Customs stand with Reason And so in 5 H. 7. Where a Man prescribes That for the Pasture which the Beasts of the Tenant have taken in his Lands in the day-time that he have the Foldage of them upon his said Lands in the Night to manure his Lands is a good prescription because the party hath for it Quid pro Quo. And so where a Man prescribes to have a Farthing of every one who passeth over his Land the same is called Toll traverse and is good And so in 7 H. 4. Where a Man prescribes in Common by reason of Vicinage it is good for though it cannot be of Common Right yet because each hath Quid pro Quo it is good And so is the Custom for Fishermen to dry their Nets upon the Banks of the Lands of other Men lying upon the Sea Coasts because it is for the Common wealth and every Man hath an advantage by it but if a Man should prescribe to Fowle there upon the Lands of another that were not good Meade contrary That case is as it hath been put and divers Cases of the Common Law Custom and Statute Laws have been shewed And by common Intendment it is intended that need doth require the making of the By-Law for otherwise they would not have made it and there needs not any averment that there was need of it for that shall be taken by intendment As 19 E. 4. A Man counts of the Grant of the next Avoydance and the Count is good without shewing that that was the next Avoydance but yet it would have been better if it had been expressed And 21 H. 7. In Trespass the first day of May the Defendant pleads the Licence of the Plaintiff without shewing that it was for the same Trespass and yet it shall be intended when he pleads a Licence for the same day that it was for the same Trespass And as to the Case put upon the Statute of 1 R. 3. it hath been ruled otherwise for it shall be shewed on the other side that he was within age as it appeareth by 10 13 H. 7. Also he said that the Court here shall intend that there was a necessity sufficient without expressing of it and if there was not then it ought to be alledged on the other side As 15 H. 7. An Annuity is granted until he was advanced to a Benefice the Plaintiff shall not need to shew it but that shall come on the Defendants part And the Statute which is That no Cattel of the Plough shall be distrained where the party hath other Cattel of which a Distress may be taken there the party needs not to alledge that he had other Cattel or other Goods And as to that which hath been said That it was the better Order that needs not for the Defendant himself was one of the makers of the Order and when By-Laws are made they shall not extend but to the Tenants within the Mannor where they are made and to such only as have Lands there and not to the Lands of others which are out of the Mannor and the Defendant in this case shall not be received to say but that this is a good Custom and Order because he is a party to it and was the maker of it and that there was then a necessity for the making of it for the better ordering of the Lands and that especially when as the Defendant himself was a party to it And as to that which is said That Seisin is alledged in the Lord Cromwell in 6 E. 6. and it is not alledged that the Seisin did continue in him until 13th of this Queen It shall be intended that he continued seised until the contrary be shewed As in 11 H. 7. A Man prescribed to have Common by reason of the House c. The Avowant doth not say that he was seised of the House at the time c. of the disseisin of the Common because he once alledged Seisin of the House and that Seisin shall be intended to continue unto the time of the disseisin And so 10 H. 7. A Prior Domus Ecclesiae de C. brought Waste and supposed that it was to the disenheresin of the House and did not say praedict Domus and yet it was good and shall be referred to the said Priory And so here when he saith that he was Lord and that the By-Law was made as before and a penalty imposed and a Distress taken by the Bailiff of the Lord Cromwell for not observing the By-Law and payment of the sum assessed all being put together makes a sufficient certainty and that the Lord Cromwell continued his Seisin of the Mannor and Land And as to that which hath been said That the By-Law made and the Custom alledged to distrain in the Lands of any Man for the Offence of another is not reasonable and against the Law To that he said That the Tenants here had authority to make By-Laws and by their consents have bounden themselves to the observing and performance of them and therefore shall not now be received to say That the By-Law made by themselves was against the Law. And he said That the Customs in some places are Where there are Waste Lands that they may make By-Laws That if any Tenant or person dig Turfs in the same Waste that the Lord may distrain for such offence within any place of the Mannor and the Cattel of any person Quaere of it The Principal Case was Adjourned LXIV Mountford and Catesbys Case Mich. 15 Eliz. In the Common Pleas. AN Action upon the Case was brought by Mountford against Catesby Dyer 328. Vaugh. Rep. 120. And the Plaintiff declared That the Defendant covenanted assumed and promised in Consideration of a certain sum of Mony to him paid and in Consideration of the payment of a Rent of certain Lands demised to the Lessee That he should peaceably and quietly enjoy the same without Interruption of any person and he was ousted by a stranger And the matter aforesaid was found by special Verdict And it was argued by Lovelace Serjeant and he prayed Iudgment for the Plaintiff And he said That there is a difference when it is said that a Man shall hold and enjoy peaceably and quietly As in Case where one warrants Land there if he be ousted by a stranger who hath not any Title to the Land he shall have an Action of Trespass against him But a Man by word or Covenant may bind himself to that which he is not bound to do by the Law. As if the Covenant and Promise be That he shall leave the Houses in as good plight as he found them there although the Law doth not bind the party to re-edifie the Houses in case they be overthrown by tempest of Wind or that they be destroyed by Enemies yet by his special Covenant he shall be bound to re-edifie them Meade contrary And that this promise shall not be taken strictly against the Lessor Hob. Rep.
Mich. 29 El. C.B. p. 168. C. 219 Weshborn and Mordants Case Mich. 29 Eliz. B. R. p. 174. C. 225 Williams and Linkfords Case Trin. 29 Eliz. B.R. p. 177. C. 229 Welcot and Powells Case Pasch 30 El. B.R. p. 206. C. 263 Wigmore and Wells Case Pasch 30 El. B. R. p. 206. C. 264 Willoughbies Case Trin. 30 Eliz. B. R. p. 216. C. 285 Wood and Payns Case Trin. 31 El. B.R. p. 228. C. 306 Sir Walter Wallers Case Trin. 32 Eliz. Exchequer p. 241. C. 333. p. 259 C. 345 Woodward and Baggs Case Hill. 32 El. B. R. p. 257. C. 341 Witherington and Delabars Case Mich. 33 Eliz. B. R p. 268. C. 360 Y. YOung and Ashburnhams Case Hill. 29 Eliz. C. B. p. 161. C. 210 Yates Case Trin. 31 Eliz. B.R. p. 231 C. 312 THE THIRD PART OF THE REPORTS OF Several Excellent Cases Argued and Adjudged in the several COURTS of LAW at Westminster In the Time of the Late Queen ELIZ. From the First to the Five and Thirtieth Year of her Reign In the Time of Edw. the Sixth I. 6 Edw. 6. In the Common Pleas. A Man had a Warrren in Fee extending into three Towns Benlow's Rep. 12. Owen Rep. 10. 1 And. 26. 13 Co. 57. 1 Inst 148. a. 7 Co. 23. b. Goldb 44. and Leased the same by Deed to another rendring Rent And afterwards granted by Deed the Reversion of the whole Warren in one of the said Towns to another and the Lessee attorned It was holden by all the Iustices in the Common Pleas That neither the Grantor nor the Grantee should have any part of the Rent during the same Term Because no such Contract can be apportioned II. 6 Edw. 6. In the Common Pleas. A Man by Deed Indented 1 And. 27. Bargained and sold Land unto another in Fee and Covenanted by the same Deed to make to him a good and sufficient Estate in the said Land before Christmas next And afterwards before Christmas the Bargainor acknowledged the Deed and the same is enrolled It was the Opinion of all the Iustices of the Common Pleas That by that Act the Covenant aforesaid was not performed For the Bargainor in performance of the same ought to have levied a Fine made a Feoffment or done other such Acts. III. 6 Edw. 6. In the Common Pleas. 1 And. 32. IN Dower the Tenant made default at the Summons and now at the Grand Cape he came and said That he could not come because he was in great infirmity at the time of the Summons so as he could not appear It was the Opinion of the whole Court That that matter should not save his Default because it cannot be tryed as creit de Eue and Imprisonment may be IV. 6 Edw. 6. In the Common Pleas. 1 And. 32. DEbt against Executors who pleaded Riens enter Maynes which was found against them The Plaintiff sued forth a Writ of Execution Vpon which the Sheriff retorned Nulla bona Testatoris within the County It was the Opinion of the Court That the same was a good Retorn for it may stand with the Verdict for it may be that they have Assets in another County See 3 H. 6. 11. Where the Retorn is general Quod non habent Executores aliqua bona Testatoris that it was holden insufficient but here in this Case the Retorn is special scil in the same County In the Time of Queen Mary V. 1 and 2 Philip and Mary In the Common Pleas. 1 And. 31. TEnant in tail had Issue two Sons and enfeoffed his younger Son and died The younger Son died without Issue leaving his Wife priviment ensient with a Son the elder Brother entred It was holden in this Case That he was Remitted and although that afterwards the Son was born yet the same should not avoid the Remitter VI. Stapleton and Truelocks Case Mich. 1 and 2 Phil. and Mary More Rep. 11. WIlliam Stapleton Executor of John Scardenyll brought an Action of Debt against John Truelock Administrator of the Goods of William Truelock who died Intestate upon a Bill sealed The Defendant demanded Oyer of the Testament By which it appeared That the said Scardenyll had made the Plaintiff and the said William Truelock his Executors And in the said Will was this Clause I Will That my Friend William Truelock shall pay to my other Executor all such debts as he oweth me before he shall meddle with any thing of this my Will or take any Advantage of this my Will for the discharge of the same debts for that I have made him one of my Executors And upon this matter It was clearly Resolved that the said William Truelock could not Adminster nor be Executor before he had paid the debts And the Defendant said That the said William Truelock in his life had paid unto his Co-Executors all such debts which in vita sua debuit to the said Scardenyll And also that the said William Truelock in his life time had Administred the Goods of Scardenyll with his Co-Executors And in this Case Iudgment was given for the Plaintiff and that for default of pleading For the Defendant ought to have shewed Acquittances of the payment of the debts to his Co-Executors and also ought to have shewed in Certainty what debts they were VII Hecks and Tirrell's Case 3 and 4 Phil. and Mary DEbt by Hecks and Harrison against Tirrell as Heir Who pleaded Nothing by Descent The Plaintiff Replyed 1 And. 28. Assets at such a place within the Cinque-Ports And so it was found by a Iury of the County adjoyning and Iudgment given of the moyety of his Lands aswell those by descent as by purchase And a Writ awarded to the Constable of Dover to extend the Lands within the Cinque-Ports But it was said That first the Plaintiff ought to have a Certiorari to send the Record into the Chancery and from thence by Mittimus to the Constable of Dover VIII The King and Due and Kirleys Case 4 and 5 Phil. and Mary THe King and Queen brought a Writ of Disceit against Due and Kirley and declared More Rep. 13 That one Colley was seised of certain Lands in Fee and held the same of the King and Queen as of their Mannor of Westbury the which Mannor is Ancient Demesne and so seised levies a Fine thereof to the said Due Sur Conusans de Droit come ceo c. Due rendred the Land to Colley for life the Remainder over to Kirley in Fee Colley died Kirley entred as in his Remainder Kirley pleaded That the Land whereof c. is Frank Fee c. Vpon which they are at Issue Which Issue depending and not tryed Due died It was moved in this Case That the Writ might abate But that was denyed by the Court. For this Action is but Trespass in its nature for to punish this Disceit and no Land is to be recovered but only the Fine Reversed IX Eliot and Nutcombs Case Mich. 4 and 5 Phil. and Mary
abate For the Writ shall be brought by the Heir of the Survivor of the said two Daughters because they have that remainder as purchasors XXXIII Stuckly and Sir John Thynns Case Mich 9 Eliz. In the Common Pleas. THo Stuckly Administrator of the Goods and Chattels of one Tho. Curties Alderman of London brought Debt upon an Obligation against Sir John Thynn and demanded of him 1000 l. Et modo ad hunc diem venerunt Tam praefatus Tho. Stucklie quam praedict Johannes Thynn Et super hoc dies datus est usque Oct. c. in statu quonunc c. salvis c. At which day the Defendant made default and thereupon the Plaintiff prayed his Iudgment against the Defendant But the Opinion of the Court was That he could not have it but was put to process over because Dies Datus is not so strong as a Continuance XXXIV Luke and Eves Case Pasch 10 Eliz. In the Common Pleas. IN a Replevin by Luke against Eve The Defendant Avowed because that the Iury at such a Leet did present That the Plaintiff was a Resiant within the Precinct of the said Leet c. and that the Plaintiff was warned to appear there and notwithstanding that made default For which he was Amerced by the Steward there to 5 s. And so for that Amercement he avowed the taking c. The Plaintiff in bar of the Avowry pleaded That at the time of the said Leet holden he was not a Resiant within the Precinct of the said Leet Vpon which they were at Issue And it was found for the Avowant Whereupon Iudgment was given for the Avowant to have a Retorn XXXV Mich. 14 Eliz. Rott 1120. In the Common Pleas. THe Abbot and Covent of York Leased to J.S. certain Lands at Will and afterwards by Deed Indented under their Covent Seal reciting That whereas J.S. held of them certain Lands at Will they granted and demised that Land to the said J.S. to hold for life rendring the ancient Rent And by the same Indenture granted the Reversion of the same Land to a stranger for life It was holden by the Court clear That an Estate for life accrueth unto J.S. by way of Confirmation and the remainder unto the stranger depending upon the Estate created by the Confirmation XXXVI Sir Francis Carews Case Mich. 14 Eliz. In the Common Pleas. SIr Nicholas Carew seised of the Mannor of A. of which Mannor B. held certain Lands B. is disseissed by C. C. assures the same to Sir Nicholas Carew who is attainted of Treason by which Attainder the Mannor and Land cometh to King Henry 8th who thereof dieth seised and the same descends to King Edward the 6th who grants the same Mannor to the Lord Darcy who grants the same to Queen Mary who grants the same to Francis Carew Son of Nicholas Carew who by Fine assures the same to the Lord Darcy the Proclamations pass and the 5 years pass she who hath right to the Lands whereof the Desseisin was made being for all that time a Feme Covert And therefore the Fine did not bar her But because that the King was entituled to the Land by a double matter of Record and by the descent from Hen. the 8th to Ed. the 6th And also because a Seignory is reserved to the King upon the Grant made by King Edward the 6th to the Lord Darcy The Iustices were all of Opinion That the Entry of the Heir of the Disseisee was not lawful upon the Patentee of the Queen 2 Len. 122. but that she ought to be Relieved by way of Petition XXXVII Mich. 14 Eliz. In the Common Pleas. A Man brought an Action of Trespass against another for chasing of his Ewes being great with Lambs so as by such driving of them he lost his Lambs The Defendant justified because they were in his several Damage-feasans wherefore he took them and drove them to the Pound And it was holden by the whole Court to be no Plea for although that he might take yet he cannot drive them with peril c. XXXVIII Mich. 14 Eliz. In the Common Pleas. More Rep. 16 23. THe Case was A. made a Lease to B. for life and further grants unto him That it shall be lawful for him to take Fewel upon the premisses Proviso That he do not cut any great Trees It was holden by the Court That if the Lessee cutteth any great Trees that he shall be punished in Waste but in such case 1 Len. 117. the Lessor shall not re-enter because that Proviso is not a Condition but only a Declaration and Exposition of the Extent of the Grant of the Lessor in that behalf And it was holden also by the Court That Lessee for life or for years by the Common Law cannot take Fewel but of Bushes and small wood and not of Timber-Trees But if the Lessor in his Lease granteth Fireboot expresly if the Lessee cannot have sufficient Fewel as above c. he may take great Trees XXXIX Mich. 14 Eliz. In the Kings Bench. 2 Roll. 787. IN Trespass upon an Evidence given to the Iury at the Bar the Case appeared to be thus Land was given to A. in tail the remainder in Fee to his Sisters being his Heirs at the Common Law A. made a Deed in this manner viz. I the said A. have given granted and confirmed for a certain piece of Mony c. without the words of Bargained Sold And the Habendum was to the Feoffee with warranty against A. and his Heirs And a Letter of Attorny was to make Livery and Seisin And the Deed was in this manner To all Christian People c. And the Deed was enrolled within one month after the making of it And the Deed was Indented although that the words of the Deed were in the form of a Deed Poll And after 4 months after the delivery of the Deed the Attorny made Livery of Seisin A. died without Issue and the Sisters entred and the Feoffee ousted them of the Land and thereupon they brought an Action of Trespass And the Opinion of the whole Court was for the Plaintiff for here is not any Discontinuance for the Conveyance is by Bargain and Sale and not by Feoffment because the Livery comes too late after the Inrollment and then the Warranty shall not hurt them And although that in the Deed there be not any word of Indenture and also that the words are in the first person Yet in as much as the Parchment is Indented 2 Roll. 787. and both the parties have put their Seals to it it is sufficient Also It was clearly agreed by the Court That the words Give for Mony Grant for Mony Confirm for Mony Agree for Mony Covenant for Mony If the Deed be duly Inrolled that the Lands pass both by the Statute of Vses and by the Statute of Inrollments as well as upon the words of Bargain and Sale. And by Catline Wray and Whiddon the party ought to take by way
King and a Common Person was moved to the Court by Lovelace Serjeant Dyer Iustice I conceive That it is a good Purchase in Law as well in the Case of the King as in the Case of a Common Person And see to that purpose 39 E. 3. and in this Case If the King had granted the Land to John Holt without naming him Son the same had been a good Purchase But if the King had called him John the Son of Thomas without giving him a sirname there such a Purchase should not be good if he were a Bastard because he hath not Nomen Cognitum as where he hath a sirname and a Man cannot purchase by the Name of John only and then if he be called John the Son of Thomas when he is not his Son it cannot be good And such Case hath here lately been adjudged Where the Lord Powis gave certain Lands to Thomas Gray his Son by him begotten upon the Body of Jane Orwell and in truth the said Thomas was a Bastard of the said Lord Powis and the name of Jane was not Orwell but the Daughter of one Punt and the Mother of Jane who was first married to Punt betwixt whom Jane was begotten married with one Orwell and yet notwithstanding that wrong Name and that the said Thomas Gray was not the Son of the Lord Powis born of Jane Orwell but of one Jane Punt yet it was a good Purchase and Gift to Thomas Gray because it was his known Name Manwood As I take it the Letters Patents are Ex certa scientia ex mero motu and then the Kings Grant shall not be taken in such plight as the Grant of a Common Person void for incertainty because that the King takes notice of the Person of what degree he is and in the Kings Case where he takes knowledge by the words Ex certa scientia there all matter of uncertainty shall be avoided and made good but not matter which is not true And for uncertainty he said Where a thing may be taken two ways there without the words Ex certa scientia c. the best shall be taken for the King and strongest against the Patentee But by Dyer by the words Ex certa scientia c. that incertainty is saved and shall be taken strong for the Patentee and if it can any ways be taken for him then the Patent shall not be void and then when in the principal Case there is the word Son and the word Son may be taken two ways either for a base Son or a true Son there by the words Ex certa scientia the King taketh upon him to know in what manner he is Son and a base Son is a Son Quodam modo so as the Letters Patents shall not be false But where the King in his Letters Patents recites a thing which is false that shall not make the Patent good although the words be Ex certa scientia et mero motu LXX Mich. 15. Eliz. In the Common Pleas. NOte It was agreed by the Court That if a Man in a Replevin pleadeth and they are at Issue and the Iury is charged and gone from the Bar and returns to give their verdict and the Plaintiff be non-suit their retorn irreplevisable shall not be awarded as in case if a verdict had been given But the party may have a Writ of second Deliverance as well as if he had been nonsuit before declaration or appearance LXXI Trin. 15 Eliz. In the Common Pleas. THe Case was The Husband levied a Fine of his Land and died and his Wife within the 5 years after the death of her Husband brought her Writ of Dower but did not pursue her Writ until 6 years were past and then she would have revived her Suit. And Meade Serjeant demanded the Opinion of the Iustices If the Wife should be barred of her Dower or not And by Manwood Iustice it was moved again If they at the Bar did agree That if a Fine be levied by the Husband and the Wife doth not make her claim within the 5 years if for that she shall be barred And he conceived That she should not be barred For he said That he who hath Title to the Land at the time of the Fine levied if he doth not sue within 5 years after his Title accrued should be barred But where the Title accrues after the Fine there he who hath Title shall not be barred by the 5 years but he may come 30 years after and make his Title and Claim But in the principal case he said That if the Fine had been levied after the death of the Husband there the Wife should be barred if she did not pursue her Right and Claim within 5 years And he agreed That if the 5 years be a Bar here that then by the Wives suffering of her Writ of Dower to be discontinued till after the 5 years were past that she should be barred because vigilantibus non dormientibus subveniunt Leges Harper said That the Discontinuance should be no Bar unto her For he said That if a gift be made to one in tail the Remainder over and Tenant in tail dieth without Issue and he in the Remainder brings a Formedon in the Remainder within 5 years and discontinueth it yet it is no Bar but that after the 5 years ended he may revive his Suit Which Manwood denyed And then Dyer came into the Court and the Case was moved to him And he said That the not prosecuting of the Action by the Wife should be a Bar unto her and that the Marriage which was before the Fine was the cause of Dower although she could not come to be endowed until after the death of her Husband And he said That the Wife could make no other to have her Dower but only by bringing of her Writ of Dower and therefore if she did surcease her time until the 5 years were past that her new claim by her new Writ would not revive the Ancient Claim and that therefore she should be barred For she could not enter into the Land to defeat the Fine And he said That as to the principal Case That it was adjudged Anno 4 H. 8. And it was also said by the Court That an Assignment of Dower made to the Wife in the Court of Wards was no sufficient claim of the Wife because she cannot have a Writ of Dower there and there by this surceasing of her demand of her Dower for the 5 years at the Common Law that she should be barred LXXII Trin. 15 Eliz. In the Common Pleas. THe Case was A Man made a Lease for years and the Lessee Covenanted to make Reparations The Lessor granted the Reversion to another and the Lessee for years made his Wife his Executrix and died It was holden in this Case by the Court That the Grantee of the Reversion should not recover damages but from the time of the Grant and not for any time before But yet the
him any other surety for his Debt he is contented so to do And John Stampe offered to the said P. the said B. and C. and he accepted the same and at the request of the said John Stampe granted his Interest to them 2 Feb. 22 Eliz. P. having notice of the Grant before made to the said G. Vpon which G. enformed against P. upon the Statute of 32 H. 8. It was holden in this Case by Periam and Meade Iustice That P. was not within the penalty of the Statute For P. granted his Interest to B. and C. at the suit and at the request of John Stampe who was the Mortgager for assurance of his Debt which he ought to them And therefore it shall not be intended that that Grant was made for any maintenance or for any unlawful cause against the Statute And also John Stampe who granted unto P. had possession and received the Issues and Profits of the said Lands for a whole year before the Grant notwithstanding that he was not in possession by a whole year next before the day of the date of the Grant. Godb. 450. As if a Man be in possession or hath received the Issues and Profits for a whole year and afterwards a stranger enters upon him and hath the possession for the space of a Quarter of a year or half a year yet he who was in possession by a year before may grant his Interest without danger of the Statute c. CXX Pasch 24 Eliz. In the Kings Bench. NOte Per totam Curiam 2 Len. 35. A man made his Will in this manner scil I Will and Bequeath my Land to A. And the name of the Devisor is not in the whole Will Yet the Devise is good enough by Averment of the name of the Devisor And for proof that the same is his Will If one lying in extremis having an intent to devise his Lands by Word makes such devise but doth not command the same to be put in writing but another without the knowledge or Commandment of the Devisor putteth it in writing in the life-time of the Devisor the same is a good Devise For it is sufficient if the Devise be reduced into writing during the life of the Devisor CXXI Pepy's Case Pasch 25 Eliz. In the Common Pleas. WAste was brought by F. and his Wife against Pepy and declared That the said Pepy was seised and enfeoffed certain persons to the use of himself for life and afterwards to the use of the Wife of the Plaintiff and her Heirs The Defendant pleaded That the said Feoffment was to the use of himself and his Heirs in Fee c. absque hoc that it was to the uses as in the Count Vpon which they were at Issue And it was found by Verdict That the said Feoffment was to the uses contained in the Count but further found That the Estate of the Defendant by the Limitation of the use was priviledged with the impunity of Waste scil without Impeachment of Waste It was moved If upon that Verdict The Plaintiff should have Iudgment Anderson and Rhodes Iustices conceived That he should for that the matter in Issue is found for the Plaintiff and that is the Feoffment to uses contained in the Count and this impunity of Waste is a Forreign matter not within the Charge of the Iury and therefore the finding of the same is but matter of surplusage As if I plead a Feoffment of J. S. to which the other pleads That he did not enfeoff and the Iury find a Conditional Feoffment the Court shall not respect the finding of the Condition for it was not in Issue and no advantage shall be ever had of such a Liberty if it be not pleaded 30 H. 8. Dyer 41. In Dower the Tenant pleaded Ne unque seisi que Dower c. The Tenant pleaded That before the Coverture of the Demandant one A. was seised and gave the Land whereof Dower is demanded to the Husband of the Demandant in tail who made a Feoffment A stranger took the Demandant to Wife took back an Estate in Fee and died seised having Issue inheritable Now although upon the truth of the matter she is nâ—t Dowable de jure yet forasmuch as the parties were at Issue upon a point certain no forrein nor strange matter not in Question betwixt the parties shall be respected in the point of Iudgment But if the Defendant had pleaded it in Bar he might have foreclosed the Demandant of her Dower See 38 Ass 27. 47 E. 19. In a Praecipe quod reddat upon the default of the Tenant came one and shewed How that the Tenant who made default was but Tenant for life of the Lands in demand the Reversion in Fee to himself and prayed to be received The Demandant counterpleaded the Resceit Dicendo That the Tenant had Fee c. Vpon which Issue was taken And it was found That neither the Tenant nor he who prayed to be received had any thing in the Land. And in that Case The Court did not regard the matter which was superfluous in the Verdict For they were at Issue upon a point certain scil whether the Tenant was seised in Fee For it is confessed of the one side and of the other that he had an Estate for life and of that matter the Iury was not charged and they are not to enquire of that And so it is found against the Demandant by which the Resceit was granted See 7 H. 6. 20. The parties were at Issue upon a Dying seised which is found by Verdict but the Iury find further That the other party made continual Claim The said continual Claim shall not be respected in point of Iudgment because it was not pleaded in Avoidance of the Disceit c. Windham Iustice to the contrary because it appeareth to us upon the Verdict That the Plaintiff hath not cause of Action and therefore he shall not have Iudgment As in Detinue the Plaintiff declares upon a Baylment by his own hands The Defendant pleads Ne Detinue pas the Iury find the Detinue but upon Baylment by another hand In that case notwithstanding that the Detinue be found yet the Plaintiff shall not have Iudgment But Anderson Rhodes and Periam conceived That in the principal Case Iudgment should be given for the Plaintiff For in no case the party shall have advantage of that liberty of impunity of Waste if he doth not plead it And the Iurors are not to meddle with any matter which is not in issue and if they do It is but matter of surplusage and to no purpose and afterwards Iudgment was given for the Plaintiff See the Number Roll Pasch 25 Eliz. Rot. 602. CXXII Skipwith's Case Pasch 20 Eliz. In the Common Pleas. IN an Action of Trespass It was found by a special Verdict Godbolt 14 143. Co. of Copy-holds 94. That the Lands were Copy-hold Lands That the Custom of the Mannor was That Quaelibet Foemina Viro Co-operta poterit
Plaintiff ad requisitionem dicti Davidis repararet And the Plaintiff declares That reparavit generally without saying 2 Cro. 404. That ad requisitionem Davidis reparavit And that is not the Reparation intended in the Consideration i. e. reparatio ad requisitionem c. but a Reparation of his own head and at his pleasure And for this Cause the Iudgment was stayed CXXXII Wrennam and Bullman's Case Pasch 26 Eliz. In the Common Pleas. 2 Len. 52. 1 Len. 282. WRennam brought an Action upon the Statute of 1 2 Phil. Mar. against Bullman for unlawful impounding of Distresses and was Nonsuit It was moved by Shuttleworth Serjeant If the Defendant should have Costs upon the Statute of 23 H. 8. And it was Adjudged That he should not And that appears clearly upon the words of the Statute c. for this Action is not conceived upon any matter which is comprised within the said Statute and also the Statute upon which this Action is grounded was made after the said Statute of 23 H. 8. which gives Costs and therefore the said Statute of 23 H. 8. and the remedy of it cannot extend to any action done by 1 2 Phil. Mary And Rhodes Iustice said It was so adjudged in 8 Eliz. CXXXIII Mich. 26 Eliz. In the Kings Bench. 2 Len. 161. Dyer 291. IN a Formedon of a Mannor The Tenant pleaded Ioynt-Tenancy by Fine with J.S. The Demandant averred the Tenant sole Tenant as the Writ supposed and upon that it was found and tryed for the Demandant Vpon which a Writ of Error was brought and Error assigned in this Because where Ioynt-Tenancy is pleaded by Fine the Writ ought to have abated without any Averment by the Demandant against it and the Averment had been received against Law c. Shuttleworth At the Common-Law If the Tenant had pleaded Ioynt-Tenancy by Deed the Writ should have abated without any Averment but that was remedied by the Statute of 34 E. 1. But Ioynt-Tenancy by Fine doth remain as it was at the Common Law For he hath satis supplicii because by his Plea if it be false he hath by way of Conclusion given the moyety of the Land in demand to him with whom he hath pleaded Ioynt-Tenancy And the Law shall never intend that he would so sleightly depart with his Land for the abatement of a Writ As in a Praecipe quod reddat the Tenant confesseth himself to be a Villein of a stranger the Writ shall abate without any Averment Free and of Free estate for the Law intends that the Tenant will not inthral himself without cause Wray to the same purpose But the Demandant may confess and avoid the Fine as to say That he who levied the Fine was his Disseisor upon whom he hath before entred And if Tenant in Feesimple be impleaded and he saith That he is Tenant for life the remainder over to A. in Fee and prayeth in Aid of A. the Demandant shall not take Averment That the Tenant at the time of the Writ brought was seised in Fee. Note In this Formedon Ioynt-Tenancy was pleaded but as to parcel And it was holden by Wray and Southcote That the whole Writ should abate the whole Writ against all the Defendants And so where the Demandant enters into parcel of the Land in demand if the thing in demand be an entire thing the Writ shall abate in all In this Writ the Demandant ought to have averred in his Writ an especial foreprise of the Land parcel of the Land in demand whereof the Ioynt-Tenancy by the Fine is pleaded For this dismembring of the Mannor and distraction of the Land of which the Ioynt-Tenancy is pleaded is paravail and under the gift whereof the Formedon is conceived and therefore in respect of the title of the Demandant it remains in right parcel of the Mannor and therefore ought to be demanded accordingly with a foreprise But if A. giveth unto B. a Mannor except 10 Acres in tail there if after upon any Discontinuance the issue in tail is to have a Formedon in such case there needs not any foreprise for the said 10 Acres for they were severed from the Mannor upon the gift But if Lands in demand be several as 20 Acres except 2 Acres this foreprise is not good See Temps E. 1. Fitz. Brief 866. Praecipe c. unam bovatam terrae forprise one Sellion and the Writ was abated for every demand ought to be certain but a Sellion is but a parcel of Land uncertain as to the quantity in some places an Acre in some more in some less Another Point was Because the Tenant hath admitted and accepted this Averment scil sole Tenant as the Writ supposeth And the Question was If the Court notwithstanding the Admittance of the Tenant ought without Exception of the party Ex Officio to abate the Writ And it was the Opinion of Wray Chief Iustice That it should For it is a positive Law As if a Woman bring an Appeal of Murder upon the death of her Brother and the Defendant doth admit it without a Challenge or Exception yet the Court ought to abate the Appeal 10 E. 4. 7. See the principal Case there Non ideo puniatur Dominus c. And if an Action be brought against an Hostler upon the Common Custom of the Realm and in the Writ he is not named Common Hostler yet the Court shall abate the Writ Ex Officio See 11 H. 4. and 38 H. 6. 42. CXXXIV Mich. 26 Eliz. In the Common Pleas. A. Seised of Lands in the right of his Wife for the Term of the life of the Wife made a Feoffment in Fee to the use of his said Wife for her life It was holden in that Case That the Wife was remitted And it is not like Amy Townsends Case Plow Com. 1 2 Phil. and Mar. 111. For in the said Case the Entry of the Wife was not lawful for she was Tenant in tail which Estate was discontinued by the Feoffment of her Husband And Periam Iustice cited a Case Sidenham's Case Bacon seised in the right of his Wife for the Term of the life of the Wife They both surrendred and took back the Lands to them and a third person And it was holden That the Wife was not presently remitted but after the death of her Husband she might disagree to the Estate CXXXV Harper and Berrisford's Case Mich. 26 Eliz. In the Common Pleas. IN a Writ of Partition The Defendant demanded Iudgment of the Writ because the Writ is Quare-cum A. teneat c. pro indiviso c 4 mille acras whereas it should be Quatuor Mille acrarum And many Grammarians were cited all which agreed That it was good both ways viz. Mille Acras or Mille Acrarum And Rhodes Iustice said That Cowper in Thesauro suo Linguae Latinae saith Quod Mille fere jungitur Genitivo Ergo non semper Wherefore Anderson with the assent of the other Iustices Ruled
That that matter could not be assigned for Error for it is not within the Record and we cannot reverse our own Iudgment but only for matter of Process See for that Fitzh Na. Br. 21. f. CXXXIX Partridge and Pooles Case Pasch 26 Eliz. In the Kings Bench. TRespass of Battery was brought by Partridge against Poole 2 Len. 79. 1 Cro. 842. and supposed the Battery at D. in the County of Middlesex The Defendant justified by reason of an Assault at S. in the County of Gloucester absque hoc that he beat the Plaintiff at D. in the County of Middlesex Vpon which traverse the Plaintiff did demur in Law. It was argued by Popham the Queens Attorny General That the traverse of the County is good And he put the Case of 21 H. 6. 8 9. In Trespass of Battery at D. in the County of York the Defendant justified by an Assault at London in such a place in such a Parish c. absque hoc that he was guilty de aliqua transgressione in Comitatu Eborum Vpon which issued a Venire facias into Yorkshire and as the Book is This traverse as to the County was taken with great deliberation See also 22 E. 4. 39. And this traverse de jure ought to be allowed For the Iury in Middlesex are not bound to find the Assault in the County of Gloucester See 2 Mar. Br. Jurours 50. In Actions upon transitory matters although they be layed in Forreign Counties yet the Iurors if they will may thereof give their Verdict but they are not bound to do it Egerton Sollicitor General to the contrary And he put a difference where the justification is local and where transitory As in False Imprisonment the Defendant justifies as Sheriff the taking of the Plaintiff by force of a Capias directed to him at D. within his County of G. Where the Plaintiff declareth of an Imprisonment in another County there the traverse of the County is good for the Defendant cannot take the Plaintiff by force of the said Process in any other County than where he is Sheriff and so the Iustification is local 11 H. 4. 157. But in our Case the matter of the Iustification is meerly transitory And at last after many Motions It was adjudged for the Plaintiff Gawdy Iustice being of a contrary Opinion And by Wray Chief Iustice clearly The Iurors upon pain of Attaint are to take notice of such a transitory thing done in another County See 2 Mar. Br. Attaint 104. 9 H. 6. 63. CXL Gerrard's Case Pasch 26 Eliz. In the Common Pleas. 2 Len. 168. 4 Len. 7. GErrard Master of the Rolls presented Chatterton Bishop of Chester to the Church of Bangor to which Church also one Chambers presented his Clerk by which several Presentments the same Church became Litigious The Archbishop of York being Ordinary of the place awarded Jure Patronatus c. depending which the Archbishop admitted the said Bishop upon which the said Chambers Libelled in the Spiritual Court against the said Bishop For that the said Archbishop praedicto Episcopo plus aequo fidens admisit dictum Episcopum pendente the Jure Patronatus in which Case by the Law of the Church the Admittance is void For pendente Lite nihil movetur And now came the said Bishop and upon this matter prayed a Prohibition and he had it because that the right of the Patronage came in debate After which came the said Chambers and prayed a Consultation because he medled not with the right of Patronage but only with the wrongful admittance To whom it was said by the Court That the awarding of the Jure Patronatus is not a thing of necessity but at the Will of the Ordinary and for his better Instruction But if he will at his peril take notice of the right of the Patronage he may receive which of them he will without a Jure Patronatus awarded And it may be in this Case That after the Jure Patronatus awarded and before any Verdict given upon it the Archbishop was satisfied of the right of the now Plaintiff in the Prohibition to the Patronage and thereupon admitted the Clerk And by the clear Opinion of the Court the Consultation was denyed CXLI Rampston and Bowmer's Case Trin. 26 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared That whereas the Plaintiff occupied a Brew-House And whereas one Gilbert Bowmer was the Beer-Clark of it and had the government and disposition of the Beer brewed there by reason whereof he became indebted to the Plaintiff in such a sum For which the Plaintiff procured the said Gilbert to be Arrested and put into the Prison of the Marshalsey And whereas the said Gilbert in dicta prisona existente the Defendant tunc ibidem in Consideration that the said Plaintiff would let the said Gilbert out of Prison Promised That if the said Gilbert should not accompt with the Plaintiff and pay him all the Arrearages which upon such Accompt should be found before such a day That then the Defendant would pay it Vpon which the said Gilbert was dismissed ad largum And further declared That no Accompt had been made by Gilbert or any other satisfaction And upon Non Assumsipt the Iury found That the said Gilbert so endebted to the Plaintiff was arrested at the Suit of the Plaintiff and that after the Defendant came unto the Baily of the Marshal who arrested the said Gilbert and took upon him to the said Baily That the said Gilbert should be at the next Court holden for the said Marshalsey by force and reason of which promise the Baily suffered the said Gilbert to go at large to his House c. and that after and before such Court the Defendant promised the Plaintiff modo forma as the Plaintiff had surmised in his Declaration And upon that Verdict the Plaintiff could not have Iudgment For here the Consideration layed in the Declaration is not found by the Verdict For Gilbert was discharged of the Imprisonment before the promise of the Defendant to the Plaintiff And the Declaration is That in Consideration quod dictus Gilbertus ad largum dimitteretur c. And Iudgment was given Quod Querens Nihil Capiat per Billam CXLII Mich. 26 Eliz. In the Common Pleas. ONe recovered certain Copyhold Lands in the Court of the Lord of the Mannor by plaint in the nature of a Writ of Right It was moved in the Common Pleas If a Precept might be made and awarded out of that Court for to execute the said Recovery and to put him in possession who recovered with the Posse Manerii as in such Cases at the Common Law with the Posse Comitatus But it was clearly Resolved It could not be done For force in such cases is not justifiable but by Command out of the Kings Courts CXLIII Iplett and Williams's Case Mich. 26 Eliz. In the Common Pleas. I Plett brought an Action upon the Case against
that now the time before the forfeiture ought not to be accounted in this Case But the Orginal beginning of the Copyhold shall be holden to be 23 H. 8. when the Grant de Novo by Copy was made between which time and 8 Eliz. is an interval but of 47 years within which time a Customary Interest cannot be attached upon the Land And then before sufficient time encurred c. the Lord may well enter upon such a Tenant at Will For as yet there is not any Custom begotten by sufficient time to bind him It was also agreed by the Iustices That if the Lord of a Mannor is seised of an ancient Copyhold for forfeiture or by reason of Escheat and Lett the same at Will without any Copy for divers years one after the other that that is not any Interruption of the Customary nature of the Land but that the Lord may grant it again by Copy As to other parcel of the Land It was given in Evidence That at a Court lately holden at Northelman It was presented by the Homage there That Taverner the Plaintiff being a Copy-holder of the said Mannor had forged a Customary of the said Mannor containing divers false Customs pretending them to be true Customs of the said Mannor and that he had forged and put a Seal to it about which this word viz. Northelman is engraven And that he had procured divers Copyholders of the said Mannor to set their seals to it and that he said unto them That that Customary should be put into the Church of Northelman amongst the Charters and Evidences of the said Church And that he had now made his Copyhold as good as his Freehold And If the said Offence committed by the Plaintiff ut supra be a forfeiture of his Copyhold was the Question It was argued by Popham who was of Counsel with the Plaintiff That without further matter it was not any forfeiture And yet he confessed It is a forgery against the first branch of that Statute of 5 Eliz. cap. 14. And so he said it was lately adjudged in the Star-Chamber But as to the point of Forfeiture he put this difference If the Lord demand his Services of his Copyholder there If the Copyholder upon debate between the Lord and himself sheweth forth such a forged Customary and Counterpleads the Demand of the Lord with it now it is a forfeiture for that the Inheritance of the Lord is thereby hazarded As if the Copyholder after the forfeiture keep it himself and doth not encounter his Lord in his demand with it in his services the same is not any forfeiture As if the Copyholder before any Rent be due saith That he will not pay any Rent to the Lord hereafter Or when a Court is to be holden That he will not after appear to do any Suit at the Court of his Lord c. But if his Rent being due he denyeth it Or when the Court is holden he saith That he will not do any Suit the same is a foreiture As it was lately adjudged in the Kings Bench in the Case between Sir Christopher Hatton and his Copyholders of his Mannor of Wellingborough So if a Copy-holder being with the other Copyholders charged upon Oath to enquire of the Articles of the Court-Baron and sufficient matter being given to them in Evidence to induce them to find a matter within their Charge and they or any of them obstinately refuse to find the same the same is a forfeiture of his Copyhold As it was adjudged in the Case of Sir Rich. Southwell Knight and Thurston Clench Iustice conceived That in the principal Case the Offence of the Plaintiff is not any forfeiture no more 1 Roll. 508. than if a Copyholder makes a Charter of Feoffment of his Customary Land and delivereth the same as his Deed to the party but doth not execute it by Livery the same is not any forfeiture It was argued by Gawdy Serjeant who was of Counsel with the Defendant to the contrary For he said That if a Copyholder will forge a Deed of Feoffment purporting That the Lord of the Mannor hath enfeoffed him of the said Customary Land notwithstanding that he keepeth such Charter himself without shewing it forth yet it is a Forfeiture At the length The Court wished the Iury to find the special matter and to refer the same to the Court Whether it was a Forfeiture or not In this Case another matter was moved viz. The Auncestor of the Plaintiff had purchased divers several Copyholds from several Copyholders by several Copies whereof he died seised Or committed several Offences by which he forfeited to the Lord all his Copyholds for which the Lord seised and granteth them again to his Auncestor wtih the Ancient Rent and to his Heirs Tenendum per antiqua servitia consueta c. And afterwards the same Copyholder commiteth Waste whether the same shall now trench to forfeit all the Copyhold Lands which were granted ut supra by one entire Copy Or only that which was before the seizure holden by the same Rent Et nihil ultra For these words Tenendum per antiqua servitia do not trench only to the Quantity of the Services but also to the Quality scil severally so as there shall be several Services as before As if A. be seised of Copyhold Land on the part of his Father and of other Copyhold Land on the part of his Mother and thereof dieth seised and his Son and Heir be admitted to it by one Copy and by one Admittance Now if that Son dieth without Issue the Copyholds shall descend severally the one to the Heir on the part of his Father and the other to the Heir on the part of his Mother c. And afterwards the Iury found the Special Verdict and the special matter ut supra c CLIX. Vincent Lee's Case Trin. 26 Eliz. In the Exchequer 1 Inst 138. b. VIncent Lee seised of Lands in Fee had Issue 3 Sons F.G. and J and by his last Will in writing Devised That J. his Son should have the Land for the Term of 31 years without impeachment of Waste to the intent that he pay certain Debts and Legacies set down in his said Will The remainder after the said Term expired to the Heirs Males of the Body of the said J. begotten And further willed That if the said J. die within the Term aforesaid that then G. his Son shall have such Term c. and then also shall be Executor but made the said J. his present Executor and died J. entred by force of the Devise F. died without Issue by which the Feesimple descended upon J. who had Issue P. and died within the Term P. entred G. as Executor entred upon him and he re-entred upon which re-entry G. brought Trespass Pigott said That the Term by the descent of the Fee from F. to J. being the second Son of Vincent and Heir of F. is not extinct but only suspended It hath
Len. 55. 1 Len. 333. The Abbot and Covent of D. 29 H. 8. makes a Lease of certain Lands for 3 Lives to begin after the death of one J.S. if they shall so long live And afterwards 30 H. 8. within a year before the Dissolution they make another Lease to JS If the first Lease in the life of J.S. be such an Estate and Interest which by vertue of the said Statute shall make the second Lease void was the Question For it was not in esse but a future Interest Manwood All the reason which hath been made for the second Lease is because the first Lease is but a possibility for J.S. by possibility may survive all the 3 Lives and so it shall never take effect But notwithstanding be it a possibility c. or otherwise It is such a thing as may be granted or forfeited and that during the life of the said J.S. And Note also the words of the Statute If any Abbot c. within one year next before the first day of the Parliament hath made or hereafter shall make any Lease or Grant for years life or lives of any Mannors c. whereof and in which any Estate or Interest for life or years at the time of the making of any such Lease or Grant then had his being or continuance or hereafter shall have his being or continuance and then was not determined c. shall be void c. And here is an Interest and that not determined at the time of the making of this Lease to J.S. And of that Opinion was the whole Court and all the Barons and divers other of the Iustices And therefore a Decree was made against that Lease c. CCXVII The Master and Chaplains of the Savoy's Case Mich. 29 Eliz. In the Exchequer THe Master and Chaplains of the Savoy aliened a parcel of their possessions unto another in Fee and afterwards surrendred their Patents and a Vacat is made of the Enrollment of them It was now moved How the Alienee should be adjudged to make title to the said Lands claiming the same by the Letters Patents For the Clerks would not make a Constat of it For the Patents were cancelled and a Vacat made of the Enrolment And the Case of Sir Robert Sidney was vouched in which Case the Statute of 3 E. 6. was so expounded upon great advise taken by the Lord Chancellor who thereupon commanded That no Constat be made in such case Manwood If Tenant in tail by Letters Patents of the King surrendreth his Patent and cancelleth it and a Vacat be made of the Enrollment by that the Issue in tail shall be bound For no other person at the time of the cancelling hath Interest But in the Case at Bar a third person scil the Alienee hath an Interest And therefore he was of Opinion That he should have a Constat c. CCXVIII Inchely and Robinson's Case Hill. 29 Eliz. In the Common Pleas. IN an Ejectione Firmae It was found by Verdict That King E. 6. was seised of the Mannor and Hundred of Fremmington 2 Len. 41. Owen Rep. 88. and granted the same by his Letters Patents to one Barnard in Fee rendring 130 l. per annum and also to be holden by Homage and Fealty And afterwards Queen Mary reciting the said Grant by King Ed. 6. and the Reservation upon it granted unto Gertrude Marchioness of Exeter the Mannor of Fremmington and the said Rent and Services and also the Mannor of Camfield and other Lands and Tenements Tenendum per vicesimam partem unius feodi Militis Gertrude being so seised Devised to the Lord Mountjoy the Mannor of Fremmington the Mannor of Camfield c. And also bequeathed divers sums of Monies to be levied of the premises And further found that the said Rent of 130 l. was the full third part of the yearly value of all the Lands and Tenements of the Devisor The Question was If by these words of the Devise of the Mannor of Fremmington the Rent and the Services pass i.e. the Rent Homage and Fealty reserved upon the Grant made by King Ed. 6. of the Mannor and Hundred of Fremmington And if the said Rent and Services are issuing out of the Mannor For if the Rent doth not pass then the same is descended to the Heir of the Marchioness and then being found the full third part of the value the King is fully answered and satisfied and then the residue of the Inheritance discharged and is settled in the Devisee And if the Rent doth not pass then is the Heir of the Marchioness entituled by the Statute to a third of the whole c. And Shuttleworth conceived That if the Marchioness had Devised by express words the said Rent and Services they could not pass For as to the Services they are things entire as Homage and Fealty they cannot pass by Devise in case where Partition is to follow for such things cannot receive any partition or division therefore not divideable For the Statute enables the Proprietary to give or devise two parts of his Inheritance in three parts to be divided As Catalla Felonum cannot be devised for the reason aforesaid Quod fuit Concessum per totam Curiam But as to the Rent the Court was clear That the same was deviseable by the said Statute and in respect of that the mischief of many distresses which the Common Law abhors is dispensed with and is now become distrainable of common right And as to the Devise he argued much upon the grounds of Devises and put a ground put by Fineux 15 H. 7. 12. Where every Will ought to be construed and taken according as the words purport or as it may be intended or implyed by the words What the intent of the Devisor was so as we ought to enquire the meaning of the Testator out of the words of the Will. And see also a good Case 19 H 8. 8 9. And he much relyed upon the Case of Bret and Rigden Plow Com. 343. See there the Case So in this Case for as much as such Intent of the Devisor doth not appear upon the words of the Will that this Rent shall pass It shall not pass for there is not any mention of any Rent in the whole Will. Fenner argued to the contrary and he argued much upon the favourable Construction which the Law gives to Wills. 14 H. 8. by Reversion for remainder e contra 17 E. 3. 8. A Man may make a Feoffment in Fee of a Mannor by the name of a Knights Fee a multo fortiori in the Cases of Devises And in our Case the Marchioness conceived That the Rent and Services reserved out of the Mannor of Fremmington was the Mannor of Fremmington and that the Law would give strength to that intent Walmesley conceived That the Rent did not pass by the name of the Mannor c. for this Rent noc in veritate nec in reputatione was ever taken for a Mannor
Also the words Of the Mannor of Fremmington and Hundred are put amongst others which are Mannors in truth By which he conceived That the Devisor did not intend to pass but one Mannor and no other Herediatments by this Mannor of Fremmington There is a Rule in Law That in the Construction of a Will a thing implyed shall not control a thing expressed But here If by implication the Rent shall pass then the Mannor of Camfield is not passed which was the intent of the Testator to pass and that by express words See 16 Eliz. Dyer 330. Clatches Case No Implication of any Estate in remainder can serve when a special Guift and Limitation is made by the Devisor himself See also 16 Eliz. Dyer 333. Chapman's Case But in our Case here there are not sufficient words to warrant any Implication for neither in truth nor in common reputation was it taken for a Mannor 27 H. 6. 2. Green-Acre may pass by the name of a Mannor although it be but one Acre of Land because it is known by the name of a Mannor See acc 22 H. 6. 39. And see Where before the Statute of Uses A Man had recoverors to his use and he willeth by his Will That his Feoffees sell his Lands they might sell And he said That if a Man seised of a Mannor parcel in Demesne and parcel in Service and he granteth the Demesnes to one and his Heirs and afterwards deviseth his Mannor peradventure the Services shall pass but this Rent hath not any resemblance to a Mannor Gawdy This Rent shall pass by the name aforesaid Favourable Construction is always given in Wills according to the meaning of the Devisor and no part of his Will shall be holden void if by any means it may take effect Then it here appeareth that his intent was That upon these words something should pass to the Devisee concerning the Mannor of Fremmington for otherwise the words Of the Mannor of Fremmington are void and frivolous which shall not be in a Will if any reasonable Construction may be made For it is found expresly by the Iury That neither at the time of the Will made nor at the time of the death of the Testator the Devisor had any thing in the said Mannor of Fremmington but the said Rent of 130 l. per annum And it may well be taken That the Devisor being ignorant what thing a Mannor is thought that this Rent was a Mannor because that she had Rents and Services out of the said Mannor For in Construction of a Will the words shall serve the intent And therefore if a Man Deviseth That his Lands shall be sold for the payment of his Debts his Executors shall sell them for the intent of the Devisor names the sellers sufficiently And See Plowden 20 Eliz. 524. L. after the Statute of 27 H. 8. deviseth that his Executors shall be seised to the use of A. and his Assigns in Fee whereas then there was no Feoffees to use the same was holden a good devise of the Land to A. But the Iustices conceived That the Devisor was ignorant of the operation of the Statute in that case and therefore his ignorance was supplyed See Br. Devises 48. 29 H. 8. A. had Feoffees to his use and afterwards after the Statute of 27 H. 8. and 32 H. 8. he willed That his Feoffees should make an Estate to B. and his Heirs It was holden by Baldwin Shelley and Mountague Iustices That it was a good Devise And see 26 H. 6. Fitz. tit Feoffments Faits 12. A Carue of Land may pass by the name of a Mannor therefore a fortiori a Rent for Rents and Services have more affinity and more resemble a Mannor than a Carue of Land. And it cannot be intended that the meaning of the Testator was to grant the Mannor it self in which he had not any thing especially by his Will for Covin Collusion or indirect dealing cannot be presumed in a Will. Also The Marchioness for 4 years together before her death had the Rent and Services of the said Mannor and she well knew that she her self had not any thing in the said Mannor but the said Rent and Services and therefore it shall be intended that the same was her Mannor of Fremmington A. seised of a Capital Messuage and great Demesnes lying to it Leased the same for years rendring Rent and afterwards devised to another all her Farm in such a place And it was Ruled in that Case That by that Devise the Rent and the Reversion passed See the Case between Wrottesley and Adams Plow 19. 1 Eliz. by Anthony Brown and Dyer Periam Iustice conceived That this Rent might be divided well enough But by Anderson It is but a Rent-Seck Periam It is distrainable of Common right Anderson doubted of it But all the Iustices agreed That the Rent might be divided but there should not be two Tenures The Lord Mountjoy being advised that this Rent did not pass but descended to the Heir being the full third part of the Lands entred into the Residue and made a Lease of the Mannor of Camfield unto the Plaintiff upon which the Ejectione firmae is brought And afterwards the Plaintiff seeing the Opinion of the Court to be against him and for the Devise of the Rent for the reasons aforesaid Discontinued his Suit c. CCXIX. Williams and Drew's Case Mich. 29 Eliz. In the Common Pleas. THe Widow of Williams who was Speaker of the Parliament brought Dower against Williams and Drew upon the Grande Cape Williams made default And now came Drew and surmised to the Court That he is not Tenant of the Land But further he saith That the Husband of the Demandant Leased the said Lands to him for 50 years and that this Action is brought by Covin to make him lose his Term and prayed to be received And the Opinion of the whole Court was That although he was party to the Writ yet he should be received and that by the Statute of Gloucester for he is in equal mischief And the Court was also clear of Opinion That upon the default of Williams the Demandant should not have Iudgment for a moyety for that the Cause of the receipt trenched to the whole And by all the Iustices but Rhodes If Iudgment had been given upon the deault of both i. e. Williams and Drew yet the Term of Drew should stand but Drew should be put out of possession and put to his Action And Anderson conceived That the Resceit upon that Statute did not lie unless that Covin be alledged betwixt the Demandant and the Tenant to make him to lose his Term and that Covin is traversable Which all the other Iustices denyed for the Covin ought to be averred but ought not to be traversed And also they all but Anderson were clear of Opinion That in this Case of Receipt the party shall not plead upon his Receipt as upon the Statute of Westminster but he shall be received
all which he lost c. Wray The Bishop shall joyn for Conformity of Law and for privity of Record and the Plea of the Bishop is not so strong as a Disclaymer For in case of a Disclaimer the Iudgment is That the Plaintiff shall take nothing by his Writ but in the case of the Bishop here the Iudgment is Quod querens recuperet praesentationem suam versus dictum Episcopum ad Ecclesiam praedictam See 35 H. 6. 4. Fitz. Error 35. And afterwards in the principal Case the Writ of Error was awarded good CCXXIX Williams and Linford's Case Trin. 29 Eliz. In the Kings Bench. EDward Williams brought an Action upon the Case against Linford 2 Len. 111. for slanderous words concerning the Title of the Plaintiff's Lands viz. Williams is nothing worth and do you think that the Mannor of D. is his It is but a Compact betwixt his Brother Thomas and him And declared further That at the time of the speaking of these words there was a Communication with one J.S. to give the said J.S. the said Mannor of D. for his Mannor of R. and that by reason of the said slanderous words 1 Cro. 346.787 the said J.S. durst not proceed in the said intended exchange It was Objected That upon this matter an Action upon the Case did not lie because the slanderous words were not spoken to him who should be purchasor of the Lands but unto a stranger For in the Case betwixt Smith and Johnson Johnson was in speech with one to sell his Land to him and Smith said to him who should be the purchasor of them Will you buy Johnson's Land Why it is troubled with more Charges and Incumbrances then it is worth Wray There is not any difference be the words spoken to the parties or unto a stranger for in both Cases the Title of the Plaintiff is slandered so as he cannot make sale of it It was adjudged for the Plaintiff CCXXX Mich. 29 Eliz. In the Common Pleas. A Poor Woman brought an Action of Trespass for breaking of her Close and declared of a Continuance by 6 years And upon Nihil dicit had Iudgment to recover Vpon which a Writ of Enquiry of Damages issued forth and now came the Woman and shewed to the Court That the Iury had found too little Damages scil but 40 s. whereas the Land was worth 5 l. per annum and that the Trespass had been continued for 6 years and prayed that the said Writ might not be received and that the Court would award another Writ to have a better Enquiry of the Damages But the whole Court denyed it For so there might be infinite Enquiries But some time at the request of the Defendant when excessive Damages are found or any misdemeanour is alledged in the Plaintiff in procuring or using such a Writ of Enquiry of Damages We use to relieve the Defendant with a new Writ but never the Plaintiff because it is his own Act. And by Rhodes The late Countess of Darby brough a Writ of Dower and had Iudgment to recover and she surmised That her Husband died seised and prayed a Writ of Enquiry of Damages and had it And because too small Damages were found she would have suppressed the said Writ and procured another but she could not have it And at the last she was driven to bring in the said Writ Which she did accordingly CCXXXI Lawson and Hare's Case Mich. 29 Eliz. In the Common Pleas. 2 Len. 74. IN a Replevin by Lawson against Hare of the Temple who Avowed because he himself was seised of a Hundred And that he himself and all those whose Estate he hath in the said Hundred have used to hold a Leet within the said Hundred at such a place every year And that at every time such Leet should be holden The Inhabitants within the said Precinct have used to pay to the Lord of the Leet 16 d. for the Leet-Fee and that they have used to distrain for the same And shewed That at a Leet there holden 5 July 26 Eliz. c. The Plaintiff replyed absque hoc that they used to distrain And it was found for the Defendant And it was moved in arrest of Iudgment Because the Defendant in making his Title to the Leet by Prescription Conveys the Hundred to him by a Que Estate without shewing a Deed of it See 11 H. 4. 242. Quod fuit concessum per Anderson Windham Periam and Rhodes contrary But if the Hundred it self had been in Question then the Exception had been material but here the Defendant intitles himself to a thing by reason of the Hundred and then it is sufficient for him to say That he is seised of the Hundred be it by right or by wrong Admit That by this not shewing the Avowry be vitious and defective It is to be considered if it be not helped by the Statute of Jeofail's 1 Cro. 217.245 18 Eliz. And therefore it is to be considered If an Avowry be within the meaning of the said Statute Anderson Although that the Avowant be quasi an Actor to have a Retorn of the Cattel if the Distress be adjudged lawful yet in truth he is Defendant and not Plaintiff And if the Defendant will justifie the taking and not avow he is meerly Defendant And although that he avow to have a Retorn yet he cannot be said Plaintiff no more than the Tenant who voucheth over another to recover in value may be said Plaintiff And therefore an Avowry cannot be said a Count or Declaration but a Answer to the Count or Declaration Windham and Periam conceived That an Avowry is within the Statute For it comprehends title And an Answer to an Avowry is said a Bar to an Avowry and an Avowry is in the place of a Declaration Admitting That an Avowry is within the Statute If the not shewing of the Deed be such a defect which may be helped by the Statute Anderson conceived That it was But the Plaintiff might have demurred upon the Avowry for not shewing of the Deed and have had iudgment But when he hath traversed the Prescription as to the point of the distress and the same is found against him Now it shall be intended that the Avowant hath a Deed although he hath not shewed it Windham The Title of the Avowant to the Hundred is the Foundation and ground of the Suit for if the Avowant hath not a Deed to make him a sufficient title to the Hundred he cannot have the Leet and if no Leet then no Leet-Fee and then the Avowant hath no cause to distrain Another Exception was taken to the Avowry because the Avowant hath not shewed any Seisin of the Leet-Fee And by Periam Such a seisin ought to be shewed in some person certain For although it needs not always to lay a Seisin in shewing by whose hands the seisin was had for the Inhabitants are charged and no person certain yet the seisin ought to be
shall plead That he had not bought modo forma For if he hath bought of A.B. or J.S. the same is not material nor traversable Which Case Cook denyed to be Law. And he also conceived That the Information upon the Quo Warranto is not sufficient For by the same the Defendant is charged to hold a Court and it is not shewed what Court For it may be a Court of Pipowders Turn c. See 10 E. 4. 15 16. acc Shute Iustice The Quo Warranto contains two things in it self 1. A Claim And 2. An usurpation and here the Defendant hath answered but to the Vsurpation but saith nothing to the Claim And it hath been holden in this Court heretofore That he ought to answer to both And he said That it hath been holden in a Reading upon the Statute of Quo Warranto which is supposed to be the Reading of Iustice Frowick That a Quo Warranto doth not lie upon such Liberties which do not lie in Claim as Felons goods c. which lieth only in point of Charter CCXXXVI Venable's Case Mich. 29 Eliz. In the Kings Bench. THe Case was 1 Inst 351. a. Hughs Queries 13. A Lease was made to A. and B. for their lives the remainder to Tho. Venables in tail who 3 Eliz. was attainted of Felony 23 Eliz. there was a General Pardon Tho. Venables 24 Eliz. levied a Fine and suffered a Recovery to the use of Harris Serjeant Office is found Harris traversed the Office and thereupon was a Demurrer It was argued by Leake That Traverse did not lie in this Case 4 H. 7. 7 Where the King is entituled by double matter of Record the party shall not be admitted to his Traverse nor to his Monstrans de Droit but is put to his Petition Which see 3 E. 4. 23. in the Case of the Earl of Northumberland Where Tenant of the King is Attainted of Treason and the same is found by Office. See also 11 H. 4. in the Case of the Duke of Norfolk And the same is not helped by the Statute of 2 E. 6. Cap. 8. for the words are Untruly found by Office but here the Office is true By this Attainder Tho. Venables is utterly disabled to do any Act For by Bracton a Person attainted forisfacit Patriam Regnum Haereditatem suam 13 E. 4. One was attainted of Felony And before Office found the King granted over his Lands Also he is not helped by the General Pardon For before the General Pardon he had a special Pardon therefore the General Pardon nihil operatur as to him But by the Iustices the forfeiture doth remain until the General Pardon Harris to the contrary And he put the Case of Sir James Ormond 4 H. 7. 7. Where the King is entituled by matter of Record and the subject confesseth the title of the King and avoids it by as high matter as that is for the King Traverse in that case lieth and if the King be entituled by double matter of Record if the party avoids one of the said Records by another Record he shall be admitted to his Traverse And so here we have the Pardon which is a Record and that shall avoid the Record for the King And here the Pardon hath purged the forfeiture in respect of the Offence And he said That Tenant in tail being attainted of Felony shall not lose his Lands but the profits only for he hath his Interest by the Will of the Donor and it is a Confidence reposed in him and as Walsingham's Case is he cannot grant over his Estate And see in Wroth's Case Annuity granted pro Consilio impendendo cannot be granted over or forfeited for there is a Confidence See Empson's Case Dyer 2. and 29 Ass 60. If the Issue in tail be Outlawed of Felony in the life of his Father and gets his Pardon in the life of his Father after the death of his Father he may enter But by Thorp If the Issue in tail gets his Pardon after the death of his Father then the King shall have the profits of the Lands during the life of the Issue And the Case of Cardinal Pool was debated in the Parliament 27 Eliz. That he being Dean of Exeter was seised of Lands in the right of his Church and was attainted of Treason It was holden he should forfeit the profits of such Lands But admit That by this Attainder the Land be forfeited yet the party hath the Freehold until Office found See Nicholls Case Plow Com. And also the Case of the Dutchy in Plow Com. acc And here the Pardon hath dispensed with the forfeiture A Tenant of the King aliens in Mortmain before Office found the King pardons it it is good The Lord Poynings conveyed all his Lands to Sir Adrian Poynings who was an Alien and after made a Denizen and the King pardoned and released to him all his right in the said Lands without any words of grant and adjudged the same did bind the King And he said he had a good president 14 H. 7. Where a General Pardon before seisure into the hands of the King was allowed good contrary after a seisure without words of Grant. See Br. 29 H. 8. Br. Charter of Pardon 52. If a Man be attainted of Felony and the King pardons him all Felonies executiones eorundem and Outlawries c. and releases all forfeitures of Lands and Tenements and of Goods and Chattels the same will not serve but for life of Lands if no Office be found but it will not serve for the goods without words of restitution and grant for the King is entituled to them by the Outlawry without office But the King is not entituled to Land until Office be found See Ibid. 33 H. 8. 71. The Heir intrudes and before Office found the King pardons now the Heir is discharged as well of the Issues and profits as of the Intrusion it self But a Pardon given after the Office found is available for the Offence but not for the Issues and profits And he cited the Case of Cole in Plowden where a Pardon was granted mean between the stroak and the death See 35 H. 6. 1. 16 E. 4. 1. 8 Eliz. Dyer 249. Brereton's Case 11 Eliz. Dyer 284 285. Egerton Sollicitor contrary This Traverse is not good for he who traverseth hath not made title to himself as he ought upon which the Queen may take Issue for it is in the Election of the Queen to maintain her own title or to traverse the title of the party At the Common Law no Traverse lay but where Livery might be sued but that is helped by the Statute of 34 E. 3. but where the King is entituled by double matter of Record as in our Case he is no Traverse was allowed until 2 E. 6. Cap. 8. And in such Case two things are requisite 1. That the Office be untruly found 2. That the party who is to be admitted to his Traverse have just title or Interest
to prevent all acts and charges made mean by the Vendor yet it shall not relate to vest the Estate from the time of the delivery of the Deed For the Vendee cannot punish a Trespass Mean And if the Vendee hath a Wife and the Vendee dieth before Enrollment and afterwards the Deed is enrolled she shall not be endowed but here shall be some descent to take away an Entry yet the Heir shall have his age But in our Case it is otherwise for by the Waiver the Ioynture was waived ab initio And he cited Carrs Case 29 Eliz. in the Court of Wards The King granted the Mannor of C. to George Owen in Fee tenend in Socage and rendring 94 l. per annum And afterwards granted 54 l. parcel of the said Rent to the Earl of Huntington in Fee to be holden by Knight-service in Capite and afterwards purchased the said Rent in Fee And afterwards of the same Mannor enfeoffed William Carr who devised the same for the payment of his Debts And it was holden That the devise was good against the Heir And the King was not entituled to Livery or Primer Seisin And therefore the Defendant was dismissed But peradventure the Queen shall have benefit of the Act. See Cook 3 Part 30 31. Butler and Baker's Case The King gives Lands unto A. in Fee to hold by Knights-service during his life and afterwards to hold in Socage He may devise the whole For at the time when the devise took effect he was Tenant in Socage Lands holden in Knight-service are given to J.S. in tail scil to the Heirs Males of his Body the Remainder to the right Heirs of J.S. J.S. deviseth these Lands and afterwards dieth without Issue Male the same is good for two parts yet during his life he had not an Estate in Fee in possession The Father disseiseth his Son and Heir apparent of an Acre of Land holden in Chief by Knight-service in Capite and afterwards purchaseth a Mannor holden in Socage and deviseth the said Mannor and dieth his Heir within age the Devise is good for the whole and the King shall not have Wardship of any part and that in respect of the Remitter and yet it is within the words Having sole Estate in Fee of Lands holden and within the Saving Tenant in tail of an Acre of Land holden of the King in Chief by Knight-service seised of two Acres in Fee holden ut supra makes a Lease for three Lives of the Acre entailed reserving the accustomed Rent and afterwards deviseth the other two Acres in Fee and afterwards dieth seised of the Reversion and Rent The same is a good devise of all the two Acres And here is an immediate descent of the third part for the same is within the words In Possession Reversion or Remainder or any Rent or Service incident to any Reversion or any Remainder See the Statute of 34 H. 8. A Man seised of three Acres of equal value holden by Knight-service in Capite assureth one to his Wife for her Ioynture by Act executed and deviseth another to a stranger And the third to his Wife also The King in this case shall have the third part of every Acre But if the stranger waiveth the devise the King shall have the Acre to him devised and the Wife shall retain the other two Acres and it shall not go in advantage of the Heir So if he deviseth the said three Arces severally to three several persons to each of them one Acre and the one Waives the devise in one Acre The devise of the other two is good Or otherwise the King shall have the third part of every Acre c. CCCLXVII Mich. 35 Eliz. In the Common Pleas. 5 Co. 29. THe Case was An Enfant was made Executor And Admimistration was committed to another viz. A. durante minori aetate who brought an Action of Debt against the Debtor and recovered and had him in Execution and now the Executor came of full age It was moved What should be done in this Case and how the party should be discharged of the Execution for the authority of the Administrator is now determined and he cannot acknowledge satisfaction or make an acquittance Windham Although the authority of the Administrator be determined yet the Record and the Iudgment remain in force But peradventure you may have an Audita Querela But he conceived That an Administrator could not have such Action for that he is rather a Bailiff to the Enfant than an Administrator See Prince's Case 42 Eliz. Cook 5 Part 29. Which Rhodes concessit A. was bounden unto B. in an Obligation of 100 l. upon Condition to pay a lesser sum The Obligee made an Enfant his Executor and died Administration was committed durante minori aetate to C. to whom A. paid the Mony It was doubted If that payment was rightful or If the Mony ought to have been paid to both Windham Doth it appear within the Record That the Enfant was made Executor and that Administration was committed ut supra To which it was answered No. Then Windham said You may upon this matter have an Audita Querela In this Case It was said to be the Case of one Gore 33 Eliz. in the Exchequer in a Scire facias by an Assignee of a Bond against an Enfant Executor He pleaded That the Administration was committed to A. and his Wife during her minority And it was adjudged no Plea. CCCLXVIII Mich. 35 Eliz. In the Common Pleas. NOte It was the Opinion of all the Iustices Jones Rep. 243. That if Lessee for 20 years makes a Lease for 10 years that he may grant the Reversion without Deed but in such case if there be a Rent reserved there ought to be a Deed and also an Attornment if the Rent will be had And it was agreed by them all That if there be Lessee for years and the Lessor granteth the Land to the Lessee and a stranger that the Reversion shall pass without Livery or Attornment and that by the Acceptance of the Deed by him who ought to Attorn But whether he shall take joyntly or in Common or whether in a moyety or in the whole the Iustices were of divers Opinions Ideo Quaere for it was not Resolved FINIS A TABLE of the principal Matters contained in the Third Part of LEONARD'S Reports A. ABatement of Writ Page 2 4 77 92 Ex Officio Curiae p. 93 Accompt p. 38 61 63 Damages given in it p. 150 Damages given in it not expresly but the Court shall give Quoddam Incrementum p. 192 Brought by the Grantee of the King against an Executor where maintainable where not p. 197 Generally brought where good p. 230 Acquittance Must be shewed upon payment of Debts by Executors p. 3 Action upon the Case For stopping of a way p. 13 Against one for proceeding to Judgment and awarding of Execution in an inferiour Court after an Habeas Corpus awarded p. 99 Where lieth
returned the Court cannot mitigate the damages p. 150 A second Writ of enquiry of damages where not grantable p. 177 The Plaintiff in Replevin is Non-suit the Court may assess damages without a Writ of Enquiry p. 213 Debt Lachess in pleading it where turn to his prejudice p. 63 Against the Heir a general judgment shall be given in it against him by reason of his false Plea p. 70 Lyeth not by an Inn-keeper for Dyet and Lodging in the Inn where there is not a price agreed for it certain p. 161 Where must be in the Debet where in the Detinet and of what p. 206 260 Declaration In Trespass against the Defendant Simul cum J.S. Out-lawed ad Sectam Querentis not good p. 202 Where void for the incertainty of the thing demanded by it p. 228 Deeds Of Assignment made to the King out of Term upon a day in Term which is not dies juridicus if good p. 146 Demurrer Difference between drawing up of a Demurrer upon a Plea and upon a Challenge p. 222 Deprivation Where pleadable specially where generally p. 199 Devastavit Executor of an Enfant not charged with a Devastavit made by the Executor of the first Testator p. 241 Devises Construction of them p. 25 181 Words equally divided in it amount to a Tenancy in Common p. 19 Of Rent of Lands towards education of the Son how to be expounded p. 65 Made good by Averment p. 79 Where void by the Statute of 32 H. 8. p. 105 That his Sons in Law shall sell his Lands how to be construed p. 106 Of a possibility where not good nor shall go to Executors p. 195 Of a Messuage cum pertinentiis the Curtilage and Garden passeth p. 214 Distress Upon the glebe-Glebe-Lands for Tenths and First-Fruits and where the Lessee of the Cattel shall be distrained for the same p. 259 E. EJectione Firmae De uno Cubiculo good p. 210 Election Where not transferrable over p. 211 Where the Party hath election to take by Grant or Confirmation p. 127 Entry Of a Stranger upon the Farmer of the Kings Lessee for years he hath gained the Term p. 206 Error Matter not within the Record not to be assigned for Error p. 96 If it lieth to reverse a Judgment given for the King without a Petition first sued p. 155 Lieth to reverse a Judgmene in Covenant because all the Covenanters joyned not in the Action though the Covenant was in quolibet qualibet p. 161 Where lieth not in C. B. upon a recovery had before Justices of Assise p. 159 Eviction Where a Decree in Chancery shall not be said a lawful Eviction by which a Condition shall be broken p. 71 Evidence In a Writ of Right the Tenant shall begin to give Evidence because he is in the affirmative p. 162 Evidence given where shall conclude the Party but not the Jurors ad dicendam veritatem p. 209 Executors Where their Distress for the Arrearages of a Rent Charge is good by the Statute of 32 H. 8. of Rents p. 263 Where they might satisfie Debts due upon Judgments before Debts due upon Statutes or otherwise p. 271 Executions Sued forth upon a Statute to A. shall be served before a private Statute to B. though the Statute to B. be assigned to the King p. 239 240 By Capias ad Satisfaciendum sued out within the year though not prosecuted for two or three years after together yet the Party may proceed upon it without a Scire Facias p. 259 Debt is recovered by an Administrator durante minore aetate and Execution had and when the Executor comes of age how the Party shall be discharged p. 278 F. FEoffments Livery and Seisin made by Attorny where good to pass the Lands where not p. 37 Of a Mannor An Advowson Appendant shall pass but not the Services if there be no Attornment p. 193 To divers Persons to the use of his Will and afterwards wills the Feoffees shall stand seised till they have levied 100 l. good although in Feoffees at the time of the Devise p. 262 Fines levied Upon a Release not enure to an use p. 36 Where shall make a discontinuance where not p. 74 Where a Bar where not p. 74 Remainder is limited in tail to J. S. and the Heirs of his Body to begin after the death of the Tenant for life If a Fine be levied by him with Proclamation in the life of the Tenant for life shall bar the Issue p. 211 Where a Bar to a Woman in Dower because she pursued not her Claim within five years p. 221 Forfeiture What shall be a forfeiture within the Statute of 11 H. 7. Lessee for years in debt for rent claimed fee by bargain and sale of his Lessor which was traversed by the Lessor yet a forfeiture p. 169 Forprise Where needful to be mentioned where not p. 93 G. GRants of the King p. 10 Void because the King is deceived in them p. 5 119 Not to enure to a double intent p. 75 By the King of Bona Catalla felonum utlagatorum yet the King shall have the Goods of Felo de se p. 113 Where the Church is void by the grant of the King of the Mannor with the Advowson appendant the Advowson shall not pass p. 196 Of Fines pro licentia concordandi doth not extend to Post-Fines p. 234 How to be construed p. 242 to 253 Grants of common persons Where shall enure by way of confirmation Of all Goods and Chattels passeth a Lease for years Restrained and not to extend to things in future p. 29 Of the Office of Register by a Bishop where good where not p. 30 Of a Rent-charge out of his Lands after J. S. dies without issue of his body J.S. dies having issue which issue dies without issue if a good Grant p. 103 Where the mistaking and misrecital in them shall not make void their Grants p. 136 H. HAbeas Corpus Where granted for one committed to the Marshalsey by the Chamberlain of the Houshold one of the Privy Council p. 194 Heir Where he shall be adjudged in by descent notwithstanding a Devise to him p. 118 Of a Copyholder within age not bound to come to any Court during his Non-age to pray admittance or render a Fine p. 221 I. INdictments Upon the Statute of 8 H. 6. Quare Intravit in unum Tenementum not good for the incertainty but if a Tenementum with divers Acres good for the Acres p. 102 Certified and found to be taken before Justices of Assise and Goal-delivery where not good p. 216 Upon the Statute of 5 El. of Perjury question'd because it wanted the word voluntary p. 230 Against three persons for extortion that they colore officiorum suorum had malitiously extorted excessive Fees good though their offences were several p. 268 Informations Upon the Statute of 5 Eliz. cap. for cutting down of Trees being a penal Law how to be expounded p. 104 Of intrusion upon the Possession of the King
where shall be good where not p. 147 Of intrusion where there is no Record to prove it if the error lieth upon it p. 147 Issues joyned A not joyning in it is helped by the Statute of Jeofails not a mis-joyning in it p. 66 Upon a Plea which is tryed in a foreign County and found for the Plaintiff in what Court the Judgment shall be p. 137 Jure Patronatus Where the awarding of it is necessary where not p. 98 Jurors Where upon pain of Attaint they are to take notice of a transient thing done in another County p. 77 K. KING Not bound to take notice of a Condition made by a common person p. 126 Cannot take an interest in Land without matter of Record p. 155 L. LAchess In pleading where it shall turn to the prejudice of the Parties p. 63 Leases For certain years habendum to his Executors if good and what interest passeth and to whom it passeth p. 32 Power to make Leases not to extend to Leases to be made in reversion p. 132 Where Leases are void by the Statute of 31 H. 8. of Monasteries p. 164 Made by Dean and Chapter where void by the misrecital of their name of Corporation p. 220 Livery Of Lands in Ward not to be sued by parcels p. 25 M. MAintenance Where a Grant made shall be said to be for maintenance within the Statute of 32 H. 8. p. 79 Misnosmer Where shall not prejudice a Devise p. 19 N. NOnsuit If after a Demurrer p. 28 O. OBligation By what words good by what not p. 19 Where the word Quemlibet in an Obligation shall make it joynt and not several p. 206 Taken by one Blacksmith of another Blacksmith that he shall not exercise his Trade in such a Town void p. 207 To be good although not made after the usual form p. 223 May be assigned to the King without Deed enrolled p. 234 Office Trove Personal things are in the King without Office found p. 145 Where an Estate shall be setled in the King without Office found where not p. 186 187 188 Outlawry Where a Man is to annul an Outlawry his person shall not be disabled by another Outlawry p. 232 P. PArtition The Writ was Quare teneant Quatuor mille acras where it ought to be 4 Mille acrarum yet good p. 94 Where it is not necessary to shew and settle forth the Estate particularly in the Writ p. 231 Petition Where an Entry is not lawful upon the King without suing a Petition p. 15 Plenarty Returned by the Bishop where not good p. 138 Pleadings and Pleas Where not good for incertainty p. 8 A Conveyance cannot be pleaded unless it be sealed p. 94 Of Non Damnificatus generally where good p. 118 In a Writ of Right upon a Custom to hold a Court of the Plea must be shewed before whom the Plea is to be holden by the Customs p. 148 Of Letters Patents and not saying Sigillo Angliae sigillat not good p. 193 Of the general Issue in Wast viz. Null wast fait where dangerous p. 203 Of Outlawry in the Plaintiff after Imparlance in Trover and Conversion good p. 215 Praemunire Where the not prosecuting of it by the Attorny-General shall take away the suit of the Informer p. 139 Prescription Of every Inhabitant to have Common if good p. 202 Of what good and where and of what not p. 202 To have Estovers at liberty in cutting down Wood in a Forest unless in Fawning-time where good p. 218 Priviledge Of the Exchequer not granted to him who pays First-fruits and Tenths p. 258 Possibility Not allowed to the Kings servants in the Exchequer who is sued in B.R. p. 22 Not grantable or demiseable p. 157 Prohibition Not grantable upon a suggestion that Tythe had been paid to the Vicar c. and time out c. p. 203 Proviso Where a Condition where a Covenant where a Limitation p. 225 Q. QVo Warranto Of Liberty Plea in it what good what not p. 73 184 R. REcital The not recital of the names of the Occupiers of a Lease of Lands do not avoid the Demise thereof p. 235 Records A Deed acknowledged to the King and delivered to the Barons of the Exchequer is a Record though not mentioned p. 146 Of a Fine remaining with the Custos Brevium amended and made according to the Record made and remaining with the Chyrographers p. 183 Recusants Where Lands conveyed by a Recusant shall be subject to the Statute of 23 Eliz. concerning Recusants and the penalties thereof p. 148 Release To a Tenant at sufferance where not good p. 152 By the Feoffees of Cestuy que use to his Lessee for years how it shall enure p. 196 Receit By a Termor for years to save his Term Remitter p. 2 10 93 Rents Where upon a Fine levied of the Land the Rent passeth without Attornment p. 103 Payment of it upon an extent of it and of the reversion saves the danger of a Condition supposed to be broken p. 113 Where apportioned where not p. 125 126 Granted by Fine varyeth from the Indenture yet shall pass p. 136 Suspended yet grantable p. 154 Where it passeth by the name of a Mannor p 168 Reserved to be paid at two Feasts and not said by what portions the Lessee hath the liberty to pay it in what portions he pleaseth p 235 Repleader After Issue joyned where granted p. 90 Request Licet saepius requisitus good and where it must be special p. 73 206 S. SAle By an Enfant Executor of goods where binds him p. 144 Scire Facias Where it lyeth upon an Extent supposed to be satisfied p. 155 Where upon an Alienation of an Advowson without Licence by matter of Record not by matter of Fact p. 175 Statute Merchant and Staple Acknowledged when void by the death of the party p. 157 Surrender Of a Copyhold to uses p. 4 Cannot be of a Lease for years to begin at a day to come p. 95 Tenant for life remainder in Fee of a Copyhold he in the remainder may surrender in the life of the Tenant for life if there be no Custom to the contrary p. 259 T. TAil p. 87 Tender Of Rent how and where to be made p. 4 Tenancy In Common where must be pretended and not given in evidence p. 94 Traverse Where good where not p. 97 Trespass Quare clausum fregit not maintainable by him that hath but the Ear-grass after the first mowing p. 213 Tryal If Tythes lie in such a Parish or in such a Parish tryable at the Common Law p. 128 V. VAlue Of Lands what value shall be intended p. 114 Venire facias Where the place must be mentioned in it p. 171 172 Where from the place where from the Mannor p. 193 Upon every Original must contain the issue in it p. 269 Verdict Not good because too general p. 64 Not Good because it doth not extend to all the points of the Declaration p. 95 Given and found after a Supersedeas
Appendant or in gross A. 323. A Curtilage and Garden are Appurtenant to a House and pass by or without the word Appurtenant C. 214. Apportionment If the Lessor grant part of the Land the Grantee shall have no Rent A. 252. C. 1. Upon devise of Lands rendring Rent part being Capite Lands A. 310. If a Rent reserved upon a Lease of a Warren may be apportioned C. 1. None of a relief because intire C. 13. If a condition of Re-entry upon several Reddend may be apportioned C. 124 to 127. Rent may be apportioned in the Kings Case which cannot in the Case of a common person C. 124 to 127. Arbitrement Debt lieth upon it although void until it so appear A. 73 170. In such Action the Plaintiff needs shew no more than makes for him A. 73. To find sufficient Sureties to pay c. void A. 140. Without Deed cannot dispose of a Free-hold A. 228. To do one thing or another one being void yet the award is good A. 304 305. C. 62. To pay Mony to a Stranger is good A. 316. C. 62. That one Party shall have a Term for years gives the interest of the Term contra where it is that the one shall permit the other c. B. 104. Award to become bound it is a good performance if the Bond be delivered to a Stranger and after tendred to the Plaintiff B. 111 181. To do an Act to a Stranger who will not accept thereof the Bond is not forfeit C. 62. To do an Act to a Stranger not void C. 62. 212. Award that the Defendant and a Stranger become bound is good as to the Defendant though void in part C. 226. Ayd Copy-holder shall have Ayd of his Lord in Trespass A. 4. Grantee of Tenant in tail after possibility shall have Ayd yet the Grantor should not A. 291. Tenant at Will shall have it but not Tenant at Sufferance B. 47. Verdict upon an Issue upon a Counter-plea of Ayd is peremptory to the Defendant B. 52. Alien If the Kings Confirmation of a Feoffment to an Alien do avail A. 47. If the Grant of an Office to him by the King be a denization C. 243. Assent and Consent If the Conuzee of a Statute c. taken by Capias be discharged by Assent of the Conusee his Lands are also discharged A. 230 231. Assets Mony received by Executors for Lands devised to be sold to pay Portions if it be Assets A. 87 224 225. B. 119. What other things shall be Assets A. 225. B. 7. Lease for life and after his death to his Executors for 10 years if this Term be Assets C. 21 22. If Mony received by the Heir for Redemption of a Mortgage be Assets to pay Debts C. 32. Executors by Award receive 50 l. and release a Bond of 100 l. the whole 100 l. is Assets C. 53. Assignee If Assignee of parcel may have covenant against Lessee for years A. 251 252. Who is a sufficient Assignee A. 252. Executors or Administrators A. 316. Assize Of a Rent rendred in Fee by Fine A. 254. The manner of adjorning and giving Judgment where the Disseisor pleads Foreign Pleas B. 41. Of fresh-force in London C. 169 170. Attachment Of Goods in a Carriers hands 189. A Debt by Judgment Stat. Recogn c. cannot be attached A. 29 30. No Mony taken in Execution A. 264. What is a good Plea for him in whose hands Mony is attached A. 321. If the Plaintiff shall recover costs against him in whose hands c. A. 321. Mony for which an Action is depending cannot be attached C. 210. One cannot attach Mony for a Debt before the Debt be due C. 236. Corn is not attachable C. 236. A Debt upon Record cannot be attached C. 240. Attainder A person attainted cannot be charged with Actions A. 326 327. If a person attainted may be put to answer in personal Actions A. 330. What is forfeited to the King by Attainder of Tenant for life or in Tail in Remainder B. 122 123 to 126. Differences of Attainder and Conviction B. 161. If one attainted of Robbery shall answer in criminal Cases C. 220. Attaint What Heir shall have it A. 261. Upon the Statute of 23. H. 8. 3. A. 279. If it lie where the Plaintiff might avoid the Judgment by Error A. 278. Attornment To whom and how it must be made A. 58. Quoad part is good for all A. 129 130 234. Upon a Lease for years in Reversion A. 171. C. 17. An Abator may Attorn A. 234. The definition thereof A. 234. By the first Lessee binds the Tenant in remainder for years or life A. 265. Good by the Tenants of the Land to him in remainder after the death of Tenant for life A. 265 To the surviving Grantee of a Reversion good A. 265. To the Grantee of the Reversion of a Mannor by Lessee for year of the Mannor passes the Mannor and binds the Tenants A. 265. After condition broken is good to vest the Estate by the breach of the Condition A 265. The Relation of an Attornment A. 265. B 222. Who is compellable by a Quid Juris clamat to attorn A. 290 291 B. 40. C. 241 242. No Attornment is necessary upon selling a Reversion of Copyhold A. 297. C. 197. In what cases necessary A. 318. C. 103. Lease of Demesnes by Grant of the Mannor the Reversion passeth not without Attorment B. 221 222. An Advowson appendant to a Mannor shall vest without Attornment of the Tenants B. 222. What Words or Consent amount to an Attornment C. 17. Lessor levies a Fine to the use of himself and his Heirs Lessee must Attorn C. 103 104. If it be necessary where the Grantee is in by Statute of Uses C. 104. It is necessary to pass Services of a Mannor C. 193. Tenant of the Land must attorn upon granting over a Rent-charge C. 252. Reversion of a Term a Lease of part of the Term being first made cannot pass the Term and Rent reserved upon the first Lease without Attornment but a Term without Rent reserved he may C. 279. Lessor grants the Reversion to Lessee and A. B. no other Attornment necessary C. 279. Attorny J.S. Praesens hic in Cur. in propria persona sua per A.B. Attorn suum how construed A. 9. Lessee for years cannot surrender by Attorny A. 36. How to make a Deed by Attorny Ibid. B. 192 200. May essoign for a Copyholder but not do services A. 104. To three conjunctim divisim to deliver Seisin A. 192 193. How Attorny must make Livery where the Lands lie in several Counties A. 306 307. In an Indenture C. 16. Audita Querela Upon a Statute Merchant the Suit shall be in the Kings Bench But upon Statute-staple in the Chancery A. 140 141 228. contr 303 304. Process therein is either Venire facias or Scire facias A. 140 141. Upon a Statute Staple upon payment of the Mony in the Court of C. B. quod nota the party is bailed A.
nor his promotion can be properly called a Benefice A. 277. By-Laws Made by the Homage of a Court-Baron must be rationi legi consonan A. 190 C. 8 40 41 42 43. What By-Law is good in a Corporation C. 264 265. Made by the major part of Commoners binds all if it tend not to bind the Inheritance C. 265. C. Certainty WHat shall be sufficient Certainty to describe what Lands are granted though part of the descriptions be false A. 119. B. 226. C. 18 19 162 235. The like in describing the person of the Donee Devisee C. 48 49. Promise in consideration the Plaintiff would repair quandam partem domus is good C. 91. Certiorari To certifie a Warrant of Attorny A. 22. Granted at the request of the Defendant in error ex officio c. after a Nihil returned ibidem C. 107. If grantable after in nullo est erratum A. 176. B. 2 3. Cessavit Against the Tenant of the King B. 144. It is a good Bar to this Action that the Lord accepted the Services of the Alience of the Tenant C. 272. Challenge By a Bishop for that no Knight was retorned A. 5. To the Array for affinity whether principal challenge or not A. 88 89. No challenge to the Polls in a Writ a Right but at the time of the arrayment A. 303. The Statute 27 Eliz. cap. 6. A. 55. For want of Hundredors where there are many Hundreds in one Wapentake or Lathe B. 109. Of the Array for that the Sheriff married the Plaintiffs Cousin which the Plaintiff confessed C. 222. Chancery Ought not to give relief after Judgment B. 115. C. 18. Charge and Discharge If a Man marry an Inheritrix and hath Issue and then acknowledges a Statute and they sell the Land be Fine the Land shall not be charged for the Conuseels in by the Feme C. 254. Tenant for life granteth a Rent-Charge and cesseth after recovery in Cissavit the Lord shall hold the Land charged C. 255. Chattels A special property for a time in them A. 221. Are bound by the Teste of the execution A. 304. Chose en Action What is a Chose en Action A. 176. C. 196. The King may grant it and how and by what words A. 271. B. 56. C. 17 18 196. A void Church is a Chose en Action and one Grantee thereof cannot release it to his Companion A. 176. C. 256. Church-Warden Whether the Successor shall have Action for Trespass done in the Predecessors time A. 177. Cinque-Ports Issue triable there tryed by a Jury of the next County C. 3. How Execution of Lands must be made there C. 3. Clergy Not grantable for a second Felony if the first Conviction appear by Record A. 295. Collusion See Fraud Colour Defendant justifies by a gift of Goods which were then out of the Vendors possession if that being out of possession be a good Colour C. 266 267. Common Special Common at certain times when the Land is not sowed A. 73. Shall not be to any House built on a new Foundation B. 44 45. The Lord or his Tenant shall have no Common to Lands improved by the Statute of Merton cap. 4. B. 44. If a Commoner may kill Conies B. 201 202. May distrain a Strangers Beasts Damage Feas B. 201. If some Commoners let their Corn lie beyond the usual time the other Commoners may put in their Cattle B. 202 203. Commission and Commissioners The second Commission of the King repeals the first A. 270. Nisi prius out of the Exchequer by Commission 110. Commandment The Commander not punishable unless his Command be strictly pursued B 75. In what case traversable B. 215 216. Conditions Lease upon Condition that the Lessee shall not alien doth not bind an Administrator Secus of a Feme whose Baron alieneth A. 3. In a Feoffment of Lands held in Capite that the Feoffees shall not alien A. 8 12. What acts shall be defeated by entry for breach of it A. 8. That the Lessee shall not do voluntary waste what is a breach of it and who shall enter for the breach A. 67. The difference where the Condition is Quod dimissio vacua foret and where only a re-entry is given A. 61. B. 134 to 145. To pay 20 l. or to give Cows how tender is to be pleaded A. 68. contra 70. The difference in pleading to a Condition to discharge and to save harmless c. A. 72 324 325. Shall not be averred to be against Law unless it appear so A. 73. 203. To pay the 29 of February not payable until a Leap-Year happen A. 101. To make such assurance as J. S. and such as the Plaintiffs Council shall devise the diversity A. 105. To perform all agreements in Articles is broken by not performing or by the falshood of a recital A. 122. To pay Mony at the Feast of St. Thomas the later Feast is the day of payment A. 142. con C. 7. What makes a Condition what a Limitation A. 167 168 174 244 269 283 299. B. 38 114 138. C. 152 153. When an Estate which is to begin upon a precedent Condition impossible or possible shall commence A. 229. What Covenants shall amount to a Condition and defeat an Estate A. 246. That the Feoffee shall enfeoff J.S. in Fee or in Tail J. S. refuseth who shall have the Estate A. 266. That the Donees in tail shall not do any act to discontinue c. and what is a breach thereof A. 148 207 257 292 298. A true diversity between the nature of a Condition and a Limitation A. 299. To make reasonable assurance and to levy a fine the difference therein A. 304. Must be pleaded by him who will take advantage thereof A. 306. To pay Mony at a day and place certain it need not be found to be paid at the very day or place so it were paid before the day A. 311. The force of a Proviso coming after the Habendum to alter an Estate A. 318. To perform all Agreements in an Indenture obliges the Obligor to all things though contained in the Obligees Covenants A. 324. To defend the Plaintiff for the Title of such Lands what is a breach A. 325. That a Devisee shall not alien for a time is good and what Estates are a breach thereof B. 82 83. Where the word Proviso makes a Condition or an Exception or Limitation B. 128 129 138. C. 16 225 226. Condition that the Lessee shall not occupy for a time is void B. 132. Of what Condition in a Lease Grantee of the Reversion shall take advantage of B. 136 to 144. Devise to his Son towards his education in Learning is no Condition but the Devise is good though he be not so educated B. 154. Become unpossible to be performed by the act of the Law or of God B. 155. A. bound that B. shall pay before Mich. B. dies before the Bond is forfeit B. 155. To maintain and keep in good repair the Lessee cannot pull down and
Executor shall sell who dies his Executor cannot sell B. 69. To the Heirs of the Body of his Eldest Son is void B. 70. I give my Lease to my Wife for life and then to my Children unpreferred B. 90. To the Heir in see is void and he is in by descent B. 101. C. 18. That his Executor shall pay a Debt this is no Legacy B. 119 120. Devise shall be taken according to the Common not Legal construction B. 120. C. 18 19. Devise of three Closes to three and if any die that the other shall have all his part to be divided between them B. 129. That A. shall pay yearly 10 l. out of a Mannor is a good Devise of the Mannor to A. B. 165. They shall be construed favourably but not against Law B. 165. If the Devisor be distrained and dies before re-entry nothing passeth B. 165. All his Lands called Jacks in the occupation of J S. what passes if not in the occupation of J.S. B. 226. Like Case C. 18 19 132. Of a Mannor to B. and of a third part thereof to C. they are joynt Tenants C. 11. Words in a Devise shall never be judged repugnant if by any rational Construction they may consist C. 11 28 29 Devise of Lands to his Wife for life and after that she may give them to whom she will C. 71. Lands called H. in two Vills A. and B. Devise of H. in A. for life remainder of Hayes Land to L. No Land passes in remainder but Lands in A. C. 77. To J. for thirty one years to pay Debts remainder after the Term expired to his Heirs Males and if he die within the Term that G. shall have it and be Executor J. dies his Issue enters G. evicts him C. 110. Devise that the eldest Son shall take the profits until the younger be of Age and the remainder to the younger Son the elder hath see conditional C. 216. Devise that his Feoffees to Uses shall be seised to other Uses who are accounted Feoffees C. 262. Diminution The manner of alledging it A. 22. With what time it must be alledged B. 3. Disceit Fine reversed by such a Writ because the Land is Ancient Demesne A. 290. C. 3 12 117 120. Not abated by death of one Defendant C. 3. Upon a Recovery in a Quare Impedit A. 293. The manner of proceeding therein A. 294. For an Infant against his Guardian who lost the Land by default in Dower B. 59. Where Estate of the Conusee remains after the Fine reversed C. 12 120. Whom it shall bind without summons C. 120. Discent Takes not away the entry of him who claims by Devise condition broken c. A. 210. B. 192. cont B. 147. Disclaimer He who hath disclaimed shall not have a Writ of Error C. 176. Discontinuance de Process c. Vide Continuance Discontinuance de Terre Remainder in fee after a Lease for life where not discontinued by Fine by the Tenant for life A. 40. B. 18 19. None of Copyholds A. 95. Nor upon a Covenant to stand seised made by Tenant in tail A. 110 111. By Feoffment of Tenant in tail A. 127. B. 18 19. Quid operatur if the Feoffees joyn in the Discontinuance B. 18 19. Lease for years by Cestuy que use pur vy is no Discontinuance but warranted by the Stat. of 32 H. 8. B. 46. None if the Reversion be in the King B. 157. C. 57. Nor by Bargain and Sale by Deed enrolled without Livery C. 16. Disseisin and Disseisor Where a Man shall be a Disseisor at the election of another A. 121. B. 9. If Tenant per auter vy hold over after the death of Custuy que vie if he be a Disseisor B. 45 46. The like if Tenant for years holds over B. 45 46. If the younger Brother enter if he be a Disseisor or Tenant at sufferance B. 48. If Disseisee may give licence to put in Cattle before Entry C. 144. He who Disseiseth a Copyholder gains no Estate C. 221. Disseisin to the use of Baron and Feme he only agrees the Estate vests in both but the Feme is no Disseisor C. 272. Distress Cannot distrain upon the Kings Lands A. 191. Where and who may distrein the Cattle of a Stranger though not Levant and Couchant where and who not B. 7. If one as Bailiff may say he takes a Distress for one cause and carry it away for another B. 196. Dower The Wife not Dowable if the Husband be attaint of Treason although pardoned A. 3. Of what age the Feme must be A. 53. Inquiry of Damages where the Baron died seised A. 56 92. In such an Inquiry the Jury may find above the value of the Dower A. 56. By Custom of Gavel-kind whether demandable as by Common Law A. 62 133. How a Grand-Cape in D. must be executed A. 92. Wife Dowable of a Seisin in Fee defeasible by a Condition A. 168. The Wife shall be endowed at Common Law where the King is to have Primer Seisin A. 285. If a conditional Estate be a good Joynture to bar Dower A. 311. Bar that the Heir granted to the Wife a Rent in satisfaction c. he ought to shew what Estate he had in the Land B. 10. An Infant cannot lose by default in Dower unless per Gardian B. 59 189. Notwithstanding what divorces the Wife shall be endowed B. 169 170. If the Wife shall be endowed where the Husband takes a Fine and renders back presently C 11. If she be barred by Fine and Non-claim if she brings her Writ within five years and desists prosecution six years after C. 50. Touts temps prist a render Dower where necessary to plead it or to give Judgment by default C. 50 52. If the Wise of the Lord shall be endowed of Demeine Lands grantable and granted by Copy by the Lord B. 153. C. 59. Of a Presentation to a Church C. 155. It is a good Bar in Dower that the Feme accepted Homage from the Tenant C. 272. Pleading of agreement to a Joynture made during Coverture C. 272. Divorce If it be causa frigiditatis in the Man who hath Issue by another if the first Marriage be good or the Divorce good until avoided by Sentence B. 169 170 171 172. The several kinds of Divorce B. 169. In pleading of Divorce the Judges name Coram quo must be precisely pleaded B. 170 171. Droit The form of a Writ of Right and what is demandable therein A. 169. B. 36. Whether it lies of an Office Stat. W. 2 cap. 25. A. 169. B. 36. The manner of arrayment of the twelve Recognitors by four Knights A. 303. Droit of an Advowson where it lies A. 316. No challenge to the Polls after the Array made A. 303. Where a Man hath no remedy but by this Writ B. 62 63 65. A Writ of Droit Close directed to the Bailiff and procceeded coram Sectatoribus good C. 63 64. In such Writ twelve Recognitors retorned suffice in an Inferior Court
the acknowledgment of a Deed to himself A. 184. No Action or Indictment lies against one for an offence done as Judge A. 295 323 324. Upon a Justicies the Sheriff in person is Judge else all is coram non Judice B. 34. If Justices of Assise and Gaol-Delivery can take an Indictment of Trespass B. 117. A Justice of Peace cannot commit one for making a Contract against Law B. 210. What Indictment cannot be taken before Judges of Assise and Gaol-Delivery C. 216. Iusticies None but the Sheriff himself can hold Plea thereby B. 34. No Capias in Execution thereupon B. 86. Iustification By a Constable in false Imprisonment for that the Plaintiff would leave her Child to the Parish A. 327. By Prescription for a Way the Defendant must shew a quo ad quem locum certain the Way leads B. 10. By the Bailiffs of a Corporation to imprison any Subject at their pleasure for a misbehavior not good B. 34 35. If the Constable plead that he set one in the Stocks for not Watching he must aver that the party dwells in his Parish C. 208 209. K. King. See Prerogative WHat is given to the King by a Statute of Attainder which gives all rights c. A. 272. Not necessary to summon the King for matter in the Kings Bench for he is there always present A. 325. Quid operatur by assignment of a Debt to the King B. 31 55 67. C. 234. A Bond for performance of Covenants may be assigned to the King but no Execution before the party be warned B. 55. The Kings Widow cannot Marry without the Kings consent B. 141. If he may alter the Tenure notwithstanding the Stat. Quia emptores terrarum B. 151 163. C. 58. Takes nothing but by Record B. 206 207. No usurpation puts the King out of possession of an Advowson C. 17 18. What Debts may be assigned to the King B. 55. C. 234. L. Law. LEX Idumaea quid C. 264. Lex mercatoria is a publick Law and the Judges take notice so of it C. 264. Lex non praecipit inutilia If it appear the Plaintiff cannot have the thing demanded the Writ shall abate A. 330 331. Leases Power to make Leases by Stat. not pursued C. 72. Made be vertue of a power reserved to make Leases for 21 years shall not be to commence post â—xpirationem c. A. 35. Of Sheep and a Farm A. 42. What kind of property the Lessee hath in the Trees A. 49. Without Impeachment of Wast how construed Ibid. Excepting Woods Timber-Trees c. if the Soil it self is excepted A. 116 117 247. Where a Licence to occupy amounts to and shall be pleaded as a Lease A. 129. Covenant that the Covenantee shall enjoy c. is a good Lease Contra that a Stranger shall c. A. 136. For years may commence in futuro A. 171. Upon a Lease for years in remainder there must be Attornment Ibid. What words amount to a Lease A. 178. By Baron and Feme not good without Deed A. 204. For years if the Lessee so long live and if he die within the Term the remainder to J. S. The remainder is void A. 218. C. 154. Where an uncertain commencement may be ascertained by the entry or election of the Lessee A. 227. B. 1. Must have an end and beginning certain A. 245. C. 86. Lease for life cannot commence in futuro unless by way of remainder A. 275 276. None can take by it but those who are party to the Deed A. 287 288. What are void what only voidable A. 307. One Man exposuit ad culturam his Land to two the two have no Estate A. 315. To commence after a former if the former were void ab initio or since the first shall begin presently B. 11. What is a Lease for years or at will B. 78. By a several Habendum to commence after the expiration of several former Leases whether the new Lease begin till all the other be expired B. 106. Lease for so many years as J. S. shall name is good if he name in the life of both parties C. 86. Lease out of a Lease for so many years as shall be to come at the Lessors death Ibid. Lease of Lands by Lessee for years worth 8 l. per annum until the Lessee levy 100 l. what interest is left in the Lessee C. 157. Lease for 60 years and if the Lessee die within the Term that then his Executors shall have until the end of the Term C. 196 197. Leet Who is Judge there and what things are incident to a Leet A. 217 218. When to be holden by the Common Law and by the Statute B. 74. Legacy What is a good assent by an Executor to a Legacy A. 129 130. C. 6. Not payable without demand A. 17. Where and what election shall make one who is Executor and Legatee to be in by the Devise or as Executor A. 216. Payable to an Infant at his full age his Executor may sue for it before the time of his age A. 278. What Devise is a Legacy what not B. 119 120. Lieu and County Where Plea shall be ill after Verdict for want of alledging a place B. 22 76 77 146 147. C. 10. Where necessary in an Indictment B. 183. No place necessary where a Feoffment or Lease for life was made B. 31 32. Where the taking of the profits of Lands is alledged it must be said to be done at the Vill where the Lands lie N. 238. Limitation of Estates To A. and B. his Wife for years if they or any of their Child or Children live so long A. 74. What words make a Condition what a Limitation A. 167 168 244 245 298 299. B. 38 114. To the Feoffor for life and after his death to his Executors for 20 years in whom the Term is vested B. 5 6. C. 21 22. To A. for life and if A. die within 20 years to his Executors for so many years B. 6 7. C. 21 22. One having Issue a Son and a Daughter by several venters Devised to his Son and the Heirs of the Body of the Father how adjudged B. 24 25 26. Mannor of O. in S. use limited of all Lands in O yet the Mannor passeth not B. 47. The moiety of Lands to his Wife for years and his eldest Daughter to enter into the other moiety and the Daughter married and died without Issue having another Sister C. 25 26. To J.S. and his Issue imposterum procreand the present Issue take nothing C. 87. Lands given to A. for the Life of C. and B. the death of either determines the Estate C. 103. Grant to two habend moiety to one and moiety to the other good But grant of two Acres habend to two habend one to one and the other to the other is void C. 126. Limitation of Time. If a Corporation must alledge Seisin within the time limited by the Statute in real Actions A. 153. Livery of Seisin Made before enrolment
shall vest the Estate by Livery and prevent the operation of Inrolment A. 6. C. 125. By Letter of Attorny cannot be made by parcels unless so limited A. 34. What is a good Livery what not A. 207. Where the particular Tenant and he in remainder joyn in a Livery how adjudged A. 262. How it must be made by Attorny of Land in several Counties or of a Mannor A. 306 307 308. Made to three where the Feoffment was to four is good in some cases B. 73. Feoffment by Tenant for life and before Livery made by Letter of Attorny the Feoffor purchaseth the Fee and then Livery is made the Fee passeth C. 73. But that shall not pass other Lands purchased by the Feoffor in the same Vill where the Feoffment was of all his Lands in D. C. 73. Livery ouster le main What Leases or Conveyances an Heir may do before Livery sued A. 157. London Scire facias there ad discutiendum debitum A. 52. Quo Warranto lies against the City if the Mayor use authority not agreeable to Law per Gawdy A 106 107. Upon a Recognizance taken before the Mayor by custom Debt lies not but in their own Courts A. 130 131. The custom that a Feme sole Merchant may sue without her Husband A. 130 131. The Statutes of 32 34 H. 8. of Wills how far they extend to Lands in L. A. 267. The Courts at Westminster take notice of their Customs A. 284. It had no Sheriffs in the 13th year of King Edw. the First Ibid. Debt lies in the Common Pleas upon a Recognizance there Ibid. Hustings may be holden every Week B. 14. Upon Indictment at the Sessions Error lies B. 107. The Custom there Quod concessit solvere debitum alterius B. 156. Custom that every Surety shall be chargeable pro rata B. 166 167. If an Action there by Custom be removed to Westm it shall be remanded B. 167. They ought not to be impleaded in real Actions but in their own Courts C. 147. Their Liberties seised and re-granted by King Richard the Second and re-granted for 10000 Marks C. 264. M. Maihem Cutting off any Finger is a Maihem A. 139. Maintenance See Stat. 32 H. 8. For desiring a Juror to appear and to do according to his Conscience done by a Stranger B. 134 135. Against a Counsellor at Law C. 237. Mannor Whether a Rent-Charge may be parcel of a Mannor A. 14. Extending into several Vills a Grant of the Mannor in one Vill how adjudged A. 26. Granted cum pertin another Mannor which holds of it passeth Ibid Where by Grant of part of the Services of Freeholders and Demesnes a Mannor will pass A. 26. B. 41 42. A Lease of a Mannor except all Casualties and Profits of Courts the Court is not excepted A. 118 119. How it may be dissolved and after become a Mannor again A. 204. A moiety thereof by what words conveyed A. 204. B. 42. Whether a Steward of a Mannor deputed by parol may take Surrenders extra curiam A. 228. If Lessee of a Mannor attorn to the Grantee of the Reversion the Mannor passes A. 265. B. 221 222. If the Tenants pay their Rent to a Disseisee they are discharged A. 265. The Service of a Tenant may be changed from one service to another A. 266. What will pass by Grant by name of a Mannor B. 41 42 43. By what name a Mannor may pass B. 47. A Mannor in two Vills is devised to the Heir and the Lands in the one Vill to A.B. he shall have that devised to him B. 190. Lease the Demesnes the Reversion passes not by grant of the Mannor without the Lessees Attornment B. 222. The Services pass not without Attornment C. 193. Market If a stoln Horse be sold by J. S. by the name of J.D. and so entred it alters no property A. 158. Mesne The form of the Count B. 86. If it be extinct by the Lords purchasing the Tenancy Monstrans de Droit Where it lies A. 195 B. 122. Or where only a Petition de Droâ—t B. 122. C. 15. Petition of Right for a Rent-Charge granted out of Lands which are since vested in the Crown C. 190 191. All the Estates must be truly set down else all is void after Judgment C. 242. Monstrans de Faits Upon pleading a Grant of a Reversion the Deed must be shewed A. 310. And upon pleading of an Estate in an Hundred B. 74. Mort vie If the Plaintiff die after Verdict within the time that the Court takes to consider of the Law the Court may if they will give Judgment as at the first day in Bank A. 187. If the Defendant die after the first Judgment in Trespass before the Writ of Inquiry retorned yet the Action does not abate A. 263. C. 68. If one of two Defendants in Assumpsit die before Judgment if Error B. 54. Murder To leave ones Child whereby it perishes by Famine A. 327. N. Name OF a Corporation ought to be strictly alledged as to the substance A. 134 162. C. 18 19. Joan and Jane all one Name A. 147. A Corporation makes a Lease by the same name in substance and sense but not in words yet good A. 159 160 161 162 163 215. B 97 165. C. 220. Garret King of Arms and the manner of his Creation A. 249. What are Names of Dignity and what of Office only Ibid. B. and Nether B. a Vill A. 272. Executor of Executor how named A. 275. If the word Heir be a good name of purchase A. 287 288. Where the names of the Heads of what Corporations must be shewed in pleading A. 307. The best way is to sue the Defendant as he is named in the Bond though his Name be otherwise A. 322. What is a Name of Dignity and must be put in the Writ what not B. 49 In pleading any matter done before Suiters of a Court-Baron if their Names must be shewed C. 8. Ne admittas Where it lieth A. 235. Negative pregnant Defendant pleads that he permitted J.S. to have ingress into all such Lands which lay fresh adjudged good A. 136. That J. G. did not disturb the Plaintiff but by due course of Law B 197. How to avoid the pleading of a Negative praeg by a Modo forma B 198. Nisi Prius If grantable per Proviso pro Def. upon an Information at the suit of the party B. 110. Nolle prosequi As to part before Verdict in a joynt Action if it discharge the whole B. 177. Nomine pene The Heir shall not have Debt for it reserved by his Ancestor B. 179. Nonsuit The Plaintiff may be Nonsuit after Demurrer A. 105. C. 28. No Nonsuit for part of a Writ or Bill B. 177. Non est factum Where the Defendant may plead it or the special matter A. 322. By this Plea the date of the Bond nor the sealing of it at another day than which the Plaintiff declares cannot prejudice the Plaintiff C. 100. Notice How
Tenant of Freehold Contra in an Assise A. 193. Of Nient comprise in a Recovery A. 184 185. Avowry for Damage Feasant in Copyhold Lands leased to the Avowant The Plaintiff pleads a prior Title to the Mannor in Fee and Ill for he ought to have said he was seised until the avowant entred praetextu of the Lease A. 288. B 80. In what case one may plead Not Guilty in Trespass A. 301. Of a Feoffment by two or a Bond made to two where one is dead A. 322. B. 220. Where one may plead nil debet or the special matter B. 10. To let for Rent of an Eviction by Title B. 10. Where one must plead non concessit or that nothing passed by the Deed B. 13 Where in pleading a place certain must be alledged Vide Lieu County Where to an Information for the King the Defendant cannot plead Not Guilty but must answer specially to the Tort B. 34. Of performance of Conditions to make a good Estate repair a House c. B. 39. Where de injuria sua propria is good Replication with and without a Traverse B. 81 102 103. If a Stranger be bound that the Lessee pay his Rent he may plead entry and expulsion B. 115. Where a Plea must conclude Judgment if Action or If he ought to answer B. 160. That he paid all Debts owing by him to J.S. he ought to shew what Debts C. 3. No pleading of a thing conveyed per nomen c. but by Deed C. 9 10. Plea vicious in Debt upon a Recognizance concluding Judicium si Executio c. C. 58. Of Entry into Religion Resignation and Divorce C. 199. No pleading to the Jurisdiction of the Court after a general Imparlance C. 214 215. One cannot plead an Attachment after Imparlance C. 232. Pledges The King and an Infant need find none B. 4 185 186. Pluralities If an Arch-deaconry make it A. 316. Posse Comitatus Cannot be but out of the Chief Court at Westui C 99. Possession Unity of Possession of 3 purparts of a Mannor does not make the whole liable to a charge granted out of two parts A. 85 86. Unity of Possession of Land and Tithes out of which c. does not extinguish the Tithes A. 248 331 332. Entry of the Brother in one County into the Demesnes of a Mannor extending into two Counties does not make a possessio fratris A. 265. If the possession of a Reversion after a Lease for years make a possessio fratris of Copyhold Lands C. 70. Whether Unity of possession of Lands and Common in the King of Abbey Lands extinguish the Common C. 128. If recovery of Dower against the Brother take away a possessio fratris C. 155 156. What possession makes a possessio fratris C. 273. Power to make Lease by Act of Parliament not pursued C. 72. Premunire Lies not for the party If the Kings Attorny release A. 292. For trying a Freehold without Jurisdiction Ibid. For proceeding in the Admiralty for a matter done upon the Land it must appear in the Libel to be done on the Lands else this Action lies not B. 183. Prerogative See King. That the King shall have a Fine upon alienation of his Tenant in Capite A. 8. The Court ex officio must preserve it A. 63 322. Where the King shall have Primer Seisin A. 65 66. Lands come to the King which are charged with a Rent no distress lies but a Petition of Right A. 191. One cannot cross the King his Title but he must intitle himself A. 202 294. To present a Clerk upon a Lapse vested in the Bishop whose See is after void A. 235. Where the King shall have Primer Seisin and Ward A. 253 284 285. To charge Executors Ad. Computand ' B. 34. The King needs not demand a Rent to entitle himself to a Re-entry A. 12. B. 134. C. 125. May distrain for a Rent-Seek C. 125. May reserve a Rent to a Stranger C. 127. Shall have account against Executors C. 198. The King shall not have his Prerogative to be first satisfied of a Debt which comes to him by Assignment if a Prior Extent be executed C. 239. Upon such Extent the King shall have the whole Land though the Conusee could have but a moiety C. 240. Prescription For Estovers within a Forest A. 2. Cannot be to take all the profits c. but may be to have Fold-course or the like A. 11 142. For Common when the Land is not sowed A. â—3 No Prescription though no memory to the contrary if the commencement be known A. 10â— B. 28. That none shall exercise the Trade of a Baker in a Market Town without the Plaintiffs Licence A. 142 143. Laid in Tenant for life and him in Remainder in tail and yet good A. 177. Where good to have Suitors to a Court and to take Toll c. A. 217 218. Void because unreasonable A. 232 314. C. 41 42 81 82. Good and reasonable A. 232 233 314. C. 41 42. Spiritual Persons may prescribe in non decimando A. 241 248. Though such Prescription be interrupted by the Land coming to Lay-hands yet it is not destroyed A. 248. What words apt to make a Prescription what not A. 273. None against a Statute B. 28. Not a good Prescription That every Inhabitant in a Town shall have Common B. 44 45. C. 200. In pleading a Prescription in a Vill it must be pleaded that the Vill is Antiqua c. B. 98. How to prescribe for a Way with Horses and Carriages C. 13. In pleading it it must be said that the Prescription was once executed not only quod potest c. C. 83. Presentment to a Church Before Induction the King may repeal his Presentation A. 156. B. 164. Presentee of the King by Lapse dies before Induction Videtur that the King may present again A. 156. Grant of the next Presentment made when the Church is void is also void A. 167. The difference between it and a Collation and the definition of them A. 226. If the Bishop die after Lapse devolved to him the King shall Present A. 235. What kind of Interest it is Ibid. If an Archdeaconry become void by the Deacon being made Bishop the King shall present and not the Patron C. 151. The King cannot revoke his Presentment but by express words and reciting the first C. 243. Primer Seisin The Heir shall pay a third part of the profits for Primer Seisin C. 25 54. Principal and Accessary If the Attainder against the Principal be reversed the Accessary is discharged A. 325. Priviledge A person who is priviledged by reason of an Action depending in the Common Bench is priviledged for the Goods of Strangers in his hands so that they cannot be attached A. 169 189. What duty to the King gives a Subject the priviledge to sue in the Exchequer B. 21. If both parties are previledged in the Courts at Westminster allocatur querenti B. 41. One priviledged after Judgment quod computet B.
In the Common Pleas. 1 And. 27. THe Case was That the Bishop of Exeter leased certain Lands in the County of Devon for years rendring Rent payable in Exeter aforesaid with Clause of Re-entry and the Bishop of Exeter had a Palace in Exeter aforesaid It was the Opinion of the Iustices in this Case That the Rent ought to be demanded at the said Palace and not elsewhere And if that the Lessee come to the Common Gate of the said Palace and there tender the Rent it is a good tender without more be the Gate shut or open notwithstanding that the Bishop be within the Palace and that neither he nor any of his Servants be at the Gate for to receive it for the Lessee is not tyed to open the Gate of the Palace if it be shut nor to enter into the Palace if it be open X. Mich. 4 and 5 Phil. and Mary In the Common Pleas. COpyhold Land was surrendred to the use of the Wife for life the remainder to the use of the right Heirs of the Husband and Wife The Husband entred in the right of his Wife It was the Opinion of the Iustices in this Case That the remainder was executed for a Moyety presently in the Wife and the Husband of that was seised in the right his Wife and the Wife dying first that her Heir should have it 1 Roll. Lane and Pannel's Case But if the Husband had died first his Heir should have had one Moyety XI Joscelin and Sheltons Case Mich. 4 and 5 Phil. and Mary In the Common Pleas. More Rep. 13. IN an Action upon the Case the Plaintiff declared That the Defendant in Consideration that the Son of the Plaintiff would marry the Daughter of the Defendant assumed and promised to pay to him 400 Marks in 7 years next ensuing by such portions And upon Non Assumpsit pleaded It was found for the Plaintiff It was Obiected in Arrest of Iudgment That one of the said 7 years was not incurred at the time of the Action brought c. and that appeared upon the Declaration so as the Plaintiff had not cause of Action for the whole Mony promised And for that cause the Writ was abated by the Court by award although it was after Verdict See Br. Title Action upon the Case 108. XII 2 and 3 Phil. and Mary In the Common Pleas. IN an Assise against 4. they were at Issue upon Nul Tenant del Franktenement nosme en le brief And it was found by the Assise That two of them were Disseisors and two Tenants And after Verdict and before Iudgment one of those who were found Tenants died And that was moved in Arrest of Iudgment But it was not allowed of by the Court Because the parties had not day in Court to plead it But it was said That after Iudgment given a Writ of Error lieth In the Time of Queen Elizabeth XIII Canons Case 1 Eliz. In the Common Pleas. UPon an Evidence to a Iury in the Common-Pleas 1 Roll. 839. Vpon an Issue there this Deed was given in Evidence viz. Sciant praesentes futuri Quod Ego Richardus Canon filius haeres Richandi Canon Dedi Concessi hac praesenti carta mea Confirmavi Willielmo Compton Militi Omnia Terr Tenementa c. ad usum mei praed Richardi Joannae uxoris meae pro termino vitae absque impetitione Vasti ac etiam rectorum haered mei praefat Richardi assignatorum meorum post decessum mei praefat Richardi Joannae uxoris meae Et si contingat me praefat Richardum obire sine exitu de Corpore meo procreato Tunc Volo quod omnia dict Terr Tenementa remaneant Tho. fratri meo rectis haeredibus de Corpore suo procreatis haeredib assignat eorum And it was the Opinion of the Iustices That a good Estate tail was by that Deed limited to the said Richard in use after the death of his Wife XIV Holt and Ropers Case 2 Eliz. In the Common Pleas. IN a Replevin by Holt against Roper the Case was J. Abbot of W. Leased to T.M. Knight a Close of Land in B. for 44 years Post 242. 243. who thereof possessed was attainted of misprision of Treason and so forfeited to the King who seised the same The Abbot and his Covent surrendred 31 H. 8. the King Leased the same to Roper for 21 years and died King Ed. 6th in the fourth year of his Reign Leased the same to one Philips To have and to hold after the Term to T.M. ended for 21 years Roper surrendred to Queen Mary who Leased the same again to Roper for 30 years In this Case It was adjudged That the Lease made to Phillips was utterly void for that the King was deceived in his Grant For the Lease made to F.M. was long time before determined by extinguishment in the Person of the King who had it by forfeiture upon the Attainder of T.M. and the Statute of 1 E. 6. Cap. 8. shall not help that Lease notwithstanding the Non-recital or Mis-recital of Leases made before For here is not matter of recital but matter of Estate and Interest which is not well limited for the Commencement of it i. the Lease to Phillips For there is not any certainty of the Commencement of it For that Lease cannot begin after the Surrender of Roper for the words of the Limitation of the beginning of it cannot serve to such Construction XV. 2 Eliz. In the Common Pleas. A Term for years is devised to A. The Executors of the Devisor entred into the Land devised to the use of the Devisee It was the Opinion of the Court That the same was a sufficient possession to the Devisee XVI 3 Eliz. In the Common Pleas. TWo Coparceners were of a Reversion the one of them granted his Interest in it by Fine to another It was holden in that Case That the Conusee should have a Quid juris clamat for a Moyety of the said Reversion XVII Mich. 4 Eliz. In the Common Pleas. THe Lessor mortgaged his Reversion in Fee to the Lessee for years and at the day of Mortgage for payment of the Mony he paid the Mony It was holden in this Case That the Lease for years was not revived but utterly extinct XVIII Mich. 4 Eliz. In the Common Pleas. J.N. Cestuy que use in tail 14 H. 8. by Indenture between him on the one part and J.S. of the other part In Consideration of a Marriage between his Son and Heir apparent and Joan Daughter of the said J.S. to be had Covenanted with the said J.S. That neither he nor any of the Feoffees seised to his use have made or hereafter shall make any Estate Release Grant of Rent levy any Fine or do any other Incumbrance whatsoever of any of his Mannors Lands c. But that all the said Mannors c. shall immediately descend or remain to his said Son and the Heirs
the Enfant Hob. Rep. 281. for the Wife had her said Estate to her own use and then her Husband surviving her should have it and that without any admittance for that he is not in of any new Estate but in the Estate of his Wife as Assignee And it was said by them That if a Copyholder be for years and maketh his Executors and dieth that the Executors should have the Term Co. Case of Copyholders and that without any Admittance Weston contrary in that case as to the Executors XXIII Tindall and Cobbs Case 7 Eliz. In the Common Pleas. WAste was brought by Tindall Knight against Jeoffery Cobbe Esquire and the Plaintiff declared of a Demise of the moyety of the Mannor of Wolverton and of the moyety of a Wood called Wolverton-Wood The Defendant pleaded That Robert Winckfield before the Waste supposed was seised of and in tertia parte alterius Medietatis of the said Mannor and of and in tertia parte alterius Medietatis of the aforesaid Wood and held the same insimul pro indiviso with the Plaintiff and that the said Robert Winckfield by his Deed sold to the Defendant omnes omnimodas arbores subboscos suos crescent in praedict tertia parte alterius medietatis praedicti bosci ad libitum ipsius Galfridi succidend and so justified the cutting down of 300 Oaks in which the Waste is assigned with this that he will aver That the aforesaid 300 Oaks were the third part only in numero precio medietatis omnium arbor subboscorum at the said time when the Waste is supposed to be done and demanded Iudgment if Action And divers Exceptions were taken to the Count 1. He sheweth Vaugh. Rep. 175. that the Demise of the moyety of the Mannor was per nomen c. and doth not shew that the demise was by writing and if not then he cannot plead it by a per Nomen 2. The Waste is assigned in digging of Clay in 100 Acres of Lands parcel Medietatis Maner de Wolverton and hath not shewed in what Town the Land is For he hath shewed before the Demise of the moyety of the Mannor of Wolverton in Wolverton 3. He shews the Demise of the moyety of the Mannor of Wolverton and of other Lands and assigns the Waste in cutting down Oaks in quodam bosco vocat Wolverton Wood parcel praemissorum and that cannot be for this Wood cannot be parcel of the Mannor of Wolverton and of the other Lands also And for these Causes the Count by the whole Court was holden to be insufficient XXIV Stamfords Case 7 Eliz. Dyer In the Common Pleas HUgh Stamford seised in Fee had Issue A. his eldest Son and B. his younger Son A. had Issue George and Elizabeth by divers Women Hugh made a Feoffment in Fee to the use of himself for life and afterwards to the use of George in tail and afterwards to the use of A. in tail and afterwards to the use of the right Heirs of Hugh Hugh dieth A. dieth George levieth a Fine to the use of himself in tail the remainder over to B. in Fee and dyeth without Issue It was holden by Bendloes Carell Kelloway both the Bromleys and Kingsmill That Elizabeth is barred by this Fine by the Statute of 4 H. 7. 32 H. 8. XXV 7 Eliz. In the Common Pleas. THe Case was this Grandfather Father and Son Lands are given to the Grandfather for life the remainder to the Son in tail The Grandfather and Father joyn in a Feoffment with warranty The Feoffee makes a Lease for years and afterwards conveys the Land to the Grandfather for life the remainder to the Father in Fee The Grandfather and Father die The Son entreth and puts out the Lessee Weston was of Opinion That the Entry of the Son was lawful for it was the Feoffment of the Grandfather and the Confirmation of the Father and the Warranty of the Grandfather collateral to the Father and his Estate but when the Land is re-assured as above is said and afterwards the Son entreth after the death of the Grandfather and Father now he is remitted and the warranty gone by taking back the Estate and the Son is now seised of as high an Estate as his Ancestor was at the time that he departed with the Land by which the warranty is determined Dyer contrary Here had not been any discontinuance if the warranty had not been for the Father was never seised by force of the entail And I conceive that against a warranty collateral one cannot be remitted for it binds the Right as a Fine with Proclamation after the Statute of 4 H. 7. And I conceive that during the possession of the Grandfather the Warranty is but suspended and not determined and although that by the death of the Grandfather it be determined yet having respect to the Lessee it is in being for his Estate is derived out of the Estate which was warranted and which descends with the Warranty Bendloes One cannot make Title by a Collateral Warranty only c. XXVI Simonds Case 8 Eliz. In the Common Pleas. IN a Formedom the Tenant vouched Rose Simonds as Daughter and Heir of Henry Simonds Clerk and because she was within age he prayed that the Parol might demur Bendloes recited the Case to be this A Fine was levied of the Lands to Henry Simonds upon Condition c. who rendred back the Land to the Conusor by the same Fine and that the said Henry Simonds never had any possession or seisin but that which he had mean between the Conusans and the Rendee of which possession the Wife should not be endowed And therefore it is a good Counter-plea to say That the said Rose nor any of her Ancestors c. for that was not such a Seisin upon which Warranty might rise and so if a Feoffment in Fee had been made to the said Henry Simonds to the use of another And of that Opinion was Dyer Iustice for Henry Simonds had not any possession by force of which he might be vouched Welsh contrary For the Fine imports in it self that he hath a Fee and that he hath granted and rendred the same Fee and this Fine amounts to a Feoffment Dyer said to Bendloes The best way for you is to plead the Counter-plea generally and if he estop you by the Fine to demur upon it Afterwards Bendloes moved another matter viz. Henry Simonds was a Priest and therefore Rose is a Bastard and if so then she cannot be vouched as Heir But I would not trust the Bishop to Certifie the Bastardy if I should plead it generally and therefore I will plead the special matter and so it shall be tryed by the Country Dyer and Welsh So you may do if you please and yet if you plead general Bastardy it shall be tryed by the Country for Rose is not a party to the Writ and in such case Bastardy shall be tryed by the Country XXVII Mich. 8
of Bargain and Sale and he hath not election to take the Land by way of Livery But when all is in one Deed and takes effect equally together in such case the Grantee hath Election but here in this Case the Bargain and Sale the Deed being Inrolled doth prevent the Livery and taketh his full effect before And by Wray and Catline If he in the Reversion upon a Lease for years grants his Reversion to his Lessee for years by words of Dedi Concessi Feoffavi and a Letter of Attorny is made to make Livery and Seisin the Donee cannot take by the Livery for that the Lessee hath the Reversion presently XL. Mich. 14 Eliz. IN an Ejectione Firmae the Case upon Evidence appeared to be thus The Bishop of Rochester Anno 4 E. 6. Leased to B. for years rendring Rent and afterwards granted the Reversion to C. for 99 years rendring the ancient Rent To have from the day of the Lease without impeachment of Waste which Grant was confirmed by the Dean and Chapter But B. did not Attorn And for default of Attornment It was holden by the whole Court That the Lease was void for it is made by way of grant of a Reversion and to pass as a Reversion But by Catline If the Bishop had granted the Reversion and also demised the Land for 99 years it should pass as a Lease to begin first after the former Lease determined And as to the Attornment it was given in Evidence That B. after the notice of the Grant to C. spake with C. to have a new Lease from him because he had in his Farm but 8 years to come but they could not agree upon the price And the Iustices were of Opinion That that was an Attornment because he had admitted the said C. to have power to make a new Lease unto him Also the said B. being in Company with one R. seeing the said C. coming towards him said to the said R. See my Landlord meaning the said C. Bromley Sollicitor That is no Attornment being spoken to a stranger Barham contrary because he was present And it was held by the whole Court to be a good Attornment But it was holden That if the Attornment was not before that the Bishop was translated to Winchester That the Lease should be void and although that the Confirmation of the Dean and Chapter was before the Attornment so as no Estate had vested in C. yet it is good enough for the assent of the Dean and Chapter is sufficient whether it be before or after by Catline Southcote and Whiddon Wray contrary XLI Mich. 14 Eliz. THe King seised of a Mannor to which an Advowson is appendant a Stranger presents and his Clerk is in by 6 months The King grants the Mannor with all Advowsons appendant to it to B. The Incumbent dieth The Grantee may present For the Advowson was always appendant and the Inheritance thereof passeth to the Grantee and is not made disappendant by the usurpation as in the case of a common person for the King cannot be put out of possession But the Patentee shall not have a Quare Imped of the first disturbance for that presentment doth not pass to him being a thing in Action without mention of it in his Grant. And if the Patentee bringeth a Quare Impedit of the second Avoydance he shall make his Title by the presentment of the King not making mention of the usurpation yet if the Bishop presenteth for Lapse in the case of a common person he ought to make mention of it for that is his Title to the Presentment c. XLII Humfrey and Humfrey's Case Mich. 14 Eliz. In the Common Pleas. BEtween Humfrey and Humfrey the Case was That the Defendant in Debt after Iudgment aliened his Land and the Plaintiff sued forth Execution upon the new Statute And the Court of the Request awarded him to the Fleet because that he sued forth Execution Whereupon the Iustices of the Common Pleas awarded a Habeas Corpus and discharged the Plaintiff It was said by Bendloes Serjeant That the Chancery after Iudgment could not enjoyn the party that he shall not sue forth Execution for if they do the party shall have his remedy as above XLIII Mich. 14 Eliz. In the Kings Bench. A Man seised of Copyhold Lands Deviseth a certain parcel of them to his Wife for life the remainder to his Brother and his Heirs And afterwards in the presence of 3 persons of the Court said to them I have made my Will and I have appointed all things in my Will as I will have it And afterwards he said And here I surrender all my Copyhold Lands into your hands accordingly And it was moved If all his Copyhold Lands should be to his Wife or by those which were specified in the Will. And the Opinion of the whole Court was That the Surrender is restrained by the Will so as no more passeth to the Wife upon the whole matter but that which is mentioned in the Will and the general words shall not enlarge the matter XLIV Hill. 14 Eliz. In the Common Pleas. LAnds were devised to the Mayor Chamberlain and Governors of the Hospital of St. Bartholomew in London whereas in truth they are Incorporated by another name yet the Devise is good by Weston and Dyer which Manwood also granted because it shall be taken according to the intent of the Devisor And it was said by Weston If Lands be devised to A. eldest Son of B. although that his name be W. yet the Devise to him is good because there is sufficient certainty c. XLV Pasch 14 Eliz. In the Common Pleas. THe Case was A. seised of Lands deviseth the same to his Wife for life the remainder to his three younger Sons and to the Heirs of their bodies begotten equally to be divided amongst them by even portions and if one of them die then the other two which survive shall be next Heirs The Devisor dieth One of the Sons dieth and by Dyer and Weston Iustices The 3 Brothers were Tenants in Common in remainder But contrary it is where such a Devise is made between them To be divided by my Executors c. there they are Ioynt-Tenants until the division is made but here although the words are Equally to be divided the same is not intended of a Division in fact and possession but of the Interest and Title For if a Man bringeth a Praecipe quod reddat de una parte Manerii de D. in 7 parts to be divided it is not intended divided in Possession but divided in Interest and Title And it was said by the said Iustices That although one of the Brothers dieth the two surviving Brothers have his part by purchase and not by descent and they are Ioynt-Tenants of it And this was the Case of one Webster and Katherine his Wife the late Wife of John Bradbury XLVI Pasch 14 Eliz. In the Common Pleas. THe Case was Lessee for years of the
Pawnage of the Park of H. grants all his Goods and Chattels moveables and immoveables within the said Park It was holden by Weston and Dyer Iustices That the Lease of the Pawnage passeth by these words And it was said by Dyer If a Man hath a Lease for years of a House and grants all his Goods and Chattels being in the same House that as well the Lease of the House as the Goods within it pass by such a Grant. XLVII Pasch 14 Eliz. In the Common Pleas. NOte It was said by Weston and Bendloes That a Retraxit cannot be before a Declaration which Leonard and Filmer Prothonotaries granted And Dyer said That it being before a Declaration it is but a Nonsuit and Wheatley and Filmer affirmed the same and therefore it was adjudged That such a Retraxit in the Court of Hustings before the Sheriff is no Plea in Bar. XLVIII Pasch 14 Eliz. In the Common Pleas. IN Debt brought against Christmas who shewed forth a Protection Quia Profecturus with the Lord Hunsdon to Barwick Dyer doubted If the Protection did lie But said It should be rather Moraturus then Profecturus For a Protection Quia Profecturus to Calleis was never good but super victitation Calicii Harper contrary For Barwick is out of the Realm And he said That he was once of Counsel Where a Bill was exhibited in Parliament to make Hexham part of England and he said That in the time of the Queen that now is One Carre struck a Man who thereof died at Barwick and in an Appeal thereof brought here by the Wife Carre was dismissed XLIX Cranmers Case Hill. 14 Eliz. Rott 938. In the Common Pleas. Dyer 309 310. 2 Len. 5. 1 Len. 196. 1 And. 19. More Rep. 100. Office of Executors 118. 119. TThomas Cranmer Archbishop of Canterbury having a Reversion in Fee of certain Lands upon a Lease for years granted the Reversion to the use of the Grantor himself for his life and after his decease to the use of the Executors and Assignees of the Grantor for 20 years next after the death of the Grantor and after to the use of Thomas his Son in tail and afterwards to the use of the Grantor in Fee The Grantor is attainted of Treason and the Queen gave the said Term of 20 years to the Wife of the Grantor who took to Husband Ed. White-Church who let the Land to A. Thomas the Son entred and leased the same Land to one Kirk who upon an Ouster brought Ejectione Firmae This Case was Argued by the Iustices Manwood the puisne Iustice conceived That the Plaintiff ought to be barred and that the Lessee of White-Church who claimed by the grant of the Queen the said Term of 20 years ought to hold the Land against the Son of the Grantor For the remainder limited to the Son is not yet begun in possession And he insisted much in his Argument upon this point That Vses limited upon any Conveyance are governed and directed according to the Rules of the Common Law As if a Feoffment in Fee be made unto the use of another for life the remainder to the use of the Lessee for life and the Heirs of his body c. now the party hath an estate tail executed in possession and that is according to the Rule of the Common Law. And he cited the Case of 40 E. 3. 20. Where Land was given by Fine to A.B. and C. and to the Heirs of the body of C. and for default of such Issue the remainder to the right Heirs of A. C. died without Issue B. dyed and afterwards A. died his Heir brought a Scire facias out of the said Fine And by Iudgment of the Court the Scire facias did not lie for the Fee was vested in the Father of the Demandant although that ex vi verbi the remainder was limited not to the Father but to his Heirs But where Vses are limited in other manner than according to the Rules of the Common Law there they shall not be ruled and governed by the Rules of the Common Law As if Lands be given to the use of one for life and to the use of such Lessees to whom the Tenant for life shall demise the same for years or life rendring Rent the remainder over to a stranger in tail and afterwards the Tenant for life makes a Lease for years or life and dieth such a Lease shall bind him in the remainder although that the Lessor had not but for life and be now dead for the Vse limited here to the Lessees which would be was limited contrary to the Rules of the Common Law. For by the Common Law such Leases made by Tenant for life are determined by his death And in this Case This Lease for 20 years after the death of the Grantor was limited according to the Rules of the Common Law and therefore it shall take effect accordingly as if it had passed in possession and not in use as if the Conveyance had been of the Land it self and that Land had been granted to the Grantor for 20 years after his death that Interest had been vested in him to sell forfeit or otherwise to dispose at his pleasure and shall not accrue to the Executors as a purchase 19 E. 2. Fitz. Covenant 25. Land was Leased to one for life and after his decease to his Executors and Assigns for 10 years the Lessee assigned the Term And by Herle it is a good Assignment For it is in the Election of the Lessee to Devise that Interest or to assign it in his life-time And see 39 E. 3. 25. A Lease was made to one for life and a year over 17 E. 3. 29. Lessee for life so as after his death the Land remain to his Executors for 8 years Lessee for life died He who had the Freehold of the Land was impleaded who rendred the Land and the Executors of the Lessee for life prayed to be received scil where as Executors do hold the Term which proves that they had the Term as Executors to the use of the Testator and so Assets therefore the same was before in the Lessee for life But by Dyer in his Argument That Case doth not prove it and certainâ—y it is not Assets For although the Executor have the same Term by purchase yet they have it as Executors for that is a good name of purchase which Harper concessit And Manwood argued further and he Cited 19 E. 3. Fitz. Covenant 24. Land was let for life and if the Lessee died within 12 years that his Executors should hold the same until the end of the 12 years The Lessee for life died and the Executors entred and the Executors of the Lessee for life brought Actions of Covenant which proved that the Executors had the Term as a Chatel vested in the Testator and not in their own Rights as Purchasors by the name of Executors See 22 Ass 37. Land demised to A. ad totam vitam suam
the Land descends to her and her Sister as unto one moyety of the Land the Lease is determined but not as to the other moyety Whiddon Iustice Where a Devise is for the benefit of a stranger there the Heir shall take by the Devise and not by descent As if a Lease be made for years the remainder to the Heir there the Heir shall take the Land by the Devise Catline She hath it be Descent and not by the Devise But if he deviseth the Land to the Heir in tail with this That he shall pay a certain sum of Mony unto another there the Heir shall take by the Devise for the benefit which may accrue to the stranger and not by descent for otherwise the Will should not be performed But where the Estate of the Heir is altered by the Will nor any benefit doth accrue unto another after that the Lands come to the hands of the Heir in that case he shall have the Land by descent And so here in this case for as much as the Devise is That the Daughter shall enter they both being but one Heir to their Father shall have the Land by descent and the words of the Will That he shall enter into the moiety shall be void as if the Devise had been to the Heir for life there the same is void because the Fee-simple which descendeth to her doth drown the particular estate for life And therefore in the principal case here the Vncle shall have but the moyety of the moyety which is so devised and the other Sister shall have the other moyety of the Land and as to that moyety which is devised to the Wife for years the same shall enure according to the Common Law that the Vncle shall have the moyety of that and the other Sister the other moyety LIV. Mich. 15 Eliz. In the Common Pleas. THis Case was moved to the Court by Lovelace Serjeant A Man Covenants with another to make and execute an estate of such Lands as should descend to him from his Father and Grandfather by a certain day the same Lands to be of the clear yearly value of 40 Marks And the Question which he moved to the Iustices was That if the party had more Lands which came to him from his Grandfather and Father than did amount to the yearly value of 40 Marks If he was to make assurance of all the Lands or of so much thereof only as amounted to the value of 40 Marks And Manwood Iustice conceived That he should make assurance of Lands only which were of the value of 40 Marks per annum For the words such which do not go so largely as if he had said All my Lands which shall descend or to me be descended for then the yearly value were but a demonstration and all his Lands ought to be assured But here the Intent of the Indenture cannot be taken otherwise than to have but an Assurance of so much Land as if he had said Of such Lands and Tenements as were my Grandfathers and Fathers amounting to 40 Marks by the year for there by those words he shall have but 40 Marks by the year Lovelace It hath been taken That where the Queen made a Lease of all her Lands in such a Town amounting to the yearly value of 40 l. that that valuation is not a demonstration and shall not abridge the Grant precedent to have all in the Town which should be of the value of 40 l. but her Grant shall be taken and construed according to the words precedent Manwood The Common case of assurance upon a settlement of Marriage is That he shall stand seised of so much of his Land as shall be of the clear yearly value of 40 Marks If the marriage take effect The Question hath been If they to whom the assurance is made may enter into any part of the Land at their election and take that which is the best Land to the value of 40 Marks per annum and hold the same in severalty or if they shall be only Tenants in Common with the other And also it hath been a Question Whether they may choose one Acre in one place and another Acre in another place and so through the whole Land where they please because the Grant shall be taken strong against him that granteth But I conceive that it should be a hard case to make such Election of Acres But it was said by some Serjeant at the Bar That if a Man granteth to another to take 20 Trees in his Lands that the Grantee may cut down one Tree in one place and another in another place Manwood agreed that Case but of the other Case the Court doubted of it The principal case was adjourned LV. Vernon and Vernons Case Mich. 15 Eliz. In the Common Pleas. NOte That in the Case of Dower between Vernon and Vernon and the Argument of it the Plaintiff would have been Nonsuit Dyer Iustice said It should be an ill President if a Nonsuit should be after Demurrer And therefore he said That for his part he would not agree that any Nonsuit should be upon it but he said he would be advised and take better Consideration of it If the Nonsuit should be awarded or not And afterwards at another day Manwood and Dyer took a difference where the Nonsuit is the same Term and where in another Term and said It is like unto the Case where a Man would Wage his Law and is present ready to do it that there the Plaintiff cannot be Nonsuit because it is in the same Term but he shall be barred But in another Term afterwards he might be Nonsuit if the Defendant take day over to wage his Law until another Term and so they said it should be in this case LVI Sir Peter Philpots Case Mich. 15 Eliz. In the Common Pleas. THis Case was moved by Meade Serjeant to the Iustices of the Court of Common Pleas viz. That Sir Peter Philpot Knight seised in Fee of divers Mannors and Lands suffered a Recovery and made a Feoffment thereof unto divers persons To the use of himself for life the remainder to his right Heirs And after the Statute of 32 H. 8. of Wills He devised all his said Mannors and Land to his Wife for life and it was expressed in his Will That he could not devise all his Lands by reason of the Statute of 32 H. 8. that his Will was That his Wife should have so much which might be devised by the Laws of the Land And there was another Clause in the said Will That his Feoffees should stand seised of the same Mannors and Lands after the death of his Wife To the use of one Hurlock and others for years for the payment of his Debts and for the raising of Portions for the preferment of his Daughters in Marriage And further by his said Will he willed That if the Law would not bear it That Hurlock and the others should have the Interest Then he
but are moved for the pleasure of the parties What Resolutions shall we make by speaking at random Manwood As to the first Exception I nor my Brother Jeffery do not doubt of it but that the Plaint was good notwithstanding that it is not shewed that he was idonea persona for the Law shall intend him so to be until the contrary he shewed And so it is of a grant of an Annuity as long as he se bene gesserit the Law shall intend that he carrieth himself well until the contrary be shewed But as to the other Point That he doth not shew the death of the first Bishop my Brother Jeffery doubted of it but I make no doubt of it for that is but a Recital and the Plaintiff makes his title but from Bishop Alley and therefore that is not material nor parcel of his Plaint whether the predecessor of Alley be alive or not for he doth not derive any Title from him but from Alley Dyer Can a Bishop grant an Office in Reversion without title of Prescription that they have used so to do time out of mind And here no Prescription is laid that the Bishop might so do And then as I conceive the Reversion of the Office cannot be granted for there is not any Reversion of it and it is not like unto an Advowson which may be granted that the Grantee may present when it shall be next void And as I conceive No Reversion of any Office can be granted if not by the King who hath a special Prerogative For he reciting how that such an one hath such an Office for life he may grant that such a person shall have the same Office after the death of the first Grantee And so the Queen may grant the Reversion of such an Office as if she recite that such an one is Keeper of such a Park there she may grant the Keepership of it after the death of another But if a Common person will grant the Stewardship of his Courts after the death of such a person as is now Steward or the Reversion of it the same is not good For of Offices there is not any Fee or Reversion But a Nomination which the party hath to name what person he pleaseth when the same shall become void Manwood It is the Order in the Arches and in the Prerogative Court and of all the Courts of Pauls to grant the Offices in Reversion as in the Case of Doctor Drury and others who have the Reversion of every Office which doth belong to the Spiritual Courts Dyer I do not care nor regard what they do but what they ought to do and I do not respect the person of any one in relating the Law But it may be that by words of Covenant such a Covenant may be good And of late time here a Case hath been adjudged That where one prescribed that such an one might grant an Office cuicunque personae idoneae voluerit and the Grant was made to two and because the prescription did not warrant this manner of grant it was adjudged void for when the prescription is to grant alicui personae and not quibuscunque personis by that he cannot grant it but to one person and not unto divers because the prescription doth not extend so far Manwood I conceive there is a difference betwixt such persons who have Offices for life as the Admiral of England the Lord Treasurer the Iustices of the two Benches which have Offices incident to their Courts they cannot grant any of those Offices in Reversion But a Bishop hath a Fee and therefore the Cases are not alike Dyer he hath not prescribed in the person of the Bishop here but he hath said That the Custom is That the Bishop may grant the said Office whereas in truth if there were a prescription he ought to prescribe That the Bishop for the time being might grant the said Office in possession or in reversion And so as I conceive here no Office shall be granted in reversion unless by prescription which ought to be alledged And in the time of this Queen an Office of this Court was granted to Fry and his Son by the King and the Patent was shewed here in Court and rejected and it was said there was no place in Court for two to sit there and the Office might be exercised as well by one as by two and therefore the Patent was disallowed And although that Offices are granted to two as now in the Kings Bench of late time there is not any President to warrant the same and therefore as I conceive such a Grant is not good nor warranted by the Law for I do not regard in this Case against what persons I speak Mounson In the Chancery a Patent was granted to Bagot and Swirenden of an Office in the Chancery by King Henry the 6th and in 9 E. 4. it is is disputed Whether the Grant were good or not c. LIX Mich. Eliz. In the Kings Bench. THe Case was A Man Mortgageth his Lands to pay to the Mortgagee his Heirs Executors or Assigns a certain sum of Mony at a day certain The Mortgagee dieth and maketh his Heir within age his Executor and the Mortgagor pays the Mony at the day to the Heir It was holden The same shall be Assets in the hands of the Heir as Executor and that he hath not the Mony as Heir and he shall be charged with it within age LX. Mich. 15 Eliz. In the Common Pleas. THe Case was this A Man had made a Lease for 40 years to one by Indenture if the Lessee should so long live and afterwards by another Deed he demised the same Lands and Tenements to the same Lessee To have to his Executors and Assigns for 40 years after the expiration of the first Lease And Lovelace Serjeant demanded the Opinion of the Court the Lord Dyer being then in the Star-Chamber Whether in this Case the Lessee should have the Interest in the second Lease or his Executors or whether it was a void Lease Harper Iustice said That in every Lease there are 3 things incident to make it good 1. That there be a Lessor to make the Lease 2. That there be a Lessee to take the Lease And 3. That there be a thing which should be which should be let And then he said That here although that there be a Lessor and a thing which should be leased yet here there was not any Lessee For Executors are not until after the death of the Testator But he said That if a Lease be made for years or for life and that the Executors shall have the same for certain years after his death the same is good for there is an Interest of the Term. And if a Man maketh a Lease to begin at the month of Easter his Executors may have this Term because the same was an Interest of a Term in the Lessee and the Term shall be executed at Easter But here in this
35. that he shall enjoy it against all persons but only against all persons who have Title and not against those who have not any Title because against them he may have his remedy And if a Man makes a Feoffment of his Lands with Warranty and covenants that it is discharged of all Rents 1 Roll. 434. 1 Inst 389. a. 1 Len. 29. there it shall not extend to Rent Services which are incident to the Lands of Common Right In 3 H. 7. 4. the Case was The Condition of an Obligation was That the Obligor should make Appropriation of the Church of Dale such a day to such a House at his Costs and Charges discharged of Incumbrances Roll. Tit. Conditions there although there was a Pension granted thereout to another it was holden That the Obligee was not bounden to discharge it of that Pension No more than if a Man be bounden to make a Feoffment of his Land there although that he charge the Land yet he shall not forfeit his Bond But if it were that he should make a Feoffment of his Land discharged c. it is otherwise but yet he shall not be bounden to discharge it of such things with which it is charged by the Law. Barham The words are precisely That he shall enjoy it without interruption of any person so as be he interrupted by one that hath Title or no Title the Plaintiff hath cause of Action Manwood What if the words were That he should enjoy it without Suit in Law Meade That shall be intended of a lawful Suit And in the principal case although the Contract be by words yet it is upon a good Consideration that is to say Of a Fine and Income and upon the payment of the Rent And therefore as Dyer said When Catesby the Son leased the Lands to Mountford the now Plaintiff and it appeared that his Father or a stranger made claim to it and thereupon he made the promise as before shall it be intended that he should hold and enjoy the Lands peaceably without interruption of them only who had Title And that he should not have his Remedy against the Defendant upon his promise if a stranger who had not Title did interrupt him Truly he shall have his remedy against him As if the Son had promised that he should enjoy it against his Father or else that in truth if it were the Land of the Father shall it not be intended that the Son did presume that his Father should not interrupt his Lessee And that he would so deal with his Father that he should not interrupt him and it may be that upon the presumption of the good will of his Father or that he had treated with him or compounded with him that for these or the like causes the Son made the promise aforesaid And if the Father had not any Right or Title to the Land should not the Lessee have his Action against the Defendant if the Father did interrupt him for this unlawful Interruption Truly Yes For by the words it is to be supposed That the Son would so deal with his Father that the Lessee should enjoy and hold the Lands without any manner of interruption Mounson You have well tasted the Opinion of the Court upon this matter before and now you hear our Opinions again Manwood As I said the other day Cannot an Hostler take upon him that the Goods of his Guests which are within his Inn shall be safe and charge himself further therewith than he is chargeable by the Custom of the Realm and to be chargeable against every one that taketh them away Truly I conceive he may Harper The common making of Assurance is That he shall enjoy them without any lawful Interruption 1 Roll. 429. And if the Law upon the general words of Enjoying without Interruption should be intended but of lawful Interruptions It were in vain to have this word Lawful in the Deed c. LXV Mich. 15 Eliz. In the Common Pleas. AN Action of Debt was brought against one upon an Obligation It was upon an Apprentice Bond The Condition of which was That if such a one did become the Apprentice of the Obligee and transport his Merchandises beyond the Seas and make a Retorn of them and maketh an Accompt unto the Obligee and payeth the Monies upon his Accompt within a certain time that then c. And afterwards the Obligee doth release by Deed to the Servant the Apprentice and not to the Obligor And in Debt brought against the Obligor he pleaded the Release And it was said by the Lord Dyer and by the whole Court That by the Release to the Servant the Obligation was saved if the Release were made before any forfeiture or that the Servant or Apprentice had broken any of the Conditions or any point according to the Covenants but if it was made after any of them was broken then such a Release to the Servant did not dispence with the Obligation which was made by the stranger because an Obligation once forfeited cannot be saved by any Act or Release made or done to a stranger LXVI Mich. 15 Eliz. In the Common Pleas. IN a Quare Impedit brought by the Patron against the Archbishop of York and the Incumbent Dyer 327. who was in by the Collation of the Archbishop after the death of the Incumbent of the Patron It was said by the Lord Dyer That of an Avoydance by Resignation or Deprivation the Patron shall have 6 months time after notice thereof given unto him to present his Clerk because it may be done secretly in the Chamber of the Ordinary and therefore in such case the Law is That the Bishop is to give notice of it to the Patron before he be bound to that knowledge of such a Presentment as it appeareth by the Case in 1 H. 7. 4. And Lowe the Prothonotary said That so is the Roll of the same year where the Issue was Whether the Patron had 6 months after the notice And then the Lord Dyer said to the Prothonotary Shew me the Roll at another day that I may compare it with my Book But if the Church become void by death of the Incumbent there the Patron is to take notice of it at his peril without any other notice thereof to be given him by the Ordinary And he said That if the Patron doth present his Clerk a Week before the 6 months be ended and the Ordinary doth refuse the Clerk for Inability because he is unlearned and then the six months pass before he presenteth another after the six months after the death of the Incumbent in such case the Bishop shall have the Collation of the Clerk because it was the folly of the Patron that he did not present his Clerk before so as the Ordinary might examine him and that thereupon if he be found to be unable that he might present another Clerk to the Ordinary within convenient time and for that cause is the 6
months given to the Patron that he provide another Clerk in the mean time And there is a good Case in 14 H. 7. which was long debated Where the Ordinary commanded the Clerk to come to him afterwards to be examined because the Ordinary had then other business And there the better Opinion of the Book is That it was a good Plea for the Ordinary That he did not refuse the Clerk but that the Clerk did not return to him again and that the 6 months passed so as he made the Collation and that the Patron made his presentation too late so as he had not convenient time to examine him Then in the Case at Bar It was moved That when the Ability and Disability of the Clerk came in Question by whom the same should be tryed because in the Case here the Bishop of York was a party to the Suit Whether by the Metropolitan of York or by the Metropolitan of Canterbury And he said That as he conceived the Tryal of the Ability should be by the Metropolitan of York and not of Canterbury But he said That if the party in whom the disability was alledged was dead so as he could not be examined the Tryal of his Ability or Disability should be by the Country as it appeareth in the Book of 39 E. 3. Manwood Iustice The Cure of Souls is to be regarded and therefore if an Enfant be to make a Presentation the same shall not be stayed for his Nonage and therefore if in such case he doth surcease and shall not present his Clerk the Law which regardeth more the Cure of Souls than the Enfancy will permit that the Ordinary shall collate to the Church if a Presentment thereto be not made within the six months And he said That if the Patron should present one but a week before the end of the six months and the Ordinary should refuse him for disability If the Patron should have other six months then next after he might then likewise present an Enfant or other disabled person to the Ordinary and so detract the time by fraud and so the Lapse by such great fraud should never devolve to the Ordinary and so the Cure should be unserved And so the Issue would be and arise upon the conveniency of the time And as to that which hath been said concerning the Ability and Disability of the Clerk I conceive the same shall be tryed by the Metropolitan of Canterbury and not by the Metropolitan of York Mounson to that intent and he said There is a good case in 14 H. 7. 21. which is a short case and not the Case which hath been vouched by which it appeareth that the presentment that shall be within 6 months shall be accompted from the time of the Avoydance and not from the time of the presentment by the whole Court And there it is said That the Ordinary shall give notice to the Patron if he be a Lay-man of the Disability of the Clerk but not if he be a Spiritual person But if the party Presentee be Criminous of that the Patron shall take as well notice as the Ordinary And afterwards the Lord Dyer caused the Record to be read and it did not appear therein at what day the Presentment was made to the Ordinary which ought to have been shewed for the great point of the Case doth rest here upon the time of the Presentment if it were before a week that the six months were ended or not Also the Ordinary saith in his Bar That the Clerk was insufficient and that he gave notice to the Plaintiff and that Nullam idoneam personam praesentavit And the Court said That that was no good manner of pleading but it had been better if it had been Nullam etiam personam idoneam praesentavit and the first form would be a Jeosail Manwood said That the time of the notice given to the Patron ought to be alledged because if the Patron sends his Clerk within a month after the Avoydance and the Ordinary will not give notice to the Patron in the mean time the same shall not be any default in the Patron And as to the notice given to the Patron he said the same was well pleaded and it shall be intended that it was given to the person of the Patron And as to the words in the Declaration scil tunc vacantem they are but void words because nothing is spoken before of any time And the Incumbent pleaded the same Plea as the Ordinary pleaded And Dyer asked If the Incumbent were Person impersonee for that none should plead that Plea but he who is Parson in fact and Incumbent LXVII Mich. 15 Eliz. In the Common Pleas. THe Case was That an Information was exhibited into the Court of Common Pleas for the Queen and the party upon a Penal Law And a Subpoena issued forth against two one of them was served with the Writ and the other not and now a new Subpoena was prayed against him who was not served And Dyer Iustice conferred with his Companions and the Prothonotary and demanded of them If the Plaintiff might Exhibit an Information in this Court Who answered That he might for this is a Court of Record and the Statute Law limiteth That it may be exhibited in any of the Queens Courts of Record Then he demanded of them If a Subpoena lay out of this place And Whetley Prothonotary said That it did Dyer said It is a strange thing to have an Attachment at the first day Manwood said In this Court it is the common usage upon an Audita Querela to award a Venire facias against the Conusee Dyer said to the Prothonotaries Advise with your selves against the morrow What Process hath been used to issue forth upon the Presidents of Information which have been before this time If a Subpoena shall be awarded And afterwards it was said by Gawdy who moved for it That he might have a Subpoena upon this matter LXVIII Mich. 15 Eliz. In the Common Pleas. NOte A special Verdict was found at the Bar and the Issue was taken upon a Traverse And Dyer Iustice said That a special Verdict could not be taken upon a Traverse but precisely according to the Issue and so it was agreed by the whole Court here but some Serjeants at the Bar did doubt of it LXIX Mich. 15 Eliz. In the Common Pleas. IN an Ejectione firmae the Case was thus King Henry the 8th was seised of certain Lands and by his Letter Patents granted the same to Thomas Holt for life the remainder to John Holt his Son who in truth was a Bastard and the Letters Patents were Ex certa scientia mero motu c. And because the Plaintiff did suppose that the same was not a good Purchase he tooke a Lease from the Queen of the Lands intending to make void the Letters Patents because the Defendant was nullius filius And what difference there was in such a Case in Case of the
Wife the Executrix should be charged for the not Reparations as well in the time of her Husband as in her own time And if she do make the Reparation depending the Suit yet thereby the Suit shall not abate but it shall be a good cause to qualifie the damages according to that which may be supposed that the party is damnified for the not repairing from the time of the purchase of the Reversion unto the time of the bringing of the Action And it was said by Manwood That by the Recovery of the damages that the Lessee should be excused for ever after for making of Reparations so as if he suffer the Houses for want of Reparations to decay that no Action shall thereupon after be brought for the same but that the Covenant is extinct LXXIII Easter Term. 15 Eliz. In the Common Pleas. LOvelace moved the Court that in the Kings Bench this case was argued upon a Demurrer there A Feoffment was made by one Coxley who took back an Estate for life the remainder to him who should be his Heir at the time of his death and to the Heirs males of his body begotten And afterwards the Tenant for life after the Statute of 32 H. 8. suffered a Recovery to be had against him that that Recovery was good as it was at the Common Law Because the Statute doth not speak but that it shall not be a bar to him who hath the Reversion at the time of the Recovery but this remainder was in Abeyance until the death of the Tenant for life and that in the same Court it was adjudged accordingly in an Ejectione firmae and because the same was a discontinuance the Plaintiff had here brought his Formedon in the Remainder and therefore Lovelace prayed That they might proceed without delays because the Plaintiffs Title appeareth without Essoigns and feigned delays Which Dyer Iustice conceived to be a reasonable request and that it should be well so to do because as he said This Court is debased and lessened and the Kings Bench doth encrease with such Actions which should be sued here for the speed which is there And he said That the delays here were a discredit to the Court so as all Actions almost which do concern the Realty are determined in the Kings Bench in Writs of Ejectione firmae where the Iudgment is Quod recuperet terminum and by that they are put into possession and by such means no Action is in effect brought here but such Actions as cannot be brought there as Formedons Writs of Dower c. to the Slander of the Court and to the Detriment and Loss of the Serjeants at the Bar. And Lovelace shewed That divers mean Feoffments were made c. LXXIV Mich. 15 Eliz. In the Common Pleas. NOte This Case was in Court An Heir Female was in Ward of a common person who tendred to her a marriage viz. his younger Son and she agreed to the Tender and the Guardian died The Heir married the younger Son according to the Tender The Executors of the Guardian brought a Writ de Valore Maritagii supposing the Tender by the Lord to be void by his death But the Court was of a contrary Opinion because the Tender of their Testator was executed LXXV Riches Case Mich. 15 Eliz. In the Common Pleas. ELizabeth Rich brought a Writ of Dower against J.S. who pleaded and Iudgment given for the Defendant and afterwards the Iudgment was reversed And she brought a new Writ of Dower and the Tenant pleaded That he always was ready and yet is c. Against which the Demandant pleaded the first Record to estop the Tenant To which the Tenant pleaded Nul tiel Record It was the Opinion of the Court That here the Demandant cannot conclude the Tenant by that Replication to plead Nul tiel Record For the Iudgment is reversed and so no Record and it cannot be certified a Record But if the Tenant had taken Issue upon the plea of the Tenant absque hoc that he was ready the same might well have been given in Evidence against the Tenant Note That the Case was That the Demandant after the death of her Husband entred into the Land in Demand and continued the possession of it 5 years and afterwards the Heir entred upon which she brought Dower It was agreed in that Case That the Tenant needed not to plead Tout temps prist after his re-entry for the time the Demandant had occupied the same is a sufficient recompence for the Damages LXXVI Vavasors Case Mich. 15 Eliz. In the Common Pleas. NIcholas Ellis seised in Fee of the Mannor of Woodhall Leased the same to William Vavasor and E. his Wife for the life of the Wife the remainder to the right Heirs of the Husband The Husband made a Feoffment in Fee to the use of himself and his Wife for their lives the remainder to his right Heirs The Husband died the Wife held the Land and did Waste in a Park parcel of the Mannor It was moved to the Court If the Writ of Waste should suppose that the Wife held ex dimissione Nicholai Ellis or ex dimissione of her Husband It was the Opinion of the Court That upon this matter the Writ should be general viz. that she held de haereditate J.S. haeredis c. without saying any more either ex dimissione hujus vel illius For she is not in by the Lessor nor by the Feoffees but by the Statute of Vses and therefore the Writ shall be ex haereditate It was also the Opinion of the Iustices That the Wife here is not remitted but that she should be in according to the Term of the Feoffment Note in this Case The Waste was assigned in destroying the Deer in the Park And Meade Serjeant conceived That Waste could not be assigned in the Deer unless the Defendant had destroyed all the Deer And of that Opinion also was Dyer Manwood said If the Lessee of a Dove-house destroyed all the old Pigeons but one or two couple the same is Waste And if a Keeper destroy so many of the Deer so as the ground is become not Parkable the same is Waste although he doth not destroy them all See 8 R. 2. Fitz. Waste 97. If there be sufficient left in a Park Pond c. it is enough LXXVII Mich. 15 Eliz. In the Common Pleas. AN Action upon the Case was brought against Executors They were at Issue Vpon nothing in their hands It was given in Evidence on the Plaintiffs part That a stranger was bound to the Testator in 100 l. for performance of covenants which were broken For which the Executors brought Debt upon the Obligation depending which Suit both parties submitted themselves to the Arbitrament of A. and B. who awarded That the Obligor should pay to the Executors 70 l. in full satisfaction c. and that the Executors should release c. which was done accordingly And it was agreed by the Court That by the Release it
shall be taken in Iudgment of Law That the Executors have Assets to the value of the whole 100 l. And although the Executors were compelled by the Award to make the release yet it was their own act to submit themselves to the Arbitrament LXXVIII Mich. 15 Eliz. In the Court of Wards NOte It was Ruled by Kellaway and Wilbraham in the Court of Wards That where the Kings Tenant of Lands holden by Knight service in Capite made a Feoffment of the same Land to the use of himself for life and after to the use of his younger Son in tail the remainder to the right Heirs of the Feoffor and died the eldest Son within age That the Queen should have the Wardship of his body and of the third part of the Land and when the eldest cometh at full age the younger shall sue Livery and pay Primer Seisin according to the rate of the value of the whole Land viz. of the third part as in possession and of the two parts as a Reversion For the remainder to the right Heirs of the Feoffor is in truth a Reversion For the Feesimple was never out of him because there was not any Consideration as to that nor any use expressed And also because that Livery shall not be by parcels the younger Son shall not be suffered to sue Livery of the third part presently and respite the residue as to the two parts in Reversion until the Reversion fall but shall sue Livery presently as well of the two parts in reversion as of the third part in possession And if the eldest Son had been of full age at the time of the death of his Father the younger Son should pay Primer Seisin as to the third part of the full value of it for one year as in possession and as to the two other parts the moyety of the value of a year as a Reversion And at that time Breers Case was vouched which was Oliver Breers Tenant in Chief by Knights Service made a Feoffment in Fee to the use of himself for life and after to the use of A. his Son and Heir for life and after to the use of the first begotten Son of A. in tail and after to the use of the second Son of A. c. and for default of such Issue to the right Heirs of the Feoffor Oliver died the said A. his Son being of full age It was ruled by the said Council of the said Court of Wards That he should pay for his Primer Seisin a third part of the Land in possession and two parts as a Reversion LXXIX Mich. 15 Eliz. In the Common Pleas. Post 56. THe Case was A Man was seised of a Pasture in which was two great Groves and a Wood known by the name of a Wood And also in the same Pasture were certain Hedge-Rowes and Trees there growing Sparsim Leased the same by Indenture for years And by the same Indenture bargained and sold to the Lessee all Woods and Vnderwoods in and upon the Premisses And further That it should and might be lawful to the Lessee to cut down and carry away the same at all times during the Term. Harper Iustice The Hedge-Rowes did not pass by these words Hedge-Rowes sparsim Dyer The Hedge-Rowes shall pass for the Grant is general All Woods Mounson contrary For the words of the Grant may be supplyed by other words It was moved further If by these words the Lessee may cut them oftner than once And by Harper Manwood and Mounson He can cut them but once Dyer contrary And so it should be if the words had been Growing upon the Premisses And this word Growing although it sounds in the present Tense yet it shall be also taken in the future Tense if the word tunc had not been alledged for it is a word of restraint The Case which was argued in the Chancery 27 H. 8. where I was present was such The Prior of St. John of Jerusalem Leased a Commandry Provided That if the said Prior or any of his Brethren there being Commanders will dwell thereupon then the said Lease to be void It was doubted If that did extend to the Successors for the word Being is in the present Tense And yet it was holden by Fitzherbert That it should be taken in the future Tense and so extend to the Successors Otherwise if the words had been Nunc Being LXXX Mich. 15 Eliz. In the Common Pleas. A Man seised of Lands in Fee devised 1 Len. 101. That his Wife should take the profits of his Lands until Mary his Daughter and Heir came to the age of 16 years And if the said Mary died That J.S. should be her Heir Manwood The Daughter after she hath attained the age of 16 years shall have the Land in tail For Devises ought to be construed according to the intent of the Devisor so far forth as any certainty with reason may be collected but no intent shall be taken against all reason and certainty It is certain That the Daughter shall not have the Land in Fee for that shall descend to her without any Devise And these words If she dieth cannot be intended a Condition for it is certain she shall die But if the words had been That after the death of Mary J.S. should be his Heir in such case Mary had had but an Estate for life for there it is limited what Estate she should have And when it is said J.S. shall be his Heir it shall be meant his Collateral Heir so as the Estate tail remains in the Daughter Mounson and Harper to the contrary and that she shall have but for life And by Mounson If Mary had been a stranger to the Devise she should take nothing And this Case was put by Barham Serjeant A Man deviseth 100 l. to his youngest Daughter 100 l. to his middle Daughter and another 100 l. to his eldest Daughter and that all these sums shall be levied of the profits of his Lands It was holden by the better Opinion of the Court in this Case That the youngest Daughter should be first paid and then the middle and then the eldest Daughter and that was said to be Coniers Case LXXXI Mich. 15 Eliz. In the Common Pleas. THe Case was The King granted to the Bishop of Salisbury That he should have Catalla felonum fugitivor ' and Fines and Amercements of all Tenants and Resiants within the Mannor of D. which Mannor the Bishop Leased for years and that the Lessee should have all profits and hereditaments within the same Mannor Manwood Iustice conceived That the Lessee should have the Post Fines For all things have a being somewhere although they be not visible As Rents Fines have their being in the Lands out of which they are issuing and that is in the Son of a Fine levied of the Land within the Mannor which is due by Land of him who ought to pay the Fine And this Fine is due be reason of the
Land therefore it is in the Land or within the Land i. e. the Mannor For the King may distrain for the Fine as well in the same Land as in the Land of him who ought to pay it Dyer doubted of it and said That the Bishop could not distrain in the Land for this Fine but should have it by allowance in the Exchequer upon the Estretes and if the party would not pay it the Lessee should have a Subpoena against him out of the Exchequer And some were of Opinion That the Lessee could not have this Fine 2 Len. 179. 4 Len. 234. for that they were not Hereditaments within the Mannor but rather in the Exchequer or Court where the Record is LXXXII Mich. 15 Eliz. In the Common Pleas. THe Case was A Man seised of a Pasture in which are two great Groves and a Wood known by the name of a Wood And also in the same Pasture there are certain Hedge-Rowes and Trees there growing Sparsim Leased the same by Indenture for years And by the same Indenture bargained and sold to the Lessee all Woods and Vnderwoods in and upon the Premisses And further That it shall and may be lawful to the Lessee to cut down and carry away all the same at all times during the Term. Harper The Hedge-Rowes do not pass by these words for they are not known by the name of Woods 14 H. 8. 2. contrary by Manwood For by such words Hedge-Rowes pass Mounson contrary For the words of the Grant may be supplyed by other Words Dyer The Hedge-Rowes shall pass for the Grant is general All Woods It was moved further If by those words the Lessee might cut them a second time or but once Harper Manwood and Mounson He may cut them but once Dyer contrary And so it should be if the words had been Growing upon the Premisses And this word Growing although it sounds in the present Tense yet it shall be also taken in the future Tense if not that the word tunc had been there for that is a word of Restraint The Case was argued in the Exchequer Chamber where I was present which was The Prior of St. John's Leased a Commandry Provided That if the said Prior or any of his Brethren there being Commanders will dwell thereupon then the said Lease to be void It was doubted If that Proviso did extend to the Successors for the word Being is in the present Tense And yet by the Opinion of Fitzherbert it shall be taken in the future Tense and so extend to the Successors Otherwise if the words had been Now being LXXXIII Mich. 15 Eliz. In the Common Pleas. A. Made B. his Executor and died Vid. le stat 43 Eliz. cap. 8. Office of Executors 261. B. to the intent to defraud the Creditors refused to take upon him the Executorship but caused a stranger to take upon him Letters of Administration which stranger fraudulently gave the Goods of the Testator to B. Dyer If the gift be fraudulent then by the Statute of 13 Eliz. the gift is void and then B. by the Occupation of the Goods shall be charged as Executor of his own wrong Manwood I conceive there is a difference If one makes an Executor and another takes the Goods but doth no Act which concerns the Office of an Executor as paying of Debts he is not Executor of his own wrong but a Trespassor to him who is Executor in right but if he doth any Act which belongs to the Office of an Executor then he is Executor of his own wrong Dyer That Case hath been adjudged against you and although the Books of 9 E. 4. 22 H. 6. were vouched Yet Iudgment was given against the Opinion of Manwood It was the Case of one Stoke LXXXIV Jackson and Darcyes Case Mich. 16 Eliz. In the Common Pleas. IN a Writ de Partitione facienda between Jackson and Darcy the Case was Tenant in tail the remainder to the King levied a Fine had Issue and died In that case It was adjudged That the Issue was barred and yet the remainder which was in the King was not discontinued For by that Fine an Estate in Feesimple determinable upon the Estate tail did pass unto the Conusee LXXXV Strowds Case Hill. 17 Eliz. In the Common Pleas. IN a Replevin the Case was That Lands holden of a Subject came to the possession of the King by the Statute of 1 E. 6. of Chauntries and the King granted the Lands over In that case It was holden That the Grantee shall hold the Lands of the King according to the Patent and not of the Ancient Lord But the Patentee shall pay the Rent by which the said Land was before holden as a Rent seck distrainable of Common Right to the Lord only and his Heirs scil to him of whom the said Lands were before holden LXXXVI Tresham and Robins Case Mich. 17 Eliz. In the Kings Bench. TResham brought an Action of Debt upon a Recognizance against Robins The Condition of which Recognizance was To stand to the Arbitrament of A. and B. who made Award That Robins should have the Land Yielding and paying 10 l. per annum And that Tresham in further assurance should levy a Fine to Robins of the same Land and upon that Robins should grant and render to Tresham which is done accordingly the Rent is behind Tresham brought Debt upon the Recognizance The Defendant pleaded the special matter with this per close Unde petit Judicium if the Plaintiff should have Execution against him And by the Opinion of the whole Court the Conclusion of the Plea is not good For here is not any Execution of the same Debt but an Original Action of Debt brought in which case he ought to have concluded Iudgment Si actio It was further moved If these words Yielding and paying make a Condition And it was agreed That the words do amount to as much as So as he pay the Rent And if a Man makes a Feoffment in Fee Reddendo salvendo 10 l. for years the same is a Condition But in the principal Case It is not a Condition For it is not knit to the Land by the Owner it self but by a stranger i. e. Arbitrator but it is a good Clause to make the same an Article of the Arbitrament which the parties are bound to perform upon pain of forfeiture of the Recognizance Which Wray concessit And that this Rent should not cease by Eviction of the Land. LXXXVII The Earl of Westmerlands Case Hill. 18. Eliz. In the Common Pleas. THe Earl of Westmerland seised of a Mannor whereof the Demesnes were usually let for three Lives by Copy 2 Len. 152. 2 Brownl 208. according to the Custom of the Mannor granted a Rent-charge to Sir William Cordell pro consilio impendendo for the term of his Life and afterwards conveyed the Mannor to Sir William Clifton in tail The Rent is behind Sir William Cordell dieth Sir William Clifton dieth
former Lease determined And as to the Attornment it was given in Evidence That B. after the notice of the Grant to C. had speech with C. to have a new Lease from him because he had in his Term but 8 years to come but they could not agree upon the price And it was the Opinion of the Iustices That the same was an Attornment because he had admitted the said C. to have power to make to him a new Lease Also the said B. being in Company with one R. and seeing the said C. coming towards him said to the said R. See my Landlord meaning the said C. Bromley Sollicitor The same is no Attornment being spoken to a Stranger Barham contrary Because that C. was present And it was holden to be a good Attornment But if that Attornment was not before that the Bishop was translated to Winchester the Lease should be void And although the Confirmation of the Dean and Chapter was before the Attornment so as no Estate was vested in C. yet it was good enough For an assent of the Dean and Chapter is sufficient be it before or after as it was holden by Catline Southcote and Whiddon But Wray contrary XCI Norwich and Norwich's Case Trin. 18 Eliz. In the Kings Bench. HEnry Norwich was bound by Obligation to Symon Norwich upon Condition To stand to the Award of J.S. who awarded That the said Henry should pay to Symon 150 l. at such a day And that the said Henry should find 3 Sureties to be bounden with him to the said Symon for the payment of another sum of Mony to the said Symon In Debt upon this Obligation Henry pleaded As to the 150 l. payment and as to the other point That he was always ready to become bounden c. And as to the finding of Sureties he demanded Iudgment for that as to that the Arbitrament is void See 22 H. 6. 45. 17 E. 4. 5. 21 E. 4. 75. It was holden That in such a case of such Award to find Sureties the Defendant is not to find Sureties but is only to tender his Obligation And of that Opinion was the whole Court Because it was an Act to be done by a stranger to the Award But if the Award had been of an Act to be done to a stranger by him who was party to the Award then the Award had been good But if the stranger will not accept of the Monies awarded his Obligation is saved So if the Award be That one of the parties to the Award shall discontinue a Suit which he hath against another If the Court where the Action is depending will not suffer the discontinuance of it the Award is performed And in the principal Case It was ruled accordingly Note The same day another Case was in the same Court Between Dudley and Mallery The Condition was to perform an Award c. The Defendant pleaded performance of the Award The Plaintiff assigned the breach of the Award in this because the Award was That the Servant of Mallery should pay to the Servant of Dudley 5 l. which the Defendant had not paid It was the Opinion of the Court That the Bond was not forfeited for the Servants utriusque are strangers to the Submission But if the Award had been That Mallery should pay to the Servant of Dudley 5 l. it had been good for that Mallery is a party to the Submission c. XCII Rivers and Pudsey's Case Hill. 19 Eliz. In the Kings Bench. JOhn Rivers Alderman of London brought a Writ of Accompt against Pudsey who said That at the time c. and now he is the Plaintiffs Apprentice and demanded Iudgment c. And it was holden by Wray Iustice That it is no Plea for although an Apprentice cannot be charged by this Action for ordinary Receipts upon his Masters Trade yet upon collateral Receipts which do not concern the ordinary Trade of his Master he shall be charged as well as another See 8 E. 3. tit Acc. 94. And F.N.B. 119. XCIII Potkins Case Hill. 19 Eliz. In the Kings Bench. IN Debt upon an Obligation by Potkin The Defendant pleaded That he himself borrowed of one Watson a certain sum of Mony paying for the forbearance thereof excessive Vsury And that the Plaintiff was bound with the said Defendant to the said Watson for the payment thereof and that he himself by this Obligation upon which the Action is brought was bound to the said Plaintiff to save him harmless against the said Watson c. And because that this Bond was a Counter-Bond for the payment of Excessive Vsury c. And it was holden by Manwood That the same was a good Bar for here the Plaintiff when he was impleaded upon the principal Bond might have discharged himself upon this matter and therefore his Lachess shall turn to his prejudice and therefore the Issue was joyned upon the excessive Vsury XCIV Abrahall and Nurse's Case Hill. 19 Eliz. In the Common Pleas. JOhn Abrahall brought a Writ of Right-Close against John Nurse in the Court of George Earl of Shrewsbury and made protestation to prosecute that Writ in the form and nature of the Writ of the Lady the Queen of Assise of Novel disseisin at the Common-Law and made his Plaint accordingly And afterwards the Assise was taken who spake for the Plaintiff Whereupon Abrahall had Iudgment to recover After which Nurse brought a Writ of False Judgment and assigned Error in this That whereas the said Writ of Right-Close was directed to the Bailiffs of George Earl of Shrewsbury of his Mannor c. that the said Bailiffs should do full Right c. that it appeareth by the Record that the Plea was holden before the Suitors and not before the Bailiffs of George Earl of Shrewsbury For all the Precepts in the Plea aforesaid are Quod sint hic ad proximam Curiam coram Sectatoribus tenend An other Error was in this and false Iudgment was given therein because that the Roll is Praeceptum est Ministro Curiae praedict that he cause to come 12 Free and lawful Men c. videre illud tenementum c. nomina eorum imbreviare c. and the Minister of the Court retorned 12 Recognitors of the Assise aforesaid whereas by the Law of the Land 24 Recognitors in a Plea of Land ought to be retorned But notwithstanding that these Exceptions were taken Yet upon due consideration of the Court notwithstanding these Exceptions the Iudgment was affirmed See the Record Mich. 17 18 Eliz. Rot. 1301. XCV The Master and Scholars of Linckfords Case Hill. 15 Eliz. In the Common Pleas. IN an Ejectione firmae the Case was That the Master and Scholars of Linckford were seised of the Mannor of Haldesley in the Town of Laberhurst which Town extended into the County of Sussex and also in the County of Kent and they made a Lease to one Clifford of all their Lands in the Town of Laberhurst except the Mannor of Haldesley whereas in truth
they had not any Lands in the said Town but the said Mannor And the Ejectione firmae was brought of that Mannor in Kent and from thence the Visne came and all the special matter aforesaid was found by Verdict And Exception was taken to the Verdict because they have found generally That the Master and Scholars had not any thing in the said Town of Laberhurst but the said Mannor Whereas they ought to have said That they had not any thing in the said Town in the County of Kent For they could not take notice what Lands the Master and Scholars had in that part of the Town which was in the County of Sussex And of that Opinion the whole Court seemed to be But Quaere of it for it was adjourned XCVI Hinde and Lyons Case Mich. 19 Eliz. In the Common Pleas. Post 70. Dyer 124. 2 Len. 11. IN Debt by Hinde against one as Son and Heir of Sir John Lyon who pleaded Nothing by descent but the third part of the Mannor of D. the Plaintiff replyed Assets and shewed for Assets That the Defendant had the whole Mannor of D. by descent Vpon which they were at Issue And it was given in Evidence to the Iury That the said Mannor was holden by Knights-Service And that the said Sir John the Ancestor of c. by his Will in writing Devised the whole Mannor to his Wife until the Defendant his Son and Heir should come to the age of 24 years And that at the age of his Son of 24 years his Wife should have the third part of the said Mannor for her life and his Son should have the residue And if that his said Son do die before he come to his said age of 24 years without Heir of his body that the Land should remain to J.S. the remainder over The Devisor died The Son came to the age of 24 years The Question was If the Son had an Estate in tail for then for two parts he was not in by descent And it seemed to Dyer and Manwood That here was not any Estate in tail for no tail shall rise if not that the Son die before his said age and therefore the tail shall never take effect and the Fee-simple doth descend and remain in the Son unless that he dieth before the age of 24 years and then the Estate vests with the remainder over but now having attained to the said age he hath the Fee and that by descent of the entier Mannor and then his Plea is false That but the third part descended And a general Iudgment shall be given against him as of his own Debt And an Elegit shall issue forth of the moyety of all his Lands as well those which he hath by descent from his Ancestor as his other Lands And a Capias also lieth against him But Manwood Iustice conceived That if a general Iudgment be given against the Heir by default in such cause a Capias doth not lie although it lieth in case of a false Plea. Dyer contrary And the Writ against the Heir is in the debet detinet which proves That in Law it is his own Debt And he said That he could shew a President where such an Action was maintainable against the Executors of the Heir XCVII Mich. 19 Eliz. In the Common Pleas. THe Case was A. seised of Lands in Fee 2 Len. 154. Hob. 285. Dyer 329. by his Will in writing granted a Rent-Charge of 5 l. per annum out of the same to his younger Son towards his education and bringing up in Learning The Question was If in pleading the Devisee ought to aver That he was brought up in Learning And it was holden by Dyer Manwood and Mounson Iustices That there needs no such Averment for the Devise is not Conditional and therefore although he be not brought up in Learning yet he shall have the Rent And the words of the Devise are Towards his bringing up And the Devisor well knew that 5 l. per annum would not and could not reach to maintain a Scholar in Learning Diet Apparel and Books And this Rent although it be not sufficient to such intent yet the Son shall have it And by Dyer Three years past such Case was in this Court scil Two were bounden to stand to the Award of certain persons Who awarded That the one of them should pay unto the other 20 s. per annum during the Term of 6 years towards the education and bringing up of such an Enfant and within two years of the said Term the Enfant died so as now there needed not any supply towards his Education Yet it was holden That the said yearly sum ought to be paid for the whole Term after For the words Towards his Education are but to shew the intent and consideration of the payment of that sum and are not the words of a Condition XCVIII Mich. 19 Eliz. In the Common Pleas. IN a Quare Impedit The Plaintiff declared That the Defendant was seised in Fee of the Mannor of Orchard alias Lydcots-Farm to which the Advowson is appendant and presented such a one c. And afterwards leased to the Plaintiff the said Mannor per nomen of the Mannor of Orchard alias Lydcots-Farm with the appurtenances for 21 years and the Church became void c. And the truth of the Case was That there is the Mannor of Orchard and within the said Mannor the said Farm called Lydcots Farm parcel of the said Mannor and the Lease was of the said Farm and not of the said Mannor and so the Advowson remained to the Lessor as appendant to the Mannor In this Case It was moved What thing the Defendant should traverse Dyer He shall say That the Advowson is appendant to the Mannor of Orchard absque hoc that it is appendant to the Farm of Lydcots But it seemed to Manwood That the Defendant shall say That the Advowson is appendant to the Mannor of Orchard and that the Farm of Lydcots is parcel of the said Mannor and that he Leased to the Plaintiff the said Farm with the appurtenances absque hoc that the Mannor of Orchard and the said Farm are all one For if he traverse the Appendancy to the Farm of Lydcots then he confesseth That the Mannor and Farm are all one c. But Dyer doubted of it XCIX Kirlee and Lees Case Mich. 19 20 Eliz. In the Common Pleas. IN Action upon the Case upon Assumpsit the Plaintiff declared That the Defendant in Consideration that the Plaintiff would marry the Daughter of the Defendant did promise to find to the Plaintiff and his said Wife convenient apparel meat and drink for themselves and two servants and Pasture also for two Geldings by the space of 3 years when the Plaintiff would require it And further shewed That Licet the Plaintiff had married the Defendants Daughter and that he had required the Defendant to find ut supra c. the Defendant refused c. The Defendant
Parliament 35 H. 8. it was Enacted That the said Lady should hold part of her Inheritance and dispose of the same as a Feme sole and that the Marquess should have the Residue and that he might Lease the same by himself without his Wife for 21 years or less rendring the ancient Rent being Land which had been usually demised c. The Marquess Leased for 21 years and afterwards durante Termino praedict Leased the same Land to another for 21 years to begin after the determination of the first Lease It was moved in this Case That this last Lease was void and that for 3 Causes 1. Because the Marquess had but an Estate for life and then it could not be intended that the Statute did enable one who had but such an Estate determinable to make such a Lease which peradventure might not commence in his life-time 2. The Letter of the Statute is 21 years or under and the word Under strongly expounded the meaning of the Statute to be not to extend to such an Estate For here upon the matter is a Lease for 40 years 3. Because the Land demised is the Inheritance of the Wife And in this Case it was said That in the Case of one Heydon such a private Act was strictly construed which was That it was Enacted That all Copies for 3 Lives granted by the Lord Admiral of the Lands of his Wife should be good The Admiral granted Leases in Reversion for 3 Lives And it was holden That that Grant was not warranted by the Statute Dyer said The words are general Omnes dimissiones and therefore not to be restrained unto special Leases scil to Leases in possession Manwood said A Feme Covert by duresse joyns in a Lease with her Husband the same shall bind her CXI The Queen and Sir John Constables Case Hill. 20 Eliz. In the Kings Bench. 5 Co. Constables Case A Quo Warranto was brought by the Queen against Sir John Constable who claimed certain Wreck in the County of York The Defendant pleaded That Edward Duke of Buck. was seised of such a Mannor to which he had Wreck appendant and that he was de alta proditione debito modo attinctus and that found before the Escheator And shewed further That the said Mannor descended to Queen Mary who granted the same to the Earl of Westmerland who granted the same to the Defendant Vpon which It was demurred And Exception was taken to the Plea because the Attainder is not fully and certainly pleaded It was argued by Plowden That the Attainder was certainly pleaded scil debito modo attinctus And it is shewed That the Wreck is appendant to the Mannor and then if the Defendant hath the Mannor he hath the Wreck also and if he hath the Mannor it is not material as to the Queen how he hath it for the Queen doth not claim the same but impeacheth the Defendant for using there such a Liberty But if the Heir of the said Duke had demanded the Mannor there against him the Attainder ought to have been pleaded certainly And it was said by him That the Interest of the Queen in the Sea extends unto the midst of the Sea betwixt England and Spain But the Queen hath the whole Iurisdiction of the Sea between England and France because she is Queen of England France c. And so it is of Ireland CXII Hill. 20 Eliz. In the Common Pleas. TEnant for life made a Feoffment of White-Acre of which he was seised for life and made a Letter of Attorny to deliver Livery and Seisin secundum formam Chartae before Livery the Tenant purchased the Fee and afterwards Livery was made It was resolved by the Court in this Case That all passed But if the Feoffment had been of all his Lands in D. and the Letter of Attorny accordingly and before Livery made the Feoffee had many Lands there If he purchased one Acre after the Livery should not extend to that Acre because the Authority was satisfied by the other Acre CXIII Banks and Thwaits Case Mich. 21 Eliz. In the Kings Bench. IN an Action upon the Case the Case was That A. had pawned an Indenture of Lease for years of a Messuage and Lands to Banks Thwaits intending to purchase the same required Banks to deliver him the said Lease and he would give Banks 10 l. whether he bought it or no at what time he would request the 10 l. Post 200. And Banks delivered the same to Thwaits accordingly Post 200. And afterwards brought an Action upon the Case and declared upon the whole matter and concluded Licet saepius requisitus c. without alledging a request express in certain and the day and place of it It was said by Cook That here the monies did not grow due before Request nor is payable before Request and therefore a Request ought to be made in facto And so he said It was ruled in this Court in an Action upon the Case betwixt Palmer and Burroughs and he said that the Mony was not due by the Promise but by the Request And it was the Opinion of the whole Court That although it be a duty Yet it is not a duty payable before Request And the Request makes a Title to the Action But if A. selleth to B. a Horse for 10 l. there is a Contract and a Request in facto need not be layed And the Opinion of the Court was also That upon this matter the Plaintiff could not have an Action of Debt for there is not any Contract for the thing is not sold but it is a Collateral promise grounded upon the delivery And by Clench Here the Request is traversable And afterwards Iudgment was given against the Plaintiff And it was said It was so ruled in Alderman Pullisons Case in the Exchequer Post 201. CXIV Segar and Boyntons Case Mich. 21 Eliz. In the Common Pleas. 2 Len. 156. IN Trespass the Case was this King Henry the 8th Anno 27 of his Reign gave the Mannor of D. to Sir Edward Boynton Knight and to the Heirs Males of his body Sir Edward Boynton had Issue Andrew his eldest Son and C. the Defendant his younger Son and died Andrew Boynton Covenanted by Indenture with the Lord Seymore that the said Andrew Boynton would assure the said Mannor to the use of himself for life the Remainder to the said Lord and his Heirs The said Lord Seymore in recompence thereof should assure other Lands to the use of himself for life the remainder to the use of the said Andrew Boynton in tail who 37 H. 8. levyed a Fine of the said Mannor without proclamations to two strangers to the uses according to the said Agreement and before any Assurance made by the said Lord The said Lord was Attainted of Treason and all his Lands were forfeited to the King And afterwards the said Andrew Boynton made a Suggestion to Queen Mary of the whole matter and upon his humble Petition the said
devise Lands of which she was seised of an Estate of Inheritance in Fee simple according to the Custom to her Husband And also Surrender the same in the presence of the Steward and 6 other of the Tenants And it was further found That one J.S. was seised of the Copy-hold Lands wherein the Trespass was And that he had Issue 2 Daughters and died seised of the said Lands And that after his Decease his two Daughters entred into the said Lands and afterwards they both took Husbands And that afterwards one of the said Daughters made a Will in writing and by her said Will in the presence of the Steward and six of the Tenants she Devised her part of the said Copy-hold Lands to her Husband and his Heirs and at the next Court surrendred the said Copy-hold Lands in the presence of the Steward and six other of the Tenants to the uses in her Will expressed and shortly after she died and that after her death her Husband was admitted to the said part of her Lands who continued the possession thereof And the Husband of the other Daughter and his Wife entred upon him Vpon whom he re-entred And the Husband brought Trespass This Case was argued at the Bar by Rhodes And he said That the Custom was not good neither for the Devise nor for the Surrender First for the incertainty of the Estate what Estate she might Devise for that is not expressed in the Custom but generally that she might Devise her Copyhold Lands of Inheritance without expressing for what Estate And secondly the Custom is not good for that it is against reason that the Wife should surrender to the use of her Husband And that a Custom to devise is not good where it is incertain he vouched many Cases As 13 E. 3. tit Dum fuit infra aetatem 3. The Tenant said That the Lands lay in the County of Dorset where the Custom is That an Enfant might make a Grant or a Feoffment when he could number 12 d. and because it is incertain when he could do it It was holden to be a void Custom So 19 E. 2. tit Gard. 127. In a Ravishment of Ward It was alledged that the Custom was That when an Enfant could measure an Ell of Cloath or number 12 d. that he should be out of Ward And it was holden to be a void Custom for the incertainty Also he said That in the principal Case the Custom was void for that it was against reason that the Wife should surrender to her Husband for every Surrender is a Gift and a Woman cannot give unto her Husband for the Wife hath not any disposing Will but the Will of her Husband only And therefore the Case is in 21 E. 3. That if the Husband be seised of Lands in the right of his Wife and he maketh a Feoffment in Fee of the Lands and the Wife being upon the Lands doth disagree and saith She will not depart with the Land during her life yet the Feoffment is a good Feoffment and shall bind the Wife during the life of the Husband And see 3 E. 3. Br. tit Devise 43. That a Feme Covert cannot Devise to her Husband for that should be the Act of the Husband to convey the Lands to himself And whereas the Case in 29 E. 3. was Objected against him where the Case was That a Woman being seised of Land deviseable took a Husband and had Issue by him and the Wife Devised her Lands to her Husband for his life and died and a Writ of Waste was afterwards brought against him And it was there holden That the Writ did lie He said That that Case did make rather for him than against him for that Case proves that the Husband did not take the Land by vertue of the Devise in his own right but that he held the Lands having Issue by the Wife as Tenant by the Courtesie and so under another Title and therefore it appeareth that the Writ of Waste was there brought against him as Tenant by the Courtesie Also he said That the Devise was void by the Statute of 34 H. 8. Cap. 5. where it is Enacted That Wills and Testaments made of any Lands Tenements c. by Women Coverts shall not be good or effectual in the Law and he said That that Statute did extend to Copyhold Lands But as to that all the Iustices did agree That Copyhold Lands were not within the words of that Statute But Anderson said That the Equity of that Act did extend to Copyholds And further Anderson said That the Prescription or Custom in the principal Case was not good for it is layed to be That Quaelibet Foemina Viro Co-operta poterit and it ought to be potest and by the Custom have used to Devise to the Husband And a Prescription must be in a thing done and not in posse Also he said That the Custom if it were good is not well pursued For the Custom is that she may Devise and Surrender in the presence of the Steward and six Tenants and that must be intended to be done all at one time for the words of a Custom are to be performed if it may be but in the principal case the Devise is laid to be at one time and the Surrender at another time and so it is not in pursuance of the Custom But to that it was not answered But then it was said Admit that the Custom to devise and the Devise were not good yet the Action did not lie against the Defendant because that the Husband was admitted and his Entry into the Land was countenanced by a lawful Ceremony and also he was Tenant in Common with the other Husband by such Entry It was adjourned CXXIII Rosse's Case Mich. 26 Eliz. In the Kings Bench. IN Trespass brought by Rosse for breaking of his Close and beating of his Servant and carrying away of his Goods Post 94. Vpon Not guilty pleaded the Iury found this special matter scil That Sir Thomas Bromley Chancellor of England was seised of the Land where c. and leased the same to the Plaintiff and one A. which A. assigned his moyety to Cavendish by whose Commandment the Defendant entred It was moved That that Tenancy in Common betwixt the Plaintiff and him in whose right the Defendant justified could not be given in Evidence and so it could not be found by Verdict but it ought to have been pleaded at the beginning But the whole Court were clear of another Opinion and that the same might be given in Evidence well enough It was further moved against the Verdict That the same did not extend to all the points in the Declaration but only to the breaking of the Close without enquiry of the battery c. And for that cause it was clearly holden by the Court That the Verdict was void And a Venire facias de novo was awarded CXXIV Absolon and Andertons Case Mich. 25 26 Eliz. Rot. 479. In the Kings
Bench. WIlliam Absolon Master of the Savoy and the Chaplains there brought Debt against Anderton The Case was That the said Master and Chaplains leased Lands to the Defendant for certain years and afterwards he accepted of them an Indenture of Bargain and Sale to him and his Heirs by express words of Bargain and Sale without other words And one of the Masters of the Chancery within the 6 months came unto them into their Chapter-house and before him they acknowledged the said Indenture to be their Deed and prayed that it be enrolled which was done accordingly It was moved If that acknowledgment and Enrollment were good or not or if the Master and the Chaplains ought to have appointed one by their Warrant to be their Attorny to acknowledge the said Deed And it was also moved 1 Len. 184. If there needed any Enrollment at all of it because Anderton had then an Interest in the Land for years in which case it is to be considered If the words Barganizavi Vendidi shall be of such effect as the words Dedi Concessi And it was said by the Court That a Warrant of Attorny to acknowledge a Deed were a strange thing And it was agreed That the Indenture being once Inrolled it was not material by what means it was Inrolled but was good being done CXXV Savell and Badcocks Case Mich. 26 Eliz. In the Kings Bench. SAvell brought an Action of Trespass against Badcock and declared That Edw. Savell was seised of the Mannor of D. and leased the same for years to Henry Savell who died having made the Plaintiff his Executor who entred and was possessed until the first day of January at which time the Trespass was done The Defendant pleaded Not guilty And it was given in Evidence on the Plaintiffs part That the said Ed. Savell was seised and leased to the said Henry Savell for years who so possessed reciting the said Lease Demised the said Mannor to Sir William Cordell Master of the Rolls to have to him immediately after the decease of the said Henry for so many years of the said Term which at the time of his death should be unexpired if Dorothy the Wife of the said Henry should so long live Henry died Sir William Cordell entred Dorothy died within the Term the Plaintiff the Executor of Henry entred and was possessed until the first day of Januarii 23 Eliz. at which day the Trespass was done On the Defendants part it was given in Evidence That after the Grant to Sir William Cordell the said Henry and Edward joyned in a fine Sur Conusans de droit c. to a stranger who granted and rendred the Land to the said Henry and his Heirs who devised the same to the said Dorothy his Wife for life the remainder to Cordell Savell in tail the remainder over and died Dorothy entred and died Cordell Savell 22 Eliz. conveyed the Mannor by Fine to one Williamson who entred and afterwards and before the Trespass aforesaid viz. 14 January 23 Eliz. leased to the Defendant for years by force of which the Defendant entred And upon this Evidence there was a Demurrer in Law. And it was argued by Shuttleworth who was made Serjeant the last Term. And he said That the Demise made by Henry Savell is not in the inconveniency of the maxim that Henry by the said Grant should reserve a lesser Estate to himself than he had before For here by this Grant no present interest passeth by Sir William Cordell but the effect of the Grant rests upon a Contingency scil if he himself dieth within the Term c. until which time the whole interest of the Term doth remain in the said Henry Savell subject to the Contingency aforesaid and amounts to so much as if the said Henry had granted the same to Sir William Cordell if he himself should die within the Term in which Case it is a limitation when the said Grant shall take effect As if I grant unto you my Lease for so many years as J.S. shall name the same is a good Grant to take effect upon the naming of J.S. Then the Case being so When Henry Savell the Lessee and Edward Savell the Lessor joyn in a Fine ut supra now the possibility of the remnant of the Term which upon the death of Henry Savell and Dorothy his Wife within the Term might accrue to the Executors of the said Henry Savell is not extinct by the Fine but doth remain Quodam modo in Henry Savell to vest in his Executors if it should happen And here is not any conclusion by the Fine in this Case for Henry at the time of the Fine had not in him any Interest which is now claimed and so cannot be bound by the Fine For the Interest in respect of which the Plaintiff hath cause of Action begineth after the death of Henry who levied the Fine and first accrueth to his Executors and so shall not be touched by the Fine and therefore if such a Lessee for years granteth his Term to J.S. Proviso That if J.S. dieth within the Term that he himself shall have it again and afterwards the Grantor joyns with his Lessor in a Fine and afterwards within the Term J.S. dieth now the Grantor notwithstanding the Fine shall have the residue of the Term Then when the Conusee by the Fine regrants the Land to Henry in Fee that possibility to have after the death of the Donor cannot be drowned in the Fee simple for the reason aforesaid And then when Henry deviseth the same to his Wife that possibility doth pass to Dorothy because it was never in the Devisor and then when Dorothy dieth within the Term the Residue of the said Term shall accrue to the Plaintiff as Executor of Henry Cook contrary And he held The Grant to Sir William Cordell is utterly void And he agreed That Grants although in themselves they be uncertain yet if they may be reduced to certain they are good but here is no expectance of any certainty in the life of Henry for the Term limited to Sir William Cordell is not to begin till the death of Henry and is to end upon the death of Dorothy so as here is not any certain beginning nor certain end and here this Grant cannot be reduced to any Certainty during the life of the Grantor and so for that cause is void See Plow Com. 6 Eliz. Say and Fullers Case 273. by Weston Iustice If A. makes a Lease for so many years as J.S. shall name if J.S. in the life of A. name a certain number of years then the Lease is good but if the Lease had been for so many years as my Executors shall name that can never be made good in my life And upon that reason it is That an Attornment ought to be made in the life of the Grantor or else no Reversion shall pass So 33 E. 3. Entry 79. A Bishop aliens and after his death the Dean Chapter
he might be disseised But because the words of the Indictment were Expulit disseisivit which could not be true if the party expelled and disseised had not Freehold the Exception was disallowed Another Exception was taken to the Indictment For these words In unum tenementum intravit and this word Tenementum is too general and an uncertain word and therefore as to that the party was discharged But the Indictment was further In unum Tenementum decem acras terrae eidem pertinent And therefore as to the 10 Acres the party was enforced to Answer CL. Pasch 26 Eliz. In the Common Pleas. A. Granted to B. a Rent-charge out of his Lands to begin when J.S. died without Issue of his body J.S. died having Issue which Issue died without Issue Dyer said The Grant shall not take effect For J.S. at the time of his death had Issue and therefore then the Grant shall not begin and if not then then not at all And by Manwood If the words had been To begin when J.S. is dead without Issue of his body then such a Grant should take effect when the Issue of J.S. dieth without Issue c. Dyer If the Donee in tail hath Issue and dieth without Issue The Formedon in Reverter shall suppose that the Donee himself died without Issue For there is an Interest and there is a difference betwixt an Interest and a Limitation For if I give Lands to A. and B. for the Term of their lives if any of them dieth the Survivor shall have the whole But if I give Lands to A. for the life of B. and C. now if B. or C. die all the Estate is determined because but a Limitation and B. and C. had not any Interest See Cook 5 Part Bradnell's Case CLI Pasch 26 Eliz. In the Common Pleas. A. Enfeoffed B. upon Condition That if he pay 10. l. to the Feoffee his Executors or Assigns 4 Len. 232. 1 Len. 285 286. Hill. 12. Car. 2 B.R. Goodyer and Clarks Case within 3 yeares next ensuing that then it should be lawful for him and his Heirs to re-enter The Feoffee hath Issue two Sons whom he makes his Executors and dieth before the day of payment The Ordinary commits â—etters of Administration to J.S. during the minority of the Executors Manwood conceived That it is a most sure way for A. to pay the Monies to the Executors for they remain Executors notwithstanding the Administration committed to another For the Administrator in such case is but as Bailiff or Receivor to the Executors and shall be accomptable to them Which Harper and Dyer Concesserunt And Manwood said If in this Case the Monies be paid to one of the Executors it is sufficient and the same well paid but that Conditional Feoffments are as a Sum in gross and not in nature of a Debt Which the rest of the Iustices granted CLII. Pasch 26 Eliz. In the Common Pleas. A. Seised of a Mannor seased the same for years rendring Rent with Clause of re-entry and afterwards levied a Fine Sur Conusans de Droit to the use of himself and his Heirs The Rent being demanded is behind Dyer A. cannot re-enter for although in right the Rent passeth without Attornment yet he is without remedy for it is without Attornment and it would be hard without Attornment to re-enter c. It was moved further If here the Conusor be Assignee within the Statute of 32 H. 8. Manwood The Reversion of a Termor is granted by Fine there wants privity for an Action of Debt Waste and Re-entry But if the Conusee dieth without Heir although that in right it was in the Conusee yet the Lord by Escheat shall make Avowry and yet the Conusee by whom he claimeth could not And in the Case at Bar the Conusee himself could not but the Conusor being Cestuy que use who is in by the Act of Law 1 Inst 309. shall avow and shall re-enter without Attornment For the Conusor is in by the Statute of 27 H. 8. Harper The Heir of the Conusee shall avow and re-enter before Attornment Dyer 13 H. 4. The Father leaseth for years rendring Rent with Clause of re-entry the Father demands the Rent which is not paid the Father dieth the Son cannot re-enter For the Rent doth not belong unto him And therefore in the Case at Bar the Conusee cannot avow for the Rent before Attornment therefore not re-enter CLIII Trin. 26 Eliz. In the Common Pleas. IT is Enacted by the Statute of 5 Eliz. Cap. 8. That no person shall cut down any Oak Trees but between the first day of April and the last day of June but Timber imployed and bestowed in or about Buildings or Reparations of Houses c. And upon an Information upon that Statute the Defendant pleaded That he cut down the said Oak Trees and thereof made Laths to be bestowed in building and that he had sold them to J.S. who had imployed part of them in building and is imploying the residue in the same manner Windham The intent of the Defendant in cutting down the Oaks was not to have them imployed in building but to sell them Although it is not necessary for the satisfaction of that Statute that the Oaks presently after the cutting be imployed about building For if the Lessee of a Messuage who is to have House-bote seeing that his Messuage will want reparation cutteth down a Tree for such intent although there be not such urgent occasion at present that it ought to be presently repaired the same shall not be said Trespass for it is good Husbandry to have such Timber to be seasonable which cannot be without some reasonable time between the cutting down and the imployment Periam If at the time of the cutting the Vendor or Vendee had an intent to employ them about building it is good enough And it is a strong Case here because the Defendant imploys the Timber himself in Laths which is not of any use but for building and cannot be made but of Timber CLIV. Eve and Finch's Case Trin. 26 Eliz. In the Kings Bench. PEter Eve and John Finch brought an Action of Trespass against Nathaniel Tracy and Margaret his Wife and upon the pleading the Case was that John Finch Father of J.F. the Plaintiff seised of the Mannor of St. Katherines held the same of the Queen by Knight service in Chief and was also seised of the Land where the Trespass was done being holden in Socage and so seised 6 Junij 20 Eliz. for the preferment of the said Margaret then his Wife enfeoffed of the said Mannor A. and B. unto the use of himself and the said Margaret and their Heirs And that the said John the Father had not any other Land but that before mentioned and that the said Mannor at the time of the said Feoffment and at the death of the said John the Father attingebat ad duas partes of all the Lands and Tenements of the said
John the Father in three parts to be divided And afterwards the Father by his Will devised the Lands holden in Socage unto his said Wife for life with divers Remainders over It was the Opinion of the Court in this Case that the Devise was utterly void by the Statute CLV Brett and Peagrims Case Pasch 26 Eliz. IN an Action upon the Case the Plaintiff declared that whereas he himself and the Defendant submitted themselves to the Award of A.B. and C.D. and whereas the said Arbitrators upon the hearing of the Causes between them did intend and were resolved amongst other matters of their Award to award that two Obligations by which the Plaintiff was severally bounden to the Defendant for the payment of certain sums of Mony to the Defendant should be delivered by the Defendant to the Plaintiff to be cancelled The Defendant promised in Consideration that that Article of the delivery of the said two Obligations should be left out of the Award that he himself would gratis deliver them to the Plaintiff without any Coertion or direction of the Award and further declared that the said Article ad specialem instantiam ipsius Querentis was left out by the said Arbitrators out of their Award and notwithstanding that that the Defendant had not redelivered ut supra c. but had put the same in suit against the Plaintiff In this Case upon the matter ut supra c. it was adjudged for the Plaintiff CLVI Nich. Lee's Case Pasch 26. Eliz. In the Kings Bench. 1 Cro. 26. 1 Len. 285. 1 Inst 113. Dyer 177. 219. a. 2 Len. 220. NIch. Lee by his Will devised his Land to W. his second Son And if he do depart this World not having Issue then I Will my Sons-in-Law shall sell my Land. The Devisor at the time of the Devise having six Sons-in-Law died W. had Issue John and died John died without Issue one of the Sons-in-Law of the Devisor died the five surviving Sons-in-Law sold the Land. 1. It was clearly agreed by the whole Court that although the words of the Will be ut supra If W. my Son depart this World not having Issue c. And that W. hath Issue which dieth without Issue there although it cannot be said Literally that William did depart this World not having Issue yet the intent of the Devisor is not to be restrained to the Letter but Construction shall be made that whensoever W. dieth in Law upon the matter without Issue the same Land shall be subject to sale according to the Authority committed by the Devisor to his Sons-in-Law And now upon the matter W. is dead without Issue As in a Formedon in the Reverter or Remainder although the Donee in tail hath Issue yet if afterwards the Estate tail be spent the Writ shall suppose that the Donee died without Issue a fortiori in the case of a Devise such Construction shall be made As to the other point concerning the sale of the Land Wray demanded if the Sons-in-Law were named in the Will The Clerks answered they were not See 30 H. 8. Br. Devise 31 and 39 Ass 17. Fitz. title Executors 117. Such a sale is good in case of Executors See also 23 Eliz. Dyer 371. And see 4 and 5 Mar. Dyer Land devised in tail and if the Devisee shall die without Issue that then the Land shall be sold pro optimo valore by his Executors una cum assensu of A. if A. dieth before sale the power of the Executors is determined And afterwards it was clearly resolved by the whole Court that the sale by the manner aforesaid was good and Iudgment given accordingly CLVII Rag and Bowley's Case Trin. 26 Eliz. In the Kings Bench. ERror was brought upon a Fine and the Error was assigned in the Proclamations Whereupon issued a Certiorari to the Custos Brevium who certified the Proclamations by which Certificate it appeared that two of the said Proclamations were made in one day upon which the Defendant prayed another Scire facias to the Chirographer in whose Office it appeared that all the Proclamations were well and duly made It was the Opinion of Wray Chief Iustice in this Case that the Defendant ought to have his preyer for the Chirographer maketh the Proclamations and he is the principal Officer as to them And the Custos Brevium hath but the abstract of the Proclamations and we may in discretion amend them upon the matter appearing But the other Iustices seemed to be of a contrary Opinion for that the Proclamations being once certified by the Custos Brevium who is the principal Officer we ought not afterwards to resort to the Chirographer who is the inferior Officer And afterwards the Clerks of the Common Pleas were examined of the matter aforesaid by the Iustices of the Kings Bench and they answered according to that which was said by Wray Chief Iustice Wherefore it was awarded by the Court that a new Certiorari be directed to the Chirographer who Certified the Proclamations to be well and duly made And thereupon the Court awarded that the Proclamations in the Office of the Custos Brevium should be amended according to the Proclamations in the Custody and the Office of the Chirographer Note In the same Case before the Writ brought a stranger had brought a Writ of Error against the same Defendant upon the same Fine upon which the transcript of the Fine and Proclamations are removed in Banco and after the Plaintiff is Non-suit Now another who hath Cause may have a Writ of Error quod coram vobis residet CLVIII Taverner and Cromwell's Case Trin. 26 Eliz. In the Kings Bench. UPon an Evidence unto a Iury 3 Cro. 353. containing difficulty and matter in Law it was found viz. that the Bishop of Norwich 10 H. 8. was seised of the Mannor of Northelman in the right of his Bishoprick and at his Court holden within the same Mannor granted parcel of the Demesnes of the said Mannor to one Taverner and his Heirs where of the said Land in truth there was not any Demise by Copy before And so the said Land continued in Copy until 23 H. 8. at which time Taverner committed a forfeiture which being presented the Bishop seised the Land as forfeited and granted the same again by Copy to Taverner in Fee And so from thence it continued in Copy until 8 Eliz. which Interval between 23 H. 8. and 8 Eliz. amounted to 47 years It was the Opinion of the whole Court in this Case that the Continuance for 50 years is requisite to fasten a Customary Condition upon the Land against the Lord. It was also agreed by the Court that although the Original Commencement and that Customary Interest did commence 10 H. 8. ut supra from which time unto 8 Eliz. 60 years passed yet the seisure for a forfeiture which happened 23 H. 8. interrupted utterly the Continuance from the time which might by the Law have perfected the Customary Interest So
Cantarista And it hath always been adjudged That a Chauntry by Reputation is within the Statute of 1 E. 6. CLXV Brian and Cawsen's Case Trin. 27 Eliz. In the Common Pleas. IN Trespass by Brian and his Wife and others against Cawsen It was found by Special Verdict 2 Len. 68. That W. Gardiner was seised in Fee according to the Custom of the Mannor of C. of certain Lands and surrendred them to the use of his last Will by which he Devised them in this manner scil I Bequeath to Jo. Th. my House and Lands in M. called Lacks and Stone To Ste. Th. my House and Lands called Stokes and Newmans And to Roger Th. my House and Lands called Lakins and Brox. Moreover If the said Jo. Ste. or Roger live till they be of lawful age and have Issue of their bodies lawfully begotten Then I give the said Houses and Lands to them and their heirs in manner aforesaid to give and sell at their pleasure But if it fortune one of them to die without Issue of his body lawfully begotten Then I will that the other Brothers or Brother have all the said Houses and Lands in manner aforesaid And if it fortune the Three to die without Issue in like manner Then I Will That all the said Houses and Lands be sold by my Executor or his Assignee and the Mony to be given to the Poor The Devisor dieth Jo. Ste. and Roger are admitted according to the intent of the Will Roger dieth within age without Issue John and Ste. are admitted to his part John comes of full age and hath Issue J. and surrenders his part of the whole and his estate therein to the use of Ste. and his Heirs who is admitted accordingly Ste. comes of full age John the Father dieth Ste. dieth without Issue J. the Son as Cosen and Heir of Ste. is admitted according to the Will and afterwards dieth without Issue The Wives of the Plaintiffs are Heirs to him and are admitted to the Lands called Lacks and Stone and to the moyety of the Lands called Lakins and Brox parcel of the place where c. praetextu quorum they enter into all the Lands where the Trespass is done And it was found that A. the Executor died Intestate And that Cawsen the Defendant is Cosen and Heir to the said Devisor and that he as Heir entred and did the Trespass First It was agreed by all That by the first words of the Will the 3. Devisees had but an Estate for life But Fenner and Walmesley who argued for the Plaintiffs Conceived That by force of the later words scil If the said John Stephen and Roger live till they be of lawful age and have Issue of their body lawfully begotten Then I give the said Lands and Houses to them and their Heirs in manner aforesaid c. They have Fee and the words In manner aforesaid are to be referred not unto the Estate which was given by the first words which was but for life but to make them hold in severalty as the first Devisor willed and not joyntly as the words of the second Devise purported And Fenner said It hath been Resolved by good Opinions That where a Fine was levied unto the use of the Conusor and his Wife and of the Heirs of the body of the Conusor with divers Remainders over Proviso That it shall be lawful to the Survivor of them to make Leases of the said Lands in such manner as Tenant in tail might do by the Statute of 32 H. 8. although those Lands were never Demised before the Fine yet the Survivor might demise them by force of the Proviso notwithstanding the words In manner c. So if Lands be given to A. for life upon Condition the Remainder to B. in manner aforesaid these words In manner aforesaid refer unto the Estate for life limited unto A. and not unto the Condition nor unto any other Collateral manner The words If they live until they be of full age and have Issue are words of Condition and shall not be construed to such purpose to give to them by Implication an estate tail For the words subsequent are That they shall have them to them and their Heirs to give and sell at their pleasure By which it appeareth That his intent was not to make an estate tail For Tenant in tail cannot alien or dispose of his estate c. And as unto the last words And if it fortune they three to die without Issue c. these words cannot make an estate tail and the express Limitation of the Fee in the first part of the Will shall not be controverted by Implication out of the words subsequent As if Lessee for 40 years Deviseth his Lands to his Wife for 20 years and if she dieth the remnant of the Term unto another although that she survive the 20 years she shall not hold over and here the second sale appointed to be made by the Executor shall not take away the power of the first sale allowed to the Devisee's after-Issue Snagg and Shuttleworth Serjeants to the contrary And they Conceived That the Defendant hath right to two parts for no express Inheritance vests in the Devisees until full age and issue and because two of the Devisees died without Issue they never had any Inheritance in their two parts and so those two parts descended to the Defendant as Heir to the Devisor no sale being made by the Executor These words If John Stephen and Roger are to be taken distributive viz. If John live c. are to be taken distributive If John live until c. he shall have the Inheritance in his part and so of the rest As if J. have right unto Land which A. B. and C. hold in Common and J. by a Deed release to them all the same shall enure to them severally 19 H. 6. And here these later words If these three do die without Issue by that they conceived The same to be but an estate in tail And see to that purpose 35 Ass 11. 37 Ass 15. For a Man cannot declare his intent at once but in several parts all which make but one sentence And so it is said by Persay 37 Ass 15. We ought to have regard upon the whole Deed and not upon parcel And see Clark's Case 11 Eliz. Dyer 330 331. And it was said If I give Lands to one and his Heirs so long as he hath Heirs of his body it is a Feesimple determinable and not an estate in tail Quaere of that Then here the Feesimple is determined by the death of the Devisees without issue and therefore the Land ought to revert to the Heir of the Devisor especially being no person in rerum natura who can sell for the Executor before sale by him made died Intestate and if he had made an Executor yet the Executor of the Executor could not sell Which see 19 H. 8 9 10. And afterwards Resolved That no estate tail is
to all Quietness seeking all means to disquiet his Neighbors and hath used himself as a Lawless person and having Process to serve upon one in the Parish viz. the Parson did keep the Process and would not serve it but on the Sabbath day in the time of Divine Service not having regard to her Majesties Laws or the Quiet of his Neighbours Vpon which Bill the Iustices to whom it was exhibited awarded Process against the Plaintiff to find Sureties for his good behaviour It was the Opinion of the Iustices That upon this matter an Action would not lie CLXXVII Mason's Case Trin. 26 Eliz. In the Kings Bench. MAson Leased certain Lands to one R. for years and afterwards leased the same Lands to one Tinter for years Tinter Covenanted with the Defendant That if the said R. should sue the said Mason by reason of the later Lease that then he would discharge or keep harmless without damage the said Mason and also would pay to him all the Charges which he should sustain by reason of any suit to be brought against the said R. in respect of the said former Lease And Mason by the same Indenture Covenanted with Tinter That the said Land demised should continue to the said Tinter discharged of former Charges Bargains and Incumbrances And now upon the second Covenant Tinter brought an Action of Covenant and shewed That the said R. had sued him in an Action of Ejectione Firme upon the said first Lease and had recovered against him c. And Mason pleaded in Bar the said second Covenant intending that by that later Covenant the Plaintiff had notice of the said former Lease made unto R. so as the first Lease shall be excepted out of the Covenants of former Grants for otherwise there should be circuity of Action But the Opinion of the whole Court was to the contrary For the Covenant of Mason shall go to the discharge of the Land but the Covenant of Tinter only to the possession CLXXVIII Knight and Beeches Case Pasch 27 Eliz. Rott 1127. In the Common Pleas. 1 And. 173. Coke 5. Rep. 55. 1 Len. 12. 2 Len. 134. WIlliam Knight brought Ejectione Firme against William Beech. The Case was That the Prior of St. Johns of Jerusalem 29. H. 8. with the assent of his Covent leased by Indenture divers Houses in Clarken-well in the County of Middlesex for fifty years to one Cordel rendring Rent 5 l. 10 s. and 11 d. at four Feasts of the year usual in the City of London viz. for such a Messuage called The High-House 14 s. for another House 3 s. 11 d. for another House xx s. c. Et si contingat dictum annualem redditum 5 l. 10 s. 11 d. a retro fore in parte vel in toto ultra aut post aliquem terminum solutionis in quo solvi deberet per spatium trium mensium c. quod tunc ad omnia tempora deinceps ad libitum c. liceret dicto Priori Successoribus suis omni tali personae personis quam vel quas dictus Prior Successores sui nominarent appunctuarent sine scripto in omnia dicta tenementa totaliter re-entrare c. And afterwards 32 H. 8. the said Hospital of St. Johns was dissolved and the possessions of it granted to the said King and afterwards the said King 36 H. 8. gave the said House upon which the said Rent of 20 s. was reserved to one Audley c. in Fee And afterwards the now Queen being seised of the residue a Commission issued out of the Exchequer bearing Date 8 Maii 23 Eliz. Ad inquirendum Utrum the Defendant to whom the Interest of the said term did appertain perimple visset performasset omnes Provisiones fact reservat in super praedict Indenturam necne Office was found before the Grant and after 25 August following the said Queen by her Letters Patents gave the said House called The High-House to Fortescue the Lessor of the Plaintiff and afterwards Tres Mich. the Commission was retorned by which it was found all as aforesaid Et quod Termini Festi Solutionis in London are Michaelmas Christmas Annunciation and Mid-summer and that at the Feast of Michaelmas such Rent was behind for the space of three Months c. It was argued in this Case by Gawdy Serjeant on the part of the Plaintiff That here are several Rents for the entire Sum by the viz. is distributed into several Portions which make several Rents and to that purpose he cited Winter's Case 14 Eliz. Dyer 308. A Lease for years is made of the Mannors of A.B. and C. rendring for the Mannor of A. xx s. and for the Mannor of B. x s. and for the Mannor of D. x s. with a Condition for the Non-payment of the said Rents or any of them or any part or parcel of them within one Month c. then a Re-entry Here are several Rents And he conceived That a Condition in the Case of the King might be apportioned For a Rent-charge and a Condition are in the King in better Condition than in a Subject for the thing may distrain for a Rent-charge in all the Lands of him who is seised of the Land out of which such a Rent is issuing and if a Rent-seck be due to the King he may distrain for the same and the King shall never demand his Rent which he hath reserved with Clause of Re-entry and it appeareth in the Register That if before the Statute of Westm 3. the King purchaseth parcel of the Land holden of him the Rent shall be apportioned which was not in the Case of a Common person and there are in the Exchequer divers Presidents to that effect scil If A. be bounden in a Recognizance to B. and afterwards enfeoffeth the King of part of his Land and C. of the other part If B. be afterwards attainted of Treason so as the said Recognizance accrueth to the King that now notwithstanding that he hath part of the Land lyable to the Recognizance he shall have Execution of the residue And see F. N. B. 266. If after the Recognizance acknowledged the Conusor enfeoffeth of certain parcels of his Lands several persons and of the Residue enfeoffeth the King that Land which is assured to the King is discharged of the Execution but the residue shall be charged So that the possession of the King doth alter the Nature of the Rent Condition and Execution Fenner Serjant Contrary And he said That this Grant before Office retorned was not good for without Office the King cannot enter multo minus his Patentee and that the King by the Grant hath interrupted the Relation of the Office As if a Man by Indenture bargaineth and selleth his Lands and afterwards makes Livery to the Bargainee and afterwards the Deed is enrolled Now the party shall not be said to be in by the Bargain and Sale but by the Livery for the Livery hath interrupted the
force of the first assurance by way of Bargain and the Relation is utterly gone So in our Case The Grant of the Queen mean between the Award of the Commission and the Retorn of it hath destroyed the force and effect of the Commission so as no appearance shall be had of it And he agreed That here are several Rents but the Condition is entire and admit that a Condition may be apportioned in some Cases yet in some Cases it cannot And the Statute of 32 H. 8. gives the Condition and the Reversion to which it is annexed to the King in such sort as it was in the Prior But the Condition in the Prior was not capable of Apportionment and therefore no more it shall be in the Case of the King. As where a Recognizance is acknowledged whicâ— cometh to the King by the Attainder of the Conusee Now if the King will sue Execution upon it he shall not have the whole Land of the Conusor in Execution but only the moyety by Elegit c. This Case afterward Trin. 28 Eliz. for Difficulty was adjourned into the Exchequer-Chamber and there argued before all the Iustices and Barons of the Exchequer And Shuttleworth Serjant argued for the Plaintiff And first he said Here are several Rents and so several Conditions especially when all the things demised are of such a Nature that they may yield a Distress but if any of the things demised cannot yield Distress then it shall be one entire Rent and shall issue out of the Residue c. Which see 17 Ass 10. An Assise was brought of 20 s. Rent and the said Rent was reserved upon a Lease for life made of 100 Acres of Lands and 15 Acres of Wood scil for the Land 10 s. and for the Woods 10 s. And by the Assise it was found the Disseisin in the Wood but not in the Land. Wherefore it was awarded That the Plaintiff should recover seisin of the 10 s. and for the residue that he should take nothing And although these words reddendo inde Trench unto all the things demised entirely yet this word viz. is a distributive and makes an Apportionment And the viz. is not contrary to the premisses scil to the reddendo inde As if I enfeoffe A. and B. of an Acre of Land Habendum the one moyety thereof to A. in Fee and the other moyety to B. in Fee this is good for it well stands with the premisses But if I enfeoffe A. and B. of two Acres of Lands Habendum the one Acre to A. and the other to B. the same Habendum is void because contrary to the premisses for each of them is excluded out of one Acre which was given to him in the premisses And in our Case If the Rent set forth in the Viz. had been greater or less than that which is reserved upon the Reddendo then the Viz. should be void for the contrariety and the Reddendo stand Walmesley contrary And that here is one entire Rent Which see to be so by the close of the Condition Si Redditus praedict ' aut aliqua inde parcella c. And the Lessor may distrain in any part of the Land demised for the whole Rent notwithstanding the Viz. And it was moved by Shuttleworth That admit the Rent and Condition be entire Yet now when the King grants the Reversion of one of the things demised in Fee to a stranger the Condition remains and not determined by the destruction of the Reversion as in the case of a Subject For the King hath divers Prerogatives by which he is exempted and protected from such Mischiefs and Inconveniences which happen to Subjects by their own Acts and their Laches and Folly which shall not be imputed to the King And the reason of Extinguishment of a Condition in such case in the case of a Common person is his own Folly that he will distrahere his Reversion And Folly shall never be imputed to the King And as the Case is here the King is not bound to take notice of a Condition made by a Common â—erson For it is not matter of Record and by this Grant of the King the Rent doth not pass for the Grant is only of the Reversion without any mention of the Rent And the King hath divers Prerogatives in a Condition As in the creating of a Condition 35 H. 6. 38. The Abbot of Sion's Case Ad effectum is a good Condition in the Case of the King by Prison And where the King grants Lands in Fee to one upon Condition That the Grantee shall not alien the same is a good condition So for a Rent-Seck the King may distrain And the King may reserve a Rent and a Condition to a stranger and if he doth reserve a Rent and a Condition to himself he may grant the same over to a Subject 2 H. 7. 8. And the Condition in the case of a Common person may be apportioned As if Lessee of two Acres upon Condition alien one of them in Fee and the Lessor entreth for the forfeiture or recovereth part in an Action of Waste c. but of a surrender it is otherwise Walmesley contrary The Condition is gone For a Condition in the hands of the King is of the same Nature as in the case of a common person impatient of any Division Partition or Apportionment As if the King hath a Rent out of 3 Acres of Land and afterwards purchaseth one of them the Rent is utterly gone and shall not be apportioned as well as in the Case of a common person So of a Common And as this Case is If the Condition doth remain then upon the breach of it the King shall enter into the whole for the words of the Condition are Wholly to re-enter and so he should defeat his own grant And he cited a Case adjudged at the Assizes at York The King gave Land in Fee-Farm rendring Rent with Clause of re-entry The King granteth the Rent over to a stranger And after the Rent is behind The King cannot re-enter nor the Grantee It was also moved If the Iurors of Middlesex might enquire of the usual Feast days in London Shuttleworth That they might do so See 5 H. 5. 23. Where a Commission issued out to enquire in the County of Surrey of Escheats words c. who found that A. held of the King in Chief and took to Wife one E. Cosen of A. within the Degrees they then knowing of it and had Issue betwixt them and afterwards they were Divorced in the County of Kent c. And Exception was taken to that Office Because the Enquest of Surry had found a Divorce in the County of Kent Another matter was Because the Iurors have found the breach of the Condition And before the Iurors had put their Hands and Seals to the Inquisition the Queen granted part of the things demised in his hands to Fortescue After which Grant the Inquisition was sealed and Retorned into the Exchequer If
hath not any estate in the later Acre for the cause aforesaid Afterwards It was moved What thing passed to the second Son by that Devise And the Lord Anderson conceived That the words in the Will Usually Occupied with it did amount to as much as Land let with it and then the 60 Acres were not let with it and therefore did not pass Windham Iustice held the contrary and he said Although they do not pass by the words Occupied with it yet it shall pass to the Son by the name of Jacks or the Lands appertaining to Jacks To which Anderson mutata opinione afterwards agreed CLXXXIV Wroth and the Countess of Sussex Case Pasch 28 Eliz. In the Kings Bench. Co. 6. Rep. 33. 1 Len. 35. 4 Len. 61. THe Case was this In Anno 4 5 of King Philip and Queen Mary A private Act of Parliament was made by which it was Enacted That the Mannor of Burnham was assured to the Countess of Sussex for her Ioynture with a Proviso in the Act That it should be lawful for the Earl of Sussex to may a Lease or Leases for 21 years and afterwards a year before the first Lease was ended he made another Lease for 21 years and this second Lease was to begin and take effect from the end of the first Lease And if this second Lease were a good Lease within the intent and meaning of the Act was the Question Popham the Queens Attorny General said That it was not 1. Because it was a Lease to begin at a day to come And 2. Because it was made before the first Lease was ended But he said It may be Objected That the Act saith Lease or Leases It is not the sense of the Act that he might make Leases in the Reversion but the sense and meaning of the Makers of the Act was That he might make Leases in possession and not Leases in futuro for if it should be so then he might make a Lease for 21 years to begin after his death which should be a great prejudice to the Countess and against the meaning of the Act which was made for her advantage The Lord Treasurer and Sir Walter Mildmay Knight have a Commission from the Queen to make Leases of the Queens Lands for 21 years because the Queen would not be troubled It was holden That by virtue of that Commission they could not make any Leases but Leases in possession only But all other Leases which did exceed the Term of 21 years and in Reversion were to pass by the hands of the Queen and her Attorny General and not by them only by virtue of their said Commission And if I grant to one power before the Statute to make Leases of my Land for 21 years he cannot make any Lease but only Leases in possession and he cannot Lease upon Lease for by the same reason that he might make one Lease to begin in futuro by the same reason he might make 20 several Leases to begin in futuro and so frustrate the Intent of the Act. It was Marshall's Case upon the Statute of 1 Eliz. of Leases to be made by Bishops The Bishop of Canturbury made a Lease to him for one and twenty years and afterwards he made a Lease unto another for 21 years to begin at the end of the first Lease And it was holden That the second Lease was void But in the great Case which was in the Exchequer-Chamber upon this Point There the second Lease was in possession and to begin presently and to run on with the other Lease and therefore it was adjudged to be good because the Land was charged with more than 21 years in the whole And if the Earl had done so here it had been a good Lease Wray Iustice said That if the second Lease had been made but two or three years before the expiration of the first Lease that then it had been utterly void but being made but 2 or 3 days or months before the expiration of the first Lease he doubted If it should be void or not The Statute of 32 H. 8. makes Leases for 21 years to be good from the day of the date thereof And a Lease was made to begin at a day to come And yet it was holden by two of the Iustices in the Court of Common Pleas That it was a good Lease And by two other Iustices of the same Court it was holden the Lease was not good And Clench Iustice said That there was no difference If it be by one Deed or by two Deeds And therefore he held That if the Earl had made a Lease for 21 years and within a year another the same had been void if it were by one Deed or two Deeds for that he did exceed his authority And he said In the principal Case If there had not been a Proviso he could not have made a Lease and therefore the Proviso which gave a power to make a Lease for 21 years should be taken strictly There was a Case of the Lord Marquess of c. that it should be lawful for him to make Leases for 21 years by a Statute And he made another Lease to begin after the end or expiration of the first Lease and it was doubted Whether it were a good Lease or not because he had not made any Lease before But if both were made by force of the Statute all held That the second Lease was void At another day the Case was argued by Daniel for the Lease in Reversion to begin at a day to come And he said That in a Statute the words alone are not to be considered but also the meaning of the parties and they are not to be severed Also he said That a Statute-Law is to be expounded by the Common-Law And by the Common-Law If one giveth power unto another to make Leases of his Lands he might make Leases in Reversion because an Authority is to be taken most beneficially for them for whose cause it was given So that if a Man grant an authority to another to make Estates of his Lands by those general words he may make Leases for years or for life Gifts in tail Feoffments or any Estates whatsoever If one gives a Commission to another to make Leases for one and twenty years of his Lands he may make a Lease in Reversion and so it was holden in the Dutchy in the Case between Alcock and Hicks Also he said That this Lease was a good Lease by the Statute-Law For the Statute of Rich. 3. gives authority to Cestuy que Use that he may make Estates in Reversion The Statute of 27 H. 8. which gives authority to the Chief Officer of the Court of Surveyors to make Leases if it had stayed there he might have made Leases in Reversion Therefore the Statute goes further and saith Proviso That he shall not make a Lease in Reversion See 19 Eliz. Dyer 357. The Statute of 35 H. 8. of Leases to be made by the Husbands
of the Lands of their Wives By the general words of the Statute they might have made Leases in Reversion And therefore the Case there was That where the Husband had made a Lease of his Wives Lands for 21 years and afterwards he made another Lease for 21 years to begin after the Lease in esse It was conceived That such a Lease was good because in the Act there was no restraint of Leases in Reversion as there is in the Statute of 32 H. 8. In all Cases of Statutes which are with Provisoes the Law upon them shall be taken generally but in such Particulars only as are restrained by the Proviso and here in this Case the Proviso went to the Ancient Rent to be reserved and that the Countess should have remedy for the said Rent and therefore it shall be construed at large as unto all other points which are not restrained by the Proviso As if the Wife be within age and she and her Husband joyn in a Lease yet such a Lease shall be good by the Statute of 32 H. 8. because the Law is general and doth not restrain these imperfections expresly So if a Feoffment in Fee be made with warranty Proviso That he shall not vouch yet that restraint goes to the Voucher only and he is at large to Rebutt or to have a Warrantia Chartae A Lease is made for life Proviso That he shall not do voluntary Waste he is at large to do any other Waste Otherwise it would be if there were no Proviso and there a Proviso makes the precedent words to be expounded more liberally The Stat. of 33 H. 8. Cap. 39. of Surveyors which giveth authority to the Chief Officer to set or let for 21 years he might have made a Lease for 21 years if by the Proviso he had not been restrained and yet the words are put singularly But the words of this Act upon which the Case in Question doth arise are Lease or Leases and therefore it shall be expounded most liberally for the party Again he argued That as to the intent of the Statute that this Lease was within the meaning of it for the meaning is to be collected out of the words and shall not be drawn to any private construction or intent against the words which should be here if this Lease should be avoided For by such construction and exposition the Earl his Heirs Executors c. should be prejudiced and the Countess only should be benefited Also by this Act remedy is given to the Countess against such Lessees that she should have the Rent by Debt or Distress as if she had been party or privy therefore it is reason via versa that the Lessees have remedy against her for their Leases Also he said That the same remedy should be for them against the Countess as they had against the Earl himself if he had been alive and therefore they should have such remedy against the Countess as they had against the Earl. And further he said That the Statute is to be expounded according to the words where such an Exposition is not rigorous nor mischievous And private Laws are to be expounded by the letter and strictly as the Deed of the party shall be As 14 E 4. 1. Br. Parliament 61. A Particular Act was made That the Chancellor calling unto him one Iustice might award a Subpena between A. and B. and end the matter betwixt them And there by all the Iustices except Littleton He shall not award a general Subpena but a special Subpena making mention of the Act for he shall pursue the particular Act strictly But an Act which is for the common profit shall be expounded largely Also a Statute shall not be expounded largely or by Equity to overthrow an Estate As the Statute which gives That if the Woman doth consent to the Ravisher that the next Heir shall enter If the Daughter entreth and after a Son is born he shall not put out the Daughter because the Statute shall not be drawn to a private intent to the overthrow of the Estate before lawfully vested in the Daughter And so in the principal Case the Statute shall not be drawn to a private intent for the benefit of the Countess to overthrow the Lease for years And it is not like to the Case which hath been put That if he maketh a Lease for 20 years and so for 20 years that the same is not good by the Statute For I will agree That that is a Lease for 40 years Egerton Sollicitor contrary First as to the word Demise or Dimission it is nothing else but the letting of the Land and so Lease comes from Laiser a French word and such a Lease it self for he hath not left the Land. As if I say to you I Let you my Lands for 21 years When shall you have my Land Not at a day to come but presently If I sell you Land and Covenant that it is discharged of another Lease for 21 years and there is a Lease to Commence after the Lease for 21 years I have broken my Covenant If I be bounden to make you a Lease for 21 years and I say to you I make you a Lease to begin 200 years hence I have forfeited my Bond. If the Custom of the Mannor be that Dominus pro tempore may make a Lease for 21 years may he make a Lease to begin at a day to come Truly no if there be not a special Custom so to do If I give authority to my Steward to make Leases of my Lands for 21 years he cannot make a Lease to begin 100 years after As to the Case of the Dutchy there the Commission was That he might make Leases according to his discretion therefore there he might make what Lease he pleaseth As to the Statute which enableth Cestuy que Use of 1 R. 3. that Case is not like to our Case for that Act is All Feoffments Estates c. therefore he might make such Leases without doubt And if I devise That my Executors shall make Leases of my Lands for 21 years they cannot make Leases to begin at a day to come and if they do not make the Leases within convenient time the Heir shall enter and avoid their authority And Statute-Law shall have such an Exposition as that the precise time ought to be observed As the Statute of 14 E. 3. Rastal Voucher 8. If the Tenant voucheth to warranty a dead Man and the Demandants will aver That the Vouchee is dead or that there is no such their Averment shall be received without more delay Vpon this Statute the Case was 21 E. 3. Whereone was vouched to warranty and the Summoneas ad Warrantizandum issued and then came the Demandant and would have averred That the Vouchee was dead And the Tenant said That he ought to have averred that upon the voucher to warranty and that now he had surceased his time And the Demandant said That the Statute did
not bind him to that nor did prescribe any time but left the same generally Yet it was the Opinion of the whole Court That he should have the Averment at the time of the Voucher or not at all So the Statute of 11 H 7. Cap. 20. If a Woman who hath a Ioynture for life or in tail suffereth a Recovery and afterwards the Issue in tail releaseth all his Right by Fine and dieth his Issue may enter for the assent ought to be by Voucher in the same Action or the like for if there be a mean instant between the Recovery and the Assent then any assent after is nothing to the purpose for the Recovery being once void by the Statute cannot be made good by an assent afterwards See Doctor and Student 54. And yet the Statute is Provided That the Statute shall not extend to any such Recovery c. if the next Heir be assenting to the same Recovery c. so as the same assent or agreement be of Record or inrolled And it doth not say That the Assent should be at one time or at another But to come to Leases upon Statutes Before the Statute of 2 E. 6. Cap. 8. If Leases had not been found by Offices the Lessees should have been ousted and put to their traverse But put Case that after that Statute a Lease made to begin at a day to come were not found by Office should it be helped by that Statute No truly And so it is holden in the Court of Wards at this day and the Lord Chief Iustice of England held so in his Reading at Lincolns-Inn The Statute of 1 Eliz. of Leases to be made by Bishops is That Leases other than for 21 years from the time that they begin that is when they may take effect as Deeds and not when they shall take effect to be executed For so they might make Leases infinite c. It was adjourned c. CLXXXV Lewen and Mody's Case Mich. 28 29 Eliz. Rot. 2494. In the Common Pleas. IN a Replevin brought by Lewen Doctor of the Civil Law against Mody who made Conusans as Bailiff to one Fowke and shewed That 14 Elizabeth the morrow of the Purification a Fine was levied between Lovelace and Rutland Plaintiffs and the said Fowke and other Deforceants by which Fine the said Deforceants acknowledged the said Mannor to be the right of the said Lovelace and Rutland come ceo c. And the said Lovelace and Rutland by the same Fine granted and rendred to the said Fowke a Rent of 20 l. per annum in Fee out of the said Mannor And for the Rent arrear c. And the Plaintiff in bar of the Conusans shewed That the said Fowke being seised of the said Rent granted the same to one Horden c. Vpon which Grant they were at Issue And the Iury found That the said Fowke being seised of the said Rent by Indenture reciting That whereas a Fine was levied between Fowke and 7 others Plaintiffs and Lovelace and Rutland Deforceants as the rest ut supra granted redditum praedict to Horden and further found that no other Fine was levied between the parties aforesaid but the said Fine and that the parties to the Fine were seised of the Mannor at the time of the Fine levied and of no other Land And if this Rent so described by the said Indenture should pass or not was the Question And it is to be observed That the Indenture of Grant between Fowke and Horden recited a Fine of the Mannor of Coleshall inter alia where the Iury have found That the Fine was levied of the said Mannor only And it was argued by Shuttleworth That the said Rent did not pass to Horden by the said Indenture for the Rent bescribed by the Indenture is not the Rent which was granted by the Fine And if I let Lands for years to A. and afterwards A. grants the Land which B. holds of me the Grantis void As 13 E. 3. Grants 63. Land is given to Husband and Wife for their lives And the Lessor grants the Reversion of the Land which the Husband holdeth for life nothing passeth Walmesley contrary The variance in the Fine shall not avoid the Grant For the Indenture of the Rent agrees with the Fine in the Term in the year of the Reign and in the name of the parties to the Fine in the quantity of the Rent and in the Land charged the only difference is in the phrase of Law Deforceant for Plaintiff and it is granted that that is but a matter of Circumstance and not of substance Snag Serjeant contrary And first he took Exception to the Verdict for this that a special Verdict is given upon a special Absque hoc And the Lord Anderson interrupted him That it was a clear Case That such a Verdict upon such an Issue might be found And so it was adjudged in the Case between Vavasour and Doleman Fenner argued as Walmesley The Grant agrees with the Fine in the points of greatest importance and one falsity shall not prejudice it where there are so many verities which may induce the Court to judge That the Rent granted by the Indenture is the Rent created by the Fine and in a Fine the substance is not Who was Deforceant who was Plaintiff but who was party to the Fine And that some of the parties to the Fine were seised of the Land of which the Fine is levied And if the Indenture had been Whereas such a Rent was granted by a Fine levied between A. and B. without shewing who was Plaintiff and who Deforceant it had been good enough And although that in this Case the Plaintiff and Deforceant are mis-set down yet the same shall not make the Grant void for utile per inutile non vitiatur So if I reciting The Original Grant was made to me by Indenture Tripartite between A. of the first part B. of the second part and my self of the third part whereas the Indenture it self is Between myself of the first part the same is not material c. For such a small mistaking shall not avoid the Grant. So if I by my Deed reciting That whereas I am possessed of certain Lands for Term of years of the Demise of Sir Christopher Hatton Knight Treasurer of England whereas in truth he is Chancellor that mistaking of the Dignity shall not prejudice the Grant. And it was Agreed by all the Iustices If the said Fine had been pleaded at it is recited in the Indenture mistaking the Plaintiff and Deforceant he who had so pleaded it had failed of his Record But in the Case at Bar the reciting who was Plaintiff who Defendant was matter of surplusage and therefore it shall not hurt the party As 23 Eliz. Dyer 376. A. seised of a House in D. which he purchased of Tho. Cotton he made a Feoffment thereof by these words A House in D. late Richard Cotton's And notwithstanding this variance it was good enough
Issue in tail may enter upon the Conusee of a Statute acknowledged by his Father For if Execution had been sued against the Issue in tail it had been a Disseisin And see 2 R. 3. 7. That in such case the Wife or her Heirs may enter upon the Conusee And by Consequence the Conusee who is in by her c. Cook contrary I conceive that this Grant of this Lease by Sir Thomas Cotton to his Son is not good 2 Roll. 48 1 Cro. 15. 1 Inst 22. b. for it is but a possibility and no Interest I agree all the Cases which have been put before for Law but they cannot be applyed to this Case The Book in 7 H. 6. 2. is That if the Term of the Wife be extended upon the Statute of the Husband that the Wife shall have the residue after the death of the Husband but it doth not say that the Wife or her Husband may grant it during the Extent which is the matter now in Question And I conceive That Sir Thomas Cotton hath but a possibility For the Conusee upon the Extent hath but an incertain Interest And although it may be by some means reduced to a certainty in the Chancery where the Costs and Damages shall be assessed yet until it be reduced to a certainty it cannot be granted And therefore it is clear That if I have a Term for 8 years in Land and grant it unto another until he hath levied 100 l. and all his Costs of suit for it by this Grant all the Interest of the Term is in the Grantee and nothing is in me but a possibility 8 Co. Mannings Case And so it was holden in the Common Pleas by the Lord Anderson the day when he was made Chief Iustice there At which time this Case was put Lands of the yearly value of 20 l. are Leased to one until he hath levied 100 l. And the matter was What estate the Grantee hath And it was holden That if Livery be not made that he hath but an estate at Will for the profits of the Lands are incertain the one year more and the other year less And Bromley Lord Chancellor was then of the same Opinion Then if in case of a Lease it be so it shall also be so in case of an Extent and in both the Cases the whole Interest is out of the parties And 19 Eliz. the Case was in this Court That the Lessee for years devised his Term to his Executors for the payment of his Debts and Legacies and after the payment of them the residue of the years he devised to his Son The Executors enter which is an assent to the remainder he in the remainder grants his Interest And it was holden void because it was but a possibility and so incertain and although it might be reduced to a Certainty afterwards yet the same is not sufficient for it ought to be reduced to a certainty at the time of the grant And 17 Eliz. in this Court the Case was That Land was given to the Husband and Wife and to the Heirs of the Husband the Husband makes a Lease for years and dieth the Wife enters and entermarrieth with the Lessee And it was moved If the Interest of the Lessee by the entermarriage was extinct And it was holden That it was not for it was but a possibility and not an Interest quod fuit concessum per totam Curiam And if a possibility cannot be extinct then it cannot be granted And he denyed the Case put by Stephens Where a Man seised of Lands Leaseth the same for years to begin at a day to come and afterwards before the day the Lessor is disseised now during that Dissesin the Grantee cannot enter for his future Interest For the Feesimple being turned into a Right so also shall be the Interest And that is proved by Delamere's Case A Feoffment in Fee was made to the use of A. for life and afterwards to the use of C. for life and afterwards to the use of D. in Fee and afterwards A. enfeoffed a stranger who had notice of the use The same doth take away all the other uses and said Feoffee although he had notice of the use yet he shall not be seised to the first use for the estate out of which the first uses do arise is taken away and then also the uses And he said also That the Lease made to Sir Thomas Cotton is not good for it was made 11 Eliz. And it is found by Verdict That 10 Eliz. a Writ of Extent issued forth upon the Statute then was the Lands in the hands of c. during which time the Lord Mount joy and his Wife could not make the Lease aforesaid to the said Sir Thomas Cotton And as to that see 5 E. 3. Retorn of the Sheriff 99. See the Case of 3 E. 6. Dyer 67. Stringfellow's Case Then admitting the Lease to Sir Thomas Cotton yet the Lessee cannot put out the Conusee without a Scire facias for the Conusee is in by matter of Record Also here this Lease made by the Husband and Wife without any Rent reserved is utterly void and then the Conusee shall take advantage of it 9 H. 7. 24 18 E. 4. 2. And so was it ruled in the Case of Seniori puero in the case of an Enfant And see 7 Eliz. Dyer 239. Where the Provost of Wells being Parson impersonee of the Patronage of W. Leased the Tythe for 50 years rendring Rent which was confirmed by the Dean and Chapter but not by the Patron and Ordinary And afterwards by Act of Parliament the Provostry was united to the Deanery cum primo vacare contigerit The Provost died the Dean accepteth the Rent The same shall not bind the Church for the Lease is void as it is of a Parson or Prebend c. And so the Dean shall take advantage of it although not privy to it See 16 Eliz. Dyer 337. Lands given to a Parson and his Successors for to find Lights and he Leaseth the same for life The Rent is so imployed accordingly The Incumbent dieth The Successor accepteth the Rent the King grants it over The Patentee shall avoid the Lease as the Successor might have done before the Statute if he had not accepted the Rent but the acceptance before the Statute shall bind the Successor for that it was but a voidable Lease And the Case between Harvy and Thomas which hath been put on the other side serves to our purpose for there the Conusee shall avoid a Lease in Law which is void and here in the Principal Case the Lease is void for that no Rent is reserved upon it Wherefore c. It was adjourned CCVI. Beadle's Case Mich. 29 30 Eliz. In the Kings Bench. THe Case was That A. Leased to B. certain Lands for 40 l. per annum 2 Len. 115. And a stranger Covenanted with A. That B. should pay him 40 l. for the Farm and Occupation
Land as it might be Leased And so it is where the Sheriff retorns Issues c. for the Corn there growing may be of the value of 40 l. where the Land is but of the value of 10 l. CCXXV. Weshborn and Mordant's Case Mich. 29 Eliz. In the Kings Bench. 2 Len. 103. 1 Cro. 191.199 1 Len. 247. IN an Action upon the Case the Plaintiff declared That whereas he was possessed of a piece of Land containing 2 Acres called Parsonage lying adjoyning to a certain River from the 20th of May 29 Eliz. usque diem impetrationis istius Brevis c. the Defendant had the said 20th day of May estopped the said River with certain Loads of Earth and so continued estopped until the 14th of February by reason of which his Land was drowned and so he had lost the profit of it for the said time It was moved in Arrest of Iudgment That upon the Declaration it doth not appear that there is any cause of Action for the Plaintiff hath made title to the Land drowned from the 20th day so as that day is excluded and the Nusance is laid to be done the said 20th day and if so then he cannot complain of any wrong the Nusance being laid to be before any possession of the Plaintiff To which it was answered That although the stopping was made before the possession yet the Continuance of it after is a new wrong for which an Action lieth As 5 H. 7. 4. It was presented That an Abbot had not cleansed his Ditch c. by reason of which the Highway is estopped The Successor shall be put to Answer to that Indictment by reason of the Continuance of it See that continuance of a Nusance is Quasi a new Nusance 14 15 Eliz. Dyer 320. And it may be that the Plaintiff was not damnified until a long time after the 20th of May scil after the Estopping and the words of the Writ here are satisfied and true Afterwards Iudgment was given for the Plaintiff CCXXVI The Queen and Scot's Case Mich. 29 Eliz. In the Common Pleas. THe Queen brought a Quare Impedit against the Bishop of London and Scot And the Case was 1 Len. 40. A. seised of an Advowson in gross holden of the Queen in Chief aliened the same by Fine without Licence of the King The Church became void The Conusee presented the Queen without Office found brought a Quare Impedit The Question was If the Queen without Office found should present It was agreed by the whole Court That if the alienation had been by Deed only there the Queen without Office should not have the presentment For upon such alienation by matter in fait without Licence no Scire facias shall issue without Office found of the alienation But upon Alienation without Licence by matter of Record a Scire facias lieth before Office. And in the last Case the Queen shall have the Issues from the time of the Scire facias retorned but in the first Case from the time of the Office found See Stam. Prerogat see 8 E 4. 4. It was then moved That if the Queen being entituled to present ut supra pardon the Conusee all alienations without Licence and Intrusions If the Estate of the Incumbent thereby be confirmed But the Court would not argue that Point CCXXVII Sir Thomas Holland and Bonis's Case Mich. 29 Eliz. In the Common Pleas. IN a Replevin 1 Len. 183. 2 Len. 12. Owen Rep. 138 139 the Defendant made Conusans as Baily to Tho. Lord Howard and shewed That the Prioress of the late dissolved Priory of Hallywell was seised of the Mannor of Priors in the County of Hertford and granted the same by words of Dedi concessi pro certa pecuniae summa to the Lord Audley Chancellor of England and his Heirs who died thereof seised and that the said Mannor inter alia descended to Mary Daughter and Heir of the said Tho. Lord Audley who died thereof seised by force of which the said Mannor descended to the said Tho. Lord Howard c. And shewed That the Conveyance by the Prioress bore date 4. Novemb. 29 H. 8. and then enrolled in the Chancery The Plaintiff in bar of the said Conusans shewed That after the making and inrolling of the said Conveyance the said Prioress Leased the Lands to Sir Hen. Parker for 99 years and conveyed the said Lands to himself and further shewed That the said Conveyance specified in the Conusans fuit primo deliberatum 4. November 31 H. 8. without that that the said Prioress the said 4. Novemb. 29 H. 8. dedit concessit the said Mannor to the said Lord Audley Vpon which it was demurred And it was the clear Opinion of the Court That the Averment de primo deliberatum against a Deed enrolled ought not to be received For by the same reason it might be averred Nunquam deliberatum and so upon the matter Non est factum It was further Objected That a Bargain and Sale by a Corporation is not good For a Corporation cannot be seised to another's use and the nature of such a Conveyance is to take effect by way of use in the bargain and afterwards the Statute draws the possession to the use But the Court utterly rejected the said Exception as dangerous for that such were the Conveyances of the greater part of the possessions of Monasteries And it was in this Case said by Shuttleworth Serjeant That although such a Corporation could not take an Estate to another's use yet they might charge their own possessions with an use to another CCXXVIII The Queen and the Bishop of Gloucester's Case Trin. 29 Eliz. In the Kings Bench. THe Queen recovered in a Quare Impedit against the Bishop of Gloucester and one S. in which Quare Impedit the Bishop pleaded as Ordinary scil Quod ipse nihil habet nec habere clamat in Ecclesia praedict neq in Advocatione ejusdem nisi Admissionem Institutionem c. And now the Bishop and S. the Incumbent brought a Writ of Error And If this Writ of Error brought joyntly by the Bishop and the Incumbent was well brought was the Question Some held That the Bishop had not cause to bring Error for that he had disclaimed in the Church and the Patronage of it For if in a Praecipe quod reddat the Tenant disclaims he shall never have a Writ of Error 16 E. 3. 7. Fitz. Error 78. And Note That in the Writ of Error at the Bar the perclose was Ad grave damnum Episcopi whereas the Bishop could not be grieved by the said Iudgment because he had nothing nor claimed any thing in the Church c. Wray The Writ of Error had been the better if those words ad grave damnum Episcopi had been left out for the Bishop hath lost nothing And it was Objected by some If the Iudgment in this Case be reversed the usual Iudgment cannot be given scil That the Bishop shall be restored to
Case 18 Eliz. Plow Com. 485 486. Where it is holden That upon Attainder of Treason by Act of Parliament the Lands were not in the King without Office in the life of the person attainted upon the words of the Act shall forfeit See Stamford 54 55. acc 3. He conceived That this Interest which came to the King by this Attainder was but a Chattel and then it is released by the Pardon And so he conceived If it be a Freehold For the words of the General Pardon are large and liberal Pardon and Release all manner of Treasons c. And all other things causes c. and here forfeitures are pardoned And also this word Things is a transcendent c. And although it be a general word yet by the direction of the General Pardon it ought to be beneficially expounded and extended as if all things had been especially set down Also the words are Pardon them and their Heirs therefore the same extends to Inheritances for any Offence not excepted for there is the word Heirs And the third branch doth concern only Chattels and that is by the word Grant where the former is by the words Release and Acquit See Br. Charter of Pardon 71. 33 H. 8. Tenant of the King dieth seised the Heir intrudes Office is found in that case by Pardons of all Intrusions the Offence is pardoned but not the Issues and Profits But by the Pardon aforesaid all is pardoned And here in our Case the Office is void For the Statute makes all Precepts Conditions void c. being awarded upon such Forfeitures See also in the second Branch Vexed and inquieted in Body Good Lands c. And see also amongst the Exceptions That persons standing endicted of wilful Murder and forfeiture of Goods Lands Tenements grown by any Offence committed by such person By which he conceived That if that Exception had not been the Land of such a person if he had been attainted upon such Indictment should be forfeited As to the Traverse he conceived That in as much as the Office is true our plea is a Monstrans de Droit although it concludes with a Traverse We vary from the Office in number of persons and in the day of the Feoffment and every Circumstance in the Kings Case is to be traversed and our plea in substance doth confess and avoid the Office. Although the King here be entituled by double matter of Record i. e. the Attainder and the Office yet one of the said Records is discharged by another Record i. e. the Pardon and then there is but one Record remaining scil the Office and therefore our Traverse doth lie And he conceived That at the Common Law there was a Traverse as where it was found by Office That the Lessee of the King had done Waste or cessed for two years and there it is said That the Lessee and Tenant in an Action brought against them may traverse the Office Therefore traverse was at the Common Law where the King was entituled by single matter of Record So upon an Office finding an Alienation without Licence Traverse was by the Common Law. See Traverse in such Case in the Case of William de Herlington 43 Ass 28. See Br. Traverse 54. Petition is by the Common Law and Traverse by the Statute Frowick in his Reading See Stamf. Prerogat 60. That Traverse in the Case of Goods was at the Common Law but Traverse for Lands found by Office by 34 E. 3. Cap. 14. therefore the remedy was by Petition See now Cook 4. Part the Sadler's Case 55 56. Traverse was at the Common Law concerning Freehold and Inheritance but that was in special Cases when by the Office the Land is not in the Kings hands nor the King by that is in possession but only by the Office and entituled to the Action and cannot make seisure without suit there in a Scire facias brought by the King in the nature of such an Action to which he is entituled the party may appear unto the Scire facias and traverse the Office by the Common-Law CCXXXVII Mich. 27 Eliz. In the Kings Bench. A Writ was awarded out of the Court of Admiralty against Sir Tho. Bacon and Sir Tho. Heydon to shew cause wherefore Whereas the Earl of Lincoln late High Admiral of England had granted to them by Patent to be Vice Admirals in the Counties of Norfolk and Suffolk the said Letters Patents ought not to be repealed and annulled And so the said Writ was in the nature of a Scire facias It was moved by Cook That although the Admiral had but an Estate for life yet the Patent did continue in force after his death As the Iustices here of the Common Pleas although they have their places but for life may grant Offices which shall be in force after their death And because the same matter is determinable at the Common Law he prayed a Prohibition For in the Admiralty they would judge according to the Civil Law The Court gave day to the other side to shew cause why the Prohibition should not be awarded CCXXXVIII Mich. 29 Eliz. In the Kings Bench. 1 Len. 302. Ante 150. Post 230. ACcompt was brought by Harris against Baker and damages were given by the Iury It was moved to the Court That damages ought not to be given by way of damages but the damages of the Plaintiff shall be considered of by way of Arrearges But see the Case Hill. 29 Eliz. in C. B. betwixt Collet and Andrews And yet 10 H. 6. 18. in Accompt the Plaintiff Counted to his damage but did not recover damages 2 H. 7. 13. 21 H. 6. 26. The Plaintiff shall not recover damages expresly but the Court shall given Quoddam incrementum to the Arrearages Cook said That it had been adjudged That the Plaintiff should recover Damages in an Accompt ratione Implicationis non Detentionis CCXXXIX Long 's Case Mich. 29 Eliz. In the Kings Bench. NOte It was holden in this Case If a Feoffment in Fee be made of a Mannor to which an Advowson is appendant and Livery is made in the Demesnes but no Attornment that in such case the Advowson shall pass but none of the Services CCXL Barns Case Mich. 29 Eliz. In the Common Pleas. BArns brought an Action of Trespass for taking of his sack of Corn The Defendants justified in the behalf of the Town of Lawson in the County of Cornwell because That King Phil. and Queen Mary granted to them of the said Town a Market to be holden within the said Town and that the Plaintiff came to the said Town with a sack of Corn and the Vendor would not pay Toll for which cause they took the said sack of Corn. And Iudgment was given for the Defendant Vpon which Error was brought and assigned for Error because that the Defendant pleads the Letters Patents with the date of the place year and day without saying Magno sigillo Angliae sigillat For it was holden that
and it was assigned for Error because that in the Declaration it is alledged That the Wife Administred the Goods of the Intestate and did not shew that she was Administratrix c. and took Letters of Administration 2. It is not alledged That the Wife had Goods of the Testator at the time of the promise for otherwise she shall not be bound For it is but Nudum pactum for Executors or Administrators not having Assets shall not be charged And it was holden here That Request is not necessary for the debt was before the promise so as the Request is not any cause of the Action CCLIII Matthews's Case Pasch 30 Eliz. In the King Bench. NOte That a Bill of Perjury upon the Statute of 5 Eliz. was sued by the Queen and the party because that the Defendant being one of the Homage c. did present with the rest of the Homagers That the Plaintiff had cut down certain Trees c. Whereas in truth he had not cut down any And it was holden by all the Iustices That for this matter the Bill did not lie upon this Statute For this branch of the Statute is to be intended of Perjury in Depositions only And by Tanfield A Bill doth not lie upon the Statute upon Perjury committed in an Answer to a Bill in Chancery See 41 Eliz. Flower 's Case CCLIV Trin. 30 Eliz. In the Common Pleas. Co. Rep. Gatewards Case IN a Replevin The Defendant avowed for Damage Feasant The Plaintiff in bar of the Avowry shewed That every Inhabitant in every Messuage in the said Town had used to have Common in the place where c. Glanvile argued That the prescription was not good for want of Capacity in the party who pretends Interest for it is not certain but applyed to a Multitude and he put divers Cases in proof of it 22 H. 6. 21 H. 7. 1. Mar. Dyer 100. The King grants a Rent probis hominibus of Islington the same is void for they are not capable Harris I conceive That the Prescription is good And he granted That a confused Multitude cannot prescribe in a matter of Interest but in an Easement or discharge As in a Way to the Church and that by reason of Custom in the Land and not in the persons See 7 E. 4. 26. Where it is pleaded That all the Inhabitants within such a Town time out of mind c. have used to have Common there c. And for a Township to have a Way to the Church And good by Danby And by Littleton it ought to be pleaded by way of usage And 18 E. 4. 3. All the Inhabitants of such a Town may well prescribe And he cited Bracton 222 223. Communia quandocunque ex longo usu sive constitutione cum pacifica possessione continue non intermixta ex scientia negligentia patientia Dominor ' ita etiam amitti potest per negligentiam non usum And he vouched Britton fol. 144. Common is obtained by long sufferance and also it may be lost by long negligence c. CCLV. Pye and Grunway's Case Mich. 30 Eliz. In the Common Pleas. IN Trespass brought by Pye against Grunway and one B. The Plaintiff declared against Grunway only who pleaded not guilty And it was found for the Plaintiff And in Arrest of Iudgment it was moved That the Plaintiff in declaring against one only had falsified his own Writ To that it was said That at the uttermost it is but a discontinuance so but matter of form and so relieved by the Statute of 18 Eliz. But it was said by the Court that it may be That B. was outlawed at the Plaintiffs suit and then the proceedings is determined as against him And the Court demanded of the Clerks If the use of the Court be not so in such case to declare That Grunway simul cum B. utlagat ad sectam Querentis did the Trespass Who answered Not in this Action but in an Action of Debt it is otherwise And afterwards notwithstanding that Exception Iudgment was given against the Plaintiff CCLVI. Thorp and Wingfield's Case Trim. 30 Eliz. In the Common Pleas. IN Waste the Plaintiff declared upon a Lease for years generally and the truth of the Case was That the Plaintiff had made a Lease for years to one A. which Lease being in force for two years he Leased the same Lands for years as he hath declared to begin presently and the Waste which is assigned in the Declaration was done during the first Lease And now If the Defendant upon this matter might plead No waste done was the Question And it was said by the Court That such a plea should be perilous for the Defendant for it shall be found against him and if he pleadeth the special matter aforesaid scil The former Lease in esse at the time of the Waste committed after the expiration of which Lease no Waste was done If the second Lease be not by Indenture it should be a good Plea but if by Indenture then the Plaintiff would estop him by the Indenture to shew that the second Lease hath another beginning than the Indenture purports and then the Waste shall charge the Defendant And although the Plaintiff had not declared upon a Lease by Indenture yet if the Defendant pleaded the special matter aforesaid he by way of Replication shall estop the Defendant to plead any other beginning of the Term than the Letter of the Indenture doth purport and the same shall be no Departure for it is matter which strengtheneth the Declaration CCLVII Botham and the Lady Gresham's Case Pasch 30 Eliz. In the Common Pleas. IN a Prohibition by Botham and Couper 1 Len. 94. 1 Cro. 71. 1 Len. 128. Post 265. against the Lady Gresham who had impleaded them in the Spiritual Court for Tythe-Hay and made their Suggestion That time out of mind c. they had paid to the Vicar of the said Parish 4 d. for the Tythe of Hay of every Acre It was moved That upon that surmise a Prohibition ought not to be granted for that a Modus Decimandi shall never come in Question But the party ought to have pleaded the same matter in the Spiritual Court scil That the same doth appertain to the Vicar and not to the Parson and then if the Vicar sueth for the Tythe of the Hay the Modus Decimandi will come in Question and although that he hath averred in his surmise that the Tythe-Hay belongeth to the Vicar yet that is not material And afterwards a Consultation was awarded CCLVIII. Rush and Heighgate's Case 30 Eliz. In the Exchequer 2 Len. 121. Co. 4. Rep. Palmers Case PRocess was awarded out of the Exchequer against Rush for the levying of the sum of 200 l. which he owed to the Queen Vpon which It was found by Office That Rush 22 Junii 22 Eliz. was possessed of Lands for the Term of divers years then and yet to come And the Debt of the Queen began
that the Queens Attorny said That it is true that Thomas Robinson was possessed but it is further said That Thomas granted it to Paramour and so the Interest of Thomas is confessed on both sides and therefore the Iury shall not be received to say the contrary But the Opinion of Manwood Chief Baron was That if the parties do admit a thing per nient dedire the Iury is not bound by it but where upon the pleading a special matter is confessed there the Iury shall be bound by it And afterwards the Issue was found against Robinson the Defendant CCLXXIII Trin. 30 Eliz. In the Kings Bench. IN an Action of Debt by A. against B. upon an Obligation the Defendant pleaded tender of the Mony according to the Condition upon which the parties were at Issue And after the Defendant pleaded That after the Darrein Continuance the Debt now in demand was Attached in the Defendants hands according to the Custom of London for the debt of C. to whom the Plaintiff was endebted It was the Opinion of the Court That the Plea was insufficient for it is altogether contrary to the first Plea. And also the Court held That in an Action for the debt depending here in this Court the debt cannot be attached and the Court would not suffer a Demurrer to be joyned upon it but over-ruled the Case without any Argument For it was said by Wray Chief Iustice That it was against the Iurisdiction of the Court and the Priviledge of it CCLXXIV Trin. 30 Eliz. In the Kings Bench. NOte It was holden by the Court That if a Copyholder in Fee dieth seised and the Lord admits a stranger to the Land who entreth that he is but a Tenant at Will and not a Disseisor to the Copyholder who hath the Land by descent because he cometh in by the assent of the Lord c. CCLXXV Trin. 30 Eliz. In the Kings Bench. AN Ejectione firmae was brought de uno Cubiculo and Exception was taken to it But the Exception was disallowed The Declaration was special viz Leas unius Cubiculi per nomen unius Cubiculi being in such a House in the middle story of the said House And the Declaration was holden good enough and the word Cubiculum is a more apt word than the word Camera And such was the Opinion of Wray Chief Iustice And it was said That Ejectione firmae brought de una rooma had been adjudged good in this Court. CCLXXVI Johnson and Bellamy's Case Rot. 824. Mich. 30 31 Eliz. In the Common Pleas. IN an Ejectione firmae It was holden by Special Verdict 1 Cro. 122. That W. Graunt was seised of certain Lands and by his Will devised the same to Joan his Wife for life And further he willed That when Rich. his Brother should come to the age of 25 years that he should have the Land to him and the Heirs of his body lawfully begotten W. Graunt died having Issue of his body who was his Heir Rich. before he attained the age of 25 years levied a Fine of the said Lands with proclamations in the life and during the seisin of Joan to A. sic ut partes finis nihil habuerunt And If this Fine should bar the Estate in tail was the Question And the Iustices cited the Case of the Lord Zouch which was adjudged Mich. 29 Eliz. Where the Case was Tenant in tail discontinued to E. and afterwards levied a Fine to B. That although that partes finis nihil habuerunt yet the said Fine did bind the Estate tail But the Serjeants at the Bar argued That there was a difference between the Case cited and the Case at Bar For in the Case cited the Fine was pleaded in Bar but here it was not pleaded but found by Special Verdict To which it was said by the Court That the same is not any difference For the Fine by the Statute is not any matter of Estoppel or Conclusion but by the Statute binds and extincts the entail and the right of it And Fines are as sufficient to bind the right of the entail when they are found by Special Verdict as when they are pleaded in Bar. And Periam Iustice said A Collateral Warranty found by Special Verdict is of as great force as pleaded in Bar. And afterwards Iudgment was given That the Estate tail by that Fine was utterly barred and extinct CCLXXVII Mich. 30 Eliz. In the Kings Bench. THe Case was A Man made a Lease for life rendring Rent at Michaelmas and further Leased the same to the Executors of the Lessee until Michaelmas after the death of the Lessee It was affirmed by Cook That in that Case it was adjudged That the word Until shall be construed to extend to the Term unto the end of the Feast of St. Michael and so the Rent then due payable by the Executors for without such Construction no Rent should be then due because the Term ended before Michaelmas CCLXXVIII Pasch 30 Eliz. In the Kings Bench. ONe was bounden to stand to the Award of two Arbitrators who awarded That the party should pay to a stranger or his Assigns 200 l. before such a day The stranger before the day died B. took Letters of Administration The Question was If the Obligee should pay the Mony to the Administrator or if the Obligation was discharged It was the Opinion of the whole Court That the Mony should be paid to the Administrator for he is an Assignee And by Gawdy If the word Assigns had been left out yet the payment ought to be made to the Administrator Which Cook granted CCLXXIX Pasch 30 Eliz. In the Common Pleas. THe Defendant in Debt being ready at the Bar to wage his Law was examined by the Court upon the points of the Declaration and the cause of the Debt upon which it appeared that the Plaintiff and Defendant were reciprocally endebted the one to the other And accompting together they were agreed That each of them should be quit of the other It was the Opinion of Periam and Anderson Iustices That upon that matter the Defendant could not safely wage his Law For it is but an agreement which cannot be executed but by Release or Acquittance CCLXXX Pasch 30 Eliz. In the Common Pleas. TEnant in tail Covenanted with his Son to stand seised to the use of himself for life and afterwards to the use of his Son in tail the remainder to the right Heirs of the Father The Father levied a Fine with proclamations and died It was moved by Fenner If any Estate passed to the Son by that Covenant for it is not any discontinuance and so nothing passed but during his life and all the Estates which are to begin after his death are void Anderson Iustice The Estate passeth until c. And he cited the Case of one Pitts where it was adjudged That if Tenant in tail of an Advowson in gross grants the same in Fee and a Collateral Ancestor releaseth with warranty and dieth
Commoner shall not use his Common before that the Lord hath put in his Cattel was holden to be a void Custom On the other side It was said That this Custom might have a lawful beginning and that it might be grounded upon the reason of the Common Law That a Remainder should not be without the assent of the particular Tenant and therefore that the Custom might be good And it was said That Wife should not have her Dower unless she claimed it within a year and a day that the same was adjudged to be a good Custom The Court delivered no Opinion in the Case but the Case was adjourned to another time CCCIV. Mich. 31 Eliz. In C. B. THE Case was a Man devised Socage Lands to his Brothers Son in tail to have the same at his age of 25 years and died having Issue a Daughter The Nephew after 21 years entred and levied a Fine and afterwards accomplished his age of twenty five years It was the Opinion of the whole Court That the Issue of the Devisee was barred by this Fine For the Heir in Tail and the Heir in Fee are all one by the Statute of 4 H. 7. And it was holden That this was not a Fine which doth enure by way of Estoppel but that it passeth the very right It was said to be the same Law If one who hath but a condition levyeth a Fine and afterward entreth for the condition broken c. CCCV Palmer and Smalbrook's Case Hill. 31 Eliz. In the Kings Bench. IN an Action upon the Case The Plaintiff declared 1 Len. 132. Owen 97. 1 Cro. 178. That the Defendant had recovered a certain Debt against one A. and thereupon took forth a Capias against the said A. to Arrest his Body and delivered the said Capias to the Plaintiff being then Sheriff and prayed a Warrant for the serving of the Capias and that he would name to him one B. for a special Bayliff 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 him for the said escape and further declared 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 that the Defendant notwithstanding his Promise aforesaid sued the Plaintiff for the said escape and it was found for the Plaintiff And it was moved in stay of Iudgment That that Promise was against the Law to prevent the punishment inflicted by the Statute of 23 H. 8. upon the Sheriff and that it is meerly within the said Statute and so the Promise void Cook This is not any Bond or Promise taken of the Prisoner nor of any for him and therefore it is not within the Statute and it was Davies 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 some for him And afterwards Iudgment was given for the Plaintiff CCCVI Wood and Payn 's Case Trin. 31 Eliz. In the Kings Bench. IN an Ejectione firmae for Entry into a Messuage sive Tenementum and 4 Acres of Lands to the same belonging Vpon not guilty pleaded it was found for the Plaintiff It was moved by Cowper Serjeant That the Declaration is uncertain Messuagium sive Tenementum quod fuit Concessum Cook We will release our damages Kemp Then your Costs are gone also Cowper You cannot have Iudgment of the 4 Acres For the Declaration is 4 Acres to the said Messuage or Tenement belonging and for the incertainty to which thing belonging But to that it was said That as to the 4 Acres it is certain enough For the words To the same belonging are meerly void And afterwards the Plaintiff released damages and had Iudgment CCCVII Bennington and Bennington's Case Trin. 31 Eliz. In the Kings Bench. BEnnington brought an Action of Trespass against Bennington for breaking of his Close c. The Defendant pleaded That long time before the Trespass supposed That it was the Freehold of one Joan Bennington and that he as her servant and by her Commandment entred upon which they were at Issue And it was found That for two parts of the Land where c. in three parts to be divided it was the Freehold of the Plaintiff and for the other part that it was the Freehold of the Defendant and by the clear Opinion of the whole Court The Plaintiff could not have Iudgment for now it appeareth That the Plaintiff and Defendant are Tenants in Common betwixt whom an Action of Trespass doth not lie and although this Tenancy in Common be not pleaded but found by Verdict yet it was the Opinion of the Court That it is all one CCCVIII Brereton and Auser's Case Hill. 31 Eliz. In the Kings Bench. JOhn Brereton of the Inner-Temple brought a Writ of Error against Auser to Reverse an Outlawry And the Case was That the said Auser had caused the said Brereton to be endicted upon the Statute of Magna Charta and divers other Statutes For that Whereas the said Auser had sued the said Brereton in a Bill of Debt in the Court of Request against the said Brereton and by the said Suit procured the said Brereton to be imprisoned Vpon which Endictment Brereton was Outlawed And Error was assigned in the Outlawry because whereas the Endictment was taken in Middlesex the Exigent upon it was in London whereas it ought to issue out of Middlesex but the proclamations issued in the County whereof he was named Nuper and that was peremptory for if he make default upon that Process he shall encur the danger of a Praemunirè And for that cause the Outlawry was reversed Also the party was discharged of the Endictment for this Suit in the Court of Requests as it appeareth upon the Endictment was before Iudgment in the Bill of Debt CCCIX Constable and Farrer's Case Hill. 31 Eliz. In the Kings Bench. IN an Action upon the Case upon an Assumpsit the Plaintiff declared That whereas the Defendant had brought an Action against him the Issue in which ought to be tried at the next Assises at N. the Defendant in Consideration that the now Plaintiff should confess the Action aforesaid at the Assises holden the 4th of August promised that he would stand to the Arbitrament of J.S. for the said matter And upon Non Assumpsit the Iury found That the Defendant made such a Promise the 5th of August but not the 4th of August Cook I conceive That upon this Verdict the Plaintiff shall have Iudgment for in truth the Assises began the 4th of August and the Consideration was That the now Plaintiff should confess the Action at the same Assises which although they continue divers days yet in Law all is but one day And all the Assises shall be said to be holden the 4th of August
bring a new Writ But Gawdy said That the Writ brought was good enough CCCXVII Pike and Hassen's Case Mich. 31 Eliz. In the Kings Bench. AN Action upon the Statute of 32 H. 8. touching buying of Titles And the Bargain was laid in Norfolk but the Land c. was in Suffolk And the Issue was tryed in Norfolk and the value of the Land also And as to the 5 Acres they found the Defendant guilty and found also the value of them And for the Residue a Special Verdict was given and for the 5 Acres the Plaintiff had Iudgment presently And by the special Verdict it was found That the Defendant had occupied the Residue of the Land for two years before c. as Tenant at sufferance and afterwards sold the Inheritance Wray Chief Iustice Tenant at sufferance is in truth a Tort feasor by which his taking of the profits is not such as is intended by the Statute But yet he afterwards looking into the words of the Verdict which were That the Defendant tenuit the Lands for two years ex permissione of another thereupon it ought to be intended That he was Tenant at will. CCCXVIII Sparry and Warfield's Case Mich. 31 Eliz. In the Kings Bench. IN False Imprisonment against the Defendant and others they pleaded The Charter of Bridewell and that the Plaintiff was mali nominis famae and that certain Goods were stollen from J.S. and upon search the Plaintiff was found suspitiously c. And that thereupon they put him into Bridewell It was the Opinion of the Iustices That the Plea was not good CCCXIX. Bragg's Case Pasch 32 Eliz. Rot. 318. In the Kings Bench. IN an Action of Trespass by Strait against Bragg Quare Clausum fregit containing one Acre in C. in the County of H. and for the taking of a Horse The Defendant pleaded That long time before the Trespass The Dean and Chapter of Pauls were seised of the Mannor of C. in the said County in Fee in the right of their Church whereof the place where is parcel c. And so seised King E. 4th by his Letters Patents dated Anno 1 of his Reign granted to them all the Fines pro Licentia Concordandi of all their Homagers and Tenants resiants or not resiants within their Fee And shewed That for all that time they have used to have such Fines of their Tenants And shewed further That 29 Eliz. A Fine was levied in the Common Pleas between the Plaintiff and one A. of 11 Acres of Land whereof the place where the Trespass was done was parcel and the Post-Fine assessed to 15 s. And afterwards Scambler the forreign Opposer allowed to them the said 15 s. because the said Land was within their Fee and afterwards in the behalf of the said Dean and Chapter he demanded of the Plaintiff the said 15 s. who refused to pay it for which he by the Commandment and in the right of the Dean and Chapter entred and took the said Horse in the name of a Distress as Bailiff to the said Dean and Chapter for the said 15 s. and afterwards sold it c. upon which the Plaintiff did demur in Law And it was moved That here it is not averred That the Land whereof the Fine was levied was within their Fee but they say That Scambler allowed it because it was within their Fee. And that is not a sufficient averment quod curia concessit And also the opinion of the Court was Ante 56. 2 Len. 179. That the Dean and Chapter cannot distrain for this matter but they ought to sue for the same in the Exchequer as it appeareth 9 H. 6. 27. in the Duchess of Summersets Case Gawdy Iustice The Grant doth not extend to the Post-Fine for the Fine pro licentia Concordandi is the Kings Silver and not the Post-Fine Wray Iustice All passeth by it for it is about one and the same matter And they in Opinion to have given Iudgment for the Plaintiff Quaere of it CCCXX South and Marsh's Case Mich. 32 Eliz. In the Exchequer NOte It was holden by the Court That where Marsh was endebted unto South without any Obligation for it but only by a Note in writing signed with the Hand of Marsh scil By me W. Marsh but not sealed that such a debt might be assigned to the Queen although that before the Assignment against a Creditor he might have waged his Law for in as much as by these Notes and Bills the certainty of the debt appeareth and being true debts they may well be assigned See 21 H. 7. 9. An Obligation may be assigned to the Queel without Deed enrolled and where the Obligee is not endebted to the Queen But it cannot be assigned to a subject Noy 52. if not for a debt due by the Assignor to the Assignee for otherwise it is Maintenance And in this Case it was holden That where the King sues for a debt assigned to him the Obligor cannot plead Nihil debet for now by the Assignment it is become matter of Record CCCXXI. Trapp's Case Mich. 32 Eliz. In the Kings Bench. RObert Trapps 1 Eliz. seised of 15 Messuages in Clarkenwell in the Occupation of 15 several persons viz. A.B.C. c. and named them certain demised them to one Cox And afterwards conveyed the Inheritance of them to one Brian Trapps in Fee who afterwards demised to J.S. all those 15 Messuages in Clarken-well which Robert Trapps did demise inter alia to Cox by Indenture dated 1 Eliz. now in the Occupation of A.B.C. c. And one of the Occupiers names was left out in the recital And it was holden by the whole Court That notwithstanding the said Omission the said Messuage did pass for there was sufficient certainty before and the falsity came after the verity CCCXXII Brewin and Mansfield's Case Mich. 32 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared That A. was endebted to him in 10 l. and made the Defendant his Executor and died And that the Defendant in Consideration that the Plaintiff would forbear the Defendant for a certain time promised to pay it at two several days and shewed which in certain And it was found for the Plaintiff It was moved in Arrest of Iudgment That it is not set down in the Declaration by what portions the 10 l. shall be paid Clench Iustice conceived That the Defendant had liberty to pay it in what portions he pleased Gawdy He ought to pay it by equal portions as a Rent reserved payable at two Feasts without saying by what portions it shall be paid And he said That if the plea for the cause aforesaid had been defective yet now after Verdict all is helped for it is but form And afterwards the Opinion of the whole Court was That the matter shewed was not good to stay Iudgment Wherefore the Plaintiff had Iudgment to recover CCCXXIII Mich. 32 Eliz. In the Common Pleas. THe Case was The Plaintiff in a
ad Beneficium Ecclesiasticum pertinet Examinatio ad Judicium Ecclesiasticum 40 E. 3. 25. And see the Statute of 18 Eliz. that Pars gravata in the Case of Maintenance is not tyed to a year And this suit is conceived to be in such Quality being a private grievance to the party himself the King not being party but only the party grieved But where the penalty is expresly given to the King and him that shall sue there all the proceedings ought to be in both their names And Manwood Chief Baron said That this Issue shall be tryed by the Country Which see in the Book of Entries 396. CCCXXVII Owen Morgan's Case Mich. 32 33 Eliz. In the Exchequer OWen Morgan Exhibited an Information upon the Statute of Usury for an usurious Mortgage made and charged the Defendant That Cepit ultra 10 l. in Cl. for the forbearance for one year and that was out of the Issues Rents and Profits which he took in Middlesex of Lands in Glamorganshire in Wales Mortgaged to the Defendant Manwood Chief Baron said That one might take the Rents of Lands in Wales in the County of Middlesex but a Man cannot take the Issues and Profits of the Lands but where the Lands are And Leak 's Case was cited Where an Information was brought for cutting down of Wood and converting it into Coals And Leak the Informer laid the cutting to be in the County where the Wood grew but the Conversion of it into Coals in the County of Middlesex And Manwood said in the principal case That the taking of the Issues and Profits ought to have been layed where the Land was And such was the Opinion of the whole Court. CCCXXVIII Curson's Case Mich. 32 33 Eliz. In the Exchequer CUrson acknowledged a Statute to Starkey 4 Len. 10. Ante 239. Alderman of London and afterwards he acknowledged another Statute to one Hampden who assigned the same to Fitton who assigned the same to the Queen Starkey sued forth Execution upon his Statute and thereupon the Land is extended of Curson and he hath a Liberate of it It was agreed by all the Barons That if Starkey had execution upon the Statute before the Queen his Execution should stand against the Queen and the Queen should not put him out And it was further agreed by them That if A. recovers a Debt in the Common Pleas so as he hath title to sue forth Execution by Elegit and the Defendant sells his Lands and afterwards A. assigns his Execution to the Queen That the Queen should not have prerogative against the Feoffee to have execution of the whole Land. And it was also holden by Manwood Chief Baron That if Execution be had upon a puisne Statute and the same is afterwards avoided by more ancient Statute and afterwards the ancient Statute is satisfied That now the puisne Recognisee may re-enter without suing forth any new Execution CCCXXIX Butler and Lightfoot's Case Mich. 32 33 Eliz. In the Exchquer IN this Case It was holden by the Barons 4 Len. 9. That if Tenant for life be of a Copyhold the Remainder over in Fee to another he in the Remainder may surrender his Estate if there be not any particular Custom to the contrary for the Estate of Tenant for life and him in the remainder are but one Estate and the admittance of the particular Tenant is the admittance also of him in the Remainder CCCXXX Knight and Norton's Case Mich. 32 Eliz. In the Common Pleas. IT was holden in this Case That duress of Imprisonment is not intended but where the party is wrongfully imprisoned until he make the Bond and not where a Man is lawfully imprisoned for another cause and for his delivery he makes a Bond for that is not per duritiam imprisonamenti And if in such Case duresse be pleaded the other may say of his own accord sine duritia imprisonamenti without saying absque hoc that it was per duritiam imprisonamenti And so it was also holden in the Kings Bench. See 4 E. 4. 17. 12 E. 4. 7. CCCXXXI Hungate and Hall's Case Trin. 32 Eliz. In the Exchequer Ante 239. 4 Len. 10. THe Case was Curson acknowledged a Statute to Alderman Starkey and afterwards acknowledged another to Hampdem which was assigned to the Queen Afterwards the Lands of Curson were extended for Starkey and a Liberate thereof It was holden by the Court That the same was a good Execution and that the Queen should not avoid it But if the Land had been extended at the suit of the Queen then the Execution of the Queen should hold place although it were a Statute of a puisne date And by Clark Baron If a Recognizance acknowledged by a Subject be assigned to the Queen It hath been a Question If all the Lands of the Conusor shall be extended or but the moyety as it shall be at the suit of the Conusee himself It was holden That all the Lands should be extended CCCXXXII The Lord Gray's Case Trin. 32 Eliz. In the Exchequer THe Lord Gray Tenant of the King of Lands holden in Capite by Licence of the King made a Feoffment of the Lands in Fee and afterwards levied a Fine for further assurance And upon Process the party came into the Court and shewed this matter And the party was advised by the Court to aver That the said Fine was for further assurance And then upon such averment he should be discharged without any Pardon sued forth for the Fine c. CCCXXXIII Sir Walter Waller's Case Trin. 32 Eliz. In the Exchequer IN Sir Walter Waller's Case It was holden in the Court of Exchequer That a Debt of Record as upon a Iudgment c. could not be attached by the Custom of London 1 Len. 29. And so it was holden in the Case of Sir John Perrot in the Common Pleas. 4 Len. 44. And it was said by Cook That such a debt could not be assigned upon the Statute of Bankrupts CCCXXXIV Sir Brian Tucke's Case Mich. 32 Eliz. In the Exchequer IN this Case It was holden by all the Barons clearly Office of Executors 232. Roll. 920. Savile 40. That the Executor of an Executor should not be charged with a Devastavit made by the Executor of the first Testator no not in the Case of the King because it is a personal wrong only CCCXXXV Fines and the Lord Dacre's Case Mich. 32 Eliz. In the Exchequer THe Case was Tenant in tail Post 261. 4 Len. 97. the Remainder of Lands in chief levyed a Fine of them without Licence of the King and if the Tenants of the Lord Dacres should be charged for the Fine was argued For the Case was That the Lord Dacres was Tenant in tail the Remainder in tail to Philip Fines And it was holden by all the Barons That the Tenants Lands should be discharged But it was holden That if the Conusor had any other Lands within England the Fine might be levyed
although the date is not necessary to be recited yet here as this Case is the same ought to be truly recited For the Surrender of the said Estate which passeth by it is the Consideration of the new Grant then if the same be false the Patent is void for it was made by reason of that for there is a more ample Lease recited than in truth it is by ten days And so the Consideration scil the Surrender not so beneficial as the Queen expected also this new Patent doth contain in it self a Grant of such Lands as were demised formerly by Letters Patents dated 21 of May scil Omnia praemissa in forma praedict dimissa and nothing was demised in forma praedict scil by Patent bearing such date Ergo nothing passed by the later Patent For the Patent of 13 Eliz. is in consideration of a Surrender of a Lease made and bearing date 21 of May whereas no such Lease was and then no Surrender and then no Consideration Also here the Consideration is false for the Lessee who is supposed to have surrendred his Lease before the same Surrender assigned parcel of his Term to one Hagget and afterwards purchased a new Lease in consideration of the Surrender of the former and of his full Interest in it whereas he had not the whole Interest and so this false consideration destroys the whole Grant. For in all Cases where the considerations are real and savour of the Land or extend to such a real thing if it be false it destroys the Patent But where the consideration is personal as in consideration of Mony paid or for Service done although it be false yet the Patent may be good So here forasmuch as the consideration is real in respect of this Surrender and is false as appears before the Patent is void And as to this point there is not any difference between Consideration and Suggestion for if it be real and false the Patent is void contrary where personal But in some Cases where the Letters Patents are Ex certa scientia c. such falsity in the reality shall not hurt Which see 18 Eliz. Dyer 352. So the Case between Manxel and Turvil where Lessee for years his Lease being expired supposing that he had twenty years of his Lease not entred in consideration of such Interest took a Patent de novo the same was void So Owens Case Terril being Lessee for years of the Parsonage of P. in the County of Sommerset of the Grant of the King for certain years In consideration of his said Interest obtained a Grant of the Queen of Lands in Wales whereas in truth he had before assigned his Interest in the said Parsonage to another and it was adjudged That the said Grant of Lands in Wales was void for the Consideration was void and so the Consideration being real was false And in some Cases a Consideration personal if it be false shall destroy the Patent if it be future and executory as if the King Grants Lands to J.S. ea intentione that he shall pay to J.D. 10 l. Now if he do not pay it the Patent is void and the Estate given by it void also It hath been Objected by Godfrey That by this Surrender the Patent was cancelled and so the parcel of the Term which was assigned to Hagget was defeated and avoided forasmuch as the Original Letters Patents out of which the Estate of Hagget was derived are cancelled and so there is a good Surrender and then the Consideration is true especially forasmuch as Hagget being Assignee but of parcel of the Term cannot have a Constat by the Statute of 4 E. 6. As to that I conceive That the Assignee of part of the Interest may have a Constat by that Statute notwithstanding the Surrender of the Letters Patents and the cancelling of them and for that matter the difference is If the Roll remains a Constat may be although that the Patent be cancelled See Brook Patents 89. 32 H. 8. If a Vacat be entred upon the Roll then no Constat can be afterwards and therefore in Sydnies Case the Assignee could not have a Constat because there was a Vacat entred upon the Roll. But a Constat had before any Vacat entred upon the Roll such a Constat is good notwithstanding the Vacat afterwards And it doth not appear that any Vacat is entred upon the Roll so for any thing that appears Hagget may have a Constat and then his Interest is saved to him and then the Surrender is void and the Consideration false and although there be other Considerations in the Letters Patents which are true and good yet that shall not help the matter For if any part of the Consideration be false the Patent is void in all and so it was holden in Manxell's Case cited before and so be prayed Iudgment for the Plaintiff Egerton Sollicitor to the contrary Where the words ex certa scientia are not put in Letters Patents they shall be intended to be made at the suggestion of the Patentee and so the Grant shall be taken beneficially for the King and strictly against the Patentee But where such words are put in the Letters Patents there the Grant shall be taken beneficially for the Subject These words Ex speciali gratia imply the bounty of the King certa scientia excludes all ignorance and mero motu shew the voluntary and liberal benevolence of the King without suit of the party and where the words in such Letters Patents are general they shall be construed liberally for the Subject but with limits and bounds that nothing pass in such case but such things which are aptly signified by such special words as to pass two things where the meaning of the King was to pass but one And if the Patent be conceived utroque modo tam ex certa scientia c. as upon the suggestion of the party If the Suggestion be in any part false the whole Patent is void for the Suggestion extenuates the force of the other words Juris forensis est si quid falsis precibus obtentum acquirenti non proderit and to that purpose he cited the Case 18 Eliz. Dyer 352. before cited And he conceived That the Lease made by Queen Mary is utterly void 1. Because the first Lease of Record is not recited 2. If the same shall be good the Queen should accept a Surrender where she knew not of it and so the Patent should enure to divers Intents 3. This Lease is made by general words that is Of all the Lands in the Parish of St. Cuthberts For these general words may be well satisfied with the Lands which the King hath in possession and therefore they shall not extend to the Lands which are now in Question of which the Queen at the time of the Grant had but a Reversion and first I conceive That general words without any restraint or limitation will pass nothing As if the King pardons all
Demands or Grants Omnia terras tenementa sua But general words qualified with a restraint where the Limitations are effectual As if the King Grants Omnia terras tenementa sua in D. which he hath by the Attainder of J.S. or which were the possessions of such dissolved Monasteries such Grants are good And where the Case is That Queen Mary hath the Lands in possession of the annual value of 19 l. and other Land there in Reversion of the annual value of 6 l. and then she Grants Omnia terras tenementa nostra rendring 19 l. per annum I conceive That upon these words the Land in possession only passeth because that the said general words may be aptly served and satisfied with the Lands in possession if no other Lands pass And I agree That this word Nostra extends as well to the Lands in Reversion as to Lands in possession but most properly to Lands in possession for Land in Reversion cannot dici simpliciter Nostra but quodam modo tanquam terra revertens and not to take the natural profits of it for the Termor hath such properly that he shall have an Action of Trespass Quare clausum fregit But the intent and meaning of the Queen is to be regarded and that is the surest way to have right intelligence of the Grants of the King For here the Queen hath reserved but 19 l. Rent which is the proper and ancient Rent of the Lands in possession and if Lands in Reversion should also pass the Rent of which was 6 l. per annum then upon the whole Grant but 19 l. being reserved the Queen should lose 6 l. per annum of her ancient Rent which should be contrary to the intent and meaning of the Queen and the intent of the Grantor even in the Case of a Subject shall direct the construction of Grants As 9 H. 6. Br. Grants 5 by Babington A Man grants Common in his whole Lands he shall not have Common in his Orchards Gardens or Meadows for such was the meaning of the Grantor a fortiori in the Case of the King. It hath been argued That the former Lease ought not to be recited because that after the first Lease made by King Henry the 8th the Inheritance hath been in a Subject that is the Bishop of Bath and Wells but the same is not so For if the King makes a Lease for years and afterwards Grants the Reversion upon Condition which after is broken and so found by Office by which the Reversion is reduced to the King If now the King will make a new Lease he ought to recite the former Estate notwithstanding the mean grant of the Reversion or else such second Lease is void Another matter hath been Objected wherefore the former Lease ought not to be recited and that is because it is determined by surrender in Law before that the new Lease takes effect Sir the same is not so for the former Lease is in being as the Case betwixt Fulmerston and Steward 1 Mar. Plow Com. 106. upon the Statute of Monasteries 31 H. 8. See the words of the Statute whereof and wherein any Estate or Interest for years at the time of the making of any such Lease had his being or continuance And an Abbot made such a Lease to one who had a term for years of a former Grant although here be a Surrender yet this Case is within the said Statute and the said former Lease shall be said to have his being at the time of the making of the later Lease and the Surrender shall not be said so to preceed the making of the Lease but that the former Lease shall be said in Esse at the time of the making of the later Lease And in our Case it shall not be taken for any Surrender for then the Queen shall lose 6 l. of her ancient Rent and Revenue and always when the Title of the King and of the Subject concur the Title of the King shall be preferred as 43 E. 3. The King Lord Mesne and Tenant The Tenant pays his Rent at the day to the Mesne before Noon and then the same day before Night the Mesne dieth his Heir within age the King shall be paid the Rent again for here the Title of the King and the Subject concur together at one time and in that the King shall be preferred and so he prayed Iudgment for the Defendant And afterwards at another day the Iustices declared their Opinions and by Wray Chief Iustice We all agree That the first Lease ought to be recited and the reason which hath been urged against that point hath reduced us to be of that Opinion scil That the second Lease was made to the first Patentee and the King doth not make the recital but the party ought to inform the King of all former Estates of the said Lands and that he might well do for he is well knowing of them and although that the Reversion after the first Lease made hath been conveyed to a Subject the same is not material here forasmuch as the second Estate is made to him who had the first Estate and might know whether the first Estate were determined or not Also by the re-purchase the King is in Statu quo prius Gawdy Iustice although that the former Term be drowned by the taking of the second Lease yet it was in being at the time of the taking of it as it is holden by Bromley in the Case of Fulmerston and Steward It is determined by the second Lease and yet it was in being at the time of the making of it Fenner Iustice to the same intent Clench Iustice If the Grant of the Queen shall enure to two intents then the Queen should lose 6 l. per annum of her ancient Revenue It was agreed by all the Iustices That the general words in as much as they are restrained to a certainty would pass the thing si caetera essent paria contrary if they had remained in the generalty and afterwards Iudgment was given Quod querens nihil Capiat per Billam CCCXXXVIII Trin. 32 Eliz. In the Common Pleas. 4 Len. 233. A Man 30 Eliz. made a Feoffment in Fee to the use of himself for life and afterwards to the use of his Son and his Heirs The Father and the Feoffees before issue for Mony by Deed granted and enfeoffed J.S. and his Heirs who hath not notice of the first use The Tenant for life hath issue and dieth the issue entreth Glanvil the use limited to the first Son is destroyed for without regress of the Feoffees it cannot rise and it is gone by their Livery See the Case in Plowden 349. and also he vouched the Case of the Earl of Kent where by the Release of the surviving Feoffee 2 Roll. 797. Plow 347. a Sleeping-Vse was destroyed and could not after be revived Harris the use may rise without entries of the Feoffees and he put a difference between an
use created before the Statute and a use created afterwards for in the first Case they ought to enter and if they be disabled by any Act as in the Case between Gascoign and the Earl of Kent it shall never rise but in the later Case the whole authority and confidence is by the Statute taken out of the Feoffee and the contingent use shall rise without aid of the Feoffees by the operation of the Law for there the Land is bound to the Vses and charged with them As upon a Iudgment in a Warrantia Chartae the Land of the Defendant is bounden pro loco tempore and according to the Common experience in Conveyances for payment of the Kings Debts as in the Case between Proctor and Dennis The Debtor of the King makes a Feoffment in Fee unto the use of himself and his Heirs until he makes default of such a payment to the Queen at such a day and upon default to the use of the Queen and her Heirs Cowper There needs no Entry of the Feoffees and he put the difference put before by Harris betwixt a Vse created before and a Vse created after the Statute and now the Feoffees have not any power to revive or to stand seised to such Vses but are only as Instruments to convey the Vses For the Vse is created upon the Livery and is transferred by the Statute if the person to whom the Vse is limited be capable of it at the time of the limitation but if not the Law preserves it until and it cannot be by any means prevented and he cited the Case 30 H. 8. Br. Feoffments to Vses 50 and there is a great difference betwixt a Vse limited before and after the Statute For now after the Statute the Feoffees by reason of their seisin cannot be vouched for they have not such a Seisin whereof they may make a Feoffment and he put the Case between Cheny and Oxenbridge Cheny leased to Oxenbridge for 50 years and afterwards enfeoffed Oxenbridge to the use of Cheny himself and his Wife for their lives with divers remainders over And it was adjudged in the Court of Wards That by the Feoffment the Term is not extinct and he put the Case of the Lord Pagett adjudged in the Kings Bench. A Feoffment was made to the use of the Feoffee for life the Remainder to him whom the Feoffor should name at his death in Fee and the Feoffor and Feoffees for good Consideration levy a Fine to a Stranger and afterwards the Feoffor nameth and dieth The party named by the Feoffor shall have the Land notwithstanding the Fine c. Beamount the contingent use is here utterly destroyed by the Feoffment aforesaid and it appeareth by the preamble of the Statute of 27 H. 8. of Vses That the motives of that Act did not favour Vses but it was their meaning utterly to root them out And if contingent Vses which are not nor can be executed by the Statute should stand in force the mischief should be that no Purchasor should be secure of his Purchase but should be in danger of a new born Vse not known before And he grounded his further Argument upon the reason of Manwood and Dyer Where a Man makes a Feoffment in Fee to the Vse of himself and his Wife which shall be and afterwards he and his Feoffees and those in Remainder make a Feoffment to divers other new Feoffees and to new Vses and afterwards he takes another Wife and dieth The said Iustices were of Opinion That by the said Feoffment the contingent Vses were destroyed For when the Estates which the Feoffees take is taken away which was the root and foundation of the Vses and the branch and fruit of the said Tree it necessarily followeth that they also be taken away and also because the Feoffees by their Livery are barred for to enter for to re-continue the Estate would continue these Vses they also are gone and extinguished Yelverton I conceive that notwithstanding the Feoffment that the Vse shall rise in his due time according to the limitation of it c. CCCXXXIX The Serjeant's Case Mich. 32 Eliz. In the Common Pleas. TEnant in tail and he in the Remainder in Fee joyn in a Grant of a Rent-charge in Fee to the issue of Tenant in tail a year before the Statute of 27 Eliz. of fraudulent Conveyances and afterwards the Tenant in tail and he in the Remainder sell the Land and afterwards a Praecipe is brought against Tenant in tail who voucheth him in the Remainder who voucheth the Common Vouchee and so a Recovery is had and seisin accordingly The issue in tail dieth without issue Tenant in tail dieth the Vncle distraineth for the Rent Glanvil Serjeant argued That this grant of the Rent is altogether the grant of the Tenant in tail and that nothing passed from him in the Remainder and that it doth enure as one entire Grant and not as several Grants As where Tenant for life and he in the Reversion joyn in a Lease it is one entire Lease and the Lease of them both and they shall both joyn in an Action of Waste But admit that here are several Grants yet the Estate out of which the Rent was granted continuing the Rent shall continue also And now the Recoveror comes in the Post and in the affirmation of the Estate of Tenant in tail and the Remainder is utterly defeated and destroyed by the Recovery and the Rent always issueth out of the particular Estate and he cited Littl. 125. If a Rent-Charge be issuing out of Land and the Tenant of the Land leaseth the same for life and afterwards the Rent is granted over now he who hath the Freehold ought to attorn scil the Tenant for life for a Rent-Charge lieth always upon the possession and if Tenant for life granteth a Rent-Charge and afterwards makes a Feoffment in Fee the Rent shall continue until the possession be recontinued c. Harris Serjeant contrary This Grant is the Grant of them both scil of the Tenant as long he hath issue of his Body and afterwards it is the grant of him in the Remainder Where a Man derives his Interest from two the one being a particular Tenant the other a Recoveror or a Remainder in Fee the Donee takes of each of them that which he may lawfully give and no more and the particular Estate being then ended the Donee shall be then accompted in by him in the Reversion c. See 2 E. 4. 1. And he vouched the Case of the Lord Mountjoy The Lord Mountjoy took to Wife a Woman Enheretrix she had issue and so he was intituled to be Tenant by the Curtesie and acknowledged a Statute and afterwards he and his Wife levyed a Fine and died Now the Conusee shall hold the Land discharged of the Statute for after the death of the Husband the Conusee is in by the Wife only and so paramount the charge Also he said That this Grant of
Rent 11 H. 7. 13. 21 H. 6. 24. 14 H. 8. 35. So where the Successor accepts of a Rent upon a Lease made by the Predecessor 37 H. 6. 4. 8 H. 5. 10. 4 E. 4. 14. The same Law in Exchanges and Partitions If the Wife accepteth of Dower of the Land which her Husband hath taken in Exchange she shall be barred of that Land which her Husband gave in Exchange 6 E. 3. 50. 15 E. 3. tit Bar. 125. 12 H. 4. 12. c. And in all these Cases where there is an Agreement and therein an Agreement implyed scil An Agreement to the Lease and a Disagreement to have the Possession c. And so Agreement to the Land received in Exchange and Disagreement to the Land given in Exchange and all that by word and act in pais And so here in these Cases Estates are affirmed and entred and benefit of the possession waived and refused So it is also of a Right and Title of Action 21 H. 6. 25. The Lord entituled to have a Writ of Right upon Disclaimer accepts a Rent of the Tenant Now he is barred of his Action 13 Ass 3. The Disseisee accepts homage of the Disseisor it is a good bar in an Assise 21 Ass 6. Pendant a Cessavit the Tenant aliened the Lord accepted the Services of the Alienee his Action is gone 11 E. 3. tit Dower 63. A Woman entituled to Dower accepteth Homage of the Ter-Tenant the same is a Bar of her Dower And as it hath been said of Entries and Actions of which a Man may refuse the benefit by word and Acceptance in pais So is the Law also in Cases of Estates vested if the party doth not Enter Husband and Wife Tenants in special tail the Husband levyeth a Fine to his own use and afterwards Deviseth the Land to his Wife for life the Remainder over rendring Rent the Husband dieth The Wife Enters and pays the Rent now she hath waived her Remitter 18 Eliz. Dyer 351. 10 E. 4. 12. The Tenant enfeoffed the Lord and a stranger and made Livery to the stranger although the Freehold vested in them both yet if the Lord disagreeth to the Feoffment in futuro he cannot enter and occupy the Land and he may distrain for the services c. If a Disseisin be made to the use of the Husband and Wife and the Husband agreeth to it the Freehold vests in the Husband and Wife but the Wife is not a Disseisor and after the death of the Husband she may disagree unto the Estate by word 12 E. 4. 7. And also an Agreement shall make her a Dissessisor See to the same intent 7 E. 4. 7. and Litt. 129. Although that in such and the like Cases the Estate vests in some manner yet it shall never vest to the prejudice of the party without an express and actual agreement And that disagreement to an Estate in such manner vested may be in pais and by word seems by a Clause in the Statute of 27 H. 8. cap. 1. Where a Ioynture is made after Marriage there the Wife after the death of her Husband may at her pleasure refuse her Ioynture and have and demand and take her Dower her Writ of Dower or otherwise scil by word and Acceptance in pais And if in a Writ of Dower the Tenant will bar the Demandant by Ioynture made during the Coverture he ought to say Quod intrando agreeavit See Litt. in Dower ad Ostium Ecclesiae If the Wife entreth and agreeth the same is a good Bar in Dower Littl. 8. Now in the principal Case When the Wife agreeth to the Devise of Thoby and the same is executed by entry now the same is a full Disagreement to Hinton It was afterwards Objected That although it be clear That the Wife may waive her Ioynture in Hinton by word and act in pais without matter of Record Yet some conceived That this manner of Devise of Thoby is void by the Statute of 32 34 H. 8. The Statute enables to Devise two parts or so much as amounts to two parts in value at the time of the death of the Devisor for then the Will takes effect which cannot be here in this Case for at the time of his death the Ioynture of Hinton was in force and so continued until the disagreement afterwards Also the words of the Statute are Having a sole Estate in Fee-simple but here the Devisor had but a Reversion in Fee expectant upon an Estate tail c. As to the first Point it was answered That the Disagreement doth relate to the death of the Husband and is now as if no Ioynture had been made ab initio And here the Heir shall have Hinton by descent and he shall be Tenant to every Praecipe and if it be brought against him the same day that the Husband dieth the Writ shall be good by the Disagreement after and the Heir shall have his age c. And if the Father had been a Disseisor and had Conveyed the Land ut supra now by this argeement of the Wife the Heir shall be accounted in by descent and thereby the Entry of the Disseisee taken away And if the Heir in such case taketh a Wife and dieth by this disagreement after the Wife shall have Dower of Hinton and hath such a possession quod faciet sororem esse haeredem And if that the same day that the Husband dieth the Heir levyeth a Fine or acknowledge a Statute or maketh by Indenture enrolled a Bargain and Sale of it by the said agreement Hinton shall be subject to such Acts of the Heir All which Cases prove That the Devisor upon this matter at the time of his death had a sole Estate in Feesimple in the Mannor of Hinton and that the third part in value descended to the Heir and so the Devise of Thoby good It hath been Objected That here is not an immediate descent of which the Statute of 34 H. 8. speaks And here the Mannor of Hinton doth not descend immediatly for there was a mean time between the Death and the Disagreement and so the Will void for Thoby To that it was answered That this word immediatè sumitur dupliciter re tempore and shall be taken here immediatè re statu scil That a Reversion or a Remainder dependant upon a particular Estate in possession which is mean shall not be allowed for the third part descended For a Descent which takes away an Entry ought to be immediate for a mediate descent doth not take away an Entry Litt. 92. as the descent of a Reversion or Remainder And if this word Immediatè had not been in the Statute Then the Statute might have been construed That it should be sufficient to leave the third part to descend in Reversion or Remainder but this word Immediatè makes it clear And therefore the third part which descends ought to descend immediatè in re Statu Yet a Reversion upon a Lease for
years or for life with the ancient Rent reserved is sufficient and is a good and immediate descent of the third part And this word here immmediatè to be construed ratione temporis is a frivolous Construction for the wore Descent implys that For there cannot be an expectant and future descent For descent is clearly immediate without mean time But here in this case the word immediate is to be taken in both senses et re et tempore For by the Relation of the Waiver it is as if no Ioynture had been made and the Heir is to have the profits of the Land from the death of his Ancestor And so the descent of Hinton immediatè et re et tempore And that the same time hath had such reasonable Construction is now to see The Statute of 18 H. 6 Cap. 1. is That the Chancellor shall make Patents to bear date the same day that the Warrant was made and not before It hath been taken That if the Patents bear date after the Warrant entred they are good Which see 19 Eliz. Plow Com. 492. in Ludford and Gretton's Case The Statute of Acton Burnel is That if the Extendors extend the Land too high statim respondeant illi qui fecerunt extent This word of time statim shall not be construed that the Extendors shall pay presently but that they shall pay without delay i.e. at the day limited in the Statute See 2 H. 4. 17 18. It hath been Objected That it is a great inconvenience that the King for his third part should attend the pleasure of the Wife the time of her Election and therefore the Will shall be void But the same is no inconvenience for the Ioynture never was actually in the Wife to her prejudice until she entred into the Land c. And now by the Waiver the Ioynture is avoided ab initio to all intents as if it never had been made So as the King shall be answered of the entire profits after the time of the death of the Husband and may seize the whole Land presently without staying the Election of the Wife or taking notice of her Ioynture And so are the words of the Diem clausit Extremum Tibi praecipimus quod omnia Terras Tenementa of which c. et ea salvò Custodias donec aliud tibi praeceperimus And that may be before any Office found And those who have any Interest in the Land or otherwise may shew the same upon the Traverse of the Office or in the Court of Wards and have allowance of it And so there is not any prejudice to the King No more than when Tenant in Knight-service Deviseth all his Lands There Division is to be made and the King hath not any prejudice by it In the true Construction of this Statute it is very necessary to consider the intention and meaning of both Statutes And it is certain That the said Statutes were made for the benefit of the Subjects to enable them to dispose of their Lands for the preferment of their Wives advancement of their Children and payment of their Debts whereof they were restrained by the Statute of 27 H. 8. of Uses The Savings in the said Statute are for the benefit of the King and the Lords So as Provision is made not only for the benefit of the Subjects but also for the profit of the King and other Lords The disability of the subjects to dispose of their Lands to the intents aforesaid appears in the Preface of the Statute of 32 H. 8. And the favour and grace of the said King towards his Subjects to supply the necessity of Subjects appeareth by the Prefaces of both Statutes The later Statute is an Explanation of the former in divers Points The first Statute to persons Having Mannors c. Ex vi termini includes Tenants in tail Ioynt-Tenants Enfants Idiots Feme-Coverts but the same is explained by the later Act to be of Feesimple only and of sole Estates and to persons of sound memory not of Coverture And so If the Kings Tenant Deviseth all his Land the same is good for two parts of it so if he Devise all which he hath in Feesimple and leaveth the third part to descend in tail This Statute shall be taken strict against the Heir For the whole Scope and Intent of the Parliament was to bind the Heirs and to enable their Fathers to dispose so as the third part be saved to the King and the Lords And that is manifest For the Estates made by Collusion are preserved and by an express Clause in the Statute kept in force against the Heir but void as to the Lords As to certain Readers Cases which have been put to prove That these Statutes ought to have a strict Construction I conceive Nihil operatur A Man seised of one Acre by Disseisin and of two Acres by good Title all holden in chief by Knight-service Deviseth the two Acres which he hath by good Title and dieth so as the Acre which he hath by Disseisin descends to the Heir being within age the King seiseth the third Acre is devested by Eigne Title the Devise of the other two Acres is good against the Heir for it is within the express words of the Statute Having a sole Estate in Fee-simple And yet by another Branch of 34 H. 8. the King for his time shall have recompence out of the other two Acres and he agreed the Law to be so but the same doth not conclude our Case A Man seised of two Acres in Socage and of one Acre holden by Knight-service in Chief of equal value is disseised of the Acre holden in Chief and Deviseth the other two Acres in Fee the same is a good devise for it is within the first branch expresly Having a sole Estate in Feesimple and not having any Lands holden by Knight-service for during the disseisin he hath not the Land whereof he was disseised and therefore the devise is good for the benefit of the Devisee and the Lord is not at any Mischief For the Disseisee notwithstanding the Disseisin remains Tenant of the Lord as to the Avowry and the Lord shall have the Wardship of such Heir and may enter upon the Disseisor and so have a third part And that Case was put out of Gilbert's Reading A Man seised in Fee of two Mannors of equal value holden by Knights-service in Capite and a third Mannor of the same value is conveyed to him by Deed of Bargain and Sale acknowledged and before Enrollment he deviseth the two first Mannors to J.S. in Fee and dieth and afterwards the Indenture is enrolled yet the devise is not good for the said two Mannors by any Relation of the Bargain and Sale enrolled That Case may well be agreed to be Law For the Estate doth not vest in the Vendee before Enrollment and so the Estate was not perfectly in the Devisor at the time of the Will For although that the Enrollment shall relate
141. Upon a Statute Merchant for that it had but one half of the Seal good A. 228 229. Lies to discharge the Land if the Conusor taken by Capias be let at large by the Conusee his consent A. 230 231. B. 96. To avoid Execution upon a Recognizance for that the Debt is attached in London A. 297. Upon a voluntary Escape by the Sheriff it lies B. 119. By one Bail to be relieved for that the other Bail was taken by a Capias and discharged by the then Plaintiff C. 260. For one in Execution at the Suit of an Administrator durante minori aetate for that the Infant is come to Age C. 278. Averment A Demurrer need not to be averred A. 24. Inducement to an Action need not to be precisely averred A. 123 124. A consideration to make a Bargain and Sale may be averred though not mentioned in the Deed A. 170. Where against a Record return of a Sheriff Deed enrolled A. 183 184. None against a Bishops Certificate A. 205 206. Where necessary to aver the continuance of the particular Estate A. 139 255 66 281. B. 50 94 95. Where want of such Averment is aided by Intendment A. 281. C. 42 43. Devise to A. may be averred to be any one of that Name B. 35. Where he who pleads must aver all things to make good his Plea or the other party must shew it C. 40 to 43. Ancient Demesne For what Goods only they are priviledged from Toll A. 232. B. 191. Fine levied thereof avoidable by a Writ of Deceit A. 290. Pleading thereof A. 333. B. 190 191. Authority Shall be strictly pursued if not coupled with an Interest A. 74 285 286 288 289 bis Where Authority is reserved by Statute or Deed to make Leases If Leases in Reversion may be made C. 134. B. Bailiff SHeriffs Bailiffs shall not be prejudiced by the mis-return or not return of the Sheriff A. 144. What power a Bailiff of a Mannor hath B. 46. Bail. Discharged upon the Principal his Offer to render himself A. 58. No Scire facias lies against them until a perfect Judgment be against the Principal B. 1 2. Cannot be charged by any Custom without a Scire facias B. 29 30 87. If to a Scire facias against them they may plead Error in Fact in the first Judgment B. 101. A Lord shall find Bail ad solvendum debitum upon an Action removed out of London B. 173 174. Bail upon a Writ of Error is not to render the Body being then in Execution but to pay the Debt C. 113. Baron and Feme To what intent the Husband is the Femes Assignee A. 3. Where they shall joyn in Trespass A. 105. The Wife served with a Sub-poena the charges to be given to her Stat. 5 Eliz. cap. 9. A. 122 123. They are at Exigent no Supersedeas shall be received for the Baron without the Feme A. 138 139. The Baron cannot recover things in Action due to the Wife but must first take Administration A. 216. Leases made by the Baron of the Femes Land the Lease is void after their deaths A. 247. What Conveyance of the Wife of Lands given by the Baron is within the intent of the Statute 11 H. 7. A. 261 262. C. 78. They being Tenants in Tail joyntly the Baron suffers a Recovery this binds not the moiety of the Feme A. 270. If an Exchange by them of the Wives Land bind the Feme A. 285. Trover by the Feme and Conversion by the Baron and Feme Action must be against them both A. 312. Payment to the Feme is no good Bar A. 320. What act of the Baron is a breach of the Condition annexed to the Femes Estates B. 35 48. What value the Parapharnalia of a Viscounts Wife in Jewels is B. 166. Devise that she shall take the profits until the Son come of Age her second Husband surviving her shall not take the profits B. 221. C. 78. cont If an Interest be devised C. 9. Lands given to the use of the Wife for life remainder to the Heirs of Baron and Feme the Remainder is executed for a moiety C. 4. The Feme cannot give Licence to one to do a Trespass in the Husbands Land C. 267. By Agreement of the Baron to a Desseisin to the use of Baron and Feme the Free-hold vests in them both but the Feme is no Disseisor C. 272. Bargain and Sale. By Parol of Houses good and the manner thereof A. 18. There must be a Consideration for the doing thereof but it is not traversable A. 170. Of Trees Habend Succidend infra 20 annos If the Bargaince may cut them after 20 years A. 275. This Conveyance works by the Statute of Uses B. 122. C. 16. Of Trees during life of the Lessor the Lessee must cut all at one time in one Close and cannot leave off and begin again C. 7. Give grant agree confirm covenant all work by Bargain and Sale and by the Statute of Uses as well as the words Bargain and Sale C. 16. Bar. Where non damnificatus is a good Bar e contra A. 71 72. Must be good to a common intent and must be confest avoided or traversed or conclude the Defendant by Estoppel A. 77. By an Obligation in Bar of Assumpsit how to be pleaded A. 154. Non Dimisit and what advantage may be taken thereupon A. 192 206 207. To an Action brought by a Sheriff against a Prisoner for escaping Bar that since the escape the Plaintiff had acknowledged satisfaction A. 237. Non Concessit per liâ—eras paten A. 183. Plene Administr before notice where good A. 312. Ejectione Firme a good Bar in Trespass against the same party A. 313. C. 194. Judgment in Trespass a good Bar in Appeal A. 319. Good to common Intent A. 321. What is a good Bar for a time though it destroy not the Action for ever A. 331. Where Non concessit or that riens passa per le fait must be pleaded B. 13. If in Slander for calling one Forsworn it be a good Bar to say the Plaintiff did not depose B. 98. No good Bar to a Contract that a Stranger became bound for the Mony B. 110. To an Action quod Waren fregit no Bar to say it is the Defendants Free-hold for it may be so and that the Plaintiff hath Warren there too B. 202. If a good Bar in Assumpsit that the Plaintiff discharged the Defendant B. 203 204 214. The like in Covenant C. 69. A Stranger is bound that Lessee for years shall pay his Rent for his Farm It is a good Bar that the Lessor entred C. 159. Bastardy The manner of pleading and taking Issue therein A. 335. By pleading of the Bastardy specially how Bastard it shall be tryed per Pais C. 11. Or if the Bastard be not party to the Writ C. 11. Bishop Where he shall be tryed per Pares A. 5. What Lease shall bind the Successor A. 234 235. Is no Clerk
Lease cont of Lands proper to the Dean only B. 176. Debt For foreign Mony may be demanded either by Foreign or English Names A. 41. Upon a Recognizance in nature of a Statute A. 52. B. 14. Upon a void Award is good if the Defendant do not shew that part that makes it void A. 72 73. For a nomine poenae A. 110. For a pain set in a Court Leet A. 203 204 217 218. Upon the words Covenant and Grant lieth A. 208. Where it lies before the last day of payment A. 208. For the surplusage of an Account A. 219. Lies by an Administrator against an Executor for Arrearages of an Annuity A. 224 225. Lies upon a Recognizance made before the Mayor of London A. 284. If Debt lies by the Grantee of a Rent reserved by a Lease to which Grant the Lessee attorned A. 315. Under 40 s. in the Kings Bench for Costs in a Hundred Court A. 316. Against an Heir shall be in the Debet Detinet B. 11. Debt lies upon a Judgment or Recognizance although the Plaintiff have Judgment upon a Scire Facias B. 14. For Rent lies although in the Declaration it be alledged that he entred before the commencement of his Lease B. 98. Lies for the Grantee of Post-Fines and for a Nomine poenae by the Heir B. 179. cont A. 249 250. This Action lies not but where a certain sum is agreed on C. 161. Against Baron and Feme for a Debt of the Feme must be in the Debet Detinet C. 206. For Corn in the Detinâ—t and the Plaintiff shall recover the value of the Corn C. 260. Deed. Where the Habend ' may controul the Premisses A. 11 281 318. B. 105. What is a good delivery thereof what not A. 140 152. If a primo deliberat ' or non est factum may be pleaded of a Deed enrolled A. 183 184 C. 175 176. Where in the Premisses of the Deed two things are granted Habend ' the one for years what Estate the Grantee hath A. 281 282. Raisure of a Deed does not avoid it if it be in a part not prejudicial to the party who would avoid it A. 282. Indenture between A. of one part and B. and C. his Wife and their Children A. 287 288. Must be pleaded sealed and delivered or by words tantamount A. 310. In Indentures the intention of the parties may be argued Deeds Poll shall be taken strongest against the Grantor A. 318. B. 47 192. None can take by Indenture but those who are party to it A. 287 288. B. 1. C. 34. The effect and meaning of them regarded where the words are doubtful B. 17 219 151. Where a Deed may have quasi two deliveries B. 192. A Deed once perfectly executed as by enrolment c. cannot pass any thing by Livery C. 16 125. Actual indenting and both parties Seals mentioned to be put makes an Indenture C. 16. Where a Deed in the Premisses leaseth Lands to one Habendum to his Executors and Assigns for 40 years what Estate the Lessee hath C. 32 33 34. The date of a Deed not material C. 100. Demand See Request The King need not demand a Rent to avoid a Lease A. 12. B. 134. C. 125. A Legacy not payable without demand A. 17. Rent payable at Michaelmas or within the space of 12 days prox post aliquod festorum vel dierum when it is demandable A. 142. The difference of demand in a Writ De advocatione duarum partium Ecclesiae duabus partibus Advoc Ecclesiae A. 169. What is demandable in a Writ of Entry A. 169 170. Whether demand at one day for Rent due several days before be good A. 190 191 305. Whether a sum in gross must be demanded as Rent A. 269. The manner to make a demand of a Rent A. 305. He who demands Rent as Attorny need not tell his name nor shew his authority C. 224. Demurrer To Evidence in Ejectione Firme A. 269. All matters well pleaded are confessed by Demurrer C. 200. Upon Demurrer to a Challenge there neeeds no Serjeants hands C. 222. Departure What is what is not A. 32. Count of a Lease without Deed no Departure by Replication to say the Lease was made by Deed A. 156 204. C. 203. Ejec vers 5. One pleads to the Issue the others plead specially no Departure for the Plaintiff to deduce a Title to himself and say that he was seised until by the 4 disseised B. 199. First to make a Title by Common Law and reply a Custom to uphold it is a Departure C. 40. Devastavit What Sheriff may retorn it and what Sheriff is estopped to retorn it B. 67. C. 2. If Executors release a forfeited Bond of 100 l. and receive only 50 l. the whole is Assets C. 53. It is a personal Tort and the Executors of the Executors shall not be chargeable with the first Executors Devastavit C. 241. Devise See Legacy That Executors shall sell Lands who sell by Fine A. 31. C. 119. If such Executors may â—ell by parcels A. 34 60 260. The construction of an Habendum in a Devise A. 57 58. What shall be a Devise in tail for life or in see A. 57 58. B. 69. C. 55. That his Son and an Executor shall take the profits until another comes of Age gives the Son see A. 101. C. 55. To the discretion of the Devisee A. 156 224 283. B. 69. That Executors shall sell a Reversion who sell by Parol yet good and the Devisee is in by the Will A. 148. C. 119. To three Sons and if any die the Survivor to be his Heir how adjudged A. 166 258 259. C. 262. All my Lands and Tenements if it passeth a Reversion after a Lease for life A. 180 181. If by the Stat. of Wills an Estate pur auter vy may be devised A. 252. A Use may be raised by Devise and the Consideration is presumed by Law A. 254 257. If the Devisee die in the life of the Devisor the Heir of the Devisee shall take nothing A. 254. Of Capite Land and Soccage A 267. B. 41 42. C. 267. Vide the Statutes 32 34 H. 8. To A. if she do not Marry Remainder in tail A. 283. That if my Son A. die without Issue that then my Sons in Law shall sell how adj A. having a Son who dies without Issue A. 285 286. Feoffment to the Uses in his Will which deviseth that his Feoffees shall be seised to Uses a good Devise A. 313. That Lessee for years shall hold after the Devisors death for 30 years accounting the Remainder of the first Term how adj B. 33 34. Devise to A. may be helped by Averment B 35. C. 79. To the Father and his eldest Issue Male B. 35. Things individual cannot be devised within the Statute of Wills If part be Soccage and part Capite B. 41 42. That his Lands shall be sold for payment of his Debts the Executor shall sell 43 220. Devise that his
ad satisfaciend against him in his hands yet escape lies not A. 263. If it lies where the party was charged in Execution while he was Prisoner for Felony A. 276. It lieth not for escape of a Bail if no Scire facias issued against him B. 29 30. Was first given by equity of the Stat. W. 2. cap. 11. B. 9. No Costs upon non-suit in this Action B. 9. If the old Sheriff keep any Prisoner after he is discharg'd of his Office it is an Escape B. 54. If one escape upon an illegal Writ the Court will aid the Sheriff though he cannot deny to execute the Process B. 86. The Sheriff cannot seise the party who escapes by his consent B. 119. Escheat If a Remainder depending upon an Estate for life Escheat the Seigniory is extinct A. 255. Essoine In an Ejectione Firme adjorned A. 134. The Term in the eye of the Law begins the day of Essoines cont as to lay gents A. 210 211. In Quare Impedit B. 4 185. The office and force of an Essoine B. 4. If the Defendant appear and be essoined no Amerciament ought to be against him B. 185. An unnecessary and feigned delay C. 51. per Dyer Estoppel Count of a demise generally Defendant pleads nihil habuit in Tenementis the Plaintiff may estop the Defendant by pleading the Deed A. 156 204 206. Who shall take advantage of an Estoppel A. 157 158. The Jury ought to find it though the party hath not pleaded it A. 204 206. If Deed enrolled be an Estoppel to the party to plead Non est factum A. 184. Where the Court will take notice thereof if not pleaded A. 184. What Deeds made void by Statute are good by Estoppel against the party who made them A. 308 309. By matter of Record B. 3. Where one shall be estopped by a recital in a Bond Indenture c. where not B. 11. C. 118. What Estoppel made by the Ancestor shall bind the Heir B. 57 58. A Verdict for the Plaintiff upon a plene administravit estops the Sheriff of that County where the Tryal was to retorn nulla bona B. 67. By Deed indented B. 73. One seised in Fee takes a Lease of the Herbage of his own Land he is not estopped to claim Fee B. 159. No Estoppel by a Record if the Judgment be reversed C. 52. Jurors are not estopped by an Estoppel implied unless pleaded in the Record C. 209 210. Estovers Prescription for them within a Forrest A. 2. To a Messuage new built upon an old Foundation B. 44. What Estovers Lessee for years may take of common right C. 16. If Lessor grant Fire-boot Lessee may take Trees if there be no Under-wood C. 16. Evidence What Evidence may be given upon a Not Guilty in Trespass A. 301. C. 83. What upon a Nil debet in Debt for Rent B. 10. He who is in the affirmative must give Evidence first C. 162. Exception Count of a Demise of Demesne Lands and Evidence that the Demise was with an Exception yet good Evidence A. 139 140. Where in a Writ there must be a Forsprize B. 162. What may be excepted out of a Lease for years A. 49. De grossis arboribus crescen ' A. 61 116 117 246. Where a Praecipe shall demand a House with or without an Exception for part A. 252. Exchange By Baron and Feme who levy a Fine of the Land taken in Exchange the Feme may enter into her own Lands A. 285. Execution Where the Defendant taken by a Cap. pro fine shall be in Execution for the Plaintiff A. 51 276. The Defendant rendring himself shall not be in Execution unless the Plaintiff pay it A. 58. Execution shall be of the Goods which the Defendant had at the time of the Execution awarded A. 144 145. By Fieri facias good after the Defendants death A. 144. By Writ of Possession the Sheriff must turn all persons out of Doors A. 145. By Capias ad satisfaciend after Elegit retorned that the Lands were first delivered to others by Extent A. 176. The Sheriff upon a retorn Habendo may enquire the kinds of the Cattle if the Count or Avowry be incertain A. 193. One in Prison by Utlary against whom the Sheriff hath a Capias ad satisfaciend Escape lies not though the Sheriff do not charge him with the Capias ad satisfaciend ' A. 263. Stayed by Rule of Court after Judgment A. 276. Where the Defendant taken and in Prison for Felony is chargeable in Execution A. 276 277. B. 85 86 87. What are well executed not being retorned and what not A. 280. B. 49 50. But one Execution upon a joynt Praecipe in debt Secus upon a several Praecipe A. 288. After Execution sued the Defendant cannot sell his Goods bona fide A. 304. One attaint of Felony and also charged with Executions shall not be discharged of the Executions contra of Actions A. 326 327. B. 84 to 89. If the Execution be continued no Scire facias is necessary B. 77 78 87. In what Cases a Capias in Execution lay at Common Law and in what now per Statute B. 86 87. Capias lies against the Bail in B. R. and C. B. in a common Action and upon Audita Querela B. 88. If the Body of a Lord be liable to Execution B. 173 174. Executors Scire facias Executoribus c. without their names is good A. 17. How Judgment shall be against them where part only is found in Assets A. 67 68. Where Assets is found for part and after Goods come to the Executors hands how the Plaintiff must sue forth Execution scil by Scire facias A. 67 68. No plea against an Executor that the Executor was cited to appear to prove the Will and made default and that adm was com to the Defendant A. 90 91. Where Judgment shall be de bonis propriis where de bonis testatoris A. 94. The Executor gives his Bond for Mony a good Administration C. 111 112. Debtor makes the Creditor his Executor A. 112. What is a good refusal of Executors to prove the Will A. 135. Devise that Executors shall sell a Reversion sale by Parol is good and the Vendee is in by the Will A. 148. Debt by single Contract lies not against them though they do not demur but plead A. 165. Action by them de bonis asport in vita testatoris and the form thereof A. 193 194 205. One made Executor if he shall permit J. S. to hold a Term for three years when his power begins A. 229. By grant of Bona Catalla Goods of the Testators pass A. 263. Executor of Executor how to be named A. 275. In what case they shall recover Arrears of Rent in Fee by the Statute 32 H 8. 37. A. 302 303. Plene administravit before notice of the Suit the original being in a forein County A. 312 69. B. 60. The Executrix of the Debtee marries the Debtor she may have an Action for the
Debt against the Debtors Executor A. 320. They may have Error of an Utlary in Felony against their Testator A. 325. Good resolutions for their pleading of Statutes Judgments c. A. 328. 329. What Debts must be first paid 328 329. Are liable to account to the King. B. 34. The manner of prosecuting a Devastavit in a forein County against an Executor B. 67. If they plead plene administravit specially by paying Debts upon Bonds they must shew how the Bonds are discharged B. 155. What intermeddling with the deceaseds Estate makes one Executor of his own wrong B. 224. Conditional if he pay all Debts owing to the Testator to the other Executor C. 3. If Executors enter or claim generally it shall be taken to be as Executors and not in any other capacity C. 36. It is said that a promise cannot be good to bind an Executor if he hath not Assets C. 67. Sale of Goods by an Infant Executor is good and binds him C. 143. One Obligor makes the Surety his Executor who pays the Mony generally Quaere C. 197. How he must be sued who being Executor of his own wrong takes Administration C. 197 198. One Executor cannot give the Goods of the Testator to the other for nothing passes by such Gift C. 209. Release of one Executor binds both C. 209. Executor of Executor not chargeable with a Devastavit made by the first Testator C. 241. Exemption A Juror sworn at the Bar notwithstanding he produced his Charter A. 207. Ex gravi querela In London in what case A. 267. Ex parte talis In what case it lieth B. 93. Exposition of Words Dedi Concessi in a Deed A. 29. Where the word Or in a Deed shall be copulative e converso A. 74 244. Of the word eundem in a Grant A. 15. Divisus dividend in an original Writ A. 169. Of Adtunc A. 172. I agree to surrender my Lands spoken by Tenant at will A. 178. Of the word Tenement in Grants A. 188. Of the word Covenant in a Bill of Debt A. 208. Uterque in Indictments A. 241. Quousque A. 244. Suus A. 271. Right A. 271. Factum implies sealing and delivering A. 310. Exponere ad culturam gives no Estate in the Land A. 315. In portum ad portum all one A. 335. Covenant with two quo ibet eorum B 47. In manner aforesaid is a Devise B. 69. By the word Licet may be made a good allegation B. 108. C. 67. A mile is accounted in Law 1000 paces and every pace 5 foot B. 113. Assurance to what Conveyances it doth relâ—te B. 130. Selion of Land is uncertain B. 162. Puer if it relates to both Sexes B. 217 218. Firma C. 12 13. Whether the word Mille may be joyned to a Genitive or Accusative Case C. 94. Tenementum is of an incertain signification C. 102. Of the word until as a Lease until Michaelmas includes the Feast day C. 211 Curtillage quid C. 214. Where a word in the singular number includes the plural C. 262. Immediate C. 273 274. Term of years C. 112. Extent If it be well executed though not retorned A. 280. Executed though not retorned in what case it is a good Execution B. 12 13. Lessee for years may pay the Rent to the Extendor C. 113. Scire facias to remove the Conusee C. 155. If the Conusee can in any case be removed without a Scire facias C. 155 to 158. What kâ—nd of Interest is left in the Conusor during the Extent C. 156 157. If an Extent be avoided by a Prior Statute the puisne Conusee may enter when the other is satisfied C. 239. If a Debt be assigned to the King he shall have all the Conusors Land C. 240. By the Statute of Acton Burnel the Extendors are to take the Lands if they appraise too high and must pay the Debt statim But when that statim means vi C. 274. Extinguishment Of Rent by Entry what act amounts thereto A. 110. Estate for life extinct by a Fee coming to the same person A. 174. A Prescription of non decimand in a spiritual Person is not extinguished by the Lands coming to lay hands A. 248. If a Remainder depending upon an Estate for life escheat the Seigniory is extinct presently A. 255. Where an Action once suspended is extinguished A. 172 320 330 331. Of a Use A. 257 259. A Rent granted in Fee and that it shall be suspended during the nonage of every Heir A. 266. Executor of the Debtee takes to Wife the Debtor how adjudged A. 320. Where personal things once suspended shall be revived B. 84. Lessor mortgages his Reversion to the Lessee in Fee the Term is utterly extinct C. 6. Where a Warrant is suspended and may be revived C. 10 11. A Term for years comes to the Lessor as Executor and he dies the Term is revived C. 210 111. If Unity of possession in the King of Abbey Lands extinguish a Common C. 128. If Devisee of a Term remainder over purchase the Fee the Term is not merged C. 92 93. Condition of re-entry is not suspended by assigning part of the Land for part of the Term C. 221. By destroying a Reversion a Rent depending thereon is extinct C. 261. A Mesnalty extinct by the Lords purchasing the Tenancy C. 261. Extortion Against whom it lies and the several Statutes against it A. 295. C. 268. It must be set sorth in the Judgment whether any Fee or no Fee was due C. 268. F. Faux Imprisonment See Iustification FFaux Imprisonment lies if a Capias be made out of the Courts at Westminster to a County Palatine B. 89. Faux Iudgment Lies upon a Justicies not Error B. 34. Upon a Writ of Right Close prosecuted in nature of an Assise C. 63. Fee-simple Where it may be created without the word B. 27. C. 216. Devise that the elder Son shall take the Profits until the younger come of Age is a Fee conditional in the eldest C. 216. Feoffment Vide Vses Good by the words Bargain and Sell with Livery A. 25. Fine and Amerciament Upon alienation without Licence A. 8. B. 55 56. In what case a Vill shall be amerced for the escape of a Felon A. 107. C. 207. If a Pain upon a Presentment must be afferred A. 203 204 217 242. In what case a Steward may Fine in a Court-Leer A. 217 242. Grantee of Post-Fines if he may distrain for them and sell the distress A. 249 250. The manner of pleading in Trespass where the Defendant-justifies for such Fine A. 249 250. By what words such Fines pass A. 249 250. If a Defendant make several defaults in one Suit he shall be several times amerced B. 4 5. Fine set in a Court for a contempt in not retorning of Cattle in a Replevin B. 174. Debt lies for a Post-Fine by the Kings Grantee B. 179. cont C. 56 234. A Defendant may be several times amerced for several defaults in one Suit B.
and when Notice must be given to a Patron of a Voidance A. 32. C. 46 47. Where necessary to perfect an Assumpsit A. 105 123. Where Notice of a Surrender of a Lease must be given to him who hath the subsequent Estate C. 96. Nusance See Action sur case Where an Action lieth for stopping of new made Lights where not A. 168. Action on the Case lies for it by Tenant of the Freehold although he may have an Assise C. 263. B. 184. A. 247. Con. C. 13. Where it lies for turning a Water-Course from a Mill new erected on an old Foundation A. 44 45. Every continuance thereof is a fresh Nusance B. 103. C. 174. The difference of exaltare erigere stagnum in such Actions B 180 181. It is enough to say obstupavit viam without shewing how C. 13. For stopping a Water Course so that the Plaintiffs Land was drowned C. 174. O. Obligation GOod without words Obligatory or In cujus rei testimonium A. 25. C. 119. To perform Covenants If the Deed be void the the Obligation is single A. 282. Obligation to pay Mony within a Mannor where J.S. hath bona felonum if the Obligee be attainted J.S. shall not have the Debt B. 56. What words in the Condition make the Obligation void by 23 H. 6. cap. 10. B. 78. With a Condition against the Law is void Cont. if the Condition be only impossible B. 189. Conditioned that one shall not use his Trade in such a Parish is void B. 210. One is bound for the faithful Service of an Apprentice A Release made to the Apprentice is a discharge of the Bond C. 45. Where a Bond is I am content to pay Debt or Covenant lies C. 119. What Bond is joynt what joynt and several C. 206. Bond taken of one not bailable is void per Stat. 23 H. 6. C. 208. Obligation in ten Pounds to be levied by the Obligee of the profits of a Baillwick yet the Obligee may bring Debt C. 223. Made in France may be sued here C. 232. Occupancy Who shall be a special Occupant A. 310. C. 36. He who disseiseth Tenant pur auter vy who dies is a dispensor still and no occupant B. 121. None shall be an occupant but he in possession C. 36. It it shall be of a Use pur auter vy C. 35. Offices and Officer If a Steward of a Court may be deputed by Parol without Deed A. 228. What other Officer may be so deputed Ibid. Of what Office an Assise lieth Ibid. Vicar General of the Spiritualty Chancellor of A. Bishop what A. 312. The Office of Marshal of the Kings Bench and Marshal of England and who hath the Grant of them A. 320 321. If an Office ministerial may be granted in Reversion by any but the King C. 31 32. Office for the King. What Lands or Chattels shall be in the King by Attainder without Office found A. 21. B. 122 to 126 135 to 139 206 207. Or by alienation without licence A. 40. B. 126 135. C. 175. Must be pleaded under the Great Seal A. 65. To what purposes an Office is good not finding who is Heir Ibid. Upon Extent of Lease for years must find the certainty of the Term. B. 121. C. 204. In what case it may be traversed B. 122 to 126 187. C. 185 to 191. What Lands shall revest in the King by a Condition of re-entry before Office found of the Condition broken B. 134 to 145. C. 125 127. What a Common cannot have but by re-entry the King shall not without Office found B. 137. Of what force an Office is which is found after the King hath granted away all the Estate B. 138 to 145. C. 125 126 127. Upon assignment of a Debt to the King the Office must find but Goods since the Assignment C. 197. The Ter-Tenant shall not render recompence to the King for the profits of the Lands before Office found C. 242. P. Pardon IN what case a general Pardon not to be regarded unless specially pleaded A. 300 301. B. 28. Where the Kings General Pardon will not avail without words of Giant B. 123 124. C. 186 187. Parson and Patron What a Vicar is A. 182. They and the Ordinary joyn in a Lease of the Gleab if this bind the Successor A. 234 235. What an Arch-deacoury is A. 316. Partition Between Tenants in Common and Joynt-Tenants where good where bad without Deed A. 103. The form of the second Judgment A. 280. B. 50. Against whom it must be brought A. 291. If it may be made of a Use B. 25 26 27. The pleading thereof B. 24. What part is void what only voidable B. 25 26. Form of the Writ and where it must shew de qua haereditate B. 118. C. 231. If it lies by a Corporation upon the Stat. 32 H. 8. C. 162. Patent See Grant of the King. Perjury See Stat. 5 Eliz. May be punished at Common Law though the Jury give a Verdict against the false Testimony C. 170 230. Petition of Right See Monstrans Plaint In all Inferior Courts there ought to be a Plaint entred before the Defendant be summoned A. 185 186 302. Pleading and Pleas. Vide Bar and Iustification Of a Lease at will it 's good to aver the life of the Lessor A. 14. Of an Averment that the Rent c. was parcel of a Mannor A. 15. Of a Fine and Non-claim not needful to aver Infra Regnum sanae memoriae c. A. 18 76. What things must be shewed by the Plaintiff to enable his Action or must be pleaded by the Defendant A. 18 76 131 306. B. 5. C. 40 41 42 43. Of a Recovery in an Affise in Bar to Trespass A. 24 193. That a Rectory was appropriated to a Colledge A. 38. The Election of a Bishop Ibid. Where Ne unques accouple c. shall be pleaded and where Non fuit uxor A. 53. B. 170 171. Of an Utlary to entitle the King A. 63. Where Nient damnify is a good Plea to an Award which was That the Defendant should discharge and save the Plaintiff harmless from a Bond A. 71. The performance of a Condition to convey the Defendant must shew by what Conveyance c. A. 72. Of a Fine with Proclamation upon the Statute of 4 H. 7. 1 H. 3. and 32 H. 8. A. 76 77 78. Of an Agreement to an Estate Legacy c. A. 129. What matter ought to be shewed by the party who pleads or to come in on the other side A. 18 76 100 131 306. B. 5. C. 40 to 43. Of performance of a negative Covenant A. 136. To two Bars there must be several Replications or Demurrers A. 139. Of a Bargain and Sale must alledge a Consideration A. 170. Where it is not necessary to shew the beginning of a particular Estate nor to aver the life of Tenant for life A. 66 139 176 255. B. 50 94 95. Of a Recovery in a real Action it must be shewed that the Tenant was
lies immediately upon a Recognizance in Chancery B. 84 to 89 220. If Debt lies upon it before or after Judgment upon the Scire facias B. 84 to 88 220. Debt brought upon a Recognizance but non constat where it was acknowledged C. 58. Record Of an Assise brought into the Common Bench by Error how to be remanded to the Judges of Assise for Error lies not in C. B. A. 55. Pleading of a Record in the same Court A. 63 65. Where and for whom Averment lieth against a Record A. 183 184. Removed by a vicious Writ of Error or before Judgment given the Record is still in the first Court B. 1 2. A Recordatur made per Car. of a Record mistaken B. 120. Recovery The form thereof where the Vouchee comes in by Attorny A. 86. Against an Infant per Gardianum A. 211. A Recovery by one Joynt-Tenant binds only his own moiety A. 270. The execution thereof necessary in some cases B. 48. By Estoppel B. 57. Recoveror is seised to the use of him who suffers it until other Uses are limited B. 63 64 66. See Stat. 21 H. 8. who may falsify a Recovery For what reasons Recoveries do dock remainders after an Estate tall B. 66. Recovery to the intent that the Recoverors shall make Estates if such Estates be not made in convenient time in whom the Freehold is B. 216 217 218. What issue is bound thereby per Stat. 32 H. 8. B. 224. Recouper If the Lessor covenant to repair the House and do not Lessee may do it and recouper out of his Rent A. 237. Recusant If Copyhold Lands were liable to seisure for Recusancy before the Stat. 35 Eliz. 2. A. 98 99. Within what time Action upon the Stat. 23 El. 1. must be brought A. 239. The Indictment needs not name the offender of a Parish but a Vill B. 167. Redisseisin Whether the Plaintiff may have it after Entry the Judgment therein A. 69. Relation Of a Participle of the present Tense without the word adtunc A. 61 172. Of an Attornment A. 265 266. B. 222. Of words in an Indictment B. 5. Of a Deed enrolled to vest Lands in the King B. 206 207. Of agreement to a Disseisin Feoffment c. B. 223. Release Where a Covenant in the same Deed shall release other part of the same Deed A. 117. C. 113. Of a chose en action nihil operatur A. 167. C. 256. If an Heir release to the Disseisor and after his Ancestor dies it does not bind the Heir B. 47 56 57. A promise may be released by Parol B. 76. See where a release to a Stranger may discharge a Bond C. 45. Release of Covenants before any broken discharges the Bond for performance C. 69. To what Tenant in possession it is available C. 152 153. One Grantee of a prochein avoidance cannot release to his Companion A. 167. C. 256. Relief The Heir of one Coparcener shall pay none because it is an intire thing C. 13. Remainder and Reversion In Fee after a Lease for life where not discontinued by a Fine levied by Tenant for life A. 40. Cannot vest in the right Heirs of one in the Feoffors life unless it begin first in the Feoffor A. 101 102. Where an Estate shall vest as a remainder where as a reversion A. 182. B. 33 34. A Reversion after an Estate for life passeth by Devise of all Lands and Tenements A. 180 181. When a Remainder limited upon an Estate which is void as a Gift to a Monk for life remainder over shall take effect A. 195 196 197. Lease for nine years determinable upon death of the Lessee and if he die within the Term the remainder of the Term to his Wife a void remainder A. 218. The difference between a remainder limited upon a contingency which may never happen and one that must and will happen A. 244. B. 82 83. Devise to J.S. haered to Uses in tail after the Estate tail spent The Devisor shall have the fee A. 254. If one of two Disseisees release to one of two Disseisors and the Tenant who released not do enter the Reversion is revested pro toto A. 264. If a remainder may be limited upon a Condition A. 283. Feoffment to J.S. primogenito filio suo If the Son be born after the Feoffment he shall take by remainder B 15. If the remainder of a Term for years be good B. 69. C. 110 111 197 199. Remainder executed by moieties upon a Gift to a Feme for life remainder to their Heirs C. 4. Grantee of a Reversion shall recover Damages only for breach of Covenant made since the Grant C. 51. What acts as Extents Grants c. do take a Reversion forth of him that had it C. 156. Remitter Where it shall be A. 6 7 37. C. 93 94. Tenant in tail creates a new intail upon condition which his issue breaks yet he is remitted after his Fathers death A. 91. Land given to Husband and Wife in tail before Marriage and the Baron aliens and takes back an Estate to him and his Wife for life both are remitted A. 115. C. 93 94. The Father enfeoffs the Heir who never agrees and dies the Heir is remitted B. 73. Father enfeoffs his younger Son who dies his Wife priviment enseint of a Son the elder Son enters he is remitted Quaere C. 2. If one may be remitted against a Warranty C. 10. Waived by the Wife who was Tenant in tail with her Husband her payment of Rent which was reserved upon a Devise C. 272. Rent What is a Rent what a sum in gross A. 137 138 269 333 334. C. 103. Rent reserved by a Lease for years becomes seck if it be granted over A. 315. Divers ways of suspending Rents and how they are revived 334. To what remainder or reversion it shall be incident B. 33 34. If a Rent may be divided to equal a devise of Soccage and Capite Lands B. 42 43. Shall follow the Reversion although reserved to Executors B. 214. Contrary to a sum reserved to Executors upon a Mortgage of Land C. 103. Rent payable at two Feasts is to be paid by equal portions C. 235. By destroying a Reversion a Rent which followed it is extinguished C. 261. Repleader None after Demurrer A. 79. After an unapt issue A. 90. Replevin and Avowry Avowry for Rent reserved upon a Feoffment in fee and for sult of Court A. 13. Bar by non Cepit and what is good evidence therein A. 42. By property in a Stranger Ibid. Where the Plaintiff or Avowant may vary from the number of the Cattle A. 43. Plaintiff cannot discontinue without leave of the Court A. 105. Avowry for Damage Feasant in Customary Lands leased to the Avowant A. 288. Avowry by the Stat. 21 H. 8. cap. 19. A. 301. Avowry for a Leet Fee B. 74. Bar to an Avowry made by a Bailiff that he took the Cattle de injuria c. and traverse that he took them as Baily B. 215.
B. 74. Of Merton cap. 4. of Improving Commons The Lord shall have no Common to the Land improved B. 44 45. De Bigamis cap. 3. A. 285. Westm. 1. cap. 3. Of false News A. 287. W. 1. c. 39. Of vouching out of the Line B. 149. Cap. 10. Of choosing Coroners does not oblige to choose Knights B. 160 161. Statutes of Westm 2. Cap. 5. of Essoins A. 143. De Donis cond A. 212 214. Cap. 45. of Scire facias A. 284. B. 88. Cap. 11. Of Escapes B. 9. Cap. 3. Of Resceit to a Wife and to those in Reversion B. 62. Cap. 18. which gives Elegit or Fieri facias B. 84 to 88. Cap. 40. which take away the parol demur for nonage of the Tenant in a Cui in vita B. 148. Cap. 12. Of enquiry of the Abettors of an Appeal C. 140. W. 3d. Quia Emptores terrarum B. 15 16 17. Artic. super Cart. 3. That the Coroner of Middl. and of the Verge shall take Inquisition If one Man be Coroner of both if it sufficeth B. 160. Edward the 3d. 4 E. 3. 7. de bonis testatoris asport A. 193 194 195. 25 E. 3. 7. Of bar in Quare Imp. A. 45. B. 85. 45 E 3. 3. Of Tithes de silva cedua B. 80. 25 E. 3. Which gives Execution by Cap. B. 85. 14 E. 3. Of vouching dead persons The demandant must counterplead before Sum. ad Warrant issue C. 134. Rich. the Second 2 R. 2. Of News A. 287. 13 R. 2. Of Resceit of him in reversion and remainder B. 62. Hen. 4th 1 H. 4. Concerning Dutchy Lands A. 12. 4 H. 4. That no Judgment be avoided but by Error or Attaint B. 116. Hen. 5th 2 H. 5. 3. Of Jurors Aliens The Allen needs not have 4 l. per annum A. 35. 1 H. 5. 5. Of Additions B. 183 186 200. Hen. 6th 8 H. 6. Forcible Entry treble Costs and Damages A. 282. B. 52. In such case he in Reversion is restored and his Lessee may enter A. 327. 18 H. 6. ca. 17. For selling Vessels of Wine which contained not the full measure B. 38 39. 18 H. 6. Which gives the traverse of an Office found who shall have such traverse B. 185 186. 23 H. 6. ca. 10. The Condition of the Bond being to appear and answer c. B. 78. The pleading upon it B. 107. Bond taken of one in Execution void B. 118 119. All Bonds taken of persons not bailable are void C. 208. A promise void by this Act grounded upon consideration the Sheriff let one Escape C. 208. Hen. 7th 4 H. 7. Of Fines how to be pleaded A. 77. The Statute is construed liberally to uphold the non-claim A. 100 213. Who shall be barred thereby A. 212 213. B. 36 37 157 158. C. 10 227. What is a good claim within this Statute B. 53. By a Woman by Writ of Dower C. 50 221. If a Woman be barred of her Dower by a Fine levied by her Husband and no Dower brought in five years C. 50 78. 11 H. 7. 20. Of Alienations by Women A. 261 262. B. 168. C. 78. 3 H. 7. Of Appeals B. 160 161. Hen. 8th 6 H. 8. 15. Of Recital in Patents A. 321. vid. tit Recital 21 H. 8. Of Farms taken by Parsons C. 122. 21 H 8. cap. 19. Of Avowries A. 201. 21 H. 8. 13. Of Pluralities A. 316. 21 H 8. 15. Of falsifying Recoveries B. 65. 23 H. 8. 3. Of Attaints who is pars gravata A. 279. 23 H. 8. 15. Of Costs A. 105. B. 9 10 52. Extends not to Actions given by Statutes C. 92. 26 H. 8. Of the Lands of persons attainted A. 21. 27 H. 8. Of Uses B. 14 258. B. 6 15. How Conveyances to uses before the Statute must be pleaded A. 14 258. This Statute vests the possession of a Term according to the Use as well as a Freehold B. 6 7. What Uses were before this Statute B. 15 16 17 18. The manner and reason of making this Statute B. 17. 28 H. 8. 15. Of the Jurisdiction of the Lord Admiral A. 106 270. 31 H. 8. cap. 20. Which enables the King to grant Lands forfeited without Office found B. 124. 31 H. 8. 13. Of discharge of Tithes of the Lands of the Abbies c. A. 231 232. 31 H. 8. Of Leases made by the Religious Houses shortly before their dissolution B. 55. C. 164 165. 32 H. 8. Of dissolving Abbies if a Unity of possession c. extinguish a Common C. 128. 32 H. 8. Of Partition if it gives that Action to a Corporation C. 162. 32 34 H. 8. Of Wills A. 252 267 113. What Estates may be devised thereby A. 252. B. 41 42 43. C. 105 274 275 276. Upon the clause that the Wife shall be endowed but of two parts 32 H. 8. B. 131. Of a Will made before the Statute C. 28 29. What is a good Will in writing C. 79. 32 H. 8. 37. Of Arrears of Rents in Fee to be recovered by Executors A. 302 303. Idem upon the clause for re-entry upon breach of a Condition B. 33 34. C. 104. 32 H 8. Of Fines and Recoveries by Tenants in tail A. 244. B. 36 37 57 62 63. Vide Stat. 14 El. cap. 18. B. 224. C. 10. 32 H. 8. 30. Of Jeofails A. 175 238. It helps not Issue joyned as to part of a Plea nothing being said as to the other part B. 195. 32 H. 8. c. 9. Of buying pretenced Titles A. 166 167 208. B. 39 48. C. 79 233. 32 H. 8. 28. Of Leases by Bishops A. 59. 32 H. 8. 7. Of the Spiritual Court A. 130. 32 H. 8. Of Leases by Tenant in tail A. 148. C. 156. Idem Of Leases by Tenant for life B. 46. 32 H. 8. 37. Of Arrears of Rent c. extends to Demesne Lands of a Mannor granted by Copy B. 153. C. 59 263. 33 H. 8. Of Offices found for the Lands of persons attainted A. 21. 33 H. 8. Of Recovery of Debts forfeited to the King B. 33. Same Statute of Debts due to the King what Gifts do avoid the Kings Title B. 90 91. 35 H. 8. Which gives the Husband liberty to make Leases if he may make Leases in Reversion C. 132. Edw. 6th 1 Ed. 6. Of dissolving Religious Houses A. 38. A Chauntry in reputation with the Statute C. 114. 2 E. 6. Of Murder done at Sea A. 270. 2 E. 6. 13. Of Prohibitions A. 286. B. 212 213. C. 257. 5 E. 6. Of Ingrossers of Victual B. 39. 8 E. 6. 4. Indictment upon it must be that he drew a Weapon to strike B. 188. 2 E. 6. 24. Of Appeals where the dead was stricken in one County and dies in another C. 140. 3 E. 6. 4. In what case one may have a Constat of Letters Patents C. 165. 2 E. 6. cap. 13. No remedy for the treble value of Tithes in Equity but at Law C. 204. Queen Mary 1 2. Of unlawful impounding Distresses B. 52. Queen Eliz. 1 Eliz. 1. Of the High
laid before the Plaintiffs Title adjudged not good A. 104. Where one shall have time to do an Act during his life A. 124 125. Action appearing to be brought before Mony due how adjudged A. 186 187. Bargain and Sale of Trees Habend Succidend infra 20 annos how adjudged A. 275. Solvendum the value of the profits per annum is intended the then present value C. 114. Tithes Cannot be granted without Deed A. 23. B. 73. Are now become Quasi Laicum seodum A. 23 300. Vest in the Owner immediately after set out A. 39. If in trespass the right of Tithes come in question between two Parsous the Spiritual Court hath Jurisdiction A. 59. Who may prescribe in non decimando A 241 248. Release of all demands in the Parishioners Land does not discharge Tithes A. 300. What is a good discharge of payment of Tithes A. 332 330 334. B. 73. By the Civil Law the Parson is to have every tenth Land of Corn B. 70. In what case they shall be paid although the Lands were the Cistertians B. 71. Of what Wood and how Tithes shall be paid B. 79 80. Title Where the Defendant must shew a Title in pleading where not A. 45 46. He who pleads against the Kings Title must shew his own A 202. B 30 31. Toll For what Toll shall be taken A. 218. For what Goods it may be taken of Tenants in Ancient Demesne A. 232 233. Tort. Where a Man shall take benefit of his own wrong doing where not A. 339 331. Traverse Two Traverses in an Intrusion A. 38. Where the place is traversable A. 39. Plea vicious for want of a Traverse A. 44 78 79. Is but matter of form A. 44. Where a Mans intentions are c. A. 50. Where in a Quare Imp. the Appendancy or the Presentation is traversable A. 154. It is not traversable whether Mony were paid upon a Bargain and Sale A. 170. In Quare Imp. absque hoc quod disturbavit aliter seu alio modo A. 230. What matters are traversable in Assumpsits A. 252 253. Where the dying seised and where the descent is traversable A. 310. B. 185. Where a thing is to be done by Covenant upon request the request is traversable B. 5. An inducement to a Traverse ought to be matter traversable B. 32. Where the Defendant justifies in a local thing in another County he must Traverse the County in the Declaration B. 79. Where the Defendant is charged with a malicious Tort and pleads in excuse he must Traverse the malice or default charged on him B. 94 95. Per Executor that he administred about Funerals and Traverse that he administred aliter seu alio modo B 104. Prescription pleaded against Prescription not good without Traverse of the first B. 209 210. Where the Command of a Lord to the Bailiff is traversable B. 215 216. In Replevin Bar That he took the Cattle of his own wrong absque hoc that he took them as Bailiff B. 215. Trespass for driving Sheep per quod they lost their Lambs no Plea to say he took them as distress without a Traverse to the Tortious driving C. 15. If the Defandant may plead another promise and Traverse parcel of the promise in the Count C. 67. Trespass Done by two It is a good Bar that the Plaintiff had Judgment and Execution against one A. 19. C. 122. Bar by a Recovery in an Assise and the pleading thereof A. 24. Lies with Simul cum J.S. vel Cum quodam homine ignoto A. 41. C. 77. Lies against one intrusted to sell Goods in a Shop if he imbezel any to his own use A. 87. 88. Lay before the Plaintiffs Title accrued not good A. 104. Possession is a good Title for the Plaintiff if the Defendant have no better to shew A. 215. Lies for a Copyholder against his Lord for cutting his Trees A. 272. In Ejectione firmae is a good Bar against the same party in Trespass A. 313. C. 194. Trespass in domo New assignment may be made in a House and a Barn B. 184 185. Quare cuniculos cepit B. 201. Grantee of the Herbage cannot have a Trespass Quare clausum fregit C. 213. If Trespass lies for a Greyhound C. 219. For what things ferae naturae the Writ may say suos supposing a property Ibid. Trial. See Visne Quaere If Issue joyned in an Inferior Court tryable out of the Jurisdiction may be sent into the Courts at Westm to be tried there A. 91. It shall not B. 37. Whether Wise or not Wise a Church or not a Church Prior or not Prior within or without a Parish triable at Common Law A. 53 181. B. 170 171. C. 129. Where the Spiritual Court shall try incidents arising upon a matter triable there A. 181 182. Of Ne unque accouple c. non fuit uxor A. 53. Of an Executors refusal how A. 205 206. The Court may judge what day is dies Juridicus by an Almanack A. 242. Where it shall be of Men of two Counties B. 102 103. Temporal Courts try Si fuit uxor Cont. of Ne unques accouple c. B. 170 171. A. 53. Two several Jurors try Issues upon one Action there can be but Costs by one Jury B. 177. In what case refusal to be Executor shall be tryed per Pais and where by the Bishops Certificate B. 180. Trial of matter of Law as to make a sufficient release must not be left to a Jury B. 197. Trial of Ability or Disability of a Parson shall be by the Bishop But if the Parson be dead then by Jury C. 46 47. How an Issue Whether one be a Counsellor in â—eg eruditus be triable by Jury C. 238. Trover Bar by a Sheriffs Baily for executing of a Fieri facias good A. 144. Of Cart-Loads of Hay A. 178. What is a good Bar therein what not A. 178 189 222 223 247 248. B. 13 37. What thing is traversable therein A. 189 247 253. B. 13 94. What Act amounts to a conversion A. 222 223 224. Trover by the Feme and conversion by both The Action must be against both A. 312. What evidence the Defendant therein may give upon Not guilty pleaded B. 220 221. Utlary a good Bar in this Action C. 205. V. Variance BEtween a Suggestion and a Count in Attachment sur Prohibition is Error A. 128. What variance in recital of a Fine wrong shall prejudice C. 136. The like in wrong reciting of former Conveyances Ibid. View In a Writ of Right de Custodia Forestae the Forest must be put in View and of Rent the Land A. 86. Venire Facias De novo for the incertainty of a special Verdict A. 210. De medietate linguae B. 112. Where it shall say Quorum quilibet hab 4 l. in terris c. B. 112 113. Upon a special Writ as Audita Querela must be special C. 260. Verdict Void because a Juror received Mony of a Solicitor A. 18. Where surplusage
are to have advantage of it yet the Lord shall not avow for not repairing of it without alledging that the Bridge was in decay And so when the Tenure is to Cover his Hall he shall not Avow without alledging that his Hall needed Reparations And so in the principal Case here he ought to alledge that there was a present necessity for making of the By-Law for it may be that there was not any Sheep within the Mannor when the By-Law was made and then there was no cause that it should be made And in the like manner as it hath been said of the Common Law That certainty ought to be shewed so shall it be by the Statute Laws As if Tenant for life makes default if one prayeth to be received for the default of the Tenant for life he ought to shew that he hath the Reversion and that he bringeth his Action by reason thereof And as it hath been said of the Common Law and Statute Law so it shall be said of Custom As in 44 E. 3 where the Parishioners prescribe to make By-Laws and that they made such an Ordinance That for every Acre of Land or for every Beast every one should pay for the Reparations of the Church c. there it may be said in Avowry that the Church wanted Reparation And so where a Tax and Levy is to make a Wall against the See there if the party will justifie the levying of the Tax or Levy he must say That there was need of it otherwise the same cannot be levied But as to the ability of a person he shall be enabled by Intendment As if an Obligation be made by a Man or a Woman in an Action brought upon the Bond he shall not be compelled to say That the Man was of full age or that the Woman was a single Woman for that shall be intended until the contrary be shewed But by Statute Law if a Man pleads a Grant it shall be otherwise As upon the Statute of 1 R. 3. If he plead a Feoffment or a Grant of Cestuy que Use he must plead That he was of full age out of prison of sound memory and within the 4 Seas And so where a Pardon was made in the time of King Ed. the 14th to all but to those who were with Queen Margaret there if he will take advantage of the Pardon he must plead That he was not with the said Queen And if a Man plead a Feoffment of J.S. at the Common Law it shall be good and if he were within age it shall be shewed on the other side But if a Man pleadeth a Feoffment by Custom and the other saith that the Feoffor was within age and the Plaintiff replyeth That an Enfant by the Custom may make a Feoffment the same is not good but a Departure for he ought to have shewed that at the beginning in his Declaration And in 37 H. 6. Where a Man pleaded a Devise and it was shewed that the Devisor was within age there the Plaintiff need not say that the Custom is That an Enfant may devise for that is a Departure Another matter of the Custom which they have alledged is That they may make By-Laws for the better Ordering and they have not taken averment that this Ordinance was either better or worse and if it be not better then they have no cause to make the By-Law If a Feoffment be made causa Matrimonii praeloquuti it shall not be intended that the Feoffment was for any other cause than Marriage And if a Woman brings a Writ of Dower and the Defendant pleads a Lease for life made by the Husband it shall not be intended that that Lease was in allowance of her Dower according to the Statute if it be not expresly shewed And so If Cestuy que Use in tail makes a Lease for life it shall not be intended that Cestuy que Vie is alive unless a special Averment be taken That he is yet alive And so here it doth not appear that this is the better Order nor that the Lands are several or lie in Common so as by no means or Circumstance it can appear if it be the better or not Another cause wherefore the pleading is not sufficient is Because he saith Vpon a pain of Forfeiture to the Lord for the time being and he hath not alledged in fact that the Lord Cromwell who was Lord of the Mannor in Anno 6 E. 6. was Lord in the 13th year of the Reign of the Queen that now is and without shewing that shall not be intended As in 7 H. 7. A Man pleads a Feoffment and that J.S. was seised and did enfeoffe him that is not good but he ought to plead that he being so seised made the Feoffment for it shall not be intended that his seisin continued until the time of the Feoffment without shewing of it And so where a Man pleads That J.S. was seised of a Reversion granted it he ought to plead And that he being so seised granted it And so where an Attornment is pleaded for if he was not seised at the time of the Attornment the Attornment was not good And so where a Man will plead a Surrender he shall shew that he who Surrendreth and he to whom a Surrender is made were seised Quaere If the one or the other were not seised one of the Term and the other of the Reversion whether the Surrender be not good And 31 H. 6. If a Man will plead a Lease by Feoffees to use he shall say And that so seised they made the Lease And see 6 7 10 11 H. 7. Where Cestuy que Use makes a Feoffment averment shall be taken that at the time of the Lease that the Feoffees were seised to the use of the Lessor And because that here it is not shewed nor alledged that the Lord Cromwell is now Lord of the Mannor it shall not be so intended Also for divers other causes I conceive that the Avowry is insufficient For he hath shewed that a By-Law was made but doth not shew when it was made nor for what time it was to continue And it is not shewed Whether the same were made for the better ordering of the Lands which the Lord held joyntly or in common with others or which he held in his own Right alone And as to the Prescription I conceive that the same is not good because it is against reason and not ex rationabili causa For if one Man keeps the Law and another Man breaks the Law yet according as they have alledged this Custom to be he may be distrained who hath not offended and his Cattel taken for the Offence done by the Cattel of another Man and it is against reason that any one should be punished for the default or offence of another But the Custom of Borough English is good and so is the Custom of Gavelkind because that every Son is as good a Gentleman as the eldest and therefore those
no judgment can be given C. 14. Where as to part a Plea is pleaded which is tryable by Certificate or otherwise than by Jury if the other which is tryable by Jury be not continued the whole is not discontinued C. 268. Conuzance de Pleas. Not grantable if the Plaintiff be priviledged in the Courts at Westminister C. 149. Copulative Disjunctive Where a Copulative shall be taken as a Disjunctive e converse A. 74 244 251. Where a thing is to be done Copulative both the matters must be averred A. 251 252. Corporation Upon a grant to them of an Acre in a great Field how they must make election A. 30. Must acknowledge Deeds and levy Fines c. by Warrant of Attorny A. 184. Where the names of the Heads of what Corporations must be shewed in pleading A. 306 307. How they must make a Lease by Attorny where they are out of possession B. 97 98. Cannot be Feoffees to Uses B. 122. Leases by them must be made by their true name of Incorporation as to substance A. 159 to 163 215. B. 97 165. C. 220. Corpus cum Causa See Habeas Corpus Covenant To assure Lands the Covenantor is not bound to seal a Deed with Covenants A. 29. To repair upon warning Action lies by Grantee of the Reversion though the House was ruinous before his Title A. 62. That the Premisses should be exonerated De omnibus oneribus c. how broken A. 93. C. 44. That the Lessee shall take Fireboot super dicta premissa extends not to Lands excepted A. 117. To help and assist the Plaintiff in a Suit in the Defendants name and not to abate it the Defendant being a Feme Sole takes Husband yet is the Writ but abateable A. 168 169. Upon the words Dedi Concessi A. 179 278. B. 104. By Lessor to repair the Lessee in his default repairs if the Lessee may retain Rent for it A. 237. What Covenant makes a Condition and shall defeat an Estate A. 246. Upon the words absque impetitione denegatione Covenant lies if the party himself disturb A. 277. For quiet enjoyment from all claiming under the Covenantor the breach must say how he claimed A. 318. Performance of Covenants in the Disjunctive must be especially pleaded A. 311. Where it lies upon a Proviso A. 318. To make an Estate or repair a House how performance must be pleaded B. 38 39 53. To make assurance binds not to release with Warranty B. 130. One Covenants to assure such Lands as shall descend to him the same to be yearly worth 40 l. If all the Lands by descent are to be assured C. 27. That the Lessee shall enjoy without interruption of any If interruption by one who hath no Title be a breach C. 44. Covenant to leave the Houses in as good plight as he found them C. 44. If upon a Covenant to repair a Recovery be had the Lessor can sue no more C. 51. If one be interrupted by a Decree in Chancery that is no breach of a Covenant to enjoy without lawful Eviction C. 71. Who shall do the first act where the Covenant is reciprocal C. 219. B. 211 212. That he hath made no former Assurances but that the Land shall descend raises no Uses C. 7. Count. Where in a Quare Impedit the Writ may be general and the Count special A. 226 227. Where in a Writ of Entry Sur disseisin brought by Tenant in tail A. 231. How to Count where one of two Debtors or Trespassors are Utlawed C. 202. Countermand In what case the Bailor of Goods may Countermand the authority of the Bailee B. 31. Courts and Offices of the Court. The Common Bench cannot write to the Kings Bench for a Record A. 90. If upon pleading a Title be found or confest for the King the Court ex Officio must prosecute for the King A. 194 323. A Court to admit Copyholders may be held out of the Mannor A. 289. In what case the Kings Bench may hold Plea under 40 s. A. 316. What duty due by a Subject to the King gives the Subject priviledge in the Court of Exchequer B. 21. How and by what authority Nisi Prius are tryed out of the Exchequer B. 87. All the Courts except the Common Bench are variable as to the place and must be shewed where they sit B. 102 103. Courtesie of England In what case the Husband be where the Wives Estate is defeasible by condition A. 167 168. By custom of Mannor B. 109. If the Husband shall be Tenant by the Courtesie of the Seigniory of the Wife where he himself was Tenant C. 247. Court Christian Their Sentences there are good until revoked by other Sentence B. 169 to 172 176 177. Cui in vita What is a good Bar therein A. 53. Custom Of free Bench within a Mannor A. 1. That the Lord may seise for conviction of his Tenant of Felony A. 1. Where it shall be taken strictly A 1â—2 B. 109. Of Bristol that a Covenant shall bind by Parol is good A. 2. That a Copyholder may Lease for years ad pasturand non ad colend ' A. 16. What Customs are void being unreasonable A. 217. C. 81 82 226 227. What are good and reasonable A. 217 328. C. 227. That the Lord may take the profits during the Nonage of the Infant Tenant good A. 266. Customs of the Kings Courts are Laws B. 85 86. Custom alledged infra Regnum Angliae if good B. 114 115. A good Custom that Robbers at Sea shall share the Goods though one Ship did but stand by and look on B. 182. D. Damages INcreased by the Court super visum vulnerum A. 139. No costs upon discontinuance by original Stat. 32 H. 8. 15. A. 115. Intire assessed upon one promise to perform an Award of two matters whereof one void how adjudged A. 170 171. An Action upon the Stat. of 8 H. 6. of Forcible entry treble Costs and Damages A. 282. B. 52. If the Jury ought to assess any Damages in Account A. 302. In what Actions Costs by the Statute 32 H. 8. vide tit Stat. B. 9 52. C. 92. In account the Plaintiff hath Damages B. 118. The Plaintiff shall have Costs assessed but by one Jury though several Trials by several Juries B. 177. Grantee of a Reversion shall recover Damages in Covenant but for things done since the Grant C. 51. The first Jury which tries the first Issue may assess Damages for the whole Trespass C. 122. If the Plaintiff in Replevin be non-suited after Avowry for Rent the Court may assess Damages without a Writ of Enquiry C. 213. If joynt Damages be assessed for two Trespasses one of which lieth not the Plaintiff cannot have Judgment C. 213. Where the Court will abridge Damages C. 150. Dean and Chapter hujusmodi An Arch-Deacon Prebend what they are A. 13 205. What places have two Chapters and if Leases confirmed by one be good A. 234 235. The Chapter must be party to a