming in such case cannot be called a wilful refusal Copy-holder So if a man be so weak and feeble that he cannot travel without danger so if he hath a great Office c. these are good causes of excuse It was also holden that if a Copy-holder makes default at the Court and be there amerced although that the amercement be not estreated or levyed yet it is a dispensation of the forfeiture Gawdy Iustice If the Copy-holder be impotent the Lord may set a Fine upon him and if he will not pay the Fine then it is reason that he shall forfeit his Land. Egerton Sollicitor Warning to the person of the Copy-holder is not necessary for then if the Lord of a Manor hath one Copy-holder of it dwelling in Cornwal and another in York c. the Lord ought to send his Bayliff to give notice of the Court to them which should be very inconvenient and by him continual default at the Court doth amount to a wilful refusal And by the whole Court general warning within the Parish is sufficient 1 Cro. 353. 505. 506. for if the Tenant himself be not Resient upon his Copy-hold but elsewhere his Farmer may send to him notice of the Court And it was further given in evidence that Sir John Braunch had by his Letter of Attorney appointed the Son of his Farmer his Attorney to do the services for him due for his said Copy-hold And it was holden that such a person so appointed might essoin Sir John but not do the services for him for none can do the same but the Tenant himself CXL Wilkes and Persons Case Mich. 30 Eliz. In the Kings Bench. JOhn Wilkes and Margery his Wife and Thomas Persons brought Trespass Quare clausum fregit herbam suam messuit foenum suum asportavit Trespass ad damnum ipsius Johannis Margeriae Thomae And exception was taken that it was not the Hay of the Wife nor she was not damnified by it but her Husband Wray Iustice the Declaration is good enough 1 Cro. 96. Record for although it be not good for the Hay yet clausum fregit herbam messuit makes it good And Iudgment was given for the Plaintiffs CXLI Atkinson and Rolses Case Mich. 30 Eliz. In the Common Pleas. IN an Action upon the case by Atkinson against Rolfe the Plaintiff declared that the Defendant in consideration of the love which he â—ore unto A. his Father did promise that if the Plaintiff would procure a discharge of a Debt of I. S. which his said Father owed to the said I. S. that he would save the Plaintiff harmless against the said I. S. And declared further that he had discharged the Father of the Defendant from the said Debt and is become bounden to the said I. S. in an Obligation for the payment of the said Debt upon which Obligation the said I. S. hath sued the Plaintiff and hath recovered and had execution accordingly and so hath not been saved harmless c. It was objected that the Declaration was not good because the Plaintiff hath not shewed in his Declaration that he had given notice to the Defendant of the said Obligation or of the suit brought against him but that was not allowed but the Declaration was holden to be good notwithstanding the exception Shuttleworth if I be bound to make to you such an assurance as I. S. shall devise I am bound
this matter for although the Town in discretion might have stayed the offender before the death of the party yet it is not bound so to do And the Court took time to advise of the Case CXLVI Jerom and Knights Case Pasch 30 Eliz. In the Kings Bench. JOan Jerom brought an Action upon the Case in the nature of Conspiracy against one Knight and declared Conspiracy 1 Cro. 70. that the said Knight had malitiously caused the Plaintiff to be endicted of Felony and to be arrained upon it and that she was legitimo modo acquietat c. And the Case was that the Defendant came into the Court where the Sessions was holden and complained of the Plaintiff for the said Felony for which the Iustices there comanded her to cause an Indictment to be drawn c. Coke upon the Books of 27 H. 6. 12. 35 H. 6. 14. 27 H. 8. 2. Fitz. 115. It appeareth that if one come voluntarily into the Court and discover Felonies and if it be true which he saith or if he come in Court and draw an Indictment by the command of the Iustices or if he be bound by order of Law to cause the party to be Indicted or to give in Evidence although he do it falsely yet he shall not be punished for the same in Conspiracy or in an Action upon the Case But if he come gratis with malice in him before and maliciosly and falsely cause the party to be Indicted so as falsity and malice are the ground of it c. it is otherwise Gawdy Iustice How shall it be tried if he doth it with malice or not Coke It may be enquired of for malice makes the difference betwixt Murder and Manslaughter and in such case it is to be enquired and here he came to do the same without Process or cohersion in Law. But if he will safely do such office his direct course is to come to a Iustice of Peace and to shew to him that his Goods are stolen and that he doth suspect such a one and then upon examination he shall be bound to come and give in Evidence against the party c. and in such case although that his Evidence he false yet he is not punishable Owen 158. At another day it was said by Coke in the same case ut supra If a man be bound to give Evidence against any person although he give false Evidence no Action lieth Also if one come into Court gratis and discloseth a Felony and gives Evidence if no malice proceed against the party it is not punishable and here fore thought malice is alledged and put in the Declaration to which the Defendant hath pleaded not guilty And now he is found guilty See the Statute of Westminster 2. Cap. 12. Si inveniatur per inquisitionem quod aliquis sit abettator per malitiam c. Wray Iustice It should be hard to charge one with this Action where he hath his goods stolen from him and therefore causeth an Indictment to be drawn against one who he suspects of it who shall be found guilty who should be punished for it for many Malefactors notwithstanding that the Evidence against them be full and pregnant in favour of life are acquitted whereas by Law they ought to be hanged and it is not reason Upon an Acquital of Grace no Conspiracy lieth that upon such an acquital of grace and mercy he should have this Action if such person had used any words of malice before the Sessions an Action upon the case would have lain And afterwards Iudgment was given for the Plaintiff Trin. 27 Eliz. 750. Ratford and afterwards a Writ of Error was brought Trin. 29 Eliz. Rot. 669. In the Original Action the Writ and Declaration were that the Defendant malitiose intendens querentem in nomine vita fama bonis defraudare quandam Billam Indictamenti scribi fecit eam exhibuit to the grand Enquest ibidem false deposuit omnia in ea contenta esse vera which by Coke is full matter of conspiracy for the drawing of an Indictment is not the office of a witness but if it were by the commandment of the Court or of one Iustice of Peace it should be otherwise for there he goes by course of Iustice 21 E. 3. 17. If one conspire with another and afterwards he procures himself to be one of the Indictors his oath shall not excuse his malice before Gawdy If the party had taken upon him to proceed against the party upon any good presumtions he might have pleaded it as to say he found the party in the house suspiciously c. but because he doth not plead any such matter but generally not guilty and the Writ and Declaration stand not answered specially nor controlled with the Verdict there is no reason but that the Iudgment should be affirmed And afterwards the Iudgment was affirmed and it was said by Wray that here the words in the Writ and Declaration are all one as the words in a Writ of conspiracy and the Defendant hath not shewed any special matter to enduce him to the proceedings CXLVII Ferrers Case Pasch 30 Eliz. In the Kings Bench. HUmphry Ferrers brought an Action upon the case and declared that he is seised of an ancient messuage in the Town of Tamworth Prescription and that he and all his Ancestors whose heir he is owners of the Messuage c. have used time out of mind c. to erect Herdells in aperta platea of Tamworth juxta Messuagium praedict every Market day to make Penns there for Sheep and that he c. have used for such penning of Sheep there to take divers sums of mony of such persons who would Penn their Sheep there and further declared that the Defendant had broken and pulled down his Herdels per quod proficuum suum inde amisit And upon this Declaration Godfrey did demur in Law 1. The Plaintiff hath not shewed in his Declaration specially where he hath used to erect his Herdels but generally in aperta platea without shewing in his own Land or in the Land of another if in the Land of another it is no good title for although that those who fish in the Sea may prescribe to set Stakes on the Land adjoyning to the Sea to hang their Nets to dry after they have done Fishing and that is through the whole County of Kent 8 E. 4. for their prescription is for the common Wealth but the same is not so here but only for a private gain also no prescription is good but where some profit comes to him who prescribes for it which see in the case of the Abbot of Buckfast 21 E. 4. 4. 21 H. 7. 20. Also the Declaration is that the Plaintiff hath taken diversas denariorum summas and see the Prior of Dunstables case 11 H. 6. 19. 19 R. 2. Action surle Case 51. But the certainty of the sums do not appear in this Declaration so as the reasonableness of
made upon condition to pay certain mony at such a day and at the day the Feoffees make an Obligation to the Feoffor for the payment of it the same is no performance of the condition And by Periam If the Executor be taken in Execution for the debt of the Testator he may retain so much of the goods of the Testator amounting to the sum for which he is in Execution and it shall be accounted Assets in his hands Anderson If he to whom the Testator was endebted in 20 l. be endebted to the Executors in so much and the Executor in satisfaction of the debt of the Testator releaseth his debt the property shall be altered presently of the whole goods in the hands of the Executors so where the Debtor makes the Creditor his Executor And Iudgment was given for the Executors CLIV. Bears Case Pasch 30 Eliz. In the Common Pleas. Formedon A Formedon in the Discender was brought by Samuel Bear James Bear and John Bear of Lands in Gavel-kind and the Warranty of their Ancestor was pleaded against them in Bar upon which they were at Issue If Assets by discent And it was found by special verdict that Thomas Father of the Demandants was seised in Fee of the Lands supposed to be descended to the Demandants being of the nature of Gavel-kind and devised the same to the Demandants being his Heirs by the custom and to their Heirs equally to be divided amongst them Devise of Lands in Gavel-kind Owen 65. Dy. 350. 1 Cro. 431. More 594. 558. Sty 434. 3 Cro. 330. 443. 695. 696. And if the Demandants shall be accounted to be in of the Lands by descent or devise was the question for if by devise then they shall not be Assets Anderson Let us consider the devise by it self without the words equally to be divided amongst them And I conceive that they shall be in by the devise for they are now Ioynt-tenants and the survivor shall have the whole whereas if the Lands shall be holden in Law to have descended they should be Parceners and so as it were Tenants in common And although the words subsequent equally amongst them to be divided makes them Tenants in common yet that doth not amend the matter and so also was the opinion of Windham and Rhodes Iustices CLV Nash and Edwards Case Pasch 30 Eliz. In the Kings Bench. IN an Ejectione firmae by Nash against Edwards 1 Cro. 100. it was found by special verdict that one Dover Ancestor of the Plaintiff whose Heir he is being seised of certain Lands holden in Socage devised the same by word to his three Sisters And a stranger being present recited to the Devisor the said words of his Will and he did affirm them 3 Len. 79. And afterwards the said stranger put the said words in writing for his own remembrance but did not read them to the Devisor who afterwards died And it was moved If this devise being reduced in writing modo forma be good or not Spurling conceived that not for the Statute intends a Will in writing Devises but not such writing as is here without privity or direction of the Devisor and it is not like to the case of Brown and Sackvil 6 E. 6. Dyer 72. For the Notes were written by the commandment of the Devisor but here it doth not appear that the meaning of the Devisor was that the devise should be put in writing And devises in Law are favoured as the case in the Chancery was that Sir Richard Pexhal devised certain Lands to his Wife and the Scrivener inserted of his own head a condition scil that she should be chast which was disallowed by the Devisor himself for which after his death the condition although it was put in writing was void And by the whole Court the devise is void And by Wray 2 Len. 35. if he appoint A. to write his Will and it is written by B. it is void but if after he had written the Will if he had read it to the Devisor and he had confirmed it it had been a good Will which Gawdy granted And afterwards Iudgment was given that the Plaintiff should recover Stone and Withypolls Case Trin. 30 Eliz. Rot. 771. In the Kings Bench. STone brought an Action upon the Case against Dorothy Withypol the Executrix of W. Withypol her Husband 1 Cro. 126. Owen 94. 9 Co. 94. declared that where hersaid Husband for certain yards of Velvet of the value of fourteen pounds pro diversis alijs mercimonijs was endebted to the Plaintiff in the sum of ninety two pounds and made the Defendant his Executrix died that after his death he came to the Defendant and demanded of her the said debt who gave to him such answer Forbear me until Michaelmas and then I will pay it you or put you in sufficient security for the true payment thereof And declared further that at Michaelmas aforesaid the Defendant did not pay nor hath found any security and shewed a request to which the Defendant said that the said Testator at the time of the said Contracts for the Velvets and other Wares was within age Assumpsit And upon that Bar the Plaintiff did demur in Law. Egerton Solicitor for the Plaintiff As I conceive these Contracts made by the Plaintiff are not meerly void so that if an Action of Debt or upon the Case had been brought against the Testator himself he could not have pleaded upon the matter Nihil debet or Non Assumpsit or Non est factum but he ought to avoid the matter by special pleading and therefore here it is a good consideration and I conceive that if the Testator at his full age had assumed to pay the debt that that promise would have bound him 9 Eliz. it was the Case of the Lord Grey his Father was endebted to diverse Merchants upon simple Contracts and died seised of diverse Lands which descended to his Son and Heir in Fee the Creditors demanded their debts of the Heir who answered unto them if my Father were endebted unto you I will pay it and upon that promise an Action was adjudged maintainable although the Heir by the Law was not chargeable and also here the Defendant is to have ease and shall avoid trouble of Suits for perhaps if she had not made such promise the Plaintiff would have sued her presently which should be a great trouble unto her and therefore it is a good consideration Cooke contrary No consideration can be good if not that it touch either the charge of the Plaintiff or the benefit of the Defendant and none of them is in our case for the Plaintiff is not at any charge for which the Defendant can have any benefit for it is but the forbearance of the payment of the debt which she was not compellable to pay and as to the suit of the Chancery the same cannot make any good consideration for there is not any matter
and that he would name in it one B. for special Bailiff and promised the Plaintiff that if B. arrested A. by force of the said Capias and suffered him to escape That he would not sue the Plaintiff for the escape and shewed further That he made a Warrant according to the said Capias and therein named and appointed the said B. his special Bailiff who arrested A. accordingly and afterwards suffered him to escape and the Defendant notwithstanding his promise aforesaid sued the Plaintiff for the said escape And it was found for the Plaintiff It was moved in arrest of Iudgment That the promise is against the Law to prevent the punishment inflicted by the Statute of 23 H. 6. upon the Sheriff and it is meerly within the Statute and so the promise void Cooke The same is not any Bond or promise taken of the Prisoner nor of any for him and therefore it is not within the Statute as it was in Danvers Case Wray A promise is within the Statute as well as a Bond but the Statute doth not extend but where the Bond or promise is made by the Prisoner or by any for him And after Iudgment was given for the Plaintiff CLXXXI Mounson and Wests Case Hill. 30 Eliz. In the Common Pleas. IN Trespass by Mounson against West the Iury was charged and evidence given and the Iurours being retired into a house for to consider of their evidence Owen 38. Plowd 520. Co. 1 Inst 227. Dyer 37. they remained there a long time without concluding any thing and the officers of the Court who attended them seeing their delay searched the Iurours if they had any thing about them to eat upon which search it was found that some of them had figs and others pippins for which the next day the matter was moved to the Court and the Iurours were examined upon it upon Oath And two of them did confess that they had eaten figs before they had agreed of their verdict and three other of them confessed That they had Pippins but did not eat of them Where Jurors shall be fined for eating before verdict but it shall not make void the verdict and that they did it without the knowledge or Will of any of the Parties And afterwards the Court set a fine of five pound upon each of them which had eaten and upon the others who had not eaten forty shillings And they would advise if the verdict was good or not for the Iury found for the Plaintiff And afterwards at another day the matter was moved and Anderson was of opinion That notwithstanding the said Misdemeanor of the Iury the verdict was good enough for these victuals were not given to them by any of the Parties to the action nor by their means or procurement Rhodes thought the contrary because some of the Iurors had eaten and some not contrary if all of them had eaten See 14 H. 7. 1. A Iury was charged and before their verdict they did eat and drink and it was holden that upon that Misdemeanor their verdict was void for which cause a venire facias de novo was awarded And it was prayed by the Counsel of the Defendant West That the said Misdemeanor so found by examination might be entred of Record which the Court granted And afterwards at another day the matter was moved again And upon great advice and deliberation and conference with the other Iudges The verdict was holden to be good notwithstanding the Misdemeanor aforesaid See 24 E. 3 24. 15 H. 7. 1. 2 H. 7. 3. 29 H. 8. 37. and 35 H. 8. 55. where it was holden where the eating and drinking of the Iury at their own costs is but fineable but if it be at the costs of the parties the verdict is void And see Book of Entries 251. The Iurors after they went from the Bar ad seipsos of their verdict to be advised comederunt quasdam species sci raisins dates c. at their own costs as well before as after they agreed of their verdict And the Iurors were committed to prison but their verdict was good although the verdict was given against the King. CLXXXII Hunt and Gilborns Case Hill. 30 Eliz. In the Common Pleas. IN Dower brought by Hunt and his Wife against Gilborn The Defendant pleaded That the Land of which Dower is demanded Dower of Gavelkind by Custom Ante. 62 63. 1 Cro. 825. is of the nature of Gavelkind and that the custom is That in Dower of Land of such nature The Wife ought to be endowed of the moity of such Land Tenendum quam diu non maritata remanserit non aliter upon which plea in Bar the Demandants did demur in Law and the Lord Anderson was of opinion That the Custom is strongly pleaded against the Dower in the affirmative with a Negative non aliter and that is confessed by the Demurrer That Dower out of such Land ought to be so allowed and so demanded and in no other manner And by Periam If those words non aliter had not been in the Plea yet the Demandants should not have Iudgment For Dower by moiety non maritatis is as proper in case of Gavelkind as Dower of the third part of Land at the Common Law and as the descent in such case of Lands to all the Sons And afterwards Iudgment was given against the Demandants CLXXXIII The Case of the Provost and Scholars of Queens Colledge in Oxford Hill. 30. Eliz. THe Provost Fellows and Scholars of Queens Colledge in Oxford are Guardians of the Hospital or Meason de Dieu in Southampton And they make a Lease of the Land parcel of the said Hospital to one Hazel for Term of years by the name Praepositus Socii Scholares Collegii reginalis in Oxonia Gardianus Hospitalis c. And in an Ejectione firmae upon that lease It was found for the Plaintiffs and it was objected in arrest of Iudgment That the word Gardianus ought to be Gardiani for the Colledge doth consist of many persons and every person is capable and it is not like unto Abbot and Covent But the whole Court was of opinion that the Exception was not good but that as well the Lease as also the Declaration was good for the Colledge is one body and as one person And so it is good enough Gardianus CLXXXIV Wooden and Hazels Case Hill. 30 Eliz. In the Common Pleas. IN an Ejectione betwixt Wooden and Hazel they were at issue upon Not Guilty and a Venire facias awarded returnable Tres Trinit And the Essoin adjudged and adjorned by the Plaintiff until Michaelmas Term Nisi Prips And at next Assises the Plaintiff not withstanding that Essoin and the adjorning of it procured a Nisi Prius by which it was found for the Plaintiff And now it was moved in Court for the stay of Iudgment because no Nisi Prius ought to issue in the Case Essoin For the Essoin was adjudged and adjorned
until Michaelmas Term by the Plaintiff himself And Leonard custos Brevium said That the words of the Statute of Westminster 2 cap. 27. Postquam aliquis posuerit se in aliquem inquisitionem ad proximum diem allocet ei esson Imports That the Essoin shall not be taken at the return of the Process against the Iury although the Iury be ready at the Bar. Anderson was of opinion That the awarding of the Nisi Prius ut supra is but a misawarding of the Process and then relieved by the Statute And afterwards the case being moved at another day 1 Cro. 367. the Court was clear of opinion That no Nisi Prius ought to issue forth in this case because that the Plaintiff himself by the adjorning of the Essoin cast by the Defendant until Michaelmas Term had barred himself of all Proceedings in the mean time But afterwards it was surmised to the Court on the Plaintiffs part that he the Defendant was not essoined for the name of the Defendant is Edward Hazel and it appeared upon the tryal that Edward Russel was essoined Amendment but no Edward Hazel and then if no Essoin no adjornment and then the Plaintiff is at large c. and may proceed c. But the Remembrance of the Clark was Edward Hazel as it ought to be and yet it was holden of no effect being in another Term And afterwards the Counsel of the Defendant prayed that the Roll in hac parte be amended according to the Remembrance of the Clark But the Court utterly denied that for no Statute gives amendment but in the affirmance of Iudgments and Verdicts and not in defeazance of Iudgments or Verdicts and afterwards it was resolved by the whole Court That Iudgment be entred for the Plaintiff CLXXXV Sir Henry Goodiers Case Hill. 32 Eliz. Intratur M. 29 30. Eliz. Rot. 2116. IN an Ejectione firmae the Case was Sir Ralph Rowlet possessed of certain Lands for years made his Will and ordained Sir Nicholas Bacon Renouncing of an Executorship Owen 44. Office of Executors 54. 1 Cro. 92. 9 Co. 37. Keeper of the great Seal of England Sir Robert Catline Lord Chief Iustice of England Iustice Southcote and Gerrard Attorney General his Executors and died And afterwards the said persons named Executors sent their Letters to the Chief Officer of the Prerogative Court as followeth Whereas our Loving friend Sir Ralph Rowlet Knight lately deceased made and ordained us Executors of his last Will and whereas our business is so great that we cannot attend the execution of the said Will Therefore we have thought good to move the bearer hereof Mr. Henry Goodier one of the Co-heirs of the said Sir Ralph to take upon him the execution of the said Will. And therefore we pray you to grant Letters of Administration in as ample manner as the justice of the cause doth require and afterwards an Entry was made in this manner in the same Court Executores Testamenti praedict executionem inde super se assumere distulerant adhuc distarent And upon that the said Goodier obtained Letters of Administration and granted a Lease to A. for years of which the said Sir Ralph Rowlet died possessed And afterwards Sir Robert Catline claiming as Executor granted the same Term to another c. and all the matter of difficulty was If this Letter written by the Executors be a sufficient Renunciation of the Executorship in Law so as the Executors cannot afterwards claim or use the said authority c. 2. If the Entry of the said Renuntiation be sufficient and effectual And it was argued by Ford one of the Doctors of the Civil Law That as well the Renunciation as the Entry of it is good and sufficient in Law so that none of the Executors could not after entermeddle And he said That in their Law there is not any certain form of Renuntiation but if the meaning and intention of the Renouncer appeareth it is sufficient without any formal Terms of Renunciation And he put many rules and Maximes in their Law to the same purpose Ego dico me nolle esse haeredem are sufficient words to such intent Non vult haeres esse quin ad aliam transferre debet haereditatem Qui semel repudiavit haereditatem non potest eam repetere Quod semel placuit post displicere non potest Variatio non permittitur in contractibus So that after the Executors have signified to the Officer of their Court their pleasure to renounce the Execution of the Will they cannot afterwards entermeddle nam interest reipublicae ut dominia rerum sint in certo And as to the Entry of the said Renunciation inter acta Curiae distulerint et adhuc distarent that was the error of the Clark. And it is Rule in our Law veritas rerum gestarum non vitiatur Errore factorum And the Lord Anderson demanded of the said Doctor how far those words haeres et haereditas did extend in their Law who answered That haereditas comprehends all Chattels as well real as personal Inheritance as well as Chattels for by their Law Haereditas nihilaliud est quam successio in universum jus quod defunctus habuit tempore mortis suae And afterwards the Court gave day to the other party to hear an Argument of their side but the case was so clear That no Professor of the Civil Law would be retained to argue to the contrary And afterwards Iudgment was given That the said Renunciation and the entry of it was sufficient CLXXXVI Littleton and Pernes Case Mich. 30 Eliz. In the Common Pleas. Debt LIttleton brought Debt upon an Obligation against Humphry Pernes who pleaded that the said Obligation was endorced with this condition for the performance of certain Articles and Covenants contained in certain Indentures by which Indentures the Plaintiff first covenanted that Edward brother of Humphry should enjoy such Land until the Feast of Michaelmas next following rendring such Rent at the end of the said Term and the said Humphry covenanted that the said Edward at the Feast aforesaid should surrender quietly and peaceably the said Lands to the Plaintiff and that the said Plaintiff to such of the said Lands as by the Custom of the Country tunc jacebant frisca should have in the mean time free ingress egress c. at his will and pleasure with his servants ploughs c. And as to that Covenant the Defendant pleaded Quod permisit querentem habere intrationem exitum c. in tales terras quales tunc jacebant secundum consuetudinem patriae c. And Exception was taken to this plea because he hath not shewed in certain which Lands they were which then then did lie Frecy according to the custom of the Country which Anderson allowed of but Walmsly strongly insisted to the contrary And he confessed that where an Act is to be done according to a Covenant he who pleads the performance of it ought to
construe terras Dominicales omnes terras Dominicales for the Lands not excepted are terrae Dominicales and so the Count is satisfied by that Evidence c. CXCIII Chamberlain and Stauntons Case Hill. 30 Eliz. In the Common Pleas. CHamberlain brought Debt upon an Obligation against Staunton and upon non est factum Deeds and sealing of them Owen 95. the Iury found this special matter that the Defendant subscribed and sealed the said Obligation and cast it upon a certain Table and the Plaintiff took it without any other delivery or any other thing amounting to a delivery And the Court was clear of opinion that upon that matter the Iury had found against the Plaintiff and it is not like the case which was here lately adjudged that the Obligor subscribed and sealed the Obligation and cast it upon a Table saying these words this will serve the same was held to be a good delivery for here is a circumstance the speaking of these words by which the Will of the Obligor appeareth that it shall be his deed CXCIV Oldfield and Wilmers Case Hill. 30 Eliz. In the Common Pleas. Arbitrament Postea 304. IN Debt upon an Obligation the Defendant pleaded that the Obligation was endorced with condition that the Defendant should stand to the Award of I.S. c. who awarded that the Defendant should pay to the Plaintiff at such a day 100 l. or should find two sufficient Sureties to be bound with him to the Plaintiff to pay the said 100 l. to the Plaintiff by twenty pound a year until the whole sum be paid And pleads further that he had performed the said Award The Plaintiff by Replication saith that the Defendant hath not paid unto him the said one hundred pounds and so in that assigned the breach of the Award and upon the Replication the Defendant doth demur in Law because by the pretence of the Award the Defendant had election either to pay the one hundred pounds at the day or to find two Sureties for the payment of it by twenty pounds per annum c. for so is the Award in the disjunctive But the Court was clear of opinion that the Replication was good for although that the Award be set down and conceived in words disjunctive yet in Law and in substance it is single for as to the finding of Suretis the Award is void and so nothing is awarded but the payment of the one hundred pounds at the day 1 Cro. 4. to which the Plaintiff in his Replication hath fully answered And Iudgment was given for the Plaintiff CXCV. The Lord Dudley and Lacyes Case Hill. 30 Eliz. In the Common Pleas. Audita querela THe Lord Dudley brought an Audita querela against Lacy and upon it a Scire facias against the same party And at the day it was moved by the Counsel of Lacy that in as much as no execution was sued against the person of the Lord upon the Statute Merchant in which the said Lord was bound to the said Lacy so as he was not in prison a Scire facias ought not to issue but a Venire facias And the Court was clear of opinion That it is at the election of the party grieved which of them he will sue scil a Scire facias or a Venire facias See 15 E. 4. 5. by Cooke Scire facias and Venire facias are all one in effect Another matter was moved on the part of Lacy 1 Cro. 208 384. That this Audita Querela ought to be sued in the Chancery and not in the Common Pleas. But the Court was clear of opinion that the party might sue in which of the Courts he would See 16 Eliz. Dyer 332. An Audita Querela upon a Statute Merchant directed to the Iustices of the Common Pleas but upon a Statute Staple the Suit shall be in the Chancery by Audita Querela directed to the Chancellor or by Scire facias directed to the Sheriff quod sit in Cancellaria c. CXCVI. Askew and the Earl of Lincolns Case Hill. 30 Eliz. In the Common Pleas. ASkew was bound to the Earl of Lincoln in a Statute Staple Audita querela the Earl sued execution by which Askew was put in prison and now the friends of Askew offered the mony in Court and cast an Audita Querela for Askew and prayed he might be bailed and the mony remain in Court till the Audita Querela determined But the Earl presently demanded the mony to be delivered to him but the Court denied it and commanded the Prothonotaries to keep the mony until the Audita Querela were determined And let Askew to bail for the costs of suit CXCVII Ward and Blunts Case Trin. 31. Eliz. In the Kings Bench. WArd brought an Action of Trover and Conversion against Blunt of forty loads of Corn Trover and Conversion as unto twenty loads the Defendant pleaded not guilty and as to the residue a special plea upon which the Plaintiff did demur in Law and it was adjudged for the Plaintiff upon which issued a Writ of Enquiry of Damages which is returned It was moved that the Writ of Enquiry of Damages ought not to have issued forth for the Issue doth yet depend untryed and the Book of 34 H. 6. 1. was vouched and there the case was that in Trespass against many one of them made default after a plea pleaded Now a Writ of Enquiry of Damages shall be awarded but shall not issue forth until the plea of the others be tryed and if the Issue be tryed for the Plaintiff then the Enquest who tryed the Issue shall assess damages for the whole and if for the Defendant against the Plaintiff then the Writ which was awarded to issue forth See 44 E. 3. 7. Cook It is in the discretion of the Court to award such Writ or not which Wray granted but it is usual here to grant the Writ presently Gawdy The case in 39 H. 6. is not like this case for in this case the Trespass is divided and as it were apportioned in twenty loads and twenty loads but in the other case not CXCVIII. Smith and Bustards Case Trin. 31 Eliz. Rot. 666. IN an Ejectione firmae it was found by special verdict that one S. was seised of Lands and leased the same to F. for 31 years 10 Co. 129. yeilding and paying twenty pounds per annum at the Font-stone in the Temple Church the Land it self lying in Essex upon the Feasts of the Annunciation of our Lady and St Michael or within twelve days after either of the said Feasts by even portions upon condition that if the said Rent or any part thereof be unpaid by the said space of twelve days Proxime post aliquod festorum vel dierum solutionis inde that then it should be lawful for the Lessor to re-enter T. assigned his interest to Bustard the Defendant at Michaelmas the Rent is behind and the twelfth day after the Lessor
five pounds and that the Obligation was sealed before the day of the Assumpsit supposed and added that the same is the same debt and that the Obligation was made for the same debt And by the opinion of the whole Court the same cannot be a good plea for an Obligation cannot deraign a Contract or an Assumpsit afterwards made And the truth of the matter was that the Obligation was made after the Assumpsit although that the Plaintiff declared of an Assumpsit made after And in that case it was holden that the Defendant might plead the special matter that the Obligation was made after the said Assumpsit absque hoc that he Assumpsit c. CCXV Hawkins and Lawse Case Trin. 32 Eliz. In the Common Pleas. Debt HAwkins brought an Action of Debt against Lawse Executor of one A. for Rent reserved upon a Lease for years made to the Testator 3 Cro. 62 63. The Defendant pleaded fully administred and upon the Evidence it appeared that the said A. made the Defendant his Executor and that he did meddle with the possession of divers goods of the Testaor and so administred and afterwards â—â—â—used in Court and that the Administration was afterwards committed to one B. and that the Inventory of the goods of the Testator came to one thousand pounds And it was given in Evidence for the Defendant that he himself had paid certain debts and that divers persons have recovered against the Administrator divers sums of money amounting to one thousand pounds ultra And it was moved if that evidence did maintain the Issue for the Defendant because that the Defendant had pleaded plene adminstravit which implies an Administration by himself And now upon the Evidence it appeareth that the greatest part of the goods of the Testator were administred by the Administrator Periam If that Administrator who in truth is but a stranger pay any debts with the goods of the Testator without commandment of the Executor the same is not an Administration Administration and the Executor cannot give such matter in Evidence to prove his plea of fully administred Drew Serjeant If an Executor of his own wrong 3 Cro. 62 63. meddle with the goods of the Testator and afterwards the Administrator meddle with the residue and administer them In Debt against the Executor who pleads fully administred if he can prove that he himself hath administred part and the Administrator the Residue the same is good Evidence to maintain his Issue Periam It may be so there but here in our case the Defendant is the very Executor and he hath administred in which case afterwards he cannot refuse and so the Administration is not well committed and is granted without cause and he to whom the Administration is committed is a meer stranger and what he did was without warrant and therefore it is no Administration to prove the Issue And then the whole matter by direction of the Court was found by special verdict And by Periam in this case an Action may be brought either against the Executor of his own wrong or the Administrator but not against both of them joyntly See 21 H. 6. 8. by Yelverton and Portington Periam If the Testator mortgages a Lease for years and dyes and the Executors redeem it with their own monyes the said Lease shall be Assets in their hands for so much as the same is worth above the sum which they have paid for the redemption of it CCXVI Ivory and Fryes Case Trin. 32 Eliz. In the Common Pleas. IT was ruled by the whole Court in this case That if A. make B. his Executor and B. makes C. his Executor and dieth and a Debt is due to A. the first Testator If C. bring an Action of Debt for the said Debt as Executor to B. the Writ shall abate It was moved if an Infant within the age of one and twenty years be made Executor and administration is committed durante minore aetate in whose name the Action shall be brought in the name of the Infant or the Administrator Periam If the Will be proved before the Administration be committed the Action shall be brought in the name of the Infant Executor CCXVII Read and Johnsons Case Trin. 32 Eliz. In the Common Pleas. IN an Action upon the Case betwixt Read and Johnson Assumpsit the Plaintiff declared that where the Defendant was endebted to him 1 Cro. 242. he assumed to pay it And upon Non Assumpsit pleaded this special matter was found that the Plaintiff â—ased unto the Defendant certain Lands for years rendring rent eight pounds per annum and that the said Rent was behind for three years and that the Defendant was not otherwise endebted to the Plaintiff nor made any other promise but the contract upon the Reservation of the Rent And by the clear opinion of the whole Court the Action doth not lye because he hath a proper Action scil an Action of Debt in which no wager of Law lyeth CCXVIII Wright and the Bishop of Norwiches Case Trin. 32 Eliz. In the Common Pleas Quare Impedit Dy. 348. 360. IN a Quare Impedit betwixt Wright and the Bishop of Norwich it was moved if the King hath title to present for Lapse and presents and his Clerk is admitted and instituted but not inducted and dyeth before Induction If now the King shall present for the said Lapse because the Church was not full against the King. And the Iustices were all clear of opinion that the King might repeal such presentment before induction And as to the principal matter the Court seemed to incline that the King might present again CCXIX. Whiskon and Cleytons Case Mich. 30 31 Eliz. In the Common Pleas. Intrat Trin. 30 Eliz. Rot. 1160. Devises IN an Ejectione firmae upon a special verdict found the case was this That C. was seised in Fee and devised the same to Solomon Whiskon his God-son after the death of his Wife and if he fail then he willed all his part to the discretion of his Father and died Solomon survived Post 283. the Father being dead before without any disposition of the Land. Gawdy was of opinion that upon those words that the Father had a Fee-simple as I will that my Lands shall be at the disposition of I. S. by these words I. S. hath a Fee-simple quod Periam concessit and they amount to as much as I will my Land to I. S. to give and sell at his pleasure And by Windham and Periam there is no difference where the Devise is that I. S. shall do with the Land at his discretion and the devise thereof to I. S. to do with it at his discretion CCXX Mich. 31 Eliz. In the Common Pleas. A leased to B. for years and before the expiration of the said Term leased the same by Indenture to a stranger to begin presently and the first Lessee committed Wast A. brought an Action of Wast against the
second Lessee and declared upon a Lease made for years without speaking of the Indenture And Gawdy Serjeant demanded the opinion of the Court if the Defendant might safely plead no Wast And they conceived that it should be dangerous so to do Then it was demanded if the Defendant plead that the Plaintiff had nothing tempore dimissionis whereof he had counted if the Plaintiff might estop the Defendant by the Indenture although he had not counted upon it and if such Replication be not a departure And it seemed to Periam and Leonard Custos brevium that it was not for it is not contrary to the Declaration but rather doth enforce the Declaration CCXXI Mich. 31 Eliz. In the Common Pleas. WAlmesley Serjeant demanded the opinion of the Court upon this matter Land is given to Husband and Wife in special tail during the Coverture they have issue the Husband is attainted of Treason and dieth the Wife continues in as Tenant in tail the issue is restored by Parliament and made inheritable to his Father saving unto the King all advantages which were devolded unto him by the Attainder of his Father the Wife dieth And he conceived that the issue was inheritable for the Attainder which disturbed the inheritance is removed and the blood is restored and nothing can accrue to the King for the Father had not any estate forfeitable but all the estate did survive to the Wife not impeachable by the said Attainder And when the Wife dieth then is the Issue capable to enherit the estate tail Windham and Rhodes prima facie thought the contrary yet they agreed that if the Wife had suffered a common Recovery the sâ—me had bound the King. CCXXII Mich. 31 Eliz. In the Common Pleas. IN an Action upon the Case the Plaintiff declared Assumpsit that he had delivered to the Defendant diversa bona ad valentiam 10 li. the Defendant in consideration thereof did promise to pay to the Plaintiff the Debt owing pro bonis praedictis and did not shew that the Defendant bought the said goods of the Plaintiff and so it doth not appear that there was any Debt and then a promise to pay it is meerly void which was agreed by the whole Court. CCXXIII. Seaman and Brownings Case Mich. 31 Eliz. In the Common Pleas. GEorge Seaman brought Debt upon a Bond against W. Browning and others Executors of one Marshal the condition was Debt that where the said Marshal had sold certain Lands to the Plaintiff if the said Plaintiff peaceably and quietly enjoy the said Lands against the said Marshal c. and assigned the breach in this that the said Marshal had entred upon him and cut down five Elms there upon which the parties were at issue And it was found that A. servant of the said Marshal by commandment of his said Master had entred and cut c. in the presence of his said Master and by his commandment for he is a principal Trespassor And it was so holden by the Court. CCXXIV. Mich. 31 Eliz. In the Common Pleas. IF the Kings Tenant by Knights service dieth his Heir within age 8 Co. 172. and upon Office found the King seiseth the Body and Land yet the Heir during the possession of the King may sell the Lands by Deed enrolled or make a Lease of such Land and the same shall bind the Heir notwithstanding the possession of the King but if he maketh a Feoffment in Fee it is utterly void for the same is an intrusion upon the possession of the King but where the King by Office found is entituled to the Inheritance as that his Tenant dieth without Heir whereas it is false for which the King seiseth in such case the Tenant of the King before his Ouster le mayne cannot make a Lease for years or sell the Land by Deed enrolled The Case depended in London before the Iudges of the Sheriffs Court. The King by colour of a false Office which doth falsly entitle him to the Inheritance is seised of certain Land he who hath right leased the same for years by Deed indented and then an Ouster le mayne was sued and he enfeoffed a stranger And it was holden that the Lease should not bind the Feoffee although it was by Deed indented for the Feoffee is a stranger to the Indenture and therefore shall not be estopped by it 18 H. 6. 22. A stranger shall not take advantage of an Estoppel and therefore shall not be bound by it As if one take a Lease for years by Indenture of his own Lands the same shall bind him but if he dieth without Heir it shall not bind the Lord in point of Escheat CCXXV. Gibbs Case Mich. 31 Eliz. In the Common Pleas. Trover and Conversion 1 Cro. 861. Owen 27. GIbbs brought an Action upon the Case upon Trover and Conversion of a Gelding and the Case was that one P. had stolen the said Horse and sold the same unto the Defendant in open Market by the name of Lister and the said false name was entred in the Toll-book And it was holden clear by the Court that by that sale the property was not altered CCXXVI Mich. 31 Eliz. In the Common Pleas. Owen 45. Hutton 105. 1 Cro. 734. Post 322. TEnant in Socage leased his Lands for four years and died his Heir within the age of eight years the Mother being Guardian in Socage leased the Land by Indenture to the same Lessee for fourteen years It was holden by the Court that in this Case the first lease is surrendred but otherwise upon a Lease made by Guardian by Nurture CCXXVII Kimpton and Dawbenets Case Mich. 31 Eliz. In the Common Pleas. IN Trespass the Defendant did justifie by a grant of the Land where c. by Copy The Plaintiff by Replication saith that the Land is customary Land ut supra and claimed the same by a former Copy The Defendant by Rejoynder saith that well and true it is that the Lord may grant Copies in possession at his pleasure and also estates by Copy in Reversion with the assent of the Copy-holder in possession but all estates granted by Copy in Reversion without such assent have been void It was argued that this custom is not good for it is not reason that the Lord in disposing of the customary possessions of his Manor should depend upon the will of his Tenant at will and the same is not like to the case of Attornment for there the Attendancy is to be respited which is not to be done here for the Copy-holder in possession shall continue attendant to his Lord notwithstanding such a grant in Reversion And see for the unreasonableness of the custom 19 Eliz. 357. in Dyer Sallfords Case It was moved on the other side that the Custom was good enough and 3 H. 6. 45. was vouched That every Freehold of a Manour upon alienation might surrender his Land c. It was adjourned CCXXVIII Marriot and Pascalls Case in a Writ of
Charters of Corporations there is always such a clause per tale nomen implacitare implacitari acquirere c. possint and without their Name they are but a Trunk but contrary in the case of particular persons Land is given primogenito filio J. S. It is a good gift although there be no Name of Baptism Lands given omnibus filiis J. S. is a good name of purchase and if a man be bound in an obligation by a wrong or false Name and in an action brought upon the same if it appeareth upon evidence that he was the same person which sealed and delivered it the same is sufficient and the Bond shall bind him But contrary in the case of a Corporation and we cannot give any thing to a Corporation by circumstances inducing or implying their true name As Land given to the first Hospital which the Queen shall found Ante. 161 162. although that it sufficiently appear That such a one was the Hospital which the Queen first founded yet the gift is void And he denied That the four things remembred before are necessarily required in the Name of a Corporation for if the Queen will found a Corporation as an Hospital by the Name of Utopia the same is well enough without any respect of persons place Founder c. set forth in the Charter And also other things besides the said four things are sometimes necessary in a Corporation As if the Queen will found an Hospital by the Name Quod fundavimus ad roga Christ Hatton Cancel Angliae all the same ought to be expressed in every grant made by or to the said Hospital So Quod fundavimus ad relevandum pauperes and sometimes the number of the persons incorporated if it be in the Charter it ought to be used in all acts made by or to them As Master and sir Chaplains so as the said four things recited before are not so necessary in the Name of a Corporation but so far forth as they are parcel of the Name given to them in the Charter of the Corporation And in our case 1. The place de le Savoy is part of their name set down in the Charter of their Corporation and therefore the same ought to be precisely followed And he relyed much upon the argument of Cook in noting material variances betwixt de le Savoy and vocat le Savoy as de signifies part vocat the whole de signifies the place de facto vocat implyes reputation only There is a place near unto Whitehal called Scotland because that the Kings of Scotland when they came to our Parliament used there to reside as the Lord Treasurer affirmed There is also a place in England called Normandy and another called Callais and also a place here in Westminster called Jerusalem but these Scotland c. but by Reputation so as what difference is betwixt the very Scotland and Scotland here c. such and so much difference is there betwixt the Hospital de le Savoy and the Hospital vocat the Savoy And as to that which hath been objected by Atkinson That that word de signifies as well the whole as part as a Rent granted percipiend de Manerio de D. I confess that this word de hath many significations so that we ought not only to consider what de signifyes of it self but rather to observe what goes before what follows for as saith Hillary intelligentia verborum ex causa dicendi sumenda est And this word de is a material word in the Name of a man therefore also in the name of a Corporation 26 H. 6. 31. Assise by I. de S. and it was found for him and afterwards the Tenant in the Assise brought attaint and in the rehersal of the Assise in the writ of attaint he was named I.S. leaving out de and for that cause the Writ did abate 28 E. 3. 92. Debt brought by the Executor of John Holbech where the Testament was John de Holbech and for want of this word de in the Writ it was abated by Award And in a Praecipe quod reddat against Mich. de Triage he cast a Protection for Michael Triage leaving out de and for such variance the Protection was disallowed and a Petit cape awarded And although the Iudges in their private knowledge know well enough That the Hospital de le Savoy and the Hospital vocat the Savoy be all one yet in point of Iudgment they ought not otherwise receive information but out of the Record and therefore if sufficient matter be not within the Record to inform the Iudges of the Identity of the said two Hospitals their private knowledge shall not avail And he cited the cause of the Lord Conniers where the Parties being at issue and the Iury charged for the trial of it It was found by special verdict That a fine was levyed of the Lands in Question c. but nothing found of the Proclamations whereas in truth the Proclamations were as well given in evidence as the fine But found Quod finis levatus fuit prout per recordum finis ipsius in evidenciis ostensum plenius apparet Now in that case although that the Iustices knew well enough That the Proclamations were expressly given in evidence yet because it did not appear unto them as Iudges out of the Record They would not give Iudgment according to the truth of matter but according to the Record for they cannot take notice if the Proclamations be in the Chirographers Office or not But after it appeared unto them That that defect was but a slip of the Clerk they commanded the Record to be brought before them and the Proclamation to be inserted in the verdict and then gave Iudgment according to the verdict reformed as aforesaid And as to the Case of Martin Colledge cited before he said he was of Councel in it and he knew That the Iudgment there was not given for the cause alledged by Cook but because that this word Scholars was left out in the Lease And he held that if in the principal Case the Lease had been That the Master and Chaplains of the house called the Hospital of the Savoy c. it had been well enough for there is de le Savoy See a good case 36 H. 6. fitz Brief 485. by Danby a Corporation cannot be Tenants of Lands but according to their Corporation and their foundation and their very Name nor they cannot be impleaded nor take Lands by a wrong Name nor purchase nor dispose of their possessions but by their true Name And afterwards the matter was compounded by the mediation of Friends and Fanshaw had the Lease for a certain sum of mony See now Cook 10 Report The Case of the Mayor and Burgesses of Lyn Regis See also Cook 11. Report 18. Doctor Arays Case to this purpose CCXXIX Huson and Webbs Case Mich. 30 31 Eliz. In the Common Pleas. RObert Huson brought an action of Debt against Anne Webb Debt lieth not against
and it shall be intended the Rent mentioned before See 21 H. 7. 30. b. Where Villa West shall be intended Villa praedict 19 E. 4. 1. In a Quare Impedit the Plaintiff doth entitle himself by grant of the next Avoydance cum acciderit and doth not shew in his Count that the same was the next Avoydance and yet the Count was holden to be good for so it shall be intended so here And he said It is not necessary that a Declaration be exactly certain in every point but if one part of it expound the other it is well enough And although the Identity of the Rent doth not appear by the word praedict yet it appeareth by other circumstances as by the days of payment c. and no other Rent can be intended And now this Exception is after Verdict and therefore favourably to be taken And afterwards Iudgment was given for the Plaintiff CCXLI. Musted and Hoppers Case Hill. 31 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared Assumsit p 1 Cro. 149. That where he and one Atkinsal were joyntly and severally bounden by Obligation in fifty pounds to a stranger for the only Debt of the said Atkinsal which Atkinsal died and the Defendant married afterwards his Wife and so the Goods of Atkinsal came to his hands yet the Plaintiff the first day of May after which was the day of payment of the money paid five and twenty pounds for avoiding the Forfeiture of the penalty The Defendant as well in consideration of the Premisses as in consideration that he might peaceably enjoy the Goods of the Testator promised to pay the said sum cum inde requisitus fuer And upon Non Assumpsit the Iury found the payment of the said sum and all the precedent matter And that the Defendant in consideration praemissiorum promised to pay the said sum if he might peaceably enjoy the Goods of the said Testator It was moved in arrest of Iudgment that although here the Iury have found sufficient cause of Action yet if the Declaration be not accordingly the Plaintiff shall not have Iudgment Verdict And here the Plaintiff hath declared upon two Considerations and the Iury hath found but one scil if he peaceably enjoy the Goods of the Testator Also the Plaintiff declared of a simple promise and the Iury have found a Conditional Si gaudere potest c. And so the promise set forth in the Declaration is not found in the Verdict Gawdy was of opinion That the first consideration is good Consideration for the Plaintiff entred into Bond at the request of the Defendant and then the promise following is good But the second consideration is void scil That the Defendant shall enjoy the goods of the Testator c. as if it had been that he should enjoy his own goods And all the Iustices were clear of opinion That the Promise found by the Iury is not the promise alledged in the Declaration and so the issue is not found for the Plaintiff and so the judgment was stayed CCXLII. Creckmere and Pattersons Case Trin. 30 Eliz. In the Kings Bench. Rot. 568. Devise conditional 1 Cro. 146. 1 Roll. 410. 1 Inst 236. b. UPon a special Verdict the Case was this Robert Dookin was seised of certain Lands in Fee and having issue two Daughters devised the same to Alice his Eldest Daughter that she should pay forty pound to Ann her Sister at such a Day the money is not paid whereupon Ann entreth into the moiety of the Land And it was holden by the whole Court that the same is a good Condition and that the Entry of Ann was lawful It hath been adjudged That where a man devised his Land to his wife Proviso My will is That she shall keep my house in good Reparations that the same is a good Condition Wray A man deviseth his Lands to B. paying 40 l. to C. it is a good condition for C. hath no other remedy and a Will ought to be expounded according to the intent of the Devisor CCXLIII Dove and Williots and others Case .. Hill. 31 Eliz. In the Kings Bench. 1 Cro. 160. IN an Ejectione firmae upon a special Verdict the case was That W. was seised of the Land where c. and held the same by Copy c. and surrendred the same unto the use of E. for life the Remainder to Robert and A. in Fee Robert made a Lease to the Defendant E. Robert A. surrendred the said Land scil a third part to the use of Robert for the life of E. the Remainder to the Right heirs of Robert and of another third part to the use of Robert for life the Remainder to E. the Remainder to Richard c. and of another third part to the use of A. and his Heirs After which Partition was made betwixt them and the Land where c. was allotted to Richard who afterwards surrendred to the use of the Plaintiff It was holden That Iudgment upon this verdict ought not to be given for the Plaintiff For the Lessee of Robert had the first possession and that Lease is to begin after the death of E. who was Tenant for life and when E. and he in the Reversion joyn in a surrender thereby the estate for life in that third part is extinct in Robert who hath the Inheritance and then his Lease took effect for a third Part. So that the Parties here are Tenants in Common 1 Inst 200. betwixt whom Trespass doth not lye CCXLIV Bulleyn and Graunts Case Hill. 31 Eliz. In the Kings Bench. Copyhold UPon Evidence to a Iury the Case was That Henry Bulleyn the Father was seised of the Land being Copyhold and had Issue three Sons Gregory Henry andy Thomas and afterwards surrendred to the use of the last Will Devise 1 Cro. 148. and thereby devised the said Land to Joan his Wife for life the remainder to the said Henry and the Heirs of his body begotten Joan died after admittance Henry died without Issue and afterwards the Lord granted it to Thomas and his Heirs who surrendred to the use of the Defendant then his Wife for life and afterwards died without Issue Gregory eldest Son of Henry Bulleyn entred c. Coke When the Father surrendreth to the use of his last Will thereby all passeth out of him so as nothing accrueth to the Heir nor can he have and demand any thing before admittance Wray The entry of Gregory is lawful and admittance for him is not necessary for if a Copyholder surrendereth to the use of one for life who is admitted and dieth he in the Reversion may enter without a new Admittance It was moved by Coke if this Estate limited to Henry be an Estate tail or a Fee conditional For if it be a Fee-simple conditional then there cannot be another Estate over but yet in case of a Devise an Estate may depend upon a Fee-simple precedent but not
of the Contract and being made at the time of the Communication and contract should charge the Defendant but if the promise were at another time it should be otherwise There was a Case lately betwixt Smith and Edmunds Two Merchants being reciprocally endebted the one to the other agreed betwixt themselves to deliver all their Bills and Bonds into the hands of one Smith who promised that he would not deliver them to the parties until all accounts were ended betwixt them and yet he did deliver them and for that an Action brought against him was adjudged maintainable yet there was not any consideration nor was it material for the action is grounded upon the Deceit and so is it here upon the Warranty And of that opinion were Clench and Wray Iustices but Gawdy was of a contrary opinion CCLXII Woodshaw and Fulmerstones Case Hill. 30. Eliz. Rot. 699 In the Kings Bench. WOodshaw Executor of Heywood brought Debt upon a Bond against Richard Fulmerstone and the Writ was dated October Mich. 29 30 Eliz. and the Condition of the Bond was That if Fulmerstone died before his Age of one and twenty years and before that he had made a Ioynture to A. his Wife Daughter of the Testator Heywood Then if the said Defendant caused one hundred pounds to be payed to the said Heywood within three months after the death of the said William that then the Bond should be void and the said William Fulmerstone died 30 September 30 Eliz. which matter he is ready c. The Plaintiff doth traverse absque hoc that the said Heywood died intestate Tanfield It appeareth of Record that the Plaintiff hath not cause of action for this one hundred pounds was to be paid within three Months after the death of William Fulmerstone 1 Cro. 271 325 565. as the Defendant hath alledged which is also confessed by the Plaintiff and this Action is entred Mich. October 30 Eliz. scil within a month after the death of William Fulmerstone and so before the Plaintiff hath cause of action and therefore he shall be barred Gawdy Where it appeareth to the Court that the Plaintiff hath not cause of Action he shall never have Iudgment as in the Case betwixt Tilly and Wordy 7 E. 4. But here it doth appear that the Plaintiff hath cause of Action for where a man is bound in an obligation the same is a duty presently Obligation and the condition is but in defeazance of it which the Defendant may plead in his discharge CCLXIII Windham and Sir Edward Cleers Case Trin. 31 Eliz. In the Kings Bench. ROger Windham brought an Action upon the Case against Sir Ed. C. declared that the said Ed. being a Iustice of Peace in the County of N. and where the Plaintiff was a loyal subject Action upon the Case of sclander 1 Cro. 130. and of good fame all his life time nor ever touched or reproched with any offence of Roâ—ery c. the Defendant malitiose invide machinams ipsum Rogerum de bonis nomine fama et vita deprivare directed his warrant to divers Baylifs and Constables of the said County to arrest the said Plaintiff And it was alledged in the said Warrant That the Plaintiff was accused before him of the stealing of the horse of A. B. by reason of which the Plaintiff was arrested and so detained until he had entred into a Bond for his appearance c. whereas in truth he was never accused thereof nor ever stole such horse and whereas the Defendant himself knew that the Plaintiff was guiltless by reason of which he was greatly discredited c. And it was found for the Plaintiff And it was moved that upon this matter an Action doth not lye for a Iustice of Peace if he suspect any person of Felony or other such Offence may direct his Warrant to arrest him 14. H. 8. 16 Gaudy and Clench If a man be accused to a Iustice of Peace for Felony for which he directs his Warrant to arrest him although the accusation be false the Iustice of Peace is excused but if the party in truth was not accused before the Iustice it is otherwise It was a Case lately betwixt the Lord Lumley and Foord where Foord in a letter written by him had written It is reported That my Lord Lumley seeketh my life If it was not Reported an Action upon the Case lieth but if reported no Action lieth So here if he was accused no Action lieth but if not an Action lieth And afterwards in the principal Case Iudgment was given for the Plaintiff CCLXIV Isleys Case Trin. 31 Eliz. In the Kings Bench. ISley and others were Plaintiffs in an Ejectione firmae and upon the general Issue it was found for the Plaintiffs and 4 days after the verdict given was moved in stay of judgment a special maâ—ter in Law whereof the Iustices were not resolved for the law but took advisement and gave day over and in the mean time one of the Plaintiffs died which matter the Defendant shewed to the Court in further stay of the Iudgment But by Coke the same is not any cause for the Postea came in Quindena Pasch which was 16 Aprilis at which day the Court ought to have given Iudgment presently but took time to be advised and the 19 of April one of the Plaintiffs died And the favour of the Court ought not to prejudice us for the Iudgment here shall have Relation to the 16 of April at which time he was alive and it was so of late adjudged in the Case of Derick James who died the day after the verdict and yet Iudgment was not stayed for the Court after verdict cannot examine surmises and they have not a day in Court to plead and in our case It was but a day of Grace and no entry is made of it Although no plea can be now pleaded after verdict yet as amicus curiae one may inform us of such matter And sometimes in such case Iudgment hath been stayed as 9 Eliz. and sometimes notwithstanding such Exception as 2 Eliz. So as I conceive the matter is much in the discretion of the Iustices And because the same was a hard verdict and much against the Evidence It is good discretion upon this matter to stay Iudgment and such was the opinion of the Court. CCLXV. Steed and Courtneys Case Trin. 31 Eliz. In the Kings Bench. Error 1 Cro. 116. Owen 93. More 691. Prescription to levy a fine not good ERror was brought upon a Fine levied upon a Plaint in a writ of Covenant in the City of Exceter And two Errors were assigned First The Plaint was quod teneat convent de duobus tenementis Whereas in truth the word Tenement doth not comprehend any certainty for in the Word Tenement is understood Messuage Land Meadow Pasture c. and whatsoever syeth in tenure And 11 H. 6. 18. by grant of Lands and Tenements Rent or Common shall pass And an Ejectione firmae
upon a Deed. Hutt 102. Dy. 91. 2 Co. 61. 1 Ma. Dyer 91. and also the wife by her disagreement to it and the occupation of the Land after the death of her Husband hath made it the Lease of the Husband only CCLXXV Rockwood and Rockwoods Case Mich. 31 32 Eliz. In the Common Pleas. Assumpsit 1 Cro. 163. IN an Action upon the case the case was this The Father of the Plaintiff and Defendant being sick and in danger of death and incending to make his Will In the presence of both his Sons the Plaintiff and Defendant declared his meaning to be To devise to the Plaintiff his younger Son a Rent of 4 l. per annum for the term of his life out of his Lands and the Defendant being the eldest Son the intention of his Father being to charge the Land with the said Rent offered to his Father and Brother That if the Father would forbear to charge the Land with the said Rent he promised he would pay the 4 l. yearly to his Brother during the life of his Brother according to the intention of his said Father Whereupon the Father asked the Plaintiff if he would accept of the offer and promised of his Brother who answered he would whereupon the Father relying upon the promise of his said eldest Son forbore to devise the said Rent c. so as the Land descended to the Eldest Son discharged of the Rent and the opinion of the whole Court in this case was clear that upon the whole matter the action did well lye CCLXXVI Petty and Trivilians Case Mich. 31 32 Eliz. In the Common Pleas. Livery of seisin HUmphrey Petty brought Second Deliverance against William Trivilian and upon especial verdict the case was That A. was seised of certain Land and Leased the same for years and afterwards made a Deed of Feoffment unto B. and a Letter of Attorney to the Lessee C. and D. conjunctim vel divisim in omnia singula terras et Tenementa intrate et seisinam inde c. secundum formam Chartae c. Lessee for years by himself makes Livery and seisin in one part of the Land and C. in another part and D. by himself in another part It was first agreed by the Iustices that by that Livery by Lessee for years his Interest and Term is not determined for whatsoever he doth he doth it as an Officer or Servant to the Lessor Secondly It was agreed That these several Liveries were good and warranted by the Letter of Attorney especially by reason of these words In omnia singula c. So as all of them and every of them might enter and make Livery in any and every part And so it was adjudged CCLXXVII Rigden and Palmers Case Mich. 31 32 Eliz. In the Common Pleas. RIgden brought a Replevin against Palmer who avowed for damage feasant in his Freehold The Plaintiff said Replevin That long time before that Palmer had any thing he himself was seised until by A. B. and C disseissed against whom he brought an Assise and recovered Avowry and the estate of the Plaintiff was mean between the Assise and the recovery in it The Defendant said That long time before the Plaintiff had any thing One Griffith was seised and did enfeoff him absque hoc that the said A. B. and C. vel eorum aliquis aliquid habuere in the Lands at the time of the Recovery Walmsley Iustice was of opinion That the Bar unto the Avowry was not good for that the Plaintiff hath not alledged That A.B. and C. Ter-Tenants tempore recuperationis and that ought to be shewed in every recovery where it is pleaded And then when the Defendant traverseth that which is not alledged it is not good Windham contrary For the Assise might be brought against others as well as the Tenants as against disseisors But other real actions ought to be brought against the Ter-Tenants only and therefore it needs not to shew that they were Ter-Tenants at the time of the Recovery and also the traverse here is well enough Another Exception was taken because the Avowry is That the place in which conteineth an 100 Acres of Land The Plaintiff in bar of the Avowry saith that the place in which c. conteins 35 Acres c. but that Exception was not allowed for it is but matter of form is helped by the Statute of 27 Eliz. Another Exception was taken as to the hundred of Cattel and doth not shew in certain if they were Ewes Sty 71. 264. or Lambs or how many of each which also was dissallowed for the Sheriff upon Returno habendo may enquire what cattel they were in certain and so by such means the Avowry shall be reduced to certainty CCLXXVIII RUssell and Prats Case Mich. 31 32 Eliz. In the Exchequer Chamber RUsell brought an action upon the case against Prat and declared That certain goods of the Testator casually came to the Defendants hands and upon matter in Law Iudgment was given for the Plaintiff sed quia nescitur quae damna Error c. Ideo a writ of Enquiry of Damages issued and now Prat brought a Writ of Error in the Exchequer Chamber upon the Statute of 27 Eliz. cap. 8. But note That the Iudgment was given before the said Statute but the Writ of Enquiry of Damages was retorned after the said Statute Writ of Enquiry of Damages the said Statute doth not extend but to Iudgments given after the making of it And it was moved That the said Iudgment is not to be examined here but by the clear opinion of Anderson Manwood Windham Walmesley Gent and Clark Iustices of the Common Pleas and Barons of the Exchequer the Writ of Error lyeth here by the Statute 1 Cro. 235. for in an action of Trespass as this case is full judgment is not given until the Writ of damages be retorned And if before the Retorn of it any of the parties dieth the Writ shall abate and the first Iudgâ—ent which is given before Award of the Writ is not properly a Iudgment but rather a Rule and order and so in a Writ of accompt where Iudgment is given that the Defendant computet cum querente he shall not have Error upon that matter for it is not a full Iudgment See 21 E. 3. 9. So as to the Iudgment in a Writ of Trespass scil That no Writ of Error lyeth before the second Iudgment after the Return of the Writ of Enquiry of Damages are given And also it was holden by all the said Iustices and Barons That an Executor shall have an action upon the case de bonis testatoris casually come to the hands and possession of another Action de bonis Testatoris and by him converted to his own use in the life of the Testator and that by the Equity of the Statute of 4 E. 3. 7. de bonis asportatis in vita Testatoris
should beget on the said woman should come unto the age of 21. years and then to the use of the woman during her widow-hood They are married the Husband dieth without issue the Wife shall hold the land But by him if this use had bin raised by way of Covenant it should be otherwise Coke Admit that all the uses be good yet his meaning was That the debts and legacies being paid W. Paget should have his land for it is provided by the Indenture That when the debts legacies are paid the estate for 24. years shall cease Manwood The payment of the debts cannot end that which never was and as to the two first estates they were never out of him therefore they came unto the Q. by his attainder Coke After debts and legacies paid all other estates but the estate of W. Paget cease therefore William Paget shall have the Land. And the rule of Shelly 35 H. 8. 56 is worthy to be received scil That learning is honest wished to be used that every man learned in the Law do construe Deeds according to the meanings of the makers Manwood A Feoffment to the use of Salisbury Plain for the life of I. S. the Remainder over the same use shall come into possession presently for there is not any person capable of the particular estate but where the first use is limited to a Bastard the remainder over there the Remainder shall not come into possession presently for the Bastard is a person capable but not by such form of conveyance in consideration of natural affection Popham In the case of Bastard there was an estate for life executed to the Father in possession then a Remainder to a Bastard the Remainder to the Sons lawfully begotten but here in our Case no estate is created to precede the estate of William Paget upon which the Remainder can depend At another day It was argued by Coke It is to be agreed on both sides That the estate for four and twenty years is meerly void and also the first use limited to Trentham and others and it is not reason that the use limited to William Paget should expect until the four and twenty years be expired by effluxion of time and to that purpose he cited Cranmers Case where an estate in use was limited to Cranmer for life the Remainder to his Executors for one and twenty years the Remainder over in tail to his Son and Heir c. Cranmer is attainted of Treason and Heresy so as he could not make a Will or Executors there it is holden That the term is void because no Executors and that the Remainder in use should vest presently and should not expect until the said number of years expire by effluxion of time And difference hath been put betwixt the case of Cranmer and the Case at Bar because in Cranmers Case there was a possibility at the beginning that the Term for years might be good for the term became void by matter ex post facto sci By the attainder of him which disabled him to make Executors but in the Case at Bar the term for twenty four years was expresly void ab initio But that difference is without reason for what reason is there That the Remainder should be father off the possession when the estate for years is originally void than when it becomes void by matter ex post facto Suppose that the Lord Paget had by Indenture covenanted as above for the two first uses being in truth void in Law and afterwards by another Indenture reciting That whereas he had covenanted That in consideration That A. with the profits of his Lands should pay his debts c. to stand seised of the said Lands for his own life Now he covenants to stand seised to the use of William Paget and his Heirs should not he presently be seised to the use of William Paget and his Heirs although the words be That then and from thenceforth For I hold it a clear case that his estate begins presently being limited to begin upon a void estate althouh the limitation be by words de futuro And to this purpose he cited the case 3 E. 6. Br. Lease 62. A man leaseth for years Habendum post dimissionem inde fact to J.S. finitam where no such demise is made the same Lease shall begin presently If an Indenture be made to a Monk and another Habend to the Monk for one and twenty years and after the end of that to the other for one and twenty years the other shall have it presently And he put a Case 7 E. 3. in the new Impression 19. and in the old Impression 317. Where one Maud brought a Formedon in the Remainder and counted that one Hamond was seised and gave the said Tenements to one Robert c. in tail and that for want of such issue that the Tenements should return to the said Hamond for life the Remainder to the Demandant in Fee and counted further That Robert is dead without issue and that Hamond is also dead c. It was holden although that the Remainder reserved to the Donor be void yet the Remainder over in Fee is good c. And in that case although that the Remainder in Fee was future sci After the death of Hamond the estate reserved to Hamond meerly void that originally not by matter ex post facto yet the Remainder in Fee was good and should begin presently upon the death of Robert without issue and should not expect the death of Hamond Mr. Attorney hath given a Rule That the intent of the parties is the Direction of uses as also of Wills and therefore I will put one Case of Wills 37 H. 6. 17. If a man devise Lands to a Monk for four and twenty years and after the same ended to another in Fee here the Monk being a dead person cannot take the estate limited to him therefore it is void but the Fee limited to the other is good and shall take effect presently If it be so in a Will why not so also in uses For the intents of the parties do direct the constructions of both And our case here is a stronger case than the case cited 37 H. 6. 36. for there where Land is devised to a Monk for life there may be colour of an Occupant during the life of the Monk who might take it although the Monk himself cannot take it and so the Remainder doth not take effect presently as to the possession but shall stay till after the death of the Monk But here is not any colour of an Occupancy for the estate here is a Lease for years which cannot admit an Occupant And see also 37 H. 6. 36. If a man devise that his Feoffees shall make an estate to I. S. for life the Remainder over to C. in Fee and I. S. will not take his estate C. shall have a Sub-poena against the Feoffees to make an estate to him
33 Eliz. In the Common Bench. IT was found by special Verdict that Berwich and Tesdel seised of certain Lands conveyed the same to Sir Thomas Cotton for life Fines levied to use Co. 2 Inst 519. 1 Cro. 219. the Remainder to VVil. Cotton primogenito filio suo haeredi masculo sic de primogenito ad primogenitum dict VVilliam the Remainder to the right Heirs of the body of Sir Tho. Cotton and VVil. Cotton lawfully issuing the Remainder to the right Heirs of Sir Tho. Cotton VVil. had Issue a Son born here in Eng. and went beyond Sea to Antwerp and there continuing and his Son being within age in England Sir Thomas Cotton levied a Fine of all the Land sur conusans de droit come ceo c. And afterwards by Indenture convenanted to stand seised to the use of himself for life and afterwards to the use of Rober Cotton his Son in Fee William died at Antwerp his said Son being within age in England Sir Tho. Cotton died Robert entred and leased the Lands for years to Sary and the Infant Son and Heir of William leased the Land to one Chewn at Will who entred and ousted Sary who thereupon brought Ejectione firmae It was here holden by the Court that Sir Tho. Cotton was Tenant for life the Estates Remainder to William for term of his life the Remainder to the Heirs of both their bodies issuing So as unto one Moyety Sir Thomas Cotton had an Estate tail dependant upon the said Estates for life and so the Fine levied by him was a Bar to the Issue of William for a Moyety And as to the other Moyety they held that the said Fine was not any Bar but that the party interessed at the same time might avoid the Fine at any time during his Nonage five years after for Wil. his Father was not bound by the Statute of 4 H. 7. because at the time of the Fine levied he was beyond the Seas and although he never returned but died there yet by the equity of the Statute his Issue shall have five years after his death to avoid the Fine if he were of full age and if he were within age then during his Nonage and five years after At another day the Case was argued and put in this manner viz. Lands were given to Sir Thomas Cotton for life without Impeachment of Wast the Remainder over to Cheny Cotton his eldest Son primogenito filio haeredi Masculo of the said Cheny sic de primogenito filio in primogenitum filium the Remainder to the Heirs Males of the body of the said Cheny for want of such Issue the Remainder to Wil. Cotton his second Son primogenito filio in primogenitum filium the Remainder over to the said Sir Thomas and the said William and the Heirs Males of their bodies lawfully begotten Cheny Cotton died without Issue William having Issue went beyond the Sea Sir Thomas Cotton 19 Eliz. levied a Fine with Proclamation and afterwards William the Father died in Antwerp his Son being within age Sir Thomas by Indenture limited the use of the Fine to himself for life the Remainder over to Robert Cotton his third Son in Tail Sir Thomas died but it doth not appear at what time William the Son being yet within age entred but non constat quando and 31 Eliz. leased the Lands to the Defendant at Will. Drue Serjeant argued for William Cotton And he conceived that William the Father had an Estate-tail and then the entry of William the Son was congeable for the whole But admitting that it is not an Estate-tail in VVilliam the Father for the whole yet he hath by the second Remainder an Estate-tail in the Moyety and then his Entry good as to one Moyety and then Robert being Tenant in Common of the other Moyety Tails his Lessee without an actual Ouster cannot maintain an Ejectionae firmae against the Lessee of his Companion And he conceived here is a good Estate-tail in VVilliam Cotton by virtue of the Limitation to William primogenito filio haeredi Masculo ipsius Guliel sic de primogenito filio in primogenitum filium c. for according to the Statute of VVest 2. the will of the Donor ought to be observed and here it appeareth that the intent of the Donor was to create an Estate-tail although the words of the Limitation do not amount to so much And the Estates mentioned in the Statute aforesaid are not Rules for Entails but only Examples as it is said by Trew 33 E. 3 F. Tail 5. see Robeiges Case 2 E. 2. 1 Fitz. Tail and 5 H. 5. 6. Land given to A. and B. uxori ejus haeredibus eorum aliis haeredibus dicti A. si dict haeredes de dictis A. B. exeuntes obierint sine haeredibus de se c. and that was holden a good Entail so a gift to one and his Heirs si haeredes de carne sua habuerit si nullos de carne sua habuerit revertatur terra and adjudged a good tail So 39 E. 3. 20. Land given to Husband and Wife uni haeredi de corpore suo ligitime procreat uni haeredi ipsius haeredis tantum And that was holden a good Tail and so he conceived in this Case that although the words of the Limitation are not apt to create an Estate-tail according to the phrase and stile of the said Statute of VVest 2. yet here the intent of the Donor appears to continue the Land in his Name and Blood for VVilliam the Son could not take with his Father by his Limitation for he was not in rerum natura and therefore all shall vest in VVilliam the Father which see 18 E. 3 Fitz. Feoffments Fait 60. Now it is to see if upon the Limitation to Sir Thomas Cotton and VVilliam his Son by which the Remainder is limited to Sir Thomas Cotton and VVilliam and the Heirs Males of their bodies issuing the said Sir Thomas Cotton Wil. have a joynt Estate-tail in respect that the Issue of the body of the Son may be Heir of the Body of the Father and so because they might have one Heir which shall be inheritable to his Land it shall be one entire Estate-tail in them But he conceived that they are several Estates-tail and that they are Tenants in Common of an Estate tail 3 4 Phil. Mar. Dyer 145. Land given to the Father and Son and to the Heirs of their two Bodies begotten the Remainder over in Fee the Father dieth without other Issue than the Son only and afterwards the Son dieth withou Issue a stranger abates Or if the Son hath made a Discontinuance if he in the Remainder shall have but one or two several Formedons was the Question And by Saunders Brook and Brown but one Formedon and Quaere left of it yet admitting that yet notwithstanding that it might be
their Boats at the said Bridge of Gravesend have used to do suit at the said Court and there have used to enquire of all mis-orders and mis-demeanors of Water-men there and that the said Abbots c. have used to have the Fines and Amercements of the same Court and conveyed the said Mannor to the Plaintiff and that at a Court there holden The Defendant being sworn with the residue of the Enquest to enquire of such dis-orders refused to give his Verdict for which for the said contempt the Defendant by the then Steward was amerced twenty shillings for the which Amercement the Plaintiff brought an Action of Debt It was moved by Beaumount Serjeant That the Action did not lye for the Prescription upon which the Action is grounded is not good first he claims to have this Court within his Mannor and as a thing appertaining to it and yet he claims suit at his Court of all the Inhabitants of the said two Parishes to have them Suitors at it being meer strangers to the Mannor which do not hold of it for although it be alledged that the said Mannor doth extend in the said Parishes yet the same doth not prove that every part of the said Parishes is within the said Manor and if it be not so the Prescription may extend as well to all the County of Kent as well as to the said two Parishes for such a Prescription cannot bind but those which are Tenants of the said Manor and cannot extend to strangers which see 21 H. 7. 40. The Case of Pound-breach Secondly it is not alleadged here that the Steward ought and had used to assess Amercements for by the common Law no Steward hath authority to assess Amercements or Fines in a Court Baron for there the Suitors are Iudges not the Steward that this Water-Court is a Court Baron it appeareth by the Declaration for there it is said that it is a Court belonging to such a Manor and that prima facie shall be meant a Court Baron if the contrary be not shewed vi Fitz. 75. g. Thirdly it is not shewed that the Amercement was affered which see ib. 75. Harris Serjeant to the contrary This Court upon the whole matter is in nature of a Leet for the reformation of mis-orders between the Watermen and the prescription here will warrant such a Court well enough And there are many Courts in England which are not Court Barons but grounded upon Prescription 40 E. 3. 17. The Court before the Chancellor of Oxford Prescription to have Swan mote and it is reason that this Prescription should hold place for here is quid pro quo for Watermen receive their carriage and loading at this Bridge and also discharge their loading there and they use to fasten their Boats there and therefore in lieu of that benefit it is reason that they be attendant at the Court which is upon the said Bridge and upon that reason is the Prescription of Toll Traverse 5 H. 7. 9. And to have a Land Bird 2 R. 3. 15. And Toll of every Vessel which passeth the River 21 H. 7. 16. And this Court may be a Court within the Manor and yet no Court Baron but in the nature of a Leet and the Prescription shall be good in Law by reason of the recompence to the Suitors and then if it be not a Court Baron but rather in the nature of a Leet then it follows that the Suitors are not Iudges but the Steward and it behoves not to prescribe for the Amercement for that is incident to a Court Leet for otherwise how can the Suitors be compelled to do their suit at it or their defaults or contempts at the same be punished and as to the affering of the Amercement it needs not here for it is a Fine for the open contempt and despite done unto the Court and not an Amercement and it may well be assessed by the Steward alone vi 23 H. 8. Br. Leet 37. Drill Serjeant to the contrary For this Prescription is not reasonable to drive strangers to do suit at a Court Baron for there is sufficient consideration in the Case of Tenants of the Manor for it may be at the beginning the Tenancies were given upon such consideration to do such suit But in the principal case the Prescription is their ground and therefore unreasonable because without consideration 22 E. 4. 43. see the case there and 21 H. 7. 20. A custom alleadged that if any Tenant distrain the Beasts of another Damage Feasant That he ought to bring such Beasts to the pound of the Lord of the Manor and if not That at the next Court he should be amerced twelve pence and the same was holden no good custom because against common Right and common Law. Puckering Serjeant If this Court shall be reputed in Law a Court Baron then the Prescription for the maner of it is not good for in such case the Amercement cannot be assessed by the Steward But he held that this Court is in the nature of a Court Leet and not a Court Baron and all Inhabitants within the Precinct of it are bounden to do their suit at it by reason of their Resiancy their trade there if they have Boats or shares in Boats and such Court is for the better government of such Watermen and the exercise and practise of their trade and for the redressing of misdemeanors betwixt them and so this Court hath a reasonable commencement being instituted for the publick good and if customs which concern the private benefit of any be allowable as the Mayor and Burgesses of a Town prescribe to have of every Tun which cometh in any Ship into their Port and put upon the Land 6. d. for Toll See 21 H. 16. A fortiori a Custom or Prescription which concerns the publick good is good it is not strange that such Court hath been maintained by Prescription for the Court of Stanneris is so without any commencement or erection but by Custom And although that Toll cannot be paid at any Market for things brought to Market but for things sold yet by custom Toll shall be paid for every thing brought to Market and for the standing of the Seller there for the sale of Victuals is for the good of the Common-wealth which thing is the ground of the Prescription in the principal Case therefore the Prescription in the manner of it is good and if the prescription be good for the Court then to have a Steward to keep the Court to assess Fines for contempts and disorders is good without any special prescription for it is incident to it Periam Iustice If it be a Court-baron then cannot the Steward impose or assess any Fine which Windham granted but he said it is not a Court-baron but a Court by prescription Periam If the Plaintiff claim it as belonging to his Manor it shall be intended a Court-baron but yet a man may have a Court within
Entry holden lawful But Error was brought upon it And also Calthrops case was cited to the same purpose 16 Eliz. Dyer 336. This estate limited to Ambrose doth refer to the estate limited to Muriel and Ann and not to the time for ever the first estate is to be respected as 23 Eliz. Dyer 371. He in the Remainder in Fee upon an estate for life deviseth it to his Wife yielding and paying during her natural life yearly 20 shillings and dieth living Tenant for life the Rent shall not begin until the Remainder falleth So as the general words refer to the beginning of the estate although the words imply that the Rent shall be paid presently And see also such construction 9 Eliz. 261. A Lease was made for thirty years and four years after the Lessor makes another Lease by these words Nos dictis 30 annis finitis dedisse concessisse c. Habend tenend a die confectionis praesentium termino praedict finito usque terminum c. And although prima facie the beginning of this Term seems incertain yet the Iustices did respect the former estate and so the Lessee hath the Interest of the Term from the making of the Deed but no estate until the first Term expire Then Ambrose before his age of 21 years levying a Fine the Fine shall not bind the Feoffee for it enures only by way of conclusion and so binds parties and privies but not a stranger And the party needs not to plead against this Fine quod partes to the Fine Nihil habuerunt for that appeareth upon their own shewing Wiat contrary The state of Ambr. accrues and rises when any of the said times come first full age return death for the words are And after the return of Ambrose from beyond the Seas and the age of 21 years or death c. This word or before death disjoyns all and makes the sentence in the Disjunctive and he cited a case lately judged in the Common Pleas A Lease was made to Trewpeny and his Wife for one hundred years if he and his Wife or any Child or Children betwixt them begotten should so long live the Wife died without Issue the Husband held the Land c. for the Disjunctive before Child made the sentence Disjunctive Gawdy Iustice That had been Law if no such word had been in the Case And Wiat said That although the return be incertain yet it is certain enough that he shall come to the age of 21 years or dye And also this is by way of use which needs not to depend upon any estate and if the Remainder shall vest presently upon his return then it would be doubtful what Remainder it is if it be a Remainder depending upon the estate for the life of Ann and Muriel or for years i.e. until Ambrose shall come of the age of 21 years But be it incertain yet the Fine is good for here is a Remainder in Ambrose and both are but particular estates and there is not any doubt but that one may convey by Fine or bar by Fine such contingent uses for which see the Statute of 32 H. 8. All Fines to be levied of any Lands intailed in any wise to him that levieth the Fine or to any his Ancestors in possession reversion c. which word use goes to contingent uses for at the time of the making of that Statute there was no other use Fenner Iustice remembred the Case adjudged M. 30 31 Eliz. betwixt Johnson and Bellamy 2 Len. 36. which ruled this Case Gawdy Iustice Here is a certainty upon which the Remainder doth depend i. e. the death of Ambrose but the Case had been the more doubtful if no certainty at all had been in the Case Atkinson contrary Here the Lord Vaux is Tenant for life the Remainder to George in tail now when the Lord Vaux levies a Fine this is a forfeiture and then the Entry of George is lawful It hath been objected on the other side that this Remainder was future and contingent and not vested therefore nothing passed to George by Ambrose The words are quousque Ambrose shall return This word quousque is a word of Limitation and not of Condition and then the Remainder may well rise when the Limitation hapneth It hath been said that this Remainder is contingent and then the Remainder which is to vest upon a contingency cannot be granted or forfeited before that the contingent hapneth And he cited the Case of 14 Eliz. 314. Dyer A Fine is levied to A. to the use of B. for life the Remainder to E. in Tail the Remainder to B. in fee. Proviso That if B. shall have Issue of his Body that then after such Issue and 500 l. paid to c. within six months after the birth of such issue the use of the said Lands after the death of the said B. and the said six months expired shall be to the said B. and the heirs of his body And it was holden that before the said contingent hapneth B. had not any estate tail for there it was incertain if the said contingent would happen but in our case the contingents or some of them will happen or run out by effluxion of time and that makes the Remainder certain in Ambrose And he also argued that the Limitations are several by reason of the Disjunctive and the last part of the sentence and that the said sentence is in the Disjunctive appeareth by the subsequent words which of the said days or times shall first happen And then the return of Ambrose for that first hapned vests the Remainder in him and therefore the Plaintiff ought to be barred Buckley contrary The estate of the Daughters doth depend upon a Copulative i.e. the return of Ambrose and his full age and both is but one Limitation it is clear that the first Limitation is upon a contingent and the remainder cannot vest until both are performed And as to that which hath been said that there is a certain Limitation i. e. the return of Ambrose 18 Eliz. the Case was Lands were given to Husband and Wife the Remainder to such of them as should survive the other for years the Husband makes a Lease for years and dieth it was holden that although the Limitation was upon a certain estate yet because it is not known in which of the parties the estate secondly limited shall begin the Lease is void So here it is not certainly appointed when the estate limited to Ambrose shall begin upon the return full age or death of Ambrose and he said that here are but two times of Limitation first return and full age second death return and full age determines the estate of the Daughters and also the death if it shall first happen and if these three times shall be construed in the Disjunctive 2 Len. 2â— the same would overthrow the estate of the Daughters which is an estate for years determinable upon the death of themselves or Ambrose
was moved in arrest of Iudgment that it appeareth upon the Plaintiffs own shewing that the Plaintiff hath the Free-hold and therefore he ought to have an Assize but the same was not allowed and therefore the Plaintiff had Iudgment CCCXXXIV Kensam and Redings Case Trin. 33. Eliz. In the Kings Bench. THe Case was Grants of the King 1 Cro. 244. Hob. 170. That the Queen by her Letters Patents granted the Site of the Manor of Brokeley lying in W. and all the Lands Pastures Woods Vnder-woods and Hereditaments parcel or appertaining to the said Site exceptis omnibus grossis arboribus boscis maremio and further in the said Letters Patents there was a Proviso that the Lessee should have sufficient House-boot and Hedge-boot c. And if notwithstanding the said Exception the Lessee should have the Vnderwoods was the question And it was argued that the Lessee should have subbois i. e. Vnderwoods for that is granted by express words and the exception extends only grossis arboribus for this word grossis in the exception extends to all that which follows Gawdy Iustice If it were in the case of a common person it is clear that upon such matter the Vnderwoods are not excepted 7 E. 6. Dyer 79. A Lease is made of a Mannor except Timber and great Woods the Vnderwoods shall pass Fenner Iustice The Proviso that the Lessee should have House-boot shews the Queens intent that the Vnder-woods should not pass Wray If this word bois in the exception should not extend to Vnder-woods it should be vain and signifie nothing which should be hard in the Case of the Queen CCCXXXV Trin. 33. Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared of Trover and of a Bag of mony and the conversion of it Trover and Conversion 1 Cro. 97. 201 555 693. The Defendant pleaded that the Bag of mony was delivered to him as a pawn to keep until A. and B. were agreed which of them should have it and pleaded further that A. and B. were not yet agreed who of them should have it for which cause he kept it absque hoc that he converted it to his own use upon which the Plaintiff did demur in Law It was moved that the Conversion is never traversable Wray Generally Conversion is not traversable but upon such special matter as is here Or if A. lend money to B. and B. delivereth a thing of the value to A. in pawn now the Conversion is traversable see the same case 4 E. 6. Br. Action upon the Case 113. so here Fenner agreed with Wray CCCXXXVI The Bishop of Lincoln and Cowpers Case Mich. 33. Eliz. In the Kings Bench. Prohibition THe Bishop of Lincoln sued a Prohibition against Cowper who had libelled against him in the Spiritual Court for Tithes out of the Manor of D. Tithes 1 Cro. 216. Post 331 332. And the Bishop did suggest that he and all his Predecessors had been seised of the said Manor and that as long as it was in their possessions had been discharged of Tithes and shewed that in the time of E. 6. the said Manor was conveyed to the Duke of Somerset in Fee and afterwards was re-granted to the Bishop and his Successors It was moved That the Prescription was not good because de non decimando And admit that the Prescription be good that same is interrupted by the seisin of the Duke of Somerset and although that the Manor be re-assured to the Bishop of Lincoln yet the Prescription is not revived as Homage Ancestrel if it be once in a Forrain Seisin although it be re-assured yet it is not revived But by Wray Gawdy and Fenner The Prescription is good in the Case of a Spiritual person but not in the case of a common person And they all were clear of opinion that the Prescription is not gon by this Interruption for Tithes are not issuing out of the Lands neither can Vnity of possession extinguish them neither are they extinguished by a release of all right of Land c. See for this Case Co. 11. part of his Reports in the Case of Pridle and Napper CCCXXXVII Dethick King of Arms Case 33. Eliz. In the Kings Bench. Indictment 1 Cro. 224. Yelv. 34. Noy 250. Misnosmer in an Indictment WIlliam Dethick against Garter King of Arms was indicted upon the Statute of 5 E. 6. for striking in the Church-yard For that the said Dethick in Pauls Church-yard in London struck I.S. It was moved If Cathedral Churches be within the meaning of the Statute The Court was clear of opinion that they were And afterwards the Defendant pleaded that before the Indictment found he was created and crowned by the Letters Patents of the Queen which he shewed chief and principal King of Arms and it was granted by the said Letters Patents that he should be called Garter and that that name is not in the Indictment and demanded Iudgment The Kings Attorney by Replication said That by the Law of Arms and Heraldry every one who is made King of Arms before he receives his Dignity ought to be led betwixt two Officers of Arms by the Arms before the Earl Marshal of England or his Deputy and before him are to go four Officers of Arms whereof the one is to bear his Patent another a Collar of Esses the third a Coronet of Brass double guilt fourthly a Cup of Wine and his Patent shall be read before the Earl Marshal and afterwards his Coronet shall be set upon his Head and the Collar of Esses about his neck and afterwards the Wine poured upon his Head And that the Defendant had not received these Ceremonies for which cause he is not King of Arms nor to be called upon to which the Defendant did demur in Law. Broughton argued for the Defendant and he took Exception to the Replication because it is pleaded there that secundum legem Heraldorum Garter upon his Creation ought to receive c. of which Law this Court cannot have Conusance and therefore the Replication ought to be scil Secundum legem Angliae If in Appeal the Defendant wage Battel although that belongs unto Arms and Heraldry yet it shall be pleaded according to the Law of the Land and shall not speak of the Law of Arms. So if an Infant be made a Knight and he be to plead in discharge of his Wardship he shall plead according to the Law of the Land and yet the degree of a Knight belongs to the Law of Arms 11 E. 3. Dower against the Earl of Richmond who was also Duke of Britain who pleaded to the Writ That he was Duke of Britain and not so named in the Writ but the Court did not regard it for they cannot have knowledge of it so not here of the Law of Heraldry Also this Court cannot write to the Heralds to certifie it as they may to the Marshal of the King or to the Bishop But we have sufficiently
chargeth the Defendant with cutting of Wood without the assent and assignment of the Lessor so he would compel us to prove more than we ought for if he did it with their assent only or by their assignment only it is sufficient but if the Covenant had been in the copulative both was necessary And for the nature of Copulatives he cited the Case where two Churchwardens bring an Action of Trespass the Defendant pleads That the Plaintiffs are not Churchwardens upon which they are at Issue The Iury find That the one was Church-warden and the other not and for that the Plaintiffs could not have Iudgment for if the one of them be not Churchwarden then the Plaintiffs are not Churchwardens for the copulatives ought not to be disjoyned And he cited the case lately ruled in the Common Pleas betwixt Ognel and Underwood concerning Crucifield Grange A. leased unto B. certain Lands for forty years B. leased part of the same to C. for ten years A. grants a Rent-charge out of the Lands in tenura occupatione B. It was resolved That the Lands leased to C. should not be charged with that Rent for although it was in tenura B. yet it was not in his occupation and both are exquisite because in the copulative So here the Lessee may cut Wood with the assent of the Lessor without any assignment Also here the substance of the covenant cannot charge the Defendant for although it be in the Negative yet it is not absolute in the Negative but doth refer unto the covenant precedent for the words are That the Lessee shall not cut Woods aliter quam according to the intent of the Indenture where the covenant precedent is not that the Lessee shall not cut Woods but in the Dole but that the Lessor might cut down any Trees in the Dole leaving sufficient for the Lessee which covenant in it self doth not restrain the Lessee to cut down any Trees in any part of the Lands demised nor abridgeth the power which the Law giveth to him by reason of the demise Then when this last covenant comes i. e. That the Lessee will not cut aliter then according to the meaning of the Indenture without the assent c. the same doth not restrain him from the power which the meaning of the Indenture gives and so no breach of covenant can be assigned in this For by virtue of the Lease the Lessee of common Right may take necessary Fuel upon any part of the Land leased Also this first covenant being in the Affirmative doth not abridge any Interest as 28 H. 8. 19. The Lessor covenants That the Lessee shall have sufficient Hedge-boot by assignment of the Baily It is holden by Baldwin and Shelley That the Lessee may take it without assignment because there are no Negative words non aliter So 8 E. 3. 10. A Rent of ten pounds was granted to Husband and Wife and if the Husband overlive his Wife that he shall have three pounds Rent and if the Wife do over-live the Husband she shall have forty shillings there it was holden that the Rent of ten pounds continued not restrained by the severance of any of them And although peradventure it appeareth here that the meaning of the parties was That the Lessee should not cut down any Wood but in the Dole yet forasmuch as such meaning doth not stand with the Law it shall be rejected as it was holden to be in the case betwixt Benet and French where a man seised of divers Lands devised parcel of it called Gages to the erecting of a School and another parcel unto B. in fee and all his other Lands unto one French in Fee The devise of Gages was holden void because too general for no person is named and it was further holden that it passed by the general devise to French and yet that was not the meaning of the Devisor Also the Plaintiff is not Assignee but of parcel of the Reversion for if the Reversion is granted to him for years Owen Rep. 152. 1 Co. 215. and such Assignee cannot have an Action of Covenant for a Covenant is a thing in Action and annexed to the Reversion so that if the Reversion doth not continue in its first course as it was at the time of the creation of the Covenant but be altered or divided the Covenant is destroyed and therefore it was holden 32 H. 8. betwixt Wiseman and Warringer where a Lease for years was made of one hundred Acres of Lands rendring ten pound Rent and afterwards the Lessor granted fifty Acres of it that the Grantee should not have any part of the Rent but all the Rent was destroyed So in our case here the Grantee hath but parcel of the estate a Term for years and so is not an Assignee intended as the case betwixt Randal and Brown in the Court of Wards â— Co 96â—â—â—â— Randal being seised of certain Lands covenanted with B. that if he pay unto him his Heirs and Assigns five hundred pounds that then he and his Heirs would stand seised to the use of the said B. and his Heirs Randal devised the Land to his Wife during the minority of his Son the Remainder to his Son in Fee and died having made his Wife his Executrix Brown at the day and place tendred the money generally the Wife having but an estate for years in the Land took the money It was holden that the same was not a sufficient tender for the Wife is not Assignee for she hath an Interest but for years and here the Son is to bear the loss for by a lawful Tender the Inheritance shall be devested out of him and therefore the Tender ought to be made to him and not to his Wife Also as the case is here he is no Assignee for although Charles Grice and his Wife hath the Reversion to them and the Heirs of the body of Charles and levy a Fine without Proclamations nothing passeth but his own estate and then the Conusee hath not any estate Raph. Rep. 91. â— Câ—o. 804. â—05 but during the life of Charles and then when a man is seised to him and his Heirs during the life of another he hath not such an estate as he can devise by the Statute and then when he deviseth it to his Wife for years it is void c. It was adjorned CCCXL Smith and Hitchcocks Case Trin. 33 Eliz. In the Kings Bench. Assumpsit â— Câ—o. 201. IN an Action upon the Case the Plaintiff declared that whereas the Defendant was indebted to him 19 Maii 30 Eliz. The Defendant in consideration that the Plaintiff would forbear to sue him until such a day after promised at the said day to pay the debt The Defendant pleaded how that 29 Maii 29 Eliz. he was indebted unto the Plaintiff in the said sum for assurance of which afterwards he acknowledged a Statute to the Plaintiff upon which he had Execution and had levied the money absque
the Right of the Complainants come ceo c. with warranty of the said Husband and Wife for which the Complainants did render a Rent of fifty pounds per annum with clause of distress in dictis Manerijs to the said John Amy the Heirs of Amy and also rendred the Tenements aforesaid with the Appurtenances to the said John and Amy for their lives the Remainder to the said Francis their Son in tail the Remainder to the said Amy and her Heirs and that John and Amy dyed by force whereof the said Rent descendeth to the said Plaintiff as Son and Heir of the said Amy and that the said Francis entred into the said Mannors as in his Remainder and was seised in tail and was seised of the said Rent by the Hands of the said Francis and afterwards thereof did enfeoff the said Garmons the Defendant c. The Tenant pleaded That the Plaintiff was never seised so as he could be disseised and if c. Nul tor nul disseisin which was found for the Plaintiff who had Iudgment and Execution upon which the Tenant brought a Writ of Error Stephens assigned Error First the Fine is levyed of two Manors inter alia so as no other Lands passed by the Fine besides the Manors and so the Rent is granted out of the said Lands and Manors and no other Lands which passed by the Fine and then upon the Plaintiffs own shewing it appears that all the Tenants of the Lands charged with the Rent in demand are not named in the Assize Second Error This Rent is granted only out of the Estate tail for Amy hath Fee in both as well the Rent as the Land and then when the Estate tail is determined the Rent is also determined and he hath not averred the life of the Tenant in tail or any of his Issue wherefore it shall be intended that he is dead without issue and then the Rent is gone and then he hath not any cause to have Assise Bourchier As to the first conceived and argued that it is not Error for although these words inter alia c. yet it shall not be intended that the Conusor had any other Lands or that the Rent is issuing out of other Lands than those two Manors which are expressed not inter alia As to the second the continuance of the tail needs not to be averred for the Tenant in tail hath enfeoffed the Tenant of the Land by which the estate tail is discontinued And although the Tenant in tail be dead without issue yet the Rent doth remain until Recovery of the Land by Formedon in the Remainder Fenner Iustice was of opinion Vaugh. Reâ— 175. That the Per nomen should go unto the Mannors only and should not extend to the inter alia For if a man in pleading saith that J.S. was seised of twenty acres of Land and thereof inter alia did enfeoff him per nomen of Green-wead the same shall not have reference to the inter alia but only to the twenty acres And the averment of the continuance of the Tail needs not for the Estate-tail is discontinued Gawdy Iustice was of opinion That the per nomen should go as well to the inter alia as to the two Manors and then all the Ter-tenants are not named in the Assise and the same not to be pleaded for it appears of the Plaintiffs own shewing and there needs no averment of the continuance of the Tail for the cause aforesaid Clench Iustice The per nomen doth refer to all which see by the Fine which shews that other Lands passed by the Fine than the said two Manors And as to the second point he said There needed no averment Gawdy As to the first Error the same cannot be saved by any way but to say That the Conusor was not seised of any other Lands than the said two Manors and then the Fine doth not extend unto it and then no Rent is granted out of it Fenner In the Common Pleas in the great case of Fines it was holden that in pleading of a Fine it needs not to say That the Conusor was seised for if the Conusor or Conusee were seised it is sufficient for such pleading is contrary in it self for a Fine sur conusance de droit come ceo c. doth suppose a precedent Gift It was also objected That here is a confusion in this Fine for the Rent is rendred to the Husband and Wife and to the Heirs of the Wife and the Land is rendred to the Husband and Wife for their lives the Remainder to Francis in Tail the remainder to the Wife and her Heirs And these matters cannot stand together in a Fine but the one will confound the other But as to that it was said that the Law shall Marshall these two renders so as they both shall stand And it is not like unto a Rent-service for a Rent-service issueth out of the whole Estate And therefore if a Remainder upon an Estate for life Eschears the Seigniory is gone even during the life of the Tenant for life which see 3 H. 6. 1. contrary of a Rent-charge For if the Grantee of a Rent in Fee purchaseth the remainder of the Land out of which it is depending out of an Estate for life he shall have the Rent during the life of the Tenant for life And of that opinion were all the three Iustices for the Conusors took by several Acts and the Estate is charged for it cometh under the Grant. Fenner Iustice There is a difference betwixt a Rent service and a Rent-charge or Common for that shall charge only the Possession but a Rent-charge shall charge the whole Estate And therefore if he who hath a Rent-service releaseth to him in the Remainder upon an Estate-tail or for life the Rent is extinct which Gawdy denied And this Case was put The Disseisee doth release to the Lessee for years of his Disseisor nihil operatur But if the Disseisor and Disseisee joyn in a Release to such Lessee the same is good for first it shall enure as the Release of the Disseisor and then of the Disseisee c. CCCXLIV Tedcastle and Hallywels Case Mich. 32 33 Eliz. In the Kings Bench. Debt 2 Roll. 594. 1 Cro. 234 235. IN Debt upon a Bond the Defendant pleaded That the Condition was That whereas John Hallywel had put himself to be an Apprentice to the Plaintiff if the Defendant John Hallywel during his Apprenticeship or any other for him by his consent or agreement take or riotously spend any of the Goods of his said Master the Plaintiff If then the Defendant within one month after notice thereof given to him do pay and satisfie the Plaintiff for all such sums of Monies Wares c. so taken or riotously spent by the Defendant or by any other by his procurement or consent the same being sufficiently proved that then c. The Defendant by protestation Quod nec
Nonage of every Heir but admitting that the Custom were void yet this Action doth not lye for the Defendant hath not entred and taken the profits as Prochein amy in which Case although he was not Prochein amy c. he is chargeable Oâ—â—â—â— Rep. 36 â—3 84. as Prochein amy according to his Claim but here he claimeth by the Custom and Grant of the Lord and not in the right of the Heir and therefore it was adjudged in this time of this Quaere that if one entreth into Lands claiming by Devise where in truth the Land devised is entailed he should not be charged in accompt c. CCCLVIII 20 Eliz. In the Common Pleas. NOte It was holden by the whole Court Exposition of the Statute of 32 and 34. Of Wills. That the Statute of 32 34 H. 8. of Wills did not extend to Lands in London but that the devise of the whole is good And if Houses in London parcel of the possessions of Abbies came to the Crown by Dissolution and he grants them over to hold in chief by Knights service these Lands are devisable But it was holden That the said Statutes as Acts executed extended to Lands in London and shall be good but for two parts And if a man hath Lands in tail and in Fee-simple which are of double the value of the Lands in tail and deviseth all his Lands all the Land in Fee-simple shall pass Dyer One seised of three Manors the one in Capite in Fee and two in Socage in tail and deviseth all his Land in Capite it is good against the King for all Capite Land and he shall be tied to have the Lands in Socage but it shall not bind the Heir And a devise of the third part where all is devised is void as well against the Heir as against the King. And he said That if a man be seised of twenty Acres in Socage and ten Acres in Capite and deviseth two parts of his Lands it is reasonable to say That all the Socage Lands shall pass but if the devise was of two parts of all his Lands it is otherwise for this word All implies that the two parts shall be per my per tout as well Capite as Socage i. e. It was argued by Fenner That the Lands in London are now devisable as they were before the Statute for if the Devisee of Lands in London be disturbed he shall have Ex gravi Querela otherwise it is of Lands at the Common Law and if an Assize of Mortdancester be brought of Lands in London it is a good Plea to say That the Lands are devisable But in an Assise of Mortdancestor of Lands at the Common Law it is not any Plea And if a man gives Lands at the Common Law i. e. not devisable by the Common Law he cannot devise the Reversion for the Statute shall not do wrong to the person i.e. to the Donee who there shall lose his Acquittal But of Lands devisable by custom it is otherwise And if Land in a Burrough was devisable for life by the Custom and afterwards came the Statute of 23 H. 8. which made all Lands devisable now that Land is devisable for life by the Custom and the Reversion by the Statute CCCLIX 20 Eliz. In the Common Pleas. IN an Action of Wast of Wast assigned in a Wood Wast the Iury viewed the Wood only without entring into it And it was holden that the same was sufficient for otherwise it should be tedious for the Iury to have had the view of every stub of a Tree which had been felled Yet Meade Iustice said That if Wast be assigned in several corners of the Wood then the Iury is to have the view of every corner but contrary where Wast is assigned in the whole Wood Vieâ— And if Wast be assigned in every Room of a House the view of the House generally is sufficient And Dyer Iustice said That if Wast be assigned in several places and of some of them the Iury had not the view of that they may find no Wast done CCCLX Sir Thomas Lees Case 20 Eliz. In the Common Pleas. IT was holden per Curiam That whereas Sir Thomae Lee was seised of a Manor Election and aliened the Manor except one Close parcel of the said Manor called Newdick and there were two Closes parcel of the said Manor called Newdick the one containing nine Acres and the other containing three Acres That the Alienee should not chuse which of the said Closes he would have but the Alienor or Feoffor should have the Election which of the said Closes should pass CCCLXI. 20 Eliz. In the Common Pleas. TEnant in tail the Remainder in tail c. Tenant in tail in possession Fines levied by Tenant in tail in Remainder 3 Cro. 211. makes a Lease for three lives according to the Statute of 32 H. 8. and afterwards dieth without issue he in the Remainder before any Entry levieth a Fine the same is good for by the death of Tenant in tail without issue the Free-hold is vested in him in the Remainder in tail And of that opinion was the whole Court. CCCLXII Ferrand and Ramseys Case 20 Eliz. In the Common Pleas. IN an Ejectione firmae brought of a House in London the Defendant pleaded That long time before the Lessor of the Plaintiff had any thing c. One Ann Ramsey was seised in Fee and died seised and that the same descended to William Ramsey as Son and Heir to the said Ann who was disseised by Israel Owen who leased to the Plaintiff upon whom the said William Ramsey did re-enter The Plaintiff Replicando That the said Ann did not die seised said That before the Ejectment one Robert Owen was seised and died seised and from him descended the said House to Israel Owen as Son and Heir of the said Robert absque hoc that the said Israel did disseise the said Ann upon which they were at issue and at Nisi prius in London it was given in Evidence of the Defendants part That Crofton and Langhton were seised in Fee of the said Messuage and by Deed indented conveyed it to one John Ramsey Robert Dakins and four others and their Heirs upon condition that the said Feoffees their Heirs or Assigns should pay to the said Ann and her Heirs six pounds thirteen shillings and four pence And also should enfeoff the said Ann if to the same they were required by the said Ann in her life or within four days next following such Request in Fee unto the use of the said Ann and her Heirs cum quando ad hoc per eandem Annam requisit fuerint and if the said Ann died before such Request that then the said Feoffees or their Heirs should enfeoff such issues of the said Ann or such other persons which the said Ann should name cum quando ad hoc per eandem Annam requisit fuerint or within four days after such
Request the said Feoffees or their Heirs should be seised of the said House to the use of the said Ann and her Heirs Afterwards the seventh of April 16 Eliz. Ann demanded of William Ramsey Son and Heir of John Ramsey six pounds thirteen shillings and four pence being due to the said Ann ut supra the which sum the said William Ramsey did refuse to pay by force of which and by the Statute of 27 H. 8. the said Ann Ramsey was thereof seised and died seised and from her descended the said House to William Ramsey The Plaintiff confessed the Feoffment to Crofton and Langhton to John Ramsey and others and shewed further That the said Ann required the surviving Feoffees to enfeoff one Robert Owen of the said House who three days after made the Feoffment accordingly Robert Owen enfeoffed John Owen who died thereof seised and from him the said House descended to Israel Owen Crafton died Langhton having issue two Daughters died All the Feoffees but one died Ann the time aforesaid demanded the said six pounds thirteen shillings and four pence of the said William Ramsey in another House in London due at the Feast of St. Michael last before who denied to pay it the second Daughter of Langhton entred and thereof enfeoffed the said Israel Owen Rents 3 Cro. 210 211. who leased the same to the Plaintiff and upon that Evidence the Defendant did demur in Law And first it was resolved by the whole Court That the said sum to be paid to the said Ann was not a Rent but a sum in gross because reserved to a stranger c. which see Lit. 79. Reversion And by Munson Iustice If the words of the reservation had been twenty Nobles Rent yet it had been but a sum in gross but otherwise it had been by devise Also there is not any condition for the payment of it but only a Limitation for the word subsequent which limits the future use takes away all the force of the words of the Condition as 27 H. 8. 24. Land given in tail upon condition that the Donee and his Heirs shall carry the Standard of the Donor when he goes to battel and if he fail thereof then the same to remain to a stranger the limiting of the Remainder hath taken away the condition and hath controlled it and now the Condition is become a Limitation But where the words subsequent are against Law as if upon failer that then it shall be lawful for a stranger to enter Feoffments upon condition c. these words because they are against Law for a Rent cannot be reserved to a Stranger c. do not destroy the Condition by Mead contrary by Munson for the Condition is utterly gone And by Mead Feoffment in Fee upon condition That if the Feoffor shall do such a thing that he shall re-enter and retain the Land to the use of a stranger the use is void 1 Cro 401 402 and the Feoffor shall hold the Land to his own use A Feoffment in Fee upon condition That the Feoffee shall marry my Daughter and if he refuse to marry her that then he shall be seised to the use of I.S. the same is not a Condition but a Limitation and in all cases afterwards of a Condition where an Interest is limited to a stranger there it is not a Condition but a Limitation And Mead said That the said annual sum is not demandable but the party ought to pay it at his peril Lit. 80. But by Munson it ought to be demanded for so this word Refuse doth imply Regula And when at the Request of Ann the Feoffment is made by Munson Mead and Windham the Rent is gone but Dyer contrary unless the Feoffment be made to Ann her self And afterwards Iudgment was given for the Plaintiff Hil. 19 Eliz. Rot. 748. There was a Case betwixt Shaw and Norton Shaw and Nortons Case One Green devised his Lands to A. and devised also the said A. should pay a Rent to B. and that B. might distrain for it and if A. fail of the payment of it that the Heirs of the Devisor might enter the same is a good Distress and a good Condition And by Munson Demand ought to be made of the Rent for the words are Refuse which cannot be without Demand or Request And it was certified That such a Clerk refused to pay his Tenths and because it was expresly set down in the Certificate that he was requested c. for that cause he was discharged And it was also holden That if Request be necessary that in this case Request is to be made That it ought to be made to the surviving Feoffee or his heir and not to the heirs of any of the Feoffees who are dead CCCLXIII Lacyes Case Hill. 25. Eliz. In the Kings Bench. Indictments Co. 13. Rep. 53. LAcy was indicted of the death of a man upon Scarborough Sands in the County of York between the high water-mark and the low water-mark and the same Indictment was removed into the Kings Bench and being arraigned upon it he shewed that the said Indictment was sued by vertue of a Commission which issued the first day of May directed to the Iustices of Assize and other Iustices of Peace in the said County Commission repealed to enquire of all Murders Felonies c. and pleaded further That the second day of May aforesaid issued another Commission directed to the Lord Admiral and others upon the Statute of 28 H. 8. cap. 15. by force of which the said Lacy was indicted of the same murder whereof he was now arraigned and the said last Commission was ad inquirendum tam super altum mare quam super littus maris ubicunque locorum infra jurisdictionem nostram maritimam And that the said Indictment taken before the Admiral was taken before this upon which he was arraigned and upon the whole matter prayed to be dismissed And the opinion of all the Iustices was that the first Commission was repealed by the second and so the Indictment upon which he was arraigned taken coram non Judice 10 E. 4. 7. If a Commission for the Peace issueth into one County and afterwards another Commission issueth to a Town within the same County and parcel of it the first Commission is repealed which Gawdy granted if notice be given c. but Wray denied it but the whole Court by this last Commission to the Lord Admiral the first Commission as to the Iurisdiction in locis maritimis is determined and repealed for these two Commissions are in respect of two several Authorities the first Commission meerly by the Common Law the other by the Statute aforesaid and thereupon the party was discharged against the Queen as to that Indictment Note that in the Argument of this Case it was said by Coke and agreed by Wray That if a man be struck upon the high sea 2 Co. 93. whereof he dieth in another County
magnitudine sufficienti essendi maremium and that the place where they growed was neither Orchard nor Garden It was said by the Court That by the Custom the Copyholder could not cut down such Trees but the Lord might and that the cutting down of such Trees which were not Wast the Copy-holder might justifie without punishment but because by the Verdict it did not appear that the Trees for which the Action was brought were Timber in facto but only de magnitudine effendi maremium the Plaintiff had Iudgment CCCLXVI The Lord Staffords Case Mich. 25 26. Eliz. In the Common Pleas. Extent UPon Recovery in debt against the Lord Stafford certain Lands of the Lord were extended by Elegit The Queen because the Lord Stafford was endebted unto her by Prerogative ousted the Tenant by Elegit Fleetwood Serjeant moved the Court in the behalf of him who recovered and surmised to the Court that the Queen was satisfied and therefore prayed a Re-extent but the Court would not grant it because they were not certain of the matter but advised the party to sue a Scire facia against the said Lord Stafford to know and shew cause why a Re-extent should not issue forth the Queen being satisfied c. CCCLXVII Gibbs and Rowlies Case Mich. 25 26. Eliz. In the Kings Bench. Tithes SYmon Gibbs Parson of Beddington Libelled in the Spiritual Court against Rowlie for Tithe Milk Rowlie upon surmise of a Prescription de modo Decimandi obtained a Prohibition which was against Symon Gibbs Rectorem Ecclesiae parochial de Nether Beddington and the parties were at Issue upon the Prescription Prohibition and it was found for Rowlie Egerton Solicitor moved against the Prohibition because the Libel is against Gibbs Rectorem Ecclesiae paroch de Beddington and the Prohibition was de Nether Beddington and it was not averred that Beddington in the Libel and Nether Beddington is unum idem non diversa It was said by the Court That upon the matter there is not any Prohibition against Rectorem Ecclesiae de Beddington only and therefore said to the Plaintiffs Counsel let the Parson proceed in the Spiritual Court at his peril CCCLXVIII Russell and Handfords Case Mich. 25 26. Eliz. In the Kings Bench. RUssell brought an Action upon the Case against Handford and declared Quod cum quoddam molendinum ab entiquo fuit erectum upon such a River Nusance de quo one Thomas Russell whose Heir the Plaintiff is was seised in his Demesn as of Fee and dyed thereof seised after whose death the same descended to the Plaintiff by force of which the Plaintiff was seised in his Demesn as of Fee and so seised The Defendant upon the same River had levyed a new Mill per quod cursus aquae praedict coarctatus est and upon Not guilty It was found for the Plaintiff It was moved in Arrest of Iudgment That it is not layed in the Declaration that his Mill had been a Mill time out of mind c. And then if it be not an ancient Mill time out of mind Words of Prescription c. it was lawful for the Defendant to erect a new Mill And it was said That these words ab antiquo are not fit or significant words to set forth a Prescription but the words A tempore cujus contrarii memoria hominum non existit are the usual words for such a purpose See the Book of Entries 10 11. See 11 H. 4. 200. If I have a Mill and another levies another Mill there and the Miller hinders the Water to run to my Mill or doth any such Nusance Roll. 140. an Action lyeth without any Prescription as it seems by the Book in 22 H. 6. 14. The Plaintiff declared That he was Lord of such a Town and that he and all his Predecessors Priors of N. Lords of the same Town have had within the same Town four Mills time out of mind c. And that no other person had any Mill in the said Town but the Plaintiff and his Predecessors the said four Mills and that all the Tenants of the Plaintiff within the same Town and all other Resiants there c. ought and time out of mind c. had used to grind at the said Mills of the Plaintiff and that the Defendant one of the Tenants of the Plaintiff had erected and set up a Horse Mill within the said Town and there the Resiants grinded c. And it was holden That peradventure upon such matter an Action lyeth because the Defendant being one of the Tenants of the Plaintiff is bound by the Custom and Prescription so as he hath offended against the privity of the Custom and Prescription And as to the Case in question It was the opinion of all the Iustices Hob. 189. Ante 168. 1 Cro. 415. That if the Mill whereof the Plaintiff hath declared be not an ancient Mill that this Action doth not lye upon the matter eo quod cursus aquae coarctatur But yet at last it was holden by the Court to be good enough notwithstanding the Exception Another Exception was taken to the Declaration because that here is set forth the seisin of the Father of the Plaintiff and the Descent to the Plaintiff by force of which he was seised in his Demesn c. without shewing that after the death of the Father that he entred into the said Mill Seisin in fact and in Law. c. so as no seisin in fact is alleadged but only a seisin in Law and if the Plaintiff was not seised in fact he cannot punish this personal wrong but the Exception was disallowed for such a seisin in Law is sufficient for the maintenance of this Action And afterwards the Plaintiff had Iudgment to recover his Damages See for the Action it self contained in the Declaration 8 Eliz. Dyer 248. CCCLXIX Cleypools Case Mich. 26. Eliz. In the Exchequer Informations upon the Statute of 5 Eliz. of Tillage INformation in the Exchequer against Cleypool upon the Statute of Tillage 5 Eliz. setting forth That the Defendant hath converted three hundred Acres of arable Lands of Tillage to pasture and the same conversion hath continued from 15 Eliz. unto the two and twentieth of Eliz The Defendant as to the Conversion pleaded Not guilty and as to the Continuance the general Pardon by Parliament 23 Eliz. upon which the Attorney general did demur in Law. It was argued That that pardon did not extend to the continuance of the said Conversion And first the Barons were clear of opinion That if A. be seised of Arable Lands and converts the same to pasture and so converted leaseth it to B. who continues it in pasture as he found it he shall be charged by that Statute And it is not any good Construction where the Exception in the pardon is excepting the converting of any Land from Tillage to Pasture made done committed or permitted that the Conversion excepted
out of the pardon shall be intended and construed the bare Act of Conversion but the whole offence i. the continuance and practise of it is understood As if by general pardon all intrusions are excepted now by that the instant Act of Intrusion i. the bare Entry is not only excepted but also the continuance of the Intrusion and the perception of the profits And note The words of the Statute are conversion permitted and Conversion continued is Conversion permitted And the said Statute doth not punish the Conversion but also the continuance of the Conversion for the penalty is appointed for each year in which the Conversion continues And Egerton Solicitor put this Case 11 H. 8. It was enacted by 3 H. 7. cap. 11. That upon Recovery in Debt if the Defendant in delay of Execution sues a Writ of Error and the Iudgment be affirmed he shall pay damages now the case was That one in Execution brought such a Writ of Error and the first Iudgment is affirmed he shall pay damages and yet here is not any delay of the Execution for the Defendant was in Execution before but here is an Interruption of the Execution and the Statute did intend the Execution it self i. the continuance in Execution ibidem moraturus quousque It was said on the other side That the conversion and continuance thereof are two several things each by it self and so the conversion only being excepted in the pardon the continuance thereof remains in the grace of the pardon And it appeareth by the Statute of 2 and 3. Ph. Ma. That conversion and continuance are not the same but alia atque diversa and distinct things in the consideration of the Law for there it is enacted That if any person shall have any Lands to be holden in Tillage according to the said Statute but converted to Pasture by any other person the Commissioners c. have authority by the said Statute to enjoyn such persons to convert such Lands to Tillage again c. And in all cases in the Law there is a great difference betwixt the beginning of a wrong and the continuance of it As if the Father levyeth a Nusance in his own Lands to the offence of another and dyeth an Assize of Nusance doth not lye against the Heir for the continuance of that wrong but a Quod permittat See F.N.B. 124. It was adjorned CCCLXX Powley and Siers Case Mich. 26 Eliz. In the Kings Bench. POwley brought Debt against Sier Executor of the Will of A Debt The Defendant demanded Iudgment of the Writ for he said That one B. was Executor of the said A. and that the said B. did constitute the Defendant his Executor so the Writ ought to be brought against the Defendant as Executor of the Executor and not as immediate Executor to the said A. The Plaintiff by Reply said That the said B. before any probate of the Will or any Administration dyed and so maintained his Writ Wray Iustice was against the Writ for although here be not any probate of the Will of A. or any other Administration yet when B. made his Will and the Defendant his Executor the same is a good acceptance in Law of the Administration and Execution of the first Will for the Defendant might have an Action of Debt due to the first Testator Gawdy and Ayliff Iustices The Writ is good See Dyer 1 Cro. 211. 212. 23 Eliz. 372. against Wray CCCLXXI Pasch 26 Eliz. In the Kings Bench. THe Case was A seised of certain Lands Bargain and sale of Trees bargained and sold by Indenture all the Trees there growing Habendum succidendum exportandum within twenty years after the date of the said Indenture the twenty years expire The Bargainee cuts down the Trees A. brought an Action of Trespass for cutting down the Trees And by Wray Iustice The meer property of the Trees vests in the Bargainee Post 288. and the Limitation of time which cometh after is not to any purpose but to hasten the cutting of the Trees within a certain time within which if the Vendee doth not cut them he should be punished as a Trespassor as to the Land but not as to the Trees Gawdy contrary And that upon this Contract a conditional property vests in the Vendee which ought to be pursued according to the direction of the condition and because the condition is broken the property of the Trees is vested in A. CCCLXXII Curriton and Gadbarys Case Pasch 26 Eliz. In the Kings Bench. IN in Action upon the Case the Plaintiff declared Leases That the Defendant in consideration that the Plaintiff should make a lease for life to the Defendant of certain Lands Habendum after the death of A. before the tenth of August next following promised to pay the Plaintiff ten pounds the first day of May next after the promise which was before the tenth of August And the truth was That the said ten pounds was not paid at the day ut supra nor the said Lease made And now both sides being in default the Plaintiff brought an Action It was said by Wray Iustice If the Plaintiff had made the Lease according to the consideration and in performance thereof the action would have lyen but now his own default had barred him of the Action But for another cause the Declaration was holden insufficient for here is not any Consideration for the promise is in consideration that the Plaintiff shall lease to the Defendant for life Habendum after the death of A. which cannot be good by way of lease but ought to enure by way of grant of the Reversion so as here is no lease therefore no consideration and notwithstanding that if a Lease be made for life Habendum after the death of A. the Habendum is void and the Lease shall be in possession according to the Premises yet the Law will not give such construction to the words of a Promise Contract or Assumpsit but all the words ought to be wholly respected according to the Letter so as because that no Lease can be made according to the words of the Consideration no supply thereof shall be by any favorable construction And so it was adjudged But before the same imperfection was espied Iudgment was entred and therefore the Court awarded that there should be a cesset executio entred upon the Roll for it is hard as it was said by Wray to drive the party to a Writ of Error in Parliament because Parliaments are not now so frequently holden as they have used to be holden and the Execution was staid accordingly CCCLXXIII Willis and Crosbys Case Pasch 26 Eliz. In the Kings Bench. Error IN a Writ of Error It was assigned for Error That whereas in the first Action the parties were at issue and upon the Venire facias one Gâ—â—gory Tompson was returned But upon the Habeas Corpora George Tâ—â—â—â—son was returned and the Iury was taken and found for the
commanded a Court Baron to be holden there which was holden accordingly by the sufferance of the Executors and the said Executors were also present at which time the Executors in the presence of the said Lord said these words viz. We have nothing to do with this Manor Return of the Sheriff 4 Co. 67. And upon this Verdict two things were moved If because the Liberate was not returned the Execution was good And as to that divers Books were cited 21 H. 6. 8. 18 E. 3. 25. And it was said that there was a difference betwixt a Liberate and a Capias ad Satisfaciendum and a Fieri facias for these Writs are conditional Ita quod Habeas Corpus c. Ita quod habeas denarios hic in Curia 3 H. 7. 3. 16 H. 7. 14. But contrary in the Writ of Liberate Habere facias seisinam for in such Writs there is not such clause and therefore if such Writs be not returned the Execution done by virtue of them is good enough And see 11 H. 4. 121. If the Sheriff by force of an Elegit delivers to the party the moiety of the Land of the Defendant and doth not return the Writ if now the Plaintiff will bring an Action of Debt de Novo the Defendant may plead in Bar the Execution aforesaid although the Writ of Execution were not returned and yet the Execution is not upon the Record And see the case there put by Hankford And it is not like to the case of Partition made by the Sheriff the same ought to be returned because that after the return thereof a new and secondary Iudgment is to be given i. Quod partitio praedicta firma stabilis maneat in perpetuum firma stabilis in perpetuum teneatur see the Book of Entries 114. And Egerton Solicitor cited a case lately adjudged betwixt the Earl of Leicester and the Widow Tanfeild Earl of Leicester and Tanfeilds Case That such Execution without return was good enough Another matter was moved Admit that here be a good Execution if now the Executors being in possession of the said Manor by force of that Execution and permitting and suffering the Conusor to hold a Court there in the Manor-house and saying in his presence the words aforesaid if the same doth amount to a Surrender by the Executors to the said Conusor Surrender or not And Wray chief Iustice said That here upon this matter is not any Surrender for here the words are not addressed to the said Conusor who is capable of a Surrender nor to any person certain And it is not like to the case of 40 E. 3. 23 24. Chamberlains Assize where Tenant for life saith to him in the Reversion That his will is that he enter the same is a good Surrender for there is a person certain who can take it but contrary in this case for here it is but a general speech It was adjorned CCCLXXIX Baskervile and the Bishop of Herefords Case Pasch 28 Eliz. In the Common Pleas. Quare Impedit IN a Quare Impedit by Walter Baskervile against the Bishop of Hereford c. The Plaintiff counted That Sir Nicholas Arnold was seised of the Advowson as in gross and granted the same to the said Baskervile and others to the use of himself for life and afterwards to the use of Richard Arnold his Son in tail Proviso That if the said Nicholas die the said Richard being within age of twenty three years that then the Grantees and their Heirs shall be seised to them and their Heirs until the said Richard hath accomplished the said age Nicholas dieth Richard being of the age of fourteen years by force of which the Grantees were possessed of the said Advowson and afterwards the Church became void and so it belonged to them to present And Exception was taken to the Count because the Plaintiff had not averred the life of Richard upon whose life the Interest of the Plaintiffs doth depend Averment And Gawdy Serjeant likened it to the Case of the Parson which hath been adjudged That where the Lessee of a Parson brought an Ejectione firmae and it was found for him and in arrest of Iudgment exception was taken to the Declaration because that the life of the Parson was not averred and for that cause Iudgment was stayed Anderson chief Iustice Vpon the dying of Sir Nicholas Rich being but of the age of fourteen years an absolute Interest for nine years vests determinable upon the death of Richard or rather they are seised in fee determinable upon the coming of Richard to the age of twenty three years Rhodes and Windham contrary That here is an Interest in the Grantees determinable upon the death of Richard within the Term for if Richard dieth without issue within the Term the Remainder is limited over to a stranger And as to the Exception to the Count Dyer 304. â— 2 Cro. 622 637. 10 Co. 59. it was argued by Puckering Serjeant that the Count was good enough for although the life of Richard be not expresly averred yet such averment is strongly implied and so supplied For the Count is That dictus Nicholas obiit dicto Ric. being of the age of fourteen years non amplius by force of which the Plaintiff was possessed of the said Advowson quo quidem sic possessionato existente the Church became void and possessed he could not be if the said Richard had not been then alive and the same is as strong as an Averment See 10 E. 4. 18. In Trespass for breaking his Close the Defendant pleads That A. was seised and did enfeoff him to which the Plaintiff said That long time before A. had any thing B. was seised and leased to the said A. at will who enfeoffed the Defendant upon which B. did re-enter and leased to the Plaintiff at will by force of which he was possessed until the Defendant did the Trespass and the same was allowed to be a good Replication without averring the life of B. who leased to the Plaintiff at will for that is implied by the words i. Virtute cujus 1 Cro. 766. the Plaintiff was possessed until the Defendant did the Trespass And see also 10 H. 7. 12. in an Assize of Common The Plaintiff makes title that he was seised of a Messuage and of a Carve of Land to which he and all those whose estate c. have had Common appendant c. And doth not say that he is now seised of the Messuage But this Exception was disallowed by the Court for seisin shall be intended to continue until the contrary be shewed It was adjorned CCCLXXX Caries Case Pasch 28 Eliz. In the Exchequer IN an Information in the Exchequer by the Queen against Cary Tithes More Rep. 222. the Case was this A man grants situm Rectoriae cum decimis eidem pertinent Habend situm praedict cum suis pertinentiis for twenty years the first Grantee dieth within the Term.
b. Sur Conusans de droit come ceo que il ad of the gift of the Husband that the same is not any Bar to the Wife of her Dower for the Election is not given to the VVife to claim her Ioynture or her Dower until after the Death of her Husband And so in the principal case Iudgment was given for the VVife CCCLXXXVII Le es Case Pasch 26. Eliz. In the Kings Bench. NIcholas Lee by his will devised his Lands to William his second Son Devise 1 Cro. 26. 3 Len. 106. And if he depart this VVorld not having issue Then I will that my Sons in Law shall sell my Lands the Devisor at the time of his devise having sir Sons in Law dyed William had Issue John and dyed John dyed without Issue one of the Sons in Law of the Devisor dyed the five surviving Sons in Law sold the Lands First it was clearly resolved by the whole Court That although the words of the Will are ut supra If William my Son depart this world not having Issue c. And that William had Issue who dyed without Issue here although it cannot be litterally said That William did depart this World not having issue yet the intent of the Devisor is not to be restrained to the letter that such construction shall be made That whensoever William dyeth in Law or upon the matter without Issue that the Land shall be subject to sale according to the authority committed by the Devisor to his Sons in Law And now upon the matter William is dead without Issue As in a Formedon in Reverter or Remainder although that the Donee in tail hath issue yet if after the estate tail be spent the Writ shall suppose that the Donee dyed without Issue a fortiori in the Case of a Will or Devise such construction shall be made As to the other point concerning the sale of the Lands Wray asked If the Sons in Law were named in the Will and the Clerks answered No See 30 H. 8. Br. Devise 31. and 39 Ass 17. Executors 117. such a sale good in case of Executors See also 23 Eliz. Dyer 371. and Dyer 4 5. Phil. and Mary Lands devised in tail and if the Devisee shall dye without Issue that then the Land shall be sold pro optimo valore by his Executors una cum assensu A. if A. dyeth before sale the power of the Executors is determined And afterwards it was clearly resolved by the whole Court That the sale for the manner was good and Iudgment was given accordingly CCCLXXXVIII Sir Gilbert Gerrard and Sherringtons Case Pasch 20 Eliz. In the Kings Bench. SIr Gilbert Gerrard Master of the Rolls Libelled in the Spiritual Court against Sherrington and A. his Servant for Tithes parcel of a Rectory whereof the said Sir Gilbert was Fermor to the Queen It was moved by Egerton Solicitor General That against the Kings Fermor a Prohibition doth not lye But the opinion of the whole Court was That a Prohibition doth lye and so it hath been adjudged before And afterwards Exception was taken to the surmise because the said Sir Gilbert had Libelled against the said Sherrington and his Servant severally Owen Rep. 13. Yelv. Rep. 128. and now in the Kings Bench they both had made a joynt surmise whereas they ought to have severed in their surmises according to the several Libels And it was so adjudged by the Court and therefore they were driven to make several surmises And afterwards Exception was taken because the said Sherrington and his Servant had delivered their surmises and suggestions by Attorney where they ought to be in proper person See the Statute of 2 E. 6. cap. 13. The party shall bring and deliver to the hands of some of the Iustices of the same Court c. the true Copy of the Libel c. subscribed or marked with the hand of the Party c. and under the Copy shall be written the surmise or suggestion And although it was affirmed by the Clerks of the Court that the common use and practice for twenty years had been not to exhibit such surmises or suggestions by Attorney Yet it was resolved by the whole Court that it ought to be by Attorney CCCLXXXIX Short and Shorts Case Pasch 26. Eliz. In the Kings Bench. IN an Action upon the Case upon Assumpsit to pay mony to the Plaintiff upon Request It was agreed Request That the Plaintiff by way of Declaration ought to alledge an actual Request and at what place and at what day the Request was made And it is not sufficient to say as in an Action of Debt Licet saepius requisitus c. and so it was adjudged CCCXC Pasch 26. Eliz. In the Kings Bench. ONe was Endicted in the County of Linc upon the Statutes of Wâ—st Indictment upon the Statute of news 1. Cap. 33. and 2 R. 2. Cap. 5. of News and the words were That Campian was not executed for treason but for Religion and that he was as honest a man as Cranmer the Bill was endorsed Billa vera but whether ista verba prolata fuerunt malitlose seditiose or e contr ignoramus The same Indictment being removed into the Kings Bench the party for the causes aforesaid was discharged CCCXCI Cole and Friendships Case Pasch 26. Eliz. In the Kings Bench. IN Ejectione firmae the Case was That Fricarrooâ— was seised Leases 4 Len. 64. and by Indenture betwixt himself of the one part and one Friendship his Wife and the Children betwixt them begotten at the Assignment of the Husband of the other part leased the said Land to the said Husband his Wife and their Children at the Assignment of the Husband for years they having at the time of the said Lease but one Child â— a Son Assignment afterwards they had many Children the wife dyed the Husband by his will assigned his second Son born after the making of the Lease to have the residue of the said Term and by the opinion of the Court nothing can come to the said Son by that Lease or by that assignment for if the Interest doth not vest at the beginning it shall never vest And afterwards is was moved In as much as nothing could vest in any of the Children born after the Lease made if these words At the Assignment of the Husband should be void and then the case should be no more but that Land is devised to the Father and Mother and their Children At another day viz. Trin. 26 Eliz. the case was moved again and as to the first Point the Court was of opinion as before That the Child assigned after the Lease made should not take And then it was moved That because Friendship and his Wife at the time of the making of the said Lease had one Son that he should take with his Father and Mother and that the words at the Assignment of Friendship should be void is matter of surplusage and the
the Seisin or possession of the Tenant in Demesn who ought immediately to have paid the said Rent so behind to the Testator in his life or in the Seisin or possession of any other person or persons claiming the said Lands only by and from the said Tenant by Purchase Gift or Discent in like manner as the Testator might or ought to have done in his life time And now it was moved to the Court. If A. grant a Rent-charge to B. the Rent is behind B. dyeth A. infeoffeth C. of the Lands in Fee who diverse years after infeoffeth D. who divers years after infeoffeth E. It was holden by Walmesey Periam and Windham Iustice against Anderson Lord chief Iustice that E. should be chargeable with the said arrearages to the Executors of A. But they all agreed That the Lord by Escheat Tenant in Dower or by the curtesie should not be charged for they do not claim in by the party only but also by the Law. CCCCXIX Wigot and Clarks Case Hill. 32 Eliz. In the Common Pleas. IN a Writ of Right by Wigot against Clark for the Mannor of D. in the County of Glocester the four Knights gladiis cincti did appear Writ of Right and took their corporal Oath that they would choose 12 c. ad faciendum magnam Assisam and by direction of the court they withdrew themselves into the Exchequer chamber and there did return in Parchment the names of the Recognitors and also their own names and at the day of the return of the Pannel by them made the 4 Knights and 12 others were sworn to try the issue and it was ordered by the Court That both the parties scil the Demandant and the Tenant or their Attornies attend the said 4 Knights in the Exchequer chamber and to be present at the making of the Pannel so as each of them might have their challenges for after the return of the Pannel no challenge lieth and thereupon the said 4 Knights went from the Bar and within a short time after sitting the Court they returned the Pannel written in Parchment in this form Nomina Recognitorum c. inter A. petentem B. tenentem and so set down their names six other Knights ten Esquires and four Gentlemen and the Iustices did commend them for their good and sufficient Pannel and thereupon a Venire facias was awarded against the said parties CCCCXX Pory and Allens Case Trin. 30 Eliz. Rot. 611. In the Common Pleas. THe case was That Lessee for 30 years leased for 19 years 1 Cro. 173. Owen 97. Post 322 323. Surrender 1 Cro. 302. and then the first Lessee and one B. by Articles in writing made betwixt them did conclude and agree That the Lessee for 19 years should have a Lease for three years in the said Lands and others and that the same should not be any surrender of his first Term to which Articles the said Lessee for 19 years did after agree and assent unto and it was the opinion of all the Iustices of the Court that the same was not any surrender and they also were of opinion That one Termor could not surrender to another Termor CCCCXXI Glanvil ane Mallarys Case Trin. 31 Eliz. Rot. 321. In the Common Pleas. GLanvil was Plaintiff in Audita Querela Audita Querâ—la 1 Cro. 2â—8 against Mallary upon a Statute Staple for that the conusor was within age at the time of the acknowledging of it it was moved for the Defendant that the Court ought not to hold Plea of this matter because there was no Record of the Statute remaining here and therefore by Law he was not compellable to answer it c. and a President was disallowed 5 H. 8. where such a pleading was allowed and judgment given that the Defendant eat sine die Loves Case Dudley and Skinners Case vide 16 Eliz. Dier 332. But on the other side divers presidents were shewed that divers such Writs had been shewed in the Common Pleas as 30 Eliz. Loves case and the Lord Dudley and Skinners case and thereupon it was adjudged that the Action did well lye in this Court. CCCCXXII Pet and Callys Case Mich. 32 Eliz. In the Common Pleas. Debt IN Debt upon a Bond for performance of covenants the case was I. S. by Indenture covenanted with I.D. that such a woman viz. R.S. at all times at the request and charges of I.D. should make execute and suffer such reasonable assurances of such Lands to the said I.D. or his heirs as the said I. D. or his heirs should reasonably devise or require I.D. devised a Fine to be levied by the said Woman and required her to come before the Iustices of Assise to acknowledge it and the woman came before the said Iustices to that intent and because the said woman at that time was not compos mentis the said Iustices did refuse to take the Conusans of the said Fine and this was averred in the pleading in an Action brought upon the said Bond for performance of Covenants where the breach was assigned in not acknowledging of the said Fine and upon the special matter the party did demur in Law and the opinion of the whole Court was that the condition was not broken for the words are general to make such reasonable assurances which c. but if the words had been special to acknowledge a Fine there if the Iustice doth refuse to take such acknowledgment the Bond is forfeited for the party hath taken upon him that it should be done Wangford and Sextons Case Mich. 22 Eliz. In the Common Pleas. 1 Cro. 174. Kel 87. a. THe Plaintiff had recovered against the Defendant in an Action of Debt and had execution The Defendant after the day of the Teste of the Fierifacias and before the Sheriff had medled with the execution of the Writ bona fide for money sold certain goods and chattels and delivered them to the buyers it was holden by the Court that notwithstanding the said Sale that the Sheriff might do execution of those goods in the hands of the buyers Executions for that they are liable to the execution and execution once granted or made shall have relation to the Test of the Writ CCCCXXIV Wilmer and Oldfields Case Trin. 29 Eliz. Rot. 2715. In the Common Pleas. Award IN Debt upon a Bond the Condition was to perform the Award of I. S Antea 140. c. the Arbitrators make Award That the Defendant before such a day shall pay to the Plaintiff 1000 l. or otherwise procure one A. being a stranger to the Bond to be bound to the Obligee for the payment of 12 l. per annum to the Plaintiff for his life the Defendant pleaded the performance of the Award generally the Plaintiff assigned the breach of the Award in this That the said A. had not paid the said 100 l. without speaking of the cause of the award of the 12 l. per annum upon which the
case 39 Eliz. and Damports case 45 Eliz. And this Act of 13 Eliz. is general in respect of time for it extendeth to all time after from henceforth and to all persons to whom such Leases shall be made the words the Statute are scil To any person or persons in respect of persons who shall lease all spiritual persons General in respect of the end which is the maintenance of learning which extends to the common profit c. Drew Serjeant That this act of 13 Eliz is general in respect of restraint only and extends only to spiritual persons and therefore ought to be pleaded for otherwise the Court shall not take notice of it As the Statute of 23 H. 6. of Sheriffs ought to be pleaded which see in the Case of Dive and Manningham Plowden 64 65. Co. 1 Inst 45. And although the Statute ought to be pleaded Yet this Lease is not void against the Warden who made it but against his Successor although no rent be reserved upon it notwithstanding that the perclose of the Statute be utterly void and of none effect to all intents constructions and purposes So upon the Statute of 1 Eliz. concerning Leases made by Bishops the Law had been so taken in the case of the Bishop of Coventry and Lichfeild upon a Grant of the next Avoidance That although it doth not bind the Successors yet it shall bind the Grantor himself So here this Lease being made by the present Warden and Fellows of the Colledge aforesaid although it be not sufficient to bind the Successor yet it shall bind the Warden who made the Lease Puckering contrary And as to the case of 13 E. 4. 8. the reason there is because there is an Exception in the said Statute of divers Grants made by King H. 6. and therefore the said Act ought to be specially pleaded And see 34 H. 6. 34. by Prisoit But in this Act of 13 Eliz. there is not any Exception and although it be a general Act with a Restraint yet such an Act ought not to be pleaded and therefore 27 H. 8. 23. in an Action upon the Statute of 21 H. 8. for taking of Lands to Ferm by spiritual persons he need not make mention of the Statute And afterwards the Iustices did advise upon this point whether the Lease be so void that it be void against a stranger So as the Defendant who doth not claim under the Colledge and who hath no title to the Land may avoid it And Periam Iustice denied the Case put by Puckering A. morgages Lands to B. upon a usurious contract for one hundred pounds and before the day of payment B. is ousted by C. against whom B. brings an Action C. cannot plead the Statute of Vsury for he hath no title For the estate is void against the Mortgagor Another Exception was taken to the Declaration because the Plaintiff had declared upon a Lease by the Warden and Fellows without naming any name of the Warden 13 E. 4. 8. 18 E. 4. 8. In Trespass the Defendant doth justifie because that the Free-hold was in the Dean and Chapter and he as Servant and by their commandment entred And Exception was taken to that Plea because he hath not shewed the name of the Dean scil the proper name So if a Lease be made by Dean and Chapter in these words Nos Decan Capituli the same Lease is void which was granted by the Court and 12 H. 4251. A Provost granted an Annuity by the name of Provost of such a Colledge without any name of Baptism and afterwards the Grantee brought a Writ of Annuity against the Successor of the said Provost and by Hull The Writ is well enough but the Christian name ought to be set down in the Writ So here because that the name of Baptism of the Warden is not in the Declaration the same is not good But the opinion of the whole Court was That the Declaration is good enough and they did rely especially upon the Book of 21 E 4. 15 16. Where Debt is brought by the Dean and Chapter without any Christian name and the Writ holden good Anderson It stands with reason That for as much as the Colledge was incorporated by the name of Warden and Fellows and not by any Christian name that they may purchase and lease by such name without any Christian name and may be impleaded and implead others by such name and as the Fellows in such case need not to be named by their Christian names no more ought the Warden But of a Parson Vicar Chauntry Priest it is otherwise for in such case the name of Baptism ought to be added It was also objected That because the Letter of Attorney was to enter in the Manor and all the Lands and Tenements of the Colledge in such a Town and to seal the Indenture of Lease in the name of the Lessors and to deliver it to the Plaintiff as their Deed now the Attorney in executing of this Warrant hath not pursued it for he hath only entred into the Lands but it is not found that he entred into the Manor and so the Lease is void And it was said by Puckering That if I lease two Acres in two several Counties rendring for the one Acre 10 s. and for the other Acre 10 s. and make a Letter of Attorney to make Livery in both if the Attorney entreth into one Acre and makes Livery the same is void for the Attorney hath not pursued his authority for peradventure I would not have leased the Acre whereof Livery is made for such rent of 10 s. being perhaps of greater value but with the other Acre which was of lesser value and so the mis-executing of my warrant shall prejudice me Windham Perhaps if one entire Rent had been reserved out of both Acres it may be that by the Livery in one Acre all is void But by Puckering one entire Rent cannot be reserved upon such a Lease of two Acres in several Counties Walmesley denied the Case put by Puckering for the authority is executed well enough for it doth not appear upon the Verdict but that the Colledge was in possession at the time of the Lease made and then there needed not any such Entry but the bare sealing and delivery of the Attorney is good enough And also it doth not appear by Verdict That the Colledge hath any Manor and therefore it shall be so intended and then the Case is no other but that A man leaseth a Manor and certain Lands in D. and makes a Letter of Attorney to make Livery of them where he hath nothing in the Manor and the Attorney makes Livery of the Land without medling with the Manor the same is a good Livery and the authority duly executed But if it had been expresly found that the Colledge had such a Manor there then the Entry in the Land only without medling with the Manor and the Livery made accordingly should not be good But
yet afterwards he seemed to be of other opinion And as to that which hath been objected That the Lease is void to all intents and purposes according to the words of the Statute for by some it cannot be resembled to the case cited before of the Bishop of Coventry and Lichfeild that such a Grant should bind him and not his Successors for if this Grant in our Case shall not be void presently it shall never be void for the Colledge never dieth no more than Dean and Chapter Mayor and Commonalty To that it was answered by Drew That although there be some difference betwixt such Corporations and that the words of the Statute are general void to all intents constructions and purposes yet they shall construed according to the meaning of the makers of the Act whose scope was to provide for the Successors and not for the present Incumbent and to the utter impoverishing of all Successors without any respect to the party himself as it appeareth by the preamble of the said Statute where it is observed That by long and unreasonable Leases the decay of Spiritual Livings is procured for the remedying and preventing of which long Leases this Act was made and that the Successors should not be bound thereby And these Leases are not void simpliciter sed secundum quid i. e. as to the Successors As upon the Statute of 11 H. 7. cap. 20. Discontinuances made by Women c. shall be void and of none effect yet such a Discontinuance made is good against the Woman her self So upon the Statute of 1 Eliz. concerning Bishops See now Coke Lincoln Colledge Case 37 Eliz. in the third Reports 60. A Lease made by Dean and Chapter not warranted by the said Statute shall not be void untill after the death of the Dean who was party to the Lease So upon the Statute of 13 Eliz. of fraudulent Conveyances such fraudulent Conveyance is not void against the Grantor but against those who are provided for by the said Statute and that the Lease in the principal case is not void but voidable all the Iustices agreed to be avoided by the Colledge or any other who claim by it and by Anderson If such a Lease should be void then great mischief would fall to the Colledge for whose benefit this Statute was made for if such Lease be made rendring a small Rent then if before the defect be found or espied the Rent was arrear the Colledge could not have remedy for the said Rent Also by Periam Such a Lessee might have an Action of Trespass against a stranger who entreth upon the Land which proves that the Lease is not void but voidable and afterwards notwithstanding all the Objections Iudgment was given for the Plaintiff and the chief Authority which moved Periam Iustice to be of such opinion was Lemans case cited before 28 H. 8. Dyer 27. where a Lease was made to a Spiritual person against the Statute of 21 H. 8. and a Bond or Obligation for performance of covenants and thereupon an Action was brought and the Plaintiff therein had Iudgment and recovered which could not have been if the Lease were utterly void against the Lessor and Lessee as the very words of the Statute are and although it is not alledged in the Book that that was any cause of the Iudgment yet in his opinion it was the greatest cause of the Iudgment in that case CCCCXXVIII Bighton and Sawles Case Pasch 35 Eliz. In the Common Pleas. IN an Action upon the case it ws agreed by the whole Court 1 Cro. 235. That where Iudgment is given that the Plaintiff shall recover and because it is not known what damages therefore a Writ issueth to enquire of the damages That the same is not a perfect Iudgment before the damages returned and adjudged and therefore they also agreed that after such award and before the damages adjudged that any matter might be shewed in Court in arrest of the Iudgment and by Periam Iustice the difference is where damages are the principal thing to be recovered and where not for if damages be the principal then the full Iudgment is not given until they be returned but in Debt where a certain sum is demanded it is otherwise CCCCXXIX Maidwell and Andrews Case Pasch 33 Eliz. In the Common Pleas. MAidwell brought an Action of Covenant against Andrews Covenant and the Case was this That R. was seised of Lands and leased the same for life rendring Rent and afterwards devised the Reversion to his wife for life and died Andrews the Defendant took to wife the wife of the Devisor the Devisee of the Reversion afterwards Andrews bargained and sold the said Reversion to one Marland and his heirs during his own life and afterwards granted the Rent to the Plaintiff and covenanted that the Plaintiff should enjoy the said Rent during his Term absque aliquo legitimo impedimento of the said Andrews his Heirs or Assigns or any other person claiming from the said Marland Marland died seised and the same descended to B. his heir and the breach of the Covenant was assigned in this i. in the heir of Marland who hath the Rent by reason of the Grant of the Reversion to Marland ut supra the Defendant pleaded the Grant of the Reversion to Marland per scriptum without saying Sigillo suo sigillat hic in Curia prolat absque hoc that the said Reversion and Rent descended to B. and thereupon the Plaintiff did demur in Law and the causes of the Demurrer was assigned by Yelverton Serjeant 1. The Grant of the Reversion is pleaded per sciptum and he doth not say sigillat for a Reversion cannot pass without Deed although it be granted but for years and a bare writing is not a Deed without sealing of it and therefore the pleading ought to be per scriptum suum sigillat or per factum suum for factum suum implies the ensealing and delivery 2. It ought to be pleaded hic in Cur. prolat for the Court is to see such Deed to the end they may know if it be a lawful Deed Traverse 1 Cro. 278. without razure interlining or other defects 3. The Defendant hath traversed the descent where he ought to have traversed the dying seised for of every thing descendable the dying seised is the substance and the descent is but the effect And although the Grant of the Reversion was but for the life of the Grantor yet the estate granted is descendable as 27 E. 3. 31. Tenant by the Courtesie leaseth his estate to one and his heirs the Grantor dieth his Heir entreth and a good Bar against him in the Reversion and see 14 E. 3. Action 56. Annuity granted to one and his Heirs for the term of another mans life the Grantor dieth living Cestuy que vie the Heir of the Grantor brings a writ of Annuity and it was holden maintainable and he said that were the dying seised is confessed and avoided by
firmae against Leonard Lovelace and upon not guilty pleaded it was found for the Plaintiff It was moved for the Defendant in arrest of Iudgment That the Declaration was not good because the granting of Letters of Administration is set forth in this manner viz. Administratio commissa fuit Querenti per Willielmum Lewen Vicarium generalem in spiritualibus Epi. Roff. without averring that at the time of the granting of the Letters of Administration the Bishop was in remotis agendis for a Bishop present in England cannot have Vicarium But as to that it was said by the whole Court That the Vicar general in Spiritualibus amounts to a Chancellor for in truth the Chancellor is Vicar general to the Bishop Another Exception was because the Declaration is not Epi. Roff. loci illius Ordinarii but that was not allowed for all the presidents and course of the Court is That by way of Declaration such allegation needs not but by way of Bar it is necessary Another Exception was taken because the Plaintiff hath declared of an Ejectment and also quod bona catalla ibidem invent cepit c. And here in the Verdict the damages as well for the Ejectment as for the Goods and Chattels are entirely taxed It was adjorned CCCCXXXVI Greeves Case Mich. 32 Eliz. In the Common Pleas. IN a Replevin Replevin the Defendant made Conusans as Bayliff to one Greeves and Rockwood c. and said That A. was seised of the Lands and 6 Eliz. enfeoffed certain persons in fee to the use of his last Will by which he willed that his Feoffees should stand seised of the said Lands Devises Poph. 188. until the said Greeves had levied of the profits of the said Lands the sum of one hundred pounds It was objected against this Conusans that here is no devise for A. at the time of the devise had not any Feoffees but the Exception was disallowed by the Court And they cited the case of 15 Eliz. Dyer 323. Lingens case A. made a Feoffment in fee to his use and afterwards devised that his Feoffees should be seised to the use of his Daughter that the same was a good devise of the Land. See 29 H. 8. Br. Devises 48. CCCCXXXVII Kempton and Coopers Case Mich. 31 32 Eliz. In the Common Pleas. IN Trespass for breaking of his Close the Defendant pleaded Bar. 3 Len. 194. that before this he had brought an Ejectione firmae against the now Plaintiff and recovered and had Execution c. Iudgment if Action c. And by Periam Windham and Anderson Iustices the same is a good Bar and the conclusion of the Plea is also good Iudgment if Action without relying upon the Estoppel CCCCXXXVIII Leigh and Okeley and Christmass Case Mich. 32 Eliz. In the Kings Bench. OLiphe Leigh Fermor of the Queen of a Wood called Meerherst Wood in Warplesden in the County of Surrey brought an Action of Trespass against Henry Okeley and Robert Christmass for breaking of the said Wood and therein entring and cutting down of two hundred loads of Wood and carrying away the same c. The Defendants pleaded That before the time in which the Trespass was supposed c. That King H. 8. was seised of the Manor of Warplesden Custom whereof the said Wood was parcel of which Manor a Close called Withybod containing eleven Acres eidem bosco adjacent was parcel and that the said Wood is and time out of mind c. was closed and separated with Hedges and Ditches from the said eleven Acres which said Hedges and Ditches per totum tempus praedict fuerunt adhuc sunt praedict bosco spectant pertinent And that the said eleven Acres are and time out of mind weâ—â— customary Lands parcel of the Manor aforesaid and demised and demisable in Fee-simple And that the said King H. 8. at a Court holden 38 H. 8. by his Steward demised the said eleven Acres by copy to John Goring and his Heirs and that within the said Manor there is this Custom That every Copyholder Tenant of the said eleven Acres c. hath used and accustomed per se vel servientes suos per eorum praecept succidere capere asportare subboscum in praedict bosco in quo c. pro reparatione praedictarum sepium defensionum inter praedict boscum in quo c. and the said eleven Acres c. quandocunque eaedem sepes defensiones in decasu extiterint and shewed further That at the time of the Trespass c. the said Hedges and Fences were in decay and so justified Vpon which the Plaintiff did demur in Law. It was argued by Godfrey That the Prescription is not good for it appeareth that this customary Land is contigue adjacens to the said Wood i. where the Trespass was done And of common Right the making of the Hedge doth appertain to the Owner of the Wood And the Prescription is no more but to take Wood in the Lands of another adjoyning to my Land to make the Hedges of the same Land in which the Wood groweth which cannot be a good Prescription for it sounds in charge and not to the profit of him who Prescribes Which see 22 E. 3. Prescription 40. Trespass against an Abbot because where the Plaintiff was Farmor of the King of his Hundred of D. and by reason thereof he might make Attachment and distrain for the Debts of the King within the said Hundred and where for a certain debt of the King he distrained the Beasts of one A. and the Abbot made Rescous to which the Abbot said That he was Lord of the Manor of D. within which Manor there was this custom c. That if any Distress be taken within the said Manor that the same should be put into the Pound of the said Abbot of the same Manor and not driven out of the Manor and there ought the Distress to remain three days so that if the party would agree within the three days that then he should have his Beasts and he said That the Plaintiff would have driven the said Beasts out of the said Manor and that he would not suffer him upon which there was a demurrer because it is not any profit to the Abbot but a charge to keep the Beasts of another Also he said That the King shall not be bound by such a custom as another person shall whereupon Iudgment was given for the Plaintiff So here in the principal case There shall be no damage to the Defendant if the Wood be not fenced for if his Cattel escape into the Wood he may justifie it because it is in default of the Plaintiffs inclosure And if the Beasts of the Plaintiff escape into the Lands of the Defendant he may take them Damage Feasant for the cause aforesaid 21 H. 7. 20. A Custom is pleaded That if any Tenants of the Manor shall take the Cattel of any one Damage Feasant and shall therefore distrain them that
then the Tenant so distraining them ought to bring them to the Lords Pound which if he shall not do at the next Court he shall be amerced in a certain sum to the Lord of a Manor to be paid and that was holden no good custom because it is against common Right and the common Law for by the common Law and common Reason every one finding Cattel in his own Land Damage Feasant may impound them in his own Land and the Lord is not damnified thereby So it is of a By-law That every one who holdeth so many Acres of Lands in such a Town shall yearly pay a certain sum of mony to the Church of the same Town and shall forfeit for every default of payment thereof twenty pounds such By-law although it hath continued time out of mind yet it is not of any validity because for not payment of the said sum to the Church the Lord of the Manor is not damnified and therefore he shall not have any gain contrary if the penalty had been limited to the Church-wardens because they are bound to repair the Church Another Exception was taken to the form of the Prescription Quandocunque eaedem sepes defensiones in decasu extiterint and that is too general for so they might be in decay by his own default as if he himself wrongfully pull up the Hedges in which case there is no reason but that he should repair them at his own costs and charges and therefore he ought to have pleaded cum in de casu extiterint in the default of the Tenant of the Wood. Another Exception was taken because that here this custom is pleaded particularly and appropriated to the eleven Acres only and is not extended to the whole Manor and to that purpose the case of 40 E. 3. 27. was cited where a custom is applied to one part of a Town as to say that such a House within such a Town is of the nature of Gavelkind and the rest of the Town is guildable See 21 Eliz. Dyer 363. It was adjorned c. CCCCXXXIX Hare and Okelies Case Hill. 20 Eliz. In the Common Pleas. MIchael Hare and others Trespass brought an Action of Trespass against Okelie for breaking of their close and carrying away their corn And upon Not guilty it was found by special Verdict That the said Michael Hare was sole seised of the said Close where c. and so seised exposuit ad culturam Anglice did put forth to Tillage the said Land to the other Plaintiffs in form following viz. That the said Michael should find one half of the Corn sowed and the other Plaintiffs the other half and that the said Land should be ploughed and tilled and the Corn thereof coming should be reaped and cut at the charges of the other Plaintiffs and so cut should be divided by the Shock and the said Michael to have the one half and the other Plaintiffs the other half c. And it was the opinion of the whole Court That notwithstanding these words exposuit ad culturam that no estate in the soil passed to the other Plaintiffs Exposition of words but the said Michael did remain sole seised as before but by Anderson upon the severance of the Corn peradventure a property in the said Corn might be in all the Plaintiffs But because it appeareth that Michael was sole seised and the other Plaintiffs had not any thing in the Land Therefore it was adjudged that they could not joyn in the Action of Trespass for breaking of the Close and therefore it was awarded by the Court that the Plaintiffs nihil Cap. per breve CCCCXL. Beares Case Trin. 30 Eliz. In the Common Pleas. IN a Formedon by Beare Formedon the Defendant pleaded in Bar a warranty with Assets And upon the Issue nothing by descent it was found That the Ancestor of the Defendant whose warranty was pleaded in Bar was seised of Land in the nature of Gavelkind Bar. and by his Will devised the same to his two Sons whereof the Defendant was the Eldest and their heirs equally between them to be divided and it was adjudged no Assets wherefore the Defendant had Iudgment to have seisin of the Land. CCCCXLI Austin and Smiths Case Pasch 30 Eliz. In the Kings Bench. THe Case was Copyholder of Grants That Austin being a Copyholder by License of the Lord leased his Copyhold to Smith for years rendring rent and afterwards by Deed granted the rent to another to have during the Term c. to which Grant the Lessee did attorn Rents 1 Cro. 637. 651. 895. 1 Roll. 598. 1 Inst 317. a. Litt. 151. b. 152. a. and paid the Rent to the Grantee It was holden by Gawdy Iustice That the Grant was good but now it is but a Rent-seck And it was said by some That the Lessor cannot surrender such a Rent unless he surrender the Reversion also Quaere if the Grantee may have an Action of Debt for it It was conceived he could not for he is not party nor privy to the Contract nor hath the Reversion CCCCXLII Underhill and Savages Case Pasch 31 Eliz. In the Kings Bench. SAvage was presented to a Benefice and afterwards was presented to another Pluralities and then purchased a Dispensation which was too late and then was qualified and afterwards accepted the Archdeaconry of Gloucester And Underhill who had the Archdeaconry libelled in the Spiritual Court against the said Savage where it is holden that all Ecclesiastical Promotions in such cases are void and now Savage sued a Prohibition Prohibition It was argued by Atkinson That the Prohibition did lye for the Patron hath his remedy by our Law by a Writ of Right of Advowson See 29 E. 3. 44. If Avoidance be by Cession or Deprivation and the next Presentment come in question it shall be determined by the Kings Court and here when he accepteth of another Benefice it is cession by the Common Law but there ought to be a Sentence but now there needs not any Sentence for by the Statute of 21 H. 8. Archdeaconry 13. the Church is ipso facto void But it was objected An Archdeaconry is not within the Statute for it is not any Cure with Souls also an Archdeaconry is a late Promotion and therefore it cannot be void by the Statute Lewknor contra The Patronage here doth not come in debate but if the Defendant in the Spiritual Court will plead That the Plaintiff is not Patron but such an one then a Prohibition lieth withal the Iustices granted and it was said by Wray That a Doctor of the civil Law had been with him and affirmed to him that their Law is That if one having a Benefice with cure of Souls accepts an Archdeaconry the Archdeaconry is void but he said That he conceived that upon the Statute of 21 H. 8. the Law is qualified by reason of a Proviso there scil Provided that no Deanry Archdeaconry c.
be taken or comprehended under the name of a Benefice having Cure of Souls in any Article above specified CCCCXLIII Pasch 30 Eliz. In the Kings Bench. Aâ—iâ—d ONe was bounden to stand to the award of two Arbitrators who award that the party shall pay unto a stranger or his assigns 200 l. before such a day the stranger before the day dieth and B. takes Letters of Administration and if the Obligor shall pay the mony to the Administrator or that the Obligor should be discharged was the Question and it was the opinion of the whole Court that the mony should be paid to the Administrator for he is Assignee and by Gawdy Iustice If the word Assignee had been left out yet the payment ought to be made to the Administrator quod Coke affirmavit CCCCXLIV Pasch 30 Eliz. In the Kings Bench. ONe sued in the Kings Bench for Costs given upon a Suit depending in the Hundred Court and the sum of the Costs was under 40 s. and the Plaintiff declared Steward That at the Court holden before the Steward secundum consuetudinem Manerii praedict It was objected that the Steward is not Iudge in such Court but the Suitors to which it was answered by the Iustices That by a Custom in a Hundred Court a Steward may be Iudge and so it hath been holden and here the Plaintiff hath declared upon the Custom for the Declaration is secund consuetudinem Manerii also the Subject may sue here in the Kings Bench for a lesser sum than 40 s. as if 10 s. Costs be given in any Suit here Suit to such costs lieth here in this Court. CCCCXLV Pigot and Harringtons Case Mich. 30 31. Eliz. In the Kings Bench. PIgot brought a Writ of Error upon a Fine levied by him within age Error 1 Cro. 11. the Case was That the Husband and Wife were Tenants for life the Remainder to the Infant in Fee and they three levied a Fine and the Infant only brought the Writ of Error It was objected by Tanfield that they all three ought to joyn in this Writ and the Husband and Wife ought to be summoned and severed Atkinson contrary for here the Husband and Wife have not any cause of action but the Infant only is grieved by the Fine 35 H. 6. 19 20 21 c. In conspiracy against many it was found for the Plaintiff and one of the Defendants brought Attaint and assigned the false oath in omnibus quae dixerunt but afterwards abridged the assignment of the false oath as to the damages and so the attaint well lies Two women are Ioynt-tenants they take Husbands the Husbands and their Wives make a Feoffment in Fee Attaint the Husbands dye the Wives shall have several Cui in vita's for the coverture of the one was not the coverture of the other 7 H. 4. 112. In Appeal against four they were outlawed and two of them brought Error upon it and good 29 E. 3. 14. In Assize against three Coparceners they plead by Bailiff nul tenent de Franktenement c. and found that two of them were disseisors and Tenants and that the third had nothing and afterwards the three Coparceners brought attaint and after appearance the third Sister who was acquit was nonsuit and afterwards by Award the Writ did abate Tanfield Although that the cause be several yet the erronious act was joynt and the receiving of the Fine and that Record being entire ought to be pursued accordingly and then the Husband and Wife shall be summoned and severed and it is not like to the case of 29 E. 3. cited before for there the third coparcener had not any cause of attaint for no verdict passed against her Wray As the Error is here assigned the Writ is well brought for the Error is not assigned in the Record but without it in the person of the Infant Fine upon an Infant reversed and that is the cause of the Action by him and for no other Two Infants levy a Fine although they joyn in Error yet they ought to assign Errors severally and they may sue several Writs of Error and afterwards it was holden by the Court that the Writ was good and the Fine reversed as to the Infant only CCCCXLVI Scovell and Cavels Case Mich. 30 31. Eliz. In the Kings Bench. IN Ejectione firmae by Scovell against Cavel Leases 1 Cro. 89 the Declaration was general upon a Lease made by William Pain and it was found by special verdict That William Leversedge was seised of the Lands c. and leased the same to Stephen Cavel John Cavel and William Pain habend to them for their lives and for the life of the survivor of them Provided always and it was covenanted granted and agreed betwixt the parties that the said John Cavel and William Pain should not take any benefit profit or commodity of the Land during the life of Stephen Cavel and further that the said William Pain should not take any benefit c. during the life of John Cavel c. Stephen Cavel died John Cavel entred and afterwards William Pain entred and made the Lease to the Plaintiff upon whom the Defendant entred and if the Entry of William Pain were lawful was the Question Gawdy Serjant his Entry is not lawful It will be agreed That if a man lease to three for their lives they are Ioynt-tenants but if by the habendum the estate be limited to them by way of Remainder the joynt estate in the Premises is gone and the Land demised shall go in Remainder and I agree that in deeds Poll the words shall be taken strong against the grantor contrary in the Case of Indentures the words there shall be taken according to the intent of the parties for there the words are the words of both See Browning and Beestons Case 2. and 3. Ma. Plowd 132. where by Indenture the Lessee covenanted to render and pay for the Land Leased such a Rent the same is a good reservation although it be not by apt words and here in our Case this Proviso and Covenant Grant and Agreement doth amount to such a limitation by way of Remainder especially when such a clause followeth immediately after the Habendum Coke contrary The Office of the Habendum is to limit and explain the estate contained in the premises and here the Habendum hath done its Office and made it a joynt estate and therefore the Clause afterward comes too late and in truth is repugnant and utterly void as to such purpose but perhaps an action of Covenant lies upon it Wray It hath been by me adjudged if a Lease be made to three Habendum successive the same is a void word and the Lessees are joynt-tenants contrary of Copyhold by reason of Custom and here the proviso and the clause following is contrary to the Habendum and repugnant and so void as to the dividing of the estate by way of Remainder which Gawdy Iustice granted Heale
Bench. WIlliam Wade brought an Action of Debt against Presthall the Defendant pleaded That he was attainted of Treason Debt Ante 326. not restored nor pardoned and demanded Iudgment if he should be put to answer upon which the Plaintiff did demur It was argued for the Plaintiff that the Plea is not good for the Defendant shall not take benefit of his own wrong A person attainted gives his goods Plea in disability of himself not aâ—loâ—ed he shall not avoid it A Woman takes a Husband thereby she hath abated her own Writ It is true That a person attainted is a dead man it is so as to himself but not as to others 33 H. 6. a person attainted is murdered his Wife shall have an Appeal so as to all respects he is not dead and although as yet the Plaintiff cannot have any Execution against the Defendant yet here is a possibility to have Execution if the Defendant get his pardon As a man shall have Warrantia Chartae although he be not impleaded and yet cannot have Execution but there is a possibility to have Execution 22 E. 3. 19. A Rent granted to one in Fee upon condition that if the Grantee die his heir within age that the Rent shall cease during the nonage the Grantee dieth his heir within age his Wife brought Dower presently and recovered and yet she cannot have Execution but yet there is a possibility to have Execution viz. upon the full age of the heir Coke contr By his Attainder he hath lost his Goods Lands Life Degree for he is now become Terrae filius and he cannot draw blood from his Father nor afford blood to his Son or his posterity so as he hath neither Ancestor nor Heir and as to the possibility the same is very remote for the Law doth not intend that he shall be pardoned and see 6 H. 4 64. A man committed a Felony and afterwards committed another Felony and after is attainted of one of them he shall not be put to answer to the other but if he obtain his Charter of pardon he shall answer to the other See also 10 H. 4. 227. tit Coronae Popham Attorney General The Defendant ought to answer for none shall have advantage of his own wrong The Plaintiff is made a Knight pendant the Writ it shall abate because his own Act but here Treasons are so heinous that none shall have ease benefit or discharge thereby And if the Defendant shall not be put to answer until he hath his pardon then the Action is now suspended and an Action personal once suspended is gone for ever and he cited 29 E. 3. 61. in the Book of Assizes where it is said by Sharp Execution upon a Statute may be sued against a man attainted and he said Execution against a person Attainted That if the Enemy of the King comes into England and becomes bounden to a Subject in twenty pounds he shall be put to answer notwithstanding that interest that the King hath in him Harris Serjeant to the same intent he conceived by 33 H. 6. 1. That Traitors are to answer for if Traitors break the Goal the Goaler shall answer for their escape for the Goaler hath remedy against them contrary of the Kings Enemies Burchets Case and he cited the case of one Burchet who being attainted of Treason struck another in the Tower for which notwithstanding his Attainder he was put to answer Egerton Solicitor General And he said That the Action is not suspended but in as much as every Action is used to recover a thing detained or to satisfie a wrong if it can appear that the party cannot be satisfied according to his case he shall not proceed And in this case the Plaintiff if he should obtain Iudgment could not have Execution by the Common Law Ante 213. for he hath no Goods nor by the Statute of Westm 2. by Elegit for he hath no Lands nor by the Statute of 25 E. 3. by his body for it is at the Kings pleasure and then to what purpose shall the Plaintiff sue and it is a general Rule Regula That in all Actions where the thing demanded cannot be had or the person against whom the thing is demanded cannot yield the thing that the Writ shall abate As in a Writ of Annuity by Grantee of an Annuity for years the term expireth the Writ shall abate Abatement of Writ Tenant in special tail brings Wast and pendant the Writ his issue dieth the Writ shall abate c. 2 E. 4. 1. A man Outlawed of Felony pleaded in dis-affirmance of the Outlawry and yet he was not put to answer until he had his pardon and then he shall answer And as to the Case of 33 H. 6. 1. It doth not appear that the Traitors were attainted and then there is good remedy enough And Burchets Case cannot be resembled to our Case for although that by the Attainder the body of the party might be at the Kings pleasure yet his body may be punished for another offence for the example of others And as to Tressels Case who in such case was put to answer I grant it for he concluded Iudgment if Action and so admitted him a person able to answer and then it could not be a good plea in Bar. And in Ognels Case the Retorn of the Sheriff shall bind them for upon Process against a person attainted they returned Cepi where they ought to have returned the special matter without a Cepi but now this general Return shall bind them and by that he shall be concluded to say that the party was not in Execution And this Plea is not any disabling of the Defendant but he informs the Iudges that he is not a person able to answer to the Plaintiff As in a Praecipe quod reddat the party pleads Non-tenure the same is no disabling of his person but a shewing to the Court that he cannot yield to the party his demand A man shall not take advantage of his own wrong i. in the same thing in which the wrong is supposed or against him against whom the wrong is supposed to be done but in other Cases he shall take advantage of his own wrong as Littleton If a Lease for life be made the Remainder over in Fee and he in the Remainder entreth upon Tenant for life and disseiseth him the same is a good Seisin Cases where a man shall take advantage of his own wrong Marbery and Worrals Case upon which he may have a Writ of Right Littleton 112. 35 E. 3. Droit 30. And yet this Seisin was by wrong And there was a Case betwixt Marbery and Worral in the Exchequer The Lessor entred upon his Lessee for life made a Feoffment in Fee with clause of Re-entry the Lessee re-entred the Lessor at the day came upon the Land and demanded the Rent which was not paid it was holden the same is a good demand of the Rent and yet
293 306 362 383 387 409 436 Construction of them 16 42 To Executors to sell 38 42 78 254 To an use 342 Diminution 28 Distress 16 64 78 315 338 Discontinuance of suit 142 Discontinuance of Lands and Estate 150 157 172 Distent 154 163 Where it takes away Entry 293 Disseisin 163 Dower 48 71 118 119 187 233 383 Of Gavelkind 83 182 431 Dutchy Lands 307 The Kings prerogative in them 15 E. EJectione firmae 331 Not of a Tenement 265 Ejectione Custodiae lieth not of a Copihold estate 463 Elegit 65 247 Election 36 52 67 92 289 342 360 Enrolment 10 Endowment 13 Enfant 156 297 Entry 46 66 79 163 165 427 446 For forfeiture 345 Enquiry of damages 197 278 Escape 165 145 203 321 274 Estates 150 219 221 297 288 311 Vested shall not be divested 345 Essoin 184 Estoppell 122 220 224 286 437 Error 12 28 52 71 137 207 228 238 245 246 260 452 By Executors to reverse an Attainder of their Testator 452 278 317 327 328 343 346 363 397 402 412 415 445 365 By Journeys accounts 28 Upon Outlawry 37 Upon Recovery in Assize 69 In assessing damages 71 For want of Averment 121 Upon a common Recovery 181 To reverse a Fine by an Enfant 445 Evidence 70 192 215 414 Exchange 386 Executors 78 311 459 Where they shall have Error or other Actions 459 Where charged of their own goods 87 121 153 Renunciation of them 185 Have action de bonis testatoris 278 Execution 65 202 247 460 200 313 378 Where joynt where several 392 Against a person attainted where not 466 Exception 158 160 79 Extortion 114 327 Extent 366 Extinguishment 15 135 250 56 Exposition of words and sentences 240 326 439 468 Of the word De and vocat 22â— Of the word Term 306 Of the word Uterque 326 Of the Statute of 32 and 33 H. 8. 358 Of the Statute of 21 H. cap. 19. 413 Examination who is to be examined upon the Statute of 27 Eliz. of Huy and Cry 456 F. FAlse imprisonment 462 Feoffments and faits 31 171 172 204 256 288 Per nomen 343 Upon condition 361 Feme covert 166 Fine upon Jurors 181 For Alienation without License 11 50 113 Not paid by Non compos mentis 11 Not payable upon settlement by Parliament 113 Post Fines 338 Fines levied 51 66 81 85 102 187 188 297 330 Where shall not bind a Feme covert 386 Reversed 157 445 Where shall be a breach of Condition 409 Levied by Prescription 265 By Tenant in tail in Remainder 361 Formedon 105 154 Forgery of false Deeds 192 Forfeiture 51 66 84 139 171 297 254 400 Founder and Foundation 49 Fresh Suits 72 Fugitives 12 G. GUardian in socage 454 Gavelkind 154 450 Grants 205 433 380 Of Executors of omnia bona sua 351 Grants of the King 12 33 36 49 162 179 237 280 334 338 451 467 Grants insufficient in point of Limitation shall not be supplied with subsequent words 14 H. HAbendum 13 73 446 Habeas Corpus 93 94 460 I. INtrusion 12 46 49 223 Indictments 9 146 337 363 404 Upon the Statute of 8 H. 6. 461 Upon the Statute of 23. of Recusancy 321 326 322 Upon the Statute of News 390 Informations 162 Upon Statute 1 Eliz. 405 Upon Statute of 23 Eliz. cap. 6. 60 Upon the Statute of Usury 125 161 Upon the Statute of Maintenance 231 291 Upon the Statute of 5 Eliz. for Tillage 319 Joynture 44 205 Joynder in Action 402 439 445 Issue 89 169 192 241 Judgment 89 428 In the Kings Court not defeated by particular customs 35 Where satisfied before a Statute 464 Jurors receiving mony doth not make the Verdict void 21 Fined for eating 181 Justification 462 K. KIng not bound to demand Rent 16 L. LEases 44 46 165 198 205 239 274 286 308 316 320 332 391 425 446 454 By Bishops 77 By Guardian of a Colledge 183 Within the Statute of 13 Eliz. 427 Leet 33 Letter of Attorney 427 Livery of Seisin 10 48 276 287 349 427 Doth prevent Enrolment 10 Libel in spiritual Court 13 127 151 174 175 M. MArriage 67 235 In right and possession 67 Mannor 33 289 Misnosmer 25 49 183 204 298 In Indictments 337 Where material where not 228 Mittimus 200 Monstrans de droit 279 Monstrans de faits 427 N. NOn-residency 129 Non-suit 142 Notice 39 139 141 Nusance 234 318 O. OBligation 129 132 164 192 214 281 Office of Marshal of the King 451 Of Herald 337 Of Marshal of the Kings Bench 451 Office Trove 27 50 85 223 Outlawry 84 280 108 148 190 Lies not upon a Judgment upon a Bill of Priviledge 465 P. PArtition 33 68 136 283 Payment where not good to the Wife 450 Post Fines 338 Plaint 415 Plenarty no Plea against the King 307 Pleadings 21 84 102 167 169 176 186 211 274 339 407 430 449 Non cepit where good 47 Nul tiel Record 85 114 Where Recovery is no Bar 90 Wherein Pleading must make a Title 58 Non damnificatus 95 General and particular ib. Good to common intent 102 Of a Fine ib. Amounts to the general Issue 251 Of Nonest factum 257 453 Out of his Fee 294 Fully administred 434 In disability where not allowed 466 Property 54 Primer seisin 85 341 Protection 93 258 Priviledge 365 Of Exceptions from Juries 287 Of London 384 Plurality 442 Prerogative 11 15 Prescription 14 100 102 143 147 199 249 299 315 336 Words of it 318 In a Stranger not Tenant 14 To erect Herdels 14 147 Where it shall not bind the King 438 For Common 100 To be a Justice of Peace 143 To levy a Fine not good 265 To distrain for Amerciaments 327 To Repair 438 by taking Wood in the Lands of another Man ib. Presentation 50 58 84 207 Repealed by the King 218 Passeth not by a Grant of Bona Catalla 28 By the Bishop who Collates shall not put the King out of possession 307 Praemunire 399 Proof 349 Process 65 Prohibition 123 127 174 175 176 177 208 255 325 336 376 367 318 325 388 411 442 467 Q. QUare Impedit 39 50 58 84 85 190 277 213 232 278 280 284 307 312 284 289 455 Causes of Refusal when good c. contr 39 312 R. RAzure of Deeds 381 Ravishment of Ward 152 Refusal of the Bishop 312 Remitter 40 48 85 118 172 Remainder 134 256 266 336 Upon a Contingent 330 Remitter 48 Redisseisin 90 Receipt 105 Retainer 153 320 Return of the Sheriff 65 200 201 202 312 459 Relation 11 355 Of matter of Record 257 Of a Judgment 264 Of an Execution 423 Rents 187 198 209 280 362 441 Reserved upon a Lease of Dutchy Lands 15 To be paid without demand ib. Charge parcel of a Manor 18 Cannot issue out of a Right 205 Charge out of Copyholds 8 Suspended by Entry 110 240 How to be demanded and when severally 271 425 In esse to some purposes and suspended to others 467 Reputation 18 33 49 Replication 56 102 194 Reversion 362 Cannot pass without Deed 429 Reservation 25 446 Restitution 461 Request 167 303 389 Repleader 102 114 Replevin 33 54 56 64 294 Revocation 113 Recovery 30 In Assise where a Bar 30 Vouchee must appear in person 101 Common Recovery by an Infant 296 S. SAles 225 Seals 12 310 Seisin 271 356 In Fact and in Law 318 Seisure 12 84 119 Scire facias 58 84 187 402 Where for the King è contr 84 Against Executors 84 Upon Audita Querela 195 Summons and Severance 445 Stewards of Manors and Courts 309 294 444 Statutes Construction of them 44 Where they ought to be pleaded where not 427 Supersedeas 189 Sur cui in vita 210 Surrenders 378 385 420 226 454 By the Steward out of Court 309 Vide Copyholds Amounts to an Attornment 408 Of one Termor to another not good 420 By Attorney not good 45 T. TAil 297 Tenant by the Curtesie 233 Tender 88 95 Upon a Mortgage 43 Upon an Award 55 Where it is no Revocation of uses 113 Toll 315 Traverse 12 49 53 56 58 64 68 102 207 213 277 304 331 340 429 467 Where the descent where the dying seised 429 Trespass Vi armis 110 Trover and Conversion 304 305 335 Not against a Feme Covert 433 Tithes 13 25 122 174 175 177 208 325 336 367 380 411 467 In London 25 Become Lay Chattels 29 Jurisdiction of them 76 Claimed by Prescription ib. Discharged by Unity 467 Trial 67 116 148 203 206 255 285 310 413 V. VAriance 175 228 33â—â— Verdict 86 118 181 426 View 30 106 59 Usurpation 58 84 307 Uses 188 288 330 What it is 279 And Declaration of them ib. Not rise out of an Use 10 Not out of a Possibility 279 Contingent raised 31 Void for want of Consideration 279 Limitation of them ib. Raised by Covenant and by Feoffment do differ ib. Suspended yet the Land devised 345 Contingent shall bind the Execution of an Estate in possession 345 Executed to the Possession 409 W. WAger of Law 119 229 282 VVardship 347 VVarning 82 VVills 155 311 VVitherâ—â—m 302 VVarrant of Attorney 246 VVarranty 252 VVast 62 79 86 220 282 359 By Cestuy que use 409 VVrit To the Bishop 84 85 278 289 Of right 212 236 the manner of proceeding in it 419 Of Enquiry of damages 278 FINIS
her Dower so as it was not the meaning of the Devisor that his Wife should have both And therefore by the Recovery in Dower she had dismissed her self of the Rent and by consequence of the benefit of the penalty for not payment of it CLXXXVIII Stephens Case Hill. 30 Eliz. In the Common Pleas. Fines levyed to raise an use IN an Ejectione firmae the case was that the Father covenanted with one A. that in consideration of a Marriage to be had betwixt the Son of the Covenantor and the Daughter of A. that he before such a day would levy a Fine which Fine should be to the uses of the Son and Daughter in tail for the Ioynture of the Daughter The Fine is levyed accordingly to the uses aforesaid The Father dieth but in the Fine no mention is made of any marriage had And upon that matter the Court was clear of opinion that notwithstanding that the marriage was not accomplished yet the estate tail was well enough executed in the Son and Daughter for the Fine without any consideration doth carry the uses but without a Fine such a consideration would not raise such an use without accomplishment of the marriage for the consideration executed ought to produce the use But in this case the uses are perfected by the Fine and A. upon the matter might have had covenant against the Father to have the Fine before the marriage CLXXXIX Billford and Foxes Case Mich. 30 Eliz. In the Common Pleas. BIllford brought an Action of Debt against Fox and his Wife Executrix of one A. her former Husband Debt process continued against them till the Exigent upon which the Husband appeared and put in a supersedeas for himself only 1 Cro. 118. without making mention of his Wife and the case being moved to the Iustices they demanded of the Prothonotaries what was to be done for the same is practise and a dangerous case for example And it was answered by the Prothonotaries that the Court cannot remedy it for now by the Supesedeas the Husband is sine die for he shall not be driven to answer without his Wife as this case is and he is impleaded as in the right of his Wife and therefore the Wife shall be waived Supersedeas by the Husband is not good for the Wife and the Husband discharged See the Book of Entries 187. Debt against the Husband and Wife and process continued until the Exigent the Husband rendred himself and the Wife was waive and Iudgment given quia videbatur Justiciariis hic that the Husband absque praefata uxore sua respondere non potuit ratoni dissonum sit ipsum in Curia hic cum in eadem loquela respondere non potuit ulterius detineri ideo eat inde sine die And so see 43 E. 3. 18. Detinue against the Husband and Wife the Wife is waive and the Husband rendred himself at the Exigent And the point of the Action was upon a bailment to the Wife dum sola suit and the Husband was sine die for he could not answer in such case without the Wife But at the last the Iustices advised thereof and gave order that the Supersedeas should by stayed without recording the appearance of the Husband And by Anthrobus one of the Attorneys of the Court that was the case of the Lady Malory and her Husband who were sued in an Action of Debt and process continued against them till the Exigent upon which the Husband appeared and put in a Supersedeas for himself without speaking of his Wife and his Supersedeas was not allowed but process continued until Out-lawry CXC The Queen against the Bishop of Canterbury and others Hill. 30 Eliz. In the Common Pleas. THe Queen brought a Quare Impedit against the Archbishop of Canterbury the Bishop of Chichester and the Incumbent And counted Quare Impedit that Ashburnham was seised of the Advowson and that he was out-lawed in an Action personal at the suit of such a one and shewed the whole Out-lawry certain And Exception was taken to the Count because in the setting down of the Out-lawry the process is alledged to be returned by the Sheriff but the name of the Sheriff is not there expressed As to that it was agreed by the Court that the truth is that it is provided by the Statute of 12 E 2. cap. 5. That the Sheriffs in their returns put their names to the said Returns but it is not requisite so to plead it for the omitting thereof doth not make the Return void but the Sheriff shall be amerced Another matter was objected for that whereas the Patron had pleaded one plea and the Incumbent the same plea by himself in Bar. The Queen demurred in Law in this manner quoad seperalia placita per dictos 1 Cro. 140. Dyer 181 182. Ante 124. c. seperaliter placitat c. Dicta Domina Regina necesse non habet nec per legem terrae tenetur respondere And the Court was clear of opinion that the Demurrer ought to have been several upon the plea of the Patron by it self and upon the plea of the Incumbent by it self CXCI. Mallet and Ferrers Case Hill. 30 Eliz. In the Common Pleas. IN Trespass of Battery the parties were at Issue upon not guilty Damages increased of a Maim by the Court. and at the Nisi prius it appeared that the Thumb of the right hand of the Plaintiff was clear cut off and so maimed And it was found for the Plaintiff and damages taxed to forty pounds and now the party came in person into Court and prayed in respect of the heinousness of the Maim that the Court would encrease the damages Dyer 105. 1 Cro. 223. 544. Sty 310 311. which damages upon great consideration had were made one hundred pounds and Iudgment given accordingly See that the cutting off any of the Fingers is a Maim 28 E. 3. 54. by Stone and as for the damages further assessed by the Court than the damages taxed by the Iury See Book of Entries 46. 8 H. 4. 135. 39 E. 3. 20. CXCII Atkins and Hales Case Hill. 30 Eliz. In the Common Pleas. RIchard Atkins of Lincolns-Inn brought a Writ of Forger of false Faits against Hale of Gloucester and counted upon the Forger of an Indenture Forger of false faits in quo continetur quod quidam Abbas Monasterii de Gloucester Demisit Situm Manerii de R. terras dominicales c. The Defendant pleaded Not guilty And it was given in evidence on the Plaintiffs part a Lease supposed to be made and forged containing that the said Abbot leased the said Site and all the demesne Lands of the said Manor exceptis duobus seperalibus clausuris inde c. vocat c. And it was moved if this Evidence doth not maintain the Issue And it was holden by the whole Court that the Evidence was good enough for it is not necessary to
his Parishioner all demands in his Lands his Tithes thereby are not extinct and afterwards a Consultation was granted CCCCXII Lee and Curetons Case Trin. 31 Eliz. Rot. 902. In the Kings Bench. Debt 1 Cro. 153. IN Debt upon an Obligation the Defendant pleaded Non est factum and it was found for the Plaintiff and Iudgment given and afterwards the Defendant brought Error and assigned for Error that the Declaration was per scriptum suum obligat Error without saying hic in Guria prolat to which it was answered by Coke that the same was but matter of form for which a Iudgment ought not to be reversed for that the Clark ought to put in without instruction of the party and so it was holden in a case betwixt Barras and King 1 Cro. 768. 778. 3 Cro. 22. M. 29 30 Eliz. Another Error was assigned because the Iudgment is entred de fine nihil quia perdonat where it should be quod capiatur although the Plea were pleaded after the General pardon and for that cause the Iudgment was reversed for if the pardon be not specially pleaded the Court cannot take notice of it as it was holden in Serjeant Harris Case CCCCXIII Lacy and Fishers Case Trin. 31 Eliz. In the Kings Bench. IN a Replevin the taking is supposed in S. which Land is holden of the Manor of Esthall the Defendant made Conusans as Bailiff of the Lord of the Manor aforesaid and issue was taken upon the Tenure Trial. and it was tryed by a Iury out of the Visne of Esthall only Tanfield The trial is good for the issue ought not to have been tried by both Visnes S. and Esthall for two things are in issue If it be holden or not 2. If it be holden of the Manor of Esthall for which cause the Visne ought to be from both places and the opinion of the Court was That for the manner of it it was not good as if an issue be joyned upon common for cause of vicinage it shall be tried by both Towns See 39 H. 6. 31. by Littleton and Danby and the case in 21 E. 3. 12. was cited in a per quae servitia the Mannor was in one county and the Lands holden in another county the Tenant pleaded that he did not hold of the Conusor and that he was tried by a Iury of the County where the Land was See 2 H. 4. Gawdy denied the Book cited of 21 E. 3. to be Law and the reason wherefore the Visne shall come from both places is because it is most likely that both the Visnes may better know the truth of the matter than the one only Another Exception was taken Exposition of Stat. 21. H. 8. cap. 19. because the Conusans as it seems is made according to the Statute of 21 H. 8. 19. and yet the party doth not pursue the said Statute through the whole Conusans for by the Statute in Avowry or Conusans the party needs not to name any person certain to be Tenant to the Land c. nor to make Avowty or Conusans upon any person certain and now in this Conusans he hath not made Conusance upon any person certain but yet he hath named a person certain to be Tenant c. and in as much as this Conusans is not made either according to the Common-Law or according to the Statute it cannot be good But that Exception was dissallowed by the Court for if the Statute remedieth two things it remedieth one and the Conusance made in form as above was well enough by the opinion of the whole Court. CCCCXIV Diersly and Nevels Case Trin. 31 Eliz. In the Kings Bench. IN an Action of Trespass the Defendant pleaded Not-guilty 2 Roll. 682. and if he might give in evidence That at the time of the Trespass the Freehold was to such an one and he as his servant and by his Commandment entred was the question and it was said by Coke That the same might so be well enough and so it was adjudged in Trivilians Case for if he by whose commandment he entreth hath Right at the same instant that the Defendant entreth the Right is in the other by reason whereof he is not guilty as to the Defendant and Iudgment was given accordingly CCCCXV. Savage and Knights Case Mich. 29 and 30 Eliz. Rot. 546. In the Kings Bench. Error Ante 185. 1 Cro. 106. 2 Cro. 109. 654. Sty 91. Yelv. 164. Sty 115. A Writ of Error was brought upon a Iudgment given in Leicester in Debt Tanfield assigned for Error because in that suit there was not any Plaint for in all inferior Courts the Plaint is as the Original at the Common Law and without that no Process can issue and here upon this Record nothing is entred but only that the Defendant summonitus fuit c. and the first Entrie ought to be A. B. queritur versus C c. Clench Iustice a Plaint ought to be entred before Process issueth forth and this Summons which is entred here is not any Plaint and for that Cause the Iudgment was reversed CCCCXVI Rawlins Case Trin. 31. Eliz. In the Kings Bench. IN Trespass for breaking his Close by Rawlins with a continuando It was moved by Coke that the Plaintiff needed not to shew a Regress to have Damages for the continuance of the first Entry scil for the mean profits and that appears by common experience at this day Gawdy Iustice whatsoever the experience be I well know that our books are contrary and that without an Entry he shall not have damages for the continuance if not in case where the Term or estate of the Plaintiff in the Land be determined and to such opinion of Gawdy the whole Court did incline but they did not resolve the point because a Regress was proved See 20 H. 6. 15. 38 H. 6. 27. CCCCXVII Harris and Bakers Case Trin. 31. Eliz. In the Kings Bench. Accompt Damages 3 Len. 192. Collet and Andrews Case 2 Len. 118. 3 Len 149. IN an accompt damages were given by the Iury and it was moved that damages ought not to have been given by way of damages but the damages of the Plaintiff shall be considered by way of Arrearages but see the Case H. 29 Eliz. in the Common Pleas betwixt Collet and Andrews and see 10 H. 6 18. In Accompt the Plaintiff shall count to his damage but shall not recover damages vide 2. H. 7. 13. 21 H. 6. 26. The Plaintiff shall not recover damages expresly but the Court shall adâ— quoddam incromentum to the Arrearages Coke It hath been adjudged that the Plaintiff shall recover damages ratione implicationis non Retentionis CCCCXVIII Mich. 26. Eliz. In the Kings Bench. THe words of the Statute 32 H. 8. cap. 37. of Rents are that the Executor of a Grantee of a Rent-charge may distrain for the arrearages of the said Rent incurred in the life of the Testator so long as the Land charged doth continue in