But in our Case the act being done by the issue in Tail himself shall not enable him to make voyd the Lease made by his Mother no more then if a Tenant in Tail makes a Lease for years and levies a Fine with proclamations to the Donor and dyes having issue yet the Donor shall not avoyd the Lease Vid. Lord Aberganies Case Cook 6 Rep. And although that the Wife were a Ioyntress within the Statute of 11 H. 7. yet is this Lease clearly out of the Statute because that it is no bar or discontinuance to the Estate in Tail as it is in Sir George Browns Case Cook 3 Rep. for this Lease was voydable by the issue unless he had bar'd himself by his own Fine And I conceive this Lease is also good against the Devisee for when a Tenant in Tail makes a Lease for years or grants a Rent common c. or acknowledgeth a Statute or doth in some other manner charge the Land this is a good Lease Grant or Charge to binde the Tenant in Tail and all other except the issues in Tail and those in Reversion And the reason of this is because the Statute of Westminster 2. cap. 1. that was made to avoyd such charges does not ayd any persons except the issues in Tail and those in Remainder and Reversion And therefore if Tenant in Tail grant a Rent or acknowledg a Statute and dyes the issue shall not be charged with it and so shall his Feoffee but if the Tenant in Tail himself after such charge infeoffs another and dyes the Feoffee shall hold the Land charged and if a Tenant in Tail makes a Lease for years and dyes and the issue doth accept the Rent the Lease is made good and is absolute but if he dyes seised of the Estate-Tail the issue hath his election either to make the Estate good by his acceptance of the Rent or to avoyd the Lease by his entry and if he infeoff a stranger before entry the Feoffee shall never avoyd the Lease and if the issue doth accept the Rent he maketh the Lease good for his time and as the Feoffee of the Tenant in Tail and all those who come to the Land by any assurance made be the Tenant in Tail whereby the Estate in Tail is barred or discontinued shall hold the Estate charged with the Leases and charges made by the Tenant in Tail so shall all those in like manner who come to the Land under the said Tenant in Tail although the Estate-tail doth remain not barred or discontinued saving the issues in Tail who are ayded by the Statute of Westminster the 2. And therefore if Tenant in Tail grants a Rent in fee and takes a Wife and dyes the Wife shall hold charged with the Rent and so if a woman Tenant in Tail grants a Rent and marries and hath issue and dyes the Husband being Tenant by the curtesie shall hold the Land charged for they are not ayded by the said Statute and so if Tenant in Tail grants a Rent in Fee and makes a Lease for three lives warranted by the Statute of the 32 of Hen. the 8. and dyes the Lessee shall hold the Land charged Cooks Rep. 9. Count. Bedfords Case And in the said Case of the Lord Abergeveny it is said that the surviving Ioyntenant by acceptance of the Lease hath deprived himself of the way and means of avoyding the charge for vis accrescendi was the onely means of avoyding it and the right of survivor is gone by the Release And so in our Case the issue in Tail might have avoyded this Lease by his entry but he hath quite barred himself by his Fine And as to the Statute of the 11 H. 7. cap. 20. I conceive that nothing is prohibited by this Statute but onely such Acts as are a bar of the Estate-tail or a discontinuance thereof for so are the words of the Stature viz. If any woman shall discontinue alien release or confirm with Warranty c. And in Sir George Browns Case in Cooks Repor fol. 350. it is there argued Whether a Discontinuance without Warranty be within that Statute but it was resolved that these words with Warranty doe refer onely to Releases and Confirmations which make not discontinuance without Warranty for the intention of the Statute was not onely to prohibit every bar but also every discontinuance but here in this case there is no bar or discontinuance for the woman hath made a Lease for years rendering Rent by which the Estate-tail is neither bound nor discontinued but she remains Tenant in Tail as she was before and so dyed seised of such Estate and therefore if it had not been for the Fine levyed by the issue in Tail himself she might have entered and have avoyded the Lease and this is not like the Case there put by Anderson where Feme Tenant in Tail in Ioynture within the Statute does accept a Fine sur conusans de droit come ceo c. and therefore does grant and render the Estate for 1000 years for though this be no discontinuance of the Estate-tail yet is it a bar of the Estate during the time And Hillar 22 Jacob. I argued this Case again and all the Court viz. Doderidge Jones and Whitlock did agree That the issue in Tail was barred by the Fine to avoyd this Lease and that although the Estate-tail was barred yet is it not extinguished but remains in esse to support the Lease so long as any issue in Tail does remain alive and so they agreed the Lease to be good Wherefore Iudgment was given for the Plaintiff Judicium George Bishop of Chichester Plaintiff John Free-land Defendant 1 Caroli Rot. 607. THe Case was That a Bishop was seised in fee of a Park to which there was the office of a Keeper belonging with a fee of five marks with a Livery granted from time to time by the Bishop And the Bishop does grant the said Office together with the fees necnon cum pastura pro duobus equis in eodem Parco which Grant was confirmed by the Dean and Chapter The Bishop dyes and another is made Bishop And whether this Grant was good to binde the Successor was the Question And I conceive that this is a good Grant against the Successor and will binde him And first I conceive it will not be denyed but that if a Bishop hath a Park he by the Common Law may grant the Office of the Keeper of that Park to whom he will with such fees and wages and for such an estaâ—e as he will and this being confirmed by the Dean and Chapter is good to binde the Successor and therefore it is to be considered Whether any alteration of the Law be made in this point by reason of any Statute In the Bishop of Salisburies Case Cooks 10 Rep. it is there resolved that by the Statute of the first of Elizabeth Bishops are thereby generally restrained from making any estate or interest of
a Lease for four years the Lessee entred and the Lessor did grant the Land habendum from Midsomer next for life the Lesses after Midsomer did attorn and adjudged that the Grant was void and in Barkwicks Case 5 Rep. the reason thereof is given because that if the Grant should be good the Grantor should have a particular Estate scil during the first day of the date or in the mean time untill the Grant did begin to take effect without any Donor or Lessor which is against the Rules of Law And although this Grant of the Reversion be but for years yet is it all one for the diversity is between a Lease for years made Tenant in Fee or for life to commence in future and a grant of a Reversion for in the first Case it is but a future Charge upon the Land so that the Lessor hath his former Estate untill the Lease doth begin and the Lessee hath no Term but only interesse termin and therefore Hil. 38. Eliz in the Common Pleas between Row and White it was agreed that if the Lessor be disseised before the Lease begins the Lessee after the day of the Commencement may grant the term otherwise where a Lessee for yeares in possession is outed by an estranger for there his Term is turned into a Right but in the first Case he hath not any Term in esse and therefore it cannot be turned into a Right nor any wrong done thereunto And for direct Authorities in this Case 29 Eliz. in the Common Pleas the Countesse of Kents Case Where one having a Reversion in Fee does grant this Habendum after the death of I. S. for years and it was adjudged a void Grant And Trin. 39 Eliz. Johnson and Somerset in the Common Pleas Lessee for life grants the Reversion Habendum a die dat for ten years and adjudged a void Grant And in the Comment 155. by Brown If one having a Reversion does grant it habendum after a day to come for years this is a void Grant for if it may be granted from a day to come the Grantor shall have a particular Estate in the mean time by his own making which cannot be that one may be Lessor to himself or diminish his own Estate and there it is taken for a Rule that when there is a Rent in Esse or a Reversion c. a man cannot make this to be in esse for a time and to cease for another time or to grant it to another after the death of any or from a day to come relinquishing to himself an Estate in the mean time And in the Comment 197. b. Adams against Wortesbey agreed there that a Reversion cannot passe as a Reversion according to the common understanding thereof from a day to come But Haughton conceived that this Case being a bargain and sale whereby the use doth passe first this may well passe from a day to come Quod nullus dedixit Thirdly It is not averred that the twenty acres in which the Distresse was taken was not part of the Closes excepted so that it may be part of them and then no Distresse for the Rent can be taken there And although it may be gathered by some words in the Bar to the Avowry that the place where c. was parcell of the Land devised to Wiseman yet this shall not help the Conusans as in Cokes 7. Rep. fol. 24 25. where one having Land in Fee and another Land for years did grant a Rent for life out of both the Grantee distrained for the Rent and avowed that the Rent was granted out of the Lease land amongst other lands whereas he ought to have alledged the Rent to be granted out of the Land in Fee only and although the Plaintiff in his Bar to the Avowry hath shewed the truth of the Case yet this will not make the Avowry which wants substance to be good Judgment And all the Court did agree the Avowry to be naught for this exception Wherefore Iudgment was given for the Plaintiff in the Replevin Mich. 14 Jac. Webb and Jucks Case against Worfeild Rot. 266. IN a Writ of Error to reverse a Iudgment given in the Common Pleas for the now Defendant against the now Plaintiffs In which the Plaintiff did declare that the Defendants the fourteenth of Febr. 9 Jac. at Ponick in a place called Brancefords Court did take an Oxe from the Plaintiff ad damnum forty pounds The Defendants did acknowledge the taking of the said Oxe as Bayliffs to Elizabeth Ligon Widow for that the place where c. contained two acres of Land and that one Anne Ligon was seised in Fee of the Scite of the Mannor of Bransford and of seven Messuages three Gardens and a hundred and fifty acres of Land forty two of Meadow sixty six of Pasture five of Wood and seventy of Furzes and Heath in Ponick aforesaid Bransford Leigh Newland and Wick whereof the place where c. is parcell That the sixth of September the twenty fourth of H 8. Anne Ligon did devise this to John Parsons and Anne his Daughter for seventy years after the death of Elizabeth his wife if they or either of them shall so long live rendring five pounds four shillings eight pence Rent at the Annunciation Christmas Midsummer and Michaelmas That the eleventh of August 1554. Elizabeth Parsons died whereupon John and Anne Parsons entred And Ligon dies whereby the Reversion descended to Sir Rich. Ligon her Son and Heir and Sir Richard died wherby the same descended to William Ligon his Son and Heir who died also whereby the same descended to Richard Ligon his Son and Heir who died also and the same descended to Sir Richard Ligon his Son and heire who Hil. 33 Eliz. did levy a Fine Sur Conusans de droit come ceo c. to the use of himself for life the Remainder to the said Elizabeth Ligon then his Wife for life the Remainder to the Heirs of the body of Sir William the Remainder to the right Heires of Sir William 10 May 4. Jac. John Parsons died Pasch 6 Jac. Sir William Ligon and Elizabeth his wife did levy a Fine to the Plaintiff to the use of the Plaintiff for the life of Sir William the Remainder to the said Elizabeth for her life the Remainder to the Plaintiff in Fee Sir William dies whereby the Reversion does remain to Elizabeth his Wife And for seventy eight pounds six pence of the said Rent for three quarters of a year ending at Christmas 9 Jacob. they did acknowledge c. and they averred the lives of the said Elizabeth Ligon and the said Anne Parsons Bar. The Plaintiff said that the Fine levied by Sir William and Elizabeth his wife was to the use of the Plaintiff and his Heirs and justified the putting in of the said Oxe by the license of the said Anne Parsons Absque hoc that the said Fine was to the use of the Plaintiff for the life of
one could enter into an Advowson therefore no Livery can be made and 11 H. 4. 3. 6. An Advowson in grosse cannot passe without Deed 9 Ed. 4. 47. a. One cannot grant Proximam advocationem without Deed Dyer 323. Advowson of the Vicaridge of D. doth passe by the Grant of all hereditaments in D. although it lies not in Livery nor is visible and Coke 9. Rep. 96. An Advowson is not manuall but is Haereditas incorporata and so Littleton 3. of things which do not lye in manuall occupation or possession as an Advowson he shall not plead as seised in his Demesne as of fee but as of fee and so Littleton 139. If Tenant in Taile grants the Advowson it is no discontinuance And the reason is apparent because that nothing can passe by Livery but that whereof possession may be taken by the Feoffor or Donor and given to him by the Feoffee or Donee And it is more colourable to say that he in Reversion upon an Estate for life may make Livery for although a Reversion be not visible or mannuall yet Terra revertens which the Grantee shall have after the Estate determined is manuall and yet I conceive that none will hold that such a Reversion so long as it continues a Reversion may passe by Livery If it be admitted that an Advowson may passe by Livery yet it shall be intended by this Verdict that it doth not passe because it is found that Valentine did grant it by Deed and there is no doubt but it may passe by Deed without Livery and therefore no Livery being found Livery shall not be intended for it shall not be intended to be a discontinuance whereby the Tenant in Taile shall do wrong when the Advowson may well passe by Deed which is no wrong And therefore I conceive that notwithstanding this objection that here is no discontinuance but only a grant of an Advowson which is determinable by the death of the Tenant in Taile who made it from whence it follows that Sir Richard at the time of his grant of the Lease had only a Remainder in fee in the Advowson determinable on the death of Valentine his Father which Estate is only charged by his confirmation for as Issue in Taile he cannot make any confirmation because he had nothing in him at that time 10 Ed. 3. 2. Confirmation 22. If the Son confirmes the Estate of the Disseisor in the life of his Father and the Father dies the Son shall not be barred by his confirmation without Warranty 13 Ed. 1. Confirmation 19. If one doth quit Claime for him and his heirs all his Right before that his Right doth happen the quite claim is nothing and so is Littleton 106. Releases and the reason of these Cases is upon the Rule of the Common Law which is that one cannot grant or charge that which one hath not By which it plainly appears that this implyed Confirmation made by Sir Richard does make the Lease good only for so long time as he hath Estate in the Advowson which is determinable by the death of Valentine And to prove that it is so determinable it is a certain Rule that all Grants and Charges made by Tenant in taile are determined with his life and so is Littleton Discontinuance 139. If Tenant in taile of an Advowson or Common does grant this in fee it is no Discontinuance for the Grantee hath no Estate but for life of the Tenant in taile who made the Grant 22 H. 3. Discontinuance 52. If a Rent be granted to husband and wife in fee and the husband grants this in fee and dies yet the wife may distrain and shall not be put to her Action 36. Assise 8. Tenant in taile of a Reversion grants the same in fee with Warranty and dies leaving Assets the Tenant for life dies and the Issue enters and his entry congeable for the Grant is meerly determined by his death so that the Warranty cannot work 38 H. 8. b. Discontinuance 35. If the King Tenant in taile grants the Land for lifâ— it is no discontinuance for a Grant without Livery makes no discontinuance but this shall not bind but during the life of the Grantor 26 H. 7. 4. Fineaux Tenant in taile of Services is like Tenant for life and by his Grant nothing doth passe but for his life and after his death the Issue may distrain but if he brings a Formedon he shall be barred by the Warranty for then he admits it to be a Discontinuance And Hil. 39 Eliz. Rot. 941. In the Common Pleas between Keen and Cox Thomas Jennings Tenant in taile the Remainder to John his Brother made a Lease for three lives according to the Statute of 32 H. 8. with Warranty and dies without Issue John being his heire who entered and agreed good for the Estate of the Lessee was determined by the death of the Lessor without Issue wherefore the Warranty could be no bar to the Remainder And although the Issue in case of Grant of a Rent by his Ancestor may have a Formedon yet that is no proof that the Grant is not determined for although it be determined yet may he admit himself out of possession if he will and is like to the Case where one takes my Rent yet he gains no possession by this but that I may distrain notwithstanding yet if I will I may admit the possession to be out of me and so maintain an Assise against the Pernor And as to the opinion in the case of Fines in the 3. Rep. That if there be Tenant in taile of a Rent or a thing which lies in Grant who grants the same by Fine and dies before the Proclamations made that the Grant is not determined but that the Proclamations may be made is grounded upon the reasonable construction of the Statute of the 4 H. 7. of Fines for otherwise the provision of the Statute that the fine shall be a bar cannot be for that is the reason there given But it hath been objected Object that because it was not found by the Iury that Sir Richard Knightley was dead it shall be intended that he is alive and then his confirmation remains in force To which I answer 1. That his being alive cannot be presumed Answer because it is not so found for although a Fee-simple being once alledged shall be intended to continue untill the contrary appears yet is it not so of an Estate-taile or such other particular Estate but he who will take advantage of such Estate ought to aver the continuance thereof and that is a certain Rule in pleading as in the 15 Ed. 3. Tenant in Taile of a Rent grants the Rent over the Grantee when he makes Title there ought to aver the life of the Tenant in Taile for by his death the Grant is determined vide Dyer 73. 19 H. 6. 73. 5 H. 7. 39. 15 Ed. 4. 6. And although there is a speciall Verdict in our Case which shall be taken more
the Parsons Chancel in the said Church and also whereas on the said day and time out of minde there were divers Seats in the said little Chancel and that the Plaintiff and those whose Estate he hath time out of minde have repaired at their charges the said little Chancel and the Seats from time to time as often as was needful and by reason thereof the Plaintiff and all those whose Estate he hath have for all the said time aforesaid onely power liberty and priviledg to sit in any of the said Seats in the said little Chancel to hear Divine Service in the said Church and also to bury the dead bodies of any person whatsoever in the said Chancel at the pleasure of the Plaintiff and those whose Estate he hath and for all the said time have made convenient Graves in the said Chancel for the said bodies at their will and pleasure And that no other person from any time since the memory of man have used to sit in any of the said Seats or to bury any dead bodies in the said Chancel without License of the Plaintiff or those whose Estate he hath Nevertheless the Defendants intending to dis-inherit the Plaintiff and to hinder and deprive him of the said liberty the said day and from thence until the first of May 18 Jacobi at Petworth aforesaid Praedictum Henricum ad sedendum in sedibus in Cancellula praedicta tunc existentem ad intrandum in Cancellulam praedictam ad Divina Servitia in praedicta Ecclesia de Petworth celebrata audiendum fraudulenter malitiose impediverunt per quod idem Henricus Dawtrey in Cancellula praedicta intrare vel in eisdem sedibus ad Divina Servitia in eadem Ecclesia durante tempore illo celebrata audiendum per totum idem tempus sedere non potuit ad damnum 40 l. The Defendants plead That Henry Earl of Northumberland the fifth of July and long before and always after until now hath been and yet is seised in fee of the Honor of Petworth and of the said little Chancel as parcel of the said Honor and that the Defendants as servants to the said Earl lived in the said Honor and by the said Earls command the said fifth day of July and for divers other days and times between the said fifth day of July and the first of May as often as Divine Service was celebrated in the said Church did sit in the said seats at the celebration of Divine Service which are the Impediments the Plaintiff did complain of To which the Plaintiff demurred 1. In this case it was argued for the Defendants That the Declaration was not good because that the Plaintiff did not set forth the manner of the Disturbance whereupon issue might be taken thereupon but onely declares that the Defendants did hinder him from sitting in the Seats or to enter into the Chancel which allegation is too general to take any certain issue upon And so in the 10 Ed 3. 39 A and B. where one lets Land for twelve years and for security of the term makes a Charter of Feoffment upon condition that if the Lessee was disturbed within the term that he should hold the Estate to him and his heirs And all this matter was found by the Recognitors in an Assise upon the general issue and that the Lessee was disturbed And this Verdict was adjudged insufficient because they did not finde how the disturbance was made Vid. 8 Rep. Francis Case and the Commentaries 84. Stranges Case That every Declaration ought to have such certainty as the Defendant may know what matter to make answer unto Vid. Comment 202. ad 3 H. 7. 12. Return of a Rescous ought to be certain to every intent for that is in nature of a Declaration And in the 22 Ed. 4. 47. Trespass for divers trespasses is not good because of the incertainty 2. Admitting the Declaration is good It seemeth that the Plea in Bar is good because the Defendants have made a good Iustification viz. That the Chancel is the Earls Inheritance and that they did sit there by his commandment for although it might be true that a Liberty to sit and to bury there yet he cannot restrain the owner of the soyl from the usage of it As if one hath Common in the Land of another or a Way or other Easment yet he cannot for these things restrain the owner of the Land from making use of it 21 H. 7. 39. If the Defendant in a Trespass Quare clausum fregit the first of May does justifie the second of May which was the same Trespass this is a good Plea because it may be the same Trespass because the day is not material And 3 H. 6. 12. in a Trespass for entry into his Warren the Defendant pleaded that it was his Franktenement and adjudged a good Plea as to the entry because he cannot enter into his own Land vi armis but he was put to plead further as to the Chasing 21 H. 6. 26. In a Trespass for Battery in L the Defendant justified for keeping his possession in S which is the same Trespass and adjudged a good Plea without Travers because it is Transitory But the Court agreed the Declaration was good and particular enough as in a Quare Impedit Judicium The Plaintiff did alledg generally that the Defendant hindered him to present and that was good And all the Iudges agreed that the Plea in Bar was utterly insufficient for one cannot have the Free-hold of a Church or any part thereof And Iudgment was given for the Plaintiff Davison against Culier In the City of Norwich THe Plaintiff at the Sessions of Peace held at Norwich 16 Jacobi did inform for the King and himself That the Defendant being a Grocer the first of September then last past at Norwich did Ingross and get into his hands by buying contract or promise of divers persons unknown 400 Quarters of Wheat each Quarter at the price of 40 s. to the intent to sell the same again contrary to the form of the said Statute Wherefore he prayed that the Defendant might forfeit the value of the Corn and that he might have half the value c. The Defendant pleaded Not guilty The Iury finde that 5 Ed. 6. it was Enacted That every person who after the first of May thence next ensuing shall get into their hands by buying contract or promise c. otherwise then by Devise Grant or Lease of Land or Title any Corn growing in fields or any other grain butter c. or dead victuals to the intent to sell them again shall be taken to be an Ingrosser and for the first offence shall be imprisoned two months without Bayl and shall forfeit the value of the things ingrossed And as to 380 Quarters of the said Wheat they found the Defendant not guilty and as to the twenty Quarters residue they found that the Defendant the first of September 10 Jacobi and continuing after till the
anothers land hath nothing at all to do with the Land any more then a meer stranger but only to put therein his Cattel and to let them feed there with their mouths and it is not his own Common until his Cattel have fed there 14 H. 8. 10. The Owner of a Common cannot grant the Common to anothers use Et 27 H. 8. 12. A Praecipe does not lye of a Common for it is not my Common untill my Cattell have eaten of it and therefore that which another hath is not mine therefore I cannot have a Praecipe against him who hath not that which I demand and in the 22. Assise 48. and 12. H. 8. 2. If a man hath Common in another mans Soile and a stranger puts in his Cattell there the Commoner shall not have an Action of Trespasse for although he hath Common yet the Herbage doth not belong to him neither can a Commoner do any thing upon the Soile which tends to the melioration or improving of the Common as to cut Bushes Ferne or such things which do much impaire the Common neither can he make a Fence or Ditch to let out the water which spoiles the Common But if he be utterly disturbed of his Common he may have an Assise or a Quod permittat and if any damage or annoyance be made upon the Land whereby he loseth his Common he may have an Assise And as the Commoner may not meddle with the Soile so cannot he meddle with any thing arising out of the Land or that doth grow or is nourished by the same otherwise then to have his Cattell to feed there and therefore it is adjudged Mich. 5. Jac. that a Commoner cannot kill Conies there but may bring his Action on the Case But I agree that a Commoner may distrain Cattell Damage feasant because their being there is a damage not onely to the Owner but also to the Commoner and a Commoner may abate a Hedge or a Gate that hinders him from comming to his Common wherefore I conclude this first matter that the plea as to that is utterly insufficient by the Law if there were not a speciall custome alledged by the Defendant And therefore it is to be considered whether this prescription alledged by the Defendant to hunt and kill Conies there for preservation of his Common be good or no. And I conceive it is unreasonable and not good because it is to the prejudice of the Owner of the Soile without any consideration And it is unreasonable for two causes first because it is too generall for the Defendant may hunt and kill as many Conies as he will for he doth not claim to kill a certain number that do surcharge the Common but generally the Conies there Secondly as this plea is the Defendant makes himself his own Iudge to kill the Conies as often and when he pleases Also it is against Law for it is to the destruction of the Inheritance of another which no person can justifie by custome or prescription unlesse for the benefit of the Common-weal 13 H. 8. 16. It is Law to pull down a House if the next house to it be on fire and so the Suburbs of a Town may be pulled down in time of War and if Enemies be on the Coast it is good Law to come upon another mans Land and make Bulwarks there for the publick good is preferred before any mans private benefit But when it is only for the private benefit of a man it is otherwise 43. Ed. 3. a. The Abbot said that he was Lord of the Town of A. and did prescribe that when the Tenant ceased for two yeares that he might enter untill he be satisfied his arreares And it was held by the Court to be an ill custome to put a man out of his Inheritance yet is that more reasonable then this case for the time when the Lord shall enter is certaine and the time that he shall hold the Land is also certaine and 19. Elizab. Dyer 357. A custome that all Tythes let or granted for more then six yeares of Land in such a Towne was held void by the Court because it is contrary to reason and to the liberty of the estate of him that hath a Fee And 9 H. 6. 44. B. Custome in a Leet that if the petit Iury do make a false Presentment and this found by the grand Inquest they shall be amended and it was held by the Court to be no good custome and against common right but if the custome were that if the petit Iury concealed any thing they ought to present them to be amerced this may be a custome And to prove that Conies are part of the Inheritance see Coke Rep. 7. in the case of Swans But it may be objected that this usage may have a legall beginning viz. That it was so agreed at the time of the grant or creation of the Common I answer That then it ought to have been specially pleaded for else it shall not be so intended as it is proved in the 35 H. 6. 28. Simon Eyres case where a Custome was pleaded in London that if the goods of any man be pawned to a Citizen for a debt due to him that he may detain them untill he be payed his debt and it was urged because that it may be good to bind the Debtor because it may be intended it began by his own grant but it was ruled that it shall not be so intended unlesse it be specially alledged And that a man shall not be Iudge in his own case is proved by 22. Edw. 5. 13. B. The Defendant pleaded that at another time he accounted to the Plaintiff in the presence of A. B. was found in arrear wherefore he was committed to prison there it was adjudged that the party himself could not commit him to Prison and that an Action of false Imprisonment did lie against the Plaintiff And Cook R. 8. Dr. Bonhams Case And in the 5 H. 7. 9. B. If one prescribes that if any Cattel be taken upon his Land damage feasant that he may distreyn them and put them into the Pownd until amends be made according to his own will this was held not good because then he should be his own Iudg which is against reason And in the 19 Edw. 2. gard 127. A Custom was alledged in Ipswich that when an Infant could count and measure that he should be out of Ward and holden to be voyd 13 Edw. the 3. where a Custom was alledged that when one could count 12 d. and measure a yard of cloth he may alien his Land and did aver that the Demandant was of such age but because he did not alledg the age in certain it was adjudged against the Demandant And Dyer 91. a. One grants to another all his Trees which may be reasonably spared agreed that this was a voyd Grant for the incertainty And in the 20 H. 7 8. B. If Cestuy que use of a Mannor does
Mercatori deliberarentur idem Mercator haberet seisinam terrarum quae fuerunt in manubus debitoris die recognitionis facti in quorumcunque manubus postea devenirent sive per Feoffamentum vel aliter quod post debitum persolutum terrae debitoris exit inde per Feoffamentum returnarent tam Feoffatus Anglice the Feoffee quam aliae terrae debitoris quodque insuper si debitor vel fidemsores ejus obierent Mercator nullam haberet authoritatem ad corpus haeredis capiendum sed terras suas haberet si aetatis foret aut quando erit plenae aetatis quosque quantitatem Anglice the quantity valorem debiti de terris levasset prout per eundem actum inter alia plenius apparet Cumque etiam quidam Richardus Davies de Mitton infra parochiam de Breeden in Com. Wigorn. generosus post editiones seperalium actuum praedictorum scil ultimo die Junii anno Regni Dominae Elizabeth nuper Reginae Angliae quadragesimo tertio apud Civitatem Glocestriae in Comitat. Civitatis Glocestriae per quendam Henricum Machen generosum nuper defunct in vita sua ductus fuisset coram Johanne Thorne Gulielmo Hill tunc Vicecomitibus Balivis ejusdem Civitat custodibus Majoris precii sigilli Mercatoris intra eandem Civitatem Thoma Atkins Armigero tunc Clerico ad recognitiones debitorum intra Civitatem illam accipiend deputat Custodit minoris precii ejusdem sigilli ad tunc ibidem coram eisdem Vicecomitibus Ballivis Clerico per quoddam scriptum suum obligatorium tunc ibidem recognitum sed secundum formam Statutarum praedictarum non confect neque format gerens dat eodem die anno devenisset tent obligat praefato Henrico in quingentis libris legalis monetae Angliae quod quidem scriptum sequitur in haec verba Noverint universi per praesentes me Richardum Davis de Mitton in parochia de Breeden in Comitatu Wigorn. generos teneri per hoc praesens scriptum de Statuto Mercatorium firmiter obligari Henrico Machen de Crickley in Comitat. Civitatis Glocestriae generos in quingentis libris bonae legalis monetae Angliae solvend eidem Henrico Machen aut suo certo Attornato Executoribus Assignatis suis Et si non fecero volo concedo quod currant supra me Haeredes Executores Administrator meos districtiones poenae praemissae in Statut edit in Parliamento Domini Edwardi primi quondam Regis Angliae apud Acton-Burnel Westminst pro dâ—bitis Mercatorum recuperand Et facta fuit haec recognitio in Civitate Glocestriae coram Johanne Thorne Gulielmo Hill Vicecomitibus Ballivis Civitat Glocest praedict custodibus Majoris precii sigilli recogn Statut. Mercatorum ac Thoma Atkins Armigero Clerico Dominae Reginae custode minoris precii sigilli Recogn Statut. praedict ad Recognitiones debitorum apud Civitatem Glocest praedict secundum formam Statuti capiend deputat In cujus rei testimonium huic praesenti scripto ego praefatus Richardus Davis sigillum meum apposui sigillum praedictum ad Recognitiones secundum formam Statuti praedict ordinat pro Majore securitate inde praesentibus apponi procuravi Dat. apud Glocest praedict ultimo die Julii anno Regni Dominae Reginae Elizabethae Dei gratia Angliae Franciae Hilerniae Reginae Fidei Defensoris quadragesimo tertio ac Anno Domini 1601. The Case RIchard Davis being seised of Land in fee did acknowledg a Statute Merchant of 500 l. to Richard Machin to be payd to the Conusee c. without expressing any day of payment the Conusor made a Lease of the Lands to E for years who grants his Estate to B the Conusee dyes intestate and his Administrator extends the Land whereupon the Assignee of the Term brings his Audita Querela And whether the Audita Querela will lie or not was the Question And I conceive that it will not lie In which the Question is onely Whether this Statute being without an express day of payment be good or not and warranted by the Statutes of Acton-Burnel de Mercatoribus or not And I conceive this is a good Statute and well warranted by the said Statutes And first the intention scope and purpose of this Statute is to be considered and that was as I conceive to provide speedy remedy for Merchants as well Foreigners as Natives to receive their Debts and this is grounded on very good reason for Merchants are necessary members of the publique good for by them and their Trade the King hath profit by his Customs 2. The King and his Subjects have Foreign Commodities for their necessary use 3. They are the means of uttering the Commodities of this Land in Foreign parts 4. The Subjects of the King are educated and instructed in Navigation And the necessity of Merchants and their good usage appears in Magna Charta 30. Omnes autem Mercatores nisi publice antea prohibiti fuerunt habuerunt salvum securum conductum exire de Anglia venire in Angliam morare ire per Angliam tam per terram quam per aquam ad emendum vel vendendum c. And because their repair into this Land was so necessary these Statutes were made to give them security and remedy for their Debts arising for the sale of their Merchandizes and this is the whole scope and purpose of the Statute And to examine the parts of these Statutes I conceive that some parts of this Statute are substantial and material and therefore ought precisely to be observed and some are not so substantial and this of the day is such a one And first the Debtor ought to come before the Major or other Officer and Clerk appointed to take tâ—e Statute He must there acknowledg the Debt The Recognizance must be inrolled The Clerk ought to make a Writing obligatory It ought to be sealed with the Seal of the Debtor and the Seal appointed by the King which by the last Statute ought to be of two parts whereof one is to remain with the Major or other Officer and the other with the Clerk There ought to be a time of payment and this ought to be so certain that the Major by view of the Roll may certifie that the time is past And as to the other parts not substantial Although the Statutes appoint the taking of the Statute before the Maior or other chief Officer in the singular number yet the same may be done before any two chief Officers as it is usual in many Towns Although the Statute ordains the inrolment and the writing to be of the proper hand of the Clerk yet it may be written by his Clerk or servant Although the time of the payment be limited by the Statute to be at a day certain yet it is sufficient if the time be certain although no particular day be exprest in the Statute But all the first six
Defendants Father was seised in Fee of divers Lands and made a Feoffment to the use of himself for life the remainder to the Defendant his Son in Tail with divers remainders over with power of revocation by writing under his hand and Seal and publisht in the presence of three Witnesses And then for the consideration of four hundred pounds did enter into this Recognizance to the Plaintiff and dies And whether this Land were extendable or not against the Son was the question And I conceive that by the Statute of the 27. Eliz. this Recognizance may be extended against the Son the words of which Statute are And be it further enacted by the Authority aforesaid that if any person or persons have heretofore sithence the beginning of the Queens Majesties Reign that now is made or hereafter shall make any conveyance Gift Grant or Demise Charge Limitation of Use or Uses or Assurance of in or out of any Lands Tenements or Hereditaments with any Clause Provision Article or Condition of Revocation Determination or alteration at his or their will or pleasure of such Conveyance Assurance Grants Limitation of Uses or Estates of in or out of the said Lands Tenements or Hereditaments or of in or out of any part or parcell of them contained or mentioned in any Writing Deed or Indenture of such Assurance Conveyance Grant or Gift and after such Conveyance Grant Gift Devise Charge limitation of Use or Assurance so made or had shall or do bargaine sell demise grant convey sell or charge the same Lands Tenements or Hereditaments or any part or parcell thereof to any person or persons bodies Politick or Corporate for money or other good consideration paid or given the said first Conveyance or Assurance Gift Grant Demise Charge or Limitation not by him or them revoked made void or altered according to the power and authority reserved or expressed unto him or them in and by the said secret Conveyance Assurance Gift or Grant That then the said former Conveyance Assurance Gift Grant or Demise as touching the said Lands Tenements and Hereditaments so after sold bargained conveyed demised or charged against the said Bargainees Vendees Lessees Grantees and every of them their Heirs Successors Executors Administrators and Assigns and against all and every person and persons which have shall or may lawfully claim any thing by from or under them or any of them shall be deemed taken and adjudged to be void frustrate and of none effect by vertue and force of this present Act. So that this Statute doth not only aide Purchasors of the Lands but those who for a valuable consideration have any charge out of the Land or upon the Land But it may be objected that the Statute doth make the revokable Conveyance void only against the Bargainees Vendees Grantees Object and Lessees but does not speak of any Conuzee But I answer that it appears by the foregoing words Respons that the Statute intends to aide not only Bargainees c. but also all that have any charge out of the Land or upon the Land and although the last words of the Statute doe not speak expresly of Conuzees yet the Statute shâ—ll be expounded to extend to them and the Statute of West 2. cap. 1. Quod illi quibus tenementa data sunt in Taile potestatem alienandi c. which words seem only to restrain the Dâ—nee in Tail yet in the 5. Edw. 2. Form 52. the issue is thereby restrained and 3. Edw. 3. Formedon 46. that Tenant in tail cannot charge the Land no more then alien can forfeit the Land so that if he grant a Rent or acknowledge a Statute or Recognizance or commit Felony or Treason and dies the Issue shal have the Land discharged And this Statute hath alwaies been taken as to the equity thereof to releive Purch sors and those who have and therefore in Coke R. 3. 82. B. Standen and Bullocks case Mich. 42. 43. Eliz. where a man had conveyed his Land to the use of himself for life and then to the use of divers others of his blood with future power of revocation as after such a Feast or after the death of such a one and after and before the power of revocation commenc'd he for a valuable consideration did bargain and sell the Land to another and his Heirs this bargain and sale is within the remedy of the Statute for although the Statute saith the said first Conveyance not by him revoked according to the power by him reserved which seems by the literall sense to be intended of a present power of revocation for no revocation may be made by force of a future power untill it comes in esse yet it was holden that the intention of the Act was that such a voluntary Conveyance which was originally subject to the power of revocation be it in present or in future shall not be good against a Purchasor bona fide upon valuable consideration and if other construction be made the Act will signifie very little and it will be easie to evade such an Act. And so if A. hath reserved to him a power of revocation by the assent of B. and then A. bargains and sells the Land to another this bargain and sale is good and within the remedy of the said Act. The King against Sir John Byron Knight IN a Quo Warranto for that the Defendant for a year past hath used and yet doth use without any Warrant within the Mannor of Colswick in the County of Nottingham within the bounds of the Kings Forest of Sherwood and within the reguards of the said Forest to have a Park within the said Mannor with a Pale Hedge and Ditch inclosed being two hundred acres of Pasture and a hundred acres of Wood within the said Park Et ad venandum capiendum occidendum apportandum in the said Park and two hundred acres of Pasture and a hundred acres of Wood omnes omnimodas damas Domini Regis Forrestae suae praedict in parcum praedict praedict 200. acr pasturae 100. acr Bosci aliquo tempore venand occidend Ita quod Forrestini Domini Regis forestae praâ—dict nec aliquae aliae personae quaecunque intromittantur ad venandum fugandum intra parcum praedictum 200. acr pasturae 100. acr Bosci sine licentia defendentis The Defendant pleaded that John Biron Knight the Defendants Grandfather was seised in Fee of a Messuage of a hundred acres of land two hundred acres of Meadow three hundred acres of pasture and a hundred acres of wood in Colwick in the County aforesaid now and time out of mind called the Mannor of Colwick within the meets and bounds of the Forâ—st aforesaid And that the said John Byron the Grandfather and all those whosâ— Estate the said John Byron hath in the aforesaid house and a hundred acres of land two hundred of Meadow and three hundred of Pasture and a hundred of Wood in Colwick aforesaid have had
against Humphrey Bigges And Manwood fol. 1. A Forest is a certain Territory of Ground priviledged for wild Beasts and Fowles of the Forest to rest and abide in the safe protection of the King for his Princely delight and pleasure and doth consist of four things 1. Vert. 2. Venison 3. Particular Laws and Priviledges 4. Certain Officers But by this pretence of the Defendant the Forest of the King is priviledged for wild Beasts to rest in protection of the King but they are subject to being destroyed by the Defendant for by such pretence none can enter there but he or his Keepers And I conceive that no body can pretend to have any profit or pleasure in the Forest which tends to the destruction of the Forest and that is the reason that one cannot prescribe to have Common in a Forest for Sheep Geese Goats or Hoggs for to suffer them to Common there is Ad magnum nocumentum ferarum forestae and such a prescription the Defendant maketh which is not only Ad magnum nocumentum but to the utter destruction of the Forest And if it be objected that this Park claimed by the Defendant is but a little part of the Forest this is no answer for as in the Case of a Common no man may prescribe to have Sheep c. in the Forest so cannot he in any part of the Forest and if the Defendant may prescribe to have such an irregular Park in part of the Forest so may others claim such like prescriptions in other parts of the Forest and so the King shall lose all the Franchise of his Forest and the Defendant may make his Fence or Ditch so low without-side and so high within that the Kings Deer cannot get out again when they are come in and so this Park shall be in the nature of a Trap to catch the Kings Deer And further he that will prescribe to have any common profit or pleasure in the Freehold or Inheritance of another ought to make his prescription in such manner so that he must leave the residue of the profits to the Owner and cannot utterly exclude the Owner and therefore if one doth prescribe to have all the Herbage Pannage and Profits of the Land of I. S. no man can conceive that this prescription is good Neither can a Commoner prescribe that the Lord of the Soile cannot put in any Cattell into the Land But in our case the very Franchise of the Kings Forest doth consist of Vert Venison Lands and Officers of the Forest for the King may have a Forest although he hath no Land there And in the Commentaries 332. If a Mannor within the Forest of Waltham do escheat to the King and the King grants the Mannor to one in fee yet shall not he have the liberty of the Forest And the same Law is where the King grants all the Land which he hath in the Forest But notwithstanding I agree that one may have a Park within a Forest by prescription or by grant but then the same ought to be kept so inclosed that the Beasts of the Forest cannot enter into the Park which if not done it is a forfeiture of the liberty of the Park and so it is if he have a Salterie or Deer-leap for the nature of a Park is to be inclosed and in the 10. H. 7. 6. it is said that a Park consists of Soile Inclosure and Game and in the 15. Ed. 3. closure and game And in the 15 Edw. the 3. Thomas Earl of Lancaster Lord of a Forest did grant leave to one John Harrington to make a Park within the said Forest and there it is adjudged that if the Grantee does so sleightly inclose the Park so that the Forest-beasts may get in there that it is a forfeiture and the Lord of the Forest may enter and take the Deer But by the pretence of the Defendant the King shall not have so much power in this Land being in the midst of the Forest as he hath in the Lands of any of his Subjects which do lie without the Forest for if Forest Beasts stray or wander into the Land of a Subject out of the Forest the Foresters may enter into this Land and rechase them into the Forest again Crocker against Kelsey HVsband and Wife Tenants in Tail of the Gift of the Husband the remainder to the Husband in fee The Husband dyes the Son and Heir of the Husband and Wife does levy a Fine with proclamations to the use of him and his Heirs the Wife does let a Lease of the Land for 21 years and dyes the Son deviseth his Land to E and his Heirs and dyes And Whether this Lease made by the Wife were good to binde the Devisee was the Question And I conceive that the Lease is good For although that by the Fine the Estate-tail is barred as to the Conusor and all his issues yet does the Wife remain Tenant in Tail as before and therefore this Lease made by her is a good Estate derived out of her Estate-tail and shall binde all except the issues in Tail who may claim per formam Doni And so is it in the 33 H. 8. Dyer 51. B. Tenant in Tail before the Statute of the 27 H. 8. does make a Feoffment to the use of himself in fee and then he and his Feoffees make a Lease for years rendering Rent and then is the Statute made the Tenant in Tail dyes and then the issue aliens by Fine before any entry or receit of the Rent and holden by all the Iustices except Sanders that the Alienee shall not avoyd this but otherwise of a Rent granted And suppose the Fine had not been levyed by the issue he shall not avoyd the Lease without entry and if he had aliened after the death of his Mother and before entry the Alienee should never avoyd the Lease And in the 29 Assis 51. and the Comment 557. Tenant in Tail acknowledgeth a Statute-Merchant the issue is attaint of Felony and pardoned the Tenant in Tail dyes the issue enters and the Conusee sues out Execution And because the issue was disabled to inherit the Estate-tail therefore he had it as an Occupant and so it was subject to the Execution And although the remainder in Fee does pass by way of interest by the Fine yet that cannot come in possession so long as any issue in Tail is living and therefore if a stranger had entered after the death of the Wife the Son could not have had a Formedon in the remainder for that must suppose the death of the Donees in Tail without issue the which cannot be in our Case Comment 560. Austens Case Sir Thomas Wyat Tenant in Tail of the Gift of the King made a Lease for years rendering Rent and dyed Sir Thomas his son accepts the Rent and after was attaint of Treason and executed having issue and adjudged that the King should have the Land in point of Reverter discharged of the Lease
been granted with a fee of five marks from time to time by the Bishop grantor and his Predecessors to whom they pleased Cooks 9 Rep. Earl of Shrewsburies Case The Earl of Rutland was made Steward of a Mannor for life without any words to make a Deputy yet it was resolved that he might make a Deputy because it was not convenient for him to exercise such an Office So if an Office doth descend to an Infant he must of necessity make a Deputy And so if a Bishop be seised of a Mannor he may ordain a Steward of the said Mannor and may grant to the Steward a fee for the execution of the said Office according to the resolution in the said Case of the Bishop of Chester Object But it may be objected that here is a greater Fee granted then was before viz. Pasture for two Horses and therefore the Grant is not good to bind the Successor Respons And I do agree that the Grant of the said Pasture is void yet that shall not at all prejudice the Grant of the said Office with the ancient Fee for they are severall and distinct Grants so that the one viz. The Grant of the Office with the ancient Fee is good by the Law against the Successor and the other void against the Successor but it cannot hurt the grant of the Office and ancient Fee no more then if a Bishop should grant an old Office with an ancient fee and also a new Office which was never granted before and all this by one Deed of Grant and this is duely confirmed although this be void against the Successor as to the new Office yet it is good for the ancient Office and the ancient see for although these fees are contained in one Deed yet are they severall and distinct so that one may be good and the other void 33. H. 8. Dyer 48. One seised of a Mannor to which a Villain was reguardant did grant one acre and also the Villain the Villain did pass in gross and the reason there given is because there be severall Gifts contained in one Deed. Also the Averment of the Plaintiff is insufficient viz. That the pasture was never granted by any of the Predecessors of the Grantor so that it may be that they were granted by himself being Bishop many times before the said Statute and then the Successor may well grant it and in the said case of the Bishop of Salisbury it is averred that the Grant was not by the Bishop Grantor nor any of his Predecessors William Whitton Clerk Plaintiff Sir Richard Weston Defendant in an Action of Debt The Case THe Pryor of S. Johns of Jerusalem did hold certain Lands discharged of Tythes by reason of their order Quandiu propriis manibus excolebant the Statute of 31. of H. 8. for discharging of Tythes is made the 32. of H. 8. it was enacted that the King should have to him his Heirs and Successors all the Lands Priviledges and Hereditaments of the said Pryory the King dies and the Lands by Mesne descents doe come to Queen Elizabeth who grants the Land to Sir Henry Weston Grandfather to the Defendant who died seised and the same descended to Sir Richard Weston Father to the Defendant and so from him to the Defendant And If the Land should be held discharged of Tythes as the Pryor held it was the question And I conceive that the Defendant shall hold the land discharged of Tythes in the same manner as the Pryor held the same For the argument of which two things are to be considered 1. Whether the King or his Patentee shall have the same priviledge which the Pryor had by the Statute of the 32. H. 8. or not 2. Admitting that they shall not have this priviledge by generall words of this Statute then Whether they be discharged by the clause of the Statute of 31. of H. 8. of Monasteries or not And I conceive that by each of these Statutes or at least by one of them the King and his Patentees shall hold this Land discharged of Tithes Quamdiu propriis manibus c. And as to the first point I conceive that the Statute of the 32. of H. 8. hath sufficient words to give this priviledge to the King for it gives to the King not only all their Mannors Lands and Tenements but also all their Priviledges belonging to them or to their Religion or Order and this discharge of Tythes is a Priviledge belonging to their Religion or Order for whereas Pope Pascall did order that no Monk or religious Order should pay Tithes afterwards Pope Adrian did grant this priviledge Solis Hierosolimariis Hospitulariis Cistersiensibus Templaribus and did take away that priviledge from all other Orders And I conceive it will not be denied but that the Pryor himself hath this priviledge and if he had it then it will follow that the King and his Patentee hath it also for all their priviledges are given to the King But it may be objected Object that these priviledges are given in respect only of their Order and the Order bring gone the priviledge is gone also I do agree that all personall priviledges concerning their Order are gone by reason of their dissolution Respons but such priviledges as concern the Land and will make the Land most profitable to the King are remaining and are given to the King for the intent of the Statute was to give it to the King in as ample and beneficiall manner and with all such priviledges concerning the Land as they themselves had And although Tythes are not issuing out of the Land nor shall be extended for unity of possession of the land as in the 42. Ed. 3.13 Where a Pryor having Tythes did purchase the Land and made a Feoffment yet shall he have the Tythes and so if a Parson makes a Lease for yeares of his Glebe-land yet he shall have Tythes thereof yet the priviledge to hold the Land discharged of Tythes is a priviledge concerning the land and is not like to the case of the appropriation of a Rectory to the Templars which was disappropriate by the dissolution of their Order for the reason there is because the appropriation was made to a body corporate which body being dissolved it is impossible they should retain the same and no body else can have it without a new appropriation or an Act of Parliament and for Appropriations to Abbeys c. the clause in the 31. of H. 8. was necessary for otherwise the Patentees of the King being Lay-people and not capable of an Appropriation they cannot have it but by speciall provision by Act of Parliament but any man may hold Land discharged of Tythes But it may be again objected that in the same Parliament an Act was made to revive temporall Liberties Priviledges and Franchises Object 2 of Monasteries and therefore all those had been lost if it had not been for this Statute and Sprituall priviledges are not revived by
the Receipts and there being three other Co-trustees with him the Plaintiffs Councell conceived that he ought not to be charged with more then he himself received especially for that the other parties trusted and who received the profits were or were reputed to be men of ability and responsible Touching which last point being that where on the Plaintiffs Councell chiefly insisted for the reversall of the said Decree as against the now Plaintiff It appeared unto this Court that Challoner Father of Thomas the Infant did heretofore make a Lease of the said Lands to one Weeks for five and thirty yeares and afterwards conveyed away the Reversion to Thomas Challoner his Brother and after the death of Francis according to an Award made between the said Weeks and Thomas Challoner the Brother who was Vncle to Thomas the Infant the Lease of five and thirty years and the Reversion in Fee-simple were to be assigned to parties trusted by the said Weeks and one Barbara Challoner Mother of the said Infant and by the said Thomas the Vncle the Lease to be intrust for Weeks for life the remainder to Barbara for life the remainder to Thomas the Infant and the reversion in fee to be in trust for the said Thomas the Infant But upon the limitation or Condition that the said Thomas the Infant when he came of age should make some assurance to Thomas the Vncle according to the Award wherein if he failed then the trust limited to him should cease and the Trustees should be seised for Thomas the Vncle. In pursuance whereof the now Plaintiff and the said Forster were trusted together with one Langworth and Lovell to take the Estate in the Lease and did take an Assignment thereof from Weeks the 12th of June 9. Jacobi And all the Trustees sealed the Counterpart and the same day the now Plaintiff and Forster assigned their moyity in the said Lease to one Mr. Peacock and Robert Forster who were not privy nor acquainted therewith and on the thirteenth of June the ninth of King James the said Thomas Challoner the Vncle passed over the Inheritance to the now Plaintiff and Thomas Forster whereby it was probable that the said Assignment made by the now Plaintiff and Thomas Forster of their interest in the moyity of the Lease was to keep the same from being extinguished After which assurance so made Weeks during his life and Barbara after him during her life received the profits of the said Lands and Barbara in the year of our Lord 1614. dyed And it appeared that soon after the death of the said Barbara viz. 23. of March 12. Jacobi Langworth one of the Trustees of the Lease being dead whereby his interest in the moyety survived in Lovell that Thomas Challoner the Vncle procured the said Lovell to assign over his interest in the said Lease to the said Thomas Challoner the Vncle lyable to the said trust as by a Copy of the Assignment now read appeared And it appeared by the confession of the now Plaintiff and by his answer to the former Bill and by the Acquittances now produced that the now Plaintiff joyned with the said Thomas Forster in giving acquittances for the three first half years Rents but it did not appear that he ever received any after or gave any more Acquittances but it doth appeare by the proofs that the said Thomas Challoner the Vncle who had the Assignment from Lovell did receive the Rents of the Tenants and payd the same over to the said Thomas Forster and that when the Infant came of age he called the said Thomas Forster and Thomas the Vncle to an account and that they did account And that the said Thomas Forster did then deliver him a Book of account which the Defendant now produced in Court by which it did appear that for the three first half years the Rents were received by the said Thomas the Vncle and by him paid to the now Plaintiff and the said Thomas Forster for the use of the Infant but for all the subsequent time the same were received by the said Thomas Challoner the Vncle and by him paid to the said Thomas Forster alone who as was not now denyed was at the time of such receits generally taken to be of great ability and responsable as it also appeared by the proofs that the said Infant after he came of age had declared the said Thomas Forster to be his Debtor and did by his Will read in Court give the said summe of one thousand seven hundred pounds to the said Mountford as a Debt owing by the said Thomas Forster solely not mentioning the now Plaintiff Vpon all which this Court was fully satisfied that the now Plaintiff received no penny of profits after the three first half years but whether he ought to be charged with all that the said Thomas Forster received being a Co-trustee with him in respect the said Forster is now declined in his Estate as is conceived this Court somewhat doubted and although a president was produced wherein this Court had charged parties trusted but onely according to their several and respective receits and not one for the other yet in respect the Defendants Councel opposed the same alledging many presidents to be on the other side and the Lord Keeper conceived the case to be of great consequence and thought not fit to determine the same suddenly but to advise thereof and desired the Lords the Iudges assistance to take the same into their serious considerations and to assist him with their advice therein whereby some course might be settled that parties trusted might not be too much punished lest it should dishearten men to take any trust which would be inconvenient on the one side nor that too much liberty should be given to parties trusted lest they should be emboldened to break the trust imposed on them and so be as much prejudicial on the other side And the Lord Keeper and the Lords the Iudges assistants afterwards conferring together and upon mature deliberation concerning the case to be of great importance his Lordship was pleased to call unto him also Mr. Iustice Crook Mr. Iustice Barcley and Mr. Iustice Crawley for their assistance also in the same and appointed presidents to be looked over as well in this as in other Courts if any could be found touching the point in question whereupon several presidents were produced before them some in this Court and some in the Court of Wards where parties trusted were chargeable onely according to their several and respective receits and not one to answer for the other but no president on the contrary was produced to them Whereupon his Lordship after long and mature deliberation on the case and serious advice with all the said Iudges did this day in open Court declare the resolution of his Lordship and the said Iudges That where Lands or Leases were conveyed to two or more upon trust and one of them receives all or the most part of the profits
conceive that the request is made in good time enough Answer for two Reasons The Estate here is to be made by the Defendant and although he be not bound to do it without request yet may he do it or at least he may offer to do it without any request and therefore if there be any loss in the not doing of it it is his own fault because he did not offer to make the Estate and is not the Plaintiffs fault and if he had offered to make the Estate and the Plaintiff had refused he had been excused And therefore the rule is given in the Lord Cromwels Case aforesaid that when a woman or a Grantee upon condition is to make an Estate to the Grantor and no time is limited he hath time for his life unless the party who is to have the Estate do hasten it by request but if an advowson be granted on such condition the Regrant ought to to be before the Church becomes voyd so if the condition be to grant Rent payable at certain days the Grant ought to be before any day of payment for otherwise he shall lose the Presentation and the Rent which will incur before the Grant made And in the 14 Ed. 3. Debt 138. In a Debt upon a Bond the Defendant pleaded the Condition viz. That if he granted twelve marks Rent the Bond should be voyd and demanded Iudgment c. because no time was limited so that he might do it when he would and said that he was always ready to grant the twelve marks Rent and because he demurred not issue was joyned c. If this not making request shall be any damage to the Plaintiff it must be because the Defendant suffers loss by it as in the cases above cited but in this case the Defendant hath the same remedy for the 20 l. although no Estate be made as he should have had if the Estate had been made for by the fourth Article it is agreed that if there be no Estate made of the Land the Plaintiff shall enter at the Anunciation 1612. And I conceive that this payment ought to be made at the time limited for the entry for it is a mutual agreement that doth binde both parties and therefore it lies not in the power of the Plaintiff for his want of entry to defeat the Defendant of his 20 l. agreed to be payd to him but when he enters it shall be intended that he entered when it was agreed he should enter viz. at the Anunciation 1612. And if he payd it not then the Defendant might have had his Action of Covenant whether any Lease were made or not And in Sir Andrew Corbets Case Cook Rep. 4. 81. certain Land is devised to A. B. until 800 l. pound be levyed that is until it may be levyed and so in case of a Lease or limitation of a use for otherwise it should be in their power to hold out the Lessor for ever and so in case of an Elegit upon the Statute of Westm the 2d. cap. 18. and of Retinue for the double value of a Marriage by the Statute of Merton cap. 6. Opinion of the Court. And the whole Court was of Opinion that the request came too late whereupon they were of Opinion to give Iudgment against the Plaintiff but I prayed that the Plaintiff might discontinue his Suit which was granted Rot. 609. Michaelmas 13 Jacob. Smalman Plaintiff against John Agborrow and Edmund Agborrow Defendants IN an Action of Trespass for that the Defendants the 13 Maii 13 Iacob six Heifers of the Plaintiff of the price of 20 l. at Dodenham in a place called Well-Marsh did take chase and drive away to the damage of 10 l. c. The Defendants to all except the chasing did plead Not guilty And as to the chasing they said that the place where c. is and at the time wherein c. was the Freehold of one Francis Agborrow and so did justifie as his servants for damage feasant c. Replication The Plaintiff replyed that before the said Francis Agborrow had any thing c. the Dean and Chapter of the Cathedral of St. Mary the Virgin in Worcester were seised in fee of the Mannor of Aukerden and Dodenham whereof the place where c. is and at the time whereof c. was parcel c. And that the 25 of November 10 Elizab. the said Dean and Chapter by their Indenture did Demise the said Mannor to William Agborrow and Jane his Wife and to the said Francis Agborrow for their lives And that the 20 Febru 39 Elizab. William Agborrow dyed seised and that the 21. of Decemb. 39. Eliz. Jane did marry with Robert Hawkins And that the 25. Febr. 40. Eliz. Robert Hawkins and the said Jane by their Indenture did demise the said Mannor to William Hawkins and William Heaven for sixty years from the date c. if the said Jane and Francis Agborrow or either of them should so long live rendring twenty pounds rent and that the 25. of Mar. 13. Jac. William Hawkins and William Heaven did grant their Estate to the Plaintiff whereby he was possessed and put in his Cattel there to grase which were there untill the Defendant took them away c. And did aver the life of Francis Agborrow The Defendants rejoyn and say that the said Jane did die the 14. Rejoynder of Mar. 12. Jac. and that Francis Agborrow did hold himself in c. Per jus accresendi Vpon which the Plaintiff demurred in Law A man and a woman are Ioynt-tenants for life the woman marries The Case the Husband and Wife by Indenture do let their moyety for years rendring Rent and after the woman dies And the question was whether the surviving Ioynt-tenant could avoid this Lease And I conceive he cannot And for the Argument of this Case I shall observe these two things thereof That if the woman who made this Lease had been sole at the time of the making this Lease had been good during her life and the life of her Companion the other Ioynt-tenant That this Lease being made by the Husband and Wife is not void but voidable And as to the first Point Littleton fol. 63. and 64. saies that if two Part. 1 Ioynt-tenants in Fee be and one grants a Rent-charge and dies the Survivor shall hold the Land discharged but if one makes a Lease for years and dies the Lease is good against the Survivor and in Hales Case in the Comment If two Ioynt-tenants be for years and one of them does grant to I.S. that if he payes twenty pounds at Michaelmas he shall have his moyety and the Grantor dies and I. S. does pay the money yet shall not he have the Land because the Condition precedes the Estate but if he make a Lease for yeares to commence at a day to come and dies before the day yet is the Lease good against the Survivor and so in Trin. 37. Eli. Harbury and
as of his Freehold whereupon Issue was joyned and found for the Plaintiffs and adjudged that they should have execution against Sir John Whitbrook whereupon the Sheriff was commanded to deliver the said lands to the Plaintiffs in execution and the sixteenth of June 12 Jacob. the said Tenements were found to the value of eighty shillings and were delivered to the said Executors in execution The twenty seventh of March 11 Jacob. Hanging the Writ of Scire facias the said Sir John Whitbrook did demise to the Defendant one Messuage and ten acres of Meadow parcell of the premisses Habendum from the said twenty seventh day for the term of three years by force whereof he entred and was possessed The sixteenth of June 12 Jacob. the said Executors did enter into the Tenements in the Inquisition mentioned whereof the said Messuage five acres of Land and ten of Meadow are parcell and did out the Defendant The one and thirtieth of August 13 Jacob. Robert Faldoe made the Lease to the Plaintiff and they found the Ejectment and prayed the advice of the Court. And I conceive Iudgment ought to be given against the Plaintiff For that a Tenant in Taile cannot charge the Land no more then he can alien 3 Ed. 3. 46. so in the 18 Ed. 4. 5. 21. If Tenant in Taile do sell the Trees and dye the Vendee cannot have them and the 17 Ass 21. Tenant in Tail acknowledgeth a Statute and dies the Issue enters and the Conusee does sue execution and enters and the Issue brings an Assise and recovers because this is a Disseisin to him and 11 H. 7. 21. 31 Ed. 3. 22. 14 Ass 3. Tenant in Tail grants a Rent and dies and the Issue enfeoffs a stranger adjudged that he shall hold the Land discharged for it was discharged by the entry of the Issue and 26 Ass 38. If Tenant in Tail doth charge the Land and dye and the Issue enters and pâ—yes the Rent and then after confirms the Rent this is good But in Brook Grants 73. contrary for the charge was avoided by the entry of the Issue But admit that this Recognizance shall bind the Issue in Tail yet it shall not bind the Termer but he shall avoid it 1 H 7. 9 7 H. 7. 11. and in the 30 Assise 10. the Tenant pleads recovery by Action tryed against a stranger and did aver the Estate of the Ancestor of the Demandant to be between his Title and the Recovery the Demandant said that the stranger was enfeoffed with Warranty and did not plead this and so did Fauxesie and Iudgment was awarded for him And although that this Lease was made after the Teste of the Scieri facias it is not materiall because the Lessor had good power to make a Lease and the Land was not subject to the execution and therefore the Lease here is good and cannot be avoided but only by the default of the Lessor in not pleading the Estate-tail and that is especially aided by the Statute because the Statute does aid the Lessee against such fâ—igned Recoveries against the Lessor and it is no Recovery untill the Iudgment had at which time the Lessee had a good Lease not subject to the execution 21. H. 6. 13. 14. He who comes to the Reversion hanging the Praecipe quod reddat against the Tenant for life shall be received by the Statute of Westm 2. cap. 3. and 16 H 7. 5. In a Writ of Entry or Disseisin he in the remaiâ—der does pray to be received the Demandant traverseth that he hath nothing in Reversion at the time of the Writ purchased and could not for if he purchased the Remainder hanging the Writ he shall be received And Hill 14 Jacob. All the Court did agree Judgment that the Lessee for the Lease made after the Verdict against the Issue in Tail could not falsifie wherefore Iudgment was given for the Plaintiff Penson against Mootham IN an Action of Covenant for that by Indenture Tripartite dated the fifth Decemb. 12. Jacob. It was between Abraham Baker by the name of Abraham Baker Owner of the moyety of a Ship called the Grissell of L. and of the Ship called the Peregrine of L. and of a Pinnace called the Hopewell of L. on the first part and the Plaintiff by the name of H. P. Owâ—er of the other moyety of the said Ships and Pinnace on the second part and the Defendant by the name of Ja. Mortham Nautestrategi dicti Itineris Anglice generall of the said Voyage N. N. B. W. and D. E. by the names of N.G. Naute magister dictae navis vocat le Peregrine B. W. Naute magister dict navis vocat the Grissell and D. E. Naute Magister of the said Pinnace and severall persons named in a Schedule annexed to the said Indenture on the third part It is testified and doth appeare that the said Owners had furnished and set forth and the said Victualer had victualed the said Ships as well for Trade as for Discovery and had delivered them to the said Generall Masters and Officers pro itinere faciend in such manner and to such an Island in the West-Indies or otherwise as it should be most profitable to the said parties at the discretion of the said Generalls and according to certain Articles of the Commissioners bearing date with the said Indenture and after their Voyage to return to the Port of London And that the said Generalls and each of the said Masters and Officers severally for each ones proper and severall part and not the one for the other did Covenant for themselves their Executors and Administrators with the said Owners severally and their severall Executors c. in manner c. and that they the said Generalls or the severall Masters and Officers their Executors or Assignes at any time during the said Voyage should go beyond the Cape of Good hope nor should do or commit any spoyle or losse to any of the Subjects of our Lord the King nor to any other person or persons being subject or in subjection to any Prince or Principality being in league or amity with our King nor shall do any thing whereby any detriment prejudice trouble or damage may come to the said Ships or Pinnace or any of them or to the said Owners or any of them respectively Breach 1 And that although the Plaintiff had performed all c. yet the said D.E. and the Commissioners aforesaid in the said Ship called the Hope-well during the said Voyage to wit the eighth day of March upon the high Sea neer the Isle of Saint Jago by force and armes did take and spoyle one Spanish Frigot laden with Rice c. which Sip and Goods were the Ship and Goods of divers persons who were Subjects to the King of Spaine the which King then was and yet is in amity and league with the King and the Defendant and the other Commissioners comming to the said Island did divide the said Goods amongst
of age or not 29 Assise 67. In an Assise against Husband and Wife the Husband did answer as Tenant and the Wife would not but the Husband said that his Wife was within age and that she was taken away but did not say by whom and he did appear for himself and his Wife as her Guardian and pleaded in Bar and one of the Counsell said that the Wife had made default which is the default of the Husband and because that he answered as Guardian without Warranty by Record in this Court to do the same Iudgment c. And there Thoâ—â— said that he ought to have a Warranty in such case wherefore the Assise was awarded 35 H. 8. 56. In a Writ of Right by the Husband and Wife the wife being within age and she appeared by her next of Kin and was admitted by the Court. New Book of Entries 256. In a writ of Error to reverse a Fine by Maurice Pierce and Joane his wife and John Pierce and Elizab. his wife the three first appeared in person and Elizabeth being within age by one Laurence Gibson her Guardian and admitted by the Court. And so in this Case forasmuch as the Land is the Inheritance of the wife which is demanded which she will lose by this Recovery she ought to appear by her Guardian notwithstanding the full age of the husband who is joyned only for form sake with his wife 30 31 Eli. Morseby against Charnock The husband and wife levied a Fine and after this was reversed by Error because that the wife was within age the husband shall not have the Land for all the Estate passeth from the wife and the husband joyned only for conformity Coke 2. Rep. Cromwels and Beckwiths Case But it may be objected also Object that this Error concerning the nonage of the wife is so appropriated to her person in privity that no stranger can take any advantage thereof I conceive not so Answer for the constituting of an Attorney is utterly void as to the wife and therefore every stranger shall take advantage there as is not like the Case where an Infant makes a Feoffment which is but voidable and therefore the Lord by escheat nor any stranger shall not avoid it 22 H. 6. 31. The Plaintiffs within age did sue by an Attorney and there it was ruled that the Defendants might have a Writ of Error and placit 37. Eliz. Rot. 253. Bartholomew brought a Writ of Error against Dighton for that Dighton recovered against him in an Action of false Imprisonment in which he being within age did sue by an Attorney and adjudged that Iudgment should be reversed And this Case is not to be resembled to the Case of a Fine levied by an Infant which cannot be reversed by any but by the Infant himself and the same Law is of a Recognizance by an Infant and the reason of these Cases is because it is the Act of the Court to admit him to levy a Fine or to acknowledge a Recognizance and therefore this ought to be reformed by the Court and that must be by inspection of the Infant and therefore it ought to be done during nonage But the nonage in this Case ought to be tryed per pais as it was adjudged in the said cases of Bartholomew and Dighton and the case of Hobbs in which case the Infant was brought to the Bar to be inspected but adjudged by the Court that it should not be so because the matter was tryable per pais and 10. Rep Mary Portingtons case A common Recovery against an Infant although he appears by his Guardian shall not bind him for an Infant hath not such a disposing power of his Land as the Husbands wife have but is utterly disabled by the Law to transfer or convey his Inheritance or Freehold to others during his minority And of late daies a common Recovery does appear to be a common conveyance and assurance of Land The third part of the Case is If the two matters pleaded in Bar of Part. 3 the Writ of Error or any of them be sufficient or not I conceive not And first as to the Fine with Proclamations levied before the Recovery had which is the Plea of Mary Taylor one of the Ter-tenants I conceive that it is utterly insufficient as well for the manner as the matter of the Plea for she hath disabled her self to plead this Plea for she sets forth that the twentieth of May 31 Eliz. Thomas Leigh and Katherine his wife did let to the said Mary a Cottage and three acres of Land parcell of the Tenements expressed in the Fine and Recovery for life but doth not shew in what Town the said Cottage and three acres do lye wherefore the Plea is altogether uncertaine and insufficient for the Tenements in the Recovery do lye in two Towns viz. In Alkington and Prestwick and it doth not appear by this Plea in which of these the Cottage and three acres do lye 5 Ed. 4. 116. b. In a Formedon in Discender of a house and forty acres of Land and six of Wood in three Towns and the Issue being to be tryed the Tenant said that the Demandant had entred into the house and thirty acres of Land and three of wood And by the Court the Plea was naught because it did not appear in which Town the Entry was And in Moore and Hoskins case in the Exchequer 8 Jacob. In an Ejectment of Land in Overkiddington and Netherkiddington the Defendant pleaded not guilty and when the Issue came to be tryed by Nisi prius in the County of Oxon the Defendant pleaded an Entry of the Plaintiff in three acres of the Land contained in the Declaration since the last Declaration whereupon the Plaintiff demurred and adjudged that the Plea was insufficient and thereupon the Plaintiff had Iudgment to recover Secondly for the matter this Fine being precedent to the Recovery whereby the cause of this Action is given cannot extinguish it for it is a Rule in Law that one cannot give or grant that which one hath not 22 H. 7. Kelway 84. If the eldest Son in the life-time of his Father infeoffs another it is void as to bind the Land and Littleton Releases 106. These words in a Release Quae quo vis modo in futuro habere potero are void in Law for no Right doth passe but only the Right which the Releasor had at the time of the Release as if the Son release to the Disseisor of his Father all the right which he hath or may have and the Father dye the Son may enter because that he had no right in the life of his Father but only a descent to him after the Release by the death of his Father 13 Ed. 1. 10 Ed. 2. and 4 H. 7. cap. 24. It is enacted that Fines with Proclamations shall conclude as well Privies as Strangers saving to the strangers such right claim and interest as they had at the time ingrossed so as they
favourably then a Plea yet is it all one for I agree that a Verdict need not be so formall as a Plea but if it wants substance either on the one party or the other this shall prejudice the party as much as if there had been a pleading for the Court cannot give Iudgment without some matter found and therefore for as much as in our Case the life of Sir Richard makes for the Defendant and all the validity of his Lease depends thereon he ought to prove by evidence that Sir Richard was alive so that the Iury might have found it and because it was not so found the Court will not intend that he is alive and therefore he shall be taken to be dead and so his confirmation is finished But admitting it shall be intended that he is alive yet I conceive that immediatly upon the death of Valentine his Estate which he had by the limitation of the use is determined and vanisht and he is remitted to his Estate-taile and then his confirmation as I have already proved which doth charge the Estate which he hath by limitation of the use cannot endure Yet I will agree that if Tenant in Taile makes a Feoffment to the use of himself for life and after to the use of his Issue being within age and dies that his Issue shall not be remitted as it is resolved in the Comment 111. Townsends Case and 207. Standbridge and Morgans Case But the diversity is when the Estate-taile is discontinued wherby the Entry of the Issue is taken away and he is put to his Formedon there he shall not be admitted for the limitation of a use to him for if he will take the Estate according to the use he ought to take it in the same manner as he had the use but when no discontinuance is made of the Estate-taile it is otherwise as in Townsends Case Comment 111. Where Amy the wife of Roger Townsend was Tenant in Taile and the Husband the 29. of H. 8. made a Feoffment to the use of himself and his wife for life the Remainder to the use of their eldest Son for life with divers Remainders over the husband and wife died and resolved that neither the wife nor the Son are remitted and the reason there was because that the Feoffment being made before the Statute of 32. of H. 8. was a Discontinuance to the purging of which the wife was driven to her Cui in vita and cannot avoid this by Entry as she might after the Statute of 32 H. 8. and therefore it is there agreed that if a Disseisor make a Feoffment to the use of the Disseisee and he enters he is remitted because his Entry was congeable And so Dyer 191. 2 3 Eliz. Land is given to the husband and wife and to the Heirs of the body of the husband the husband after the Statute of 32 H. 8. makes a Feoffment to the use of himself and his wife for life the Remainder to the first Son for life the Remainder to the right heirs of the husband the husband dies and it was resolved in the Court of Wards that the wife should be remitted notwithstanding the Statute of Vses because that her Entry was congeable and so 11 H. 7. 12. a. If the son disseiseth the Disseisor of his Father and the Father dies now forasmuch as that a right of Entry was in the Father which by his death doth descend to the Son he shall be remitted notwithstanding that he came to the possession by his own proper and wrongfull Act which is as strong against a Remitter as an Agreement is to a Vse And so if the Son and another doth disseise the Father and the Father dies the Son is remitted and shall put out his companion And then Sir Richard being remitted the Confirmation as I have shewed before being but a charge upon the Advowson is meerly determined and so Littleton 148. B. If Tenant in Taile enfeoffs his Issue within age who at full age doth grant a Rent-charge or a Common and the Father dies the Issue shall hold discharged and 40 Ed. 3. 448. If Tenant enfeoff a stranger who grants a Rent and enfeoffs his Son within age and the Tenant in Taile dies the Issue shall hold the Land discharged and the same Law by Catesby in 12 Ed. 4. 13. b. If Tenant in Taile after Discontinuance does repurchase the Land and dies and the reason is because the Statute that was charged is vanisht And although that the opinion of Bromley 33 H. 8. Dyer 51. b. be that the Issue in such case shall not avoid a Lease for years made by him before his Remitter yet the case of a Rent is there also agreed that it is determined by the Remitter and the same Law is in Ioynt-tenancy if one doth make a Lease for years so that he doth dispose of the possession this shall bind the Survivor but otherwise if he charges the Land with a Rent or other thing and so is it where a husband hath a term in right of his wife as in 7 H. 9. 2. 3. And as to the last part of the Case so If the Fine levied by Valentine the Son and Heir of Sir Richard Knightley doth give any force or strength to the confirmation or not and I conceive that it doth not for three causes First the Fine is not with any Proclamations so that it is no bar to the Intail and therefore it is no more then a bare Grant of a Tenant in Tail Secondly As this Fine is found it cannot be intended to be levied by Valentine Knightley the Son of Sir Richard but by a stranger of that name for it is first found that the 27 Eliz. Sir Richard did grant the Advowson to Valentine Knightley then his Son and Heir apparent and that the 36 Eliz. a Fine was levied between B. T. and H. Y. Plaintiffs and Valentine Knightley Esquire Deforceator wihout saying the aforesaid and therefore I conceive that Valentine Knightley Esquire who levied the Fine cannot be intended to be Valentine Knightley Son and Heir of Sir Richard and yet I agree the Case of 21 H. 7. 30. That when Westminster is put into a Plea and then a matter is alledged apud Westmonasterium without praedict it shall be intended the same place but when another addition is given to the person or place it is otherwise and therefore in the second place if it be sayd apud Westmonasterium super Thamesin it shall not be taken for one place 5 Ed. 6. Dyer New Book of Entries 650. 35 36 Eliz In the Kings Bench Vpon a Trespasse for breaking his Close and breaking and spoyling two Gates and three perches of Hedge the Defendants prescribed to go there in perambulation upon which there was a demur c. and adjudged for the Plaintiff 1. Because that he ought to alledge this by custome and not by prescription 2. Because the Bar was that the Plaintiff had obstructed the
Estates yet in Wills the intent of the Devisor is sufficient either to limit the Estate or to describe the person that shall have it And therefore if Land be given to one in perpetuum if it be by Grant or Feoffment yet there passeth but an Estate for life but if it be given by Will it is an Estate in Fee and 4 Ed. 6. Estates 78. If one deviseth his Land to another paying 10 l. to his Executors or any other person the Devisee hath an Estate in Fee so if one deviseth his Land to give or dispose of or sell at his will this is a Fee-simple 19 H. 8. 96. 7 Ed. 6. Devise 38. And the reason in all these cases is because that by these words the intent of the Devisor doth appear that a Fee shall pass and therefore the defect of words shall not defeat his intent And as the intent is sufficient without apt words to make an Estate so is it also to describe the person who shall take the Devise although he be not formally named according to the precise rule in Grants as in 21 R. 2. Devise 17. where one devised Land to one for life the remainder to another for life the remainder to the Church of St. Andrews in Holborn and it was adjudged that after the death of the Devisees for life the Parson of the Church shall have the Land for in as much as the Church was not capable it shall be taken that the intent of the Devisor was that the Parson who is as it were the Father of the Church and so the Head of it should have the Estate And in the 13 H. 7. 17. In every Devise the intent of the Devisor shall be taken for if a man deviseth all his goods to his Wife and that after his decease his Son and Heir shall have his House although that no Devise of the House be made to the Wife by express words but by implication because the Heir is not to have the House during the Wifes life yet because the intent of the Devisor was that the Son should not have it during the life of his Wife she shall have the House for her life To which all agreed Then in our case 1. The Devisor willeth that a Chaplain shall celebrate for his Soul and that he shall have eight Marks out of his Tenements yearly for his stipend but if he had stayed there the Devise should have been voyd for the Chaplain is not such a person as may take these eight Marks as a Rent and therefore he goes further and first he limits what service the Preist shall do and this he appoints to be done by the disposition of the Parson 2. He doth dispose of the residue of the profits of the Tenement for such a time viz. until R. shall be 24 years of age and be a Priest and doth devise that he shall be preferred to the Chantery before any other if he will accept it and if not that he shall have nothing 3. He makes provision for the perpetual continuance of the Chaplain in these words scil That the Parson and four of the best of the Parishioners shall present and finde a Chaplain to perform the said Chantery for ever de tenementis meis superius non legat which is the said Tenement out of which the said eight Marks are limited to be payd 4. He doth inflict a penalty upon the Parson if the Chantery should be voyd scil That the other Land devised by him to the Parson shall go to the Wardens of L. Bridg for the reparation thereof 5. He makes a perpetual disposition for the residue of the profits of the Tenement viz. That they shall be put into a Chest under the custody of the Parson and four of the Parishioners to buy ornaments and Books for the Church And these parts of the Will being well considered as I conceive it will be clear that the intent of the Devisor was that the Parson should have this Tenement for here the main scope of his Will is that a Chaplain shall be maintained perpetually and that he shall have eight Marks stipend out of that Tenement and that it shall be provided and found by the Parson and four of the Parishioners and that the residue of the profits shall be bestowed by them to buy ornaments and Books for the Church so that a perpetual charge is imposed upon the Parson scil to finde the Priest and to buy ornaments c. and this charge is to be defrayed with the profits of the Tenement and that can be done by none but by him that shall be owner of the Tenement and therefore it follows that the Parson shall have the Tenement And that such implication in a Will is sufficient to make an Estate is proved by the 15 H. 7. 126. If one devises his Land to be sold for payment of his Debts the Executor shall sell the Land for because the charge to pay Debts lies upon the Executors his intent shall be taken to have them sell the Land and 22 and 23 Elizab. Dyer 171. A man seised in Fee of divers Mannors doth devise them to his Sister in Fee except my Mannor of D. which I do appoint to pay my Debts and makes two Executors and dyes and one Executor dyes and the other sells thâ— Mannor and adjudged good for so his intent shall be taken and not to relinquish it to his Sister and 19 H. 6. 24 and 25. and 1 Edw. 6. Devise 36. If one devise that his Executor shall sell his Land this is no devise of the Land to them but an authority for they may perform the Devisor to sell the Land although they have no Estate therein and the Vendee shall be in by the Devisor but if one devise that his Executors shall grant a Rent-charge out of his Land or that they shall give the Land in Fee or in Tayl to I. S. this is an implyed Devise to them for otherwise they cannot perform the intent of the Devisor Trin. 9 Eliz. 516. and so in the 40 Assis 26. One did devise his Land in L. to A. and his Heirs to finde twelve Marks for two Chaplains and grants that the Parson and the Parish may distrein for this if it be behinde and there it is debated whether the King shall have the twelve Marks or not and it is agreed there that the Chaplains have no Estate in it because they are removable at the will of A. but because the Distress is given to the Parson who is perpetual it was adjudged that the King shall have the twelve Marks whereupon I do observe that by this Distress limited to the Parson and the Parishioners the twelve Marks were vested as a Rent in the Parson and so made it a Mortmain Object But it may be objected That the last clause in the Will for the disposing of the residue of the profits does go onely to the Land devised to Wardens of the Bridg. Answer But this
he levyed the Fine according to the Charter and in the 21 H. 7. 8. a. When the King grants a License it ought to be strictly executed as if the King should License one to make a Feoffment by Deed he cannot make it without Deed and so e converso so that the License is always to be pursued or else there is no Warrant at all Vide Comment 68. Dive and Manningham If the King doth license one to alien the third part of his Land and he aliens all by Montague the alienation is without warrant And 23 H. 8. 6. Patent 76. If the King doth licence one to alien his Mannor of D. and he doth alien it excepting one acre the License shall not serve and if the King doth license one to impark an hundred acres and he does impark them and after adds ten acres this is no Park And 38 H. 6. 10. If the King grants a Leet to one in all his Land he shall not have it but in the Land which he had at the time of the Grant And this matter is enforced by the preamble of the Statute of the 7 Edw. 6. and the fifth which is For the avoyding of many inconveniences much evil rule and resort of disordered persons to many Taverns newly set up in very great number in Back-Lanes and suspicious places within London and otherwhere whereby it is to be presumed that the King did take notice of the House in which the parties did then inhabit to be a fit place and he trusted all of them but would not trust any one of them This License cannot be granted over 12 H. 7. 25. In a Trespass for hunting in his Park and killing of his Deer the Defendant justified by a License given to I. S. his Master under whom he as servant to him and by his commandment made the Trespass and resolved that a License doth not extend but to him to whom it is given and cannot be granted over and with this accords 18 Edw. 4. 14. and Dyer 34 H. 8. The Defendant hath not answered to the greatest part of the time contained in the Information for the Information is from the first of Novemb. 13 Jac. and a hundred other days between the first of Novem. 13 Jac. and the 26 Octob. 14 Jac. and then the Defendant pleads not guilty the first of November and all the other days between the first of November and the 26 Octob. saving fourty of the said days and for the fourty days he justifies by vertue of a License the last of August 14 Jac. so that it may be that the fourty days that the Information mentions were before this time for he hath the benefit of all days between the first of Novemb. and the 26 Octob. and the Not guilty at the first of November and an hundred days between that and the 26 October and the fourty days excepted in the Not guilty may be as well before the last of August as afterwards and it is at the election of the Informer to charge the Defendant with fourty days at what time he will between the first of Novemb. and 26 of Octob. As in a Trespass for breaking a Close the Plaintiff may after upon a new assignment or in evidence upon Not guilty pleaded assign the Trespass in what Land he will within the same Town although he hath many Closes there and therefore in this case the Defendant ought to have pleaded Not guilty for all the days until the last of August and then to have justified by his License As in a Trespass if the Defendant do justifie at another day by License he ought to traverse the time before and after for that the Plaintiff may charge him at what time he will The Plea is that the Defendant did sell his Wines at such reasonable prices as he could afford them which is utterly insufficient for he ought to have shewed what prices so that the Court might judg whether they were reasonable or not as in 22 Ed. 4. 40. the Lord Lisleâ— Case to shew a sufficient discharge of Rent And although it would be tedious to shew the price of every Quart and Pint yet he may alledg how he sells by the Quart of each kinde of Wine especially of so short a time And Michaelm 15 King James Judgment Judgment was given for the Defendant against the Informer because it was not averred that Tiverton was a Corporate or Market Town and the Statute gives several penalties one for keeping of a Tavern in such a Town without License and another penalty for keeping of a Tavern in other places without License Trinit 15 Jacob. Lee and his wife against Wood Knight Defendant IN an Action of Debt upon a Bond of 100 l. made by the Defendant to the Plaintiff Elizabeth when she was sole 7 Decemb. 13 Jacob. upon condition to pay 70 l. to the said Elizabeth the ninth of December 1616. The Defendant after Oyer of the condition said that the 17 Februa 13 Jacob. the said Elizabeth by Indenture reciting that whereas the Defendant with John and William Wood his sons were bound joyntly and severally to the said Elizabeth in a Bond of 1400 l. 6 December 13 Jacob. upon condition to pay 700 l. the eighth of October 1616. and by an Obligation of 120 l. 7 Octob. 13 Jacob. on condition to pay 70 l. the ninth of December 1616. and by five other several Obligations the seventh of December 13 Jacob. every one of them of 100 l. upon several conditions to pay 35 l. the tenth of June 1617. and 35 l. the ninth of December then next and 35 l. the 10 of June 1618. and 35 l. the ninth of December then next and 35 l. the tenth of June 1619. and 35 l. the ninth of December then next and 35 l. the tenth of June 1620. and 35 l. the ninth of December then next and 35 l. the tenth of June 1621. and 35 l. the ninth of December then next The said Elizabeth did agree covenant and grant with the said Defendant that if the Defendant should pay to Elizabeth the Daughter of the said Elizabeth the Plaintiff 500 l. due to her by the Will of Edmund Pigot her Father in full discharge of a Legacy or Portion given to her by the said Will or should procure to Elizabeth the Plaintiff a sufficient discharge for the said 500 l. of the said Elizabeth Daughter of the said Elizabeth and should provide and take course for fit maintenance for the said Elizabeth during her life and at all times upon request should save harmless the said Elizabeth and her Executors and Assigns of and from the payment of the said 500 l. and also shall pay to Susan the Daughter of Elizabeth the first of May 1621. if she shall then be living and not marryed 400 l. if the same shall then be due by the said Will and if the said Susan shall live until the first of May 1623. and then shall he marryed and her
Leases of the Recusant but the woman here being married hath no Lands or Goods and therefore the King cannot have any thing and the Goods or Lands of her Husband cannot be taken for his wifes offence she being convicted by Indictment only to which the husband is no party Object But it may be objected that the wife may perhaps survive the husband and then she may have Goods and Lands and the King may seise them I answer that first it may be also that the husband may survive and then the King shall never have any thing Answer as it is resolved in Dr. Fosters Case 2. This Objection is upon two possibilities 1. That the husband may first dye 2. That the wife then shall have Lands and Goods And I have alwaies taken it for a Rule that a possibility shall never take away a present Action or Suit as is proved by divers Cases as in 5. Rep. Harisons Case and 9. Rep. fol. 108. 109. And as it is said in Elmers Case 5. Rep. that two possibilities cannot maintain hospitality or repair a Churche so I say in this case that one such possibility to recover this penalty for the King cannot hinder the Informer of his Suit nor oppose the good reformation of Recusants intended by the Statute for then all marryed women addicted to Popery will be Recusants upon confidence that if they be once convicted by Indictment the which they themselves may procure to be done then they shall not be subject to any penalty during the lives of their husbands who peradventure may survive them and as it was well observed in Dr. Fosters Case that married women are the most dangerous Recusants because that they have the education of their Children and the government of their Servants But it may be objected Object that if the Informer may sue and recover against the husband and wife then if the wife does survive the King shall have these Lands and goods according to the 28 Eliz. or may sue the husband and wife according to the 35 Eliz. for these penalties and so shall be two waies punished for the same offence No such inconvenience can happen Answer for as it is resolved in Dr. Fosters Case the recovery of the Informer being legall shall bar the King as in the 19 Ed. 2. where the Testator was bound in a Recognizance for performing of Covenants this was no bar in debt upon an Obligation but that the Plaintiff may recover and if after such recovery the Statute be forfeited and execution thereupon the Executor shall have an Audita Querela for that he had lawfully administred the goods before for payment of the Bonds And after viz. Mich. 17 Jac. I moved the Court that the Plea of the Defendants was insufficient for that the Statute did ordain that upon every Indictment of Recusancy proclamation should be made and that the body of the Offender should be rendred to the Sheriff of the County before the next Assises or Gaol-delivery and if such Offender so proclaimed does not appear but makes default that he shall be convicted c. And the Defendants have pleaded that Proclamation was made that the body of the said Katherine should be rendred at the next Assises or Gaol-delivery c. and therefore she is not convict at all because she was not proclaimed according to the Statute for this Proclamation differs in two materiall circumstances from the form prescribed by the Statute first in omission of the Sheriff to whom the body is to be rendred 2. In the time for the Statute limits it to be done before the next Assises c. but this Proclamation gives a larger time scil at the Assises Whereupon all the Court agreed that the Plea was insufficient for the causes aforesaid and that now the wife was not convicted by proclamation Wherefore Iudgment Judgment was given for the King and the Informer John Mitton Administrator of George Mitton of Goods not Administred by Alice Mitton against John By. IN an Action of Debt for twenty five pounds for that William Marquess of Winchester the twentieth of October 30 Eliz by Indenture did devise to John By the Father of the Defendant three parts of the Mannor of Newnham in the County of Southampton excepting all Fines Reliefs Amerciaments Courts Woods Copies Fishings and Royalties Habendum from Michaelmas next for one and twenty years rendring six shillings ten pence Rent at the Annunciation and Michaelmas The twentieth of January 1. Jac. John By the Father made his Will and made the Defendant his Executor and died possessed The fourteenth of Novemb. 2 Jacob. the Defendant granted the Term to the Intestate The sixteenth of Novemb. 2 Jac. The Intestate did grant all the Term by Indenture to the Defendant rendring fifty nine pounds Rent at the Annunciation and Michaelmas whereby be entred and had possession of the Land and twenty five pounds of the said Rent for half a year ending at Michaelmas 15 Jacob. was behinde to the Plaintiff after the death of the Intestate which yet the Defendant doth not pay ad damnum c. The Defendant says that the Intestate the twenty sixth of June 5 Jac. did release by Deed to the Defendant all Actions Suits Debts Duties from the begining of the world until the day of the date of the said writing Whereupon the Plaintiff demurred in Law And I conceive that Judgment ought to be given against the Plaintiff For that in Littleton 118. If one doth release to another all Demands this is the best Release that may be and shall enure to the most advantage of him to whom it is made For by such Release all Actions Reals and Personals and Appeals and Executions are gone and extinct and if a man hath title to enter into any Land by such Release his title is gone and 20 Assis 5. where in an Assise for Rent a Release of all Demands was pleaded and the common Opinion was that it was good wherefore the Plaintiff was non-suited and 5 Edw. 4.42 by Danby A Release of all Demands by a Lord to his Tenant is a good bar and extinguishment of his Seigniory for although no Rent was behinde at the making of the Release yet is the Rent always in Demand and 6 H. 7. 15. If the King releaseth all Demands yet as to him the Inheritance shall not be included But in case of Rent or right of Entry by a common person and every thing therein implyed is gone by such Release And 14 H. 8. 9. by Pollard By Release of all Demands the Rent is extinct for Rent is to be had by Demand and if one doth determine the means he hath to come by a thing he doth determine the thing it self And Litt. 118. If a man hath a Rent-service or Rent-charge or Common of Pasture by such Release of all Demands all is gone from the Land from whence the Service or Rent is issuing or the Common of Pasture But if one lets Land to another
cannot be First because that the Land devised to them is onely a Chamber and a mansion of little value and that is to repair the Bridg and that is a work of such charge that no surplussage can be intended Secondly The clause is Id quod clarum fuerit ultra solutionem reparationem c. which are the very words in the clause used for the disposing of the residue to R. for the time and cannot be referred to the Devise of the Wardens of the Bridge because that the things devised to them are apparently to be for the reparation only and no payment is limited out of it but the Tenement out of which the Stipend is to be payd is first charged with this payment and then with the reparation of the Tenement and then with the Ornaments and Books for the Church And afterwards this Case was argued by Coventrey the Kings Sollicitor for the Plaintiff and by S. Chibborne for the Defendant And Mich. 16. Jac. The Barons viz. Tanfeild Bromley and Denham did openly declare their opinion that the Land was not demised to the Parson by this Will and thereupon they commanded Iudgment to be entred for the Defendant which was entred accordingly Trinit 15 Jacob. John Adams against Roger James Knight and others IN a Replevin for taking of twelve Cowes and two Calves the twenty fourth of May the 14. of King James at Upminster in a place called Nelfeild alias Newfeild ad damnum 10 l. The Defendants did justifie the taking c. as Bayliffs of Thomas James and Moily Deale for that the place contained twenâ—â— acres of Pasture And that William Latham was seised in Fee of the Mannor of Upminster whereof the said twenty acres are parcell and the twenty fifth Maii 13 Eliz. devised the same to George Wiseman excepting one Close of Land or Pasture called Crouckfeild containing by estimation fifty acres and a parcell of a Close called Ecrowchfeild containing by estimation sixty acres and all Woods and Frees and Profits of Court Leets Waifes Estrayes Escheats Hermots Reliefs Goods and Chattels of Felons and Fugitives Deodands and Treasure Trove Habendum from Michaelm 1576. for sixty one years rendring forty pounds Rent at the Annunciation and Michaelmas The first of Octob. 1576. George Wiseman entred The twentieth of August 35 Eliz. William Latham by Deed inroled for the consideration of two thousand pounds did bargain and sell the Mannor to Roger James Father of the Defendant Roger in Fee and the 15 Decemb. 39 Eliz. Roger James the Bargaines did devise the third part of the Mannor to John his Son after whose death John was seised of the third part in Fee The seventh of August 11 Jacob. John James by Indenture for a thousand pounds paid by Thomas Fryth did bargain and sell to the said Thomas Fryth and Moyle Deale the said Reversion of the said third part Habendum from the said seventh of August for a hundred years ex intentione that they should grant or assign the said term to Thomas Fryth or his Assignes upon condition that he should pay a thousand pounds to the said Roger James viz. five hundred pounds the seventeenth of August 1614. and five hundred pounds the seventeenth of Febr. next after And because sixty pounds thirteen shillings foure pence was behind to the said Thomas James and Moyle Deale for halfe a yeare ending at Mich. 12 Jac. they did well justifie the taking c. The Plaintiff said that after the seventh of August Bar. 11 Jac. and before the said Mich. 12 Jac. viz. the ninth of August the 11 Jac. the said Thomas James and Moyle Deale did bargain and sell to the said Thomas Fryth all their Estate in the said third part whereby he was and yet is possessed Replication The Avowants replyed that the Bargain and Sale was upon Condition to pay the said thousand pounds to the said Roger James at the said days of payment and that Thomas Fryth did not pay the said five hundred pounds the seventeenth of August 1614. Rejoynder The Plaintiff rejoyned that after the said ninth of August 11 Jac. scil 10. August 11 Jac. the said John James was seised in Fee of the Reversion of the third part expectant upon the estate of the said George Wiseman And that the tenth of August 11 Jacob. John James by Indenture inroled did bargain and sell the said Reversion to the said Thomas Fryth and his heires That the seventeenth of August 11 Jac. John James by Indenture dated the aforesaid seventh of August 11 Jac. fâ—r a thousand pounds did bargain and sell the said third part to the said Thomas James and Moyle Deale Habendum from the said seventh of August 11 Jac. for a hundred years and that they after scil the aforesaid seventeenth of August 11 Jac. did bargain and sell to the said Thomas Fryth upon condition before expressed Absque hoc that the said John James did bargain and sell to the said Thomas James and Moyle Deale the said Reversion before the said tenth of August 11 Jac. and absque hoc that the said Thomas James and Moyle Deale before the said tenth of August 11 Jac. did bargain and grant the said Reversion to the said Thomas Fryth on condition as aforesaid Vpon which the Avowants demurred and shewed for cause that this is a departure from the Bar and that the said Rejoynder is in it self repugnant And I conceive that Iudgment ought to be given for the Plaintiff in the Replevin for that the Conusance is utterly insufficient for three causes 1. The Defendants make Conusance as Bayliffs to Thomas James and Moyle Deale and do endeavour to entitle themselves to a third part of the Reversion and Rent upon the Lease to Wiseman by the Devise of Roger James and it doth not appear in all the Conusance that Roger James was dead before the Grant made by John James to the said Thomas James and Deale for it is not set forth that he died but only by implication scil the bargain and sale by Latham is pleaded to Roger James lately dead which doth refer to the time of the plea which was long after the Grant to Thomas James and Deale and after the Rent due and the taking of the Distresse then it is alledged that after the death of Roger James the Devisor John James entred which is not sufficient because it is not alledged in fact that he dyed or when he diâ— dye And all the Court agreed the Avowry insufficient as to this exception Secondly the bargain and sale of the Reversion by John James to the said Thomas James and Moyle Deale is pleaded to be made the seventh of August 11 Jac. Habendum from the aforesaid seventh of August for a hundred years whereby the day it self is excluded and so the Grant is to take effect in the future which cannot be by the Rules of Law as in Bucklers Case 2. Rep. where Buckler Tenant for life in Mich. Term 20 Eliz. made