extend ad veritatem facti which is set forth in the Avowry but only to reputation and so both stand together well enough Rent charge parcel of a Mannoâ— And that a Rent charge may be parcel of a Manor see 22 E 3. 13. 31. E 3. 23. in the Lord Tiptofts Case where it is ruled that title made to a Rent charge as parcel of a Manor is a good title and the Assize awarded upon it and in our Case the Reputation is enforced by the sute at the Court which was also reserved upon the said Feoffment together with the said Rent so as the intent of the parties to the Feoffment was that this Rent so reserved and accompanyed with the said sute shall be esteemed a Rent service and so parcel of the Manor and as to the continuance of Reputation it sufficeth if at the time of the bargain and sale aforesaid which was 26 H 8. it was by many reputed parcel of the Manor and he cited the Case of the Marquess of Winchester The King gave to his Ancestor the Manor of Dale and all lands then antea reputed parcel of the said Manor and in a Bill of Intrusion against the said Marquess he pleaded the grant with averment that the Land then antea reputed parcel Manerii praedict And because he did not shew certainly at what time the Land was reputed parcel of the Manor Iudgment was given for the Queen for it might be for any thing in his Plea that the said Land was reputed parcel of the said Manor before time of memory which Reputation would not serve but such Reputation ought to be within time of memory and understanding He cited also the Case of the Earl of Leicester King Edward the sixth seised of the Manor of Clibery of which a Wood was parcel granted the said Wood in Fee which afterwards escheated to the King for Treason Queen Mary granted the said Wood to another in Fee who granted it to the now Queen who granted the said Manor omnes boscos modo vel ante hac cognit vel reputat ut pars membr vel parcel Maner praedict to the Earl of Leicester and it was resolved in the Exchequer that by that grant the said Wood did pass to the Earl and Iudgment was given against the Queen Dy. 362 â— for it was part of the Manor in the time of E 6. at which time an t ' hac without the word unquam shall be extended ad quoddamcunque tempus praeteritum And Reputation needs not so ancient a Pedigree for to establish it for general acceptance will produce reputation As the house of the Lord Treasurer now called Tibould was of late a private Manor but now hath a new name by which it is known and that within these twenty years which is not so long a time as we have alleged for our Reputation and would pass in a conveyance by such name so None-such But as to Reputation I conceive that Reputation is not what this or what that man thinketh Reputation quid but that which many men have said or thought who have more reason to know it quaenam est inter illos reputatio There was a Case ruled in the Exchequer 13 Eliz. in a Bill of intrusion the Case was that King Hen. 6. was seised of a Manor to which a Neif was regardant who purchased Lands which the King seised and let by Copy as parcel of the said Manor and so continued until the time of E 6. who granted the same to Allice Hardwick and all Lands Tenements reputed parcel of the said Manor And it was adjudged that the said Land so purchased by the said Neif and demised by Copy did pass by the said grant to Hardwick And afterwards the same Term the Iustices without any solemn Argument shewed their opinions in the principal Case viz. That this Rent did not pass by the bargain and sale made as above by Anthony Wingfield to Bohan father of the Avowant for here in the premisses of the Avowry is not any matter set forth importing Reputation or by which it may appear that the Rent in question was ever reputed parcel of the said Manor but rather to the contrary and the bare averment of Reputation in the conclusion of the Avowry is not sufficient to induce Reputation But if the Avowant had set forth in his Avowry any special matter to induce the Court to conceive a Reputation upon the matter of the Avowry as to shew that the Bayliffs of the said Manor had always received the said Rent as parcel of said Manor and as Bayliffs of the said Manor had accounted for it as parcel of the Manor and that the Lessees of the said Manor had enjoyed the said Rent as parcel of the said Manor the same had been good matter to induce a Reputation to have incorporated the said Rent with the said Manor and so judgment was given against the Avowant and of such opinion as was affirmed by Wray was Anderson chief Iustice of the Common Pleas and Manwood chief Baron of the Exchequer XIX Cham and Dovers Case Pasch 26 Eliz. in the Kings Bench. Ejectione firmae IN an Ejectione firmae the Case was that one Michel was seised of the Manor of D. within which diverse parcels of Land part of the said Manor where customary Tenements demised and demisable by copy c. according to the Custom of the said Manor for one two or three lives within which Manor there was a Custom scil that the Lord of the Manor for the time being might grant Copy-hold estates for life in Reversion The Lord granted such Lands for life by copy in possession took a wife and granted the same Copy-hold to a stranger in Reversion for life and died the Copy-holder in possession died the Land demised by copy is inter alia assigned to the Wife for her Dower who had Iudgment to recover in a Writ of Dower who entred and made a Lease thereof to the Defendant who entred against whom the Lessee of the Copy-holder brought Ejectione firmae Custom ad pasturandum non ad colendum and all this matter was found by Verdict and further found that every Copy-holder of the said Manor might Lease his Copy-hold for a year ad pasturandum sed non ad colendum and that the Lease made to the Plaintiff was for a year ad pasturandum 1. Cro. 469. Wells versus Partridge Post 100. Popham Attorny General of Council with the Defendant took exception to the Declaration because the Plaintiff had declared a Lease at the common Law and the Iury have found a Lease by the custom which cannot stand together And such a Verdict doth not maintain the Declaration as if the Plaintiff had declared upon a Lease for years of Lands and the Iury found a devise for years c. but the exception was disallowed by the Court. As to the matter in Law he argued that the Tenant in Dower should
hold the Land discharged of the Copy-hold for her life and he put this case If the Lord of such a Manor taketh a Wife a Copy-holder for life dieth the Lord grants a Rent-charge out of the customary land and afterwards grants the said land by copy for life dieth the wife shall hold the land discharged of the Rent but the Copy-holder shall be charged and he put a difference where the Lord grants such Copy-hold in possession and where in Reversion for in the first case the Wife shall hold charged but contrary in the last And he cited the Case of one Slowman who being Lord of a Manor ut supra by his Will devised that his Executors should grant estates by Copy 2. Len 109. and died having a Wife the Executors make estates accordingly Dower discharged of a grant of Copy-hold the Wife in case of Dower shall avoid them Plowden contr the Lord of such a Mannor is bound by recognisance and afterwards a Copy-holder for life of the said Mannor dieth the Lord grants his Copy-hold de novo the said new Grantee shall hold his Copy-hold discharged of the Recognisance which Gawdy Iustice granted and by Wray if the Lord of such a Manor grants a Copy-hold for three lives takes a Wife the three lives end the Lord enters and keeps the lands for a time and afterwards grants them over again by copy and dieth the copy-holder shall hold the Land discharged of the Dower and this is a clear case for the copy-holder is in by the custom which is paramount the title of Dower and the Seisin of the Husband and by him in the case of the Earl of Northumberland 17 Eliz. Dyer 344. That the grant of a copy-hold in Reversion by the Earl of Northumberland doth not make such an impediment as was intended in the condition there for it is by the custom and not by the act of the party And afterwards the same Term Iudgment was given for the Plaintiff that he and his Lessor should hold the lands discharged of the Dower XX. Fringe and Lewes Case Pasch 26 Eliz. In the Kings Bench. DEbt by Fringe against Lewes upon a Bond who pleaded Debt that the condition was that whereas the Defendant was Executor to one Morris Degle that if the Defendant should perform observe fulfil and keep the Will of the said Morris Degle in all points and Articles according to the true intent and meaning thereof that then c. and pleaded further that the said Morris by the said Will bequeathed to the Poor of such a Town ten pounds to be distributed amongst them and also to the Church-wardens of the Parish ten pounds and to I S. three pounds and that he had distributed the said ten pounds to the Poor and that he had paid the ten pounds to the Church-wardens and as to three pounds Uncore priâ—â— a good Plea. he said that he is and always was ready to pay the same to the said I. S. if he had demanded it upon which there was a demurrer And as to the ten pounds to be distributed amongst the Poor the same was holden good enough without shewing the names of the Poor amongst whom the mony was distributed so the pleading of the first payment to the Church-wardens was sufficient without nameing of them See 42 E 3. brief 539. Scire facias out of a Recovery against Executors and the Writ was challenged because it was Scire facias Executors not naming their proper names It was holden to be no exception for Executors are as a corporation known in that they are Executors and as to the third part of the Plea scil always ready and yet is the plea is well enough for this Obligation the Condition of which being general to perform the Will c. Poph. 10â— hath not altered the nature of the payment of the Legacy but the same remains payable in such manner as before upon request and not at the peril of the Defendant See 22 H 6. 57 58. 11 E 4 10. 6 E 6. Br. Tender 60. And afterwards the same Term the Court was clear of opinion and so delivered the Law to the Counsel on both sides that in this case the Legacies are to be paid upon request and not at the peril of the Executors in such manner as they were before the Obligation and afterwards Iudgment was given against the Plaintiff XXI Sir John Smith and Peazes Case Pasch 26 Eliz. In the Kings Bench. SIr John Smith brought Debt upon an Obligation against Peaze who pleaded that the Bond was upon condition to perform covenants contained in an Indenture and shewed what and that he had performed them the Plantiff assigned the breach of one covenant that where the Plaintiff had leased to the Defendant for years certain messuages by the same Indenture the Defendant by the same Indenture did covenant to repair all the said Messuages Covenant alia quam quae appunctuatae forent divelli per script dicti Johannis Smith and shewed further that the Defendant had not repaired the said Messuages to him demised as aforesaid and averred that the said house in which the breach of the covenant is assigned non fuit durante termino praedicto appunctuata divelli and upon that matter of reparation they were at Issue and found for the Plaintiff It was moved in Arrest of Iudgment that the Averment in the Replication was not sufficient for the Lease was made in November to begin the Michael after Averment and it might be that the Messuage in the not repairing of which the breach of the covenant is assigned was appointed to be pulled down scil divelli before the Term for years began and then the Defendant is not bound to repair it and then the breach of the covenant is not well assigned and so the Averment doth not answer the exception and because this clause alia quam is in the body of the Covenant it ought to be satisfied by him who pleads it scil by him who assigns the breach in the Covenant in which the exception is contained As by the Lord Dyer in his argument in the argument of Stowels Case reported by Plowden 376. Where a man pleaded the Feoffment of Cestuy que use he ought to plead that Cestuy que use at the time of the Feoffment was of full age sanae memoriae c. for that is within the purview contr upon the Statute of 4 H. 7. in pleading of a Fine for that is in a clause by it self which conceit of Plowden the Lord Wray denyed to be Law for he said he that pleads the Feoffment of Cestuy que use or a Fine according to the Statute of 4 H. 7. shall not be driven to shew that the Feoffor or Conusor at the time of the Feoffment or Fine levyed was of full age c. but he who comes in by such Fine 〈◊〉 21 or Feoffment shall shew the same for his own advantage And
second Lessee and declared upon a Lease made for years without speaking of the Indenture And Gawdy Serjeant demanded the opinion of the Court if the Defendant might safely plead no Wast And they conceived that it should be dangerous so to do Then it was demanded if the Defendant plead that the Plaintiff had nothing tempore dimissionis whereof he had counted if the Plaintiff might estop the Defendant by the Indenture although he had not counted upon it and if such Replication be not a departure And it seemed to Periam and Leonard Custos brevium that it was not for it is not contrary to the Declaration but rather doth enforce the Declaration CCXXI Mich. 31 Eliz. In the Common Pleas. WAlmesley Serjeant demanded the opinion of the Court upon this matter Land is given to Husband and Wife in special tail during the Coverture they have issue the Husband is attainted of Treason and dieth the Wife continues in as Tenant in tail the issue is restored by Parliament and made inheritable to his Father saving unto the King all advantages which were devolded unto him by the Attainder of his Father the Wife dieth And he conceived that the issue was inheritable for the Attainder which disturbed the inheritance is removed and the blood is restored and nothing can accrue to the King for the Father had not any estate forfeitable but all the estate did survive to the Wife not impeachable by the said Attainder And when the Wife dieth then is the Issue capable to enherit the estate tail Windham and Rhodes prima facie thought the contrary yet they agreed that if the Wife had suffered a common Recovery the sâ—me had bound the King. CCXXII Mich. 31 Eliz. In the Common Pleas. IN an Action upon the Case the Plaintiff declared Assumpsit that he had delivered to the Defendant diversa bona ad valentiam 10 li. the Defendant in consideration thereof did promise to pay to the Plaintiff the Debt owing pro bonis praedictis and did not shew that the Defendant bought the said goods of the Plaintiff and so it doth not appear that there was any Debt and then a promise to pay it is meerly void which was agreed by the whole Court. CCXXIII. Seaman and Brownings Case Mich. 31 Eliz. In the Common Pleas. GEorge Seaman brought Debt upon a Bond against W. Browning and others Executors of one Marshal the condition was Debt that where the said Marshal had sold certain Lands to the Plaintiff if the said Plaintiff peaceably and quietly enjoy the said Lands against the said Marshal c. and assigned the breach in this that the said Marshal had entred upon him and cut down five Elms there upon which the parties were at issue And it was found that A. servant of the said Marshal by commandment of his said Master had entred and cut c. in the presence of his said Master and by his commandment for he is a principal Trespassor And it was so holden by the Court. CCXXIV. Mich. 31 Eliz. In the Common Pleas. IF the Kings Tenant by Knights service dieth his Heir within age 8 Co. 172. and upon Office found the King seiseth the Body and Land yet the Heir during the possession of the King may sell the Lands by Deed enrolled or make a Lease of such Land and the same shall bind the Heir notwithstanding the possession of the King but if he maketh a Feoffment in Fee it is utterly void for the same is an intrusion upon the possession of the King but where the King by Office found is entituled to the Inheritance as that his Tenant dieth without Heir whereas it is false for which the King seiseth in such case the Tenant of the King before his Ouster le mayne cannot make a Lease for years or sell the Land by Deed enrolled The Case depended in London before the Iudges of the Sheriffs Court. The King by colour of a false Office which doth falsly entitle him to the Inheritance is seised of certain Land he who hath right leased the same for years by Deed indented and then an Ouster le mayne was sued and he enfeoffed a stranger And it was holden that the Lease should not bind the Feoffee although it was by Deed indented for the Feoffee is a stranger to the Indenture and therefore shall not be estopped by it 18 H. 6. 22. A stranger shall not take advantage of an Estoppel and therefore shall not be bound by it As if one take a Lease for years by Indenture of his own Lands the same shall bind him but if he dieth without Heir it shall not bind the Lord in point of Escheat CCXXV. Gibbs Case Mich. 31 Eliz. In the Common Pleas. Trover and Conversion 1 Cro. 861. Owen 27. GIbbs brought an Action upon the Case upon Trover and Conversion of a Gelding and the Case was that one P. had stolen the said Horse and sold the same unto the Defendant in open Market by the name of Lister and the said false name was entred in the Toll-book And it was holden clear by the Court that by that sale the property was not altered CCXXVI Mich. 31 Eliz. In the Common Pleas. Owen 45. Hutton 105. 1 Cro. 734. Post 322. TEnant in Socage leased his Lands for four years and died his Heir within the age of eight years the Mother being Guardian in Socage leased the Land by Indenture to the same Lessee for fourteen years It was holden by the Court that in this Case the first lease is surrendred but otherwise upon a Lease made by Guardian by Nurture CCXXVII Kimpton and Dawbenets Case Mich. 31 Eliz. In the Common Pleas. IN Trespass the Defendant did justifie by a grant of the Land where c. by Copy The Plaintiff by Replication saith that the Land is customary Land ut supra and claimed the same by a former Copy The Defendant by Rejoynder saith that well and true it is that the Lord may grant Copies in possession at his pleasure and also estates by Copy in Reversion with the assent of the Copy-holder in possession but all estates granted by Copy in Reversion without such assent have been void It was argued that this custom is not good for it is not reason that the Lord in disposing of the customary possessions of his Manor should depend upon the will of his Tenant at will and the same is not like to the case of Attornment for there the Attendancy is to be respited which is not to be done here for the Copy-holder in possession shall continue attendant to his Lord notwithstanding such a grant in Reversion And see for the unreasonableness of the custom 19 Eliz. 357. in Dyer Sallfords Case It was moved on the other side that the Custom was good enough and 3 H. 6. 45. was vouched That every Freehold of a Manour upon alienation might surrender his Land c. It was adjourned CCXXVIII Marriot and Pascalls Case in a Writ of
the remainder to the use of John Father of the Plaintiff in tail the Grandfather died the Father entred Feoffments and by Indenture by words of bargain and sale without any words of Dedi concessi conveyed the Lands to the use of A. in Fee and in the same Indenture was a Letter of Attorney to make Livery which was made accordingly and the said A. by the said Indenture covenanted that if the said John should pay before such a day to the said A. forty shillings that then the said A. and his Heirs would stand seised c. to the use of the said John and his Heirs and if the said John did not pay c. then if the said A. did not pay to the said John within four days after ten pounds that then the said A. and his Heirs from thenceforth shall be seised to the use of the said John and his Heirs c. and the said John covenanted further by the said Indenture to make such further assurance as the Council of the said John should advise Each party failed of payment John levied a Fine to A. without any consideration it was adjudged upon this matter a good Feoffment well executed by the Livery Hob. 151. Dyer 361. a More 194. Post 195 196 197. More 35. b. notwithstanding that the words of the conveyance are only by bargain and sale and that the Covenant to be seised to the new uses upon payment and not payment being in one and the same deed should raise the use upon the contingency according to the limitation of it and Iudgment was given for the Plaintiff accordingly XXXII Bedows Case Trin. 26 Eliz. In the Kings Bench. IN an Action of Debt upon a Bill sealed against one Bedow he demanded Dyer of the Bill which was Memorandum that I John Bedow have agreed to pay to R. S. the Plaintiff twenty pounds and thereupon there was a Demurrer first that the Deed wanted the words In cujus rei testimonium c. but notwithstanding that the Court held the Deed good and said so it was lately adjudged Another matter was because the words of the contract are in the preter Tense I have agreed but notwithstanding that exception the Plaintiff had Iudgment to recover as by Wray these words dedi concessi according to the Grammatical sence imply a gift precedent but yet they are used as words of a present conveyance Iudgment was given for the Plaintiff XXXIII Marsh and Smiths Case Pasch 27. Eliz. In the Common Pleas. 1 Cro. 38. 39. GEorge Marsh brought a Replevin against Smith and Paget who make Conusans as Baylies to Ralph Bard and upon the pleading the Case was That Sir Francis Askew was seised of the Mannor of Castord in his Demesne as of Fee which Mannor did extend unto Daston North-kelsey Grants Mannor 2 Len. 41 42. South-kelsey D. and C. and had demesnes and services parcel of the said Mannor in each of the said Towns and so seised granted totum manerium suum de North-kelsey in North-kelsey to the said Bard and his Heirs and granted further all his Lands Tenements and Hereditaments in North-kelsey and to that grant the Tenants in North-kelsey did attorn And the Land in which the said Distress was taken is in North-kelsey the only question in the case was if by this grant to Ralph Bard a Mannor passed or not And the case was argued by the Iustices And Periam Iustice argued That upon this grant no Mannor passed for before the grant there was no Mannor of North-kelsey or in North-kelsey therefore no Mannor can pass but the Lands and services in North-kelsey shall pass as in gross for they were not known by a Mannor but for parcel of a Mannor And a Mannor is a thing which cannot be so easily created Mannor what it is for it is an Hereditament which doth consist of many real things and incorporated together before time of memory common reputation cannot be intended of an opinion conceived within three or four years but of long time And appendancy cannot be made presently but by a long tract of time As an Advowson in gross cannot be made by an Act appendant and the Queen her self by her Letters Patents cannot make a Mannor at this day à multo fortiori a subject cannot and the Queen cannot by her Letters Patents without an Act of Parliament annex a Mannor to the Dutchy of Lancaster which see 1 Ma. Dyer 95. And where it is usual that the Queen doth grant Lands Reputation tenendum de manerio suo de East Greenwich in communi soccagio if upon the death of such a Grantee without heir the said Land doth revert unto the Queen in point of Escheat the said Land shall not be parcel of the said Mannor for the Land was not parcel of the Mannor in truth but in reputation And he cited a case that the Lord Sturton was seised of the Mannor of Quincamore and was also seised of the Mannor of Charleton which was holden of the said Mannor of Quincamore The Lord Sturton was attainted of Felony and afterwards Queen Mary gave the said Mannor of Quincamore to Sir Walter Mildmay cum omnibus suis juribus parcellis it was adjudged that the Mannor of Charleton did pass for it is now become parcel of the Mannor of Quincamore and I grant that things which go with the Land shall pass well enough As if the Queen grant to three Coparceners of three Mannors 1 Inst 122. a 32 â—â— 6 11. the liberty of Warren in all the said three Mannors they afterwards make partition so as each Coparcener hath a Mannor and the one of them grants her Mannor the Grantee shall have Warren Grants of the King. But if the Queen grant a Leet ut supra and the Coparceners make Partition and each of them hath a Mannor she shall not have also a Leet but the Leet which was grantted doth remain in common and there shall not be there upon such partition several Leets And also I grant that in the case of two Coparceners of a Mannor if to each of them upon partition be allotted demeans and services each of them hath a Mannor for they were compellable to make partition by the common Law being in by descent See 26 H. 8. 4. 9 E. 4. 5. contrary of Ioynt-tenants for they are in by purchase and were not compellable by the common Law to make partition and therefore upon partition betwixt them a Rent cannot be reserved for the equality of the partition And in every Manor a Court is requisite for a Court Baron is incident to a Manor Court Baron but a Court cannot at this day be founded or erected but it ought to be of long time And in our Case no Court hath ever been holden in North-kelsey And if I be seised of the Manor of B. which extends into C. and B. and I grant my Manor of B. in D. now a Manor
passeth and doth extend into D. and the residue which is in C. shall remain in me in gross v. 9 E. 4. 17. Catesby And if I be seised of a Manor which doth consist of services and of twenty Free-holders and one hundred Acres of Demesnes and I grant the services of my twenty Free-holders and forty or twenty Acres of the said one hundred Acres a Manor shall pass although it was not granted by the name of a Manor but if I grant the services of three four or five of my Free-holders and forty or twenty of the said one hundred Acres upon such a grant no Manor shall pass Windham Iustice contrary We are not here to speak of the creation of a Manor that is a forraign matter but we are here to consider upon the division and apportionment of a Manor They that have argued in this case at the Bar have stood much upon the words of the Conveyance manerium suum de North-kelsey and that Sir Fr. Askew at the time of that assurance had not any Manor of North-kelsey or in North-kelsey but that is not any reason for if Cestuy que use mean between the Statute of 1 E. 3. 27 H. 8. will make a Feoffment of the Manor which was in use by these words manerium suum the same had been good and yet it is not manerium suum but the Manor of the Feoffees but it may be said suum by receiving of the profits according to the trust and confidence reposed in the Feoffees so in our case in as much as Sir Fr. Askew had before this grant aswell demesnes as services in North-kelsey it may collaterally be said a Manor there and notwithstanding that tempore concessionis proprie loquendo no Manor was in North-kelsey yet now upon operation of the Law upon this grant a new Manor shall rise for in divers cases where a thing which was not in esse before upon a grant may rise As if I grant unto you out of my Land a Rent de novo And also a thing which was not in esse before may upon a grant take upon it a new nature As if I. seised of a great Wood grant to you Estovers out of it they were not before in me but as Woods and Trees now by this grant they are become Estovers in the Grantee so as they are in the Grantee in another nature than they were in me So in our case although North-kelsey was not a Manor in Sir Fr. Askew yet now upon the grant it is a Manor in Bard 9 E. 4. 17. And as to the matter which hath been objected because a Court cannot now begin the same is not any reason for the Court Baron is incident to the Manor and also to every part of the Manor and transitory through the whole Manor and if Sir Fr. Askew had sold all the demsnes of the Manor in Castord where the Court Baron for the said Manor had always been held and not else-where yet such a Court might be holden in any part of the Demeans in any other of the said Towns The Lord Anderson to the same purpose It hath been argued of the other side that the Manor doth not pass because the grant is in these words manerium de North-kelsey in North-kelsey I conceive that these words de North-kelsey are void as matter of surplusage and the grant shall be construed as if the words had been manerium suum in North-kelsey And a Manor is such a thing as may be determined divided and suspended As if the Lord of a Manor leaseth for years all the Demeans of the Manor the Manor is suspended during the term for years as lately it hath been adjudged And a warranty may be divided as if a Feoffment in Fee be made to two with warranty and the one of them releaseth the warranty vide L. 5. E. 4. 103. A. seised of a Manor which extendeth in four Towns B. C. D. and E. and he gives his Manor in B. C. and D. by this gift the Manor and all that is in the said four Towns passeth And he cited also a Case 21 E. 4. 3. The Lord of a Manor erected a Chapel within his said Manor as a Chapel of Case c. and afterwards it is a Parish-Church now it is become presentable an Advowson appendant as the soil upon the which the Church is built is parcel of the Manor See 32 H. 6. 9. One Manor may be parcel of another Manor as A. holdeth of B. twenty acres of Land as of his Manor of C. which Manor B. holdeth of D. as of his Manor of E. B. dieth without Heir so as his Manor of C. is escheated unto D. now the twenty acres are holden of the Manor of C. as they were before and the Manor of C. is by the Escheat become parcel of the Manor of E. and by Lease of the Manor of E. it shall pass Post 32. And I do not know any difference between the Case of Parceners and the Case of Ioynt-tenants for now they are both equally compellable to make partition And he cited the Case of one Estopp lately adjudged viz. the Queen was seised of the Rectory of D. which extended into the Counties of Lincoln and York and the Queen granted her Rectory of D. in Lincoln these are several grants and now upon the matter they are become several Rectories And as to that which hath been objected concerning a Court Baron which ought to belong to this new Manor and that such a Court cannot now at this day be erected and therfore here cannot be a Manor here needs not the erection of any new Court but forasmuch as the Court Baron before this grant might be by Law holden in any place within the Manor therefore every part of the Demeans of the Manor is capable of a Court to be holden there As where one is seised of a Manor to which an Advowson is appendant now is the Advowson appendant not only to the said Manor but to every part of it for if he alien an acre parcel of the Manor with the Advowson the Advowson is now appendant to the said acre See 43 E. 3. 26. So in the Case at Bar because this liberty and franchise of a Manor is throughout the whole Manor and in every part of the Services and Demesnes upon this grant of the Services and Demesnes in North-kelsey and of his Manor in North-kelsey a Manor passeth which Windham also granted and agreed unto Note at this time there were but three Iudges in this Court And afterwards Iudgment was given for the Defendant XXXIV Alington and Bales Case Pasch 27 Eliz. In the Kings Bench Rot. 584. 1 Cro. 660. 661. ALington and others Executors of Sir W. Cordel late Master of the Ross brought an Action Debt against Bales The Case was this One Bream being seised of certain Lands by Indenture bargained and sold the same to one Platt by these words give grant bargain sell and by
the said Indenture covenanted with Platt that the said Platt and his Heirs should quietly enjoy the said Lands without interruption of any person or persons And afterwards certain controversies rising betwixt them concerning the said Lands Arbitrament the said Bream and Platt submitted themselves to the award and arbitrament of Sir W. Cordel to whom they were bounden severally for the performance of such award the which Sir W. amongst other things awarded that the said Platt and his Heirs should enjoy quietly the said Lands in tam amplo modo forma as the said Land is conveyed and assured by the coveyance and assurance aforesaid And the truth was that the said Bream at the time of the said Assurance was bounden in a Recognizance of six hundred pounds to one More 15. Eliz. and afterwards More 16 Eliz. sued a Sci. fac upon the said Recognizance and 18 Eliz. the bargain and sale aforesaid was made and afterwards 19 Eliz. More sued forth Excution by Elegit and the moyety of the said Land assured to Platt was delivered in Execution to More And if upon the whole matter the Arbitrament was broken was the question It was argued by Godfrey that the Plaintiff ought to be barred and first 1 Hob. 35. Mor. 175. 3 Len. 43. Post 93. Post 179 279. 1 Inst 366. a. b. 388. Dy 42. he conceived that these words in the Indenture give and grant did not help the Action for the Lands passed with a charge and the general words Dedi concessi do not extend to this collateral charge but to the direct right of the Land only but if a stranger had put out the bargainee there upon such general words an Action would lie but as the Case is they do not give any cause of Action for the Recognizance was a thing in charge at the time of the Assurance and yet see 31 E 3. Br. Warr. Chartae 33. A. enfeoffeth B. with warranty who brings a Warrantia Chartae and recovers pro loco tempore and afterwards a stranger doth recover against him a Rent charge out of the said Land and it was holden that upon the matter B. should have execution the special words of the Aribitrament upon which the Action is brought are that the said Platt and his Heirs should enjoy the said Lands in tam amplo modo forma as it was assured and conveyed to the said Platt ergo not in more ample manner 1 Cro. 660. 661. Owen Rep. 65. 2 Cro. 571. 1 Roll. 425. and the said Land was conveyed to Platt chargeable to the said Recognizance therefore if Platt enjoy it charged there is no cause of Action And as to the Covenant in the Indenture that Platt and his Heirs should enjoy quietly the said Lands without interruption of any person the same is a Collateral surety and the words of the Award are that Platt shall enjoy it in tam amplo modo forma as it is conveyed and assured by the assurance aforesaid without interruption these are not words of assurance for the assurance doth consist in the legal words of passing the estate scil bargain sale Dedi concessi and in the limitation of the estate and not in the words of the Convenant And therefore it hath been adjudged that if I. be bounden to A. in an Obligation to assure to him the Mannor of D c. if A. tender to me an Indenture of bargain and sale in which are many Covenants I am not bound upon the peril of my Bond to seal and deliver it Also here doth not appear any interruption against the Covenant in the Indenture for here is not any lawful Execution for it appeareth here that More hath sued Execution by Elegit 4 years after the Iudgment in the Scire facias in which case he shall be put to a new Scire facias for the Sheriff in this Case ought to have returned that the Conusor after the Recognizance had enfeoffed divers persons and shewed who and upon that matter returned the Conusee should have a Sci. facias against the Feoffees vide F. N. B. 266. And the Court was clear of opinion against the Plaintiff XXXV Floud and Sir John Perrotts Case Trin. 27 Eliz. In the Kings Bench. FLoud recovered against Sir John Perrot 1 Cro. 63. Post 264. 3 Len. 240. in an Action upon the Case upon a promise eighty six pounds against which Floud and Barlow affirmed a Plaint of Debt in London and attached the said moeny in the hands of the said Sir John and had execution according to the custom of London And now the said Floud sued a Scire facias against the said Sir John who appeared and pleaded the said Execution by attachment upon which Floud the Plaintiff did demur in Law And it was adjudged no plea for a duty which accrueth by matter of Record cannot be attached by the custom of London And notwithstanding that the custom of London be layed generally in aliquo debito and damages recovered are quoddam debitum as it was urged by the Council of the Defendant Yet the Law is clear that Iudgments given in the Courts of the King ought not Judgments in the Kings Courts not to be defeated by particular custom of places nor cannot by such particular customs be defeated and avoided as it was lately adjudged in a Western Case Damages were recovered the Sheriff by virtue of a Fieri facias levyed the money which one to whom the Plaintiff was endebted did attach by the custom in the hands of the Sheriff but it was adjudged the attachment was not good for the custom of attachment cannot reach upon a thing of so high a nature as a Record is the same Law of Debt upon a Recognizance and Statute c. and it was affirmed by Wray chief Iustice that upon great deliberation it was agreed by Bromley Lord Chancellor himself the Lord Anderson Mead and Periam Iustices that where a Merchant having in an Action recovered certain damages became Bankrupt upon which issued an Commission upon the Statute of 13 Eliz. of Bankrupts that such Commissioners could not entermeddle with such damages to dispose of them to the Creditors according to the said Statute But now see the Statute of 1 Jacobi The Commissioners have power to dispose of such debts c. XXXVI Sir Walter Hungerfords Case Trin. 27 Eliz. In the Kings Bench. Grants of the King. IN a Replevin by Sir Walter Hungerford the Case was this the Queen being seised of a great Waste called Ruddesdown in the Parish of Chipnam granted to the Mayor and Burgesses of Chipnam the moyety of a yard-Yard-land in the said Waste without certainty in what part of the Waste they should have the same or the special name of the Land or how it was bounded and without any certain description of it And afterwards the Queen granted to the said Sir Walter the said Waste and afterwards the said Mayor and Burgesses by warrant of Attorney
of the Informer And afterwards by Award of the Court it was ruled that that Entry by the Attorney is not any Barr quoad the Informer so if the Queen be Nonsuit so the Nonsuit of the Informer is no Barr against the Queen And Wray said that such was the opinions of Anderson and Gawdy Iustices c. CLXII The Queen against Lewis Green and others Trin. 30 Eliz. In the Kings Bench. Intrat Hill. 30 Eliz. Rot. 10. AN Information for the Queen against Lewis Green and others Grants of the King. 2 Roll. 51. 1 Co. 46. The Case was King E. 6. was seised of the Manor of Stepneth and twenty acres of Lands in Stepneth called Stepneth Marsh and of another Marsh also called Stepneth Marsh and granted unto the Lord Wentworth and his Heirs the Manor of Stepneth in the County of Midd. Nec non mariscam in Stepneth appel Stepneth Marsh in com praedict nec non omnia terr ten eidem Manerio five premissis pertinent And if twenty Acres called Stepneth Marsh not parcel of the said Manor pass or not was the Question Cook that they shall pass Here this grant doth consist of three parts 1. The grant of the Manor 2. Nec non mariscum in Stepneth 3. Nec non omnia terras tenementa dicto Manerio sive praemissis pertinen And by the second clause these twenty acres shall pass be the same parcel or not and the latter words cannot refer to that for it is certainly expressed before And the case lately agreed in the Court of Wards betwixt Bronker and Robotham was cited which was That the King being seised of the Manor of Sandridge and Newnam parcel of the possessions of the Monastery of Saint Albans and part of the Manor of Newnam extended into the Parish of Sandridge and the King granted the Manor of Sandridge nec non omnia terras tenementa sua in Sandridge dicto nuper Monasterio pertinen nec non omnia terras tenementa sua dicto Manerio de Sandridge pertinen By which grant although that the latter clause doth restrain it to the Manor of Sandridge yet the general words of the second clause shall extend to make pass all the whole Manor of Newnam which extended into the Parish of Sandridge a Decree was in the said Court accordingly Hob. 175. 303. Dy. 207. 6 Co. 39. At another day the case was argued and the case put to be thus King E. 6. was seised of the Manor of Hackney and Stepneth in the County of Midd. within which was a great Marsh called Stepneth Marsh parcel of the Manor of Stepneth which the King had by exchange of the Bishop of London and there were also twenty acres of Lands which were lying in Stepneth Marsh and were known by the name of Stepney Marsh late parcel of the possessions of the Priory of Grace and granted unto the Lord Wentworth and his Heirs Dominia sive Maneria sua de Hackney Stepney nec non mariscos suos de Stepney in Stepney praedict nec non omnia Maneria terras tenem mariscos dictis Maneriis aut caeteris praemissis pertinen If these twenty acres pass in the general words in the first Nec non or if the words in the second Nec non dictis Maneriis pertinen doth restrain the generality of the first words was the question And by Phillips the twenty acres do not pass for the grant of the King shall be always taken to a common intent And because here the King hath these Marshes by several titles that Marsh only shall pass which by general entendment shall be intended to pass scil the great Marsh which was in truth parcel of the Manor of Stepney and not the twenty acres which the King hath by a special title although that ex vi termini the grant may extend unto it Also the grant of the King shall be taken secundum intentionem Regis Grants of the King taken according to his intent and not in deceptionem and here it appearth that the intent of the King was not that these twenty acres should pass i. the King grants Maneria sua terras and all Lands c. iisdem pertinen but it is not part of any thing pertinen to those twenty acres therefore his intent was not to pass them Secondly the grant is to have them as fully as the Bishop of London had them without mentioning of the Prior. Thirdly as fully as the Bishop had granted them to us but the Bishop had not granted these twenty acres to the King. Fourthly in the Letters Patents the King recites the value of the Manor of Hackney and Stepney but no value of the twenty acres Quaere what difference there is betwitxt Stepney Marsh and the Marsh of Stepny As to the first the grant is iisdem ita praemissis pertinen which word praemissis includes the premisses or otherwise should be void Secondly the words as the Bishop had and as amply as we have from the Bishop are suplusage nihil operatur by them And if the King had not the same of the Bishop it is not material but they shall pass notwithstanding because by a special name As if the King grants to me Manerium de Dale quod à nobis nuper concelat fuit and in truth it ws not concealed yet it shall pass by his special name But if the grant had been Proviso that if the said Manor were concealed c. the same had been good for it is good by way of Proviso but not by reference As to the valuation the same is not material for who can restrain the bounty of the King. 29 E. 3. 7. and 8. The King granted omnes Advocationes pertinend to such a Priory quas nuper concessimus patri of the Patentee although the King had not ever made such a grant yet it is a good grant to the Sons causa qua supra Gawdy Iustice conceived that the twenty acres did pass and he confessed the case betwixt Bronkor and Robotham to be good Law for there the intention is fully that all appertaining to the Monastery whether it were parcel of the Mannor of Newnam or of Sandridge passeth 6 E. 6. 8. Dyer A man leaseth all his Meadows in A. containing ten acres whereas in truth they are twenty acres all passeth c. And if the King grant the Manor of D. to A and further saith Damus concedimus so freely as I. S. had it and I. S. never had it yet the grant is good And as to the misrecital of the value the same is helped by the Statute Clench Iustice to the same intent and the Iury hath found that the twenty acres are parcel of Stepney Marsh Wray to the same intent Against express words no favour shall be given to the King. And note that the Marshes pertaining to the Manor are in the third clause ergo the Marsh in the second clause shall be intended a Marsh in gross or
was moved in arrest of Iudgment that it appeareth upon the Plaintiffs own shewing that the Plaintiff hath the Free-hold and therefore he ought to have an Assize but the same was not allowed and therefore the Plaintiff had Iudgment CCCXXXIV Kensam and Redings Case Trin. 33. Eliz. In the Kings Bench. THe Case was Grants of the King 1 Cro. 244. Hob. 170. That the Queen by her Letters Patents granted the Site of the Manor of Brokeley lying in W. and all the Lands Pastures Woods Vnder-woods and Hereditaments parcel or appertaining to the said Site exceptis omnibus grossis arboribus boscis maremio and further in the said Letters Patents there was a Proviso that the Lessee should have sufficient House-boot and Hedge-boot c. And if notwithstanding the said Exception the Lessee should have the Vnderwoods was the question And it was argued that the Lessee should have subbois i. e. Vnderwoods for that is granted by express words and the exception extends only grossis arboribus for this word grossis in the exception extends to all that which follows Gawdy Iustice If it were in the case of a common person it is clear that upon such matter the Vnderwoods are not excepted 7 E. 6. Dyer 79. A Lease is made of a Mannor except Timber and great Woods the Vnderwoods shall pass Fenner Iustice The Proviso that the Lessee should have House-boot shews the Queens intent that the Vnder-woods should not pass Wray If this word bois in the exception should not extend to Vnder-woods it should be vain and signifie nothing which should be hard in the Case of the Queen CCCXXXV Trin. 33. Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared of Trover and of a Bag of mony and the conversion of it Trover and Conversion 1 Cro. 97. 201 555 693. The Defendant pleaded that the Bag of mony was delivered to him as a pawn to keep until A. and B. were agreed which of them should have it and pleaded further that A. and B. were not yet agreed who of them should have it for which cause he kept it absque hoc that he converted it to his own use upon which the Plaintiff did demur in Law It was moved that the Conversion is never traversable Wray Generally Conversion is not traversable but upon such special matter as is here Or if A. lend money to B. and B. delivereth a thing of the value to A. in pawn now the Conversion is traversable see the same case 4 E. 6. Br. Action upon the Case 113. so here Fenner agreed with Wray CCCXXXVI The Bishop of Lincoln and Cowpers Case Mich. 33. Eliz. In the Kings Bench. Prohibition THe Bishop of Lincoln sued a Prohibition against Cowper who had libelled against him in the Spiritual Court for Tithes out of the Manor of D. Tithes 1 Cro. 216. Post 331 332. And the Bishop did suggest that he and all his Predecessors had been seised of the said Manor and that as long as it was in their possessions had been discharged of Tithes and shewed that in the time of E. 6. the said Manor was conveyed to the Duke of Somerset in Fee and afterwards was re-granted to the Bishop and his Successors It was moved That the Prescription was not good because de non decimando And admit that the Prescription be good that same is interrupted by the seisin of the Duke of Somerset and although that the Manor be re-assured to the Bishop of Lincoln yet the Prescription is not revived as Homage Ancestrel if it be once in a Forrain Seisin although it be re-assured yet it is not revived But by Wray Gawdy and Fenner The Prescription is good in the Case of a Spiritual person but not in the case of a common person And they all were clear of opinion that the Prescription is not gon by this Interruption for Tithes are not issuing out of the Lands neither can Vnity of possession extinguish them neither are they extinguished by a release of all right of Land c. See for this Case Co. 11. part of his Reports in the Case of Pridle and Napper CCCXXXVII Dethick King of Arms Case 33. Eliz. In the Kings Bench. Indictment 1 Cro. 224. Yelv. 34. Noy 250. Misnosmer in an Indictment WIlliam Dethick against Garter King of Arms was indicted upon the Statute of 5 E. 6. for striking in the Church-yard For that the said Dethick in Pauls Church-yard in London struck I.S. It was moved If Cathedral Churches be within the meaning of the Statute The Court was clear of opinion that they were And afterwards the Defendant pleaded that before the Indictment found he was created and crowned by the Letters Patents of the Queen which he shewed chief and principal King of Arms and it was granted by the said Letters Patents that he should be called Garter and that that name is not in the Indictment and demanded Iudgment The Kings Attorney by Replication said That by the Law of Arms and Heraldry every one who is made King of Arms before he receives his Dignity ought to be led betwixt two Officers of Arms by the Arms before the Earl Marshal of England or his Deputy and before him are to go four Officers of Arms whereof the one is to bear his Patent another a Collar of Esses the third a Coronet of Brass double guilt fourthly a Cup of Wine and his Patent shall be read before the Earl Marshal and afterwards his Coronet shall be set upon his Head and the Collar of Esses about his neck and afterwards the Wine poured upon his Head And that the Defendant had not received these Ceremonies for which cause he is not King of Arms nor to be called upon to which the Defendant did demur in Law. Broughton argued for the Defendant and he took Exception to the Replication because it is pleaded there that secundum legem Heraldorum Garter upon his Creation ought to receive c. of which Law this Court cannot have Conusance and therefore the Replication ought to be scil Secundum legem Angliae If in Appeal the Defendant wage Battel although that belongs unto Arms and Heraldry yet it shall be pleaded according to the Law of the Land and shall not speak of the Law of Arms. So if an Infant be made a Knight and he be to plead in discharge of his Wardship he shall plead according to the Law of the Land and yet the degree of a Knight belongs to the Law of Arms 11 E. 3. Dower against the Earl of Richmond who was also Duke of Britain who pleaded to the Writ That he was Duke of Britain and not so named in the Writ but the Court did not regard it for they cannot have knowledge of it so not here of the Law of Heraldry Also this Court cannot write to the Heralds to certifie it as they may to the Marshal of the King or to the Bishop But we have sufficiently
over the Feoffees do not pay the said mony within the said 15 days afterwards Curties attorns to the Feoffees It was moved if the Reversion of the Lands passed to Curties passeth by the Feoffment of the Manor without attornment which see Littleton 133 134. 2. Attornment If by the attornment of Curties after the 15 days the uses can rise to Bracebridge and his wife c. and it was said That the Case 20 H. 6. Avowry 11 12. If a Manor be granted for life the remainder over in Fee Tenant for life dieth if the Tenants attorn to him in the Remainder the same is good and if a Reversion be granted to two and one of them dieth attornment to the survivor is good and if a Reversion be granted to Husband and Wife in special tail the Wife dieth afterwards without issue Attornment to the Husband is good and if a Reversion be given in Frank-marriage and afterwards the Husband and Wife are divorced and afterwards the particular Tenant attorns to the Wife the same is good and by Manwood If a Man seised of a Manor the demesns of which extends into two Counties and hath issue a Son and a Daughter by one woman and a Son by another woman and dieth the eldest Son enters into the Demesns in one County only and takes the profit in one County only and dieth without issue the Daughter shall have and inherit the Demesns or Services whereof her Brother was seised and the Son of the half-blood the rest And by Manwood the attornment of Curties who was the first Lessee shall bind Moore the second Lessee for he ought to attorn against whom lieth the Quid juris clamat And if a Lease for years be made of a Manor and the Reversion of it be granted to another in fee if the Lessee for years attorneth it shall bind the Tenants of the Manor 18 E. 2. A man seised of a Manor in the right of his Wife leased parcel of it for years without his wife the Reversion thereof is not parcel of the Manor contrary if the Lease had been made by Husband and Wife And by Dyer if Tenant in tail of a Manor leaseth parcel for years and afterwards makes a Feoffment of the whole Manor and makes Livery in the Demesns not leased the Reversion of the Land leased doth not pass for by the Feoffment a wrong is done to the Lessor which the Law shall not further enlarge than appeareth by the Deed contrary in case of Tenant in fee of a Manor and that without Deed with Attornment And it was the Case of one Kellet 25 H. 8. Kellet was Cestuy que use before the Statute of 27 H. 8. of divers Lands by several Conveyances the use of some being raised upon Recovery of some upon Fine and of some upon Feoffment and he made a Feoffment of all these Lands by Deed with a Letter of Attorney to make Livery the Attorney entred into part of the Land and made Livery in the name of the whole and it was agreed by all the Iustices that the Lands passed notwithstanding in others possession i.e. other Feoffees And by Dyer If the Tenants of a Manor pay their Rents to the Disseisor they may refuse again to pay them and if a Lease be made for years the Remainder for life if the Lessor will grant over his Reversion the Lessee for years shall Attorn and his attornment shall bind him in the remainder for life and if a Lease be made to one for years the remainder over for life the remainder to the Lessee for years in Fee. Now if the Lessee for years grant all his interest c. there needs no attornment and if Grantee of a Rent in fee leaseth for life and afterwards grants the Reversion to another the Attornment of the Ter-tenant is not requisite but only of the Grantee for life It was also holden Relation That this Attornment by Curties two years after the Livery was sufficient for it shall have relation to the Livery to make it parcel of the Manor but not to punish the Lessee for waste done mean between the Livery and the Attornment but betwixt the Feoffor and the Feoffee it shall pass ab initio It was holden also That although the uses for it limited are determined by the default of payment within the 15 days yet the Feoffees shall take the Reversion by this Attornment to the second uses 2 Len. 222. and if I enfeoff one upon condition to enfeoff J.S. who refuseth now the Feoffee shall be seised to my use but if the condition were to give in tail contrary So here is a Limitation beyond the first use which shall not be defeated for want of Attornment to the first uses and here it was not the meaning of Bracebridge to have the Lands again upon breach of the condition in his former estate but according to the second use and Iudgment was given in the principal case according to the resolutions of the Iudges as aforesaid And it was said by Harper Iustice That if a Feoffment in Fee be made to J. S. upon condition that he shall grant to A. a Rent-charge who refuseth it J.S. shall be seised to his own use Antea 199. CCCLVI. 20 Eliz. In the Common Pleas. THe Case was this Lord and Tenant by service to pay every year such a quantity of Salt but since 10 H. 7. the Tenant hath always paid the money for Salt. The question was If the Lord might resort to the first service Seisin and if the money be Seisin of the Salt. And Manwood took this difference i.e. where the Lord takes a certain sum of money for the Salt the same is not any Seisin for the service is altered as at the first Socage Tenure was a work done by labor i.e. Plowing but now it is changed into certain Rent and the Lord cannot resort to have his Plowing and in Kent divers Tenants in ancient time have paid Barley for their Rent but the same afterward was paid in a certain sum of money so as now the Lord of Canterbury who is Lord of such Tenements cannot now demand his Barly c. but if the sum which hath been used to be paid be incertain one year so much according to the price of Salt then such a payment of money is a sufficient Seisin of the Salt. Quod fuit concessum per Curiam CCCLVII 20 Eliz. In the Common Pleas. IN Accompt brought by an Heir Copyholder for the profits of his Copyhold Lands taken during his Nonage the Defendant pleaded That by the Custom of the said Manor Accompt by the Heir of a Copyholder the Lord of the Manor might assign one to take the profits of a Copyhold descended to an Infant during his Nonage to the use of the Assignee without rendring an accompt and the same was holden to be a good Custom as a Rent granted to one and his Heirs Custom to cease during the
good as a new devise in Reversion upon the precedent Condition and not as a Remainder quod Windham concessit but Periam was very strong of opinion That it is a Limitation Two Ioyntenants of a Term A. and B. A. grants his part to B. nothing passeth by it for as a Grant it cannot be good Owen 102. 1 Cro. 314. 1 Inst 186. for as one Ioyntenant cannot enfeost his Companion no more can he vest any thing in him by grant for he cannot grant to him a thing which he hath before for Ioyntenants are seised and possessed of the whole all which was granted per Curiam and Anderson said That if Lands be granted to A. and B. and the Heirs of A. B. cannot surrender to A. for a Surrender is as it were a grant And as a Release it cannot enure for a Release of a Right in Chattels cannot be without a Deed. CCCLXXXIV Hollingshed and Kings Case Hill. 29 Eliz. In the Common Pleas. Debt HOllingshed brought Debt against King and declared That King was bounden to him in a Recognizance of two hundred pounds before the Mayor and Aldermen of London in interiori Camera de Guildhall London upon which Recognizance the said Hollingshed heretofore brought a Scire facias before the said Mayor c. in exteriori Camera and there had Iudgment to recover upon which Recovery he hath brought this Action and upon this Declaration the Defendant did demur in Law because that in setting forth of the Recognizance he hath not alledged That the Mayor of London hath Authority by Prescription or Grant to take Recognizances and if he hath not then is the Recognizance taken Coram non Judice and so void And as to the Statute of West 2. cap. 45. It cannot be taken to extend to Recognizances taken in London which see by the words De his quae recordat sunt coram Cancellario Domini Regis ejus Justiciariis qui Recordum habent in Rotulis eorum Irrotulatur c. And also at the time of the making of that Statute 1 Cro. 186 187. London had not any Sheriffs but Bayliffs and the said Statute ordains that Process shall go to Sheriffs c. But the whole Court was clear of a contrary opinion for they said We will know that those of London have a Court of Record and every Court of Record hath an Authority incident to it to take Recognizances for all things which concern the Iurisdiction of the said Court and which arise by reason of matters there depending Another matter was objected for that the Recognizance was taken in interiori Camera but the Court was holden in exteriori Camera and therefore not pursuant But as to that it was said by the Lord Anderson That admit that the Recognizance was not well taken yet because that in the Scire facias upon it the Defendant did not take advantage then thereof he shall be bounden by his said admittance of it as if one sue forth a Scire facias as upon a Recognizance whereas in truth there is not any Recognizance and the party pleads admitting such Record and thereupon Iudgment is given against him it is nor void but voidable Fleetwood Recorder of London alledged many Cases to prove that the Courts of the King are bounden to take notice Priviledges of London That they of London have a Court of Record for if a Quo warranto issueth to Iustices in Eyre it behoves not them of London to claim their Liberties for all Courts of the King are to take notice of them And at last after many motions the opinion of the Court was for the Plaintiff And it was said by Anderson and in manner agreed by the whole Court That if depending this Demurrer here the Iudgment in London upon the Scire facias be reversed yet the Court here must proceed and not take notice of the said Reversal CCCLXXXV Bedingfeild and Bedingfeilds Case Hill. 29 Eliz. In the Common Pleas. Dower DOwer was brought by Anne Bedingfeild against Thomas Bedingfeild The Tenant out of the Chancery purchased a Writ De circumspecte agatis setting forth this matter That it was found by Office in the County of Norfolk that the Husband oâ— the Demandant was seised of the Manor of N. in the said County and held the same of the Queen by Knights Service in chief and thereof dyed seised the Tenant being his Son and Heir of full age by reason whereof the Queen seised as well the said Manor as other Manors and because the Queen was to restore the Tenements tam integre Primer seisin c. as they came to her hands it was commanded the Iudges to surcease Domina regina inconsulta It was resolved per Curiam That although the Queen be entituled to have Primer seisin of all the Lands whereof the Husband of the Demandant dyed seised yet this Writ did not extend unto any Manors not found in the Office for by the Law the Queen cannot seise more Lands than those which are contained in the Office And therefore as to the Land not found by the Office the Court gave day to the Tenant to plead in chief And it was argued by Serjeant Gawdy for the Tenant That the Demandant ought to sue in the Chancery because that the Queen is entituled to have her Primer Seisin and cited the case of 11 R. 2. and 11 H. 4. 193. And after many motions It was clearly agreed by the Court That the Tenant ought to answer over for the Statute De Bigamis Cap. 3. provides that in such case The Iustices shall proceed notwithstanding such seisin of the King and where the King grants the custody of the Tenant himself 1 H. 7. 18 19. 4 H. 7. 1. A Multo fortiori against the Heir himself where he is of full age notwithstanding the possession of the King for his Primer seisin By the Statute of Bigamis after the Heir was of full age the Wife could not be endowed in the Chancery But now by the Prerogative of the King such wives may be endowed there Si viduae illae voluerint and after many motions The Court awarded That the Tenant should plead in chief at his peril for the Demandant might sue at the common Law if she pleased CCCLXXXVI Hill. 28 Eliz. In the Common Pleas. THe Case was Exchange The Husband was seised of Lands in the right of his Wif the Husband and his Wife both joyned in exchange of the Lands with a stranger for other Lands which exchange was executed the Husband and the Wife seised of the Lands taken in exchange aliened the same by Fine It was holden by Rhodes and Windham Iustices That the Wife after the death of her Husband might enter into her own Lands notwithstanding that Fine And Rhodes resembled it to the case reported by my Lord Dyer 19 Eliz. 358. The Husband after marriage assured to his Wife a Ioynture they both levy a Fine 1 Inst 36.
Southcotes case Southcotes case So a Title of Cessavit in the Feoffees shall be executed by the Statute So if the King grants to the Feoffees in use a Fair Market or Warren these things shall be executed by the Statute Clerentius case as it was holden in the Case of Clarentius As to the Condition they conceived That it is broken for where the Devisor had allowed to the Devisee to discontinue for life to make a Ioynture to his Wife now he hath exceeded his allowance for he might have made a Ioynture to his wife indefeisable by Fine upon a Grant upon a Render for life c. But this Fine with the Proclamations is a Bar to the former entail which was created by the Devise and hath created a new entail and the former tail was barred by the Fine against the intent of the Devisor Also by this Fine he hath created a new Remainder so as his Issue inheritable to his new entail might alien and be unpunished which was against the meaning of the Devisor And as to the Lease for lives to the Defendants the same is not any breach of the Condition for that is warranted by the Statute of 32 H. 8. which enables Tenant in tail to make such a Lease so as it cannot be said Discontinuance which Anderson and Periam granted But the Fine levied after is a breach of the Condition and then the Re-entry upon the Lessees who have their estates under the Condition is lawful As where the wife of the Feoffee upon Condition is endowed and afterwards the Condition is broken now by the Re-entry of the Feoffor the Dower is defeated And Shutleworth put this case A Feoffment is made upon Condition that the Feoffee shall lease the Lands to A. for life and afterwards grant the Reversion to B. in Fee the Feoffor may re-enter for by this Conveyance he in the Reversion is immediate Tenant to the Lord where by the intended assurance the particular Tenant ought to be Puckering Fenner and Walmesley contrary And by Walmesley By this devise the use only passeth and not the Land it self for the Statute of 1 R. 3. extends only to Acts executed in the life of Cestuy que use and not to devises which are not executed till after the death of the Devisor which see 4 Ma. Dyer 143. Trivilians case See also 6 E. 6. Dyer 74. The Lord Bourchiers case but 10 H. 7. Cestuy que use deviseth That his Executors shall sell the Land now by the sale of the Land in possession for the same is in a manner an Act in his life for the Vendee is in by Cestuy que use and here is a Condition and not a Limitation for the nature of a Condition is to draw back the estate to the Feoffor Donor or Lessor but a Limitation carrieth the estate further And he conceived That the Condition is not broken by this Act for the intent of the Devisor is pursued for his meaning was That the wife should have a Ioynture indefeisable against the issue in tail and that the inheritance should be preserved that both should be observed And he said that this Fine being levied by him in the Reversion upon an estate for life is not any discontinuance but yet shall bar the estate Tail. And the Iustices were clear of opinion that the Condition is broken and also that the intent of the Condition is broken for it might be that Charles had issue by a former wife which by this Fine should be disinherited and a new Entail set on foot against the meaning of the Devisor c. and afterwards Iudgment was given for the Plaintiff CCCCX Simmes and Wescots Case Hill. 31 Eliz. Rot. 355. In the Kings Bench. IN an Action upon the Case the Plaintiff declared 1 Cro. 147. That in consideration that he would marry the Defendants Daughter the Defendant promised to give him 20 l. and also to procure him all the Corn growing upon such Lands and to provide necessaries for the wedding dinner the Defendant did confess the communication betwixt them and that he promised to give the Plaintiff 20 l. so as he would procure a Lease of certain Lands to his Daughter for her life absque hoc that he promised modo forma The Iury found the promise of the 20 l. but not any other thing it was moved in arrest of Iudgment that the Assumpsit whereof the Plaintiff hath declared although it consist of divers things yet it is entire and if the whole is not found nothing is found and the Case of 21 E. 4. 22. was cited touching variance of Contract as where an Action of Debt is brought upon a Contract of a Horse and the Iury found a Contract for two Horses the Plaintiff shall never have Iudgment On the other side it was said That the Plaintiff shall recouer damages for the whole that is found i. for the 20 l. See 32 H. 8. Br. Issue 90. In an Action upon the Case the Plaintiff declared that the Defendant did promise to deliver four Woollen-cloaths the Defendant pleaded That he did promise to deliver four Linnen-cloaths absque hoc that he promised c. the Iury found That the Defendant did promise to deliver two Woollen-cloaths and the Plaintiff did recover damages for the two So in Wast the Wast is assigned in succidendo 20 Oaks upon which they are at Issue the Iury find but ten Oaks the Plaintiff shall have Iudgment for so much and shall be amerced for the residue Gawdy Iustice Here are several Assumpstis in Law as Br. 5. Ma. Action sur le Case 108. a man in consideration of a Marriage assumes to pay 20 l. per Annum for four years two years incur the party brings an Action upon the Case for the arrearages of the two years Wray In an Action upon the Case the Plaintiff ought not to vary from his Case as if a promise be grounded upon two considerations Ragula and in an action upon it the Plaintiff declares upon one only he shall never have Iudgment and here the Iury have not found the same promise Clench If promise be made to deliver a Horse and a Cow and the Horse is delivered but not the Cow the party shall have an Action for the Cow but he shall declare upon the whole matter and afterwards Iudgment was given quod querens nihil capiat per billam CCCCXI Stile and Millers Case Trin. 31 Eliz. In the Kings Bench. Tithes 1 Cro. 161 578. 11 Co 13. A Parson Leased all his Glebe Lands for years with all the profits and commodities rendring 13 s. 4 d. pro omnibus exaction ibus demandis and afterwards libelled in the Spiritual Court against his Lessees for the Tithes thereof the Lessee obtained a Prohibition See 32 H. 8. Br. Dis 17. 8 E. 2. Avowry 212. Wray Tithes are not things issuing out of Lands nor any secular duty but spiritual and if the Parson doth release to
under the Common Seal authorized one A. to enter in the said Waste and in the behalf of the said Mayor and Burgesses to make election of the said moyety Election c. who did so accordingly And upon this matter gives in evidence the parties did demur in Law and the Iury were discharged 12 Co. 86. 87. Dy. 372. b. 281. Noy 29. And it was holden and resolved by the whole Court that the grant to the Mayor c. was utterly void for the incertainty of the thing granted And if a common person do make such a grant it is good enough and there the Grantee may make his choice where c. and by such choice executed the thing shall be reduced into certainty which choice the Grantee cannot have against the Queen which difference was agreed by the whole Court And it was further holden that this grant was not only void against the Queen her self but also against Sir Walter Hungerford her Patentee It was further holden by the Court that if a common person had made such a grant which ought to be reduced to certainty by Election and the Corporation to whom the grant was made ut supra should not make their election by Attorney but after that they were resolved upon the Land they should make a special warrant of Attorney reciting the grant to them in whih part of the said Waste their grant should take effect East West c. or by buttals c. according to which direction the Attorney is to enter c. XXXVII Watts and Jordens Case Trin. 27. Eliz. In the Common Pleas. IN Debt by Watts against Jorden process continued until the Defendant was Out-lawed and upon the Capias utlagatum he appeared and pleaded to issue which was found for the Plaintiff and Iudgment given accordingly And now came Jourden and cast in a Writ of Error Error and assigned for Error that he appeared upon the Capias utlagatum and pleaded to issue the Original being determined and not revived by Scire facias upon his Charter of pardon Anderson Iustice was of opinion that it was not Error for the Statute of 18 Eliz. had dispensed with it being after verdict for the words of the Statute are For want of any Writ Original or Iudicial Windham Iustice contrary for the Statute doth not extend but where the Original is imbeselled but in this Case it is not imbeselled but in Law determined and at last the Writ of Error was allowed XXXVIII Trin. 23 Eliz. In the Common Pleas. THe Case was A. seised of Lands by his Will devised 3 Len 119. that his Excutors should sell his Lands and died the Executors levy a Fine thereof to one F. taking mony for the same of F. If in title made by the Conusee to the Land by the Fine It be a good plea against the Fine to say Quod partes ad finem nihil habuerunt was the question Fines levyed Anderson conceived that it was But by Windham and Periam upon Not-guilty The Conusee might help himself by giving the special matter in evidence in which Case the Conusee shall be adjudged in not by the Fine but by the Devise As by Windham A. deviseth Devise Co. 1 Inst 113. a. that his Executors shall sell a Reversion of certain Lands of which he dieth seised they sell the same without deed and good for the Vendee is in by the Devise and not by the conveyance of the Executors See 19 H. 6. 23. And by Periam the Conusee may help himself by pleading as he who is in by the Feoffment or grant of Cestuy que use by the Statute of 1 R. 3. XXXIX Albany and the Bishop of St. Asaphs Case Trin. 27 Eliz. In the Common Pleas. ALbany brought a Quare impedit against the Bishop of St. Asaph 1 Cro. 119. who justified for Lapse The Plaintiff by Replication said that before the six months expired he presented to the said Bishop one Bagshaw Quare impedit a Master of Arts and Preacher allowed c. The Defendant by way of Rejoynder said that the Church upon the presentment to which the Action is brought is a Church with Cure of Souls and that the Parishioners there are homines Wallici Wallicam loquentes linguam non aliam And that the said Bagshaw could not speak or understand the Welch Language for which cause he refused him and gave notice to the Plaintiff of such refusal and of the cause of it c. upon which the Plaintiff did demur in Law. And first it was agreed and resolved by the whole Court that in the computation of the six months in such Cases the Reckoning ought not to be according to the Kalender January February c. but Secundum numerum singulorum dierum Co. 2 Inst 361. Co. 6. 61. b. Yel 100. 2 Cro. 141. Departure allowing eight and twenty days to every month Walmesley Serjeant argued for the Plaintiff and he took exception to the Rejoynder for in that the Defendant had departed from his Bar for in the Bar the Defendant intitles himself to the presentment by reason of Lapse and in the Rejoynder he confesseth the presentment of the Plaintff and pleads his refusal of his Clark and shewes the cause of it sc the want of the Welsh Language which is a Departure And he cited divers Cases to the same purpose 27 H 8. 3. In forfeiture of Marriage the Defendant pleaded the Feoffment of the Ancestor of the Heir to divers persons absque hoc that he died in the homage of the Plaintiff the Plaintiff by Replication said that the said Feoffment was made to the use of the said Ancestor and his Heirs The Defendant by Rejoynder saith that the said Ancestor did declare his Will of the said Lands the same was holden a Departure for he might have pleaded the same in Bar and 21 H. 7. 17 18. 37 H 6. 5. in Trespass the Defendant pleaded that I. S. was seised of the Land where c. being Land devisable and devised the same to him and his Heirs the Plaintiff by Replication said that I. S. at the time of the devise was within age c. The Defendant by Rejoynder said that the custom there is that every one of the age of fifteen years might devise his Lands c. the same was holden a departure But to this Exception the Court took not much regard But as to the matter in Law it was argued by Walmesley that the defect of the Welsh Language assigned by the Defendant in the presence of the Plaintiff is not a sufficient Cause of refusal for notwithstanding that it be convenient that such a Presentee have the knowledge of such Language yet by the Law of the Land ignorance of such Language where the party hath more excellent Languages is not any disability and therefore we see that many Bishops in Wales who have the principal Cure of Souls are English-men and the Welsh
things 1. Leases the number of the years 21 non ultra 2. antiquus redditus vel eo amplior yet in reason and good understanding we ought to think that the intent of the Act was that the said Manor should now come to the said Lady Frances surcharged with Leases in Reversion or to begin at a day to come for if by this Act the said Earl might make a Lease to begin three months after by the same reason he might make a Lease to begin twenty years after and also to begin after his death It hath been objected that the Lord Treasurer had a Commission to make Leases of the Queens Lands and that by virtue thereof he made Leases in Reversion I know the contrary to that for every such Lease is allowed by a Bill assigned and not by the ordinary Commission aforesaid the words of our Act are Dimissiones facere pro termino 21. annorum that shall be meant to begin presently As if I lease to you my Lands for one and twenty years it shall be intended to begin presently and he cited the Case betwixt Fox and Collier upon the Statute of 1 Eliz. cencerning Leases made by Bishops That four years of a former Lease being in being the Bishop leased for one and twenty years the same was a good lease notwithstanding the former lease for the lease began presently betwixt the parties And it hath been adjudged that a lease for years by a Bishop to begin at a day to come is utterly void And he cited the Case of the late Marquess of Northampton who by such an Act of Parliament as ours was enabled to make leases of the Lands of his Wife for one and twenty years and of the said Lands an ancient lease was made before the said Act which was in esse and before the expiration thereof he made a lease by virtue of the said Act to commence after the expiration of the former lease and that lease was allowed to be a good lease warranted by the said Statute because that the first lease which was in esse was not made by force of the said Act but if the said former lease had been made by virtue of the said Statute the second lease had been utterly void XLV Trin. 28 Eliz. In the Kings Bench. Copy-hold Surrender by Attorney not good A Copy-holder of the Manor of the Earl of Arrundel did surrender his customary Lands to the use of his last Will and thereby devised the Lands to his youngest Son and his Heirs and died the youngest Son being in prison makes a Letter of Attorney to one to be admitted to the Land in the Lords Court in his room and also after admittance to surrender the same to the use of B. and his Heirs to whom he had sold it for the payment of his debts And Wray was of opinion that it was a good surrender by Attorney but Gawdy and Clench contrary 3 Cro. 218. 9 Co. 75. and by Gawdy If he who ought to surrender cannot come in Court to surrender in person the Lord of the Manor may appoint a special Steward to go to the prison and take the surrender c. and by Clench Lessee for years cannot surrender by Attorney but he may make a deed purporting a surrender and a letter of Attorney to another to deliver it XLVI Troublefield and Troublefields Case Trin. 28 Eliz. In the Kings Bench. Dy. 337. b. Co. 1 Inst 15. 2. b. 52. 245. b. 252. 6. Post 51. Entry THe Case was that a Copy-holder did surrender to the use of his Will and thereby devised the Land to his Wife for life the remainder over to his son in tail and died the Wife entred and died a stranger did intrude upon the Lands and thereof made three several Feoffments to three several persons he in the Remainder entred upon one of the said three Feoffees in the name of all the Lands so devised and made a lease of the whole Land And by Clench and Wray it was a good Entry for the whole and by consequence a good lease of the whole Gawdy contrary Note all the Lands were in one County See 16 Eliz. Dyer 337. 9 H. 7. 25. XLVII Parmort and Griffina's Case Trin. 28 Eliz. In the Kings Bench. IN Debt upon an Obligation by Parmort against Griffina a Merchant-stranger the Defendant pleaded Debt that the Obligation was made upon condition for the performance of certain Covenants contained within certain Indentures and shewed what c. and alledged further that in the said Indenture there is a proviso that if aliqua lis vel controversia oriatur imposterum by reason of any clause article or other agreement in the said Indenture contained that then before any sute thereupon attempted the parties shall choose four indifferent persons for the ending thereof which being done the Indenture and Obligation shall be void And in fact saith that Lis controversia upon which the Action is brought groweth upon the said Indenture upon which there was a demurrer in Law. And because the Defendant hath not shewed specially upon what controversie or strife and upon what article certain The Court was clear of opinion that the Bat was not good And also the Court was of opinion Proviso taken strictly that the said Proviso did not extend to subject and submit the breach of every Covenant or Article within the said Indenture to the Arbitrament of the said four persons but only where strife and controversie doth arise upon the construction of any Covenant c. within the said Indenture so as the Defendant ought to have shewed such matter which fell within the Arbitrament by the meaning of the said Indenture and Iudgment was given against the Defendant XLVIII Partridge and Partridges Case Mich. 28 29. Eliz. In the Common Pleas. IN Dower by Partridge against Partridge the Case was Dower that Land was given to the Father for life the reversion to his Son and Heir for life the remainder to the right Heirs of the body of the Father The Father and Son joyn in a Feoffment to the Vncle in Fee scil to the Brother of the Father The Vncle takes a Wife the Father dieth the Son being his Heir in tail the Vncle dieth without issue so as the Land descendeth to the Son as Heir to his Vncle against whom the Wife of the Vncle brought Dower It was moved if the Son being Herein can to his Father and Heir also to his Vncle for the Fee descended be now remitted for then no Dower accrueth to the Wife of the Vncle for the estate of which she demands Dower is gone but if the livery in which the Son joyned with his Father be the livery of the Son Remittâ— the same lies in his way in the impediment and preventing of the Remitter so as during his life he shall be adjudged seised of the Lands in Feesimple by descent from his Vncle Then Dower lyeth for the same
the Land was entailed by the second Fine But that Exception was disallowed by the whole Court and a difference put by Anderson Where a man pleads the grant of an Advowson in gross by Tenant in tail in such case the life of the Tenant in tail ought to be averred for by his death the grant ceaseth But where a man pleads the Lease of Tenant in tail of a Manor with an Advowson appendant in such case such averment is not necessary So accordingly Smith Stapletons Case 15 Eliz. 431. And here it was moved if in as much as by the first Fine an estate for life was rendred to the Wife and by the second Fine in which she did not joyn an estate tail was limited unto her and now when the Husband dieth if he shall be remitted to her estate for life Co. 1 Inst 357. 2 Cro. 489. which Windham granted for that was her lawful estate and the second estate tortious But by Rhodes Periam and Anderson the Wife is at liberty to make her election which of the two estates she will have And as to the Writ to the Bishop for the Queen the Court was clear of opinion that it ought not to be granted upon this matter But all the question was if Regina inconsulta the Court would or ought to proceed And it was holden clearly by the whole Court that the tenure alledged modo forma could not be a tenure in chief for it is said that the Land was holden of the King as of the Castle of Dover in Capite LXXXVI Mich. 29 30 Eliz. In Communi Banco Intr. Pasc 28 Eliz. Rot. 602. Wast â— Cro. 40. 4â— WAst was brought by F. and his Wife agaist Pepy and counted 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 unto the use of himself and his Heirs in Fee c. without that that it was to the uses in the Count Vpon which they were at issue And it was found by verdict that the said Feoffment was unto the uses contained in the Count But the Iury further found that the estate of the Defendant by the limitation of the use was priviledged with the impunity for Wast that is to say without impeachment of Wast And it was moved if upon this verdict the Plaintiff shall have Iudgment And Anderson and Rhodes Iustices he shall for the matter in issue is found for the Plaintiff and that is the Feoffment to the uses contained in the Count and this impunity of Wast is a forrein matter not within the charge of the Iury and therefore the traverse of it but matter of surplusage As if I plead the Feoffment of I. 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 ever be had of such a liberty if it be not pleaded 30 H. 8. Dyer 41. In Dower the Tenant pleaded Ne unques seisi que Dower the Tenant pleaded that before the coverture of the Demandant one A. was seised of the Lands of which Dower is demanded in tail who made a Feoffment to a stranger and took the Demandant to Wife and took back an estate in Fee and died seised having issue inheritable Now although upon the truth of the matter she is not dowable de jure yet when the parties are at issue upon a point certain Hob. 53. Owen 91. no foreign or strange matter not in question betwixt the parties shall be respected in the point of the Iudgment But if the Defendant had pleaded it in bar he might have foreclosed the Demandant of her Dower Vide 38 H. 6. 27. 47 E. 3. 19. In a Praecipe quod reddat in the default of the Tenant one cause and shewed how 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 did counter-plead the receit saying the Defendant had fee upon which issue was joyned And it was found that neither the tenant nor he which prayed to be received had any thing in the Land 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 that is whether the Tenant was seised in Fee for it was confessed of both sides that he had an estate for life and with that matter the Iury was not charged and they are not to enquire of it and so it was found against the Demandant for which cause the Receit was granted 7 H 6. 20. The parties were at issue upon a dying seised which is found by verdict but the Iury further find that the other party made continual claim this continual claim shall not be regarded in the point of Iudgment because it was pleaded in avoidance of the descent Windh Iustice contrary Forasmuch as it appeareth unto us upon the verdict that the Plaintiff hath not cause of Action and therefore he shall not have Iudgment As in Detinue No advantage of impunity for Wast shall be taken where the same is not pleaded though found by verdict Judgment Hob. 53. Owen 91. The Plaintiff counteth of a bailment by his own hand the Defendant pleadeth that he doth not detain c. the Iury find the Detinue but upon a bailment by another hand In this case notwithstanding that the Detinue be found yet the Plaintiff shall not have Iudgment But Rhodes Periam and Anderson in the principal case were of opinion Iudgment should be given for the Plaintiff for in no case the party shall have advantage of such a Liberty of impunity of Wast if he do not plead it And the Iurors are not to meddle with any matter which is not in issue And if it be but matter of surplusage it is to no purpose And afterwards Iudgment was given for the Plaintiff LXXXVII Bracebridge and Baskerviles Case Mich. 29 30 Eliz. In Communi Banco AN Action of Debt is brought against three Executors Debt against Executors one of them pleads in Bar a Recovery against himself in the Kings Bench The other two plead plene administr Against the first plea the Plaintiff did aver covin and upon the second plea they are at issue The first issue is found for the Plaintiff and as to the other plea it was found that the Defendants have in their hands thirty pounds of the goods of their Testator not administred Note the debt in demand was one hundred pounds upon which the Plaintiff had Iudgment to recover the goods of the Testator and thereupon had execution Now the Plaintiff brought a Scire facias against the said Executors supposing that many other goods of the Testator have come unto their
Kings Bench. PRowse brought an Action upon the Case against Cary for words That the Plaintiff did subborn procure and bring in false Witnesses in such a Court at Westminster c. The Defendant pladed Not guilty And it was found that he did procure and brought in false Witnesses but was acquitted of the suborning It was objected 1 Cr. 296. 554. 607. That the Action doth not lie for it may be that the Defendant did not know that he would depose falsly Thou art a forger of false Writings are not actionable and so it was adjudged for it may be understood of Letters of small importance but that Exception was not allowed for it shall be taken in malam partem and cannot be spoken of any honest man. CXXXII Pasch 30 Eliz. In the Kings Bench. A. Was bounden in an Obligation to B. upon condition that if A deliver to B. twenty Quarters of Corn the nine and twentieth of February next following datum presentium that then c. and the next February had but eight and twenty days And it was holden that A. is not bounden to deliver the Corn until such a year as is Leap-year for then February hath nine and twenty days and at such nine and twentieth day he is to deliver the Corn and the Obligation was holden good CXXXII Allen and Palmers Case Pasch 30 Eliz. In the Kings Bench. THe Case was a Copy-holder did surrender his Lands to the use of a stranger for life Copy-holder surrenders where his heir shall be in by purchase 2 Roll. 416. Co. 1 Inst 226. and afterwards to the use of the right Heirs of the Copy-holder who afterwards surrendred his Reversion to the use of a stranger in Fee died and the Tenant for life died and the right Heir of Palmer the Copy-holder entred And by Cook nothing remained in the Copy-holder upon the said surrender but the Fee is reserved to his right Heirs for if he had not made any such second surrender his Heir should be in not by descent but by purchase And the common difference is where a surrender is to the use of himself for life and afterwards to another in tail the remainder to the right Heirs of him who surrendreth there his Heirs shall have it by descent contrary where the surrender hath not an estate for life or in tail limited to him for there his Heir shall enter as a purchasor as if such use had been limitted to the right Heirs of a stranger And by him if a Copy-holder surrender to the use of his right Heirs the Land shall remain in the Lord until the death of the Copy-holder for then his Heir is known c. See Dyer 99. The Husband made a Feoffment to the use of his Wife for life and afterwards to the use of the right Heirs of the body of the Husband and Wife begotten they have issue the Wife dieth the issue cannot enter in the life of his Father for then he is not his Heir See Dyer 7 Eliz. 237. The Husband is sole seised in Fee and levieth a Fine of the Land to the use of himself and his Wife and the Heirs of the Husband and they render the Land to the Conusor for the life of the Husband the remainder to B. for life the remainder to the right Heirs of the Husband The Husband dieth B. dieth Now the Wife shall have the Land for the life of the Wife for she shall not lose her estate by that render and this remainder to the right Heirs of the Husband is void and the Land and estate in it is in him as a Reversion and not as a Remainder And a man cannot tail a Remainder to his right Heirs whilest he is living unless it begin first in himself See Br. 32 H. 8. Gard. 93. CXXXIV Pearle and Edwards Case Pasch 30 Eliz. In the Kings Bench. THe Case was that the Defendant had leased Lands to the Plaintiff rendring Rent for certain years Assumpsit Consideration 1 Cro. 94. and after some years of the Term expired the Lessor in consideration that the Lessee had occupied the Land and had paid his Rent promised the Plaintiff to save him harmless against all persons for the occupation of the Land past and also to come And afterwards H. distrained the Cattle of the Plaintiff being upon the Lands upon which he brought his Action Golding Here is not a sufficient consideration for the payment of the Rent is not any consideration for the Lessee hath the ocupation of the Land for it and hath the profits thereof and also the consideration is past Cook The occupation which is the consideration continues therefore it is a good Assumpsit as 4 E. 3. A Gift in Frank-marriage after the espousals and yet the marriage is past but the blood continues so here and here the payment of the Rent is executory every year and if the Lessee be saved for his occupation he will pay his Rent the better Godfrey If a man marrieth my Daughter against my will and afterwards in consideration of that marriage I promise him one hundred pounds the same is no good consideration 2 Len. 111. which Clench Iustice denied And afterwards the Plaintiff had Iudgment to recover his damages CXXXV Wakefords Case Pasch 30 Eliz. In the Kings Bench. Extinguishment of Copy-hold by Release THe Earl of Bedford Lord of the Manor of B. sold the Free-hold Interest of a Copy-holder of Inheritance unto another so as it is now no part but divided from the Manor and afterwards the Copy-holder doth release to the purchasor It was holden by the Court that by this Release the Copy-hold Interest is extinguished and utterly gone but if was holden that if a Copy-holder be ousted so as the Lord of the Manor is disseised and the Copy-holder releaseth to the Disseisor nihil operatur CXXXVI Docton and Priests Case Pasch 30 Eliz. In the Kings Bench. IN Trespass for breaking of his Close 1 Cro. 95. it was found by special verdict that two were Tenants in common of a house and of a close â—djoyning to the house and they being in the house make partition without deed of the house and the close see 3 E. 4. 9. 10. Partition without deed upon the Land is good enough Vide 3 H. 4. 1. And it seems by 3 E 4. Partition made upon the Land amounts to a Livery Vide 2 Eliz. Dyer 179. Partition by word out the County void 19 H. 6. 25. Betwixt Tenants in common not good without deed 2 Roll. 255. 47 E. 3. 22. being upon the Land it is good without deed Two Ioynt-tenants make partition by word make partition in another County the same is no partition for as to that matter the common Law is not altered by the Statute but as to compel such persons to make partition Wray Iustice conceived that the partition here being without deed was not good although made upon the Lands Vide 18 Eliz. Dyer 35.
in the Case which gives cause of suit in Chancery for they will not order a matter there which is directly against a Rule and Maxim of the common Law. As if a Feme Covert be bound c. and the Obligee bring her into the Chancery and if a man threaten me that if I will not pay to him ten pounds he will sue me in Chancery upon which I promise to pay it him no Action will lye And an Infant is not chargeable upon any contract but for his meat drink and necessary Apparel 19 Z. 4. 2. And in Debt upon such necessary Contract the Plaintiff ought to declare specially so as the whole certainty may appear upon which the Court may judge if the expense were necessary and convenient or not and upon the reasonableness of the price for otherwise if the necessity of the thing and reasonableness of the price doth not appear the Chancellor himself would not give any remedy or recompence to the party Wray Justice conceived that the Action would not lye for the contract was void and the Infant in an Action against him upon it may plead Nihil debet And if an Infant sell goods for money and doth not deliver them but the Vendee takes them he is a Trespassor but if the Infant had been bounden in an Obligation with a surety and afterwards at his full age he in consideration thereof promiseth to keep his surety harmless upon that promise an Action lyeth for the Infant cannot plead non est factum which see Mich. 28 29 Eliz. in the Case of one Edmunds And afterwards it was adjudged against the Plaintiff CLVII Charnock and Worsleys Case Trin. 30 Eliz. Rot 833. In the Kings Bench. Owen 21. 1 Cr. 129. CHarnock and his Wife brought a Writ of Error against Worsley the Case was that the Husband and Wife the Wife being within age levyed a Fine and the Wife upon inspection was adjudged within age it was moved if the Fine should be utterly reversed or as to the Wife only should stand against the Husband by Godfrey the Book of 50 E. 3. 6. was vouched where it is said by Candish that where such a Fine is reversed the Plaintiff shall not have execution till after the death of the Husband and by Coke and Atkinson a Fine acknowledged by the Husband and Wife is not like to a Feoffment made by them for in case of Feoffment something passeth from the Husband but in case of a Fine all passeth out of the Wife and the Conusee is in by her only And Atkinson shewed a Precedent in 2 H. 4. where the Fine was reversed for the whole and also another Precedent P. b. H. 8. Rot. 26. A Fine levyed betwixt Richard Elie Plaintiff and N. Ford. and Jane his Wife Deforceants the Wife being within age and Iudgment was given quod finis praedict adnulletur pro nullo penitus habeatur and that the Husband and Wife should be restored and thereupon a Writ issued to the Custos Brevium to bring into Court the Foot of the Fine and it was presently cancelled in Court. Wray this is a strong Precedent and we will not varse from it if other Precedents are not contrary Gawdy who was the same day made Iustice the Fine cannot be reversed as to one and stand as to the other and resembled it to the Case of Littleton 150. where Land is given to Husband and Wife in tail before coverture and the Husband aliens and takes back an estate to him and his Wife for their lives they both are remitted for the Wife cannot be remitted if the Husband be not remitted And a Precedent was cited to the contrary 7 Eliz. where the Case was that the Husband and Wife levyed a Fine the Husband died the Wife being within age the Wife took another Husband and they brought a Writ of Error and the Wife by inspection adjudged within age Fine reversed as to one to stand good against another and the Fine was reversed as to the Wife and her Heirs And it was argued by Golding that here the Writ of Error ought to abate for the Writ is too general whereas it ought to be special Ex querela A.B. nobis humillime supplicantis accepimus c. See the Book of Entries 278. Also the purclose of the Writ is ad damnum impsorum the Husband and the Wife whereas the Wife only hath loss by it and as to the Fine it self he conceived that it should be reversed but as to the Wife as if a man of full age and a man within age levy a Fine in a Writ of Error brought the Fine shall be reversed as to the Infant only and shall stand against the other and he cited the Case of the Lord Mountjoy 14. Eliz. Where a man seised in the right of his Wife acknowledged a Statute and afterwards he and his Wife levyed a Fine and he said that during the life of the Husband the Conusee of the Fine should hold the Land charged with the Statute Also in the Precedent of 2 H. 4. the Iudgment is that propter hunc alios errores the Fine should be reversed and I conceive that another Error was in the said Writ for which the Fine might be reversed in all viz. the Fine was levyed of two parts of the Manor of D. without saying in tres partes dividend And see that where two parts are demanded in a Writ 3 Co. 58 59. Modern Rep. 182. the Writ shall say so Brief 244 Coke contrary and as to the last matter I confess the Law is so in a Writ but not in a Fine for the same is but a Conveyance for it I be seised of a Manor and I grant to you two parts of the said Manor it is clear it shall be intended in three parts to be divided And as to the principal matter I conceive when the Fine is levyed by the Husband and Wife it shall be intended that the Land whereof c. is the Inheritance of the Wife if the contrary be not shewed and therefore if the party will have an especial Reversal he ought to shew the special matter as in Englishes Case A Fine was levyed by Tenant for life and he in the reversion being within age bringeth a Writ of Error now the Fine shall be reversed as to him in the Reversion but not as to the Tenant for life but here it shall be intended the Inheritance of the Wife and that the Husband hath nothing but in the right of his Wife and therefore she shall be restored to the whole for nothing passeth from the Husband but he is named with his Wife only for conformity 11 H. 7. 19. A. takes to Wife an Inheretrir who is attainted of Felony the King shall not have the Land presently by which it appeareth that all is in the Wife and she shall be restored to the whole and the Iudgment shall be according to the Presidents cited
before And as to the President cited 7 Eliz. the same is not to the purpose for the second Husband was a stranger to the Fine for it would be absurd to reverse the Fine as against him Egerton Solicitor General Presidents are not so holy quod violari non debeant as to be rules to other Iudges in perpetuum and I conceive that the Fine shall be reversed as to the Wife only for the Fine is but a Conveyance and the Husband may lawfully convey the Land of his Wife for his life and if the Husband alone had levyed the Fine the same had bounden the Wife during his life If a woman Lessee for life taketh to Husband him in the Reversion and they joyn in a Fine the Fine shall stand as to the Inheritance of the Husband but shall be reversed as to the Interest of the Wife Coke it shall be intended here all the Interest and estate in the Land to be in the Wife as 20 H. 7. 1. Where the Husband and Wife are vouched it shall be intended by reason of the Warranty of the Wife only and so the Counter-plea shall be of the seisin of the Wife and her Ancestors Wray when the Husband and Wife joyn in the Fine it shall be presumed the Inheritance of the Wife and if it be otherwise it ought to be specially shewed and as to that which hath been said that if the Husband alone had levyed a Fine it should have bounden the Wife during the life of the Husband the same is true but such Fine is but a discontinuance but the right continueth in the Wife but when the Husband and Wife joyn in the Fine all passeth out of her and if the Fine in such case for the Inheritance shall be reversed in all to whom belongs the Free-hold to whom shall he be attendant Gawdy 12 H. 7. 1. In a Praecipe quod reddat against three they vouch severally the Voucher was not received and yet they might have several Causes of Voucher but the Law presumes they are Ioynt-tenants and have a joynt cause of Voucher if the contrary be not shewed And afterwards Iudgment was given quod finis predict reversetur and Wray said he had conferred with many of the other Iustices who were of the same opinion Gawdy the Fine shall be reversed in all for this is an Error in Law of the Court F. B. 21. D. For by this Fine the Husband giveth nothing divided from the estate of the Wife but all passeth from the Wife and therefore all shall be reversed and if the Fine should be reversed as to the Wife only then the Fine levyed now by the Husband alone is a discontinuance by which the Wife by the common Law shall be put to her Cui in vita and that is not reason Also we cannot by this Reversal make the Conusee to have a particular estate during the life of the Wife And therefore the Fine is to be reversed for the whole and as void for the whole to the Conusee CLVIII Cage and Paxlins Case Trin. 30 Eliz. In the Kings Bench. 1 Cro. 125. 3 Len. 16. DAniel Cage brought an Action of Trespass against Thomas Paxlin for Trespass done in a Close of Wood called the Frith-Close and in the Park and for taking of certain Loads of Wood the Defendant pleaded that the Earl of Oxford was seised of the Mannor of W. of which the place where c. is parcel and leased the same to J. S. for years excepting all Woods great Trees Timber-trees and Vnderwoods c. And covenanted with the Lessee and his Assigns that he might take Hedg-boot and Fire-boot super dicta premissa and shewed further that the said I. S. assigned his Interest unto the Defendant and that he came to the said Close called the Frifth-Close Lease of Lands excepting the wood and cut the Wood there for Fire-boot as it was lawful for him to do c. And note that after the Lease aforesaid the said Earl had assured the Inheritance thereof to Cage the Plaintiff And it was argued by Godfrey that the Lessee cannot take Fire-boot in the said Close for the wood c. is excepted and was never demised and by the exception of the wood the soil thereof is excepted See 46 E. 3. 22. A. leased for life certain Lands reserving the great wood by that the soil also is reserved vi 33 H. 8. Br. Reservation 39 28 H. 8. 13. 3 Len. 16. And by the words of the Covenant the intent of the Lessor appeareth that the Lessee shall have his Fire-boot out of the residue of the Lands demised for praemissa here is equivalent with praedimissa And he cited the Case moved by Mountaine cheif Iustice 4 E. 6. in Plowden in the Case betwixt Dive and Manningham 66. A. leaseth unto B. a Manor for years excepting a Close parcel of it rendring a Rent and the Lessee is bounden to perform all Grants Covenants and Agreements contenta expressa aut recitata in the Indenture if the Lessee disturb the Lessor upon his occupation of the Close excepted he hath forfeited his Obligation c. But our Case is not like to that Post 122. And if I let the Manor of D. for years except Green-meadow and afterwards I covenant that the Lessee shall enjoy the Premisses the same doth not extend to Green-meadow Snagg Serjeant to the contrary and by him praemissa are not restrained to praedimissa but to all the Premisses put in the former part of the Indenture of Demise therefore the Lesse shall have Fire-boot in the one and the other 2 Roll. 455. 2 Cro. 524. Post 122. and he put a difference betwixt all Woods excepted and all woods growing excepted for in the one case the soil passeth in the other not And as to the Case cited before in Plowden 66. that is true for exception is an Agreement And he said that by that exception the soil it self is excepted and these woods which are named by name of woods contrary where a Close containeth part in woods and part in Pasture And by the exception of Timber-trees and Vnder woods all the other woods are excepted but not the soil As if a man grant all his Lands in D. Land Meadow Pasture and woods thereby passeth by exception of this Close of wood the soil also is excepted and he conceived that although all the woods be excepted yet by the Covenant an Interest passeth to the Lessee Select Case 155 Hob. 173. Dy. 19 198 314. 21 H. 7 31. More 23. 1 Roll. 939. so as he may take Fire-boot without being put to his Action of Covenant As 21 H. 7. 30. A. leaseth unto B. for life and Covenants in the Indenture of lease that he shall be dispunished of Wast although the same be penned by way of Covenant yet it is a good matter of Bar being all by one Deed And afterwards Iudgment was given for the Plaintiff as to that
plead it specially but as our case is here is no Act to be done but a permittance as abovesaid and it is in the Negative not a disturbance in which case permisit is a good plea and then it shall come on the other side on the Plaintiffs part to shew in what Lands the Defendant non permisit Which difference see agreed 17 E. 4. 26. by the whole Court. And such was the opinion of the whole Court in the principal case 1 Co. 127. Another Exception was taken to it that the Defendant had covenanted that his brother Edward should pay to the Plaintiff the said Rent To which the Defendant pleaded that his said brother had payed to the Platntiff before the said Feast of Michaelmas in full satisfaction of the said Rent three shillings and that was holden a good plea and upon the matter the Covenant well performed for there is not any Rent in this Case for here is not any Lease and therefore not any Rent For if A. covenant with B. that C. shall have his Land for so many years rendring such a Rent 1 Roll. 847. 1 Cro. 173. Owen 97. here is not any Lease and therefore neither Rent But if A. had covenanted with C. himself it had been otherwise because it is betwixt the same parties And if the Lessee covenant to pay his Rent to the Lessor and he payeth it before the day the same is not any performance of the Covenant causa patet contrary of a sum in gross Another Covenant was that the said Humphry solveret ex parte dicti Edwardi 20 l. to which the Defendant pleaded that he had paid ex parte dicti Humfridi 20 l. and that defect was holden incureable and therefore the Plaintiff had Iudgment to recover CLXXXVII Geslin and Warburtons Case Mich. 30 Eliz. In the Common Pleas. 1 Cro. 128. IN an Ejectione firmae by Joan Geslin against Hen. Warburton and Sebastian Crispe of Lands in Dickilborough in the County of Norf. Mich. 30. 31 Eliz. rot 333. upon the general Issue the Iury found a special verdict that before the Trespass supposed one Martin Frenze was seised of the Lands of which the Action was brought in tail to him and his Heirs males of his body so seised suffered a common Recovery to his own use Devises and afterwards devised the same in this manner I give my said Land to Margaret my Wife until such time as Prudence my Daughter shall accomplish the age of nineteen years the Reversion to the said Prudence my Daughter and to the Heirs of her body Lawfully begotten upon condition that she the said Prudence shall pay unto my said Wife yearly during her life in recompence of her Dower of and in all my Lands 12 pounds and if default of payment be made then I will that my said Wife shall enter and have all my Lands during her life c. the Remainder ut supra the Remainder to John Frenze in tail c. Martin Frenze died Margaret entred the said Prudence being within the age of fourteen years Margaret took to Husband one of the Defendants John Frenze being Heir male to the former tail brought a Writ of Error upon the said Recovery and assigned Error because the Writ of Entry upon which the Recovery was had was Praecipe quod reddat unum Messuag and twenty acras prati in Dickelborough Linford Hamblets without naming any Town And thereupon the Iudgment was reversed And it was further found that in the said Writ of Error and the process upon it Hutt 106. 2 Cro. 574. 3 Cro. 196. no Writ of Scire facias issued to warn dictam Prudentiam ten existentem liberi ten praemissorum ad ostendendam quid haberet vel dicere sciret quare Judicium praedict non reversaretur The Iury further found that the said Margaret depending the said Writ of Error was possessed virtute Testamenti ultimae voluntatis dict Martini reversione inde expectant dictae Prudentiae pro ut lex postulat And they further found Error that six pound of the said tewlve pounds were unpaid to the said Margaret at the Feast c. and they found that the said John Frenze praetextu Judicii sic reversat entred into the premisses as Heir male ut supra And so seised a Fine was levyed betwixt John Frenze Plaintiff and one Edward Tindal Owen 157. Dyer 321. 1 Cro. 471. 739. and the said Prudence his Wife Deforceants and that was to the use of the said John Frenze And that afterwards Humphry Warburton and the said Margaret his Wife brought a Writ of Dower against the said John Frenze Edw. Tindal and Prudence his Wife of the said Lands The said Edward and Prudence made default and the Demandants counted against the said Frenze and demanded against him the moity of the third part of the said Lands To which the said Frenze pleaded that the default of the said Edward and Prudence idem John Frenze nomine non debet quia he said that he the said John was sole seised of the Lands aforesaid at the time of the Writ brought c. and pleaded in Bar and it was found against the said John and Iudgment given for the Demandants of the third part of the whole Land and seisin accordingly And that afterwards 17 Eliz. the said Frenze levyed the Fine to the said Tindal to the use of the said Tindal and his Heirs And they found that after the said Feast the said Henry Warburton and Margaret his Wife came to the Messuage aforesaid half an hour before Sun-set of the said day and there did demand the Debt of the said twelve pounds Dower to the said Margaret by the said Martin Frenze devised to be paid unto them and there remained till after Sun-set of the said day demanding the Rent aforesaid and that neither the said Tindal nor any other was there ready to pay the same And first it was moved if the said yearly sum of twelve pounds appointed to be paid to the said Margaret were a Rent or but a sum in gross And the opinion of the Court was that it was a Rent and so it might be fitly collected out of the whole Will where it is said that Prudence his Daughter should have the Land and that she should pay yearly to Margaret twelve pounds in recompence of her Dower c. But if it be not a Rent but a sum in gross it is not much material to the end of the case For put case it be a Rent the same not being pleaded in Bar the Dower is well recovered and then when default of payment is made if the Wife of the Devisor shall have the whole was the Question And the Court was clear of opinion that by the suit and Iudgment in the Writ of Dower the Wife of the Devisor had lost all the benefit which was to come to her by the devise For the said Rent was devised to her in recompence of
the Plaintiff and thereupon Iudgment was given for the Plaintiff CCV Read and Nashes Case Trin. 31. Eliz. In the Kings Bench. IN an action of Trespass by Read and his Wife against Nash for entring into a house called the Dayry-house upon Not guilty pleaded The Iury found this special matter Sir Richard Gresham Knight was seised in Fee of the Mannours of I. and S. and of diverse other Lands mentioned in his Will and 3 Edw. 6. devised the same to Sir Thomas Gresham his Son for life the Remainder to the first son of the said Sir Thomas Gresham in tail the Remainder to the second son c. the Remainder to the third son c. The Remainder to Sir John Gresham his brother Proviso That if his Son go about or made any Alienations or discontinuance c. whereby the premisses cannot remain descend and come in the form as was appointed by the said Will otherwise than for Ioyntures for any of their Wives for her life only or leases for 21. years whereupon the old and accustomed Rent shall be reserved That then such person shall forfeit his estate Sir John Gresham dyed Sir Thomas Gresham his son built a new House upon the Land and 4 Mariae leased to Bellingford for one and twenty years rendring the antient Rent And afterwards 2 Eliz. he levyed a fine of the said Manours and of all his Lands and 5 Eliz. he made a Iointure to his Wife in this manner sci He covenanted with certain persons to stand seised to the use of himself and his Wife for their lives and afterwards to the use of his Right Heirs and afterwards 18 Eliz. he leased unto Read and his wife for one and twenty years to begin presently which was a year before the expiration of the said Lease made unto Bellingford which Lease being expired Read entred It was argued by Cook That here upon the words contained in the Proviso Sir Thomas had power and authority not being but Tenant for life to make a Lease for years or Iointure and that upon implication of the Will which ought to be taken construed according to the intent of the parties for his meaning was to give a power as well as an estate otherwise the word otherwise should be void and it is to be observed That the parties interessed in the said conveyance were Knights and it is not very likely That the said Sir Richard Gresham did intend that they should keep the Lands in their own manurance as Husbandmen but set the same to Farm for Rent And it is great Reason although he willeâ— that the order of his Inheritance should be preserved yet to make a Provision for Iointure and it is great reason and cause to his family to enable and make them capable of great Matches which should be a strengthning to his posterity which could not be without great Iointures wherefore I conceive it reasonable to construe it so That here they have power to make Iointures for their Wives It hath been said That no grant can be taken by implication as 12 E. 3. Tit. Avow 77. Land was given to I. and A. his wife and to the heirs of the body of I. begotten and if I. A. dy without heir of their bodies betwixt them begotten that then it remain to the right heirs of I. and it was holden that the second clause did not give an estate tail to the wife by implication being in a grant but otherwise it is in Case of a devise as 13 H. 7. 17. and there is no difference as some conceive when the devise is to the heir and when to a stranger but these cases concern matter of Interest but our case concerns an Authority And admit that Sir Thomas hath power and authority to make this lease Then we are to consider if the Iointure be good for if it be Then being made before the Lease Use cannot rise out of a power it shall take effect before and the woman Iointress is found to be alive But I conceive That this Iointure is void and then the Lease shall stand for an use cannot rise out of a power but may rise out of an estate of the Testator and out of his Will 19 H. 6. A man deviseth That his Executors shall sell his reversion and they sell by Word it is a good Sale for now the Reversion passeth by the Will. But an use cannot be raised out of an use and a man cannot bargain and sell Land to another use than of the Bargainee And it is like unto the case of 10 E. 4 5. The disseisee doth release unto the disseisor rendring Rent the render is void for a rent cannot issue out of a right so an use cannot be out of a Release by the disseisee for such release to such purpose shall not enure as an Entry and Feoffment Also here after that conveyance Sir Thomas hath built and erected a New house and no new Rent is reserved upon it and therefore here it is not the ancient Rent for part of the sum is going out of the new house But as to that It was said by the Iustices do not speak to that for it appears that the Rent is well enough reserved Another matter was moved for that That a year before the Expiration of the Lease made to Billington this Lease was made to Reâ—d for 21 years to begin presently from the date of it although by the same authority he cannot make Leases in Reversion for then he might charge the Inheritance in infinitum But yet such a Lease as here is he might make well enough for this Lease is to begin presently and so no charge to him in the Reversion as in the Case betwixt Fox and Colliers upon the Statute of 1 Eliz. A Bishop makes a Lease for three years before the Expiration of a former Lease to begin presently It was holden a good Lease to bind the Successor for the Inheritance of the Bishop is not charged above one and twenty years in toto But if a Bishop make a Lease for years and afterwards makes a Lease for three lives the same is not good 8 Eliz. Dy. 246. Tenant in tail leaseth to begin at Michaelmas next ensuing for twenty years it is a good Lease by the Statute of 32 H. 8. so is a lease for 10 years and after for eleven years and yet the Statutes are in the Negative but this power in our Case is in the Affirmative and the Inheritance is not charged in the whole with more than one and twenty years CCVI. Kinnersly and Smarts Case Trin. 31 Eliz. In the Kings Bench. 〈◊〉 upon a usurious Contract 1 Cro 155. IN Debt upon a Bond The Plaintiff declared That the Bond was made in London The Defendant pleaded That an usurious Contract was made betwixt the parties at D. in Stafford-shire that the Obligation was made for the same contract The Plaintiff by Replication saith that the Bond was made bona
as a Will but as an Executory Devise Wray It is not a conditional Estate in Fee but an Estate tail Coke They who would prove the Custom to entail Copyhold Land within a Manor it is not sufficient to shew Copies of Grants to persons and the Heirs of their bodies Copyhold Estate but they ought to shew that surrenders made by such persons have been enjoyed by reason of such matter VVray That is not so for Customary Lands may be granted in tail and yet no surrenders have been made within time of memory CCXLV Matthew and Hassals Case Mich. 31 Eliz. In the Kings Bench. IN an Ejectione firmae betwixt Matthew and Hassal the Plaintiff had Iudgment to recover and the Defendant brought a Writ of Error Error 1 Cro. 144. and assigned Error in this that the Iudgment was entred Quod querens recuperet possessionem c. where it should be Terminum vent in ten praedict See 9 Eliz. Dyer 258. Coke contrary That the Iudgment is good enough for the Writ of Execution upon it is Habere facias possessionem and in a real Action the Writ is Quod perens recuperet sesinam and not terram And afterwards Iudgment was affirmed CCXLVI Tempest and Mallets Case Hill. 31 Eliz. In the Kings Bench. IN an Action of Trespass by Tempest against Mallet Iudgment was given and Eror brought and assigned for Error 1 Cro. 153 145. that whereas the Action was brought against four one of them died Mesne betwixt the Award of the Nisi prius and the Inquest taken And it was said on the part of the Defendant in the Writ of Error which was entred upon the Record that the Plaintiff shewed unto the Court the death of one of the Defendants and prayed Iudgment against the others See 4 H. 7. 2 Eliz. 175. And there is a difference where in an Action of Trespass there is but one Defendant and where many Another Error was assigned the Defendant Obtulit se per Higgins Attornat suum without shewing his Christian Name as John or VVilliam for Higgins only without the Christian Name is not any Name for it is but an addition to shew which John or VVilliam Coke The same is helped by the Statute of 32 H. 8. cap. 30. Where it is enacted that after Verdict Iudgment shall be given notwithstanding the lack of Warrant of Attorney of the party against whom the Issue shall be tried or any default or negligence of any the parties their Counsellors or Attorneys and of necessity this default here in the Christian Name ought to be the fault of one of them See also 18 Eliz. Cap. 14. for want of any Warrant of Attorney c. Glanvil The Statute provides for default of Warrant of Attorney c. Then Coke To what end was the Statute of 18 Eliz. made for the Statute of 32 H. 8. provides for defects of Warrants of Attorney Glanvil The first Statutes for Warrants of Attorneys of such persons against whom the Issue was tryed but the later Stat. is general Another Error was assigned Quod defendens Capiatur where the Offence so the Fine is pardoned by Parliament and therefore the entry of the Iudgment ought to be Et de fine nihil quia perdonatur Coke The Iudgment is well enough for in every general Pardon some persons are excepted it doth not appear if the Defendant here were one of them and then the Fine is not pardoned 1 Cro. 768. 778. 3 Cro. 22. for the Court cannot take notice of that as it was holden in Serjeant Harris Case but if the Defendant be charged with the Fine then he ought to plead the pardon and to shew that he was not any of the persons excepted And afterwards at another day the Defendant did alledge that there was a Warrant of Attorney in the Common Pleas. And also it appeareth upon Record that the Defendant did appear upon the Supersedeas by Attorney who had his full Name and therefore prayed a Certiorari de novo to certifie the same matter vide 9 E. 4. 32. VVray A Case here greatly debated betwixt the Lord Norris and Braybrook In nullo est erratum and upon Advice such a Writ of Certiorari was granted after the Plaintiff had pleaded In nullo est erratum for this Plea in nullo est erratum goes but to that which is contained within the body of the Record and not unto collateral matter scil Warrant of Attorneys And afterwards the Writ of Error was allowed and upon the day of return thereof it appeared upon the Record of Supersedeas that the Defendant did appear by such a one his Attorney But it was said by the Court that there ought to be two appearances the one upon the Supersedeas and the other when the Plaintiff declares See as to the name of the Attorney Tirrells Case 1 Mar. Dyer 93. CCXLVII. Palmer and Knowllis Case Hill. 31. Eliz. In the Kings Bench. 1 Cro. 160. PAlmer recovered Debt against Knowllis and sued Execution by Elegit upon which the Sheriff returned that he had made Execution of the lands of the Defendant by the Oath of twelve men but he could not deliver it to the party Execution for it is extended to another upon a Statute upon which the Plaintiff sued a Capias ad satisfaciendum And now came the Defendant by his Counsel and moved that after Elegit returned the Plaintiff could not resort to the Execution by Capias and therefore prayed a Supersedeas Caplas after Elegit because the Capias erronice emanavit But the whole Court was clear to the contrary for upon Nihil returned upon Elegit the Plaintiff shall have a Capias 17 E. 4. 5. See 21 H. 7. 19. A man shall have a Capias after a Fieri facias or Elegit 34 H. 6. 20. and here the special return doth amount to as much as if the Sheriff had returned Nihil Also the Statute of West 2. which giveth the Elegit is not in the Negative and therefore it shall not take away the Execution which was at the Common Law. And here is no Execution returned for after the former extent ended he ought to have a new Elegit which Wray granted And afterwards the said Knowllis was taken by force of the Capias ad satisfaciend and came into Court in the Custody of the Sheriff and the Case was opened and in the whole appeared to be worthy of favour but by the Law he could not be helped and although he instantly prayed a Supersedeas yet the same was denied unto him CCXLVIII The Church-wardens of Fetherstones Case Hill. 31 Eliz. In the Common Pleas. AN Action of Trespass was brought by the Church-wardens of Fetherstone in the County of Norfolk and declared Church-wardens 1 Cro. 145. 179. That the Defendant took out of the said Church a Bell and declared that the Trespass was done 20 Eliz. And it was found for the Plaintiffs And now it was moved by
Will he cited Chicks case 19 Eliz. 357 and 23 Eliz. 371. Dyer At another day it was argued by Cook That both the Houses pass and the words take the profit do not restrain the general words before viz. All my Lands and Tenements but rather expounds them sci such profits that they might take of a Reversion cum acciderit for it may be that the Brother shall die within ten years And he cited the case 34 H. 6. 6. A man seised of diverse Reversion upon estates for life devises them by the name of omnium terrarum tenementorum which were in his own hands and by those parols the Reversion did pass and yet the Reversion to speak properly was not in his hands and if the Brother had died in the life of the devisor they had clearly passed and then his death or life shall not alter the case And he resembled the case to the case in 39 E. 3. 21. The King grants to the Abbot of Redding That in time of vacation the Prior and Monks shall have the disposition of all the possessions of the said Abbey ad sustentationem Prioris Monachorum 3 Cro. 290. and if in the time of vacation they shall have the Advowsons was the question for it was said That advowsons could not be to their sustentation But yet by the better opinion the grant of the King did extend to Advowsons for it shall be intended such sustentation as Advowsons might give Godfrey Our Case is not like to the case of 34. H. 6. for there the Devisor had not any thing in possession and therefore if the Reversion did not pass the devise should be utterly void Gawdy conceived that the house in possession only passed for the devise extends to such things only whereof the Profits might be taken but here is not any profit of a Reversion Clench and Wray contrary The intent of the devise was to perform the Will of his Father and also of his own Will and in case the house in possession was not sufficient to perform both the Wills all shall pass and therefore the devise by favorable construction is to be taken largely so as the Wills might be throughly performed and also the devise is general and further all his Lands and Tenements which are not restrained by the Subsequent words to take the profits for to have and to hold and to have and to take the profits is all one CCLV. Slugge and the Bishop of Landaffs Case Trin. 31 Eliz. In the Kings Bench. SLugge libelled against the Bishop of Landaff in the Ecclesiastical Court because where he was presented by the Dean and Chapter of Gloucester to the Church of Penner the Bishop did refuse to admit him and now the Bishop sued a Prohibition and shewed Prohibition Quod non habetur talis Rectoria cum cura animarum in eadem diocesi sed perpetua vicaria And by Popham a Prohibition doth not lye but the matter ought to be determined in the Ecclesiastical Court and when he who is presented to the same Church whether it be a Church or not shall be tried in an action of trespass and the like matter was ruled Mich. 14. Eliz. betwixt Weston and Grendon who was presented by the Queen and it was holden that because institution and admission do belong to the Ecclesiastical Court and not to the Kings Court that no Prohibition should lye and therefore he prayed a Consultation And note That the Defendant in the Prohibition did not demur formally upon the suggestion for the Iudges use if the suggestion be not sufficient to maintain the Prohibition to grant a Consultation without any formal demurrer upon the Suggestion if the insufficiency of the Suggestion be manifest Trial. which was granted by the whole Court. Cook That a Consultation ought not to be granted for whether there be such a Rectory or not shall be tried here So 2 H. 4. 30. Prior or not Prior 49 E. 3. 17 18. Wife or not Wife but never accoupled in loyal matrimony by the Bishop Ante. 53. 54. 44 E. 3. So within or without the Parish 50 E. 3. 20. So 45 E. 3. Quare Impedit 138. In a Quare Impedit no such Church within the County Afterwards at another day Popham put the case Slugge was presented to the vicaridge of Penner the Bishop refused to admit him and admitted one Morgan Bletthen unto the Parsonage of Penner at the presentment of the Lord St. John Slugge sued the Bishop for contumacy per duplicem querelem The Bishop said Non habetur talis vicaria upon which matter he sued a Prohibition and he conceived That the Prohibition did not ly for a Vicar is but he that gerit vicem Personae to supply his place in his absence so as the same is a spiritual matter which ought not to be tried here Also the libel is to have Admission and Institution and the other matter ariseth by their Plea sci Quod Rectoria de Penner est Ecclesia cum cura animarum absque hoc quod habetur talis Vicaria and so it is but an incident to the principal matter wherefore it shall be tried there and he prayed a Consultation Cook We have shewed That in the time of E. 3. one L. was seised of the Manour of Penner to which the Church of Penner is appendant and we alledge presentments from the time and we convey it to the Lord St. John which now is and they would now defeat us by this surmise That there is no such Church with cure of Souls which is triable here Popham the libel doth contain nothing but contumacy in the Bishop in that he hath not admitted Slugge and the other matter comes in the Replication and afterwards by assent of the parties a Consultation was granted quoad institutionem of Slugge only but that they should not proceed further CCLVI. Fennick and Mitfords Case Pasch 31 Eliz. Rot. 154. In the Kings Bench. Moâ—e 284. 2 Co. 91. THe Case was A man seised of Lands in Fee levieth a Fine to the use of his wife for life the remainder to the use of his eldest son the heirs males of his body the Remainder to the use of the right heirs of the Conusor The Conusor makes a Lease for a thousand years to B. the eldest son dieth without issue male having issue a daughter the Conusor dieth the wife afterwards dieth the eldest son enters and leaseth the Lands to the Plaintiff Atkinson That upon this conveyance a Reversion was left in the Conusor although by the fine all is conveyed out of the Conusor and so as it hath been objected the use limited to the right heirs of the Conusor is a new thing For it is to be observed When a man is seised of Lands he hath two things the Land or the Estate and secondly the use which is the profits and if he make a Feoffment without consideration by that the estate and possession passeth
of the Contract and being made at the time of the Communication and contract should charge the Defendant but if the promise were at another time it should be otherwise There was a Case lately betwixt Smith and Edmunds Two Merchants being reciprocally endebted the one to the other agreed betwixt themselves to deliver all their Bills and Bonds into the hands of one Smith who promised that he would not deliver them to the parties until all accounts were ended betwixt them and yet he did deliver them and for that an Action brought against him was adjudged maintainable yet there was not any consideration nor was it material for the action is grounded upon the Deceit and so is it here upon the Warranty And of that opinion were Clench and Wray Iustices but Gawdy was of a contrary opinion CCLXII Woodshaw and Fulmerstones Case Hill. 30. Eliz. Rot. 699 In the Kings Bench. WOodshaw Executor of Heywood brought Debt upon a Bond against Richard Fulmerstone and the Writ was dated October Mich. 29 30 Eliz. and the Condition of the Bond was That if Fulmerstone died before his Age of one and twenty years and before that he had made a Ioynture to A. his Wife Daughter of the Testator Heywood Then if the said Defendant caused one hundred pounds to be payed to the said Heywood within three months after the death of the said William that then the Bond should be void and the said William Fulmerstone died 30 September 30 Eliz. which matter he is ready c. The Plaintiff doth traverse absque hoc that the said Heywood died intestate Tanfield It appeareth of Record that the Plaintiff hath not cause of action for this one hundred pounds was to be paid within three Months after the death of William Fulmerstone 1 Cro. 271 325 565. as the Defendant hath alledged which is also confessed by the Plaintiff and this Action is entred Mich. October 30 Eliz. scil within a month after the death of William Fulmerstone and so before the Plaintiff hath cause of action and therefore he shall be barred Gawdy Where it appeareth to the Court that the Plaintiff hath not cause of Action he shall never have Iudgment as in the Case betwixt Tilly and Wordy 7 E. 4. But here it doth appear that the Plaintiff hath cause of Action for where a man is bound in an obligation the same is a duty presently Obligation and the condition is but in defeazance of it which the Defendant may plead in his discharge CCLXIII Windham and Sir Edward Cleers Case Trin. 31 Eliz. In the Kings Bench. ROger Windham brought an Action upon the Case against Sir Ed. C. declared that the said Ed. being a Iustice of Peace in the County of N. and where the Plaintiff was a loyal subject Action upon the Case of sclander 1 Cro. 130. and of good fame all his life time nor ever touched or reproched with any offence of Roâ—ery c. the Defendant malitiose invide machinams ipsum Rogerum de bonis nomine fama et vita deprivare directed his warrant to divers Baylifs and Constables of the said County to arrest the said Plaintiff And it was alledged in the said Warrant That the Plaintiff was accused before him of the stealing of the horse of A. B. by reason of which the Plaintiff was arrested and so detained until he had entred into a Bond for his appearance c. whereas in truth he was never accused thereof nor ever stole such horse and whereas the Defendant himself knew that the Plaintiff was guiltless by reason of which he was greatly discredited c. And it was found for the Plaintiff And it was moved that upon this matter an Action doth not lye for a Iustice of Peace if he suspect any person of Felony or other such Offence may direct his Warrant to arrest him 14. H. 8. 16 Gaudy and Clench If a man be accused to a Iustice of Peace for Felony for which he directs his Warrant to arrest him although the accusation be false the Iustice of Peace is excused but if the party in truth was not accused before the Iustice it is otherwise It was a Case lately betwixt the Lord Lumley and Foord where Foord in a letter written by him had written It is reported That my Lord Lumley seeketh my life If it was not Reported an Action upon the Case lieth but if reported no Action lieth So here if he was accused no Action lieth but if not an Action lieth And afterwards in the principal Case Iudgment was given for the Plaintiff CCLXIV Isleys Case Trin. 31 Eliz. In the Kings Bench. ISley and others were Plaintiffs in an Ejectione firmae and upon the general Issue it was found for the Plaintiffs and 4 days after the verdict given was moved in stay of judgment a special maâ—ter in Law whereof the Iustices were not resolved for the law but took advisement and gave day over and in the mean time one of the Plaintiffs died which matter the Defendant shewed to the Court in further stay of the Iudgment But by Coke the same is not any cause for the Postea came in Quindena Pasch which was 16 Aprilis at which day the Court ought to have given Iudgment presently but took time to be advised and the 19 of April one of the Plaintiffs died And the favour of the Court ought not to prejudice us for the Iudgment here shall have Relation to the 16 of April at which time he was alive and it was so of late adjudged in the Case of Derick James who died the day after the verdict and yet Iudgment was not stayed for the Court after verdict cannot examine surmises and they have not a day in Court to plead and in our case It was but a day of Grace and no entry is made of it Although no plea can be now pleaded after verdict yet as amicus curiae one may inform us of such matter And sometimes in such case Iudgment hath been stayed as 9 Eliz. and sometimes notwithstanding such Exception as 2 Eliz. So as I conceive the matter is much in the discretion of the Iustices And because the same was a hard verdict and much against the Evidence It is good discretion upon this matter to stay Iudgment and such was the opinion of the Court. CCLXV. Steed and Courtneys Case Trin. 31 Eliz. In the Kings Bench. Error 1 Cro. 116. Owen 93. More 691. Prescription to levy a fine not good ERror was brought upon a Fine levied upon a Plaint in a writ of Covenant in the City of Exceter And two Errors were assigned First The Plaint was quod teneat convent de duobus tenementis Whereas in truth the word Tenement doth not comprehend any certainty for in the Word Tenement is understood Messuage Land Meadow Pasture c. and whatsoever syeth in tenure And 11 H. 6. 18. by grant of Lands and Tenements Rent or Common shall pass And an Ejectione firmae
upon the grant of the said Rent ought to attorn to the Grant for the Ter-tenant ought to attorn and one of them is not Ter-tenant And in case of a Rent-charge the Avowry is upon the Lands but Attornment differs from our case for Attornment is but a bare assent without any interest in him who attorns for an Abator may do it but here is matter of Interest and in Attornment Attornment for one acre is effectual for all 18 E. 3. Fitz. variance 63. but otherwise it is in case of Confirmation for one acre the same doth not extend to the rest for in such case an Interest passeth So here the one of them is not Patron therefore all of them ought to concur 31 E. 3. Grants 61. That such act of the Patron shall not bind but according to the Estate of the Patron which see Lit. 112. 528. as if Tenant in Tail confirm the same shall not bind the Presentee of the issue See Fitz. Grants 104 In R. 2. The case was that the Bishop of Covent and Lichfeild had two Chapters one of Coventry the other of Lichfeild and he made a conveyance but one Chapter only did confirm it the same doth not bind the Successor for both are but one Chapter in respect of the Bishop and see the case abridged by Statham Title Assize for if the Bishop is chosen by both Chapters there a confirmation must be of them both The case in Dyer 11 Eliz. 282. Thark Archbishop of Dublin hath two Deans and Chapters the one surrendreth without the assent of the Bishop and afterwards the other Dean and Chapter confirmeth a Lease made by the Bishop the same is good I confess that for the Surrender was by Act of Parliament and so one sole Chapter remained And in our case the Lease cannot be good in part and void for the residue for all are but one Patron as 22 H. 6. 47. Two Coparcenes are they make composition to present by Turns a Writ of Annuity is brought against the Incumbent he shall have aid of both And see the Case betwixt Gore and Dawbney in the Exchequer Chamber upon a Writ of Error where two are accountable an Account made by the one is not good for both the Accountants shall make but one account and therefore the Account of the one cannot be good And the Lord Anderson put this Case two Ioynt-tenants of a Manor the one of them doth grant a Copy the same is void for he is not Dominus pro tempore And see as to the assent of them all c. 3 Eliz. 190. Dyer But it hath been objected That now the Incumbent comes in by the Ordinary and not by the Presentment of the Patron and the Ordinary is bound by the confirmation of his Predecessor so that the collation of the Bishop by Lapse is in the right and sted of the Patron and as the Presentee of the Heir of the Patron shall avoid c. so also of the Ordinary and 20 E. 3. Br. Presentment 12. The Patron shall have a Writ of Darrein-presentment upon the present of the Bishop for Lapse and 22 H. 6. If a man can recover an Advowson and after the Bishop collate for Lapse the same is an Execution of the Iudgment and will make a possessio fratris as Moyle saith And in our case this confirmation is void in all because Non sunt concurrentes ii qui in hac parte concurrere debuerant And it is an entire Act and cannot be avoided in part and stand for the residue and the Presentee comes in in the right of the Heir for which he may avoid it c. Popham contrary it is to be here considered if the Ordinary hath Interest in the Church by this Lapse or only an authority for if he hath an Interest then it will follow that every one of his Successors shall be bound by his Confirmation and also their Presentees It hath been objected that there ought to be a full and entire Patron who makes such a Lease otherwise it is void But that is not so as if the Patron be Tenant for life his Lease or Confirmation shall not be void in all but shall be good during his life which see 31 E. 3. Grants 61. and 19 Eliz. 356. A Parson makes a Lease for forty years the Bishop being Patron and Ordinary confirms it the Patron dyeth the Bishop presents and afterwards is translated this Lease shall stand during the life of the Bishop and of the new Incumbent who found the Church charged and then such Lease may be good for part and void for part See for the same 2 E 3. 8. If the Advowson of a Church be appropriated unto a Prior and his Successors if afterwards the wife of the Grantor be endowed of it and present her Clerk the Church is become dis-appropriated during the life of the Wife but afterwards shall stand See the case cited to the contrary 29 Eliz. in the case of the Earl of Bedford 7 Co. 8. At the beginning the Patron was not restrained to any time to present his Clerk but the six months was appointed at the instance and suit of the Ordinaries by a Canon confirmed in the councel of Lateran before which time the Ordinaries had not any Lapses but after the said Canon they had an Interest in the Church and this appeareth in the Register And see F.N.B. 37. f. that after the Ordinary is entituled to Lapses The Plaintiff in a Quare Impedit cannot have a Ne admittas for now the Ordinary hath an Interest And if the Bishop hath Title to present by Lapse and before Presentment he dyeth so as his temporalties come to the King the King shall present which proves that it is an Interest and the Civilians call it Interesse caducum conditionale And in our case the confirmation of the Coparcener shall bind the other Coparceners in a Nativo habendo shall bind them all and the villain shall be free for ever And it was moved also if an usurper or the Clerk who is in by him shall avoid this clause and by the words of the Statute of West 2. Si tempus semestre transierit per impedimentum alicujus ita quod Episcopus Ecclesiam conferat verus Patronus ea vice praesentationem suam amittat adjudicentur damna ad valorem Ecclesiae pro duobus annis Wherefore what the Patron loseth the Ordinary hath the same therefore it is an Interest and in lieu of that loss the Statute gives damages to the Patron c. And the case was adjorned to be further argued at another day c. CCCXVIII Pet and Baldens Case Pasch 33. Eliz. Rot. 392. In the Kings Bench. IN a prohibition the Plaintiff declared Prohibition 1 Cro. 274. that whereas Michael Pett was seised of divers Lands and made his Will by which he made the Plaintiff his Son his Executor and thereby devised unto A. his Wife one hundred pounds in consideration and recompence
Entry holden lawful But Error was brought upon it And also Calthrops case was cited to the same purpose 16 Eliz. Dyer 336. This estate limited to Ambrose doth refer to the estate limited to Muriel and Ann and not to the time for ever the first estate is to be respected as 23 Eliz. Dyer 371. He in the Remainder in Fee upon an estate for life deviseth it to his Wife yielding and paying during her natural life yearly 20 shillings and dieth living Tenant for life the Rent shall not begin until the Remainder falleth So as the general words refer to the beginning of the estate although the words imply that the Rent shall be paid presently And see also such construction 9 Eliz. 261. A Lease was made for thirty years and four years after the Lessor makes another Lease by these words Nos dictis 30 annis finitis dedisse concessisse c. Habend tenend a die confectionis praesentium termino praedict finito usque terminum c. And although prima facie the beginning of this Term seems incertain yet the Iustices did respect the former estate and so the Lessee hath the Interest of the Term from the making of the Deed but no estate until the first Term expire Then Ambrose before his age of 21 years levying a Fine the Fine shall not bind the Feoffee for it enures only by way of conclusion and so binds parties and privies but not a stranger And the party needs not to plead against this Fine quod partes to the Fine Nihil habuerunt for that appeareth upon their own shewing Wiat contrary The state of Ambr. accrues and rises when any of the said times come first full age return death for the words are And after the return of Ambrose from beyond the Seas and the age of 21 years or death c. This word or before death disjoyns all and makes the sentence in the Disjunctive and he cited a case lately judged in the Common Pleas A Lease was made to Trewpeny and his Wife for one hundred years if he and his Wife or any Child or Children betwixt them begotten should so long live the Wife died without Issue the Husband held the Land c. for the Disjunctive before Child made the sentence Disjunctive Gawdy Iustice That had been Law if no such word had been in the Case And Wiat said That although the return be incertain yet it is certain enough that he shall come to the age of 21 years or dye And also this is by way of use which needs not to depend upon any estate and if the Remainder shall vest presently upon his return then it would be doubtful what Remainder it is if it be a Remainder depending upon the estate for the life of Ann and Muriel or for years i.e. until Ambrose shall come of the age of 21 years But be it incertain yet the Fine is good for here is a Remainder in Ambrose and both are but particular estates and there is not any doubt but that one may convey by Fine or bar by Fine such contingent uses for which see the Statute of 32 H. 8. All Fines to be levied of any Lands intailed in any wise to him that levieth the Fine or to any his Ancestors in possession reversion c. which word use goes to contingent uses for at the time of the making of that Statute there was no other use Fenner Iustice remembred the Case adjudged M. 30 31 Eliz. betwixt Johnson and Bellamy 2 Len. 36. which ruled this Case Gawdy Iustice Here is a certainty upon which the Remainder doth depend i. e. the death of Ambrose but the Case had been the more doubtful if no certainty at all had been in the Case Atkinson contrary Here the Lord Vaux is Tenant for life the Remainder to George in tail now when the Lord Vaux levies a Fine this is a forfeiture and then the Entry of George is lawful It hath been objected on the other side that this Remainder was future and contingent and not vested therefore nothing passed to George by Ambrose The words are quousque Ambrose shall return This word quousque is a word of Limitation and not of Condition and then the Remainder may well rise when the Limitation hapneth It hath been said that this Remainder is contingent and then the Remainder which is to vest upon a contingency cannot be granted or forfeited before that the contingent hapneth And he cited the Case of 14 Eliz. 314. Dyer A Fine is levied to A. to the use of B. for life the Remainder to E. in Tail the Remainder to B. in fee. Proviso That if B. shall have Issue of his Body that then after such Issue and 500 l. paid to c. within six months after the birth of such issue the use of the said Lands after the death of the said B. and the said six months expired shall be to the said B. and the heirs of his body And it was holden that before the said contingent hapneth B. had not any estate tail for there it was incertain if the said contingent would happen but in our case the contingents or some of them will happen or run out by effluxion of time and that makes the Remainder certain in Ambrose And he also argued that the Limitations are several by reason of the Disjunctive and the last part of the sentence and that the said sentence is in the Disjunctive appeareth by the subsequent words which of the said days or times shall first happen And then the return of Ambrose for that first hapned vests the Remainder in him and therefore the Plaintiff ought to be barred Buckley contrary The estate of the Daughters doth depend upon a Copulative i.e. the return of Ambrose and his full age and both is but one Limitation it is clear that the first Limitation is upon a contingent and the remainder cannot vest until both are performed And as to that which hath been said that there is a certain Limitation i. e. the return of Ambrose 18 Eliz. the Case was Lands were given to Husband and Wife the Remainder to such of them as should survive the other for years the Husband makes a Lease for years and dieth it was holden that although the Limitation was upon a certain estate yet because it is not known in which of the parties the estate secondly limited shall begin the Lease is void So here it is not certainly appointed when the estate limited to Ambrose shall begin upon the return full age or death of Ambrose and he said that here are but two times of Limitation first return and full age second death return and full age determines the estate of the Daughters and also the death if it shall first happen and if these three times shall be construed in the Disjunctive 2 Len. 2â— the same would overthrow the estate of the Daughters which is an estate for years determinable upon the death of themselves or Ambrose
every issue begotten betwixt William and Joan should have an estate for life successive and a Remainder in tail expectant as right heir of the body of William A Contingent shall hinder the execution of an estate in possession and this estate tail shall not be executed in possession by reason of the mesne Remainder for life limited to the heir of the body of William and Joan and although that these mesne Remainders are but upon a contingent and not in esse yet such regard shall be had to them that they shall hinder the execution of the estates for life and in tail in possession As if an estate be made to A. for life the Remainder to the right heirs of B. in tail the Remainder in Fee to A. although the estate tail be in abeyance and not in esse during the life of B. yet in respect thereof the Free-hold and Fee shall not be conjoyned Southcote Iustice To the same purpose And he put a case lately adjudged betwixt Vaughan and Alcock Vaughan and Alcocks case Land was devised to two men and if any of them dieth his heirs shall inherit these devisees are Tenants in common because in by devise but contrary if it were by way of Grant Lands are devised to A. and B. to be betwixt them divided they are Tenants in common Wray William and Thomas have but for life for they are purchasors by the name heir in the singular number but when he goes further and says for want of such issue to the heirs of the body of William in the plural number now Will. hath an Inheritance And if a devise be made to one for life and then to his heir for life and so from heir to heir in perpetuum for life here are two estates for life and the other Devisees have Fee for estates for life cannot be limited by general words from heir to heir but by special words they may And here Thomas being next heir of the body of William and Joan hath an estate for life and also being heir of the body of the said William hath a Remainder in tail to him limited the mesn remaineth limited to others i. e. to the next heir of the body of Thomas being in abeyance Co 11. Rep. 80. because limited by the name heir his Father being alive shall not hinder the execution of these estates but they shall remain in force according to the rules of the common Law Then Thomas so being seised levyeth a Fine against the Provision of the Will by which Thomas hath forfeited his estate for life and so his next heir shall have the Land during his life And a great reason wherefore the heirs ut supra after the two first limitations shall have tail is because that if every heir should have but for life they should never have any Interest in the Lands by these limitations for by the express words of the devise none shall take but the heir of the first heir for ever i. e. When Thomas aliens by which the use vests in Francis and when afterwards Francis levieth a Fine then the use vests in Percival Hâ—rt being next heir of the said Francis at the time of the Fine levyed notwithstanding that afterwards Francis had a Son which is his next heir and therefore the use in Percival by the birth of the said Son in Francis shall not be devested Estate vested shall not be devested because it was a thing vested in him before by purchase 9 H. 7. 25. A enfeoffs B. upon condition on the part of A. to be performed 1 Cro. 61. and dyeth having issue a Daughter the Daughter performs the condition and afterwards a Son is born the Daughter shall hold the Lands against the Son So 5. E. 4 6. A woman hath issue a Daughter and afterwards consents to a Ravisher the Daughter enters and afterwards a Son is born yet the Daughter shall hold the Lands for ever i. e. And Geofries Iustice said Francis being in by force of the Forfeiture shall not be subject to the limitation of the Will i. e. to any forfeiture if he alien for the estate which Francis hath for his life is but an estate gained by the offence of his Father and the use was limited to him upon the Will of Richard and then the said estate is not subject to the Proviso of the Will and then hath not Francis committed any forfeiture And admit Francis shall forfeit yet Percival shall get nothing thereby but the estate which Francis had at the time of the Fine levied scil the Free-hold only for no estate of Inheritance was in him living his Father As to the regress of the Feoffees Geofries was of opinion That where an use is limited to a person certain and thereupon vested in the person to whom it is limited That the Entry of the Feoffees in such case is not requisite notwithstanding that the first estates be discontinued but where the use as in our case is not limited to a person certain in esse but is in abeyance not vested in any person upon the limitation of it some estate ought to be left in the Feoffees to maintain that use and to render it according to the limitation and in our case these uses not in esse at the time of the making of the Statute of 27 H. 8. could not be executed by the said Statute but now at the appointed time by the limitation shall be raised and revived by the Entry of the Feoffees but here by the Fine and Non-claim the Feoffees are bound and their Entry taken away and so no use can accrue to Percival Hart by such Entry Southcote Iustice was of opinion that the Feoffees cannot enter at all because that by the Statute of 27 H. 8. nothing is left in them at the time of the making of the Statute which saves the right of every person c. other than the Feoffees so as no right is saved to them but all is drawn out of them by the operation of the Statute and the second saving of the Statute saves to the Feoffees all their former Right so as the Right which the Feoffees had by the Feoffment to the use is utterly gone But Percival Hart may well enter for he is not bound to the five years after the Fine levied for he had not right at the time of the Fine levied but his right came by the Fine Wray chief Iustice The Feoffees are not to enter for the Statute of 27 H. 8. hath two branches 1. gives the possession to Cestuy que use in such manner as he hath in the use 2. takes away all the right out of the Feoffees and gives it to Cestuy que use so as nothing at all remains in the Feoffees for if an Act of Parliament will give to me all the Lands whereof my brother Southcote is seised and that I shall be in the Seisin thereof now is the actual possession in me without my
Nonage of every Heir but admitting that the Custom were void yet this Action doth not lye for the Defendant hath not entred and taken the profits as Prochein amy in which Case although he was not Prochein amy c. he is chargeable Oâ—â—â—â— Rep. 36 â—3 84. as Prochein amy according to his Claim but here he claimeth by the Custom and Grant of the Lord and not in the right of the Heir and therefore it was adjudged in this time of this Quaere that if one entreth into Lands claiming by Devise where in truth the Land devised is entailed he should not be charged in accompt c. CCCLVIII 20 Eliz. In the Common Pleas. NOte It was holden by the whole Court Exposition of the Statute of 32 and 34. Of Wills. That the Statute of 32 34 H. 8. of Wills did not extend to Lands in London but that the devise of the whole is good And if Houses in London parcel of the possessions of Abbies came to the Crown by Dissolution and he grants them over to hold in chief by Knights service these Lands are devisable But it was holden That the said Statutes as Acts executed extended to Lands in London and shall be good but for two parts And if a man hath Lands in tail and in Fee-simple which are of double the value of the Lands in tail and deviseth all his Lands all the Land in Fee-simple shall pass Dyer One seised of three Manors the one in Capite in Fee and two in Socage in tail and deviseth all his Land in Capite it is good against the King for all Capite Land and he shall be tied to have the Lands in Socage but it shall not bind the Heir And a devise of the third part where all is devised is void as well against the Heir as against the King. And he said That if a man be seised of twenty Acres in Socage and ten Acres in Capite and deviseth two parts of his Lands it is reasonable to say That all the Socage Lands shall pass but if the devise was of two parts of all his Lands it is otherwise for this word All implies that the two parts shall be per my per tout as well Capite as Socage i. e. It was argued by Fenner That the Lands in London are now devisable as they were before the Statute for if the Devisee of Lands in London be disturbed he shall have Ex gravi Querela otherwise it is of Lands at the Common Law and if an Assize of Mortdancester be brought of Lands in London it is a good Plea to say That the Lands are devisable But in an Assise of Mortdancestor of Lands at the Common Law it is not any Plea And if a man gives Lands at the Common Law i. e. not devisable by the Common Law he cannot devise the Reversion for the Statute shall not do wrong to the person i.e. to the Donee who there shall lose his Acquittal But of Lands devisable by custom it is otherwise And if Land in a Burrough was devisable for life by the Custom and afterwards came the Statute of 23 H. 8. which made all Lands devisable now that Land is devisable for life by the Custom and the Reversion by the Statute CCCLIX 20 Eliz. In the Common Pleas. IN an Action of Wast of Wast assigned in a Wood Wast the Iury viewed the Wood only without entring into it And it was holden that the same was sufficient for otherwise it should be tedious for the Iury to have had the view of every stub of a Tree which had been felled Yet Meade Iustice said That if Wast be assigned in several corners of the Wood then the Iury is to have the view of every corner but contrary where Wast is assigned in the whole Wood Vieâ— And if Wast be assigned in every Room of a House the view of the House generally is sufficient And Dyer Iustice said That if Wast be assigned in several places and of some of them the Iury had not the view of that they may find no Wast done CCCLX Sir Thomas Lees Case 20 Eliz. In the Common Pleas. IT was holden per Curiam That whereas Sir Thomae Lee was seised of a Manor Election and aliened the Manor except one Close parcel of the said Manor called Newdick and there were two Closes parcel of the said Manor called Newdick the one containing nine Acres and the other containing three Acres That the Alienee should not chuse which of the said Closes he would have but the Alienor or Feoffor should have the Election which of the said Closes should pass CCCLXI. 20 Eliz. In the Common Pleas. TEnant in tail the Remainder in tail c. Tenant in tail in possession Fines levied by Tenant in tail in Remainder 3 Cro. 211. makes a Lease for three lives according to the Statute of 32 H. 8. and afterwards dieth without issue he in the Remainder before any Entry levieth a Fine the same is good for by the death of Tenant in tail without issue the Free-hold is vested in him in the Remainder in tail And of that opinion was the whole Court. CCCLXII Ferrand and Ramseys Case 20 Eliz. In the Common Pleas. IN an Ejectione firmae brought of a House in London the Defendant pleaded That long time before the Lessor of the Plaintiff had any thing c. One Ann Ramsey was seised in Fee and died seised and that the same descended to William Ramsey as Son and Heir to the said Ann who was disseised by Israel Owen who leased to the Plaintiff upon whom the said William Ramsey did re-enter The Plaintiff Replicando That the said Ann did not die seised said That before the Ejectment one Robert Owen was seised and died seised and from him descended the said House to Israel Owen as Son and Heir of the said Robert absque hoc that the said Israel did disseise the said Ann upon which they were at issue and at Nisi prius in London it was given in Evidence of the Defendants part That Crofton and Langhton were seised in Fee of the said Messuage and by Deed indented conveyed it to one John Ramsey Robert Dakins and four others and their Heirs upon condition that the said Feoffees their Heirs or Assigns should pay to the said Ann and her Heirs six pounds thirteen shillings and four pence And also should enfeoff the said Ann if to the same they were required by the said Ann in her life or within four days next following such Request in Fee unto the use of the said Ann and her Heirs cum quando ad hoc per eandem Annam requisit fuerint and if the said Ann died before such Request that then the said Feoffees or their Heirs should enfeoff such issues of the said Ann or such other persons which the said Ann should name cum quando ad hoc per eandem Annam requisit fuerint or within four days after such
afterwards that this murder is dispunishable notwithstanding the Statute of 2 Ed. 6. CCCLXIV The Queen and Braybrooks Case Pasch 25 Eliz. In the Kings Bench. 3 Co. 1 2 c. THe Queen brought a Writ of Error against Braybrook The Case was this That King Ed. 4. was seised of the Manor of Marston and gave the same to Lionel Lord Norris and A.M. and the Heirs of the body of the Lord the Remainder to H. Norris in Tail L and A. entermarry L. suffered a common Recovery against himself only without naming the said A. Hen. Norris is attainted of high Treason by Act of Parliament and by the same Act all his Lands Tenements Hereditaments Rights Conditions c. the day of the Treason committed or ever after c. Hen. Norris is executed Lionel dieth without issue the Queen falsified the said Recovery for one moiety by Scire facias because Anne who was joint-tenant with Lionel was not named party to the said Recovery and afterwards the Queen granted to the Lord Norris Son of the said Hen. Norris Manerium suum de Merston omnia jura in eodem and now upon the said Recovery the Queen brought a Writ of Error and it was argued by Egerton the Queens Sollicitor that this right to a Writ of Error is such a right as is transferred to the Queen by the Act of Parliament for the words are omnia jura sua quaecunque and here is a right although not a present right yet a right although in futuro so it is a right of some quality as A. Tenant in Tail the Remainder in Tail to B.A. makes a Feoffment in Fee B. is attainted of high Treason and by such Act all his Lands c. given to the King. A. dieth without issue the Queen shall have a Formedon in the Remainder and although the Queen hath granted to the Lord Norris Manerium suum de Merston omnia jura in eodem yet by such general words a Writ of Error doth not pass which See 32 H. 8. Br. Patents 98. And also this Action rests in privity of record and cannot be displaced from thence but by Act of Parliament see Br. Chose in Action 14. 33 H. 8. for when the King will grant a thing in Action he ought in his Patent to recite all the circumstances of the matter as the Right and how it became a Right and because the Queen here doth not make mention of this Right as of the Entail the Recovery and the Attainder for that cause the Right doth not pass The Case betwixt Cromer and Cranmer 8 Eliz the Disseisee was attainted of Treason the Queen granted to the Heir of the Disseisee all the Right which came unto her by the Attainder of his Ancestor nothing passed Causa qua supra And always where the King grants any thing which he cannot grant but as King that such a grant without special words is to no purpose Coke contrary he agreed the Case put by Egerton for at the time of the Attainder B. had a Right of Remainder but in our Case Hen. Norris had not any Right but a possibility of a Right of Action i.e. a Writ of Error And he said that this Writ of Error is not forfeitable for it is an Action which rests in privity no more than a condition in gross as a Feoffment in Fee is made upon condition of the party of the Feoffor who is attainted ut supra This word Right in the Act of Attainder shall not transfer this Condition to the Queen and of the Act of Attainder to Hen. Norris it is to be conceived That the makers of the Act did not intend that by the word Right every right of any manner or quality whatsoever should pass to carry a Condition to the Queen and therefore we ought to conceive that the makers of the Act did not intend to touch Rights which rested in privity And as to the Grant of the Queen to the Lord Norris of the Mannor of Merston Et omnia jura sua in eodem he conceived that thereby the Right of the Writ of Error did pass for it is not like Cranmers Case but if in the said Case the Land it self had been set down in the Grant it had been good enough as that Cranmer being seised in Fee of the Manor of D. was there of disseised and so being disseised was attainted of high Treason now the Queen grants to his Heirs totum jus suum in his Manor of D c. and so in our Case the Queen hath granted to the Lord Norris Manerium suum de Merston omnia jura sua in eodem c. at another day it was moved by Plowden that this Right of Writ of Error was not transferred to the Queen by the Act but such Right might be saved to a stranger c. the words of the Act are omnia jura sua and this word sua is Pronomen possessionis by which it is to be conceived that no Right should pass but that which was a present Right as a Right in possession but this Right to a Writ of Error was not in Hen. Norris at the time of his Attainder but it was wholly in him against whom the erroneous Iudgment was had and therefore if in a Praecipe quod reddat the Tenant vouch and loseth and Iudgment is given and before Execution the Tenant is attainted by Act of Parliament by words ut supra and afterwards he is pardoned the Demandant sueth for Execution against the Tenant now notwithstanding this Attainder the Tenant may sue Execution against the Vouchee and afterwards Wray chief Iustice openly declared in Court the opinion of himself and all his companions Iustices and also of all the other Iustices to be That by this Act of Parliament by which all Lands Tenements Hereditaments and all Rights of any manner and quality whatsoever Henry Norris had the day of his Attainder or ever after Lionel then being alive and over-living the said Hen. Norris that this Writ of Error was not transferred to the Queen And that the said Act by the words aforesaid could not convey to the King this possibility of right for at the time of the Attainder the Right of the Writ of Error was in Lyonel and Hen. during the estate tail limited to Lyonell had not to do with the Land nor any matter concerning it And Iudgment was given accordingly And it was holden That he in the Reversion or Remainder upon an Estate tail might have a Writ of Error by the common Law upon a Recovery had against Tenant in tail in Reversion CCCLXV Mich. 25 26. Eliz. In the common Pleas. Copy-holder IN Trespass brought by a Copy-holder against the Lord for cutting down and carrying away his Trees c. It was found by special Verdict That the place where c. was Customary lands of the Plaintiffs holden of the Defendant and that the Trees whereof c. were Chery Trees de
Litis contestationem the right of the Suit is so vested in the Proctor Swinburn 212. that he is a person suable until the end of the Suit and also he reported their Law to be * Bro. Devise 27. 45. Office of Exce 347. Shâ—p Touchstone c. 454. Plowd 345. Orphans Legacy 281. Note It was adjudged contrary to this Mich. An. Dom. 1653. in the Kings Bench. in Doâ—mlowes Case Poph. 11. That if a Legacy be bequeathed to an Infant to be paid when he shall come to the Age of twenty one years if such a Legatory dieth before such age yet the Executor or Administrator of such Legator shall sue for the said Legacy presently and shall not expect until the time in which if the Infant had continued in life he had attained his full age And as to the Prohibition it was argued by Egerton Solicitor General That the Grant aforesaid is not triable in the Spiritual Court As if the said Lady Lodge had suffered a Recovery to be had against her as Executor by Covin c. the same is not examinable in the Spiritual Court but belongs to the temporal Conusans and therefore he prayed a Prohibition But on the other side it was said That if the Prohibition be allowed the Legatory hath no remedy but that was denied for the party might sue in the Chancery And after the Prohibition granted the Court awarded a special Consultation quatenus non extendat ultra manus Executoris quatenus non agitur de validitate facti i. the Grant aforesaid CCCLXXVII Huddy and Fishers Case Hill. 28 Eliz. In the Kings Bench. Debt DEbt was brought upon a Bond the Condition of which was for the performance of Covenants Grants and Agreements in an Indenture And in the Indenture it was recited That in consideration that the said Huddy should build a Mill upon the Land demised by the Defendant to the Plaintiff by the same Indenture Attaint and a Water-course by the Land demised the Defendant leased the said Land to the Plaintiff and the Lease was by the words Dedi concessi And the Plaintiff assigned the breach of the said Covenant in Law in that the Defendant had stopped the said Water-course so made by the Plaintiff upon which they were at Issue and it was found for the Plaintiff upon which the Defendant brought Attaint and the false oath was found and it was moved in Arrest of Iudgment That here is no Issue and then by consequence no Verdict and then no false Oath and then no cause of Attaint for here the Issue is taken upon the stopping of the Water-course which upon the shewing of the party is not any cause of Action for in the Indenture there is not any express Covenant Clause or Agreement that the Lessee should enjoy the Water-course so to be made only there is a Covenant in Law rising upon these words Dedi concessi which cannot extend to a thing not in esse at the time of the making the Indenture Coke who argued for the Defendants in the Attaint resembled this case to the case in 23 E. 3. Garr 77. Where it is holden that the warranty knit to the Manor shall not extend to the Tenancy escheated And 30 E. 3. 14. The Recovery in value shall not be in larger proportion than the Land warranted was at the time of the warranty made So in our case this Covenant shall not extend to any thing which was not in esse at the time of the Covenant made And see 25 Ass 2. where the Court shall reject a Verdict or part of a Verdict c. And because the now Plaintiff might after the Verdict have alledged the same in arrest of Iudgment which he did not he shall not be helped by Attaint but it shall be accounted his folly that he would not for his own ease and to avoid circuity of Action shew the matter in stay of Iudgment As 9 E. 4. 12. by Littleton If a man be Indicted of Felony if the Iudgment be insufficient but he takes not advantage of it but pleads the general Issue and is acquitted he shall never after have a Writ of Conspiracy c. And for another cause Iudgment ought not to be given in this Case because it doth not appear that Execution hath been sued and then here is no party grieved And then this Action being conceived upon the Statute of 23 H. 8. Cap. 3. which gives it to the party grieved doth not lye for a party grieved cannot be intended without Execution sued See 21 H. 6. 55. by Paston False oath Iudgment and Execution do entitle the party grieved to Attaint And see the Stat. of 23 H. 8. which enacts That the party shall be restored to as much as he hath lost therefore he ought to lose by Execution before he be a person able 〈◊〉 bring this Action But as to that matter see the Statute of 1 E. 3. 6. by which it is Enacted That the Iustices shall not leave to take Attaint for the damages not paid so as before the said Statute no Attaint lay before Execution 33 H. 6. 21. by Prisoit 5 H. 7. 22. t. E. 1. Attaint 70. 8 E. 2. Assize 396. And it was moved That for another cause the Attaint doth not lye as it is pursued in Process upon it for the Plaintiff hath not pursued the Statute upon which the Attaint is grounded for the said Statute gives special Process in this case against the Petit Iury Grand Iury and the party viz. Summons Re-summons and Distress infinite but in this Case the Plaintiff hath sued otherwise which is against the direction of the Statute And that was taken to be a material Exception by Clench and Gawdy Iustices for the Verdict doth not save the matter of Process in this case by the Statute of 18 Eliz. which doth not extend to proceedings in penal Causes wâ—â—ch see by the words of the Statute by an express Proviso But Quaere If it be a penal Statute because a lesser punishment is enacted by it than that which was before inflicted upon such offenders And as to the matter of Execution Quaere If the Plaintiff be not pars gravata in hoc only that he is subject to the said Iudgment and so liable to Execution CCCLXXVIII Penruddock and Newmans Case Hill. 28 Eliz. In the Kings Bench. IN an Ejectione firmae Execution 2 Len. 49. the Plaintiff declared upon a Lease made by the Lord Morley and upon Not guilty pleaded this special matter was found that William Lord Mountegle seised of the Manor of D. whereof c. became bounden in a Statute in such a sum to A. who died the Executors of A. sued Execution against the said Lord i. upon the Extendi facias a Libertate issued forth upon which the said Manor was delivered to the said Executors but was not returned It was further found That the said Executors being so possessed of the said Manor the said Lord
yet afterwards he seemed to be of other opinion And as to that which hath been objected That the Lease is void to all intents and purposes according to the words of the Statute for by some it cannot be resembled to the case cited before of the Bishop of Coventry and Lichfeild that such a Grant should bind him and not his Successors for if this Grant in our Case shall not be void presently it shall never be void for the Colledge never dieth no more than Dean and Chapter Mayor and Commonalty To that it was answered by Drew That although there be some difference betwixt such Corporations and that the words of the Statute are general void to all intents constructions and purposes yet they shall construed according to the meaning of the makers of the Act whose scope was to provide for the Successors and not for the present Incumbent and to the utter impoverishing of all Successors without any respect to the party himself as it appeareth by the preamble of the said Statute where it is observed That by long and unreasonable Leases the decay of Spiritual Livings is procured for the remedying and preventing of which long Leases this Act was made and that the Successors should not be bound thereby And these Leases are not void simpliciter sed secundum quid i. e. as to the Successors As upon the Statute of 11 H. 7. cap. 20. Discontinuances made by Women c. shall be void and of none effect yet such a Discontinuance made is good against the Woman her self So upon the Statute of 1 Eliz. concerning Bishops See now Coke Lincoln Colledge Case 37 Eliz. in the third Reports 60. A Lease made by Dean and Chapter not warranted by the said Statute shall not be void untill after the death of the Dean who was party to the Lease So upon the Statute of 13 Eliz. of fraudulent Conveyances such fraudulent Conveyance is not void against the Grantor but against those who are provided for by the said Statute and that the Lease in the principal case is not void but voidable all the Iustices agreed to be avoided by the Colledge or any other who claim by it and by Anderson If such a Lease should be void then great mischief would fall to the Colledge for whose benefit this Statute was made for if such Lease be made rendring a small Rent then if before the defect be found or espied the Rent was arrear the Colledge could not have remedy for the said Rent Also by Periam Such a Lessee might have an Action of Trespass against a stranger who entreth upon the Land which proves that the Lease is not void but voidable and afterwards notwithstanding all the Objections Iudgment was given for the Plaintiff and the chief Authority which moved Periam Iustice to be of such opinion was Lemans case cited before 28 H. 8. Dyer 27. where a Lease was made to a Spiritual person against the Statute of 21 H. 8. and a Bond or Obligation for performance of covenants and thereupon an Action was brought and the Plaintiff therein had Iudgment and recovered which could not have been if the Lease were utterly void against the Lessor and Lessee as the very words of the Statute are and although it is not alledged in the Book that that was any cause of the Iudgment yet in his opinion it was the greatest cause of the Iudgment in that case CCCCXXVIII Bighton and Sawles Case Pasch 35 Eliz. In the Common Pleas. IN an Action upon the case it ws agreed by the whole Court 1 Cro. 235. That where Iudgment is given that the Plaintiff shall recover and because it is not known what damages therefore a Writ issueth to enquire of the damages That the same is not a perfect Iudgment before the damages returned and adjudged and therefore they also agreed that after such award and before the damages adjudged that any matter might be shewed in Court in arrest of the Iudgment and by Periam Iustice the difference is where damages are the principal thing to be recovered and where not for if damages be the principal then the full Iudgment is not given until they be returned but in Debt where a certain sum is demanded it is otherwise CCCCXXIX Maidwell and Andrews Case Pasch 33 Eliz. In the Common Pleas. MAidwell brought an Action of Covenant against Andrews Covenant and the Case was this That R. was seised of Lands and leased the same for life rendring Rent and afterwards devised the Reversion to his wife for life and died Andrews the Defendant took to wife the wife of the Devisor the Devisee of the Reversion afterwards Andrews bargained and sold the said Reversion to one Marland and his heirs during his own life and afterwards granted the Rent to the Plaintiff and covenanted that the Plaintiff should enjoy the said Rent during his Term absque aliquo legitimo impedimento of the said Andrews his Heirs or Assigns or any other person claiming from the said Marland Marland died seised and the same descended to B. his heir and the breach of the Covenant was assigned in this i. in the heir of Marland who hath the Rent by reason of the Grant of the Reversion to Marland ut supra the Defendant pleaded the Grant of the Reversion to Marland per scriptum without saying Sigillo suo sigillat hic in Curia prolat absque hoc that the said Reversion and Rent descended to B. and thereupon the Plaintiff did demur in Law and the causes of the Demurrer was assigned by Yelverton Serjeant 1. The Grant of the Reversion is pleaded per sciptum and he doth not say sigillat for a Reversion cannot pass without Deed although it be granted but for years and a bare writing is not a Deed without sealing of it and therefore the pleading ought to be per scriptum suum sigillat or per factum suum for factum suum implies the ensealing and delivery 2. It ought to be pleaded hic in Cur. prolat for the Court is to see such Deed to the end they may know if it be a lawful Deed Traverse 1 Cro. 278. without razure interlining or other defects 3. The Defendant hath traversed the descent where he ought to have traversed the dying seised for of every thing descendable the dying seised is the substance and the descent is but the effect And although the Grant of the Reversion was but for the life of the Grantor yet the estate granted is descendable as 27 E. 3. 31. Tenant by the Courtesie leaseth his estate to one and his heirs the Grantor dieth his Heir entreth and a good Bar against him in the Reversion and see 14 E. 3. Action 56. Annuity granted to one and his Heirs for the term of another mans life the Grantor dieth living Cestuy que vie the Heir of the Grantor brings a writ of Annuity and it was holden maintainable and he said that were the dying seised is confessed and avoided by
the other side there the Descent is traversable and not the dying seised and that was the Case betwixt Vernon and Gray Vernon and Grays Case In an Avowry Vernon conveyed the Lands from the Lord Powes to him as next Heir to him because the Lord Powes died seised in his Demesn as of Fee without issue and the Plaintiff conveyed from the said Lord Powes by Devise and traversed the Descent to the Avowant for the dying seised was confessed and avoided by the Devise 22 Eliz. Dyer 366. See 21 H. 7. 31. In Trespass the Defendant saith That T. was seised and died seised and that the Lands descended to him as Son and Heir and that he entred the Plaintiff said That T. was seised and took to wife K. and they had issue the Plaintiff and died seised and the Land descended to him and teaversed the descent to the Defendant and see Sir William Merings Case 14 H. 8. 22 23. But if the parties do not claim by one and the same person or the dying seised be not confessed and avoided there the dying seised shall be traversed and not the descent Glanvil Serjeant Be the Bar insufficient or not if the Declaration be not sufficient the Plaintiff shall not have Iudgment and here is not any breach of Covenant viz. that the Plaintiff shall enjoy it without any lawful impediment of the Defendant his Heirs or Assigns or any claiming by Marland and then if the Heir of Marland cannot make any lawful claim then there is not any breach of Covenant assigned and he said because it is not shewed that the Land is not holden in Socage the Devise is not good for it may be that the Land is holden in Capite but admit the Devise good that when Andrews bargains and sells unto Marland and the Tenant never attorns then nothing passeth and then the Heir of Marland cannot make any lawful claim or lawful impediment Periam Iustice Here Marland was assignee of Andrews and if he or his heirs make claim although that the assignment be not sufficient in Law yet because he hath colour by this assignment his claim is lawful and so there is a breach of the Covenant and although it is not alledged that the Land devised is holden in Socage yet the Devise is good for two parts of the Land. Anderson Iustice If it be good but for two parts then is the Reversion apportioned and the Rent destroyed and so Marland hath not any Rent by his purchase of the Reversion and so he can't lawfully disturb the Plaintiff The Law doth create his apportionment which grows by the Devise and therefore the Rent shall not be destroyed but if it had been done by the Act of the party it had been otherwise and I would willingly hear if the Heir of Marland be assignee of Andrews for otherwise he is not within the words of the Covenant for Marland hath an estate to him and his heirs for the life of another Now after the death of Marland his heir is a special occupant and vide H. 26 Eliz. Rot. 560. in the Common Pleas such an Heir shall not have his age CCCCXXX Oglethorpe and Hides Case Pasch 33 liz In the Common Pleas. IN Debt upon a Bond for the performance of Covenants Debt it was holden by the whole Court That if the Defendant pleaded generally the performance of the Covenants and the Plaintiff doth demur generally upon it without shewing cause of Demurrer Iudgment shall be given according to the truth of the cause for that default in pleading is but matter of form and is aided by the Statute of 27 Eliz. But if any of the Covenants be in the disjunctive so as it is in the Election of the Covenantor to do the one or the other then it ought to be specially pleaded and the performance of it for otherwise the Court cannot know what part hath been performed CCCCXXXI Tracy and Ivies Case Mich. 32 Eliz. In the Common Pleas. IN Dower by Margaret Tracy against Ivie the Case was Dower That John Finch was seised and enfeoffed Shipton and others of two parts of the Lands to the use of himself and the Defendant his then wife and their heirs for ever with Condition That if his said wife did survive him Co. 4. Vernons Case she should pay such sums of mony not exceeding two hundred pounds to such persons which the Feoffor by his last Will should appoint and afterwards he declared his Will and thereby appointed certain sums of mony to be paid to divers persons amounting in the whole to the sum of one hundred and fifty one pounds and by his said Will devised the residue of his Lands to divers of his Kindred having no issue and died The wife married Tracy and they brought Dower against the Devisees who pleaded the Feoffment aforesaid and averred the same was made for the Ioynture of the Demandant And because that no other matter or circumstance was proved to verifie the Averment the Court incited the Iury to find for the Demandant which they did accordingly CCCCXXXII Bond and Richardsons Case Mich. 32 Eliz. In the Common Pleas. IN Debt upon a Bond Debt 1 Cro. 142. the Condition was to pay a lesser sum such a day and at such a place the Defendant pleaded payment according to the Condition upon which they were at issue And it was found by Verdict That the lesser sum was paid such a day before the day contained in the Condition of the Bond and then received and upon this Verdict Iudgment was given for the Plaintiff for the day is not material nor the place but the payment is the substance CCCCXXXIII Marshes Case Trin. 32 Eliz. In the Common Pleas. Trover had Conversion GOods came to a Feme covert by Trover and she and her Husband did convert them to their own use It was holden per Curiam That the Action upon the Case shall be brought against the Husband and Wife and not against the Husband only for the Action doth sound in Trespass and it is not like unto Detinue for upon a Detainer by the Wife the Action lieth against the Husband only CCCCXXXIV Corbets Case Trin. 32 Eliz. In the Common Pleas. Debt 2 Len. 60. AN Action of Debt was brought by Original Writ against an Administrator in another County than where the Administrator was commorant and before notice of the Suit he paid divers Debts of the Intestate due by specialty and so he had not Assets to pay the Debt in demand having Assets at the day of the Teste of the Original And now Plainment Administred 1 Cro. 793. the Defendant appearing pleaded this special matter and concluded so he had nothing remaining in his hands And it was holden per Curiam to be a good Plea. See 2 H. 4. 21 22. CCCCXXXV Gillam and Lovelaces Case Mich. 32 Eliz. In the Common Pleas. Administration KAtharine Gillam Administratrix of John Gillam brought Ejectione
Lease for life and afterwards two of the Ioynt-tenants release to the third who brings an Action of Wast against the Lessee and the Writ was That he held of his Lease only and the Writ was awarded good Walmesley This Plea Non est factum upon this matter is no good Plea for he hath not pleaded it Respective as to the Obligation but generally Non est factum suum which refers to the Obligor only and the Issue is not whether he made the Deed to the Plaintiff or not but generally whether he made it at all For there is a difference Nihil debet for that refers to te Plaintiff and where he pleads Non est factum Which that refers to the Plaintiff and where he pleads Non est factum Which Shutteleworth granted See 1 Eliz. Dyer 167. Tawes Case this Plea Non est factum hath not any respect to the Obligee be a Monk and there is another who bears the name of the Obligee yet in those Cases the Obligor cannot safely plead Non est factum but where one is sued who bears the name of the Obligor there Non est factum is a good Plea And see 10 Eliy Dyer 279. W.S. was bound in an Obligation to one H. by the name of I.S. and upon that Obligation an Action was brought against him by the name of W.S. and he pleaded Non est factum and the special matter was found and it was ruled that upon that Verdict the Plaintiff should not recover but the best way for the Plaintiff was to sue the Defendant by the name by which he is bound and then if he appear and plead ut supra he shall be concluded by the Obligation And the Court was clear of opinion That the Plaintiff ought to have declared upon the special matter CCCCLIV Willis and Whitewoods Case Hill. 31. Eliz. Rot. 1428 In the Common Pleas. Leases Ow. â—5 56. Hutt 105. Ant. 158. Surrenders THe case was That A. was seised of certain Lands holden in Socage and leased the same to I.S. for many years and dyed his heir within the age of fourteen years the wife of A. being Guardian in Socage leased the same Land by Indenture to the same I.S. for years if the first Lease was surrendred or determined was the Question Anderson Surrendred it cannot be for the Guardian hath not any Reversion capable of a Surrender but only an Authority given to her by the Law to take the profits to the use of the Heir But yet perhaps it is determined by consequence and operation of Law As if A. lease to B. for one hundred years and afterwards granteth the Reversion to C. for two years who leaseth to B. for two years who accepts the Lease the same is not any Surrender Ante. 303. for a term of one hundred years cannot be drowned in a Reversion for two years yet the first Lease is determined which Periam granted And by Windham If a Lease be made to begin at Michaelmas and before that time the Lessor makes a new Lease to the same Lessee to begin presently the same is not any Surrender and yet thereby the first Lease is determined and so in the principal case which Anderson granted but Periam doubted of it and he said Guardian in Socage hath such an estate in the Reversion that he may enter for a condition broken Anderson The same is not in respect of any estate that he hath but in the name and right of the heir and not by reason of any Reversion CCCCLV Norwood and Dennis Case Trin. 31 Eliz. In the common Pleas. IN a Quare Impedit by Norwood against Dennis the Issue was Quare Impedit If the Advowson was appendant to the Manor of D. or in gross and the Iury â—â—und that it was appendant and further found that the Queen had right and title to present for she had presented at the two last Avoidances Anderson and Periam Iustices If it appeareth unto the Court upon the pleading that the King hath title to present The Court shall award a Writ to the Bishop for the King but here appeareth no title for the the Queen upon the pleading but only upon the Verdict so as the one part or the other may answer to it And because the Iury have found for the Plaintiff the title found for the Queen shall not be respected but as a meer Nugation and Surplusage for the same was out of their Issue and their Charge and it is no more then if one comes into the Court and informs us of any title for the Queen there the Court ought not to regard it CCCCLVI Green and the Hundred of Buccle-churches Case Trin. 31 Eliz. In the Common Pleas. IN an Action upon the Statute of Huy and Cry the Case was Action upon the Statute of Huy and Cry. 1 Cro. 14. That Green did deliver a certain sum of money to a Carryer who put the â—ame amongst other things in his Cart and sent a boy of the age of twelve years with the Cart before and he himself stayed a short time in the Inn and afterwards went his way and before he could get to the Cart the Cart was robbed and the money carryed away The boy made Huy and Cry and came unto a Iustice of Peace and prayed he would examine him but he would not but the Carryer himself would not go to be examined wherefore Green himself wen to a Iustice of Peace to be examined and so was and afterwards brought this Action And it was holden by the Court that here the Plaintiff had failed of his Action for want of sufficient examination for the Servant who was robbed ought to be examined and the examination of the Master or Owner of the goods who was not present at the Robbery is not at any purpose to enable the Plaintiff to this Action for the party robbed ought to be examined And it was said by some That where an Action doth not lye upon the new Statute of 27 Eliz. the party may have an Action upon the old Statute but others were against it for the Statute of 27 Eliz. is in the Negative so as if the Action doth not lye upon it no Action lyeth at all And it was moved by Periam and Anderson That the Plaintiff might have an Action upon his Case framed upon the said Statute of 27 Eliz. against the Iustice of Peace who refused to examine the boy But Windham doubted of it because the Iustice of Peace is a Iudge of Record and for such thing as he doth as Iudge no Action lieth To which it was answered by Periam and Anderson That the Examination in such case is not made by him as Iudge or Iustice of Peace but as a Minister appointed for the examination by the Statute c. CCCCLVII Stevinson Case Trin. 31 Eliz. In the Common Pleas. Debt IN Debt upon a Bond the Condition was That whereas the Plaintiff had covenanted with the Defendant that
that was holden by the Court clearly to be Error and afterwards at another day it was moved by Coke That a man attainted of Felony could not make Executors for he is dead in Law and as Bracton saith solus Deus facit Haeredes homo nominat Executores and therefore the Heir only shall have a Writ of Error also an Executor cannot have a Writ of Error but only upon a Iudgment given in a personal Action but this Attainder is a thing of a higher nature as where a Woman poysoneth her Husband the Heir shall not have an Appeal for Murder is changed into Treason and that offence is a thing of a higher nature so this Attainder is of a higher nature than in the personalty Also it may be mischievous to the Heir for the Executor may forthwith bring and pursue his Writ of Error by which the Iudgment shall be affirmed and so the right of the Heir shall be bound also when Error is brought to reverse an Outlawry of Felony a Scire facias ought to be sued against the Lords mediate and immediate which cannot be here at the Suit of the Executors also it was found by Enquest of the Coroner that the Testator fugam fecit so that thereby if he had been acquitted he shall lose his goods and then the Executors have not any reason to bring this Writ of Error but see 11 H. 4. Error 51. That Executors shall have a Writ of Error of an Outlawry pronounced against their Testator and if it be reversed they shall have restitution of the goods of the Testator but it doth not appear there that it was upon an Indictment of Felony Altham As well the Executor as the Heir is a person able for to sue a Writ of Error in such case as 13 E. 4. where a false oath is given against one in Assise and dieth the Heir shall have an Attaint for the Land and the Executor in respect of the damages Popham Attorney General This Outlawry is a real Iudgment therefore the Executor cannot have Error upon it Wray It is good that this case be considered for it may be mischievous for thereby the Executor shall avoid the Attainder against the King and the Lords Fenner That cannot be without a Scire facias Gawdy The Executors shall have this Action and as to that which hath been objected that the party attainted cannot make Executors the same is no reason for the Executors do pretend that their Testator was not lawfully outlawed and so by this Suit they do endeavour to take away that disability and therefore it ought not to be objected against the Executor and if the Case here be That the Testator had not lands but only goods there is no reason but that the Executors should have a Writ of Error otherwise the goods of the Testator should be lost and it was clearly holden by Wray chief Iustice That the Executor might have and pursue this Writ of Error the Outlawry of the Testator notwithstanding and afterwards the Outlawry was reversed accordingly CCCCLX Trussels Case Trin. 31 Eliz. In the Kings Bench. Habeas corpus Owen Rep. 69. ◠Cro. 213 516. Co. 3 Inst 213 215. TRussel was removed out of the Counter of London by Habeas corpus into the Kings Bench. Egerton The Queens Solicitor moved the Court that Trussel was a person attainted of Felony and so had not any lands or goods to satisfie c. and also his life was not his own and upon the Return of the Habeas corpus it appeared that Trussel was detained in Prison for an Execution and for divers Actions and it was the opinion of the Court Executions Post 329 330. that as to the Execution he ought not to be discharged for then the party should lose his debt for ever but as to the other actions it was the opinion of all the Iustices that Trussel ought to be discharged of them for a man so attainted ought not to be put to answer nor taken in Execution and so are all our Books And they said that they had conferred with the Iustices of the Common Pleas and with the Barons of the Exchequer which were of a contrary opinion in this case upon the very matter and not upon the manner of the pleading but yet we will discharge our Consciences as we have done for there is not any Book against us Egerton stetit super semitas antiquas and at last it was awarded That Trussel should be discharged of all Actions brought against him CCCCLXI Sovers Case Trin. 31 Eliz. In the Kings Bench. SOver and others were Indicted upon the Statute of 8 H. 6. Indictments upon the Statute of 8 H. 6. of forcible Entry because they had expulsed one A. out of his Land and disseised the Mayor and Commonalty of London who were in Reversion and the same being removed hither Restitution was prayed thereupon and White for the City who was in Reversion and the Lessor prayed that no Restitution might be for they had let the House to another Restitution Yelv. 81. Dy. 141 142. and that he who had procured this Indictment claimed in by a Custom of London That the Executor of the last Termor should not be put out if he shall give as much for it as any other will whereas in truth there is not any such Custom and for that cause the Restitution was stayed and it was said by the Court that Restitution shall be always made to him in the Reversion and not to the Lessee for years for he who is disseised shall be restored and then the Lessee may re-enter CCCCLXII Beal and Carters Case Trin. 31 Eliz. In the Kings Bench. IN an Action of false Imprisonment False Imprisonment Owen Rep. 98 287. the Defendant justified because the Plaintiff brought a Child of the age of six years and not above into the Parish Church of W. eundem ibidem relinquere voluisset intendisset without keeping or nourishment to the danger and destruction of the Child contra pacem for which the Defendant being Constable of the said Parish arrested the Plaintiff and put him in prison until he did agree and promise to carry the Child from whence it came upon which the Plaintiff did demur in Law. It was moved that the Iustification was good for every Subject might do it à fortiori a Constable and if in this case the Child being so exposed should be famished for want of nourishment it had been murder as it was holden at Winchester before the Lord chief Baron 20 Eliz. Another Exception was taken to the Plea because he saith quendam infantem without naming him and he ought to say Quendam infantem ignotum Antea 56. but that Exception was not allowed Another Exception ibidem relinquere intendisset but he doth not say that he did depart from it and then his meaning is not traversable or issuable or to be tried by Iurors See 22 E. 4. 45. Gawdy
Godfrey in arrest of Iudgment That it is apparent upon the Declaration That the Trespass was done in the time of their Predecessors of which the Successor cannot have action and actio personalis moritur cum persona See 19 H. 6. 66. But the old Church-wardens shall have the action Cook contrary and that the present Church-wardens shall have the action and that in respect of their office which the Court granted And by Gawdy Church-wardens are a Corporation by the Common Law. See 12 H. 7. 28. by Frowick That the New Church-wardens shall not have an action upon such a Trespass done to their Predecessors contrary by Yaxley See by Newton and Paston That the Executors of the Guardian in whose time the Trespass was done shall have Trespass CCXLIX Hauxwood and Husbands Case Pasch 31 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared for disturbing of him to use his common c. and shewed that A. was seised of certain Lands to which this Common was appendant Prescription 1 Cro. 153. for the term of his Life the Remainder to B. in tail and that the said A. and B. did demise unto him the said Lands for years c. Pepper The Declaration is not good for it is not shewed how these particular estates did commence See 20 E. 4. 10. By Piggot Lessee for life and he in the Remainder cannot prescribe together and he in the Remainder cannot have common Also he declares That Tenant for life and he in Remainder demised to him whereas in truth it is the demise of Tenant for life and the Confirmation of him in the Remainder also he doth not aver the life of Tenant for life Popham He needs not to shew the commencement of the particular estates for we are a stranger to them the Prescription in them both is well enough for all is but one estate and the Lease of both See 27 H. 8. 13. The Lessee for life and he in the Reversion made a Lease for life and joyned in an action of wast and there needs no averment of the life of the Tenant for life for he in the Reversion hath joyned which Gawdy granted as to all And said the particular estates are but as conveyance unto the action Wray conceived the first Exception to be material c. CCL Sweeper and Randals Case Rot. 770. Trin. 31 Eliz. In the Kings Bench. IN an Action of Trespass for breaking of his Close and carrying away his goods by Sweeper against Randal upon Not guilty pleaded i Cro. 156. The Iury found That one John Gilbert was seised of the Land where c. and leased the same to the Plaintiff at Will who sowed the Land and afterwards the Plaintiff agreed with the said Gilbert to surrender to him the said Land and his interest in the same and the said Gilbert entred and leased to the Defendant who took the Corn. It was moved if these words I agree to surrender my Lands be a present and express surrender Gawdy It is not any surrender for Tenant at will cannot surrender but it is but a relinquishing of the estate if it be any thing Surrender but in truth it is not any thing in present but an act to be done in future Wray I agree A. demiseth the Manor of D. at will it is no Lease no more shall it be here any Surrender or any relinquishing of the estate Clench conceived That the intent of the Party was to leave his estate at the time of the speaking otherwise those words were void for he might leave it at any time without those words Gawdy If such was his intent the Iury ought to find it expressly and afterwards Iudgment was given for the Plaintiff CCLI Ward and Blunts Case Trin. 31. Eliz. In the Kings Bench. Trover and Conversion 1 Cro. 146. IN an Action upon the Case of Trover of certain Loads of Corn at Henden in Middlesex and the conversion of them The Defendant pleaded That before the conversion he was seised of certain Lands called Harminglow in the County of Stafford and that the Corn whereof c. was there growing and that he did sever it by force of which he was possessed and the same casually lost and that the same came to the hands of the Plaintiff and the Plaintiff casually lost the same and the same came to the hands of the Defendant at Henden aforesaid and he did convert the same to his own use as it was lawful for him to do upon which the Plaintiff did demur in Law. Atkinson The Plea is good for the conversion is the point of the action and the effect of it For if a man take the same and do not convert he is not guilty And here the Defendant doth justifie the conversion wherefore he cannot plead Not guilty The general issue is to be taken where a man hath not any colour but here the Defendant hath colour because the Corn whereof c. was growing upon his Land which might enveigle the Lay people and therefore it is safest to plead the special matter But admit that it doth amount but to the general issue yet there is not any cause of Demurrer but the Plaintiff ought to shew the same to the Court and pray that the general issue be entred and the Court ex officio ought to do it Egerton the Queens Solicitor contrary The Plea in Bar is not good The Plaintiff declares of a Trover of his goods ut de bonis suis propriis and the Defendant pleads That he took his own goods which is not any answer to the Plaintiff See 22 E. 3. 18. In Trespass of taking and carrying away his Trees The Defendant pleads That they were our Trees growing in our own soil and we cut them and carryed them away and the plea was challenged wherefore the Defendant pleaded over without that that he took the Trees of the Plaintiff So 26 Ass 22. and 30 E. 3. 22. Another matter was The Plea in Bar is That before the time of the Conversion the Defendant was seised of the Land and sowed it and that after the Corn was severed but he doth not say that he was seised at the time of the severance and then it might be that he had severed the Corn of the Plaintiff c. and that was holden by the Court to be a material exception wherefore Iudgment was given for the Plaintiff But as to the first Exception the same was disallowed For the Court ex Officio in such case ought to cause the general issue to be entred but the Plaintiff ought not to demur upon it CCLIV Cheiny and Langleys Case Hill. 31. Eliz. Rott 638. Trin. 31 Eliz. In the Kings Bench. THe case was That Tenant for life of certain Lands leased the same for years by Indenture with these words I give grant 1 Cro. 157. Leases bargain and sell my interest in such Lands for twenty years To have and to hold
in such manner and form as I my self did hold the same and no otherwise Tenant for life died within the Term and he in the Reversion entred and the Lessee brought an action of Covenant Godfrey The action doth not ly for here is not any warranty for the Plaintiff is not Lessee but Assignee to whom this Warranty in Law cannot extend but admit that the Warranty doth extend to the Plaintiff yet it is now determined with the estate of the Tenant for life and so the Covenant ended with the estate See 32 H. 6. 32. by Littleton 9. Eliz. Dyer 257. Covenant And if Tenant in tail make a Lease for years ut supra and afterwards dieth without issue the Covenant is gone and after Iudgment was given against the Plaintiff CCLV. Fish Brown and Sadlers Case Intrat Mich. 29 Eliz. Rot. 606. Trin. 31. Eliz. In the Kings Bench. AN action upon the Case was brought by Fish and Brown against Sadler Hill. 29 Eliz. rot 606. and they declared Action upon the Case That they were proprietaries of certain goods which were in the possession of one A. against which A. Sadler one of the Defendants had commenced a feigned and covenous suit in the Ecclesiastical Court in the Name of one Collison to the intent to get the said goods into his possession of which the Plaintiffs having notice and to the intent that the said Plaintiffs should suffer the Defendant to recover and obtain the said goods by the said suit the Defendant did promise to the Plaintiffs to render to them a true accompt of the said goods and shewed further That by the said suit the Defend did obtain the said goods by sufferance of the Plaintiff Tanfeild It is a good consideration the Plaintiffs were not parties or Privies at the beginning of the suit it is not like Onlies Case in 19 Eliz. Dyer 355. Where in an action upon the Case Onlie declared Assumpsit and consideration That the Defendant Countess c. being a Widow had divers suits and businesses and that the Plaintiff at her request had bestowed great labour and travail and had expended circa the affairs of the said Countess 1500 l. Whereupon she promised to the Plaintiff to pay all the said expences and such a sum above for that matter which is the ground of the action is maintenance and malum prohibitum but such matter is not here for it is lawful for a man to use means to get his goods Gawdy All covins are abhorred in Law and here the Plaintiffs are privies to the wrong and therefore it cannot be any consideration Wray Although that the suit at the beginning was wrongful and covenous yet when the Plaintiffs who were owners of the said goods do assent to such proceedings now the suit is become just and lawful ab initio Corin. and so no wrong in the consideration but all the wrong is purged by the agreement If any covin be the same is between Sadler and him who is sued to whom the Plaintiffs are not privies Clench If this privity betwixt the Plaintiffs and Sadler had been before the said suit then the consideration is without any fraud Cooper Serjeant conceived here is not any good consideration upon which the Promise of the Defendant may be grounded for the Defendant hath not any benefit by it and he cited the case between Smith and Smith 25 Eliz. Egerton Here the consideration is good enough for the Plaintiffs forbear their own suit which was a hinderance unto them Clench was of opinion that the Plaintiff should not have Iudgment for that suit was begun by Sadler in the Name of Collison without his privity and therefor it was unlawful and the same was for the goods of another man which is unlawful also and then when the unlawful act is begun the illegal agreement afterwards that they shall proceed is unlawful also and therefore there cannot be any consideration and as to the covin it is not material for without that the matter is illegal enough Also the Declaration is not good in this because it is not shewed in what Court the suit did depend so as it might appear unto us that they had power to hold plea of it Gawdy agreed with Clench in the first point and also in the last and by him in the assumpsit the Plaintiff declares that a suit was depending betwixt the Defendant and another and where the Plaintiffs if they were produced might have given strong witness against the Defendant the said Defendant in consideration that the Plaintiffs would not give Testimony against him promised to give to the Plaintiff 20 l. the same consideration will not maintain this action because it is unlawful for any man to suppress testimony in any cause 1 Cro. 337. Wray Here is a consideration good enough For where Sadler should lose costs upon the first suit now upon this promise upon his account he shall be allowed the same the which is a benefit unto him and as to the shewing in what Court the suit doth depend that needs not by way of Declaration but the same shall be shewed by way of Evidence and it is not traversable and it is but inducement to the action And as to the covin that is not here for covin is always to the prejudice of a third person but so it is not here But in truth this suit was unlawful for Sadler so to sue in the Name of another and therefore it cannot be a good consideration And for that cause it was awarded Quod querens nihil capiat per billam CCLIV How and Conneys Case Trin. 31 Eliz. In the Kings Bench. Trespass 1 Cro. 159. IN an action of Trespass by How against Conney the case was That one Smith was seised of two houses and leased one of them to his Brother for life and afterwards by his Will devised viz. I give to my Executors All my Lands and Tenements free and copy to hold to them and they to take the profits of them for ten years and afterwards to sell the said Lands and Tenements and afterwards died his Brother died before the quarter of a year after and it was found That the Executors entred into the house undemised and took the profits but not into the other and that at the end of the said ten years they sold the whole Godfrey The house only which was in possession shall pass by the Will. To hold unto them doth imply matter of possession so as nothing passeth but that whereof they may take the profits the which cannot be of a bare Reversion also by this devise the Executors have not interest in the thing devised but for ten years Plow 66. Shop 437. whereas the Brother of the Testator had an estate for life which by possibility might continue above twenty years and to prove that the meaning of the devisor to be collected upon the words of the Will ought to direct the construction of the